Below are some of our comments and suggestions submitted to the Ministry of Environment, Forest and Climate Change concerning the Biological Diversity (Amendment) Bill, 2021, which was tabled before the Rajya Sabha recently to amend the Biological Diversity Act, 2002 (hereafter referred to as the BDA). These Amendments were introduced 20 years after the law was initially passed in 2002, in response to a long-standing demand from stakeholders to simplify, streamline and reduce compliance burden in order to encourage a conducive environment for collaborative research and investments.
At the outset, it is important to highlight some of the positive aspects of the Bill, for which the Ministry needs to be commended. These are as follows:
- Amending the preamble to include the Nagoya Protocol of 2010 furthers India’s obligations to international treaties.
- Section 4 – Transfer of research results in relation to codified traditional knowledge by Indians are exempted from the application of this section and this does provide some relief to Indian researchers.
- Definition of India has been expanded to also include its maritime zones and the air space above its territory. This is very beneficial towards the conservation of bio-resources and ecosystems found within India’s maritime zones.
- Under Section 7, the Amendments also exempt cultivated medicinal plants and their products provided that a certificate of origin for cultivated medicinal plants is available with the manufacturer. Such certificates will help ensure that only cultivated varieties of medicinal plants are used in commercial utilisation and not the wild varieties.
- Including representatives from departments dealing with Panchayati Raj and tribal affairs at the state level within the State Biodiversity Board (SBB) is a step in the right direction.
- Section 23 clarifies the powers of SBBs in granting or rejecting approvals, referred to in Section 7, and also determines the fair and equitable sharing of benefits while granting such approvals. This has laid to rest long-standing doubts on whether SBB has such powers over Indian entities accessing bio-resources or not.
Having stated the above, the following amendments would require more consideration from the Ministry, if the objectives of conservation and sustainable use of biodiversity and fair and equitable benefit sharing, have to be met adequately. These are as follows:
- The Amendments have made the law more centralised and take away from people’s right to participation in biodiversity conservation.
- Exemption to multinational companies with Indian subsidiaries will go against India’s sovereign right over its bio-resources.
- Exemption to codified traditional knowledge will leave way for major manufacturers of herbal products, pharmaceuticals and nutraceuticals in India to extract resources from nature without any limits.
- Section 19 and 20 Amendments remove provision on issuing public notice and thereby take away the public’s right to protest against approvals.
- Benefit claimers and local bodies are no longer a part of negotiations on fair and equitable benefit sharing, thereby going against Nagoya Protocol’s provisions on prior informed consent and mutually agreed terms.
- The power of Biodiversity Management Committees have not been enhanced and their decisions will continue to be subjected to the State Biodiversity Board or National Biodiversity Authority mandate.
- Offences under the Biological Diversity Amendment (BDA) have been turned civil in nature with no criminal consequences, and this will leave all the fauna and flora excluded from Wildlife Protection Act, 1972, subjected to unsustainable extraction.
- The Biological Diversity Amendment Bill, 2021, has been introduced without seeking public comments as required under the Pre-Legislative Consultation Policy of 2014.
The Bill has also missed the opportunity to provide clarity on several aspects of the law, such as the definition of traditional knowledge or value-added products, to name a few.
Please read the detailed comments to the Bill here.