Critical Comment on Access and Benefit Sharing in India under Biological Diversity Act, 2002: In the Light of Nagoya Protocol on Access & Benefit Sharing

Abstract

In recent times the importance of biological/ genetic resources has increased in manifold because of their use technical and scientific researches leading to various kinds of invention which gets commercially exploited giving rise to revenue generation. This growing importance has posed a new threat to the biological/genetic resources in the form of unauthorised use of the same. This was realised when developing countries like India faced several cases of bio-piracy in the mid-90s. These bio-piracy cases surfaced when a peculiar phenomenon was observed in which developed countries like USA started misappropriating the bioresources and the associated traditional knowledge of the developing countries in creating inventions and claiming exclusive rights over them through Patent system, thereby stopping the rest of the world from using those resources and/or associated knowledge. This led to a situation where the country which provided the bioresource and/or the associated knowledge also known as the Provider country was at complete loss as even after contributing in the process of creation of the concerned invention by providing resources and knowledge, it could not secure a share of the benefit arising from commercial exploitation of the invention, in its account. And In order to address this new challenge an attempt was made at the international level to come up with a framework which will allow the countries to secure their right of sovereignty over their bio-resources which in turn will help them in preventing cases of bio-piracy. With this, came the Convention on Biological Diversity which brought the concept of state sovereignty over bioresources, their conservation and sustainable use and fair and equitable benefit sharing which further was discussed in details in its Nagoya Protocol on Access and Benefit Sharing. Authors in this paper will look in to this identified threat and would specially focus on the concept of ABS under Nagoya Protocol and under the Indian law i.e. Biological Diversity Act, 2002.