Mumbai: The environment ministry's proposed amendments to the Biological Diversity Act, 2002 could facilitate commercialisation of India's biological resources instead of focusing on their conservation, say environmental activists, and might undermine the traditional rights and knowledge of people dependent on these resources.

In December 2021, the Union Ministry of Environment, Forest and Climate Change (MoEF&CC) proposed comprehensive amendments to the Biological Diversity Act, 2002 by way of the Biological Diversity Act (Amendment) Bill 2021. The amendment seeks to dilute the institutional oversight structure put in place by the original Act for use and access to bioresources.

The Biological Diversity Act, 2002 was promulgated to give effect to the United Nations Convention on Biological Diversity (CBD), 1992, which aims for sustainable, fair and equitable sharing of benefits arising out of the utilisation of biological resources and associated traditional knowledge. The 2021 amendment seeks to substitute terms like "biological diversity" with "biological resources" and "holders of knowledge" with "holders of associated traditional knowledge".

"The changes are brazen and they are mincing no words about being open in what they are doing," said Kavitha Kuruganti, the founder convener of ASHA-Kisan Swaraj, a pan-India alliance of organisations working towards environmental sustainability, social equity and economic viability in Indian farming. An analysis of the amendment by ASHA-Kisan Swaraj called the substitutions "a dangerous change".

The analysis states that while "biological diversity" connotes a complex web of natural ecosystems, "biological resources", on the other hand, connotes a reductionist, linear understanding of biodiversity, that is meant for exploitation and profiteering. "There is a fear of how codified knowledge will be interpreted in implementation and in a court of law when challenged," Kuruganti said.

"The amendment bill seems less about conservation of biodiversity and recognition of rights of communities which are custodians of this biodiversity, which is the primary objective of the Act, and more about how to make biological resources more accessible, particularly for commercial purposes, like to corporations," Neema Pathak Broome, coordinator of the Conservation and Livelihoods programme at Kalpavriksh, a Pune-based, pan-India environmental action group, told IndiaSpend.

"The amendment came as a shock because there has been, occasionally or often even, a sustained campaign that demanded for changes in the Biodiversity Act of 2002 to make it more in line with the Nagoya protocol (an international agreement on sharing of benefits from access to biological resources, of which India is a signatory) and ensuring that there would be better equity at the local level in terms of sharing of benefits," said Pathak Broome. "But what came was just the opposite of it--that sought to make the 2002 Act even less equitable and that reduced the power of bio-diversity committees."

The Bill is currently being referred to a joint parliamentary committee for review. The latest sitting of the committee on February 8, 2022, took inputs from representatives of the biodiversity boards of eight states.

IndiaSpend has asked the MoEF&CC for its comments on the claims by activists and experts that the amendment will enhance commercialisation of India's biodiversity. We will update the story when we receive their response.

Dilution of institutional structures

The 2002 Act called for a three-tier structure consisting of a National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level and Biodiversity Management Committees (BMCs) at local body levels. The primary responsibility of the BMCs is to document the local biodiversity and associated knowledge in the form of a People's Biodiversity Register.

But the amendment bill seeks to comprehensively dilute institutional structures such as BMCs and central/state biodiversity committees and give primacy to the NBA, say activists. The amendment states that the "Biodiversity Management Committee represented by the National Biodiversity Authority" will determine fair and equitable benefit sharing.

A statement issued by the Coalition for Environmental Justice in India, consisting of 34 civil society organisations, activists and experts, said that such dilution will compromise the oversight of the BMCs. "The benefit of this dilution will accrue to private corporations, including [multi-national corporations], and especially those involved in AYUSH [Ayurveda, Yoga, Naturopathy, Unani, Siddha, Sowa-Rigpa and Homoeopathy] industries," the statement read.

Fears that new provisions will engender biopiracy

The original Act required prior approval from the NBA to access biological resources for certain categories of people/ corporate bodies, which included people who are not citizens of India and bodies which are not registered or incorporated in India, essentially any kind of "foreign presence", said Kurugunti. But the amendment restricts this to "foreign controlled company" that is incorporated outside India, which means that no company which is incorporated or registered in India is required to take the approval of the National Biodiversity Authority, she added.

"They have changed the definitions in such a way that through alliances with Indian partners, now foreign organisations can get access to the resources," said Pathak Broome. "These provisions are likely to create greater possibilities for biopiracy. These were already weak [and have] been weakened even further."

Biopiracy occurs when organisations or researchers use indigenous biological resources for commercial purposes, often based on people's traditional knowledge, without permission or official sanction. This leads to exploitation of the cultures the bioresources are drawn from. Examples are attempts by foreign firms to obtain patents on products long in use in India, such as neem, Basmati rice, turmeric and Darjeeling tea.

"The 2002 Act had a gatekeeping function when applying for Intellectual Property Rights, especially patents," said Kuruganti. "But, under the amendment, the prior approval of the NBA is not required for Indian companies with foreign stakeholders. So, in the case of biopiracy, it becomes a post facto struggle to establish that biopiracy occurred, and if piracy issues crop up."

Concerns over inadequate consultation

Experts have also pointed out concerns over how the new amendment was cleared without a consultative process. In the statement of objects and reasons, the ministry says that the amendment came as a result of concerns from stakeholders, including from the Indian system of medicine, seed, industry and research sectors "urging to simplify, streamline and reduce compliance burden to encourage a conducive environment for collaborative research and investments and simplify patent process (...)."

An initial assessment of the amendment by the Legal Initiative for Forest and Environment in December 2021 noted that the Bill was introduced by the MoEF&CC without seeking the public comments required under the Pre-legislative Consultative Policy, 2014.

"The amendments were basically driven by inputs coming from Ayush industry and the seed industry," added Kuruganti. "It's an example of hasty decisions that fail to take into account the deliberative democratic process that needs to be followed, such as consulting the people who will be affected by the piece of legislation. All the pre-bill processes and the various committees that were set up, mainly consulted AYUSH and seed industry representatives."

The amendment also seeks to take the Biological Diversity Act, 2002 out of the prevailing environmental jurisprudence governed under the umbrella legislation Environment Protection Act, 1986, per a statement by the Coalition for Environmental Justice in India. Under the 2002 Act, all offences against the environment and associated rights are considered criminal offences. By way of the new bill, the ministry proposes to reduce such violations of the biodiversity act to mere civil offences.

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