Skip to main content

Uttarakhand High Court: Biodiversity boards can impose fees on Ramdev's Divya Pharmacy

By Mridhu Tandon
In a significant decision, the Uttarakhand High Court on December 21, 2018 has dismissed the writ petition filed by Divya Pharmacy founded by Baba Ramdev and Acharya Balakrishnan, challenging the demand of the Uttarakhand Biodiversity Board (UBB) imposing fees under the provisions of the Fair and Equitable Benefit Sharing (FEBS).
The judgment delivered by Justice Sudhanshu Dhulia held that the Court is of the opinion that SBB has got powers to demand Fair and Equitable Benefit Sharing from the Divya Pharmacy.
Divya Pharmacy has claimed that UBB cannot raise a demand, under the head of “Fair and Equitable Benefit Sharing” (FEBS), as the Board neither has the powers nor the jurisdiction to do that and, secondly, the Divya Pharmacy also claimed that it is not liable to pay any amount or make any kind of contribution under the head of FEBS.
The main contention was that only a foreign entity was liable to pay under the FEBS and not an Indian entity. Since Divya Pharmacy is a 'purely Indian company', it was not required to pay any fees under FBES. In addition, unlike a foreign company, an Indian company was not required to obtain 'prior approval' from the National Biodiversity Authority but only 'intimate' the State Biodiversity Board.
The State Biodiversity Board however contented that there is no distinction between an Indian entity and a foreign entity and the only entities who are not liable to pay are growers and cultivators of biological resources including vaids and hakims.
The judgment considered main objective of the Biological Diversity Act, 2002 and specially FEBS at length. According to the Court:
"The Indigenous and local communities, who either grow 'biological resources', or have a traditional knowledge of these resources, are the beneficiaries under the Act. In return for their parting with this traditional knowledge, certain benefits accrue to them as FEBS, and this is what FEBS is actually all about. This benefit the 'indigenous and local communities', get under the law is over and above the market price of their 'biological resources'.”
The Court dealt at length on the implications of Convention on Biological Diversity as well as the Nagoya Protocol of 2010 on Access and Benefit sharing (ABS). According to the Court, "The local and indigenous communities local and indigenous communities” are "the ones that need this protection and they are the ones who were at the centre of concern at Nagoya" and that Nagoya Protocol makes it clear that FEBS is for the benefit of “the local and indigenous communities”.
The Court highlighted that the Nagoya Protocol makes no distinction between a foreign entity and an Indian entity, as regards their obligation towards local and indigenous communities in this regard. Consequently the “ambiguities” in the national statute have to be seen in the light of the international treaties, i.e. Rio and Nagoya, and a purposive rather than a narrow or literal interpretation has to be made, if we have to arrive at the true meaning of FEBS.
Commenting on the rights of “indigenous and local communities”, the Court said, rights of “indigenous and local communities” were extremely important and emphatically declared in the Nagoya Protocol. These rights have to be protected, equally from outside as well as from within.
"The focus of the Nagoya Protocol is on FEBS, and protection of indigenous and local communities, and the effort is that the indigenous and local communities must get their fair and equitable share of parting with their traditional knowledge and resources. India being a signatory to the Rio and the Nagoya Protocol, is bound to fulfill its international commitments and make implementation of FEBS effective and strong", it added.
Suggesting that biological resources are the property of the indigenous communities and not just of the nation, the Court recognized that the local and the indigenous communities in Uttarakhand, who reside in the high Himalayas and are mainly tribals, are the traditional “pickers” of this biological resource.
Through ages this knowledge is preserved and passed on to the next generation. The knowledge as to when, and in which season to find the herb, its character, the distinct qualities, the smell, the colour, are all part of this traditional knowledge. This knowledge may not strictly qualify as an intellectual property right of these communities, but nevertheless is a “property right”, now recognised for the first time by the 2002 Act, as FEBS.
Can it be said that Parliament on the one hand recognised this valuable right of the local communities, but will still fail to protect it from an “Indian entity”. Could this ever be the purpose of the legislature?, wondered the Court.
“Biological resources” are the property of a nation where they are geographically located, but these are also the property, in a manner of speaking, of the indigenous and local communities who have conserved it through centuries, it observed.
Commenting on power of the State Biodiversity Board to impose fees, the Court said, it "must be stated that regulating an activity in form of demand of a fee is an accepted practice recognised in law. Therefore, in case the SBB as a regulator, demands a fee in the form of FEBS from the petitioner when the petitioner is admittedly using the biological resources for commercial purposes, it cannot be said that it has no powers to do so."
"Court is of the opinion that SBB has got powers to demand Fair and Equitable Benefit Sharing from the petitioner", the Court said, dismissing the challenge to the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014.
Divya Pharmacy was represented by Advocate G Partahasarthy while the Uttarakhand State Biodiversity Board was represented by Advocate Ritwick Dutta. The Union of India as well as the National Biodiversity Authority adopted the stand of the State Biodiversity Board.

