By Udisha Ghosh and Chandralekha Akkiraju, Symbiosis Law School, Pune
“Editor’s Note: Biodiversity assumes immense significance for the survival of human beings because we depend on it even for our most basic needs like food and medicines. India houses a substantial portion of the world’s biodiversity. But India did not have a comprehensive law dealing with conservation of biodiversity until 2002, when the Biological Diversity Act was enacted, in order to ensure compliance with the Convention of Biological Diversity, 1992. Factors like pollution, overexploitation and degradation, coupled with natural causes, pose a threat to biodiversity. Although the Act tries to deal with these problems, there are still loopholes like inadequate access to local communities, non-inclusion of genetic resources and access benefit sharing. This paper analyses all these issues in detail and attempts to provide plausible solutions that could help in dealing with these problems. It examines successful biodiversity laws in countries like Costa Rica and discusses provisions that can be incorporated in the Indian legislation. Finally, it suggests solutions for problems that are specific to India.”
Biodiversity in the layman’s word comprises of various life forms within the biosphere. It contains life forms from the simple single-celled microbes to highly complex organisms. Biodiversity is the basis of the ecosystem and is important for its functioning. We depend on biodiversity for our baisc needs like food, shelter, medicines etc.
Biodiversity is extremely complex, dynamic and varied. It includes innumerable plants, animals, microbes, atmosphere (mixture of various gases), geosphere (solid part of the earth) and hydrosphere (the liquid portion on Earth).
Biodiversity can broadly be divided at three levels i.e. genetic diversity, species diversity and ecosystem diversity. Biodiversity management is required at all these levels because by changing biodiversity, we strongly affect human well-being and the well-being of every other living creature.
Existence of Biodiversity in India
According to the Millenium Ecosystem Assessment, the total number of species on Earth ranges from five to 30 million, and only 1.7–2 million species has been formally identified. India is one of the 12-mega diverse countries of the world. With only 2.5% of the world land area, India has 7.8% of global recorded species.[i] India has 4 out of 34 global biodiversity hotspots in the Eastern Himalayas, in the Indo-Burma region. It further contains 45,968 species of plants 91,364 species of animals and over 5,650 microbial species.
India contains a great wealth of biological diversity in its forests, its wetlands and its marine areas. This richness is shown in absolute numbers of species and the proportion they represent of the world total.
Table 1. Comparison between the number of species in India and the world.[ii]
Group Number of species Number of species India (SI) in the world (SW) (%)SI/SWin
|Group||Number of species(SI)||Number of species(SW)||SI/SW (%)|
Source: Quoted in Biodiversity Profile of India
Need for Biodiversity
It is a well-recognised fact that the biodiversity forms an integral part of life for all individuals. It is widely estimated that more than 70,000 plant species are used in traditional and modern medicines. Furthermore, food and energy are obtained from the biosphere we live in. A loss of biodiversity would not only cause loss of raw materials but would also have ramifications for global food security and nutrition. Biodiversity loss would not only have a negative implication on the lives of the human beings but also on the lives of other species in the ecosystem; leading to the imbalance in the ecosystem and making it difficult for all the organisms to thrive in their natural environment.
Threats to Biodiversity
The threats to biodiversity includes man-made destruction of the ecosystem and the natural causes which causes damage to the biodiversity. The following are the major reasons for biodiversity loss:
- Habitat loss and degradation: One of the major threats to the biodiversity is the habitat loss caused due to human development in the sensitive biological areas. Habitat loss affects 86% of all threatened birds, 86% of the threatened mammal’s assessed, and 88% of the threatened amphibians.[iii]
- Overexploitation of natural resources
- Pollution can be considered to be another factor
- Climate change affecting changes in the biodiversity
Reasons forenactment of the Biodiversity Act
Biodiversity Act, 2002 came into existence much later than the other existing laws on environment such as the Indian Forest Act, 1927 , Wildlife Protection Act, 1972 , Environment Protection Act, 1986 etc. Though all these legislations laid impetus on the conservation of the environment, yet none of them properly addressed all the dimensions of the ecological and biodiversity preservation.
