THE Uttarakhand High Court has dismissed a writ petition filed by Divya Pharmacy, founded by Baba Ramdev and his aide Acharya Balkrishna, challenging the powers of the Uttarakhand Biodiversity Board (UBB) to levy fees under the provisions of Fair and Equitable Benefit Sharing (FEBS) of the Biological Diversity Act, 2002.
Divya Pharmacy had argued in the High Cout that being “purely an Indian company”, it was not supposed to share any benefit under the 2002 Act. The UBB countered that such a distinction between foreign and domestic entities would defeat the very purpose of FESB.
Divya Pharmacy is a business undertaking of Divya Yog Mandir Trust set up in 1995. The company, according to its website, can process 50,000 kg of raw herbs and manufactured products worth Rs 2 crore a day. Its ‘vision’ seeks to, among other things, uplift “farmers from their present status of poverty and debt” and “facilitate the farmer full return of their produce”.
The landmark judgment, delivered on December 21 and made public this Monday, also held that biological resources were not just the property of the nation but also of indigenous and local communities who kept the traditional knowledge alive, and that both foreign and Indian entities must pay them to use biological resources for manufacturing medicinal, including Ayurvedic and Nutraceutical, products.
In 2002, Parliament enacted the Biological Diversity Act to conserve the country’s biological diversity and ensure fair and equitable sharing of the benefit arising out of its sustainable use. In 2014, the government notified a set of regulations on accessing biological resources and associated knowledge as well as sharing benefit. A company is required to share 0.5 per cent of its sales post taxes if its annual turnover is above Rs 3 crore.
In its judgment, the court acknowledged the traditional knowledge of the indigenous, mostly tribal communities of the high Himalayas, the traditional “pickers” of bio resources, as a “property right” and wondered if Parliament could recognise this valuable right and still fail to protect it from an Indian entity.
“Biological resources are definitely the property of a nation where they are geographically located, but these are also the property, in a manner of speaking, of the indigenous and local communities who have conserved it through centuries,” the judgment said.
Ruling that the UBB has the powers to demand FEBS fees from Divya Pharmacy, the HC, however, left open the question if the fees could be collected with retrospective effect. “We will appeal before a division bench to challenge the order and also raise the retrospective issue. The FEBS regulation was notified in November 2014 but the Uttarakhand board asked for the fees for the entire 2014-15,” said advocate R Parthasarathy who represented Divya Pharmacy.
Sangram Singh Rasaily, member secretary, UBB, said the board was confident that the HC would uphold its regulatory authority. “Already, 30 companies have signed agreements with the Board to pay fees under the FEBS. We gave them options to submit audited split accounts of turnover. Otherwise, we have to levy fees based on the annual figures,” he told The Indian Express.
Before the HC, the petitioner argued that only companies with any foreign ownership were required to take approval from the National Biodiversity Board for using bio resources and only such companies were liable to share a percentage of their annual turnover as benefit under FEBS.
The UBB pleaded such a distinction would defeat the objectives of the 2002 Act and its 2014 Regulations which stemmed from a long history of international commitments, such as the Rio de Janeiro Convention (1992), Johannesburg Declaration (2002) and Nagoya Protocol (2010).