India
is one of the world’s most biodiversity rich regions, with approximately 8% (over
89,000 species of animals and 46,000 species of plants) of the world’s total
variety of plants and animals.[1]Many
policies, Acts, and Rules have been formulated by the Government of India with
an aim to safeguard the forest, wildlife and habitats that per se cover
the default biodiversity by direct and indirect means. Such government
legislations prior to Biological Diversity Act 2002 are as follows:
1.
Indian Forest Act, 1927
2.
Indian Wildlife Protection Act, 1972
3.
Forest Conservation Act, 1980
Basically,
Indian Forest Act deals with overall protection & management of forests.
Similarly, Indian wildlife protection Act aims to conserve the biodiversity
with specific focus of wildlife (both animals and plants) with in situ and ex
situ measures and Forest Conservation Act is focused on conservation of
biodiversity through habitat protection. These Acts are very important for the
protection of biodiversity in India. However, they hardly regulate the access
to biogenetic resources or about sharing the benefits arising from such use.
India signed the CBD on 5th June 1992 and ratified
it on 18th February 1994 and as per the mandate of the CBD, India is bound to
make a concerted effort to ensure that the broad objectives of the CBD and
other associated relevant instruments are addressed at a domestic level and
proper guidelines for ABS mechanism are in place. Prior to the ratification of
CBD by India, there were no specific legislations or policies dealing with the
issues related to biodiversity and ABS. Even after the CBD entered into force
in late 1993, it took India almost a decade to introduce the biodiversity
legislation. After a very extensive and long consultations and discussions at
different level, the government of India finally adopted the Biological
Diversity Act (BDA) in May 2002.
The BDA aims to provide for conservation of
biological diversity, sustainable use of its components and equitable sharing
of the benefits arising out of the use of biological resources.[2] The
BDA outlines a framework and process by which resources can be accessed, and
details the procedural hierarchy that exist for those parties interested in
doing so.[3] It
also outlines measures for sharing of benefits from the use of biodiversity,
including transfer of technology, monetary returns, joint research & development
etc.[4] Furthermore
it provides measures to conserve and sustainably use biological resources,
including habitat and species protection, environmental impact assessments
(EIAs) of projects, integration of biodiversity into the plans, programmes, and
policies of various departments/sectors.[5]
Scope:
The Act extends to the whole of India[6]
and regulates the issues relating to biological resources. The Act defines
biological resources as, plants, animals and micro organisms and parts thereof,
and their genetic material and by-products, with actual or potential use or
value, but does not include human genetic materials.[7]
Regulating
Authorities
To oversee the conservation, sustainable use and
sharing of the benefits from the use of biological resources and traditional
knowledge associated thereto, the Act has established different regulating
authorities at different level. At the national level, National Biodiversity
Authority (NBA) has been established.[8] It
is mandatory to get approval from the NBA prior to conduct any activities
related to biological resources.[9] At
the state level, State Biodiversity Board (SBB) has been established[10]
and it performs functions similar to that of NBA (but in state level). Finally,
the Act establishes Biodiversity Management Committees (BMC)[11],
within every local body and they shall be governed by existing village level
political mechanism.
ABS provisions in Biological Diversity Act:
-
The underlying principle of ABS is to ensure that
access to biological resources and/or associated traditional knowledge is based
on a set of principles, terms and conditions that include prior informed
consent (PIC), mutually agreed terms (MAT) and ensuring fair and equitable
sharing of benefits. In the following section we shall examine the provisions
of the BDA in regard to ABS.
Access:
-
Any parties interested in accessing the biological
resources and/or traditional knowledge associated thereto for research or for commercial
utilization or bio-survey and bio-utilization must obtain approval from the NBA
prior to conducting such activities.[12]
This provision applies only to the persons as specified by section 3 (2) of the
Act[13]
and exempts Indian citizens and institutions. However, Indians and Indian
institutions need to inform the SBB prior to undertaking any research with the
intent of commercialization.[14]
The applicants interested in seeking access to
biological resources and/or associated traditional knowledge must fill
application form for access to biological resources and/or associated traditional
knowledge (form I) under the Act.[15]
Application processing fee of ten thousand Indian currencies is levied on the
applicants at the time of submitting the application.[16]
All applications are reviewed in terms of nature and quantity of material to be
accessed, the timing, geographical location and other related issues.[17]
The application are approved only after extensive consultation is made with an
expert committee[18]
and local bodies from whose jurisdiction the biological resources and
associated traditional knowledge will be accessed.[19]
Access to biological resources by local people and
communities of the area, including growers and cultivators of biodiversity, and
vaids and hakims, who have been
practising indigenous medicine are exempted from the purview of this Act.[20]
Furthermore, normally traded commodities (NTCs) (Currently 190 species are
designated as NTCs) are also exempted provided they are used as commodities.
The NBA shall give public notice of every approval
granted for access to biological resources.[21]
Benefit
Sharing: -
The NBA is responsible for securing equitable
sharing of benefits arising out of the use of accessed biological resources,
their by-products, innovations and practise associated with their use and
applications and knowledge relating thereto in accordance with MATs at the time
of granting approval to the applicants.[22]
The terms or manner of benefit sharing must be determined by the NBA as
provided in section 21 (2) [23]of
the Act.