Furthermore, India also became a signatory to various other ecological as well environmental laws, such as the[iv]
- Ramsar Conservation on Wetlands, 1971
- Convention for the Protection of World Cultural and Natural Heritage, 1972
- Convention on International Trade of Endangered Species of Wildlife Fauna and Flora, 1973
- Convention on the Conservation of European Wildlife and Natural Habitat, 1979
- World Conservation Strategy, 1980
- the United Nations Convention on Biological Diversity, 1992
All these conventions were to cater to the needs of the protection to the wildlife and the environment. However, the United Nations Convention on Biological Diversity for the first time made a comprehensive plan for the protection of biodiversity. Post 1990s, there was a change in the economic structure from closed economy to open economy. Thus, there were no laws to protect bio-piracy by the developed nation on the Indian soil. Hence, a strong legislation was required to curtail the overexploitation and piracy of the indigenous resources.
During the period of 2000-2002, a civil society group was commissioned for preparing India’s National Biodiversity Strategy and Action Plan. However, this plan was not accepted by the government. Therefore, the government decided to release its own draft on National Biodiversity Plan which was made by the technocrats. The Act of 2002, based on this plan was passed by the Lok Sabha on 2nd December, 2002 and Rajya Sabha on 11th December, 2002.The objectives of the Act were[v]:
- Conservation of Biological diversity
- Sustainable use of its components
- Fair and equitable sharing of the benefits arising out of utilization of genetic resources.[vi]
Apart from these main objectives the Act has also given force to some of the terms of CBD by the following provisions:
- To set up National Biodiversity Authority (NBA), State Biodiversity Board(SBB) and Biodiversity Management Committees(BMC’s).
- To respect and protect knowledge of local communities traditional knowledge related to biodiversity.
- To conserve and develop areas of importance from the standpoint of biological diversity by declaring them biological diversity heritage sites.
The Biological Diversity Act of 2002 and the Biological Diversity Rules, 2004 are implemented by National Biodiversity Authority (NBA) at the national level, State Biological Board (SBB) at state level and Biodiversity Management Committees (BMC’s) at local levels. Some of the major functions of these authorities are[vii] :
- To regulate activities of, approve and advice the Government of India on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits.
- To grant approval under Sections 3,4 and 6 of Biodiversity Act,2002
- To notify areas of biodiversity importance as biodiversity heritage sites under this act and perform other functions as may be necessary to carry out the provisions of the Act.
- To take measures to protect biodiversity of the country as well as to oppose the grant of intellectual property rights to any country outside or any biological resources obtained from India.
The NBA deals with the requests for access to the biological resources as well as transfer of information of traditional knowledge to foreign nationals, institutions and companies. Through this way piracy of Intellectual Property Rights in and around India is prevented, it also saves the indigenous people from exploitation.
The recent developments relating to NBA implementation include the establishment of designated National Repository (DNR) under Section 39 as an important aspect of infrastructure for biodiversity conservation. This DNR provides service providers for preserved specimen consisting all faun, herbarium (dried plant material for research ), living cells, genomes of organisms and information relating to hereditary and function of biological system.[viii]
Lacunae in the Act
The formulation of the BD Act, 2002 nearly took a decade after the ratification of the Convention on Biological Diversity. Thus, it clearly demonstrates that the government officials, NGO’s and academicians formulated the provisons after thorigh research and considderation. Eventually with the enactment of the Biodiversity Rules under BD Act in 2004, there was an establishment of Biodiversity Management Committee which gave powers to the local and indigenous communities to voice out there opinion conservation, use and equitable sharing.
