Mains – 24th Nov 23

Biological Diversity Act 2002

Why in News?

• The Lok Sabha has passed the Biological Diversity (Amendment) Bill, 2021.

 

About BDA 2002

• Following person shall require previous approval of National Biodiversity Authority before obtaining any biological resource in India:
  • Any foreign citizen
  • Indian citizen but not resident as per Income Tax Act 1961
  • Body corporate or organisation not registered in India
  • Body corporate or organisation registered in India, but has non-Indian participation in its share capital
• Everyone has to obtain prior approval of NBA if they want to apply for IPR based on research or info on a biological resource obtained from India.
• Apart from Chairman, there are 3 ex-officio members:
  • One representing Min of Tribal Affairs
  • Two representing Min of EFCC.
• NBAàSBAàBMC
• BMC is mandated to prepare People’s Biodiversity Register.
• Biodiversity Heritage sites can be notified by SG in consultation with BMC.
• If biological resource is obtained from India and invention has been based on it, then applying for IPR requires prior approval of NBA.

 

Biological Diversity Amendment Bill passed in Lok Sabha

Background:

• In light of India’s commitments under Convention on Biological Diversity (CBD) of 1992, the Biological Diversity Act, 2002 was passed by the Parliament.
  • The CBD recognises sovereign rights over biological resources and permits countries to regulate access to these resources as per their national legislation.

 

• In December 2021, the Biological Diversity (Amendment) Bill, 2021 was introduced in Lok Sabha.
• The Bill seeks to amend the Biological Diversity Act, 2002 to–
  • encourage the Indian system of medicine and cultivation of wild medicinal plants,
  • facilitate fast-tracking of processes for research, patent application, and transfer of research results,
  • decriminalise offences, and
  • encourage foreign investment in the sector.

Key Provisions of the Biological Diversity (Amendment) Bill, 2021:

• Access to biological resources and associated knowledge–
  • The Biological Diversity Act requires prior approval or intimation to the regulatory authority based on the origin of the entity for obtaining biological resources occurring in India or associated knowledge.
  • The Bill amends the classification of entities, list of activities requiring intimation, and adds exemptions.
• Approval for Intellectual Property Rights (IPR)–
  • The Act specifies that approval of NBA is required before: applying for IPR involving biological resources obtained from India, or sealing of patent.
  • The Bill provides that approval will be required before the grant of IPR instead of before the application itself.
• Benefit Sharing–
  • Benefit sharing refers to requiring applicants to share monetary and non-monetary benefits with benefit claimers and local people.
  • Benefit claimers are conservers of biodiversity, or creators or holders of associated traditional knowledge.
  • Under the Act, NBA is required to determine terms of benefit sharing while granting approvals for various activities.
  • The Act makes benefit sharing provisions applicable to research, commercial utilisation, as well as bio-survey and bio-utilisation for certain entities.
  • The Bill removes its applicability from research, and bio-survey and bio-utilisation.
• Offences and Penalties–
  • Under the Act, offences include failing to take approval or providing prior intimation for various activities.
  • These offences are punishable with imprisonment of up to five years, or a fine, or both.
  • The Bill decriminalises the offences and makes offences punishable with a penalty between one lakh rupees and Rs 50 lakh.

 

Criticism of the Biological Diversity (Amendment) Bill, 2021:

• Reduced role of Local Bodies–
  • The Bill removes the direct role of local bodies and benefit claimers in determining mutually agreed terms.
  • The Act states that while granting approvals for various activities, NBA will determine terms for benefit sharing.
  • Such approval should be in accordance with the mutually agreed terms between the applicant, concerned local bodies, and benefit claimers.
  • The Bill amends this to require that approvals should be in accordance with mutually agreed terms between the applicant and the concerned BMC represented by NBA.
  • Thus, benefit claimers and local people will not be directly involved in setting the terms and conditions.
• Removal of Prior Informed Consent–
  • Further, there is no provision for a mechanism for obtaining prior informed consent of the local and indigenous communities.
  • This may be in contrast with the framework under Nagoya Protocol.
  • Nagoya Protocol requires a signatory country to ensure that prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources and traditional knowledge.
• Change of Adjudicating Authority–
  • The Bill changes the adjudicating authority from a Judge to a government official.
  • The penalty decisions will be based on an inquiry instead of a judgement after arguments in an open court.
  • The question is whether it is appropriate to confer such discretion to government officials.

 

Mob Lynching

Why in News?

• The SC has asked the Ministry of Home Affairs (MHA) and the governments of Maharashtra, Odisha, Rajasthan, Bihar, MP and Haryana an explanation for their “consistent failure” to act against lynching and mob violence committed on Muslims by cow vigilantes.

 

Mob Lynching

• It is when common people take the law into their own hands and in an attempt to achieve their distorted version of justice, violate the basic human rights of others by killing them and neglecting due process.
• It constitutes a grand failure on part of the State which must prevent the violation thereof and must further protect the fundamental rights (Article 14, 15 and 21) guaranteed to its citizens under the Constitution.
• In India, communal based violence, Cow-related mob lynching, suspicion of child lifting, theft cases, etc., are some of the types of mob lynching.

