Confused and weak
Sometime in 1996, fed up with the refusal of the ministry of environment and forests (mef) to prepare a biodiversity legislation for India, two non-governmental organisations, Gene Campaign and Forum for Biotechnology and Food Security, swung into action. Consultations among people interested in biodiversity and the environment began. Gene Campaign drew upon the experiences of many grassroots-level experts to get feedback from the ground. Finally, there were consultations with legal experts, with whose help a draft Biological Diversity Bill was prepared in 1997.
This draft Bill was to generate awareness about the urgent need for a law to affirm Indian ownership over biodiversity in its territories and to force the government's hand. Despite being a signatory to the Convention on Biological Diversity, the Indian government had taken no steps to act on the convention's pro-community provisions to protect biodiversity and the rights of adivasi (tribal) and rural communities. It had no legal instruments to check biopiracy at its borders.
The draft Bill was sent to the then president of India, S D Sharma, and to a number of parliamentarians. Sustained advocacy and pressure paid off. The mef constituted an expert committee to prepare a draft law on biodiversity, with M S Swaminathan as chair. The committee's deliberations produced a draft released for public discussion and comments. This went on for a few years, and the new draft Bill became more and more confused.
Despite all its good intentions, the final Biological Diversity Act (bda) now passed by both Houses of Parliament is a confused and weak document. It is, however, the section on intellectual property rights (iprs) that will do the greatest damage. The only stipulation in bda is that ipr applications will have to go through the national biodiversity authority (nba) set up by bda. There is no thought given to what kind of ipr is permissible. bda, in fact, runs counter to the larger national and international campaign against patents on life forms. nba could, theoretically, permit a patent on a medicinal plant or a rare species of turtle or bee. The ambiguity is alarming, because it has the potential to lead to unending legal tangles on what could constitute a legitimate iprs regime.
The other Indian legislations dealing with bioresources have taken clear positions on what iprs are permissible. The Plant Variety Protection and Farmers Rights Act 2001 does not allow patents, only