However, certain lacunas are still apparent in the Act. A major flaw is that this act does not give suffiecient consideration to conservation; rather it lays more emphasis on preventing profit-sharing from the commercial use of the biological resources. It is true that the foundation of this act was laid to prevent bio-piracy by the developed nations. However, one cannot forget another major aim of this act i.e. to protect the biodiversity.
The Constitutional Viewpoint
Article 14 – Whether or not the classification meets the objectives of the Act
The Indian Constitution guarantees a set of Fundamental Rights to its citizens under Part III of the Constitution. Some of these fundamental rights are guaranteed to citizens and non-citizens as well. Article 21 and Article 14 are two of the fundamental rights guaranteed even to non-citizens. It is necessary to examine how Article 14 is violated by the Biodiversity Act, 2002. The act distinguishes citizens of India and other persons on the basis of citizenship and residential status. For any legislation to be intra vires Article 14 it has to pass two tests
- The intelligible differentia test
- The rational nexus with the objective of the act test
The intelligible differentia states that a classification in itself does not make the Act/action ultra-vires. An act becomes ultra-vires when the classification is not based on intelligible differentia. In the given act, the classification is based on both citizenship and residential status. Now after the classification test is passed the legislation should pass the test- that the classification must have a rational nexus with the objective of the act. The objective of this act are-conservation of biological diversity, sustainable use of resources and fair and equitable sharing of benefits arising out of utilization of genetic resources. The objectives that the act seeks to achieve and the classification of persons and other persons do not have a rational nexus with the objectives of this act i.e. to conserve of biological diversity.
Secondly, these provisions deter foreign joint ventures as well as collaboration with foreign scientists because of strict prohibition on even minor equity holdings in a company. It would be impractical for a company holding thousands of shares to follow this procedure when only a minor portion of shares are held by other persons or corporations not based in India. There should be restrictions when, the non-Indian shareholders are in a position to influence the decisions and management of the company in question, not otherwise.
Finally, the act assumes that resident citizens of India and corporations of India are never a threat to biodiversity. The main objective of the act is conservation of biodiversity and the legislators should bear in mind that even the Indian citizen residents and Indian corporations can be exploitative.
Thus, the act has to grant approvals for access or IPRs keeping in mind the following considerations:
- Whether the said access comprehensively gives greater rights leading to the development of the holders of the traditional knowledge.
- Whether the said access is detrimental to biodiversity.
Spirit of Federal Structure
The CBD prescribes for protection and conservation of biodiversity and establishment of institutions at the national and state level. State biodiversity authorities formed under the act do not have complete autonomy and their powers are merely restricted to that of an advisory body abiding by the guidelines issued by the Central Government. State governments should be granted more autonomy in a bottom up approach to solve problems related to biodiversity.
Concerned state governments should also be consulted to notify threatened species and biodiversity heritage sites along with BMCs.
Role of local communities
An analysis of the provisions reveals that local concerned communities do not have any real power in the decision making process. Regulation of access is done by NBA and SBB and not the local communities. The NBA may consult the communities to work out benefit sharing mechanisms after the decision to allow access is made[ix]. The communities have no say in deciding whether or not the access should be allowed in the first place. They are not well informed as to their rights and have very less knowledge of the system of IPRs or commercial use of the traditional knowledge, and this highly centralized approach is not be of great benefit.
It is important to note that an ordinary citizen cannot directly approach the court. An aggrieved benefit-claimer is required to give prior notice of his/her intention to make a complaint. Else he has to file a complaint to the NBA, which will then take necessary action. The absence of locus standi to all citizens is of grave concern. Since local communities are aware of the manner in which bio resources from their village are being used and would notice any unwanted outside influence over resource extraction or external parties interested in resource extraction, their vigilance would help in preventing bio piracy, as would the other civil society organizations and individuals. Having to go through government institutions would only delay their ability to get any remedy.[x]
Prior Informed Consent
Prior informed consent is defined as a process by which owner or holder of knowledge or resources must agree to the collection or use of these before an activity takes place. The applicant who wants access must provide all pertinent information so that the community may make an informed decision.[xi]
Evolution of principles of Prior informed Consent:[xii]
Indigenous peoples’ right to free, prior and informed consent (FPIC) has been recognized by a number of intergovernmental organizations, international bodies, conventions and international human rights law in varying degrees and increasingly in the laws of State. Development projects and operations, legal and administrative regimes have had and continue to have a devastating impact on indigenous people, undermining their ability to sustain themselves physically and culturally.
