ASHA-Kisan Swaraj’s analysis & objections related to Biological Diversity Act Amendments

12:54 pm in News by Kavitha

To:                                                                                                                   January 28th 2022

Dr Sanjay Jaiswal,

Chairperson,

Joint Committee on

Biological Diversity (Amendment) Bill 2021,

Parliament of India.

 

Dear Chairperson and Members of the Joint Committee on Biological Diversity (Amendment) Bill 2021,

Sub: ASHA-Kisan Swaraj’s analysis on the amendments being proposed by Government of India in Biological Diversity Act 2002 – Reg.

ASHA-Kisan Swaraj is a volunteer-driven collective platform of hundreds of organisations and individuals working to promote environmental sustainability, social equity and economic viability in Indian farming. We have been instrumental in creating a farmer-conserver network related to agro-diversity that is pan-Indian, called Bharat Beej Swaraj Manch. Farmers’ seed rights is a core issue of our work, even as we work to revive agro-diversity in-situ in farmers’ fields in several states of India.

We write to you with our analysis on the proposed amendments to the Biological Diversity Act, as proposed in the Biological Diversity Act Amendment Bill 2021.

It is worth noting that the context for proposing Amendments makes no mention of the Biodiversity Crisis all around the world, including in India; has no mention of gender and the centrality of women in biodiversity conservation and sustainable use, or in FEBS (Fair & Equitable Benefit Sharing); nor is there any reference to the Global Biodiversity Framework 2030 under the CBD (Convention on Biological Diversity, from which India’s Biological Diversity Act emerged). The main objective for the amendments seems to be facilitating further commercialisation and exploitation of biological resources, rather than the issues highlighted earlier. This is also to be inferred by the fact that consultations have been held with only industry representatives before tabling the amendments in the Parliament.

We would like to state up front that when it comes to commercialization and exploitation of bio-resources, whether it is by an Indian company/entity or a “foreign-controlled company” does not make a difference to the impact on bio-diversity. Another matter of concern is that there are no mechanisms being proposed to protect uncodified traditional knowledge, even as a large area of commerce will be thrust under exemptions given to codified knowledge as per these proposed amendments.

Our specific concerns are detailed below.

1. (UN)DEMOCRATIC PROCESSES: To begin with, it is not clear why this Bill ended up for the examination by a Joint Committee when it could have gone to the Standing Committee on Environment & Forest, Science & Technology. We hope that the JC runs fully consultative processes which the pre-Bill processes have missed out on. This necessarily means an extension of the timeline you had provided for inputs from citizens into the process that you would like to adopt in the Joint Committee.

It is very clear that the pre-Bill processes and the various Committees that were set up made do with consultations with AYUSH and Seed Industry representatives mainly. It is not clear where the legally empowered Biodiversity Management Committees (BMCs) were in these processes and why they were missing.

2. PRIORITISING COMMERCIALISATION AND CLEARING HOUSE FUNCTIONS FOR INSTITUTIONS IN THE BIOLOGICAL DIVERSITY ACT, EVEN IN THE NAME OF FAIR AND EQUITABLE BENEFIT SHARING, DO NOT NECESSARILY LEAD TO CONSERVATION & SUSTAINABLE USE OF RESOURCES: The Amendments are proposing to change even the Preamble and instead of alluding to, and drawing from the Convention on Biological Diversity, want to refer to a mere protocol within the CBD (Nagoya Protocol). This seems to indicate that the law, even on paper, would put thrust on “Access and Benefit Sharing (ABS)” (which is basically commercialisation) with conservation and sustainable use of resources taking a backseat. We assert that ABS cannot be the only or even the main approach to conservation and sustainable use of biological resources – it would be the wrong focus for India’s law for conserving biodiversity. Agro-biodiversity conservation is an area that did not get any attention worth speaking from the National Biodiversity Authority (NBA), and we can say that with this kind of a Preamble and proposed amendment, agro-biodiversity will be neglected even more.

Such a dangerous change in approach is also reflected in the substitution of the term “Diversity” with “Resources”. While the former connotes a complex web of natural ecosystems for such diversity to exist in the first place, the latter connotes a reductionist, linear understanding of biodiversity, that too meant for exploitation and profiteering. “Knowledge” is being substituted with “traditional knowledge”. All of this speaks of reductionist understanding/ malafide intent.

