[The Viewpoint] Analyzing the decriminalization of provisions under the Biological Diversity (Amendment) Bill, 2021

The proposed change in the legislation is unique, as many other biodiverse countries following the Nagoya Protocol continue to criminalize the non-adherence to provisions of the respective Acts.
Aditya Bhattacharya & Kunal Kapoor
Aditya Bhattacharya & Kunal KapoorLakshmikumaran & Sridharan

The Biological Diversity (Amendment) Bill, 2021 introduced in the Lok Sabha seeks to bring some fundamental changes in the way the Indian legislature regulates the Biological Diversity Act, 2002.

The present Act, which was a product of India’s commitment to the Nagoya Protocol, was enacted with the fundamental ideology to ensure equitable benefit sharing arising from the use of biological resources. The Nagoya Protocol, which came into force in 2014, was enacted with the endeavour to create a global ethos of equitable sharing of biological resources and genetic material.

The Protocol’s agenda was to ensure that all stakeholders who come into the picture during the sharing of a biological resource must share the benefits of the genetic resource in a fair and equitable manner. The 2002 Act enacted by the Indian legislature created authorities such as the National Biodiversity Authority (NBA) and the State Biodiversity Authorities (SBDAs) and entrusted them with the task of ensuring equitable sharing of biological resources. These authorities were also entrusted with powers to file first information reports (FIRs) and initiate magisterial enquiries in situations wherein entities violated specific provisions of the Act.

The 2021 Bill aims to streamline the legislation by bringing changes both in the realm of substantive law as well as procedural law. One issue that requires a special mention is the proposed amendment to decriminalize violation of the substantive provisions of the legislation. The Bill aims to establish a regime where violation of the substantive provisions will not make an entity criminally liable. The power to file FIR given to the National Biodiversity Authority against a defaulting entity has been withdrawn under the Bill. The proposed Bill has created an inquiry officer (of the rank of Joint Secretary) who will now conduct enquiry in matters of violation and accordingly impose penalty that can go upto ₹1 crore in cases of continuous violations. If enacted, the provision will bring closure to the much-debated issue and apprehension of criminal liability that could be fastened upon entities for violation.

The proposed measure may be interpreted as a step by the Indian legislature to give assurance to commercial stakeholders that the legislation is not an arm-twisting device, but rather a means to ensure compliance by entities. In a way, it also gives assurance to global corporations that the Act is not an anti-business legislation. The proposed change in the legislation is unique as many other biodiverse countries following the Nagoya Protocol continue to criminalize non-adherence to their respective legislations. Prominent examples include the National Environmental Management Biodiversity Act, 2004 (South Africa) and the Canadian Environmental Protection Act, 1999 that continue to criminalize non-compliance.

However, the amendments to the Act also bring with them various issues which can only be understood in their true scale once the provisions are implemented. It is pertinent to mention here that the proposed Bill, if implemented, will create two separate authorities - the Biodiversity Authorities at the Central and State Level - to determine equitable sharing of resources, and a separate adjudicatory body or officer to impose penalties for violation of substantive provisions. If a comparison is made in this regard with other similarly placed legislations, the legislature could have entrusted all powers upon the Authorities and manned them with both judicial and technical members.

Another way could have been to make an investigative body which could probe allegations of non-compliance. The report filed by this body could be placed before the Authorities for adjudication. Such practices have been crystalized in other laws such as the Competition Act and allied regulations as well as the erstwhile and present Indirect Tax-Goods and Service Tax regime. However, all these issues can only be left to the wisdom of the legislature.

The proposal to decriminalize provisions under the new Bill and its consequences will be closely watched world over. The amendments, if implemented, will have its own share of issues (both good and bad) which will only be known in the future.

It is hoped that the proposed changes succeed in taking the Indian biodiversity regime to a higher level where the interests of all stakeholders are balanced and secured.

Aditya Bhattacharya is a Partner and Kunal Kapoor is a Principal Associate at Lakshmikumaran & Sridharan.

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