The United Development Programme (UNDP) presented a report of the Inter-Agency Support Group on Indigenous Issues on FPIC at the Permanent Forum in May 2004 (E/C.19/2004/11). Some UN agencies have to some extent, implemented FPIC on an ad-hoc basis in line with their general guidelines or legal instruments and principles to enhance their partnership with Indigenous peoples (IPs). However, it states that there is no internationally agreed definition or understanding of the principle or mechanism for implementation.
Prior Informed Consent and Bio Diversity
The Convention on Biological Diversity 1992 in its article 8(J) calls on contracting states,
“To respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities………..and promote their wider application with the approval and involvement of the holders of such knowledge, innovation and practices”.
The Cartagena Protocol on Bio-Safety (2000) to the Convention on Biological Diversity also recognizes FPIC applies in the trans boundary movement, transit, handling and use of all living organisms. The Fifth Conference of Parties (COP) to the CBD Decision V/16 expresses a firm commitment to the implementation of PIC in its general principles: “Access to traditional knowledge, innovation and practices of indigenous and local communities should be subject to prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices.
Importance of Prior Informed Consent
Prior Informed consent is important primarily for two reasons:
- That the local communities or traditional knowledge holders can assess the commercial value of the traditional knowledge or product for which access or a patent is sought to make an informed decision for granting an access.
- That the local communities and the corresponding countries make an informed decision regarding the safety of the resource or other GMOs (Genetically modified Organisms).
Prior Informed Consent in the Biodiversity Act
There are number of issues relating to the provisions of ‘consultation’ with local communities. Firstly the term consultation does not mean consent and is therefore much weaker that the requirement of “consent of local body”. The term is often ambiguously used to mean only talking to a few villagers, or to a head of a village, or corporate in an urban setting. Genuine consultation must involve the entire relevant community or settlement in languages and modes that they are comfortable with. Making people fully aware of the pros and cons of their granting consent is an important precondition for their truly excising the option to say “yes” or “no”. Unfortunately the Act and Central Rules leave the interpretation of the word wide open and therefore do not facilitate complete participation of local communities.
Access Benefit Sharing
Access Benefit Sharing can be described as the process when bio-resources or people’s knowledge are accessed, the user/ accessor must compensate the provider community either in financial terms or acknowledge the source.[xiii] However once access is allowed, then the challenges for regulatory mechanisms are to identify and claim a share of benefits and to ensure just and equitable sharing. Article 16 of the Convention on Biological Diversity states the ways in which the Access and Transfer of Technology should take place.
The Act centralises all the property rights either in the hand of state through sovereign appropriation or in the hands of private inventors through monopoly of intellectual property rights. It does not however provide a framework for the rights of all other holders of biological resources and related information. The consequence is that resources and knowledge are not allocated through intellectual property rights, the rest is freely available.[xiv]
The Nagoya Protocol on access benefit sharing in Tokyo in 2001 is an agreement which aims at sharing the benefits arising from utilisation in a fair and equitable way, thereby contributing in the conservation and sustainable use of biodiversity. Genetic resources ranging from plants, animals, micro-organisms are used for various reasons from research to products etc. However, at times the traditional knowledge so associated with the genetic resources is obtained from the indigenous and local communities, providing valuable information to researchers.[xv]
Scenario in India
India is trying to develop and implement laws and policies on access benefit sharing. However, there have been several challenges which are emerging during the process:
- There is no clear distinction made between ‘genetic resources’ and ‘biological resources’ in the legislation. Hence, the collection, sale, or purchase of a single biological specimen constitutes access to genetic resources.[xvi]This seems contrary to entire motive of the act. Hence, easy exploitation of the natural resources.
