Abstract
National laws on biological resources have emerged in response to the international legal framework on biological diversity – the United Nations Convention on Biological Diversity (CBD), 1993. The Convention is the international law for conserving biodiversity, ensuring sustainable use of its components and sharing benefits arising out of the use of genetic resources. This body of law comprises principles, guidelines and protocols for national practice. Two key protocols have developed under the Convention through intergovernmental processes; one is the Cartagena Protocol on Biosafety in effect from 2003. The other is 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, which entered into force in October 2014. Both these represent different dimensions of the relationship between bioresources and modern biotechnology. Distinct legal and regulatory regimes are developing for each of them at the country level.
In India the national law in compliance with the Convention, namely, the Biological Diversity Act, 2002, began to be implemented after executive rules were issued by the central government in 2004. Rules for biosafety predate this Act and the Convention. This chapter traces the broad trends that have emerged in the decade (2004–2014) of implementation of the Act, with specific focus on the two aspects in the CBD protocols. Firstly, it focuses on the emphasis on access, which is of interest to the plant biotechnology industry. Secondly, it highlights how the issue of biosafety has been handled under the legal regime. This chapter elaborates how the due processes of law for biodiversity and the regime for biotechnology interface with each other in a megadiverse country.
Both co-coordinate the pan-India Campaign for Conservation and Community Control over Biodiversity.
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Notes
- 1.
In international law, a protocol is a legal instrument that is subordinate to a convention and is meant to take forward the convention’s objectives, while also either amending the convention or further detailing an aspect of it (as in the case of the Biosafety Protocol of the CBD).
- 2.
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. (UNEP 1992)
- 3.
In broad terms, the precautionary principle works on a premise that an action should not be taken if the consequences are uncertain and could be potentially dangerous.
- 4.
The South Asia Biosafety Program (SABP) is an international development programme conducted with the support of the US Agency for International Development (USAID).
- 5.
Cases against the MP SBB by companies such as Agro Solvent and Lilason Breweries fought before the Bhopal Bench of the NGT.
- 6.
List of State Biodiversity Boards as on 18 November 2015. http://nbaindia.org/link/241/34/1/SBBs.html
- 7.
NBA Office order dated 6 January 2015 on Reconstitution of Expert Committee on Access and Benefit Sharing for processing the applications received by NBA. http://nbaindia.org/uploaded/committee/OO_Re__EC_on_ABS.pdf
- 8.
Vide notification S.O. No. 2726(E) dated 26 October 2009 issued by MoEFCC.
- 9.
Prescribed proforma. http://nbaindia.org/uploaded/docs/Proforma-act2002.doc
- 10.
As per NBA data available on http://nbaindia.org/content/683/61/1/approvals.html as on 18 November 2015.
- 11.
The full list as of 18 November 2015 can be accessed from the NBA website: http://nbaindia.org/uploaded/Approvals/FormIII_11NOV15.pdf
- 12.
The full list as of 18 November 2015 can be accessed here: http://nbaindia.org/uploaded/Approvals/FormIII_11NOV15.pdf
- 13.
Application nos. 92 and 151: http://nbaindia.org/uploaded/Approvals/FormI_11NOV15.pdf
- 14.
Access application nos. 68, 69 and 70 for which agreements were signed between the company and NBA on 24 April 2007. http://nbaindia.org/uploaded/Approvals/Form-II_30.09.2015.pdf
- 15.
The International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) in Patancheru, in the Southern Indian state of Telangana, functions under the aegis of the CGIAR; it had developed transgenic groundnut events by introducing the coat protein gene of groundnut rosette assistor virus (GRAV cp) into groundnut varieties JL 24 and ICGS 44.
- 16.
Access application no. 97 by Dr. William Dar, Director General, ICRISAT, followed by an ABS Agreement signed with NBA on 8 October 2007 for a one-year period.
- 17.
Form IV application no. 376 by M/s Bayer Bioscience Pvt. Ltd., Hyderabad, India.
- 18.
The complete list of these Form IV approvals is available on the NBA website: http://nbaindia.org/uploaded/Approvals/FormIV_11NOV15.pdf
- 19.
- 20.
Article 2(a) of the BD Act.
- 21.
MP SBB Notice. http://www.mpsbb.info/ImportantNotice.aspx
- 22.
The text of the state government circular in Malayalam is available here: http://keralabiodiversity.org/images/news/circular_pbr.pdf
- 23.
Section 41(3): The biodiversity management committees may levy charges by way of collection fees from any person for accessing or collecting biological resource for commercial purposes from areas falling within its territorial jurisdiction.
- 24.
The full text of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization can be accessed at https://www.cbd.int/abs/about/
- 25.
Expert Committee to revise the existing ABS Agreement formats as on 18 November 2015 is here: http://nbaindia.org/uploaded/pdf/Oo_extension_Tenure_EC%20_revising_existing_Agreement_formats.pdf
- 26.
The list of closed applications is available on NBA website at http://nbaindia.org/text/22/Closed.html, as accessed on 18 November 2015.
- 27.
Letter No. FEE 77 ENV 2011 dated 21 January 2012 from Secretary, Government of Karnataka, Forest Ecology and Environment Department to the Member Secretary, RCGM, DBT, Government of India.
- 28.
The full text can be downloaded from the Ministry website as accessed on 18 November 2015: http://envfor.nic.in/sites/default/files/geac/notification.html
- 29.
Rule 4(1) of the GE Rules, 1989.
- 30.
Rule 4(2).
- 31.
The full list of rules and their texts can be downloaded from the DBT website: http://dbtbiosafety.nic.in/
- 32.
The text of the proposed law can be downloaded as on 18 November 2015 at: http://dbtindia.nic.in/Draft%20NBR%20Act_%2028may2008.pdf
- 33.
The full text of the original petition filed in 2005 can be accessed here: http://ddsindia.com/www/PDF/PIL_October27.pdf
- 34.
The Supreme Court of India has original jurisdiction to issue writs – a formal written order – for the protection of fundamental rights under Article 32 of the Constitution of India and under Article 139 to enforce other than fundamental rights.
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Bhutani, S., Kohli, K. (2017). Biodiversity and the Processes of Law. In: Abdulhameed, S., Pradeep, N., Sugathan, S. (eds) Bioresources and Bioprocess in Biotechnology. Springer, Singapore. https://doi.org/10.1007/978-981-10-3573-9_3
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