INDIA'S BIODIVERSITY ACT: FINALLY, A STEP IN THE RIGHT DIRECTION
by Ashish Kothari December 1998
A revolutionary new law is in the making. After years of procrastination and some frankly unimaginative moves, the Union Ministry of Environment and Forests has finally come up with a draft legislation on biodiversity which could go a long way in protecting India's enormous biological resources from being squandered, destroyed, and stolen. The proposed Biological Diversity Act contains the core of a regime to check the runaway theft of the country's genetic wealth, as also the framework for ensuring that both domestic and foreign users of this wealth do so in a manner which is sustainable and fair.
Basmati. Turmeric. Neem. The Indian public is by now used to daily news of how foreigners have been quietly taking our crops and medicinal plants, and traditional knowledge related to these, and claiming their ownership after some (often minimal) modifications. Or how they have been using or intending to use the Indian public as guinea pigs, as with the infamous Terminator seeds. Last year the Indian Government won a significant victory in getting the patent on turmeric in the USA revoked; it now plans to challenge the patent on Basmati which an American company has obtained. After strong protest from NGOs and farmers, it has also taken a tough stand against Monsanto Corporation, the originator of the deadly Terminator gene (which will not allow farmers to regrow their seeds). These, however, are piecemeal approaches to a deeper problem: so far, we have no legal and administrative arrangements which could prevent the theft of the resources and knowledge in the first place. The proposed Act may just provide the framework for such arrangements.
Discussions on such a law have been going on for years in India and elsewhere, but they received a major boost when the international Convention on Biological Diversity (CBD) came into force in 1993. Ratified by almost every country of the world, the CBD formally assigns ownership over genetic resources to the country within which they were found, and stipulates that if any other country wants to take these resources, they could do so only with "prior informed consent". In other words, if an American company wants to take and Indian plant and experiment with it, or take knowledge related to biodiversity, it needs to inform India of its desire to do so, and needs to have India's permission before the transfer can take place.
The CBD goes beyond this, and also stipulates that where the knowledge and practices of local communities (tribal and others) are involved (as indeed they are with the development of Basmati and the uses of turmeric, amongst thousands of other such practices), their permission also would need to be taken by outsiders wanting to use this knowledge. This revolutionary concept for the first time gives rural communities the chance to benefit from the widespread use of their skills and knowledge, which has before this simply been taken away by outsiders without any corresponding benefits flowing back.
However, the CBD is only applicable if the signatory countries follow up with their own domestic legislation. This is where India has been rather lax?for the last 5 years since the CBD came into force, it has been dilly-dallying over formulating appropriate legislation. The matters to be dealt with in this law are naturally quite complex, which makes development of such a law especially difficult. However, much time was lost by strange inaction by a previous set of bureaucrats at the Ministry of Environment and Forests (MoEF), and by an amazingly weak draft developed by the Swaminathan Committee. It was only after the current Minister for Environment, Suresh Prabhu, called a national consultation that things once again started moving. Based on the comments received at this consultation and after, a smaller expert group redrafted the proposed Act in October. The result is a much more comprehensive, balanced, and radical document.
Elements of the Act
Like the CBD, the proposed Act aims to achieve three things: conservation of biodiversity, sustainable use of biological resources, and equitable sharing of benefits arising from such use. To achieve these, the Act contains several important clauses. It:
1. prohibits transfer of Indian genetic material outside the country, without specific approval of the Indian Government through a due process; 2. stipulates that anyone wanting to take a patent or other intellectual property right (IPR) over such material, or over related knowledge, will have to seek permission in advance; 3. provides for the levying of appropriate fees and royalties on such transfers and IPRs; 4. regulates access to such material by Indian national also, to ensure that there is some control over over-exploitation (e.g. of medicinal plants), and that there is some sharing of benefits to all concerned parties; however, it provides some relaxation in the case of research; 5. provides for measures to conserve and sustainably use biological resources, including habitat and species protection, conservation in gene banks, environmental impact assessments of all projects which could harm biodiversity, and so on; 6. empowers local communities to have a say in the use of resources and knowledge within their jurisdiction, and to enter into negotiations with parties who want to use these resources and knowledge; 7. provides for the development of an appropriate legislation or administrative steps, including registration, to protect indigenous and community knowledge; 8. empowers governments to declare Biodiversity Heritage Sites, as areas for special measures for conservation and sustainable use of biological resources, as also notify threatened species to control their collection and use; 9. stipulates that risks associated with biotechnology (including the use of genetically modified organisms), will be regulated or controlled through appropriate means; 10. provides for the designation of repositories of biological resources, at national and other levels.
The Act envisages the creation of Funds at local, state, and national levels, which will be used to support conservation and benefit-sharing activities. These funds will be generated from fees, royalties, donations, etc.
The Act proposes to set up bodies at three levels, to carry out the above functions. At the national level, there will be a National Biodiversity Authority (NBA), which will screen proposals for transfer of genetic resources abroad, advise the central government of measures for conservation, sustainable use, and benefit-sharing, suggest the use of the National Biodiversity Fund, and oppose, where necessary, IPRs in India and abroad which violate the Act's provisions. The NBA will consist of a chairperson who has eminence in the field, representatives of relevant government agencies, and non-governmental members including members of local communities and a representative of industry. At the state level, there will be State Biodiversity Boards (SBB), which will oversee use and conservation of biodiversity within state jurisdiction; for instance, they can specify limits of which and how many plants a pharmaceutical company can harvest from its forests. SBBs will also manage the State Biodiversity Funds. At local levels, there will be Biodiversity Management Committees, which will have a voice in regulating the transfer, use, and conservation of resources and knowledge at community and individual level. These Committees or other local bodies will also have a say in the utilisation of the various Funds set up under the Act.
