Uttarakhand HC did right to reject plea by Ramdev's firm against benefit-sharing; India's custodians of traditional knowledge must be protected

On 27 December, the Uttarakhand High Court directed yoga guru Ramdev’s company Divya Pharmacy to share the profits from its sale of herbal products, manufactured from the traditional knowledge of India’s indigenous communities, with local residents. The court rejected the firm’s earlier writ petition challenging the authority of the Uttarakhand Biodiversity Board to levy fees under the fair and equitable benefit sharing provisions of the Biological Diversity Act, 2002. Divya Pharmacy had contented that being an “Indian company”, it was exempt from the requirement to share benefits with the indigenous communities, but the board argued that drawing such a distinction with a foreign firm would undermine the objective of the legislation. To analyse the contentions raised by the company as well as the board, it is first important to understand the purpose behind the legislation: India enacted the Biological Diversity Act in 2002 to fulfil its international obligations under the Convention on Biological Diversity, 1993. The objectives of the convention include “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilisation of genetic resources”. By ensuring that there are fair and equitable benefit-sharing provisions, the convention also aims to prevent biopiracy, which is the “ practice of commercially exploiting naturally occurring biochemical or genetic material, especially by obtaining patents that restrict its future use, while failing to pay fair compensation to the community from which it originates”. It is pertinent to note that India has faced many such cases of biopiracy in the past, where companies in developed countries, including the United States, attempted to patent neem and basmati rice, which have been used in India for ages. Making a distinction between benefit-sharing requirements of an Indian company and those of a foreign firm would lead to a dangerous precedent, where even Indian companies can commercially exploit the knowledge of traditional communities without acknowledging their contribution. It is the local communities that preserve and keep alive traditional knowledge by ensuring that they are passed on through generations. For many communities, such knowledge is even sacred and to be used only in specific ways. [caption id=“attachment_4446443” align=“alignleft” width=“380”] Representational image. Reuters[/caption] While the Uttarakhand High Court rejected the contention of Divya Pharmacy and rightfully recognised that traditional knowledge is owned by both the nation and “the indigenous and local communities that have conserved it through centuries”, there is a reasonable apprehension that in future, Indian companies can challenge the provisions of the Biodiversity Act. A relook at the provisions of the Act is, therefore, required. To prevent Indian companies from escaping the fair and equitable benefit-sharing requirement, amendments to sections 3 and 7 of the Act is recommended. Section 3 of the Act requires that to obtain biological resources for research or commercial use, entities — including non-citizens or non-residents of India — need to seek the approval of the National Biodiversity Authority; this includes both foreign companies and Indian firms that have a foreign management or shareholding. Section 7 of the Act provides that Indian citizens or companies cannot obtain any biological resource for research or commercial use unless they inform the relevant State Biodiversity Board in advance. Since Section 7 requires only “prior intimation” to and not “prior approval” from the board, the threshold to allow the use of biological resources is much lower for Indian companies. It may be noted that like multinational companies, Indian companies, too, make incredible commercial profits from the sale of herbal products. Ramdev’s firm Patanjali Ayurved reportedly earned Rs 10,561 crore from sales in 2017. The distinction between Indian companies and foreign companies, therefore, no longer serves much purpose. Going by the figures, it is not just multinational companies or developed countries that have the potential to commercially exploit traditional knowledge. Therefore, Section 7 of the Act should also be modeled on the lines of Section 3, and instead of mere “prior intimation” to the board, Indian companies should also be required to take their approval while obtaining and using biological resources. Alternatively, Section 3 can be made applicable to all entities, extending from foreign companies to Indian firms and citizens. As already highlighted, companies cannot be allowed to escape their responsibility to share the benefits accrued from the use of traditional knowledge merely because they are based in India. The decision of the Uttarakhand High Court is a victory for the rights of traditional communities. However, it is not adequate as it can be challenged in the Supreme Court. Therefore, a change in legislation would be a more concrete solution to the problem of companies shirking their responsibility towards the original owners of traditional knowledge. Allowing companies to keep all profits from the use of such traditional knowledge would also defeat the objective of the Convention on Biological Diversity and India’s obligations under it. Given India’s rich biodiversity, it is imperative that appropriate steps are taken to safeguard the nation’s custodians of traditional knowledge. It is only when the rights of the traditional communities and their knowledge are respected that the communities will also be able to trust people outside their society and share with them their well-preserved sacred knowledge.