India: Biological resources are property of the Nation; Divya Pharmacy’s challenge to Fair and Equitable Benefit Sharing dismissed

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India: Biological resources are property of the Nation; Divya Pharmacy’s challenge to Fair and Equitable Benefit Sharing dismissed

Source:www.highcourtofuttarakhand.gov.in

On December 21, 2018, a Single Judge Bench of the Uttarakhand High Court ruled that Divya Pharmacy, an Indian company which was engaged in the manufacturing of Ayurvedic medicines, would be subjected to the fair equitable benefit sharing obligations under the Biological Diversity Act, 2002, (hereinafter referred to as “the Act”) and thereby, the said company was required to make payment to the Uttarakhand State Biodiversity Board (hereinafter referred to as the ‘UBB’) as per the rates laid down in the Access and Benefit Sharing Guidelines, 2014 .^[1]

Brief Facts:

• “Divya Yog Mandir”, is a Trust, registered under the Registration Act, 1908, and “Divya Pharmacy” (hereinafter referred to as ‘the Appellant’) is a business undertaking of this Trust. The Appellant 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.
• “Biological Resources” constituted the main ingredient and raw materials in the manufacturing of Ayurvedic and Nutraceutical products. Appellant was aggrieved by the demand raised by Uttarakhand Biodiversity Board (from hereinafter referred to as the ‘UBB’), under the head “Fair and Equitable Benefit Sharing” (FEBS), as provided under the Biological Diversity Act, 2002, and the 2014 Regulations framed by National Biodiversity Authority.

Issues Raised:

1. Whether the State Biodiversity Board could impose ‘Fair and Equitable Benefit Sharing’ as one of its regulatory functions on the Indian entities using Biological Resources?

Appellant’s Contentions:

• The Appellant in the instant case argued that the UBB could not raise a demand, under the head of “Fair and Equitable Benefit Sharing” (FEBS), as the Board neither had the powers nor the jurisdiction to do that.
• It was contended that the Appellant was not liable to pay any amount or make any kind of contribution under the head of “FEBS” as SBB had no power to impose FEBS in respect of persons referred under Section 7 of the Act.
• Appellant contended that as per Section 19 and 20 of the Act, a prior approval was required from National Biodiversity Authority (hereinafter referred to as the ‘NBA’) by any person defined under Section 3 (2) of the Act, and such persons who were not the citizens of India, or even though a citizen of India, they were still non-resident Indian, and if it was a body corporate, association or organization, it was not incorporated or registered in India, or if incorporated or registered in India under any law for the time being in force, it had a non-Indian participation in its share capital or management. For an Indian entity such as the Appellant, the provision was provided under Section 7 of the Act, which provided that the “prior intimation” was to be given to the State Biodiversity Board (SBB). It was contented that the requirement of FEBS would arise only if the approval was required under Section 19 and 20 of the Act.
• In order to substantiate its case, the Appellant relied in the case of
  State of Jharkhand v. and another v. Govind Singh^[2], wherein the Court held that “where the “language” is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here.”

Respondents’ Contentions

• The Union of India were the Respondents in this case.
• It was contended that the FEBS was one of the three major objectives sought to be achieved by the Act in accordance with the international treaties and conventions to which India is a signatory. It was submitted that with regard to FEBS, there was no distinction between a “foreign entity” and an “Indian entity”, otherwise the very basis of the International treaties and conventions would be defeated.

• It was alleged that the regulation and control of the Indian entity was given to SBB under the Act and SBB had the authority to impose FEBS as one of its regulatory functions under Section 23 of the Act.
• The Respondent contended while explaining the functions of SBB under Section 23 of the Act that sub-section (b) of Section 23 has to be read with Section 7 of the Act and reading of both the provisions would mean that although an Indian entity has to give
  “prior information” only to SBB, SBB has the powers to “regulate by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians”.
  
• Respondents contended that the appeal before the National Green Tribunal lies under Section 52A of the Act against any order passed by NBA or SBB regarding determination of benefit sharing which itself depicted that the SBB had powers to impose FEBS on Indian entities.
• It was alleged that reading Section 32 of the Act would show that the SBB had got an important role to play in the field of FEBS.
• It was contended that it was perused from the Act that it starts from the words “in this Act, unless the context otherwise requires”, which meant that the definitions of the words provided under Section 2 of the Act had to be given such interpretation as applied under normal circumstances but if the application of the definition loses its purpose, the context would require a different examination.
• It relied on Nagoya Protocol of 2010 and said that in the said protocol emphasis was put on “Fair and Equitable benefit sharing” and the importance of indigenous and local communities in this regard.

