The Biological Diversity Amendment Act was passed by both Houses of the Parliament in the current session.
The Rajya Sabha passed the Bill on July 2nd, while the Lok Sabha passed it on August 2nd.
The Act is not a new or complete Act. It only mentions changes in the main (principal) Act – The Biological Diversity Act, 2002.
Why was this change required?
According to the explanatory note attached to the Amendment, the government is introducing this change to:
(i) reduce the pressure on wild medicinal plants by encouraging cultivation of medicinal plants;
(ii) encourage Indian system of medicine;
(iii) facilitate fast-tracking of research, patent application process, transfer of research results while utilising the biological resources available in India without compromising the objectives of United Nation Convention on Biological Diversity and its Nagoya Protocol;
(iv) decriminalise certain provisions;
(v) bring more foreign investments in the chain of biological resources, including research, patent and commercial utilisation, without compromising the national interest.
In general, the new Act:
A. Gives more power to Central and State Governments.
B. Introduces the National Green Tribunal
C. Creates a bigger body at the Local Government level.
D. Removes imprisonment for all offences
E. Makes transfer of research easy to companies and organisations outside India.
F. Makes commercial use easier.
G. Extends the right to complain to ALL citizens, not just benefit takers.
The main changes
These are the main changes in the new Act.
Licence to Access
Some persons and companies will need permission to access (get) a biological resource or knowledge related to it.
Earlier, every company or organisation with a foreign share in its membership or ownership needed to get a licence from the National Biodiversity Authority. Now, this term only means a company controlled by a foreigner.
This means that companies which have a small foreign ownership or where some of the managers are foreign, can get access to India’s biological products and knowledge related to them.
This clause also applies to transfer of knowledge. Earlier, transfer of knowledge to any company that has a foreign ownership or any foreign management.
Further use of research
According to this amendment, the results of any research on biological resources of India cannot be transferred or used for:
A. Further research
B. Creation of intellectual property (i.e., getting future patents where that work develops the findings of this earlier work)
C. Commercial utilisation (making commercial products of any kind)
without the approval of the National Biodiversity Authority.
The restriction on commercial utilisation will ensure that our biological resources are used more mindfully.
The Act also makes existing contracts which violate this clause – void. This means that suppose a 3-year research on a specific herb found only in India is currently in progress. The contract is between an Indian pharma company and a foreign pharma company. The original research was done in India. The objective of the contract is to co-develop and commercialise a medicine based on the herb.
One year of that contract is over.
The remaining two years, and the remaining work, cannot be done, without getting approval from the National Biodiversity Authority.
Covers repositories located outside India and traditional knowledge
Suppose someone creates a Seed Bank of native Indian rice varieties. This seed bank simply stores seeds of Indian rice varieties – to be given to farmers who want to grow rice that Indians are more accustomed to.
This is a repository (storage) of biological resources of Indian origin, though it is located outside India.
Earlier, such repositories were not covered by the law. This means that one could use India’s biological reserves stored in these facilities to do further research, to get patents, and to even commercialise.
Under this amendment, India’s biological resources stored outside India also need approval from the National Biodiversity Authority if anyone wants to:
A. Get a patent
B. Commercialise a product based on India’s biological reserves.
The other addition to the text is “or associated traditional knowledge thereto,” – which means that not just the resource, but also the traditional knowledge associated with it, cannot be patented or commercialised without the approval of the National Biodiversity Authority.
For example, in 1995, a patent was granted for the anti-inflammatory properties of turmeric. Haldi, or turmeric, has been used in our food and native medicine since time immemorial. This patent would mean that we would have to pay the pharma company to use turmeric in our home remedies!
The Government of India filed a case and got the patent annulled (cancelled).
AYUSH practitioners also exempt
In Section 7, local communities, growers and cultivators of biodiveristy, vaids and hakeems were exempt from the provisions of the Act. Now, Ayush practitioners have also been added to the list.
According to the website of the Ministry of Ayush, Ayush practitioners are:
Ayurveda, Yoga, Naturopathy, Unani, Siddha, Sowa-Rigpa and Homoeopathy.
Traditionally, Ayurvedic healers are called Vaidyas and Unani healers are called Hakims. The other methods of healing are also now included in the exemptions.
This means that local doctors providing healing through a medicine other than allopathy should be able to use local herbal remedies without getting an approval, etc.
Establishment of Regional Offices
In the earlier Act, the National Biodiversity Authority could open more offices (with headquarters at Chennai) with the approval of the Central Government.
Now, the Central government can open regional offices with a notification in the Central Gazette.
