“In our country, we want to promote ease of doing business…by (decriminalising offences) ease of doing business and ease of living is being brought forward by this Bill," the minister said.
The Bill will amend the Biological Diversity Act, 2002 that provides for the conservation of biological diversity in India and their sustainable use, and fair and equitable sharing of the benefits that arise from using biodiversity.
The Biological Diversity (Amendment) Bill, which was introduced in Parliament on 16 December 2021 by Yadav was moved to a joint committee four days later because of concerns over the amendments favouring the industry and contradicting the spirit of the Convention on Biological Diversity (CBD).
Experts have argued that the Bill encourages a conducive environment for investments – promotes “ease of doing business" – and simplifies the patent application process, and it will further alienate India’s agriculture and environment ministries. There has also been concern that the Bill will exempt users of codified traditional knowledge and AYUSH practitioners from sharing benefits with local communities.
Following criticisms, the bill was referred to a Joint Parliamentary Committee chaired by Sanjay Jaiswal. The committee’s report was tabled in Parliament on 2 August last year. In the report, the committee said that the bill may be passed after the inclusion of their recommendations.
According to the Bill, a person cannot share or transfer any result of the research on any biological resource occurring in, or obtained or accessed from, India or associated traditional knowledge, for monetary consideration or otherwise, to an individual without the prior written approval of the National Biodiversity Authority, except the codified traditional knowledge which is only for Indians.
The members of the National Biodiversity Authority are appointed by the Central government as per the Act.
Definition of a foreign company in the bill has been aligned with the definition already given in the Companies Act, 2013 to ensure that companies come under the Regulatory Framework of NBA for commercial utilisation and obtaining patent and other companies by SBB. In the Bill, Company incorporated or registered in India which is not controlled by foreigners as per the Companies Act, 2013 are to be treated at par with Indian Companies.
Additionally, it allows domestic companies to use biodiversity without the permission from biodiversity boards. Acs per the amendments, only foreign controlled companies will require permission. This indicates companies with shares controlled by foreign companies would also be exempted.
A new Section 36(A) has been added emphasizing on the monitoring of the Biological Resources obtained from foreign countries for use in India as per the provisions of the Nagoya Protocol on access and benefit sharing. Further, the newly introduced section governments to develop 36(B) enables the state government to develop strategies and plans for conservation and sustainable use of biological diversity.
In the amendment process, a new section 41(1A) has also been added highlighting the functions of the Biodiversity Management Committees clearly. Further, care has been taken to strengthen the Biodiversity Management Committees by adding Section 41(18) and stipulating the minimum and maximum number of its members.
The amendments have also included the term “codified traditional knowledge", under which the users, including practitioners of Indian systems of medicine, will be exempted from the provisions of approvals for access or sharing benefits. This suggests that profiteering domestic companies do not have to share profits.
However, the bill also proposes to de-criminalise violation and withdraws the power given to the NBA to file an FIR against a defaulting party.
Many of the amendments did not find favour among activists and legal experts. These amendments do not address the issues that biodiversity conservation in India face.
One of the concerns raised by experts about the Bill was decriminalising offences under the Act and making them punishable only with a penalty (between Rs100,000 and Rs5 million and continuing violations can attract an additional penalty of up to Rs1 crore) and no imprisonment. The committee merely observed that the penalty structure should not be too meagre as it could enable violators to escape with a small fine. It recommended that the penalty should be proportionate to the gains obtained by entities and the size of the company.
