However, while undertaking such an exercise the department should take utmost care to ensure that the rights of local communities to traditional knowledge are not infringed upon in the process and they are made effective partners in benefit sharing.

The Bill was initially drafted by the Union ministry of environment and forests in consultation with the agriculture ministry, the Indian Council of Agricultural Research (ICAR) and other experts. Incidentally, the department of ISM&H was not consulted.

The draft Bill was introduced in the Lok Sabha on May 15, 2000. The Lok Sabha Speaker, in consultation with the Chairman of the Rajya Sabha, referred it to the Parliamentary Standing Committee on Science and Technology and Environment and Forests for review. It is only now that the department of ISM&H has been asked to send in its comments on the issue of restrictions imposed on domestic manufacturers of herbal medicines vis-a-vis easier access to bio-resources by foreign companies and research institutions.

Initially, the reason for introducing the Bill was to meet India's obligations towards the TRIPs agreement under the World Trade Organisation (WTO) for either enactment of a suitable patent law or a sui generis system for bio-resources or a combination of both. The other reason was to fulfil India's commitments towards the UN Convention on Biodiversity (UNCBD) on conservation and sustainable use of bio-resources. However, the present draft tilts more towards meeting the TRIPs obligations by giving easier access to foreign companies and research institutions.

Section 3 of the draft Bill stipulates that foreigners, foreign companies, foreign collaborations and institutions shall require only the permission of the National Biodiversity Authority (NBA) for obtaining bio-resources, whilst under Section 7, Indian citizens, companies and institutions will have access to bio-resources after approval from the State Biodiversity Board (SBB) concerned. Further, Section 24 states that the SBB will process the application and grant approval in consultation with local bodies. In not placing foreign and domestic enterprises on a level playing field, the intention of the draft Bill seems discriminatory.

Rather, it would have been better if the Bill had ensured the same set of procedures for both foreign and domestic enterprises and had made consent of local bodies or communities essential in both cases. It will be better if foreign citizens, companies and institutions are required to take the approval of local bodies and communities for use of bio-resources. Section 5 of the draft Bill, on the other hand, seeks to relax the provision for `collaborative research projects'. This move can lead to possible cases of bio-piracy. Section 2 (c) defines biological resources as "plants, animals and micro-organisms or parts thereof, their genetic materials and by-products with actual or potential use or value but does not include human genetic material". Further, sub-section (d) defines bio-survey and bio-utilisation as "survey or collection of species, sub-species, genes, components and extracts of biological resource for any purpose and includes characterisation, inventorisation and biossay."

The definition of bio-resources in the draft Bill is too wide. It does not categorise endangered species that need to be conserved and those that will be allowed to be accessed by foreigners. The definition places both the endangered species and those available in plenty on the same footing. This may lead to unwarranted bureaucratic intervention. The definition of `by-products' is also unclear as to whether extracts and processed materials used in the preparation of traditional herbal medicines are included.

The department of ISM&H should intervene and ensure that the use of species that are available in plenty is not subjected to excessive regulatory measures to the detriment of producers of traditional herbal medicines. Since the department recently launched a Vanaspati Van Scheme in collaboration with the Union ministries of agriculture, rural development and environment and forests for encouraging private cultivation of medicinal plants, it is in a better position to intervene.

Section 6 (i) of the draft provides that if a person applies for patent, the NBA's permission may be obtained after acceptance of the patent but before sealing of the patent by the authority concerned. The US patent system does not provide for notification of approval of patent for raising objections. This aspect, among others, also has to be kept in mind while reviewing the draft Bill to avoid any ambiguity.