Court’s Decision:

• The Court specified that as Section 2 of the Act starts with “unless the context otherwise requires”, it is not mandatory that one should always mechanically attribute an expression as assigned in the definition clause. The Court relied in the case of
  Venguard Fire and General Insurance Co. Ltd., Madras v. Fraser & Ross.
  ^[3]
• The Court had placed reliance on the international treaties and conventions and stated that even the conventions and treaties had recognized the importance of biological diversity for evolution and for maintaining life sustaining systems and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components. It was stated that the Biodiversity Act, 2002 was drafted taking into consideration the international commitments made by India vide treaties and conventions.
• The Court had also placed its reliance on international convention Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the Convention on Biological Diversity and one of the main objectives of the conservation of biological diversity is fair and equitable sharing of genetic material, including the traditional knowledge associated with the genetic resources and the benefits arising out from their use. It was clarified by the Court that as per the protocol the beneficiaries of the FEBS are the “local and indigenous communities”. It was laid down that the Parties shall endeavor to support the development by indigenous and local communities, including women within these communities.
• The Court relied in the cases of
  Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner and others^[4] , Shailesh Dhairyawan v. Mohan Balkrishna Lulla^[5], Government (NCT of Delhi) v. Union of India and another^[6], and placed emphasis on the principle of purposive interpretation of law.
• The Court held that the State Biodiversity Board has powers and duties to collect FEBS under the regulatory power it has under Section 7 read with Section 23 (b) of the Act and the NBA has got powers to frame necessary regulations in view of Section 21 of the Act.

_[1]Available athttp://nbaindia.org/uploaded/pdf/Gazette_Notification_of_ABS_Guidlines.pdf

(Last visited at Jan 4, 2019).

_[2](2005) 10 SCC 437

_[3]AIR 1960 SC 971

_[4](2009) 10 SCC 123

_[5] (2016) 3 SCC 619

_[6](2018) 8 SCC 501

 

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Fraud Through Google Search ADS – Alleges Amul

Source: www.amul.com

As per reports, India’s biggest dairy owner Gujarat Co-operative Milk Marketing Federation (GCMMF) which is in the business of marketing of milk and milk products under the brand name ‘Amul’ was struck with a state of awe when it found that a lot of innocent people across India were being tricked on account of paid fake advertisements on fake Amul websites carried vide Google search engine.

As per the report, the dairy player had themselves stated that a series of fake B2B Campaign were initiated with regard to Amul Parlors and Distributors who had started operating fake websites using Google Search ads since September 2018 with the malafide intent to exploit individuals across India with fake promises of business opportunities with Amul. It had been informed by them that those miscreants had been running paid advertisements on google search engines against keywords like Amul Franchisee, Amul Parlor and Amul Distributor.
It was informed by various reports that the individual upon opening the fake website was required to first fill up forms and consequently would receive calls from unknown numbers for payment/transfer of the registration fees ranging from Rs.25,000 to Rs.5,00,000 via NEFT in various accounts. After the money was transferred, these miscreants would disconnect all form of communication with the concerned individual.

Aggrieved thereby, Amul had issued a legal notice against both Google India Pvt Ltd and internet domain registrar Godaddy.com (earning revenues through subscriptions) and accused them for misusing their platform for the purpose of earning revenue by running fake campaigns and advertisements thereby fooling several innocent people since September last year.

As per the report, it was stated by Amul that they had even approached Google to take steps to prevent running of such sham advertisements by miscreants and stop them from using ‘Amul’ keyword-based ads on the google search engine and thwarting people from getting duped. An email querying about the said massacre had also been sent to Google and requested to run advertisements to educate customers about the fake campaigns. Pursuant to that, Amul had also informed the cyber cell of Gujrat Police and website domain portals from which the website domains were being purchased regarding the fake campaigns. It was stated by them that the Google in order to earn revenue was running these click-based advertisements on their page and promotion-based services on its platform without any background check of the miscreants.

It would be thought-provoking to see what the next step would be taken by Google on account of legal notice being served upon it in the case of fraud as alleged by Amul.

 

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Is Cyber Crime Spreading Like a Spider Web in India?

The number of people having access to the internet across the globe is increasing at an alarming rate. People are getting dependent on the internet in order to access everything by sitting at just one place. As per the statista report, it has been provided that in 2017, India had 331.77 million internet users. This figure is projected to grow to 511.89 million internet users in 2022.^[1] Despite the untapped potential, India already is the second-largest online market worldwide. Although the advancement of technology and internet has brought with it all related benefits but has also led to massive increase in the cyber-crime affecting people globally.

Cybercrime, also known as ‘electronic crime’, is a crime where the computer, networked device or a network is used as an object or tool to commit any crime. The crime involves a wide range of malicious activities including Cyber extortion, Identity theft, Credit card frauds, hacking the personal data from the computer, phishing, illegal downloading, Industrial espionage. Some of the on-going problems are cyberbullying, extortion, distributing child pornography or organizing terrorist attacks. Software piracy is also a form of cyber-crime wherein it is not necessary that the cyber-criminal should conduct the same through online-portal.

Cyber-attack on the rise

As per the reports, In India, Technology, Media & Telecommunication (TMT) and Financial Services (FS) sectors are the most affected sectors by the cyber-crime. As per study of ASSOCHAM-NEC, there has been 457% rise in cybercrime incidents under the Information Technology (IT) Act, 2000 from the year 2011 to 2016 in India.

