India’s commitment to conserving its rich biological heritage took a structured form with the enactment of the Biological Diversity Act, 2002. It was shaped by global consensus under the Convention on Biological Diversity (CBD), aiming to balance conservation with sustainable use and fair benefit sharing.
Over the years, amendments and new rules have refined this framework to meet evolving needs and international obligations like the Nagoya Protocol.
Origin and Purpose of the Biological Diversity Act, 2002
Global Context and India’s Response
In 1994, India, alongside other nations, became a signatory to the Convention on Biological Diversity (CBD), a global treaty promoting conservation and fair access to natural resources. This agreement laid the groundwork for India’s Biological Diversity Act of 2002.
Primary Objectives
The Act is built around three key principles:
- Conservation: Prevent the reckless exploitation of biological resources.
- Sustainable Use: Regulate usage, especially for commercial and research purposes.
- Equitable Benefits: Ensure that local communities protecting these resources are fairly compensated.
Institutional Structure and Regulatory Mechanisms
Three-Tier Governance
To operationalize its provisions, the Act established a decentralized model:
- National Biodiversity Authority (NBA) at the central level
- State Biodiversity Boards (SBBs) at the state level
- Biodiversity Management Committees (BMCs) at the local level
Regulating Access and Use
The Act recognizes India’s sovereign rights over its biological resources. It controls how these resources and related traditional knowledge are accessed and used, especially by foreign entities. The process includes obtaining prior approvals, particularly in cases involving patents and international research collaboration.
Salient Provisions of the Act
- Approval for Foreign Access: All non-citizens or foreign companies must seek clearance from the NBA before accessing India’s biological resources.
- Restrictions on Knowledge Transfer: Indian individuals or organizations must obtain permission before transferring research findings or materials to foreign entities.
- IPR-related Approvals: Anyone applying for patents or other intellectual property based on Indian biological material must secure prior approval from the NBA.
Why the Law Needed Change
Stakeholder Concerns
Many groups, including those from traditional medicine, seed, pharmaceutical, and research sectors, found some provisions too restrictive, limiting innovation and investment.
Nagoya Protocol Obligations
The 2010 Nagoya Protocol under the CBD introduced clearer mechanisms for access and benefit sharing, prompting India to align its law accordingly.
Biological Diversity (Amendment) Act, 2023
- Legislative Changes and Intent: Introduced in Parliament in 2021 and passed in 2023, the amendment aimed to:
- Promote traditional Indian medicine
- Encourage cultivation of wild medicinal plants
- Streamline procedures for research and patenting
- Attract foreign investment
- Shift from criminal penalties to civil ones
- Access and Entity Classification: The amendment revised how entities are categorized and expanded exemptions from mandatory intimation and approvals.
- IPR Approval Timing: Previously required before applying, approval is now needed only before the grant of a patent.
- Benefit Sharing Modifications: While the original Act required benefit sharing for various activities, the amendment removes this obligation for research and biosurveys.
- Penalty Reforms: Imprisonment clauses have been removed. Offences now attract fines ranging from ₹1 lakh to ₹50 lakh.
Criticism of the 2023 Amendments
Reduced Role of Local Stakeholders
The amendment minimizes the direct involvement of local communities and benefit claimers in setting the terms of benefit sharing. Decisions are now primarily routed through the NBA.
Absence of Prior Informed Consent
The law does not mandate obtaining prior informed consent from indigenous communities, a requirement under the Nagoya Protocol.
Shift in Adjudication Authority
Penalty decisions will now be made by government-appointed officials instead of judicial authorities, raising concerns about fairness and transparency.
Biological Diversity Rules, 2024
- Purpose and Context: These rules, notified by the Ministry of Environment, Forest and Climate Change, replace the 2004 version. They operationalize the 2023 amendment and streamline processes in biodiversity governance.
- Role of the National Biodiversity Authority:
- Leadership: The chairperson is appointed by the Central Government for a three-year term, renewable.
- Functions:
- Manage the National Biodiversity Fund
- Approve biodiversity-related agreements
- Offer technical support to states
- Maintain comprehensive biodiversity databases
- Regulation of IPR and Penalties
- IPR Approvals: Required before the final grant of intellectual property rights, not at the application stage.
- Penalties for Violations: Range from ₹1 lakh to ₹50 lakh, with escalating fines for repeat offences. Collected fines are redirected into biodiversity conservation funds.