Parliamentary panel endorses controversial changes in biodiversity law overlooking concerns

When the Union Government proposed amendments to the Biological Diversity Act (2002) in December 2021, it was criticised  for opening up the country’s biodiversity resources to increased exploitation. Subsequently, the government referred the Bill to a Joint Parliamentary Committee (JPC) for further deliberation. The JPC submitted its report recently, agreeing to most of the controversial provisions.

Whether it is an exemption of codifying knowledge and cultivation of medicinal plants or decriminalising the infringement of any section of the law, the JPC received a strong objection from several state diversity boards and civil society. But it still moved ahead and gave its nod to these changes.

India was one of the earliest countries to enact a legislation to conserve the country’s biological diversity and its associated traditional knowledge. The Biological Diversity Act (2002) has its roots in the United Nations Convention on Biological Diversity (CBD) which aims to push conservation of biological diversity and associated traditional knowledge, its sustainable use, and equitable sharing of benefits arising out of its use. The CBD also marked a paradigm shift in the way in which the international community looked at biological diversity and its associated traditional knowledge. The Convention, developed at the Rio Summit of 1992, declared the biological diversity occuring within a country was the sovereign property of the country. Before the CBD, biological diversity was considered as a global commons resource. 

When the Union Government introduced the Biological Diversity (Amendment) Bill, 2021, in Parliament on December 16, 2021 it was met with much resistance. The Environment Minister Bhupender Yadav referred it to the JPC within four days of the introduction of the Bill, thus, managing to calm down opposition. 

The 31-member JPC has a total of 16 parliamentarians from the Bharatiya Janata Party (BJP) and two from Janata Dal (United), a long-term coalition partner. JDU broke its alliance with the rulling party in June only. The other committee members include three from Indian National Congress, two from Dravida Munetra Kazhagam (DMK), two from All India Trinamool Congress (AITMC), two from Biju Janata Dal (BJD) and one each from Samajwadi Party (SP) and Bahujan Samaj Party (BSP). The Committee submitted its report in the monsoon session of the parliament.

The JPC had organised 15 sittings and heard 47 stakeholders. All major states having a stake in biodiversity, also participated. These states include Goa, Haryana, Himachal Pradesh, Odisha, Tripura, West Bengal, Delhi, Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Karnataka, Kerala, Maharashtra, Meghalaya, Uttarakhand and Madhya Pradesh.

Highlighting the importance of Biodiversity Act (2002), the JPC report says, “India is one of the 17 recognised mega-biodiversity countries. It hosts 7-8% of recorded species of the world. As of 2021, 1,03,258 of fauna and 55,048 species of flora have been documented in the country. It also has a vast repository of traditional knowledge associated with biological resources. India hosts four out of 35 globally identified biodiversity hotspots.”

However, the JPC has failed to pacify stakeholders, especially those working for biodiversity conservation and equitable sharing of benefits.

The Founder of the Legal Initiative for Forest and Environment (LIFE), Ritwick Dutta says that the JPC does not really address any of the significant issues raised by critics when the amendment bill was introduced by the government. Neither does it address the issues raised by civil society groups, nor the concerns raised by the state biodiversity boards (SBBs). On many issues, these SBBs have taken a strong stand against dilution. But, the JPC doesn’t change any of the major provisions, he adds. LIFE is a national-level public interest law group.

Concerns remain unanswered

Ever since the draft of the Biological Diversity (Amendment) Bill, 2021 came into the public domain, many stakeholders have opposed it. The main criticism was based on the line that the proposed amendment leaves several loopholes in the law which can be misused and defeat the purpose of CBD. 

The new Bill has made one major amendment to exclude codified traditional knowledge from the purview of benefit claims. It defines the benefit claimers as the conservers of biological resources, their by-products, creators, or holders of associated traditional knowledge thereto (excluding codified traditional knowledge only for Indians).

