| |NOVEMBER 20209Consultants ReviewIndian entities.By this definition the following sit-uations arise which seriously impacts the Ease of Doing Business in India:(a) Any company that is listed on the Stock Exchange would be deemed to be a non-Indian entity because `non-Indian participation in its share capi-tal' may vary from day to day. This is a major disincentive for an Indian com-pany to grow or to appoint any consul-tant of foreign citizenship, including a person of Indian origin.(b) Any start-up may be a non-Indian entity if the funding / grant / award is received from a foreign entityThe reason this clause impacts the business is because the Act places an onus on such Indian companies with non-Indian status under Section 3(2) of the Act to obtain prior approval thereby majorly impact research and commercialization. It is recommended that MoEF & CC issue a notification to harmonize in-terpretation of S.3(2) with the Income Tax Act. Levying of benefit sharing (BS) fee on Indian entities:The SBBs have wrongly interpreted the law to levy the BS fee on Indians and there are a number of Writ Peti-tions pending before a number of High Courts inspite of the Act defining 'fair and equitable sharing of benefits' in S. 2(g) as `sharing of benefits as de-termined by the National Biodiversity Authority under section 21'. The Patanjali judgement in WP 3437/2016 does examine the legal provisions but goes on to deliver a very emotive judgement stirring up a murky situation further even when the law is `transparent'.Interestingly, the Act is silent on access of bioresources by persons who are neither researchers nor manufac-turers such as traders, leaving this re-sponsibility to the SBBs. But the SBBs have taken no action in implementing any system for monitoring the traders accessing bioresources from the local communities. But one over-enthusias-tic MP SBB has gone on to imprison a truck driver for carrying a local biore-source.It is recommended that the Minis-try of Environment (MoEF & CC) ex-amine these provisions in consultation with the Ministry of Law in all serious-ness. It is too sensitive a matter to be left to personality driven SBBs.Interpretation of Value Added Products (VAP)This is another case of transparency but no clarity. VAP is excluded from obligations under the Act by definition inSection 2(c) read with Section 2(p). S.2(c): `biological resources' means plants, animals and micro-organisms or parts thereof, their genetic mate-rial and by-products (excluding value added products) with actual or poten-tial use or value, but does not include human genetic material; S.2(p): `value added products' means products which may contain portions or extracts of plants and ani-mals in unrecognizable and physically inseparable form.However, despite the definition there is no clarity in its interpretation by the NBA and the SBBs who have indicated that because the VAP is ob-tained from a bioresource, therefore it is a bioresource. This is in disharmo-ny with the interpretation of other ad-ministrative bodies. For instance the Coconut Development Board defines coconut oil as VAP, but BDA disagrees.The ramifications of this mis-interpretation or lack of clarity are many. The VAP when declared as a bioresource requires prior approval from NBA :· by a non-Indian entity for access for research and commercialization,· by any entity for filing patents se-riously impacting IP protection,· by Indian entity to SBBs for com-mercialization,· by any entity for exports of ex-tracts and oils.Additional confusion is created VAP is to be interpreted vis a vis the NTAC list notified by the MoEF & CCunder S.40 of the Act.It is recommended that VAP be in-terpreted as a product obtained from a bioresource after it is subjected to hu-man, mechanical and / or technologi-cal intervention where such product is not capable of biological reproduction. CONCLUSION:One of the main functions of law is to bring stability in society. When the law itself is unstable and open to many interpretations, it can cause much harm to society at large and busines-sin particular. This is especially true where the law has criminal liabilities and has no provisions for retrospec-tive compliance even under extenuat-ing circumstances. After all ignorance of law is no excuse. Sunita K Sreedharan,CEO
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