3. THREAT TO CONSERVATION AND SUSTAINABLE USE COMES FROM UNCHECKED COMMERCIAL ENTITIES AT WORK FOR THEIR OWN PROFITS, “FOREIGN-CONTROLLED” OR OTHERWISE: The original Act’s ‘foreign presence’ related concerns covered under Section 3 and similar other sections, are being diluted by now placing the restrictions and requirements only for “foreign-controlled” companies. In fact, while the Explanation for ‘foreign-controlled company’ states that it “means a foreign company within the meaning of Section 2(42) of the Companies Act”, that said Section 2(42) in the Companies Act defines a foreign company as “any company or body corporate which is incorporated outside India.” This is a clear contradiction and effectively means that no company which is incorporated or registered in India India is required to take the approval of the National Biodiversity Authority! Even if that definitional issue is corrected, the fact is that in the context of bio-piracy and similar situations, ‘foreign presence’ is sufficient to jeopardize the sovereign rights of the nation over its biological resources and associated knowledge; the jeopardy does not require ‘foreign control’.

Furthermore, it is important to note that restriction on foreign entities alone is not likely to protect the objective of conservation and sustainable use of biological resources. It is commercial entities which are into profiteering, which pose the threat to conservation and sustainable use, whether foreign or Indian. The current distinction therefore, is no protection against plundering of biological resources by Indian as well as foreign-’controlled’ entities.

4. BIOPIRACY BEING ALLOWED WITHOUT ANY ACTIVE SURVEILLANCE MECHANISMS ON PATENT OFFICES ELSEWHERE IN THE WORLD: The Amendment being proposed under Sec. 6(3) (“the provisions of this section shall not apply to any person making an application for any right under any law relating to protection of plant varieties”) essentially means that entities which apply for PVC registration under the PPV&FR Act using Indian resources, can also apply for patents elsewhere without having to obtain prior approval from NBA. In the absence of such gate-keeping from NBA, and in the absence of any active surveillance mechanisms over the Patent Offices in other countries, this could lead to biopiracy of farmers’ varieties. In case something comes to light, it will be a struggle post facto to get the biopiracy established and prior art restored.

The dangerous anti-farmer shift in India’s position – which was against Patents on Life Forms and correctly so – is showing its ugly head in other places too. Although GoI’s position stays against patenting plants and animals, it is quite unfortunate that in 2021, while giving evidence before a Parliamentary Committee related to Commerce, reviewing India’s IPR regime, the representatives of DARE and ICAR in the Ministry of Agriculture and Farmers’ Welfare both insisted that IPRs are necessary for the growth of the seed industry in the country. The Government of India should be told strongly to desist from any such shift in policy position on the matter of Patents on plant varieties.

5. EXCLUSIONS BEING PROPOSED WITHIN “BENEFIT CLAIMERS”: The definition in the proposed amendments is seeking to exclude codified traditional knowledge only for Indians. While the “only for Indians” appendage is confusing, the exclusion of codified traditional knowledge is meant to have unchecked commercialisation, without even having to engage in benefit sharing.

Further, it is unclear if the documented traditional knowledge from the years of implementation of the Biological Diversity Act in the form of PBRs or Traditional Knowledge Digital Libraries is being equated with codified traditional knowledge or not.

We are yet to see any good ABS models despite two decades of the legislation, that will keep alive the ethos of communities conserving biodiversity, protect their autonomy and deep knowledge of holistic ecosystems at work and still also have proper thanksgiving and acknowledgement for the enormous contributions made, in the form of fair and equitable benefit sharing. This is where explicit investments from the government have to come in, rather than depending only on market-based models.

While ASHA does not believe that ABS is what will drive conservation and sustainable use of biological resources and that such resources and associated knowledge are to be commodified and commercialised in all situations with some mechanisms like ABS in the name of justice, it is also concerned that farming communities that have been custodians of folk varieties, landraces and cultivars will be kept out of the purview of fair and equitable benefit sharing, with a distorted interpretation of ‘codified traditional knowledge’.

6. DILUTION OF POWERS OF BIODIVERSITY MANAGEMENT COMMITTEES: Further, Sec.21 allows the NBA to usurp the power of BMCs by stating that the “Biodiversity Management Committee represented by the National Biodiversity Authority” will get into determination of fair and equitable benefit sharing.