• As per the reports, in 2010, India was adversely affected by the computer worm Stuxnet, on account of which 10,000 infected Indian computers at the time, 15 were located at critical infrastructure facilities. It included the Gujarat and Haryana electricity boards and an offshore oil rig of state-owned petroleum explorer ONGC.
• A terminal at Jawaharlal Nehru Port Trust which is India’s largest container port was aggressively affected by the cyber-attack. The attack was mounted through a malware called Petya.
• Another aspect is increasing trend of cyber criminals gaining access to corporate email addresses. In the year 2015, an oil and gas company was hacked whereby the cyber criminals duplicated the email ids of the senior officials in order to ploy one of the clients to transfer the amount to the hacker’s account leading to losses to the tune of a few hundred crores.
• On September 20, 2007, the official website of the Government of Maharashtra was hacked and according to sources, the hackers belonged from Washington. IT experts said that the hackers had identified themselves as “Hackers Cool Al-Jazeera” and claimed that they were based in Saudi Arabia.
• In 2018, Vodafone was directed by the court to pay Rs.4.5lakhs to a Mulund resident who fell victim to cybercrime in 2013 after a reproduction of his SIM card was issued to other individual and two transactions amounting to Rs4.5 lakh was initiated from his account without his knowledge.
• In August 2018, two men were arrested in Mumbai under SIM Swap Fraud. These fraudsters were getting the details of people and were later blocking their SIM Cards with the help of fake documents post which they were carrying out transactions through online banking.
• The Cosmos Bank was destructively hit by cyber-attack in the year 2018, where the hackers hacked into the ATM server of the bank and stole details of many visa and rupee debit cards owners.

Analysis of all of the above would show that with each passing year the cyber-crime is growing by leaps and bounds.

Precautionary measures undertaken by the Government

With the increase in the cyber-crimes, The Information Technology Act, 2000 was enacted with prime objective to create an enabling environment for commercial use of I.T and The Indian Penal Code, 1860 has also been amended to take into its purview cyber-crimes. The government has taken note of the susceptibility of effect of cyber-attack on Indian economy. With this view, the government has initiated various programmes and time and again taking precautionary measures to curb it.

• In April 2017, the MEITY had issued measures to curb CSAM (Child Sexual Abuse Material) in India. Two directions were issued by the Ministry as under : –
  • ISP’s (Internet Service Providers) having cable landing station Gateways/ International Long-Distance Licenses in India would be required to adopt and implement IWF (Internet Watch Foundation) resources on or before July 31, 2017 to prevent the distribution and transmission of online CSAM into India.
  • All ISP’s shall continue to observe the existing due diligence requirements prescribed by the Central Government under the Information Technology Act, 2000 and Rules and regulations thereunder including the obligation to expeditiously remove or disable access to any unlawful content brought to its notice by relevant authorities.
• On July 6, 2017, a notification was issued by RBI regarding Customer Protection- Limiting Liability of Customers in Unauthorized Electronic Banking Transactions.
• Indian Computer Emergency Response Team (CERT-In) and Centre for Development of Advanced Computing (CDAC) are involved in providing basic and advanced training to Law Enforcement Agencies, Forensic labs and judiciary on the procedures and methodology of collecting, analysing and presenting digital evidence.
• Cyber forensics training lab has been set up at Training Academy of Central Bureau of Investigation (CBI) to impart basic and advanced training in Cyber Forensics and Investigation of Cyber Crimes to Police Officers associated with CBI. In addition, Government has set up cyber forensic training and investigation labs in the States of Kerala, Assam, Mizoram, Nagaland, Arunachal Pradesh, Tripura, Meghalaya, Manipur and Jammu & Kashmir for training of Law Enforcement and Judiciary in these States.
• Government has decided to provide a centralized citizen portal through Crime and Criminal Tracking Network and Systems (CCTNS) for registering online cyber-crime complaints. The Ministry of Home Affairs has also in-principle approved to set up an Indian Cyber Crime Coordination Centre (I4C) to fight against cyber-crime in the country and establish an open platform for victims to raise cybercrime complaints with the protocol for resolution such as online crime reporting, to support and coordinate electronic investigations of cybercrime, assist the law enforcement agencies in criminal investigation etc.
• An app called “Samvid” was introduced by the Government. It is a desktop based Application Whitelisting solution for Windows operating system. It allows only preapproved set of executable files for execution and protects desktops from suspicious applications from running.
• In February 2017, Government of India’s Computer Emergency Response Team (CERT-in) launched ‘Cyber Swachhta Kendra’ (Botnet Cleaning and Malware Analysis Centre) a new desktop and mobile security solution for cyber security. It is operated by CERT-in under Section 70B of the Information Technology Act, 2000.
• As per the reports, the government is planning to create a new tri-service Defence agency for cyber warfare. This Defence Cyber Agency will work in coordination with the National Cyber Security Advisor. It will have more than 1,000 experts who will be distributed into a number of formations of the Army, Navy and IAF.

_[1]https://www.statista.com/statistics/255146/number-of-internet-users-in-india/