This article has been written by Shoronya Banerjee from Amity University, Kolkata. This article gives an overview of the Biological Diversity Act, 2002 along with highlighting certain shortcomings of the Act and suggestions for improving upon it.
Table of Contents
Representing in the truest essence, the sustenance of all life on earth, biodiversity stands to be the pedestal supporting the coexistence of all varieties of living organisms from several sources which include the terrestrial, marine and all aquatic ecosystems. Biodiversity is also a foundation for traditional and modern medicines, a source of food, provides raw materials for trade and business, etc.
Therefore, biodiversity loss would have negative repercussions on the lives of every species existing on earth, causing an imbalance in the ecosystem which would eventually lead to the destruction of the natural environment. Being one of the greatest diverse countries in the world and holding a global record for being home to the most unique species, India has experienced threats and semi-destruction of its biodiversity due to outbursting population, overutilization and exploitation of resources, climate change, habitat loss due to human development, increasing pollution levels and so on.
Before the Biological diversity Act, 2000, India had several environmental legislations put to work but certainly a void existed which required the enactment of this Act in 2002. India had signed the Convention on Biological Diversity at Rio de Janeiro providing a framework and foundation for sustainable development and preservation of its biodiversity with a lot of focus on natural resources. Following this ten years later the Biological Diversity Act, 2002 was enacted.
Biological diversity Act, 2002
India saw a transformation of its closed economy into an open economy, post-1990. Biopiracy thereafter, stood unguarded with no stringent legislation protecting the overexploitation and piracy of resources. This further saw the formation of a civil society group appointed to formulate a National Biodiversity strategy and plan. However, this wasn’t accepted and the government itself articulated a legal framework and draft known as the Biodiversity Bill, 2000, based on which this Act was passed by the Lok Sabha on 2nd December 2002 and Rajya Sabha on 11th December 2002. It had finally received the Presidential assent on 5th February 2003.
The Biological Diversity, as federal legislation, was a mere attempt of India to uphold the objectives put forth by the United Nations Convention on Biological Diversity (CBD) 1992, giving immense importance to the rights of a state over its resources.
This Act broadly sets forth to protect and conserve the biological diversity, control the utilization of resources, and maintain equality in the distribution of its resources and benefits arising from it. Section 8, sub-Section (1) and (3) of this Act, puts forth the provision of establishing a National Biodiversity Authority in Chennai.
The Act in general aims in conserving the Biological Diversity, maintaining and controlling the proper use of its components, ensuring equitable distribution of benefits derived from such utilization. The mentioned objectives of the Act provide for a safeguard of traditional knowledge, prevent biopiracy, prohibit people from claiming patents without the government’s permission, etc.
The facets of the objective of aiming to conserve Biological diversity is showcased by Chapter IX of this Act, especially with Sections 36, 37 and 38 which relates to developing national plans and programmes for the conservation of biodiversity, powers given to state government to notify and preserve areas of biodiversity, and with the authority of the Central Government to notify species that are dangerously endangered, on the verge of extinction, threatened species, prohibiting their collection and so on. While sustainable use of its component would indicate towards regularising the use of natural resources and not exhausting it.
Section 21 of the Act determines the provision of benefit sharing. It aims to acquire equitable sharing of benefits emanating from the accessed biological resources, its by-products, knowledge, and practice related to it as per the set terms and conditions between the person applying for acquiring such benefits and the local bodies involved.
The Biological Diversity Act puts forth definitions, principles, appointed authorities, procedures, mechanisms for conservation, access benefits, etc, all related to biodiversity. It also mentions an institutional structure to be established for the same purpose.
Section 36 talks about the role of the Central government in developing national strategies and plans for conservation purposes. The Central government has responsibilities such as:
- It is duty-bound for formulating national strategies, plans and programmes to conserve and uphold the sustainable use of biological diversity.
- If any area rich in biological diversity or such resources seems to be facing threats then it is the central government’s responsibility of notifying the respective state government and asking them to take appropriate steps to prevent it.
