NLSIR's Sumukhi Subramanian in conversation with Kanchi Kohli* on India's biodiversity governance, indigenous rights, and enforcement challenges, exploring national policy shifts in light of COP16 commitments and the evolving landscape of environmental regulation.
Q. To start, could you share your personal journey and what sparked your interest in the area of biodiversity law and policy?
My introduction to the realm of biodiversity and its regulatory framework came a few years after I started working in one of the world’s biodiversity hotspots–the Western Ghats–for over two years. My background in social work and social sciences enabled me to understand and work around the intersections between community livelihoods, ecology, and natural resource law and policy.
However, I began understanding what ‘biodiversity’ actually means when I got the opportunity to work as the counterpart to the coordinator of the Technical and Policy Core Group (TPCG), which was set up to design India’s first National Biodiversity Strategy and Action Plan (NBSAP). This is one of India’s commitments to the Convention on Biological Diversity (CBD). Moreover, this period of between 2000-2003 was the time India was finalising the Biological Diversity Act, 2002. So, I guess I was at the right ‘learning’ place, at the right time. Being part of this process was a praxis classroom where I learnt from the most pioneering thinker and practitioners who led aspects of wild or domesticated biodiversity, traditional knowledge, law and policy, intersectional questions of gender, and other social constructs. Since then, my interest in various facets of the biodiversity regime in India only expanded through interactions with local communities who have been stewards of biodiversity and related knowledges. All this has collectively informed all the research, campaigns, and grassroots-level legal education work I had the opportunity to be part of.
I owe my fundamental understanding of biodiversity law to three people: Shalini Bhutani, with whom I was able to co-research the design and implementation of the regime for over a decade; Ashish Kothari–co-founder of Kalpavriksh and the coordinator of India’s first NBSAP process; and Dr. G.Sarat Babu, when he was at the Ministry of Environment, when both biodiversity and biosafety laws were being drafted and intensely debated.
Q. With your experience, what do you see as the most pressing challenges in implementing biodiversity policies at global, national, and local levels? How do these challenges differ across these contexts?
This is a complex question which requires engagement at both principle and practical levels. We could try and understand this in four ways.
First, the global regime related to biodiversity affirms “sovereign rights of nations over their biological resources”, making the national governments the nodal points and legal custodians of biodiversity. This has impacted how laws and policies related to biodiversity have been designed and controlled.
The second is the preoccupation of the biodiversity regime with access and benefit sharing (ABS). The earliest critiques of the CBD and India’s biodiversity law were directed against its aspects designed to regulate access to bioresources and related knowledge, rather than proactive measures to conserve biodiversity and related livelihoods. Over the years, ABS–as an idea and a regulatory regime–has been prioritised, with limited success by lawyers, scientists, corporate actors, and NGO representatives in the room.
This leads to the third point, which is the wicked problem of a legal regime regulating access and ensuring compliance, without a wider community or civic-space engagement with the biodiversity regime. Despite its widespread relevance, the word ‘biodiversity’ remains technocratic, and the implementation framework continues to be largely top-down. While some gains have been made at the international level around consent-based regulation or recognising community-based conservation, the application and upscaling is limited and desiring of much more emphasis.
The final point I would like to make concerns biodiversity-related knowledge, and the limits of its protection within intellectual property rights frameworks. Both government and non-government actors continue to deliberate and debate on whether and how these can be reconciled. This is why you may find that little progress has been made in the ABS framework regarding people’s knowledge or traditional knowledge related to biodiversity–both in India and in other countries.
Q. We see consistent attempts to drive change through legislation. However, this approach has had mixed success in translating legal frameworks into ground realities. How do you envision the relationship between environmental law and the people it impacts evolving over time? Specifically, how can law and legislation be balanced with stakeholder participation at the grassroots level to drive meaningful and sustainable change?
Environmental law has had a vexed relationship with ground realties. In our book Development of Environmental Laws in India, my dear friend and colleague Manju Menon and I address aspects related to the design of environmental laws, the drafting processes, and the range of enforcement challenges. Over the years, there have been instances where, on one hand, environmental laws have been weaponised against the poor (as in the case of forest and wildlife conservation), and on the other, have been seriously diluted to accommodate economic and developmental priorities (as has been the case with environment impact assessments, pollution control, and penalties or consequences in instances of non-compliance with the law).
