Why in News?

• The Lok Sabha has passed the Biological Diversity (Amendment) Bill, 2021.

What’s in Today’s Article?

• Background (Biological Diversity Act)
• Key Provisions of the Biological Diversity (Amendment) Bill, 2021
• Criticism of the Biological Diversity (Amendment) Bill, 2021

Background:

• In light of India’s commitments under Convention on Biological Diversity (CBD) of 1992, the Biological Diversity Act, 2002 was passed by the Parliament.
  • The CBD recognises sovereign rights over biological resources and permits countries to regulate access to these resources as per their national legislation.
• The Act regulates access to biological resources and associated traditional knowledge.
  • To do this, it formulates a three-tier structure consisting of a National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the State level and Biodiversity Management Committees (BMCs) at local body levels.
• In December 2021, the Biological Diversity (Amendment) Bill, 2021 was introduced in Lok Sabha.
• The Bill seeks to amend the Biological Diversity Act, 2002 to –
  • encourage the Indian system of medicine and cultivation of wild medicinal plants,
  • facilitate fast-tracking of processes for research, patent application, and transfer of research results,
  • decriminalise offences, and
  • encourage foreign investment in the sector. 

Key Provisions of the Biological Diversity (Amendment) Bill, 2021:

• Access to biological resources and associated knowledge –
  • The Biological Diversity Act requires prior approval or intimation to the regulatory authority based on the origin of the entity for obtaining biological resources occurring in India or associated knowledge.
  • The Bill amends the classification of entities, list of activities requiring intimation, and adds exemptions.
• Approval for Intellectual Property Rights (IPR) –
  • The Act specifies that approval of NBA is required before: applying for IPR involving biological resources obtained from India, or sealing of patent.
  • The Bill provides that approval will be required before the grant of IPR instead of before the application itself.
• Benefit Sharing –
  • Benefit sharing refers to requiring applicants to share monetary and non-monetary benefits with benefit claimers and local people.
  • Benefit claimers are conservers of biodiversity, or creators or holders of associated traditional knowledge.
  • Under the Act, NBA is required to determine terms of benefit sharing while granting approvals for various activities.
  • The Act makes benefit sharing provisions applicable to research, commercial utilisation, as well as bio-survey and bio-utilisation for certain entities.
  • The Bill removes its applicability from research, and bio-survey and bio-utilisation.
• Offences and Penalties –
  • Under the Act, offences include failing to take approval or providing prior intimation for various activities.
  • These offences are punishable with imprisonment of up to five years, or a fine, or both.
  • The Bill decriminalises the offences and makes offences punishable with a penalty between one lakh rupees and Rs 50 lakh.

Criticism of the Biological Diversity (Amendment) Bill, 2021:

• Reduced role of Local Bodies –
  • The Bill removes the direct role of local bodies and benefit claimers in determining mutually agreed terms.
  • The Act states that while granting approvals for various activities, NBA will determine terms for benefit sharing.
  • Such approval should be in accordance with the mutually agreed terms between the applicant, concerned local bodies, and benefit claimers.
  • The Bill amends this to require that approvals should be in accordance with mutually agreed terms between the applicant and the concerned BMC represented by NBA.
  • Thus, benefit claimers and local people will not be directly involved in setting the terms and conditions.
• Removal of Prior Informed Consent –
  • Further, there is no provision for a mechanism for obtaining prior informed consent of the local and indigenous communities.
  • This may be in contrast with the framework under Nagoya Protocol.
  • Nagoya Protocol requires a signatory country to ensure that prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources and traditional knowledge.
• Change of Adjudicating Authority –
  • The Bill changes the adjudicating authority from a Judge to a government official.
  • The penalty decisions will be based on an inquiry instead of a judgement after arguments in an open court.
  • The question is whether it is appropriate to confer such discretion to government officials.