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The Uttarakhand High Court has ordered Baba Ramdev and Acharya Balakrishna’s Divya pharmacy to share the profit generated by it with the local and indigenous communities under the objectives of Fair and Equitable Benefit Sharing of the Biodiversity Act, 2002. Justice Sudhanshu Dhulia upheld the order and mentioned that
“… this Court is of the opinion 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.”
Divya Pharmacy had initially put the fact forth that the communities that have some kind of “foreign element” ascribed to them would be given the share of profit maximization. The Sections 2 (g) and 3 of the Biodiversity Act have played the most significant role as Section 2(g) caters to the fact that the National Biodiversity Authority has the power to determine the FEBS to be paid, whereas, Section 3 mentions that the entities which have a foreign element ascribed with them require due permission from the National Biodiversity Authority for exercising activities related to bio-diversity.
It was submitted that since Divya Pharmacy was an Indian company, the profits would be only shared by the foreign entities that have been using the biological means and resources and would be entitled to the share of the profits under the umbrella of FEBS which are regulated under the provisions of Section 7.
The court had mentioned that “A simple textual interpretation as submitted by the petitioner would indeed show that the petitioner which is not a foreign entity is not liable to contribute to FEBS and the powers to impose FEBS lie only with the NBA. But then a plain and textual interpretation here defeats the very purpose, for which the law was enacted!”
It was observed that the legislations need to interpret in a manner that would be serving the public policy both socially and economically. In the Nagoya protocol which was one of the most important international conventions the court had ordered that SSB had regulatory powers to impose FEPB as regulatory fee. The court had ordered that Divya Pharmacy was bound to obey the terms and conditions of SSB, directing to share profits with indigenous communities. It also upheld the validity of Regulations 3-5 of the Biodiversity Regulations, 2014.
The court had thus observed that - “This Court holds that the Regulations 2, 3 and 4 of the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014 only clarifies and follows what is there in the Act and it is intra vires the Act.”
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