These issues can be understood as the outcome of limited buy-in for environmental laws, both from the governments that designed them and from the people affected by non-compliance. Post-liberalisation, environmental laws were presented to many countries as a package deal, promising both development and environmental protection—a regulatory framework that continues to be relied upon by many, even as they articulate its limits.
Q. India was one of the first countries to enact biodiversity-related legislation with the Biological Diversity Act, 2002. Considering its pioneering role, are there lessons India can learn from other regulatory frameworks around the world, especially in terms of enforcement, community inclusion, or access and benefit-sharing? Conversely, are there aspects of India’s framework that you believe are particularly innovative or effective compared to global standards?
In addition to what was said in response to Question 2, India’s pioneering role in enacting a Biodiversity Act provides a lot to learn from. After signing up for the CBD, it took almost a decade to enact the Biodiversity Act and to undertake a very creative process of preparing the Draft NBSAP or the Final Technical Report on India’s NBSAP (See here and here). Both present important lessons in participatory planning and public policy.
The period between 2010-2014 presents some interesting lessons in how the National Biodiversity Authority (NBA) and State Biodiversity Boards (SBBs) negotiated powers and responsibilities on regulating access and creating conservation opportunities. This period, along with the period that followed, present important examples of how SBBs and specific Biodiversity Management Committees (BMCs) worked together to try and expand the scope of ABS in India–even as specific sectors wanted exemptions and subsidies. The earliest litigation around the biodiversity act also emerges during this period.
The first-mover advantage also presents challenges, as there are hurdles to address for which precedents may not yet exist—some of which still surround the Biodiversity Act. For instance, what grievance redressal mechanisms exist if a village-level BMC wishes to challenge the decision or action of another BMC? Is there a system in place to monitor the non-compliance of agreements signed with SBBs or the NBA? What are the barriers to creating community or public buy-in for biodiversity discourse, and why has this law not gained as much traction as those related to forests, land, or even water? These questions are critical as we move into the next phase of the biodiversity regime, both globally and nationally.
Q. India has made significant international commitments to biodiversity protection and environmental sustainability. However, these often exist alongside other international obligations, such as those related to trade, economic growth, and development. There has been discussion regarding these commitments frequently coming into conflict, with environmental commitments often taking a backseat. Do you agree? Is there potential for harmonisation of regimes within the international realm?
There is always potential for harmonisation at any level where policies, projects, and programs are designed and implemented. The deliberation needs to be around where the priorities tilt. It is important to understand the contemporary history and context of the Rio Declaration, the idea of sustainable development, and the three big international treaties–UNFCCC, UNCCD, and UNCBD–that emerged from it. One needs to read these along with several other developments around intellectual property (WIPO)- and trade and tariffs (WTO)-related treaties that predated Rio and continued to influence design and prioritisation at the global level–which in turn also affects national actions.
Present geopolitics adds new dimensions and challenges to the harmonisation question–whether it is about energy choices, common but differentiated responsibilities when it comes to development pathways, or demands for reparations and debt relief. India’s position and reporting must be reviewed through different pathways–including economic opportunism, demanding action from the Global North, and defining limits to community-driven approaches for biodiversity conservation.
Q. While India’s stance in the international realm–especially in light of recent statements at COP16–appears to be heavily in favour of strong biodiversity conservation policies, the 2023 amendments to the Biological Diversity Act (particularly, the concern that vague amendments have broadened the scope of exemptions to benefit sharing) have been rather contentious for seemingly heading in a different direction. Some suggest that the focus of the amendments has shifted towards economic needs over environmental protection, moving away from the goals of the 2002 Act. Would you agree with this assessment?
This question is as important for India as it is for many other countries around the world. There has always been a gap between international rhetoric and domestic action, and this is not limited to the CBD. The most recent amendments to the Biodiversity Act are a result of both economic opportunism and serious limitations to the public buy-in of the law itself. These amendments did not spark the same level of opposition or debate as we have seen with farmers’ laws, or even forest rights.
For those of us interested in this law, this is definitely an important time to reflect on its history and consider why there is a gap between grassroots concerns and what is offered by national and international regimes. A simple thought: the Nagoya Protocol talks about Free, Prior and Informed Consent (FPIC) for ABS. Does India’s Biodiversity Act offer this within its framework? If not, why?
