Biodiversity act: Balancing investments and sustainability
India’s push to attract international investment for R&D and commercialisation of Indian Systems of Medicine should not be at the cost of relinquishing our leadership at the Convention on Biological Diversity
In December 2021, Union environment minister Bhupender Yadav tabled a series of amendments to India’s Biological Diversity (BD) Act, 2002. In part, the changes can be better explained as the Centre’s ongoing efforts to promote Indian Systems of Medicine (ISM). The Centre intends to promote international collaborations and investments for the manufacturing and export of ayurveda, yoga, naturopathy, unani, siddha, sowa-rigpa and homeopathy (Ayush), which are largely based on codified traditional knowledge.
The bill encourages the cultivation of medicinal plants, exempts Ayush practitioners from taking clearances from biodiversity boards before using biological resources, decriminalises certain offences and hopes to bring more foreign investments.
The bill also reflects the compromise between the ministry of Ayush and the environment ministry that have been negotiating a long-standing turf dispute over the applicability of the BD Act on Ayush. For several years, Ayush manufacturers have resisted the regulatory obligations imposed through the BD Act, especially those requiring prior permissions for access and entering into monetary benefit-sharing agreements. At present, access to biological material for research or commercial application for Ayush products requires prior permissions either from the National Biodiversity Authority (NBA) or state biodiversity boards (SBBs).
In 2014, a National Ayush Mission was announced by the ministry of health and family welfare (MoH&FW). While the central government was promoting Ayush, the environment ministry was in the midst of aligning India’s biodiversity regime with the Nagoya Protocol on Access and Benefit Sharing (ABS) under the Convention on Biological Diversity (CBD).
The BD Act draws its objectives from CBD. India’s ratification of this protocol meant reconciling the domestic regime, especially requiring prior informed consent of indigenous peoples and local communities for access, stronger measures against illegal access and a clear institutional mechanism to affect fair and equitable benefit-sharing (FEBS). Just days after India ratified the Protocol in October 2014, the Centre set up the ministry of Ayush. Prior to this, the department of Ayush was under MoH&FW.
The global emphasis on ABS spurred SBBs to exercise their powers under the BD Act to issue notices to several Ayush manufacturers to pay fees for access to the bio resources they were utilising for commercial products. This also allowed SBBs to collect revenue.
But this led to a massive pushback from ISM manufacturers, though the environment ministry continued to hold the position that companies needed to pay up. In 2015, former environment minister Prakash Javadekar informed the Ayurvedic Drug Manufacturers Association (ADMA) that the industry has to pay “ABS tax”. The industry didn’t budget and ADMA later circulated an advisory to its members suggesting that they defer the ABS payment.
On December 14, 2015, the Central India Ayush Drug Manufacturers Association (CIDMA) filed a petition in the Nagpur bench of the Bombay high court (HC), seeking explanation on notices issued for the recovery of ABS under the BD Act. The petition challenged the validity of the state rules and ABS guidelines, which asked for benefit sharing upon access by Indian entities. This issue also came to a head in the 2018 Divya Pharmacy case, when the company was charged with not having informed the SBB before using bio- resources, with a judgment delivered by the Uttarakhand HC on December 21, 2018, supporting SBBs.
But the Ayush industry continued its lobbying efforts. In 2019, Research and Information System for Developing Countries (RIS), a policy research institute, organised a roundtable and gathered concerns from Ayush companies on the BD Act. Many of these mirror the amendments that are now being proposed under the Biodiversity Bill, 2021. The most significant of these is exempting Ayush companies accessing or using any bio resource from regulation by the SBBs. There are other amendments before a Joint Parliamentary Committee, which sought public comments by January 31.
This is an important moment to recall that India has been one of the leading countries to embrace CBD and its obligations to conserve and sustainably use bio resources. The BD Act, despite its shortcomings, is the legal framework that sets up an institutional framework through which illegal access can be curtailed and progressive arrangements for benefit sharing with communities can be explored. India’s push to attract international investment for R&D and commercialisation of ISM should not be at the cost of relinquishing our leadership at the CBD.
Shalini Bhutani is a legal researcher and policy analyst working in the Asia region. Kanchi Kohli is a senior researcher, Centre for Policy Research.
The views expressed are personal