Comments

TRENDING

Rescind Gates Foundation award to Modi, demand three Nobel Peace laureates

Counterview Desk
In a major boost to those opposing the award to the Gates Foundation’s proposed to be awarded to Prime Minister Narendra Modi for his Swacch Bharat Abhiyan, three Nobel Peace Prize laureates, Mairead Maguire (1976), Tawakkol Abdel-Salam Karman (2011) and Shirin Ebadi (2003), have in an open letter called upon Milinda and Bill Gates to withdraw their decision, stating Modi is allegedly involved in human rights violations.

Gujarat's incomplete canals: Narmada dam filled up, yet benefits 'won't reach' farmers

By Our Representative
Even as the Gujarat government is making all out efforts to fill up the Sardar Sarovar dam on Narmada river up to the full reservoir level (FRL), a senior farmer rights leader has said the huge reservoir, as of today, remains a “mirage for the farmers of Gujarat”.
In a statement, Sagar Rabari of the Khedut Ekta Manch (KEM), has said that though the dam’s reservoir is being filled up, the canal network remains complete. Quoting latest government figures, he says, meanwhile, the command area of the dam has been reduced from 18,45,000 hectares (ha) to 17,92,000 ha.
“According to the website of the Sardar Sarovar Narmada Nigam Ltd, which was last updated on Friday, while the main canal, of 458 km long, has been completed, 144 km of ranch canals out of the proposed length of 2731 km remain incomplete.
Then, as against the targeted 4,569 km distributaries, 4,347 km have been constructed, suggesting work for 222 km is still pending. And of the 15,670 km of minor canal…

Ceramic worker dies: 20,000 workers in Thangadh, Gujarat, 'risk' deadly silicosis

By Our Representative
Even as the country was busy preparing for the Janmashtami festival on Saturday, Hareshbhai, a 46-year-old ceramic worker from suffering from the fatal lung disease silicosis, passed away. He worked in a ceramic unit in Thangadh in Surendranagar district of Gujarat from 2000 to 2016.
Hareshbhai was diagnosed with the disease by the GCS Medical College, Naroda Road, Ahmedabad in 2014. He was found to be suffering from progressive massive fibrosis. He is left behind by his wife Rekha sister and two sons Deepak (18) and Umesh (12),
The death of Hareshbhai, says Jagdish Patel of the health rights group Peoples Training and Research Centre (PTRC), suggests that silicosis, an occupational disease, can be prevented but not cured, and the Factory Act has sufficient provisions to prevent this.
According to Patel, the pottery industry in the industrial town of Thangadh has evolved for a long time and locals as well as migrant workers are employed here. There are abou…

Bullet train impact report Japan agency property: Govt of India tells Gujarat NGO

The National High Speed Rail Corporation Limited (NHSRCL) has told Gujarat-based environmental organization, Paryavaran Suraksha Samiti (PSS) that the detailed report of Japanese International Cooperation Agency (JICA) representatives on their visit to Gujarat and Maharashtra assess the impact of the Mumbai-Ahmedabad bullet train project on farmers is not its property, but that of JICA.