(Section 8)
The composition of the National Biodiversity Authority and State Biodiversity Authority
| Earlier | Now |
| Representation from the following Ministries: Tribal Affairs Environment and Forests – 2 members, of which one should be of the level Additional Director General of Forests or the Director General of Forests Agricultural Research and Education; Biotechnology; Ocean Development; Agriculture and Cooperation; Indian Systems of Medicine and Homeopathy; Science and Technology; Scientific and Industrial Research; Except where mentioned, one member from each Ministry. Total: 10 members | Members to be appointed from the following ministries: (i) Agricultural Research and Education; (ii) Agriculture and Farmers Welfare; (iii) Ayurveda, Unani, Siddha, Sowa Rigpa, Yoga and Naturopathy and Homoeopathy; (iv) Biotechnology; (v) Environment and Climate Change; (vi) Forests and Wildlife; (vii) Indian Council of Forestry Research and Education; (viii) Earth Sciences; (ix) Panchayati Raj; (x) Science and Technology; (xi) Scientific and Industrial Research; (xii) Tribal Affairs; There is no quota for individual ministries. The 16 members can be from any of these ministries in any number. Total: 16 members |
| Three new ministries have been added to the NBA: A. Environment and Climate Change B. Earth Sciences C. Panchayati Raj | |
| Four representatives from State Biodiversity Boards on rotational basis. These members were not there earlier. They have been added. | |
| A Member-Secretary, who shall have experience in matters relating to biodiversity conservation, to be appointed by the Central Government. This position has been added. It was not there earlier. Further in the Act, the Member Secretary has a lot of important responsibilities. | |
| Five specialists in the field of conservation of biological diversity, sustainable use of biological resources and equitable sharing of benefits. | These can be specialists or legal experts. The word legal experts has been added. |
| Earlier | Now |
| Five members from relevant ministries. No specific ministries are mentioned in the Act. | Seven members from relevant ministries including Tribal Affairs and Panchayati Raj |
| Five specialists in the field of conservation of biological diversity, sustainable use of biological resources and equitable sharing of benefits. | These can be specialists or legal experts. The word legal experts has been added. |
Powers of Member Secretary
The Member Secretary can sign on behalf of the Chairperson OR on the behalf of any member of the National Biodiversity Authority (NBA).
Reasons for rejection to be given in writing and made public
Under the new ACT, if a person wants to:
A. Get access to our biological resources, or knowledge related to them for research, bio-survey, patent, commercial use, etc.,
B. Transfer the results of their research to another entity.
- The NBA can either approve or reject such an application.
For both approval and rejection, the NBA will have to communicate and publish reasons. This was not there earlier. Earlier, a rejection could be made after hearing the party. But there was no need to give reasons for rejection.
Now, an applicant can know why their application was rejected.
All approvals and rejections will be in the public domain. This means that any citizen can read the records of these approvals and rejections.
Earlier, a notice needed to be given. This did not automatically put the decision available to everyone in the future also. Now, every decision can be read by citizens at any time.
This rule also applies to State Biodiversity Authorities (SBAs).
Cultivars, folk varieties, and landraces
Earlier, the NBA could only work for the preservation of biological resources. Now, it can also work for:
(a) “cultivar” means a variety of plant that has originated, then cultivated, or was
specifically bred for the purpose of cultivation;
(b) “folk variety” means a cultivated variety of plant that was developed, grown, and exchanged
informally among farmers or is a wild relative or ancient variety about which the farmers possess common knowledge.
(c) “landrace” means primitive cultivar that was grown by ancient farmers and their successors.
In short, the NBA can also protect bio-diversity in the agricultural sector.
(d) “farmers’ variety” means a variety which—
(i) has been traditionally cultivated and evolved by the farmers in their field; or is a wild relative or ancient variety about which the farmers know commonly.
Not just indigenous species
The following clause has been inserted:
The Central Government may authorise National Biodiversity Authority or any other organisation to take any measures necessary to monitor and regulate within the territory of India, the access and utilisation of biological resources obtained from a foreign country in order to meet the international obligations to which India is a signatory.
Therefore, the NBA can be asked to also take care of resources not entirely native to India.
More exemptions
The Central Government can decide that the protection given under this Act will not apply to items that are generally traded as:
A. Commodities or items derived from them, including agricultural wastes.
B. Notified and cultivated medicinal plants and their products – where a company is already registered under the Act.
This means that pharma companies that grow medicinal plants are exempt once they have got a license. There could also be more cases where this clause will mean that companies or individuals do not come under the Act.
Composition of Biodiversity Management Committee (BMC)
BMCs are created under the State Government at the Local government level. According to this Amendment, these are Gram Panchayat in rural areas and Municipal body in urban areas. The State Government may make BMCs at district or other intermediary levels also.
In the earlier Act, there was no rule about how many members should be there in the BMC. The Amendment says that a BMC needs to have 7-11 members.
National Green Tribunal
For cases filed under this Act, the National Green Tribunal’s decisions will be on par with the decisions of the High Court. Earlier, NGT was not mentioned in this Act.
Maximum Penalties increased, no jail time, and who can decide
Earlier, the maximum fine under the Act was five lakh rupees, and/or imprisonment up to 3 years.
Now, there is no imprisonment. No one can be put in jail under this Act.
The fine has been increased to minimum One lakh. Further, if the person continues to break the rule, an officer will be appointed by the Central Government. This person can impose a fine up to one crore rupees.
Let’s say that C breaks the law and tries to create commercial medicine based on a local herb medicine.
The government informs C that doing it without getting approval from NBA is not allowed.
But, C continues to make the medicine and sell it.
Now, the government can set up an Adjudicating Officer (like a judge), who can impose a penalty of up to one crore on C.
Suppose C decides that this fine is unfair. He can go to the National Green Tribunal and file an appeal there.
Anyone can complain
Earlier, only the government or a benefit claimer (someone who benefits as a local person under the Act) could file a case under this Act. But now, anyone can file a case. (Section 61), but the complaint needs to be in writing.