This exclusion has received huge criticism. The stakeholders feel that it will take the majority of the traditional knowledge from the kitty where the community can put its claim for benefit sharing. Eight state biodiversity boards have raised their concern against this with  the JPC. These states include Goa, Bihar, Chhattisgarh, Tripura, Maharashtra, Assam, Andhra Pradesh, Madhya Pradesh and Uttarakhand. They have opposed this change arguing that most of the traditional knowledge being used in the AYUSH systems of medicines, is codified. If this codified knowledge gets excluded from claiming benefits, the majority of local traditional knowledge holders will not get the benefits.

Senior fellow and Program Leader (Ecosystems and Global Change) at Ashoka Trust for Research in Ecology and Environment (ATREE) Dr. Priyadarsanan Dharma Rajan says that the codification of traditional knowledge is very ambiguous and gives total exemption to Ayurvedic pharmaceutical companies. “We are involved in documenting biodiversity-related knowledge. The best way to protect traditional knowledge is to document and publish, especially when many languages are dying out and cultures are getting diluted. With these changes, traditional knowledge are also getting diluted and the best way to protect them, is to document and make it available in public domain,” he added.

Terming the exemption of codified traditional knowledge as completely wrong, Dutta says, “It disincentivises the recording of traditional knowledge”. Traditional knowledge needs to be codified to protect them. And the new provision is basically saying as long as the traditional knowledge is not codified, you will get the benefit. But the moment you codify it, you will not get it, he adds. 

In response to these objections, the JPC has asked the ministry to incorporate “Codified traditional knowledge” means the knowledge derived from authoritative books specified in the First Schedule to the Drugs and Cosmetics Act (DCA), 1940.

Will it ensure that the community gets its due share? Dutta says that all vegetables including amla are anyway excluded from Access and benefit-sharing (ABS). So, if one adds the list of the first schedule of DCA along with the normally treated as commodities, it will be virtually impossible to find a product that will come within the scope of ABS, he says adding that exempting codified traditional knowledge effectively means that almost the entire sector is out of the purview of biological diversity. At present, the first schedule of DCA lists 85 books of Ayurveda and Sidhha along with 14 books on Unani Tibb system. Most of these books are a compilation of traditional knowledge.

Similarly, the ministry has made a change in the new Bill, with an objective to push farming or cultivation of medicinal plants.

In the earlier act, a provision bars entities from obtaining biological resources for commercial purposes. The new amendment excludes codified traditional knowledge and also cultivated medicinal plants and their products from the definition of biological resources. The Ministry of Environment, Forest and Climate Change (MoEFCC) has argued that it will encourage locals to take up professions based upon their local knowledge.

This provision has also received opposition from eight states. Their objection is on the ground that it will lead to false claims that a major chunk of certain bio-resource is cultivated. The traders or manufacturers can misuse it. It will also open space for other manipulative techniques to co-opt members of local communities into the trading or manufacturing units as their agents. The committee agrees on a certificate of origin for cultivated medicinal plants. However, it still remains a puzzle to be solved.  If a company obtains cultivated medicinal plants or gets into cultivation of the medicinal plants, how is a farmer going to benefit from it, Dutta says adding that there was nothing in the previous law that can restrict the local community to harvest such plants.

In another controversial point, the JPC has maintained the status quo. This is about the punishment in case of a violation of the law.  The previous Act (2002) has a provision of imprisonment and penalty in case someone is found contravening the law. As per the provision, the violator can be imprisoned which may extend to five years or can be penalised with a fine up to Rs 10 lakhs. In case the damage caused exceeds Rs 10 lakhs, the fine can be increased accordingly.

The new amendment removes the provision of imprisonment and has increased the penalty from Rs 10 lakhs to Rs 50 lakhs. The amendment says, “but where the damage caused exceeds the amount of penalty, such penalty shall be commensurate with the damage caused, and in case, the failure or contravention continues, an additional penalty may be imposed, which shall not exceed one crore rupees and such penalty shall be decided by the adjudicating officer appointed under section 55A.”

Interestingly, the Bill proposes that the central government will appoint an officer not below the rank of Joint Secretary to the central government or a Secretary to the state government as an adjudicating officer. The appointed official will be responsible for holding an inquiry and imposing the penalty. Many states including Uttarakhand, Assam, and Bihar have opposed the amendment.

