Biological resources are property of Nation; Divya Pharmacy’s challenge to Fair and Equitable Benefit Sharing dismissed

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. stated that Fair and Equitable Benefit Sharing (FEBS) under the Biodiversity Act, 2002, was welfare legislation that was made to cater the needs of the local and indigenous communities.

Divya Pharmacy (of Swami Ramdev), an Ayurveda pharmacy has challenged an order which calls to share profits with local and indigenous communities as part of FEBS objectives of the Biodiversity Act, 2002. It was submitted that the Sections 2(g) and 3 of the Biodiversity Act states that only foreign entities using biological resources can be made to share profits/pay fees under the head of FEBS and only a foreign element requires permission from the National Biodiversity Authority before they undertake any activity using biological resources. Now the question that came before the Court was whether the State Biodiversity Board could impose FEBS obligations on the company as part of their regulatory powers over Indian companies and persons using such resources. The respondents argued that FEBS obligations create no distinction between a foreign or an Indian entity and the equitable sharing of benefits with the local and indigenous communities was one of its objectives

The Court considering India’s international commitments took a broad and purposive interpretation by interpreting the FEBS definition broadly so that both Indian and foreign entities were obligated to share benefits with the local and indigenous communities when a biological resource was exploited. It pressed upon the fact that when the plain reading defeats the very purpose of the Act then it is the duty of the Court to assign a proper meaning to it. The Court also placed its reliance on Nagoya Protocol which introduced the concept of FEBS wherein no distinction between foreign and national entities was made. Accordingly, the petitioner was bound to comply with the SBB’s direction to share profits with the local and indigenous communities and consequently, the petition was dismissed. [Divya Pharmacy v. Union of India, 2018 SCC OnLine Utt 1035, decided on 21-12-2018]

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