Regulated Use of Biological Resources and Traditional Knowledge for Sustainable Development : The Experience from India

Biodiversity is the base and source of most of the developmental activities. With the advent of modern biotechnology, the utilization of biological and genetic resources for various developmental ventures in medicine, health products, cosmetics, and industrial products increased manifold. Ever since the Convention on Biological Diversity rolled out a blueprint for conservation of biological diversity, sustainable use of its components and equitable sharing of benefits arising out of utilization of genetic resources and traditional knowledge, the Parties to the Convention recognized them as cardinal principles for sustainable development that depends on biological diversity. The Nagoya Protocol on Access and Benefit Sharing for Utilization of Genetic resources and Traditional Knowledge concretized the legal mandate for facilitated access to genetic resources and traditional knowledge for research and developmental purposes. The Protocol ensured equitable sharing of benefits to the indigenous and local communities that have shared traditional knowledge and contributed for the conservation of biological diversity. Being a party to the Convention on Biological Diversity as well as the Nagoya Protocol, India has been implementing the Convention and the Protocol through the Biological Diversity Act, 2002. The Biological Diversity Act, 2002 provides facilitated access to biological resources and associated knowledge based on prior approval and mutually agreed terms. Even though both the Convention on Biological Diversity and the Nagoya Protocol use the terms “genetic resources,” the Indian Biological Diversity Act regulates “biological resources.” This gives a broader scope to the regulation and benefit sharing. A three tier-mechanism has been created under the Act to regulate access to biological resources and associated knowledge and to ensure benefit sharing. The National Biodiversity Authority at the federal level provides prior approval to the non-Indian entities for research and commercial utilization of biological resources. This Authority also regulates transfer of research results and transfer of accessed biological resource to a third party. Any application for intellectual property protection for any product or process involving biological resources requires prior approval of the National Biodiversity Authority. The State Biodiversity Boards established in the States regulate access to biological resources by the Indian citizens at the state level. Both the National Biodiversity Authority and the State Biodiversity Boards determine benefit sharing at the time of granting approval. However, the State Biodiversity Boards do not have any clear mandate under the Act to accord approval and fix benefit sharing. This issue has been raised in the case of Divya Pharmacy v. Union of India (2018). The Biodiversity Management Committees established at the grassroots level in the local bodies have major duties of conservation and documentation of biodiversity and the associated knowledge available within its jurisdiction. These Committees also have the power to levy access fees from the persons accessing biological resources within its jurisdiction. The Biological Diversity Rules 2004, and the Access and Benefit Sharing Regulations 2014 aid the implementation of Biological Diversity Act. Nevertheless, the implementation of the Biological Diversity Act has been entangled with multiple challenges due to convoluted procedures, different enforcement approaches of State Biodiversity Boards and lack of clarity in the law itself. Hesitation of industry stakeholders to comply with the law and lack of participation and awareness about the access and benefit sharing process on the part of the local communities add the complexity to the implementation of the law. All these issues not only pose threat to the implementation of biodiversity law, but also threat to conservation and sustainable development. This paper will critically analyze the importance of conservation of biological diversity and sustainable use of biological resources globally and in a developing country like India to further sustainable development. It will shed light on the difficulties in implementing the biodiversity law in India. This paper will also examine how access and benefit sharing regime in India impacts research and innovation for sustainable development and how it benefits biodiversity conservation and local communities with the help of case studies