Bio-piracy: Govt of India doesn't support litigations; 'it would affect foreign investment'

By Rajiv Shah
A just-published study has revealed the Government of India (GoI) has not been supporting litigations arising from violating National Biological Diversity (DB) Act, 2002, pointing towards how the National Biodiversity Authority (NBA), the country’s watchdog for implementing the Act, has been at the “receiving end” for most of the litigations.
A statutory autonomous body, NBA functions under the Ministry of Environment, Forests and Climate Change, GoI, and was established in 2003 to comply by the Convention on Biological Diversity (CBD), which India signed in 1992.
Insisting that refusal to support legal cases can itself be “very resource draining”, the study, “Litigating India’s Biological Diversity Act: A Study of Legal Cases”, says, “Legal capacity to deal with cases is also quite limited in the bodies set up under the Act”, adding, the GoI “does not undertake the litigation work of the Authority.”
The result is that, according to the study, undertaken by researchers, Shalini Bhutani and Kanchi Kohli, the NBA has to rely on “external lawyers for that purpose.” Worse, it adds, “There are sometimes law internships/placement notes that are put up by law professors before the NBA for its members to consider.”
Suggesting that the situation is not very different with the 28 state-level authorities (state biodiversity boards or SBBs) set up by the NBA, the study says, they miserably lack “litigation expertise”, at a time when “big and powerful companies come with their strong team of equally influential lawyers.”
In fact, the study says, there is an “express prohibition under the Act against foreign nationals taking any bioresources without due permission of the NBA” in the absence of NBA approval, and any violation may attract “penalty of either a jail term extendable to five years or with fine that extends to Rs 10 lakh.”
Yet, the study regrets, “Though forest officials usually man the SBBs, it’s not very often that the BD Act is used by field-level forest officers to deal with smuggling of bioresources, such as exotic wild species.” It adds, this is because the Act has not been “properly known and understood” and is therefore “rarely invoked”.
The study says, the Act and its rules allow the NBA can take up “necessary measures including appointment of legal experts to oppose grant of intellectual property right in any country outside India on any biological resource and associated knowledge obtained from India in an illegal manner.”
Yet, it underlines, the NBA has neither ever invoked this provision of the Act, nor its requisite rule, noting that it “still a lack of a legal/monitoring cell to keep track of and contest IPRs given outside the country, based on biological resources (or associated traditional knowledge) derived from India.”
This is because, according to the study, in cases of ‘biopiracy’ involving a foreign national or a company registered in India but with foreign shareholding, the GoI “does not want to appear unduly strict on this matter, as the apprehension is that it will be a disincentive to foreign investors.”

The study, funded Foundation for Ecological Security (FES), Anand, Gujarat, with research carried out in collaboration with Kalpavriksh Environmental Action Group, analyses 50 cases with respect to provisions of the BD Act or its rules/ guidelines between 2004 and 2016.

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