Parameswaran Prajeesh
India had produced the celebrated ABS ‘experimental model’ in the ‘pre-Biological Diversity Act era’ through the case of the plant Trichopus zeylanicus used by the Kani tribal community of the Western Ghats and spearheaded by a team of scientists from the Tropical Botanic Garden and Research Institute, Palode, Thiruvananthapuram, Kerala. Later it was found that this experiment had its own limitations due to the absence of supporting legal and policy instruments at that point of time. Post the Biological Diversity Act, 2002 (BD Act), there is little literature available on how the ABS system is evolving. According to the latest update of National Biodiversity Authority of India, out of the 5073 ABS applications received, 2432 were granted approval, 1595 are in process for executing agreements.
Bhutani and Kohli (2016) have made a good attempt to analyze the litigations under the Act. They observe that there have been many disputes which include criminal complaints against scientists, or seed companies challenging instances of biopiracy and questions around the very definitions that have been laid out in the law. They have classified the cases through 2004 to 2016 into 5 types. The first type includes cases of biopiracy that highlight violations, to those seeking biodiversity conservation and overall implementation of the Act, while contesting interpretations of definitions (such as biological resources and normally traded commodities) and disputing applicability of ABS requirements. The latter set of matters have a direct linkage to cases where it needs to be determined which are the sectors or uses of biological material that attracts provisions requiring users to take prior permissions and set into motion benefit sharing mechanism. The final two set of themes related to questioning the slow implementation of the law as well as invoking its jurisdiction for ecosystem conservation in specific instances.
The BD Act has also the provision of appeal against the decisions of National Biodiversity Authority or State Biodiversity Boards, initially through High Courts and later through National Green Tribunal (NGT). Further the NGT decisions can be reviewed and challenged at the Supreme Court.
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