- Composing sectoral and cross-sectoral plans and policies, which are practicable in the notified environment on the foundation of integration of conservation and the sustainable use of biological diversity.
- The central government has to take measures for assessing the harmful effects of upcoming projects on biodiversity and to either prevent it or come up with techniques of diminishing such effects.
- The central government must aspire to protect the traditional knowledge holders and their knowledge with methods including registration of such knowledge at the local, state or national levels, and other measures necessary for protection and so on.
Section 37 of the Act involves the declaration of Biodiversity Heritage Sites with regard to which the state government is required to notify about the areas of biodiversity heritage in the Official Gazette under this Act. It proceeds to protect the area rich with biodiversity in its natural surroundings. The biodiversity-rich landscape and ecosystems brought under already legally protected areas such as National Parks and Wildlife Sanctuaries in a method similar to that of the declaration of Eco-sensitive areas as per the Environment Protection Act (1986). The Section also puts the responsibility on the state government to compensate people or sections of people economically affected by such declaration.
Without any sort of prejudice, Section 38 of the Act requires the Central Government, in deliberation with the concerned State Government, notifying from time to time about species that are on the verge of extinction or threatened species and prohibit its collection thereof for any trade purpose and put to action appropriate steps for the preservation of such species. Whereas Section 39 empowers the Central Government to designate repositories for biological material to be kept in safe custody.
But again under Section 40 of the act, the Central Government with regard to the National Biodiversity Authority by notification in the Official Gazette can make declarations of the Act not applying to particular items, including biological resources normally the commodities.
In the case of Environment Support Group v. National Biodiversity Authority, An appeal was made to declare Section 40 of the Biological Diversity Act, 2002 illegal and unconstitutional as serious prejudice was likely to be caused which could cause jeopardy to the national interest and biodiversity of certain species. It wanted to draw the attention of authorities towards public agricultural universities indulging in criminal biopiracy of local varieties of eggplant.
The petitioners also highlighted that they had got 18 critically endangered plants among its 190 plants as normally traded communities. The petition also argued that Section 40 of the Biodiversity Act, 2002 deemed to allow arbitrary and unfettered trade of India’s biological wealth leading to extensive bio-piracy. Although the National Biodiversity Board and Karnataka Biodiversity Board had filed a criminal complaint of biopiracy before the High Court of Karnataka, the petition filed for criminal proceedings in a relevant ruling of the High Court of Karnataka dismissed petitions and quashed criminal prosecution of the respondents who had been accused serious criminal acts of biopiracy by the National Biodiversity Authority and Karnataka State Biodiversity Board.
The biodiversity authorities at the national and state levels
Section 8 lays down the provision of the establishment of the National Biodiversity Authority at the national level whereas Section 22 does the same for state biodiversity boards at the state level. Further Section 22(2) does not allow the State Biodiversity Board to be constituted for a Union territory. The National Biodiversity Authority shall exercise the powers and perform the functions of a State Biodiversity Board for that Union territory: Provided that in relation to any Union territory, the National Biodiversity Authority may delegate all or any of its powers or functions under this subSection to such person or group of persons as specified by the Central Government.
The chairperson of the National Biodiversity Authority presides over the meetings and all questions are decided by the votes of all members present and voting. As per Section 13, the National Biodiversity Authority can form a number of committees as required for the effective and efficient discharge of its duties and functions under the Act. Such a committee should also choose people who are not the members of the National Biodiversity Authority, as they might have the right to attend the meetings of the committee and take part in the proceedings but shall not have the right to vote.
Section 19 of the Act puts forth that any person wanting to obtain any biological resource originating in India or information relating to it, for research or for commercial purposes or transfer the results of such research related to biological resources occurring or obtained from India, are required to make an application and payment of prescribed fees. Also as per 19(2) any person applying for patent or intellectual property protection whether in India or outside India based on any invention, research, knowledge, or study originating in India have to make an application to the biodiversity authority and wait for its approval.
