On August 1, 2023, the Rajya Sabha approved the Biological Diversity (Amendment) Bill 2023, which had already been passed by the Lok Sabha on July 25, 2023. This Bill amends the existing Biological Diversity Act of 2002.
The primary objective of the Bill is to streamline compliance requirements for domestic companies and to expedite processes related to research, patent applications, and the transfer of research results from India.
Under the existing Act of 2002, prior approval from the National Biodiversity Authority (NBA) was mandatory for obtaining biological resources or associated knowledge for research, commercial utilization, or bio-survey and bio-utilization. The Act also required mandatory prior approval of NBA for filing applications for any Intellectual Property Right [IPR] involving biological resources from India. Any monetary benefit [profit] gained by researching, biosurvey, and bio-utilization of the accessed biological resource, would be shared with the local community. As per the Act, benefit sharing terms were to be determined through mutual Agreement between the applicant, relevant local bodies and the beneficiaries.
The present Bill proposes a change in the existing legal framework. Now the approval from NBA will be required before the grant of IPR and not before the application. Further the scope of NBA approval is extended to the access of ‘associated knowledge’ for commercial utilization. However, the obligation of benefit sharing with the local community for bio-survey and bio-utilization, has been eliminated.
Additionally, AYUSH practitioners and users of ‘codified traditional knowledge’ are now exempted from benefit sharing with local communities for cultivated medicinal plants and their products. The intent being to promote the Indian system of medicine and the cultivation of indigenous wild medicinal plants, as well as encourage the production of plant-based medicines.
As per the amendment in the present Bill, the National Authority will negotiate on behalf of the local communities for the terms of benefit sharing. The National Authority will now share the function of NBA visa vis, the provisions relating to the terms of the benefit sharing.
decriminalization of all offences under the Biological Diversity Act, 2002. The Bill introduces penalties for the violations, ranging from Rupees One lakh to Rupees50 lakhs, which would have earlier attracted criminal sanctions. Repeat offenders may have to dig out penalty going up to Rupees One Crore. An Adjudicating Officer will be appointed to conduct the inquiry and decide the appropriate penalty.
With the above amendments, the bill intends to attract more investment in research and commercialization while safeguarding the traditional knowledge embedded in biological resources.
Nonetheless, some uncertainties remain in the Bill that must be resolved to sustain the fundamental objectives of the original Biological Biodiversity Act, 2002, which include biodiversity conservation, sustainable utilization of its components, and equitable distribution of benefits arising from biological resources' utilization.
While the bill exempts users of "codified traditional knowledge" from NBA approval and benefit sharing requirements, it fails to clearly define this term. This absence creates the possibility of a wide interpretation that could deviate from the core intentions of the Biological Biodiversity Act, 2002, as outlined earlier.
The present Bill appoints a National Authority to represent and negotiate the interests of the local communities for determining the terms of benefit sharing between the local communities and the users of the biological resources. Hence the benefit sharing will now be based on the terms agreed upon between the user and the local management committee, represented by the National Authority eliminating the direct involvement of local communities in determining the benefit sharing provisions.
The enactment of the Biological Diversity Act in 2002 was driven by the goal of fulfilling India's international obligation under the Convention on Biological Diversity (CBD), a global treaty dedicated to preserving biodiversity. This recent amendment represents progress towards meeting that obligation, but there is still much work ahead to fully comply with the new conservation targets set during the 15th Conference of Parties to CBD in Montreal in December 2022 while safeguarding the indigenous biological resources of the country and the interests of the local community who has been instrumental in protecting it