- The law does not specifically address the question of ownership over genetic resources since tracking genetic resources and ensuring legal compliance by the users of genetic resources is difficult. Furthermore these genetic resources are accessed by different bio prospectors (collectors, researchers, and others) and various other international companies for different purposes. The ABS law does not differentiate between these uses.
- Furthermore in India, only a few bio prospecting proposals have been submitted and approved. Details of negotiation procedures are not yet available, and, hence, the effectiveness of the Act in practice has yet to be seen.[xvii]This poses more challenges for the implementation of the given biodiversity law.
Having raised the above issues, solutions can be proposed by using a two-proged approach-
- Recommendations on the lines of successful Biodiversity laws in some of the best biodiversity hotspots in the worlds
- General recommendations regarding implementation to achieve the objective of the Biodiversity Act in its true spirit.
Successful Bio Diversity Laws in other nations
Costa Rica is a country with 0.1% of world’s land and is home to 5%of world’s biodiversity. The biodiversity laws of Costa Rica enacted in 1997 are considered to be the best in the world, in terms of fulfilling the true objectives of CBD for sustainable use of biodiversity. The law establishes an administrative body within the Ministry of Environment, Energy and Telecommunications (MEET) to oversee both the National System of Conservation Areas (SINAC) and National Biodiversity Administration Committee (CONAGEBIO). Duties of SINAC and CONAGEBIO include the administration of national wild protected areas, ensuring environmental safety, conservation and the sustainable use of the ecosystems and species, regulating access to genetic resources, intellectual property rights, education and public awareness and research and transfer of technology, environmental impact assessment, incentives and administrative procedures and sanctions.
CONAGEBIO is a national independent commission which oversees and formulates policies on access to genetic and biochemical elements and protection of associated knowledge, as well as coordinating these policies with the relevant institutions. It also formulates and coordinates the policy for access to elements of biodiversity and associated knowledge, ensuring a suitable transfer of science and technology and the distribution of benefits.
The biodiversity law of Costa Rica includes the promotion of incentives in the objectives
“- To promote the adoption of incentives and the reward of environmental services for conservation, the sustainable use and the components of biodiversity.”
Chapter VII of the law deals with incentives, ranging from financial and technical assistance to helping in the conservation of biodiversity to encouraging efforts and research. Incentives are also given for community participation and investments for over all development.
The law includes the issue of biosafety in the objectives by specifying-
To ensure environmental safety to all citizens as a guarantee of social, economic and cultural sustainability.
Article 46 of the law deals with the issue of biosafety by not only mentioning details of obtaining permission relating to use of GMO’s, but also a regular three month report by the user to the concerned authority, to maintain utmost standards of environmental safety. The precautionary principle, to avoid the defence of scientific uncertainty has been explicitly put in place in Article 11 of the Act.
Educational and Public Awareness Approach
The law stipulates that one of its objectives is
To promote education and public awareness about the conservation and use of biodiversity.
Chapter VII emphasises on creating public awareness and education. Such laws are very essential in a country like India, because traditional knowledge holders are generally tribal communities, who are cut away from the rest of the world, and education would help them to appreciate the commercial value of their product or traditional knowledge.
Prior Informed Consent Approach
The law in Costa Rica lays great emphasis on Prior Informed Consent (PIC). The PIC of communities involved is made mandatory. An agreement of this prior informed consent has to be attached before access is sought and the same has to be ratified by the technical officer before granting the accesses. The right of local communities and indigenous people to oppose any access to their resources and associated knowledge, be it for cultural, spiritual, social, economic or other motives, is recognised. Furthermore to prevent any threat of biodiversity, there is a necessity for duplication and deposit of samples etc. collected with the concerned authority[xviii].
