The Maharashtra State Biodiversity Board (MSBB) and the Ministry of Environment and Forests (MoEF), respondents in the PIL filed by Ayush manufacturers in Maharashtra for seeking clarity whether Indian companies fall under the purview of access and benefit sharing (ABS) compliance, have moved the Supreme Court (SC) based on Bombay High Court (HC) directive that no coercive action can be taken against the manufacturers for enforcement of the ABS Compliance as per Biological Diversity (BD) Act, 2002.
The respondents had earlier asked the matter to be heard by National Green Tribunal (NGT) but was deferred by the Bombay HC citing constitutional reasons. Meanwhile, MSBB has been able to collect around Rs. 8 lakh as ABS royalty as per BD Act from the Ayush companies in Maharashtra.
Central India Drug Manufacturers Association (CIDMA) office bearers have also raised the objection on MSBB call for action on ABS non-compliance saying that the matter on ABS non-compliance is sub judice in the court of law and therefore warrants no action constitutionally.
MSBB has been issuing notices to manufacturers for access and benefit sharing non-compliance stating that MSBB has issued order to pay ABS in response to the concerned manufacturer’s reply that writ petition filed on behalf of manufacturers in the Bombay High Court is pending and therefore it is inappropriate to raise the demand notices for ABS.
As per the BD Act, manufacturers are accountable to share details of the source from where raw material has been procured in Form I and further submission of the same to MSBB.
The MSBB notice states that in this context, “it is to inform the concerned manufacturer that since you are not petitioners in the writ petition, you are therefore liable to pay ABS. It is requested to pay ABS and if your organization fails to pay ABS action will be initiated as per the Biological Diversity Act (BD Act), 2002”.
CIDMA had filed a writ petition in the Nagpur bench of Bombay HC for seeking clarity on whether Indian companies fall under its purview. Following this, the Bombay HC had in the past also sent notices to the respondents in the case namely National Biodiversity Authority, MSBB, MoEF and the state forest ministry and directed them not to take coercive action against the manufacturers.
Meanwhile, MSBB has also filed cases of non-compliance of ABS against ASU manufacturers at Judicial Magistrate First Class court following notices served for the recovery of access and benefit sharing under the Biodiversity Act (BD), 2002.
PIL filed by Vijay Sharma, secretary, CIDMA on behalf of CIDMA stated that ABS compliance is not applicable to Indian entities as there is no legislation in place to comply with. The inclusion of Indian companies to pay ABS through November 21, 2014 notification does not fulfill the validity or legal requirement of compliance under the BD Act. Only foreign companies and companies holding foreign equity can be held liable as per the BD Act.
MSBB had served around 350 notices in the past to the manufacturers in the state and received responses from only 20 manufacturers.
An official from MSBB stated that state biodiversity boards, NBA and central government are empowered to take legal action for the non-compliance to ABS.