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Report No. 171

Report No. 171

Biodiversity Bill

The Department-related Parliamentary Standing Committee on Home Affairs on the Demands for Grants (1998-1999) of the Ministry of Law, Justice and Company Affairs desired, in their 45th Report, that the Law Commission of India should undertake study in the field of intellectual property rights, laws relating to trade and investment and other matters pertaining to World Trade Organization (WTO) regime. Para 28 which occurs under the heading 'General Recommendations' of the said Report (which was forwarded to the Law Commission by the Ministry of Law, Justice and Company Affairs, Department of Legal Affairs, through their letter dated 3/5.8.1998) reads as follows:-

"28. Under the World Trade Organisation regime, the country is entering into important international agreements which will have tremendous impact on our normal commercial activities. For example, laws relating to the intellectual property rights, laws relating to trade and investment, which were not very much in the focus until the recent past, have become priority items in the economic agenda of the country. In the light of this background, the Committee recommends that the Law Commission should undertake study in this field and come out with appropriate recommendations within a given time frame."

The Law Commission of India had written to the Ministry of Law, Justice and Company affairs. Department of Legal Affairs (vide letter F.No.G-20011/1/98-LC dated 21st September, 1998) expressing our readiness and willingness to undertake the study and make the appropriate recommendations, as desired by the Parliamentary Standing Committee, if appropriate terms of reference for such a study are indicated to it and the services of a full time technical expert in the field are provided as the subjects may involve policy matters as well.

It was also requested that the Law Commission of India may be apprised with the progress made up to date by the concerned Ministries/Departments to avoid duplication of the work already done. There has been no response to our letter. Indeed, the terms of reference given to the present Law Commission while constituting it, do also oblige, and empower, this commission to undertake the present study and make the accompanying recommendations.

In the above circumstances, the Commission thought it advisable not to wait any longer and to proceed with the work on its own after obtaining copies of the bills already prepared, if any, by the concerned Ministries on various topics and to express its views thereon along with its own suggestions for amendments, changes and modifications in the bills prepared by the concerned Ministries. Accordingly, the Law Commission had submitted its 167th Report on "The Patents (amendment) Bill, 1998", a copy of which was forwarded to the Hon'ble Minister of Industry also, inasmuch as the Industry Ministry had prepared the said Bill and the Hon'ble Minister of Industry was piloting the Bill in the Parliament.

The Law Commission of India has now taken up the study of the Bio-Diversity Bill understood to have been prepared by the Ministry of Environment and Forests and is recommending herewith several additions, alterations and amendments, which in our opinion, are called for in the draft Bill prepared by the said Ministry to better achieve the objectives of the legislation. The objectives of the proposed legislation have been adumbrated in the preamble to the Bill, as well as in the Preamble to the Convention on Biological Diversity (1992) and in the various articles of the said convention particularly in Articles 1, 3 and in paras (1) and (5) of Article 15. We have added a large number of new definitions.

We have also straightened the respective fields of jurisdiction between the Central Government and the National Authority. With a view to make the National Authority truly effective, we have made some changes in its composition and increased the powers of the National Authority substantially. The provisions relating to access to bio-diversity have been made more specific and several offences have been created to safeguard against unauthorised exploitation of bio-diversity and theft of traditional knowledge and knowledge of local communities. In short, the present exercise is aimed at formulating the structure and process so to ensure conservation and sustainable utilisation of biological diversity as well as fair and equitable sharing of its benefits.

One of the objects of our exercise has also been to entitle the local communities to the benefit-sharing where they are made to part with their knowledge. The changes made by us in the Bill speak for themselves and it is not necessary to set out each and every change in this part, particularly because they are highly technical in nature and do not bear abridgement or summarisation. While recommending the proposed legislation, we have kept in view the research work done in this behalf in several countries including Australia, Brazil, South Africa and Columbia. We found the Columbian law very helpful in this behalf.

The work done in Australia is particularly useful. The Law Commission has also taken into consideration the Report of the Expert Committee on Biodiversity Legislation constituted by the Ministry of Environment and Forests under the Chairmanship of Dr. M.S. Swaminathan as well as the vast amount of literature published by various expert bodies, non-governmental organisations and other experts in the field, both within the country and abroad. We may point out in particular that section 3 in our draft, which speaks of application of Uruguay Round Agreements corresponds to section 102 of Uruguay Round Agreements Act, 1994 of U.S.A.

It may be stated that the accompanying Bill has taken the Bill prepared by the Ministry of Environment as its basis, with a view to avoid repetition of work. We have suggested additions and alterations consistent with the Convention on Biological Diversity, 1992 and our national interests. The changes and additions made by us are not only extensive but seek to make the Bill more methodical and expansive to take care of most of our concerns in the field of biotechnology.

The Bill finally prepared by us is enclosed herewith as Annexure-A.

We recommend accordingly.

Mr. Justice B.P. Jeevan Reddy (Retd.)

Ms. Justice Leila Seth (Retd.)

Dr. N.M. Ghatate

Dr. Subhash C. Jain
Member Secretary

Dated: 17 January. 2000.

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