 

What has the Supreme Court Observed?

• It issued notice to the MHA and the police chiefs of the six States to explain the “alarming rise” in lynchings despite a SC judgment in Tehseen Poonawala versus Union of India in 2018.
• Vigilantism cannot become the “new normal” and no citizen can assault the human dignity of another.
• No right is higher in a secular, pluralistic and multiculturalist social order than the right to live with dignity and to be treated with humaneness.

 

Tehseen Poonawala Judgment

• The judgment held that it was the “sacrosanct duty” of the state to protect the lives of its citizens.
• It said spiraling incidents of lynching, and the gruesome visuals aired through social media have compelled the court to reflect on whether the populace has lost the values of tolerance to sustain a diverse culture.
• Bystander apathy, numbness of the mute spectators, the inertia of the law enforcing machinery and grandstanding of the incident by the perpetrators of the crimes (including social media), aggravates the entire problem.
• The authorities of the States have the “principal obligation” to see that vigilantism, be it cow vigilantism or any other, does not take place.
• The judgment warned that vigilantes usher in anarchy, chaos, disorder and eventually there is an emergence of a violent society. Hence, vigilantism cannot be given room to take shape.

7 Remedial Directions Given by the SC:

• Appointment of a designated nodal officer:Not below the rank of Superintendent of Police for taking measures to prevent prejudice-motivated crimes like mob violence and lynching.
• The immediate lodging of an FIR:If an incident of lynching or mob violence comes to the notice of the local police.
• Duty of the Station House Officer:Who has registered the FIR to inform the nodal officer in the district, who in turn should ensure that the families of the victims are spared of any further harassment.
• The investigation of the crime should be personally monitored: By the nodal officer and the investigation and chargesheet are filed within the stipulated period in law.
• There should be a scheme to compensate victims.
• Any failure to comply with the court’s directions:By a police or district administration officer would be considered as an act of deliberate negligence and/or misconduct.
• States should take disciplinary action:Against their officials if they did not did not prevent an incident of mob lynching, despite having prior knowledge of it.

Contempt Petition against the Centre and States:

• The Centre and States are facing a separate contempt petition in the SC for non-compliance with the Tehseen Poonawala judgment.
• In that case, the SC had directed the State governments to file a status report giving year wise data from 2018 of the –
  • Number of complaints received.
  • FIRs registered and chargesheets filed in lynching cases.
  • Steps/measures, preventive and remedial, taken by the State governments.
• The court directed the Centre to file an affidavit stating the outcome of a proposed meeting between the MHA and the department heads of the State governments about the compliance of the Tehseen Poonawala judgment.

 

Causes for Mob Lynching:

• Mob Psychology: People have less fear of being punished when they act in groups as it’s harder to identify real culprits. Further, there is dispersion of responsibility and guilt unlike in individual action.
• Intolerance: People are intolerant in accepting the acts of law and go on to punish the alleged person assuming the act to be immoral.
• Biases: Biases based on various identities like caste, class, religion, etc: mob lynching is a hate crime that is rising due to the biases or prejudices among various castes, classes of people, and religions.
• Rumours on social media: Misinformation and propagandas spread through platforms like Facebook, WhatsApp. E.g. recent rumours regarding child lifters have incited many impulsive and unplanned acts of violence across the country.
• Rise of Cow Vigilante: It is one of the crucial reasons that agitate the growing rise in mob lynching activities.
• Lack of Speedy Justice: Inefficient working of justice rendering authorities is the primary reason why people take law into their own hands and have no fear of the consequences.
• The Inefficiency of Police Administration: Police officers play an important role in protecting the life of the people and maintaining harmony among the people but due to their ineffective investigation procedure, this hate crime is rising day by day.

 

Impact

• Fuel Communalism and casteism
• Against Human Rights
• Subverts Rule of Law
• Economic Impact
• Fear Psychosis

 

Legal Provisions

• Section 223(a) of the Criminal Procedure Code, 1973 contains the provision for persons being charged for an offense jointly when they are accused of the same offence committed in the course of the same transaction which is applicable on two or more people.
• The Indian Penal Code (IPC), 1860 also has some proximate sections related to hate speech and hate crimes under Sections 153A (promoting enmity between different groups and doing acts prejudicial to maintenance of harmony), 153B (imputation, assertions prejudicial to national integration).
• Section 34 of the Indian Penal Code provides punishment for acts done by several persons in furtherance of common intention, where each person is equally liable for the act.
• Section 120B (criminal conspiracy), 147 (rioting), 148 (rioting armed with deadly weapons) and 143/149 (unlawful assembly) of Indian Penal Code are some other provisions related to offences against public tranquility.
• Punishment for lynching may come under Section 302 (murder), 304(culpable homicide not amounting to murder), 307 (attempt to murder) etc.