Q. India’s international position strongly favours the “full and effective participation” of indigenous communities, based on their informed consent on the use of traditional knowledge. In Can Benefits Be Shared?, you extensively discuss certain challenges to the implementation of ABS in India. You comment on the narrow scope of the ABS framework, and discuss how it leaves “...the resources themselves, local rights and relationships over them, the documented biodiversity registers and the de facto biodiversity keepers on the ground…” bereft of legal protection. Considering both the international discourse and India’s current legal framework, how can local communities and indigenous peoples be more practically and effectively empowered to participate in decision-making related to biodiversity and benefit-sharing mechanisms? For example, South American countries like Ecuador and Bolivia have incorporated concepts like Buen Vivir into their constitutions, recognising the rights of nature and embedding indigenous rights and participation in environmental governance. Do you think India could benefit from a similar constitutional approach to strengthen indigenous rights and their role in environmental conservation?
There are many layers to unpack in this question–which can be understood through the three lenses of decentralisation, indigeneity, and procedural justice.
The first centres around how much a government is committed to decentralising decision-making around natural resources and knowledge. While 73rd and 74th amendment to India’s Constitution and some legal frameworks like the Forest Rights Act, 20o6 are designed to deliver decentralisation, the Biodiversity Act in itself has a limited scope for local governance. There have been experiments that have expanded possibilities through the convergence of different legal regimes, to create government and livelihood generation outcomes. However, these are yet to be upscaled.
The second is how indigeneity is framed in different contexts and how it is associated with how post-colonial governance systems have evolved. The Indian Government does not officially recognise the concept of “indigenous peoples”, while several like Australia or South Africa do. As a result the term ‘indigenous’ has been referred to broadly either by groups that assert themselves as first citizens or when connections are being made to international legal regimes. The socio-political articulation is through the term ‘Adivasi’–which refers to the original inhabitants of the land and is linked with political movement that began in the 1920-1930s to resist British rule and exploitation. This movement continues today, with Adivasis asserting their rights and challenge government policies that affect their lands and communities. (Source: Kohli, K. 2013. From Congruity to Contract: The Regulatory Design for Knowledge Protection under India’s Biodiversity Law, Intellectual Property Forum, Issue 94, September 2013).
India has also voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on the condition that post-independence, all Indians are Indigenous. As a result, this leads to understanding how the indigeneity question can be best tackled within India’s biodiversity regime. You will see that the 2002 Biodiversity Act referred to knowledge as ‘people’s knowledge’, and the 2023 Amendment introduces ‘traditional knowledge’ within the framework. You will also see that many other laws also rely on the 5th and 6th Schedule of India’s constitution to lay out the rights and privileges of tribal communities to govern and manage natural resources and territories What this means that the process of operationalising free prior informed consent (FPIC) as per the CBD’s Nagoya Protocol that shapes the international discourse on ABS, needs to be substantially and procedurally clarified for the Indian context.
Both of these aspects—along with earlier discussions about the top-down nature of the Biodiversity Act’s framework and its embeddedness within IP systems—also have a direct impact on how biodiversity registers are understood and governed. There has been rich global discussion around the distinction between documentation and databasing, and what each is designed to achieve. This is an area worth debating with communities, classrooms, governments, and corporate boardrooms.
Q. The decriminalisation of offences under the Act is a major shift. How might this affect compliance and enforcement, and what mechanisms do you see as effective in ensuring responsible access to biological resources and the enforcement of environmental regulation in general–particularly considering the persisting tension between the competing impulses to encourage R&D, while staying true to biodiversity conservation goals?
The shift is significant. It needs to be understood alongside similar changes being pushed in other pollution and wildlife related environment laws. While the discussion around the efficacy of criminal and civil liability to deliver environmental compliance has been in existence for decades, the verdict on what will shape a pro-environment intent is still not resolved.
What is interesting is that the reading-down of criminal liability in the biodiversity regime comes at a time when there is an international push to consider environmental irregularities as ‘crimes against nature’ and as human rights abuses. In the long term, biodiversity conservation needs to be a governance mandate, corporate ethic, and a political commitment–and that can truly shape what liability framework will be effective.
*Kanchi Kohli is a researcher, educator and communicator of environmental law and policy. Her work areas cover the fields of environment, forest and biodiversity regulation and governance in India. Her policy research and practice explores the links and gaps between law, development, sustainability, and environmental justice.
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