Against the backdrop of non-compliance to access and benefit sharing (ABS) notification dated November 2014, a writ petition filed by association of manufacturers for seeking clarity on whether Indian companies fall under its purview will come up for hearing on April 15, 2016 at Nagpur bench of Bombay High Court.
Central India Ayush Drug Manufacturers Association (CIDMA) had filed a petition in the Nagpur bench of Bombay High Court for seeking clarity on the matter following notices issued by Maharashtra State Biodiversity Board (MSBB) for the recovery of ABS under the Biodiversity Act (BD), 2002.
Following this, the court had also sent notices to the respondents in the case namely National Biodiversity Authority (NBA), MSBB, ministry of environment and forests (MOEF) and the state forest ministry and directed them not to take coercive action against the manufacturers.
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. The compliance to ABS notified on November 21, 2014 is therefore irrational and unacceptable. 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.
Manufacturers also pinpointed that the fees charged as part of ABS in Form I meant to share details of the bio-resource sourced for commercial utilisation is too high for small manufacturers. There are 2000 manufacturers in the state, out of which only 5 per cent big manufacturers can afford to pay the fees of Rs. 5000.
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.
While MSBB has maintained that it has the powers to impose fine to the tune of Rs. 2 lakhs or even more on the manufacturers as per the provisions of the BD Act, manufacturers say that the board has failed in constituting Biodiversity Management Committees (BMCs) to further the implementation of the BD Act for sustainable use of bio-resources. The manufactures have been harassed in the name of compliance without being explained the rational behind it and heard judiciously.
As per the MOEF notification on ABS, when the biological resources are accessed for commercial utilisation or the bio-survey and bio-utilisation leads to commercial utilisation, the applicant shall have the option to pay the benefit sharing ranging from 0.1 to 0.5 per cent at the following graded percentages of the annual gross ex-factory sale of the product which shall be worked out based on the annual gross ex-factory sale minus government taxes.