Accessing Plant Genetic Resources and Sharing the Benefits: Experiences in India

Recent negotiations under the Convention on Biological Diversity and the adoption of Nagoya Protocol on Access and Benefit Sharing have placed biodiversity-rich developing countries in a better position to gain from their bioresources and to enhance their capacity to provide more incentives for conservation and sustainable use of biodiversity. India responded to its national obligations by enacting the Biological Diversity Act, 2002. This legislation, and the Biological Diversity Rules, 2004 framed under it, provide for a three-tier legal framework for regulating access to bioresources (and associated traditional knowledge) while promoting fair and equitable sharing of the resulting benefits. Indian citizens are free to access bioresources for research purpose but they are required to intimate the concerned State Biodiversity Boards (SBBs) prior to obtaining them for commercial purpose. On the other hand, persons other than Indian citizens, as defined under section 3 (2), are essentially required to obtain prior approval of National Biodiversity Authority (NBA) for accessing India's bioresources whether for research use or for commercial purpose. To promote benefit sharing, NBA's prior approval is also required whenever an Indian researcher/institution intends to transfer bioresources or results of research on them to the latter category of users. Furthermore, no person shall apply for seeking IPR protection over any innovative process/product, based on the use of bioresources, occurring in India or obtained from India, without prior approval of NBA and signing the agreement on benefit sharing. Applying for protection of plant variety under PPV&FRA is, however, exempted from this provision. Approvals are granted by NBA on a case by case basis, keeping in view the recommendations of an Expert Committee and imposing terms for benefit sharing in monetary or non-monetary mode. Implementing the Act's provisions presents a challenge since it requires active partnership and effective coordination involving the NBA at the national level, SBBs at the state level and Biodiversity Management Committees at the local level. Also considering that India's national legislation combines the role of the regulator (enforcing authorized access to bioresources) with that of the promoter (promoting conservation and sustainable use of bioresources, benefit sharing provisions, and also creating public awareness), and the advisor (advising the central and state governments on some key issues and national concerns). India's experiences in implementing its national legislation may be of immense regional and international interest.