Biodiversity is an important natural resource that was being managed in India under the Biological Diversity Act, 2002, which was enacted on the insistence of the United Nations Convention on Biological Diversity. The Act worked well through a three-tier management structure - the National Biodiversity Authority (NBA), state biodiversity boards and biodiversity management committees at the Panchayat level. The Act was amended earlier this year with the objectives of deregulating and decriminalising its provisions, reducing the compliance burden and attracting more investments, rather than initiating measures to conserve, propagate and sustain biodiversity. India's committee to the Nagoya Protocol, 2010, which calls for access and a benefit-sharing mechanism of biodiversity at the domestic and international levels, was cited for making these amendments.
The NBA was stipulated to approve research and commercial use of local biological resources by foreign companies and regulate the patenting of traditional plant-based products under the 2002 Act. All domestic and foreign companies were required to share profits from the finished products with local communities from which knowledge and raw material originated. The Uttarakhand High Court's 2018 ruling tried to regularize this profit sharing mechanism by stipulating the sharing of 0.1-0.5% of the profits with the communities. The offences under the Act were cognisable.
The Biological Diversity (Amendment) Act, 2023, which is in force now, simplifies the requirement for locally controlled Indian Companies having foreign shareholding to not be treated as foreign companies. Indian nationals or entities are not required to go through the lengthy process of dealing with the NBA; they only have to get themselves registered before getting the approval. Indians accessing biological resources for commercial utilisation of intellectual property rights need to give just prior intimation to state biodiversity boards and seek the NBA's approval. The penal provisions have been changed by increasing the penalty amount and omitting imprisonment for violations. The previous penal provision of a fine of Rs 1 lakh has been increased to Rs 50 lakh; if the damages exceed this amount, the penalty can be go up to Rs 1 crore. The adjudication officer would hold enquiries to impose penalties, with the aggrieved parties having the option to appeal to the National Green Tribunal.
Though simplifying the procedures is welcome, the amendments will weaken the implementation and conservation regime of biodiversity, as enshrined in the original statue. The processes for patenting products derived from biological resources have been deregulated. Benefit-sharing requirements for researchers and practitioners of traditional Indian medicines and for products that use cultivated plants, including codified traditional knowledge under the Pharmaceutical Act, 1940, have been abolished. Doing away with the jail term is likely to encourage the plunder of biological resources and getting such activities regularised by paying penalties. This will also encourage biopiracy as most infringers are commercial establishments rather than local communities.
These amendments can also impact transparency in the use of biodiversity. For most products that were regulated under the original Act, including ayurvedic medicines having roots in the traditional codified knowledge, the local communities will be deprived of financial benefits they were previously enjoying statutorily. It is presumed that these amendments have been made to undo the 2018 benefit-sharing judgement that acknowledged the powers of state biodiversity boards to regulate access by industries. The Nagoya Protocol mandate on no access without obtaining prior informed consent or approval and the involvement of indigenous and local communities - the custodians of local genetic resources and related traditional knowledge - has been bypassed.
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