7. PRIOR INTIMATION TO STATE BIODIVERSITY BOARDS UNDER SEC.7: The original Act laid down the requirement of prior intimation to State Biodiversity Board for obtaining biological resource for certain purposes (commercial utilisation, biosurvey, bio-utilisation etc.) by any Indian citizen or Indian organisation/company/association, with exemptions provided to certain kinds of users like local people, vaids and hakims etc. Now, the amendment being proposed clubs two kinds of exemptions – of certain kinds of users (local people etc.) as well as certain kinds of products & knowledge! “Codified traditional knowledge, cultivated medicinal plants and its products” have been clubbed with local people and communities, growers and cultivators and biodiversity etc. This is legally confusing, and even big commercial entities need not inform SBBs for ‘codified traditional knowledge’ which could in future mean to include knowledge documented in PBRs etc.!

With more and more exclusions made on ‘benefit claimers’ and also on those who need to seek approvals or provide prior intimation, it essentially means that there will be lesser resources for SBBs for actual conservation work with lesser number of entrants into ABS. Dwindling of resources for conservation and sustainable use defeats the core objective of the statute.

8. RECONSTITUTION OF NATIONAL BIODIVERSITY AUTHORITY: It is not clear what is the logic behind proposing 16 ex-officio members to represent 12 Ministries/Departments/Agencies. When it comes to agro-diversity that too of traditional varieties and associated knowledge, it does not appear that DARE and MOA&FW are competent to represent the conservation and sustainable use aspects, given that they have been largely responsible for the decimation of India’s very rich agro-diversity developed and nurtured by farming communities.

9. POWER OF CENTRAL GOVERNMENT TO EXEMPT CERTAIN BIOLOGICAL RESOURCES: Exemptions for certain items including biological resources normally traded as commodities from the applicability of the provisions of the Act existed in the original Act also, as Section 40. This itself is meaningless, if not done in consultation with BMCs, since such commercial trading could affect conservation and sustainable use. Now, in the amendments being proposed, this is being expanded including to items derived from normally traded commodities. It is unclear how this serves the purpose of conservation of biological resources.

10. BMC CONSTITUTION GETTING MORE CENTRALISED: While BMCs were concomitant with Panchayats/local bodies in the past, the proposed amendments are talking about BMCs being constituted at the intermediate and district panchayat level. Once again, it is not clear how this will lead to the fulfillment of the three main objectives of the statute.

11. NATIONAL STRATEGY PLANS FOR CONSERVATION OF BIOLOGICAL DIVERSITY: Where Sec.36 had a sharp conservation focus in the original Act, the amendment is now proposing to dilute it by bringing in “sustainable use” also along with conservation, which may not always serve the purpose of conservation, including of cultivars, folk varieties and land races which have now been included in the proposed amendment explicitly.

As a national alliance working on farmers’ rights and livelihoods, we find it disconcerting that the Government of India, mainly influenced by the lobbying from AYUSH industry and seed industry, has proposed drastic amendments that weaken the main mandate of the BDA 2002. It appears that these amendments are GoI’s responses to a Uttarakhand High Court judgement against a well-connected AYUSH entity.

Meanwhile, progressive provisions that can actually lead to India’s biodiversity being conserved and used sustainably have not been effectively operationalised in all these years, under this Act. These include Sec. 13 (Committee to deal with agro-biodiversity), Sec. 36 in general (Government of India’s duty to develop strategies and plans for conservation) and more specifically, Sec. 36(4)(i) (related to biological diversity impact assessment) and Sec.36(4)(ii) (related to regulation of LMOs), Sec.37 (Biodiversity Heritage Sites) and importantly, Sec.41-44 provisions related to BMCs and investments in their biodiversity conservation and regeneration efforts.

ASHA-Kisan Swaraj urges that instead of these deleterious amendments being proposed, the original Act and its community-centric provisions should be strengthened and implemented immediately for the statute’s key objectives to be fulfilled.

Sincerely,

Kavitha Kuruganti

Co-Convenor

Ph: 8880067772

Email: kavitakuruganti@gmail.com

 

Alliance for Sustainable & Holistic Agriculture (ASHA-Kisan Swaraj)

FOOD – FARMERS – FREEDOM

www.kisanswaraj.in

www.indiaforsafefood.in