In the case of Akb Jagannath Nag v. Union Of India & Ors, it was appealed that the petitioner had intellectual property rights in terms of Section 6 and Section 19(2) of the Biological Diversity Act, 2002 and concerned Rules which were in his favour. Therefore, such approval by the concerned Authority under the Biological Diversity Act would clearly come in the way of the order criticised before the learned Single Judge. The order passed by the Controllers and Patents and Designs as per Section 15 of the Patents (Amendment) Act, 2005 was appealable in terms of Section 117A of the Patents Act, 1970 as amended in 2005. If there was an exercise of wrong jurisdiction, excessive authority during passing such order, the same could be challenged before the Appellate Authority.
Based on this the appellant had interfered with the order passed by the Controllers of Patents and Designs as well as the learned Single Judge. If the present approval under Section 6 of the Biological Diversity Act seemed to change the entire scenario then it had to be brought under the notice of the single learned judge by the way of review. Therefore, it was held that it would not be just to point out faults with either the order of the Controllers of Patents and Designs or the order of the learned Single Judge. This appeal was disposed of with an application for stay given to the appellant with the choice of option for approaching the learned Single Judge for review of the order of the Appellate Authority as indicated.
Some of whose functions are:
- Prohibiting a person claiming a patent over biodiversity or related knowledge, study, or research without prior approval and permission of the Indian Government.
- The State Biodiversity Board advises the State Government, according to any guidelines issued by the Central Government, on matters relating to the conservation of biodiversity, sustainable use of its components, and benefit-sharing.
- The State Biodiversity Board performs functions as required by the Act or prescribed by the State government.
- Conservation of sustainable use of biological resources including habitat and species protection (EIP) of projects, integration of biodiversity, formulating plans, and policies of various Departments and Sectors.
- The National Biodiversity Authority has to regulate activities in accordance with Sections 3, 4, and 6 of the Act.
- The National Biodiversity Authority, on behalf of the Central Government, could take steps for opposing granting of intellectual property rights in any country outside India related to any biological resource obtained from India or knowledge about such biological resource which is derived from India.
Offences and penalties
Put forth by Section 58, offences under this Act are cognizable and non-bailable. Except for the Central Government or any authority authorized by the government or any benefit claimant with his intention to make a complaint, no court shall take cognizance of any offence under this Act or rules as per Section 61 of the Act. No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Central Government or the State Government or any member, officer or employee of the National Biodiversity Authority or the State Biodiversity Board with regard to an action done in good faith as per Section 54 of the Act. Provisions of this Act even being inconsistent with any other law in force shall yet have effect and put to work as laid under Section 59.
Offences punishable with imprisonment for a term which may extend to five years or fine which may extend to ten lakh rupees or both:
- In contravention to the provisions of Section 3, if a non-Indian, an Indian or corporate body with foreign participation initiates biodiversity-related activities without prior approval of the National Biodiversity Authority.
- In contravention to the provisions of Section 4, any person whether a citizen or not, delivers results of any research related to any biological resources for monetary gain to a non-Indian.
- In contravention to the provisions of Section 6, any person making an application for an Intellectual Property Right of an invention based on any research on a biological resource obtained from India without previous approval of the National Biodiversity Authority.
Offences punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees or both:
- Contravening Section 7 of the Act, if any citizen of India excluding Vaids and Hakims who are practising indigenous medicines, acquires any biological resource for commercial utilization or bio survey without giving prior notification to the State Biodiversity Board.
- Contravening Section 24 sub Section (1), if any citizen of India or a corporate organization registered in India, aims to undertake any activity of obtaining biological resources for commercial work and does not give prior intimation as is prescribed by the State Government to the State Biodiversity Board.
A person going against any direction given by the Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punishment has been specified under the Act, then he/she shall be punished with a fine which may extend to one lakh rupees, in case of a subsequent offence extending to two lakh rupees which with continuous contravention incur an additional fine two lakh rupees everyday laid by Section 56 of the Act.