But the JPC has retained the change saying that contravention of the Biological Diversity Act 2002 is a civil wrong and should attract civil penalties.

Dutta raises a concern on this. He says that the government is trying to make the proceedings from criminal to civil. There is no problem with it but it will be dealt with by an official of the rank of joint secretary of the central government or a secretary of the state government. In such cases, there’s hardly ever going to be a prosecution. The independence of the judiciary is very critical when it comes to prosecution. It should be done by people who are not part of the executive. The National Green Tribunal is also a civil court but the adjudication is done by judges who are independent of the bureaucracy, he explains.

Early mover but still a laggard

India is one of the first movers when it comes to making legislation to protect its biodiversity. This was a result of the CBD organised in 1992 at the United Nations Conference on Environment and Development in Brazil. In 1994, India signed a CBD agreement that aims to recognise sovereign rights over biological resources. As a commitment to CBD, India passed the Biological Diversity Bill in 2002. Since the beginning of the effort, the government has been blamed for a casual approach toward the bigger aim.

In a written response, noted ecologist and founder of the Centre for Ecological Sciences at the Indian Institute of Science, Madhav Gadgil explains that the CBD is guided by six principles of ecosystem management- the objectives of management of land, water and living resources are a matter of societal choice; management should be decentralised to the lowest appropriate level;  ecosystem managers should consider the effects (actual or potential) of their activities on adjacent and other ecosystems;  recognising potential gains from management, there is usually a need to understand and manage the ecosystem in an economic context; conservation of ecosystem structure and functioning, in order to maintain ecosystem services, should be a priority target of the ecosystem approach, and ecosystems must be managed within the limits of their functioning.

However, when the rules were formulated by the Government of India two years later in 2004, it didn’t adhere to CBD guidelines. The rules nullified any role of BMCs in ecosystem management. All that the BMCs are now asked to do is to record information in the People’s Biodiversity Registers, he adds.

Similarly, BDA provides for a decentralised three-tiered mechanism comprising the National Biodiversity Authority (NBA), the State Biodiversity Board (SBB) and the Biodiversity Management Committees (BMCs). Every BMC is supposed to prepare a People Biodiversity Register (PBR). But the formation of BMCs took around 18 years, that too happened after the intervention of the National Green Tribunal (NGT). 

In 2016, merely 9,700 BMCs were constituted and only 1,388 People’s biodiversity Registers (PBRs) were prepared. Against a petition filed in 2016, the NGT came up with a series of directions and forced governments to constitute BMCs and prepare PBRs. As of July 2022, 276,000 BMCs have been constituted, and 267,000 PBRs have been prepared, informs the JPC report.

In the majority of states, these BMCs were created in a rush, in order to follow the NGT order. For instance in Bihar, the panchayats were instructed to constitute a BMC overnight. Another problem with the whole effort is thwarted by a lack of funds. The Union Government allocated Rs 100 million to National Biodiversity Authority in 2020-21. The budget estimate for the same in 2022-23 is Rs  175 million. 

And then comes the present Bill, which critics point out put  the interest of the industry over the conservation of biodiversity and benefit sharing. Now, the majority of the traditional knowledge will fall in the category of codified knowledge, BMCs will be deprived of ABS and it will weaken these committees further, says an expert. 

An independent researcher working on people’s initiative on resource rights and democratic governance, CR Bijoy says that neither the Bill 2021 nor the JPC report have dealt with the complicated nature of scheduled areas. It shows the level of their seriousness.

Dr Rajan from ATREE however, believes that even after 20 years of the Act, there is not even a single successful case of benefit sharing. “Instead of providing ‘freebies’ on the pretext of benefit sharing, the local communities need to be capacitated for the cultivation of useful plants. Businesses should be built to make the products and market those,” he concludes.

Banner Image: People carrying firewood in Wayanad. Photo by Vinayaraj/Wikimedia Commons.