India enacted the Biological Diversity Act, 2002 in furtherance of its obligations under the Convention on Biological Diversity, 1993. The Act inter alia regulates the access and use of biological resources through the establishment of the National Biodiversity Authority and State Biodiversity Authorities. The Act also protects intellectual property rights for inventions based on biological resources obtained from India. At present, India is in compliance to its international obligations with regard to biological diversity. However, if India seeks to ratify the Nagoya Protocol, the domestic law will require several amendments to ensure compliance.
The Nagoya Protocol on ‘Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization’ to the Convention on Biological Diversity, was adopted on 29 October 2010 and will enter into force 90 days after fifty States have ratified the Protocol. India is currently only a signatory to this Protocol and is yet to ratify the instrument.
The Protocol provides for a mechanism for State Parties to ensure that there is fair and equitable sharing of benefits that arise from the use of genetic resources. The Protocol specifically recognises local and indigenous communities to be eligible benefit claimers when resources and traditional knowledge held by them are accessed. Such communities are not only benefit claimers but their consent is required before any genetic resource or associated knowledge held by them are accessed. From the user-country perspective, the Protocol imposes obligations on the Parties to ensure that the resources and associated knowledge used within the jurisdiction of the State Party are used only with the consent of the provider-country.
The Biological Diversity Act, 2002 has a substantially different scope and objectives. In contrast to the Protocol, the Act only seeks to regulate the use of biological resources and its associated knowledge relating to biological resources occurring in India. It provides no mechanism to ensure that resources that entering India and being used here are done with the informed consent of the provider Party and as per the terms established between them. Even with regard to obtaining the consent, the Act only provides for a mechanism to obtain the consent of the State Party (through the designated statutory authority, i.e., the National Biodiversity Authority and the State Biodiversity Authority) and there is no system in place to ensure the consent of the local communities are obtained as required by the Protocol. Apart from the above there are several other issues that arise in relation to compliance with the Protocol such as the discrimination between Indian and non-Indians with regard to the procedure for access, the lack of checkpoints, etc. Thus, there are several steps that India needs to take if it intends to ratify the Protocol.