Shortcomings of the Act
Along with several positive and worthy features, the Act also has several flaws and somewhere leaves a void. One of the major flaws is that emphasis on preventing profit-sharing from the commercial use of the biological resources rather than provisions for efficient conservation. One of the reasons for laying this act was to prevent bio-piracy by the developed nations but this did not give an opportunity for neglecting the other major aim of protecting biodiversity.
This legislation does not act as an umbrella and overlooks its possibilities of harmonizing with prior existing legislation. Neither does it lay down guidelines for the assignment of non-monopoly rights nor for assessing contributions made by firms, local communities, or individual inventions. The basic provision of integrating the communities and nation is weak.
The act doesn’t even give immediate rights-holders the authority of defending their rights in the way that it weaponizes the Indian state to fight against biopiracy or even with rights equivalent to that provided to patent holders or applicants. One of the main problems also stands to be no legal protection given to the information recorded in the People’s Biodiversity Register. This register is open to entities wanting to exploit resources of a particular area. Such documentation has to be regulated by rigorous monitoring in order to ensure the benefits being shared.
Few suggestions for the better implementation of the Biodiversity Act, 2002 and ensuring efficient work with regards to its provisions:
- As seen most of the time statutory legislation and Acts even after put to force are not implemented properly. Half of the time, the main purpose of such legislation is left behind and no improvement takes place. Thereafter, even in this case, with years of worsening pollution levels, untreated sewage, chemical pollutants, factory wastes, etc have been dumped in major Indian rivers such as Ganga, Yamuna, Godavari, Cauvery, etc, main water sources, leaving it tremendously polluted. Proper enforcement of this Act would certainly help in reducing such pollution levels.
- Even if certain boards and committees are formed to look after biodiversity if each ministry works hand in hand, monitors activities, makes themselves aware of environmental harms caused by their actions then such a hurdle can be crossed easily since everyone gets accountable for their actions and feels more responsible towards protecting the ecosystem. Working together, cooperatively can do away with a lot of problems.
- Since no specifications are put forth regarding official relations between the Biodiversity management committees and local bodies this could often lead to common disputes and conflicts. The introduction of a special committee would help in the unification of the numerous local bodies and institutions so that they could work together in the prescribed time ahead.
- Whereas on one side it talks of the nation or state’s sole right towards its innovations, resources, its by-products, etc, it lays no provision and protection for genetic resources leaving it to be exploited by anyone. Leaving out human genetic material from the purview of the act could also lead to the problem of the ‘cloning crisis.’
- It is important for the government to continuously notify and be notified of special places by awarding them special status and protection to biodiversity-rich areas by declaring them as national parks, wildlife sanctuaries, etc.
Resources or traditional knowledge that are not assigned to any sort of private body or entity through patents or grant of the state is considered to be available for free. Even after such provisions losses have been faced year after year. Even though several provisions of this Act are progressive, India is way down the ladder in its trial to protect biodiversity. Awareness has to be created amongst the local communities on this biodiversity Act. Indian biodiversity indeed requires good protection by putting its legal framework and policies to action. The time period of 2014 to 2017 saw a 7.8% increase in the number of threatened and endangered species. The purpose of the Biodiversity Act became the reason for debates. The Act being implemented on time could lead to preventing such a scenario becoming the reason for an argument.
The definition of biological has to be broadened to prevent any sort of exploitation as it does not provide an all-inclusive structure for conservation and feasible use of biological and genetic resources. It is one of the oldest yet current challenges faced by the country as it is widely accepted that the basic framework of the Act involves problems. Incase of Intellectual Property Rights, it is considered to be facilitating commercialization rather than truly accrediting and empowering local communities.
The news of the NBA headquarters losing almost 10,000 crores annually against foreign companies invited rage from the people as if it had been implemented properly with regard to laid guidelines it could have been used for conservation of forests, wildlife, other bio-resources, etc. Time and effort results in proper change.
Therefore it is important for the government and every human to take efforts in their own ways to effectuate and put the Act to work for getting the desired results. A kind of network and integration of the civil society associations, local bodies, farmers, scientific institutions could indeed help in better implementation of the Act.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: