Legal Compliances
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In this article, Varsha Jhavar pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on legal compliances needed for biodiversity-related activities in India.

Introduction

India is a country with varied topographies, the mighty Himalayas spanning in the north, the desert to the west, the wetlands to the east, and the Indian Ocean to the south.

What is biodiversity?

The word ‘biodiversity’ is a portmanteau of the words ‘bio’ and ‘diversity’. It means the variety and variation in life forms like plants, animals, microorganisms, or an insect found within the biosphere. It includes microscopic single-celled organisms as well as highly complex organisms. It is the existence of these different plants, animals, habitats, ecosystems that make our planet so unique and our life interesting.

The ecosystem we live in would not be possible without biodiversity. We depend on biodiversity for satisfying our basic needs for survival like food, clothing and shelter.

Biodiversity in India

India occupies only 2 per cent of the available landmass but harbours 8 per cent of the world’s diversity. It is one of the 17 megadiverse countries in the world. The number of varied terrains and climates existent on the Indian subcontinent is unique and home to more than 50,000 species of plants and 40,000 species of animals. With a long coastline of 7516 km and the land frontier of 15000 km, it is one of the richest countries in terms of biodiversity.

India is home to 7.6 per cent of species of mammals all over the world, 12.6 per cent of species of birds, 6.2 per cent of species of reptiles, 4.4 per cent of species of amphibians and 11.7 per cent of species of fishes. India is home to four of the thirty-four biodiversity hotspots all over the world. Two of them, the Himalaya and Western Ghats lie entirely within the territory of India.

The loss of biodiversity is irreversible and hazardous. The cultural diversity that exists today is a result of biodiversity and when biodiversity is at stake so is cultural diversity. It affects the food chain and livelihood and the culture of millions.

The Biological Diversity Act, 2002

The Biological Diversity Act, 2002 was brought into force to fulfil the obligations under Convention on Biological Diversity (CBD) which was ratified by India.

The Biodiversity Act, 2002 also did the task of filling the gap in the legislation left by the previous environmental legislations like the Indian Forest Act, 1927, Wildlife Protection Act, 1972, Environment Protection Act, 1986.  A strong legislation was needed to protect India from bio-piracy after it became an open economy in 1991. Hence the Act was passed in 2002, with the objective of conservation of biological diversity.

The Act was enacted to regulate the use and exploitation of biological resources of the country. The purpose was to protect the knowledge of biodiversity held by the local communities. It also involves the constitution of committees for implementing the provisions of the Act. The Act intends to protect and rehabilitate threatened species.

Legal compliances for biodiversity-related activities

Persons who cannot undertake biodiversity-related activities

Section 3 of the Biodiversity Act, 2002 states the persons who cannot undertake biodiversity-related activities without the permission of the National Biodiversity Authority.

  • Subsection (1) of section 3 states that no person referred to in subsection (2) shall without previous permission of National Biodiversity Authority get any biological resource present in India as well as knowledge associated to it for research or commercial purposes.
  • Subsection (2) of section 3 contains the list of people who are required to take permission, persons who are not citizens of India, a non-resident citizen as defined under Clause 30 of Section 2 of Income Tax Act, 1961, and a body corporate, association or organization which has not been incorporated or registered in India and also an organisation though incorporated and registered in India but has in share capital or management non-Indian participation.

Transfer of results of research

Section 4 of the Act is regarding the transfer of results of research relating to any biological resources to a non-citizen or non-resident Indian for monetary consideration, it cannot be done without previous permission of the National Biodiversity Authority. The transfer does not mean publication of research papers or dissemination of knowledge in seminar or workshops.

Sections 3 and 4 not to apply to certain collaborative research projects

  • Subsection (1) of Section 5 states that the provisions of Section 3 and 4 do not apply to collaborative research projects which involve the transfer or exchange of biological resources or information thereto among institutions, including Government sponsored institutions of India, and such institutions in other countries, if the conditions mentioned in subsection (3) are fulfilled.
  • Subsection (2) of Section 5 of the Act states that all collaborative research projects other than the ones mentioned in subsection (1) shall remain in force except for the provisions of the agreement that are not consistent with the provisions of the Act. According to subsection (3) of section 5 of the Act, the collaborative research projects should conform to the guidelines issued by the Central Government and should be approved by the Central Government.

Application of intellectual property rights

Section 6 is concerned with the application for intellectual property rights for any invention based on any research or information collected on a biological resource obtained from India.

  • Subsection (1) states that application of intellectual property rights should not be without the prior approval of National Biodiversity Authority. If a person applies for a patent, he can seek permission after applying for the patent but before the sealing of the patent by the patent authority.
  • Subsection (2) of Section 6 states that the National Biodiversity Authority can, while giving approval levy a benefit-sharing fee or royalty or both or impose conditions comprising the distribution of financial benefits arising out of commercialization of such rights.
  • Subsection (3) states that the provisions mentioned under section 6 shall not apply to any person who is applying for any right under a law relating to the protection of plant varieties enacted by the Parliament.
  • Subsection (4) of section 6 states that where a right has been granted under subsection (3) then the authority granting approval shall endorse a copy of such document to the National Biodiversity Authority.

Compliance for Indian citizens for obtaining biological resource for certain purposes

Section 7 of the Act discusses the legal provisions which have to comply with by Indian citizens. It states that any citizen of India or a body corporate, association or organization which has been registered in India, shall take biological resource for commercial use or bio survey and bio utilization for commercial use without obtaining prior permission from the concerned State Biodiversity Board. The above provisions shall not apply to the local people and growers and cultivators of biodiversity, vaids and hakims.

Penalties

Subsection (1) of Section 55 states the punishment a person will get if he contravenes or attempts to contravene the provisions of Section 3 or Section 4 or Section 6, he will be imprisoned for a period extending to five years or fine which may extend to ten lakh rupees and if the damage caused is more than ten lakh rupees, the fine will be proportionately adjusted or both. Whosoever contravenes the provisions of Section 7 or any order under subsection (2) of Section 24 shall be punished with imprisonment for a period extending to three years or with fine up to 5 lakhs or both

Establishment of National Biodiversity Authority

The National Biodiversity Authority is established under Section 8 of the Act. The section states that the National Biodiversity Authority shall be a body corporate having all the features of a company like perpetual succession, common seal etc.

Subsection (3) of Section 8 states that the head office shall be located in Chennai and offices can be set up at other places with the previous permission of the Central Government. The National Biodiversity Authority consists of a Chairperson, an eminent person having knowledge in the field of biodiversity and three ex-officio members one representing Tribal Affairs ministry and two others representing Environment and Forest ministry. All of them shall be appointed by the Central ministry.

The organisation

A three-tier system was set up under the Biodiversity Act, a National Biodiversity Authority at the centre, state biodiversity boards (SBBs) at the state level and biodiversity management committees (BMCs) at the local level. The functions of these authorities include the regulation of the activities of, advising the Government in matters of biological diversity, sustainable use of its components, and equitable sharing of profits. It also includes granting of the approval under Sections 3,4 and 6 of Biodiversity Act, 2002.

Conclusion

India has made a framework regarding biodiversity which holds great significance in the protection of the environment. The present policy has some deficiencies which need to overcome. The solution is to make amendments and focus on implementation and adopt a stronger proactive community involvement. Through the creation of awareness, the citizens can be mobilised and change can be brought about in the current situation of biodiversity. Once the people are aware and know the consequences they can work towards protection and preservation of the environment. Awareness has to be created at the grass root level, the local communities need to be made aware of the Biological Diversity Act. Together we are stronger rather than few individuals trying to make a difference.

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