Importantly, the Act provides citizens with the power to approach courts if they detect violations. One of the most regressive aspects of the earlier (Swaminathan Committee) draft was that it did not provide such locus standi, but strong citizen's pressure made the MoEF put it squarely in.
The penalties provided in the proposed Act could be stiff: imprisonment for a term up to five years, or fines up to Rs. 10 lakhs.
Difficulties in Implementation
There remain many issues which will have to be sorted out in implementing the Act. What kind of benefits are appropriate when a commercial product comes out of traditional knowledge? A 50:50 share of profits between the company and the community which held the knowledge? The transfer of relevant technologies to this community? Participation in R&D? Exemption from the application of IPRs? Revival of tenurial rights to land and resources? Non-monetary awards? Others? By what mechanism would beneficiaries be identified, and benefits be transferred? What if more than one community holds the same knowledge, should benefits be shared with all? What in the case of innovations made by single individuals, or families, within a community: should they get the benefits, or the whole community?
A recent case of benefit-sharing will illustrate the complexities involved. In the mid-1990s, the Tropical Botanical Garden Research Institute, Kerala, entered into an agreement with the local Kani tribe to share the benefits of a new herbal medicine ('Jeevani') developed from knowledge of a plant (Trichopus zeylanicus) provided by the tribals. The Kanis are to be given an initial fee and then regular royalties from the sale of the drug. This is perhaps the first formal agreement of this kind in India (there are examples of similar deals in some other countries), and highlights the desire of the director of TBGRI, Dr. P. Pushpangadan, to reverse the earlier unfairness in which the company would simply have walked away with all the profits. However, the arrangement contains a number of question marks. For several months its development ground to a halt because the plant required was on Forest Department land, and the Department, fearing over-exploitation, stopped its extraction. This illustrates the need for some tenurial rights to be given to the Kanis for sustainable extraction, coupled with perhaps an overseeing function by the Forest Department and/or NGOs. Secondly, there was the question of who should get the benefits: the tribal individuals who alerted the TBGRI scientists in the first place, or the entire tribe? This has been partially solved by starting a Trust of which all Kanis are potential members, and the whole tribe can, in theory, decide what to do with the money. Third, however, some other tribes in the area may claim to have similar knowledge. Should they also receive benefits if this claim is valid? These and other questions have to be sorted out for the long-term sustainability of the agreement.
There are equally vexed issues in the case of conservation and sustainable use of biological resources. Will the Act help in reigning in a runaway economic roadroller, which is threatening to turn every natural resource into raw material and every villager into cheap labour? Can biodiversity-rich areas be protected against mining, dams, industries, pollution? Like its predecessors (the Wildlife Protection Act, the Environment Protection Act, etc.), the Biodiversity Act will perhaps just be another means for the committed environmentalist and the affected community to fight against such destruction?but even that is a vital new step. Critically, the Act provides for the integration of biodiversity concerns into every economic sector's plans, and also makes mandatory environmental impact assessments of any activities which could have negative impacts on biodiversity, including biotechnological developments.
Several specific parts of the proposed Act need further amplification in the form of rules or guidelines. The NBA is supposed to consult local bodies when granting permission for access to biological resources within their jurisdiction, but the modalities by which this can be done are to be worked out. The expert group which drafted the Act had incorporated a provision to tax industries which are based on biodiversity (e.g. pharmaceutical, seed, and perfumery companies), but this has been deleted from the Ministry's final draft, because of objections by the Law Department. Hopefully this clause, which will help to generate resources necessary for conservation and benefit-sharing, as also ensure that industry pays some of the true cost of the resources it uses, can come into the rules that will be developed under the Act.
Another aspect of the Act which needs further development is the concept of Biodiversity Heritage Sites, currently not well-defined. Further rules will need to specify what kinds of areas can be declared as such, both to avoid duplication with the protected areas declared under the Wildlife Protection Act as also to ensure that areas with tremendous human-developed biodiversity (e.g. traditional agricultural areas) receive protection and benefits from it.
By no means should the Act become a means to alienate local communities from their resources and knowledge, as unfortunately the Wildlife Act has become in many areas. But it is equally true that communities in many places are no longer as conservation-oriented as they may have been earlier. If community level bodies (e.g. panchayats, or forest protection committees, or new Biodiversity Management Committees) are really to use the powers given to them under this Act and others (such as panchayat legislation developed in 1996 and 1997), their capacity to manage resources may need revival, and their ability to negotiate with outsiders may need to be built up. Educational and training programmes for all sectors of society will need to be reoriented to become more sensitive to biodiversity issues. This especially includes the judiciary at district and other levels, which needs to be convinced about the seriousness of biodiversity related violations if the Act has to have teeth.
Whatever the complexities, it is also true that we will never get around to solving them, unless forced to do so. Once a legislation with a broad framework of conservation, sustainable use, and benefit-sharing is in place, both government and citizens will have to come up with innovative solutions. The next few years will undoubtedly see the refinement of these concepts and practices. First, however, the biggest challenge that Suresh Prabhu and his officials face is to steer the draft Act through Cabinet (he will probably face resistance from fellow ministers who may, mistakenly, see some encroachment into their territory by the Act), and then through Parliament. Prabhu is reportedly keen to introduce the bill into the winter session of Parliament. Whether he is able to or not, the current draft certainly points India in the right direction, and it is perhaps only a matter of time before we go in for such bold steps to stop the currently unsustainable and unfair use of our biological resources and knowledge.
Ashish Kothari is a founder-member of Kalpavriksh and was on the drafting group for the proposed Biodiversity Act.
Ashish Kothari Apt. 5, Shree Dutta Krupa 908 Deccan Gymkhana Pune 411004 India Fax: (91-212) 35 42 39 Email: ashish(at)nda.vsnl.net.in