The Biological Diversity Act, 2002:
The Biological Diversity Act was enacted to meet India’s international obligations under the Convention on Biological Diversity. The Act's has two main purposes: to regulate access to India's biodiversity and to ensure appropriate benefit sharing if the biodiversity if used for commercial purposes.
Regulating Access:
Under the Act any non-Indian (foreign national or company) would require permission from the National Biodiversity Authority (NBA) for accessing Biodiversity in India. Section 3 (c) (ii) states a non-Indian company as a company "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." This is a stringent categorisation as compared to other Acts where a company has to demonstrate more than 50% foreign ownership to be deemed as a non-Indian company. Further there are no time lines to the approval system, increasing the barriers for a "foreign" company to invest in researching and commercialising Indian biodiversity.
Under Section 7, Indian companies can access biodiversity for research purposes, but have to intimate State Biodiversity Boards (SBB) before commercializing the research. This section is unclear, primarily because it does not state if SBBs can restrict or put conditions on commercialisation.
Adding further to ambiguity section 40 states, "Notwithstanding anything contained in this Act, the Central Government may, in consultation with the National Biodiversity Authority, by notification in the Official Gazette, declare that the provisions of this Act shall not apply to any items, including biological resources normally traded as commodities." The NBA website states "The Act excludes Indian biological resources that are normally traded as commodities. Such exemption holds only so far the biological resources are used as commodities and for no other purpose." This is confusing - tomato sold as a commodity is exempt from the Act, but is tomato sold for making ketchup exempt?
The Act also excludes traditional uses of Indian biological resources and associated knowledge and when they are used in collaborative research projects between Indian and foreign institutions with the approval of the central government.
Regulating Benefit Sharing:
The benefit sharing facet of BDA has attracted most attention. In the last few years, a slew of cases have been filed by SBBs against companies citing non-compliance because these companies have not paid SBBs their due benefits. There are three main points of ambiguity 1) what is being regulated (in one quashed case the resource of contention was coal with the court observing that coal does not contribute to India's biodiversity) 2) How much do companies pay and 3)Who is the benefit sharing actually benefitting?
Through draft guidelines released this month, the NBA is attempting to answer some of these questions. The guidelines formulate two modes of benefit-sharing - one requiring the company/individual to pay in the range of 3.0 to 5.0% of the purchase price of the biological resources or second, pay 0.5% of the annual gross ex-factory sale price minus government taxes. Further a breakdown of who gets the benefits is also mentioned in Section 10 (1):(a) 5.0% of the accrued benefits shall go to the NBA, out of which half of the amount shall be retained by the NBA and the other half may be passed on to the concerned SBB as administrative charges. (b). 95% of the accrued benefits shall go to concerned BioDiversity Management Committee(s) and/ or benefit claimers. How the money is to be used or how benefits claimers are to be identified would require further elucidation.
However, the primary question that this Act and draft guidelines raise is what is to be regulated? In the absence of a comprehensively mapped biodiversity there is still going to be a lot of ambiguity in protecting this rich resource.
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