A diverse bill
The term biodiversity, had its origin in us bureaucratic literature in the early eighties. During this period, tremendous economic potential of biodiversity was beginning to become obvious. The far-sighted Americans, using their patriotic think-tanks and foreign aid mechanism advocated the need for a global treaty on biodiversity. Their objective was simple enough: to recognise biodiversity as a global resource and to legalise open and free access to biodiversity housed in the global South.
However, when the formal negotiations for a Convention on Biological Diversity ( cbd ) began in the late eighties the developing world displayed uncharacteristic unity and negotiation skill and shaped a treaty that rejected the us (by now Western) designs. This has been a dramatic change from the May 1989 Governing Council session of the un Environment Program ( unep ), which set the cbd process in motion, where my appeal to developing countries to be cautious about a set of iucn (World Conservation Union)-prepared draft articles for possible inclusion in cbd failed to yield any response. To be fair to them, the developing country delegations had not had access to the draft prepared by the iucn / Environmental Law Centre, nor were they sufficiently aware of it.
Not for long. It was only a matter of time before the G -77 tore off the Western-sponsored draft and brought to life a treaty that is balanced along the North-South divide. The cbd, in its final form, explicitly recognises the sovereign right of nations over their respective biodiversity. Access to biodiversity is made conditional and subject to equitable sharing of the commercial benefits derived out of it. It is reciprocated by access to technology, equity is firmly factored in, the predominant role of indigenous people in biodiversity management is clearly recognised, and so on.
For a fair and balanced cbd we owe our gratitude, in no small measure, to Ambassador Ting of Malaysia who pursued the case of the developing world. The role of Ambassador Vincent Sanchez of Chile, as Chairman of the intergovernmental negotiation committee, who served as an honest broker has also been crucial.
It is in line with cbd that the government has introduced the Biological Diversity Bill in Parliament. The government did so rather reluctantly and kept it away from the agenda of the winter session. Although India ratified the treaty in 1994 it is only now that a Biodiversity Bill has come before the Parliament. The Bill, is the brainchild of some bureaucrats in the Ministry of Environment and Forests, some retired bureaucrats and a few government-bred ngo s. The closed-circuit bill drafting process has been devoid of a mechanism to elicit the people’s response. The lack of public debate on the provisions of the Bill leaves it without the necessary public support that would otherwise have been there.
Even so the Bill ought to be enacted. Although the Bill does not make a categorical assertion of national sovereignty over biodiversity for reasons best known to its drafters, it prohibits access to biodiversity for non-nationals. Access for foreign sources to biodiversity should be subject to the approval of a proposed National Biodiversity Authority ( nba ) and the Bill outlines the manner for equitable benefit sharing upon which the authority may grant access. As for nationals, access to biodiversity by them should be intimated to the proposed state biodiversity board concerned, local communities including vaids and hakims are exempted.
The sovereignty provision of cbd is singularly important to check the patenting spree in the West. If we pursue the unyielding Western patent laws to challenge granting of patents to “innovations” on biodiversity originating from India we may win only once in a long while. But the sovereignty argument (which we have yet to try) based on cbd holds much greater promise. The point is that an alien entity has no right to acquire or work, on our biomaterial over which the state has sovereignty, and all countries that have ratified cbd are bound to accept this.
The Bill requires that, applications for patents on inventions on bioresources obtained from India, should have the prior consent of nba . However, it makes an unacceptable exemption by removing patent claims on derived plant varieties from the requirement of advance consent of nba , apparently to be in line with the proposed plant varieties legislation. The plant varieties legislation is another easily avoidable submission of the govt to the highly-contested trips requirement of patent protection to derived varieties of plants. The plant varities legislation is to protect the interest of plant breeders (read transnational corporations) and would prove to be the last straw that would break the back of the Indian farmer. This exemption, which contradicts the sovereignty premise of the Bill, is against the letter and spirit of the cbd .
The faithful servants of Western interests, who introduced this exemption did not even consider the fact that, article 27.3b of trips that requires patenting of plant varieties itself is, due for review and that there is a very strong possibility of this provision being dropped. If the government, had a proactive agenda it would have sought to mobilise support for the position paper introduced by Kenya on behalf of the African Group in the negotiations. The country cannot waste the all-important provision of the hard negotiated cbd, that patents and other intellectual property rights should be supportive of the objectives of cbd (article 16.5). cbd is a powerful shield against trips , as far as biodiversity is concerned, and we should not fail to realise this. Section 57 of the Bill which states that the provisions of the Act shall override other laws in force, in the event of inconsistencies, shall not be compromised.
Apart from nba and sbb s, the Bill proposes to set up Biodiversity Funds at national, state and local levels; Biodiversity Management Committees are to be formed at the various levels of local self govt. for the conservation and sustainable and equitable utilization of biodiversity of their respective territories. These institutions together, would hopefully, put the conservation and equitable use of the country’s biodiversity on a firm foundation.
The dangers raised by the introduction of genetically modified organisms ( gmo s) pose a new and serious threat to biodiversity, rural socioeconomic systems and human health, but the Bill only calls for a half-hearted “regulation” in this respect. It may be recalled that during the Monsanto incidents with genetically modified cotton in Karnataka and Andhra Pradesh the Union Minister for Agriculture had expressed helplessness that there was no law available to ban the introductions. As the media lost interest and moved on to greener pastures the government gave a green signal to Monsanto. The biodiversity law, or the subsequent rules, if it has to be meaningful, should impose a 10-year moratorium on the introduction gmo s and the nba should be given the responsibility to enforce this. Biosafety must be an urgent priority.
The Bill, by implication, gives powers to the government to relocate people in the name of conservation, as if the existing powers of the government for this are not sufficient. This is the result of perverted thinking. People are the ultimate custodians of biodiversity and when placed within a sustainable management framework people-biodiversity relationship is one of powerful symbiosis. If anybody has to be relocated for the common good in the country it is the netas and babu s occupying huge bungalows of New Delhi, the city where every fourth person lives in slums.
A glaring omission in the Bill is the reference to indigenous people. The cbd , unequivocally recognizes the indigenous people, their knowledge system, and their rights in relation to biodiversity management. The Bill carefully avoids the term indigenous people and uses the vague phrase “local people”. This only betrays the archaic mindset of the ruling elite. It seems that in recognising the indigenous people they perceive a threat to their existence. The indigenous communities are organically linked to nature, they have immense knowledge about biodiversity, they are the historical custodians of biodiversity and their worldview speaks of a brotherhood of plants, animals and humans. The scientific establishment and conservation community still regard them as untouchables. Indeed there are ecologists who expouse the comic argument that the inhuman caste system has been an ecologically sound mechanism for resource sharing.
The Bill has flaws, which should be addressed during the deliberations. As it involves a basic resource of the nation it is important to generate a national debate on the topic, without missing the point that the sooner the Bill is enacted, the better for the country.
The author is a consultant ecologist based in Thiruvananthapuram
- The Biological Diversity (Amendment) Bill, 2023
- Report of the high-level working group on the Forest (Conservation) Amendment Bill 2023
- Report of the Joint Committee on the Biological Diversity (Amendment) Bill, 2021
- The Biological Diversity (Amendment) Bill, 2021
- India State of Forest Report 2017
- Pricing of water in public system in India 2017