Multi Sectoral Approach
Conservation of biodiversity involves multiple stake holders and a multi-sectoral approach is necessary for its conservation in all spheres of ecosystem. The law requires requires each ministry to monitor biodiversity, be aware of environmental impact of activities within the sphere of responsibility and work together cooperatively.
Explicit incorporation of these approaches in the Indian law can help in successfully dealing with the loopholes in the Biodiversity Act.
Other General Recommendations
- The Biodiversity Act and Rules do not mention about the linkages between the BMC and the other local bodies and institutions which seem relevant to the Village Forest Communities , Ecodevelopment Committees, Van Suraksha Samitis , Joint Forest Management Committees, Pani Panchayats etc. The lack of linkages can be a reason of conflict. Even before the enactment, there was a plethora of local committees, working for different purposes. Therefore a special committee should be setup just for the purpose of integration of all these different committees. A classic example can be the Madhya Pradesh Rules Section 23(2) which states that “It is possible for the Biological State Rules to specify the linkages to establish integration and better functioning of various bodies.”[xix]
- Another major flaw that has been already discussed is that there has been no mention about genetic resources, though genetic resources form an integral part of the biodiversity. However, since the law does not specifically deal with the ownership of the genetic resources, these resources can be exploited by various bio-prospectors and other international companies for different purposes. Further, the exclusion of the human genetic material from scope of the act may lead to the problem of ‘cloning crisis’. Therefore, the term ‘human genetic material’ should be included under the broad definition of the biological resources.
- The Act does not mention any form of distinction between the people who use the biological resources for their individual purposes and those who use it sustainability purposes. This could play a major role in the biodiversity conservation process, since relaxation of the rules for the people helping in the sustainable and valuable use of these indigenous resources can motivate people to perform research and use it for the welfare of the mankind.
India has made a legal policy and framework regarding biodiversity which enables it to address some crucial issues with regard to protection of biodiversity. But, the present policy is far from being adequate, since some major concerns as discussed above are yet to be addressed. The only way to overcome such a situation is by making amendments in the legislation and adopting a stronger pro-active community participation.
It it is also necessary to include all life forms including human genes into the broader definition of biological resources to prevent any form of exploitation. The civil society organisations should also try to create awareness among the local communities about the Biodiversity Act and the rights it guarantees to them. Also since change cannot achieved through isolated efforts, it is essential to build formal and informal networks among farmers, civil society associations, grass root organisations, scientific and academic institutions and government organisations. This would lead to better conservation and protection of biodiversity.
Edited by Kudrat Agrawal
[i] Implementation of Biological Diversity Act in India: An Overview with Case Studies 24th August 2011, Pravat Chandro Sutar(Part-I) ,Nigamananda Swain (Part-I).
[iv] Powerpoint Presentation on “Biodiversity Act,2002 :Overview” By Gouramma F Patil and Mehreen Mir
[v] Critical Review of “The Biological Diversity Act 2002” by Punam Singh Chandel.
[vi] Preamble of the Bio Diversity Act, 2002.
[ix] Rule 20 of the Bio Diversity Rules ,2004.
[x] A Guide to the Biological Diversity Act 2002 by Kalpavriksh.
[xii] WORKSHOP ON FREE, PRIOR AND INFORMED CONSENT (17th -19th January 2005) by the United Nations.
[xiii] Article on ‘The Legal Meaning of Biodiversity’- Kanchi Kohli, Shalini Bhutani
[xv] “Living with Harmony”-The Nagoya Protocol on Access Benefit Sharing By Convention on Biological diversity, https://www.cbd.int/undb/media/factsheets/undb-factsheet-nagoya-en.pdf.
[xvi] On the mountains “ Access and Benefit Sharing from Genetic Resources”, www.icimod.org.
[xviii] Article 71 of the Biodiversity Law, 1997 of Costa Rica.
[xix] A Guide to the Biological Diversity Act, 2002, by Kalpavriksh.