Access and Benefit Sharing of Bio resources in J&K The Unfinished Agenda

Arvind Jasrotia
Biological diversity is the result of billions of years of evolution, shaped by natural processes and increasingly by the influence of humans and forms the web of life of which humankind is an integral and dependent part. It is a global asset of tremendous values for present and future generations. The Convention on Biological Diversity (CBD) provides the global mechanism to ensure the conservation and sustainable use of biodiversity. The key objectives of the CBD are the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The Nagoya Protocol on Access and Benefit Sharing (ABS) is a supplementary agreement to the CBD that provides a transparent legal framework for the effective implementation of third objective of the CBD, viz., the fair and equitable sharing of benefits arising out of the utilization of genetic resources. The Protocol intends to create greater legal certainty and transparency for both providers and users of genetic resources by establishing more predictable conditions for access to genetic resources and helping to ensure benefit-sharing and thereby enhancing the contribution of biodiversity to development and human well-being.
Having experienced heavy biopiracy in the last quarter of the century and in pursuance to India’s obligations under the CBD, the Parliament of India enacted Biological Diversity Act, 2002 (BDA) that extends to whole of India. To complement the Act, ‘The Biological Diversity Rules’ were notified in the year 2004. A three-tier system for biodiversity management has been envisaged under the BD Act: A National Biodiversity Authority (NBA) at the Centre, State Biodiversity Boards (SBBs) in the States and local-level Biodiversity Management Committees (BMCs) at the local body level for the purpose of achieving the objectives of the BDA within their local area jurisdiction. These implementing bodies have had to respond to both local realities and national requirements for regulating use and access to bio-resources and associated knowledge.
The role of NBA is multi-tasked as it performs facilitative, regulatory and advisory functions for the Government of India on the issues of conservation, sustainable use of biological resources and fair and equitable sharing of benefits arising out of the use of biological resources. NBA also advises the State Governments in the selection of areas of biodiversity importance to be notified as ‘Heritage Sites’ and measures for the management of such heritage sites besides supporting conservation and sustainable management of biodiversity. The State Biodiversity Boards (SBBs) on their part advise the State Governments on similar objectives within its jurisdiction. The SBBs also regulate, by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians. The local level Biodiversity Management Committees (BMCs) are responsible for promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity.
Under the Act, legal entities of foreign origin are required to take permission of the NBA to access the biological resources or the traditional knowledge that lies within the jurisdiction of India. Similarly, without the prior approval of NBA, no person is allowed to transfer the results of research which was conducted by utilizing biological resources of India to a legal entity having a foreign element. Another major requirement of the Act is that a prior approval of the NBA is made a pre-requisite before filing an application for grant of intellectual property right if such invention is based on biological resources of India. Approval of NBA is not required by Indians and Indian Institutions when they engage in the above mentioned activities, however they need to inform the SBB prior to undertaking any research with the intent of commercialization. The underlying principle of ABS is to ensure that access to biological resources and/or associated traditional knowledge is based on a set of principles, terms and conditions that include securing prior informed consent and mutually agreed terms thereby ensuring fair and equitable benefit sharing.
The State of Jammu & Kashmir, also known as the Biomass State of India, has the distinction of being one of the 26 hotspots in India with fairly rich diversity of plant life which contributes to food and habitat needs of wild and domesticated in the state. The State is treasure trove of medicinal and aromatic plants which are used in pharmaceutical and perfume industries. The Biological Diversity Act, 2002 read with J&K Biological Diversity Rules, 2015 stipulate the constitution and functions of BMCs which, inter alia, include promotion of conservation and sustainable use of biodiversity, chronicling of knowledge of biological resources, preparation of People’s Biodiversity Registers (PBRs) in consultation with local population that shall contain complete information on availability and knowledge of local biological resources, their medicine or any other use or any other traditional knowledge associated with them. The SBB has to provide guidance and technical support to the BMCs for preparing PBRs and to ensure that all information recorded in the said registers receives legal protection against misuse and appropriation by outside agencies and individuals. Presently all the 29 States have established SBBs and approximately 62,502 BMCs have been constituted and 5,466 PBRs were documented across country. However sadly, more than a decade has passed, BMCs are yet to be constituted and PBRs are yet to be prepared by the SBB. Now with the successful conduct of Municipal and Panchayat elections in the State of J&K and Panchayati Raj Institutions (PRIs) slated to play a crucial developmental role with enhanced funding, it is of vital importance to constitute BMCs at the earliest and PBRs be documented.
There has been numerous success stories and case studies of ABS mechanism starting from famous Kani Tribe Case (1987), in which the first patent was granted to Regional Research Laboratory, Jammu to the most recent last week judgment passed by Uttrakhand High Court whereby directions have been issued to Divya Pharmacy, owned by Baba Ramdev to share profits with local and indigenous communities as part of fair and equitable benefit sharing objectives of Biological Diversity Act.
To conclude, there is a dire need to do public awareness drives regarding conservation and sustainable use of biodiversity including ABS mechanism. The SBB can collaborate with Educational and scientific institutions in the State of J&K for drawing scientific and technical experts working in the area of biodiversity for the preparation PBRs in consultation with BMCs and local community.
(The author is former Head and Dean, Law University of Jammu)