29 December 2018

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Court rejects Ramdev plea swadeshi company not share profits with tribal local communities

Court rejects Ramdev plea swadeshi company not share profits with tribal local communities

Uttarakhand Biodiversity Board  had directed the pharmacy to share the amount with the farmers and local communities out of its profit as per the Biological Diversity Act.

Divya Pharmacy had filed a case against orders of the Uttarakhand’s State Biodiversity Board which had demanded that the company share Rs 20.4 million of its Rs 4.21-billion revenue for 2014-15 with farmers as part of a legal obligation under the Biodiversity Act.

 “Divya Yog Mandir”, is a Trust, registered under the Registration Act, 1908, and “Divya Pharmacy”, which is the sole petitioner before this Court is a business undertaking of this Trust. The Pharmacy manufactures Ayurvedic medicines and Nutraceutical products, at its manufacturing unit at Haridwar, Uttarakhand. The Trust and the Pharmacy were founded by Swami Ramdev and Acharya Balkrishna, according to the averments of the writ petition
 The petitioner is an Indian company, without any element of foreign participation, either in its share capital or management, and therefore has challenged the imposition of an amount by the SBB, under the head of “fair and equitable benefit sharing”, precisely on the ground that an Indian entity cannot be subjected to this burden.
 Before the court, Ramdev company had pleaded that the Biodiversity Act did not apply to Indian companies. It claimed that sharing of benefits from exploitation of country’s natural resources with local people was against the right to equality enshrined in Article 14 of the Constitution. It has also that the state board’s regulations levying the charges imposed ‘unreasonable restrictions over fundamental rights to livelihood and business enshrined in Article 19(1)(g) of the Constitution.
 Ramdev’s company Divya Pharmacy claimed that ‘Swadeshi’ companies should not share with farmers the huge profits they derive from selling India’s bio resources as their ‘herbal’ and ‘ayurvedic’ products.  But Uttarakhand high court rejected this plea of Baba Ramdev.  The High court has held that under the Biodiversity Act, 2002 Indian companies are as much liable to share their revenues as foreign entities when commercially exploiting natural resources that communities conserve.

 As per Section 7 of the Act of 2002, no person, who is a citizen of India or a body corporate, association or organization which is registered in India, can obtain any biological resources for commercial utilization, etc. without giving a prior intimation to the SBB concerned. Only local communities, vaids and hakims are exempted from this provision
 In its judgment court said that “Plain and textual interpretation” of the law that Ramdev’s Divya Pharmacy made to claim Indian companies were exempt from the law, “defeats the very purpose, for which the law was enacted.”

 Court said that SBB has got powers to demand Fair and Equitable Benefit Sharing from the petitioner, in view of its statutory function given under Section 7 read with Section 23 of the Act and the NBA has got powers to frame necessary regulations in view of Section 21 of the Act. The challenge of the petitioner to the validity of the Regulations fails.
 India is a party to the United Nations Convention on Biological Diversity signed at Rio on 5th of June 1992. Being a signatory to the International treaty, India was under an obligation to give effect to the provisions of the treaty.

 The focus of the Nagoya Protocol is on FEBS, and protection of indigenous and local communities, and the effort is that the indigenous and local communities must get their fair and equitable share of parting with their traditional knowledge and resources. India being a signatory to the Rio and the Nagoya Protocol, is bound to fulfill its international commitments and make
implementation of FEBS effective and strong
 In 2002 Indian Parliament, in recognition of its international commitments, enacted the Biological Diversity Act, 2002, which was published in the Gazette of India on 01.10.2003.
 The Biological Diversity Act, 2002 is a 2002 Act of the Parliament, with three basic objectives:
(A) Conservation of Biological Diversity.
(B) Sustainable use of its components.
(C) Fair and equitable sharing of the benefits arising out of the use of biological resources.

Indigenous and local communities, who either grow “biological resources”, or have a traditional knowledge of these resources, are the beneficiaries under the Act. In return for their parting with this traditional knowledge, certain benefits accrue to them as FEBS, and this is what FEBS is actually all about

The imposition of FEBS for the local and indigenous communities can also be appreciated by way of an illustration. In Uttarakhand, in fact in the entire Central Himalayan region, there is a “herb” or “biological resource”, found in the high mountains, called “Yarsagumba”. Its local name is “Keera Jadi”, which is said to be an effective remedy for various ailments. It is
also known as the “Himalayan Viagra”.

The local and the indigenous communities in Uttarakhand, who reside in the high Himalayas and are mainly tribals, are the traditional “pickers” of this biological resource. Through ages, this knowledge is preserved and passed on to the next generation. The knowledge as to when, and in which season to find the herb, its character, the distinct qualities, the smell, the colour, are all part of this traditional knowledge. This knowledge, may not strictly qualify as an intellectual property right of these communities, but nevertheless is a “property right”, now recognized for the first time by the 2002 Act, as FEBS

The bench of Justice Sudhanshu Dhulia held that it was a fact that biological resources constitute the main ingredient and raw materials in the manufacture of ayurvedic and nutraceutical products. It ordered the pharmacy to share Rs. 2 crore out of its Rs. 421-crore profit with the farmers of the raw product.

Uttarakhand Biodiversity Board = UBB
Fair and Equitable Benefit Sharing = FEBS
State Biodiversity Board = SBB

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