India's National Biodiversity Authority (NBA) has granted over 335 approvals related to research, commercial exploitation, transfer of research results and Intellectual Property Rights (IPRs). But are these all legal?

None of the approvals granted by the NBA have followed a mandatory legal provision of the Biological Diversity Act, 2002 (Section 41 (2)), where it is prescribed that approvals are to be granted only after consultations with the relevant village-level Biodiversity Management Committees (BMCs). Official minutes of meetings have no record of this. With only about 2000 BMCs established in a country of 500,000PLUS villages, it also does not seem to be a remote possibility that such consultations were carried out!

In 2002, India enacted its Biological Diversity Act in response to its obligations to the international Convention on Biological Diversity (CBD). This legislation puts into place an institutional structure where approvals on access to India's biodiversity, its sustainable use and sharing of benefits arising out of that use are determined. The legislation also puts forth imperatives for conservation through mechanisms of protection of local knowledge, declaration of Heritage sites etc.

The National Biodiversity Authority (NBA) based in Chennai that has been entrusted with most of the decisive role, with some also prescribed for State level Biodiversity Boards and village level Biodiversity Management Committees (BMCs).

Over the last six and half years, foremost on the priority in the implementation of this law has been setting into place the mechanisms for grant of access to biological resources for research and commercial use, third party transfer of material and research as well as permissions for IPRs. (see here; here and here). A significant conflict of interest-issue has come to light in the grant of such permissions under the NBA. The NBA's Expert Committee for Evaluation of Applications for Access, Seeking Patent, Transfer of Research Results and Third Party Transfer of Bioresources handles approvals for access to or transfer of intellectual property rights (IPR). Many of the institutions or departments who have also sent in applications for IPR consideration are represented on the committee itself.

Examples of IPR approvals give by the expert committee:

CSIR received approval for a new product derived from the fruit of Mangroves Xylocarpus species), found in the Sundarbans, Andaman, Orissa coast, Goa, Maharashtra and Pichavaram (Tamilnadu). A former CSIR department head was on the committee when approval was given.

Syngenta received approval for transfer of imported vip3A gene from Baaccillus thuringiensis (Bt) to Cotton and these were multiplied and utilised for making various crosses. A Syngenta consultant was on the committee when approval was given.

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While this committee has been reconstituted three times since October 2005, it has had several meetings since then, with the last one being in January 2009. During this period there have been various applications from government-affiliated bodies such as National Bureau of Plant Genetic Resources (NBPGR), NRC on Medicinal and Aromatic Plants etc., all of which had a representative on the committee even while the recommendation for the approval was given.

For instance, in the 23 January 2009 meeting of the committee, a collaborative research project application for the export of guava fruit cultivars from the Germplasm Exchange Division of NBPGR was considered by the committee when and a senior scientist from NBPGR, Dr Pratibha Brahmi, was part of the decision making. An earlier Expert Committee with the tenure from August 2007 to February 2008 had only one meeting. With an emeritus scientist, Dr K V P R Tilak (former Head, Microbiology, of the Council for Scientific and Industrial Research) on the Committee, 126 requests by CSIR for Intellectual Property Rights (IPR) were considered and approved. In yet another instance, an application for third party transfer by the multi national seed giant, Syngenta Inc, was approved when a consultant of the company, Dr Dasgupta, was a member of the committee.

Nor do the minutes of the meetings available on the NBA website do not indicate that such members on the committee abstained from being part of the decisions.

In May 2009, over 50 organisations and individuals came together and wrote to the NBA and the nodal Ministry of Environment and Forests (MoEF) highlighting this major conflict of interest in the approvals process. The letter brings out the likely bias and lack of independent decision making with regards to this committee. The letter also raises objection to the fact that while Syngenta's consultant finds a place on the committee, there is no representation from local communities, farmers' groups, conservation organisations, political parties or civil society organizations. While concluding, the letter demands actions that range from revocation of the approvals to the reconstitution of the committee.

The composition of these committees is not prescribed in the Biological Diversity Act. The legislation only prescribes the composition of the National Biodiversity Authority, State Boards and BMCs. It allows of the NBA to set up specialised committees to achieve the legislation's objectives. It is the NBA which decides on the members. Currently, members are primarily from Government of India Departments (GoI). There are several committees set up related to specific tasks of documentation, designation of repositories, identification of endangered species and so on.

On 14 May 2009, the NBA responded, stating among other things that "the members of every committee of NBA are experts in their respective fields and are persons of high integrity and credibility. All recommendations made by these expert committees are within the parameters of law. All decisions on approvals made by the Authority are in National Interest and the same have not been compromised at any level." This is ironic as the evidence presented in the letter states a clear conflict of interest in the decisions. The letter calls the allegations as "hasty and defamatory" but does not systematically refute them.

Conflict of interest apart, the current approvals process is proceeding without other required bodies envisaged in the law for checks-and-balances. Take for example the approval granted to Kemin Industries Inc, Chennai to collect water samples from paddy fields from ten locations in Tamilnadu and Kerala. The company wanted the water samples for "screening microorganisms, particularly bacteria and fungi from paddy fields in South India having enzyme activity for fiber degradation." In January 2009, the NBA's expert committee met in Chennai and granted approval and also determined the percentage of the gross sales to be paid to the NBA to be 5 per cent. (This money goes to the NBA fund.) Kemin Industries Inc is a US-headquartered bioscience firm.

Why was it not felt necessary to wait for the BMCs to be set up, carry out the mandatory consultation process and only then grant the approval? This is where the difficulty is: The law mandates that BMCs are to be set up, but there is no clarity on who will set them up. Panchayats, for example, can set up their own BMCs. However the NBA and the state boards are of the view that setting up the BMCs is a facilitative function of the state boards, even the law itself does not explicitly say so.

In sum, it is a worrisome state of affairs. Way back in 1984-85, in an article in the State of India's Environment-1984-85: The Second Citizen's Report, by Dunu Roy had written: "Why is it that even though a host of data, statistics and experience is mustered to back arguments about the protection of the environment, those in authority pay no attention, and even when they do and policy is framed, it is never implemented in the way the policy is designed?" It is 25 years since that statement was made, and one feels the same despair while continuing to hope otherwise.