NHSRCL letter to PSS, signed by activists Rohit Prajapati, Krishnakant and Swati Desai, comes following the latter’s request to it on June 10 for the report. PSS was one of the NGOs that represented JICA on the project, saying, if implemented, it would adversely impact farmers, even as pointing towards the fact that the project itself is unviable and Indian Railways needs to invest, instead, more on upgrading the present railway infrastructure.
Following the NHSRCL reply, PSS has shot a second letter to JICA, insisting that the latter should share a copy of the report, even as providing details of the …

Report on "torture" in Kashmir jails: 44% detainees stripped naked, 29% electrocuted

Counterview Desk
A recent report titled “Torture: Indian State’s Instrument of Control in Indian-administered Jammu & Kashmir”, published by the Association of Parents of Disappeared Persons (APDP), has claimed to build “on the body of human rights documentation on torture” in Jammu and Kashmir (J&K) through an examination of 432 case studies. It seeks to focus on "the trends and patterns, targets, perpetrators, contexts and impact of torture" in the state.

Allow international human rights observers, media to access Kashmir: US lawmakers

Counterview Desk
In a letter to US Secretary of State Mike Pompeo, two members of the American Congress, Pramila Jayapal and James McGovern, raising "significant concerns" about what they call "humanitarian and human rights crisis in Jammu & Kashmir”, quoting "credible reports" from journalists and advocates on the ground" have said that "the Indian government has detained thousands of people with no recourse, imposed de facto curfews on residents' and cut off internet and telephone access in the region.”

Karma tribal festival an occasional to campaign for tribal rights: IPMSDL

By Our Representative
The International Indigenous Peoples Movement for Self Determination and Liberation (IPMSDL), in a solidarity statement has suggested that the current Karam festival of Central India -- which seeks to promote sisterhood, friendship, cultural unity, and closer link to nature -- should be the occasion to campaign against alleged efforts to violently drive away forest dwelling communities from their forest homes.
"Millions are threatened to lose lands and livelihood under the implementation of Forest Rights Act (FRA) of 2006", the statement States, adding, "As corporate interests continues to enter tribal territories and extract profit from its natural resources, indigenous people are pushed to further marginalization and discrimination."
Asserting that indigenous movement in India "remains steadfast in keeping their culture, deeply linked to their lands alive by carrying out their heritage and struggles", IPMSDL, even as extending "…

Amidst Modi celebrations, thousands protest 'massive' submergence in Narmada Valley

By Our Representative
Thousands of women and men gathered on at the Shaheed Stambh in Badwani, Madhya Pradesh, to raise their voice against what they called "the destruction of the Narmada Valley", protesting against Prime Minister Narendra Modi and Gujarat BJP rulers for celebrating the Sardar Sarovar dam being filled up to the full reservoir level (FRL) on September 17, which also happens to be Modi's birthday.
Calling it a black day for the people of the Valley, whose villages and farms got submerged because of highest-ever water level having been achieved in the dam, the Narmada Bachao Andolan (NBA), which organised the parallel rally across the border with Gujarat, regretted in a statement that Modi's celebration at the dam took place amidst " martyrdom of the Valley".
The demonstration in Badwani was preceded by a vehicles rally, which took rounds of the city streets. They were joined by people from several villages of Dhar district. They gather…

Narmada valley: SC notice to Gujarat, MP, M'rashtra on submergence sans rehabilitation

By Our Representative
Thr Supreme Court has issued notice to Gujarat, Madhya Pradesh and Maharashtra governments following a Narmada Bachao Andolan (NBA)-backed petition seeking the explanation as to whether large areas of Narmada Valley have gone into submergence by filling up the Sardar Sarovar dam up to the full reservoir level (FRL) without rehabilitating the project affected families (PAFs).

Historic Chikhalda, temples, mosques submerged, activists 'rescue' Gandhi idol

By Medha Patkar
The first farmer of Asia was born in Chikhalda, if one is to believe archaeological researchers. A historic village, 50 percent of its population is of Hindus and 50 percent of Muslims, yet it has always remained peaceful. Chikhalda has struggled to save water, land and people along Narmada river.