India is one of the few countries around the world that enacted a legislation to protect, sustainably use and share the benefits of use of biological resources present in the country — The Biological Diversity Act (2002). Seventeen years of implementation have provided the country with enough experience on how to implement the Act, as well as how not to interpret certain provisions.

One key component of the Act is to devise ways and means to seek benefits from the commercial utilisation of biological resources and the associated traditional knowledge pertaining to the use of such resources. Guidelines for such access and benefit sharing (ABS) were issued in 2014. However, the interpretation of these Guidelines during implementation has been severely problematic. This has resulted in a large number of litigations before the courts, including the National Green Tribunal.

In the absence of any case law and experience in interpreting the provisions of the Act and its Rules (issued in 2004) along with the Guidelines, the courts in India are also finding it difficult to deal with litigations, resulting in a state of confusion and concern among those wishing to commercially utilise the resources and secure economic benefits.

Notable issues

While there is general agreement amongst a majority of the businesses to share the benefits from the profits they make using the country’s biological resources and the associated traditional knowledge, it is the coercive attitude of the implementing agencies and a lack of clear interpretation of the provisions of the Act and its Rules that have created problems and cases of non-compliance.

Realising these issues, the Ministry of Environment, Forests and Climate Change issued a revised set of Guidelines on ABS recently. Detailed analyses of the revised Guidelines clearly point towards a scope for more confusion and possibilities for legal challenges while implementing the provisions. Here are some key concerns the revised Guidelines need to address:

The usage of the terms ‘guidelines’ as well as ‘regulations’ in the title provides a confusing mandate, given that this document falls in the category of a legal instrument and needs to be strong. Calling the points guidelines instead of regulations reduces its potential.

Secondly, though the guidelines speak about benefit sharing, they focus only on ‘securing benefits’ and are completely silent on ‘sharing’. This can be legally challenged, since there has been no proof available in the history of the implementation of this Act discussing whether the benefits accrued have ever been shared with the benefit-claimers, which include local communities.

Calculating percentage

That benefit sharing has to be negotiated between parties, especially the benefit claimants and resource-users, is clearly ignored throughout the revised Guidelines. The pre-determination of the percentages of profits to be shared also goes against the very spirit of the Act and the Nagoya Protocol. In addition, there is no rationale provided to how the percentage of the annual ex-gross factory sale to be allocated for benefit sharing has been reached.

These percentages were prevalent since the 2014 Guidelines as well, but there is no data available on any case where they were allotted to applicants. Confusing provisions on gross factory sale and gross factory price also compounds the problem.

For long, there has been confusion on whether or not the State Biodiversity Boards (SBBs) have powers to levy ABS. Some SBBs have used such powers to negotiate benefits. The revised Guidelines clearly note that it is the National Biodiversity Authority (NBA) that has the power to determine benefits. This will pose a legal challenge, given the decentralised power-play envisaged in the Act and the Rules. In addition, unless the amendments are brought about in the Act itself regarding the powers of the SBB, it will give way to purposive interpretation of the provisions by the judiciary.

The role of the Biodiversity Management Committees (BMCs) has also been completely ignored throughout the Guidelines. For instance, the Guidelines prescribe an upfront payment for bioresources having high conservation/economic value by a successful bidder, purchaser or user as decided by the NBA or SBB, without the BMCs being a part of the determination. This is in direct contradiction to the Act and is legally not maintainable.

The revised Guidelines also provide the option of giving a 25 per cent discount on the benefit sharing amount due to an applicant who has submitted a proof of payment of the levy fee to the BMCs in accordance with the Act. This means any individual accessing the resource for commercial purposes should provide a levy fee for the BMC as well as agree to a percentage benefit with the NBA. This is a way of charging double for the same action, and can be challenged in the court of law.

Exempted activities

One of the most significant revisions brought about is on the exemptions provided to traders of bioresources, small-scale industries with low turnover and start-ups from paying any kind of benefits. From a legal perspective, the Act itself makes no distinction between the different types of commercial entities and mere guidelines cannot make this differentiation.

The revised Guidelines further seek to clarify the activities which are exempted from the application of the ABS provisions. However, before doing this, it is important that there is a clear-cut definition of what entails commercial utilisation and who the benefit claimants are. This has not been done so far.

There are some additional provisions of significance within the revised guidelines as well. For instance, a period of 45 days has been accorded to the NBA to provide approval of research for emergencypurposes, but such a limit does not make any sense in the case of an emergency.

While it is clear that the Act, its associated Rules and the ABS Guidelines hold great potential for the country’s economic growth through sustainable commercialisation of bioresources and associated knowledge, the same cannot be realised unless there is all-round clarity on the provisions so as to avoid legal challenges in the future. The revised Guidelines seem to add to continuing confusion.

It is important now that lawmakers and experts recognise this impasse and strive for better application of mind when it comes to implementing the Act in its truest spirit.

Pisupati is the Chairperson of FLEDGE and former Chairman of the National Biodiversity Authority. Kurioakose is Senior Project Fellow, Vidhi Centre for Law and Policy. Views are personal.