It is mandatory to obtain prior approval of the NBA
if anyone wishes to apply for intellectual property rights (IPR) based on any
research information on a biological resources obtained from India[24]
and at the time of granting such approval the NBA may impose benefit sharing
fee or royalty or both or impose conditions including the sharing of financial
benefits arising out of the commercial utilisation of such rights.[25]
The Act has established National Biodiversity Fund
(NBF)[26]
with a purpose of channelling benefits, to the conservers of biological
resources and creators and holders of knowledge, for the conservation of areas
from where such biological resources of knowledge associated thereto has been
accessed and for the socio-economic development of such areas in consultation
with the local bodies concerned.[27]
All the grants and loans made by the central government as per section 26[28]
and monetary benefits arising from the benefit sharing shall be deposited to
the NBF unless otherwise directed by the NBA.[29]
However, in cases where biological resources was a result of access from a
specific individuals or group of individuals organisations, the NBA may direct
the benefit procured to be paid directly to such parties in accordance with the
terms of any agreements.[30]
In the state level there is a State Biodiversity
Fund (SBF), which is administered by the SBB. The main aim behind establishing
this fund is to provide for the management and conservation of heritage sites
and biological resources as well as helping in socio-economic development of
areas from where biological resources or knowledge associated thereto has been
accessed.[31]
A similar mechanism is designated to exist at the village level[32];
this Local Biodiversity Fund (LBF) shall be used for “conservation of biodiversity
in the areas falling within the jurisdiction of the concerned local body and
for the benefit of the community in so far such use is consistent with the
conservation of biodiversity.”[33]
Observation:
-[34]
The BDA in its preamble explicitly acknowledges the
obligation under the CBD and states that this very Act has been enacted to
provide for conservation, sustainable utilisation and equitable sharing of
benefits arising out of utilisation of genetic resources and also to give
effect to the CBD. The objectives of the CBD have been addressed somehow in the
BDA and it can be said that India’s engagement with ABS issues has been
progressive and noteworthy. However, there are many things that is lacking in
the BDA in comparison with the provisions of CBD. The BDA vests absolute
authority to the NBA for granting PIC, concluding MTAs, regulating the sharing
of benefits etc. Article 8 (j) of the CBD has been blatantly ignored by this
Act as it does not give any rights to the Indigenous people and communities relating
to the granting of PIC, negotiating the benefit sharing via MTAs etc. The
provision of consulting the local bodies before granting PIC is present but is
not very exclusive.
The BDA imposes restriction not only to access but
also to the transfer of results of such research relating to any biological
resources occurring or obtained from India to non Indian individuals and
institutions without previous approval of the NBA. Furthermore, the Act makes
it mandatory for obtaining prior approval from the NBA if anyone wishes to
apply for IPRs based on any research or information on a biological resource
obtained from India.[35]
References: -
[2]
The Biodiversity Bill, 2002.
[3]
J.R. Ghose, “Access and Benefit Sharing
Systems: An Overview of the Issues and the Regulation”, 2003, P. 19.
[4] Sutar
& Swain, Implementation of Biological Diversity Act in India: An Overview
with Case Studies, Regional Centre for Development Cooperation, 2011, P. 20- 32
[5]
Ibid.
[6] The
Biological Diversity Act (2002), section 1 (2),
[7]
Ibid, section 2 (c)
[8]
Ibid, section 8 (1)
[9]
Ibid, section 3
[10] Ibid,
section 22.
[11]
Ibid, section 41
[12] The
Biological Diversity Act (2002), Section 3 (1).
[13]
Section 3 (2) of the Act provides the list of persons who shall be required to
take the approval of the National Biodiversity Authority which are as follows:
-
a)
a person who is not a citizen of India;
b)
a citizen of India, who is a non-resident as defined in
clause (30) of section 2 of the Income-tax Act, 1961;
c)
a body corporate, association or organisation-
i)
not incorporated or registered in India; or
ii)
Incorporated or registered in India under any law for the
time being in force which has any non-Indian participation in its share capital
or management.
[14]
The Biological Diversity Act (2002), Section 23 (b).
[15]
Ibid, section 19 (1).
[16]
Access and Benefit Sharing Experiences from India, National Biodiversity Authority,
this document can be found at http://nbaindia.org/uploaded/pdf/ABS_Factsheets_1.pdf
( accessed in 19th September 2013).
[17]
Ibid.
[18]
The Biological Diversity Act (2002), Section 41(2).
[19]
Ibid.
[20]
Ibid. Section 7.
[21]
Ibid, section 19 (4).
[22]
Ibid, section 21 (1).
[23]
As per section 21 (2) the benefit sharing must be determined in all or any of
the following manner, namely: -
a)
grant of
joint ownership of intellectual property rights to the National Biodiversity
Authority, or where benefit claimers are identified, to such benefit claimers,
b)
transfer of
technology;
c)
location of
production, research and development units in such areas which will facilitate
better living standards to the benefit claimers;
d)
association
of Indian scientists, benefit claimers and the local people with research and
development in biological resources and bio-survey and bio-utilisation;
e)
setting up of
venture capital fund for aiding the cause of benefit claimers;
f)
payment of
monetary compensation and other non- monetary benefits to the benefit claimers
as the National Biodiversity Authority may deem fit.
[24]
The Biological Diversity Act (2002), section 6 (1).
[25]
Ibid, section 6 (2).
[26]
Ibid, section 27.
[27]
Ibid, section 27 (2).
[28]
As per section 26, the central government may provide the NBA grants or loans
to be utilised for the purpose of achieving the objectives of the Act.
[29]
The Biological Diversity Act (2002), section 21 (3).
[30]
Ibid.
[31]
Ibid, section 32.
[32]
Ibid, section 43.
[33] Ibid,
section 44.
[34]
Ibid, section 4.
[35]
Ibid, section 6.
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