Biological diversity comprises the assortment of all life existing on the earth. It signifies the variability between living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and eco-systems. It is also a preliminary for traditional and modern medicines, a source of food, provides raw materials for trade and business, etc.
WHAT IS THE BIOLOGICAL DIVERSITY ACT?
On June 5, 1992, India signed the United Nations Convention on Biological Diversity (CBD) held at Rio De Janeiro in the year of 1992. Following this a decade later the Biological Diversity Act, 2002 was enacted by the Indian Government to regulate the access and utilization of its biological resources. The first endeavour to bring biodiversity into the Indian legal framework was made by the means of the Biodiversity Bill, 2000. The Act was passed by the Lok Sabha (Lower House) on December 2, 2002, and by the Rajya Sabha (Upper House) on December 11, 2002. It received the Presidential assent on February 5, 2003. It extends to the whole of India. However, the Act came into force entirely on the year 2004. This Act comprehensively goes ahead to conserve and protect the biodiversity, maintain the use of biological resources, and equity in the distribution of its resources and profits arising from it.
PURPOSE OF THE ACT:
The Biological Diversity Act purposes to promote conservation, maintainable utilization, and reasonable sharing of profits of India’s biodiversity resources comprising habitats, domesticated stocks, and breeds of animals, and micro-organisms. This Act is a significant step in the endeavours to proclaim the sovereign privileges of the citizens of India over their genetic and biological resources, and to claim a share of profits flowing from commercial use of these resources including the utilization of any related information of the Indian origin, regardless of whether it be in the public dominion or held as a fraction of an oral custom. The principle intension behind enacting the Biological Diversity Act was to conserve Indian biological diversity, manage access to Indian biological resources, ensure reasonable profit sharing emerging from the use of those resources, and also to constitute a framework of different governing bodies. Additionally, the Act restores the protection and respect of the knowledge of local community’s traditional knowledge associated to biological diversity and to preserve and develop regions of significance from the viewpoint of biological diversity by proclaiming them biological diversity heritage sites.
PROVISIONS OF THE ACT:
The Biological Diversity Act administers Access and Benefit Sharing (ABS) through a three-tiered structure i.e., the National Biodiversity Authority (NBA) at the national level, the State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at local levels. Section 8 of this Act sets down the provision for the constitution of the NBA, and Section 22 sets down the provision for the constitution of the SBBs at the state level. However, Section 22(2) doesn’t permit the SBBs to be established for a Union territory. The NBA is headquartered at Chennai and the SBBs are set up in all the 29 states of the country. The Biological Diversity Act commands approvals from the NBA and to update the State Biodiversity Authorities (SBAs) for individuals to access and use the biological resources for research purposes, commercial use, bio-review, for applying intellectual property, or for transferring research outcomes. According to the Section 3 of the Act, individuals who aren’t residents of India, entities registered outside India, or Indian enterprise having their shareholding held by non-Indians is entailed to obtain preceding consent from the NBA by applying in the mentioned way (Form I under Rule 14 of the Biological Diversity Rules, 2004) for accessing any biological resources occurring in India or information related to it for the purpose of research, commercial use or for bio-review. Under the Section 4 of the Act, an individual is forbidden from transferring the research outcomes to any individual who isn’t a resident of India, an entity registered outside India, or Indian enterprises having their shareholding held by non- Indians without preceding consent of the NBA by applying in the mentioned way (Form II under Rule 17 of the Biological Diversity Rules, 2004). The Section 6 of this Act states that an individual is restricted from making an application for any intellectual property outside or inside India for any invention dependent on any research or data on a biological resource acquired from India without obtaining preceding consent from the NBA by applying in the mentioned way (Form III under Rule 18 of the Biological Diversity Rules, 2004). Section 7 of the Act mandates any individual who is a resident of India or a corporate organization registered in India without the involvement of non-Indians is entailed to update the SBA before accessing the biological resources in India for research, bio-review, or commercial purposes. Section 20 of the Act states that individuals are entailed to obtain preceding consent of the NBA by applying in the mentioned way (Form IV under Rule 19 of the Biological Diversity Rules, 2004) afore transferring any Indian biological resource to other people. Further, Section 36, Section 37, and Section 38 of the Biological Diversity Act relate to developing national strategies and projects for the conservation of biodiversity, authorities given to the State Government to inform and conserve biodiversity regions, and with the power of the Central Government to inform species that are perilously jeopardized, endangered species, on the verge of extinction, barring their assortment, etc.
LIMITATIONS OF THE ACT:
Along with numerous affirmative features, this vital Act, which is the foundation of the biodiversity governance in the nation, particularly on the fasciae of sustainability and parity. However, the Act experiences severe vagueness in its administrative and penal methods regardless of being existing for nearly ten years. what is regulated and who are obligated to share benefits under the Act are the two fundamental uncertainties in this Acts administrative method. These two concerns have been brought in front of several adjudicative discussions by the client organizations who have confronted the legitimacy of the show-cause notifications issued to them by different State Biodiversity Boards. For instance, in late 2013 and early 2014, nearly 13 petitions were filed before the Central Zone Bench of National Green Tribunal (NGT) by several enterprises against the show-cause notifications issued to them by the Madhya Pradesh SBB. Another significant issue with this Act is the lack of provisions to deal with the criminal procedures for search, capture, or arrest. The Biological Diversity Act only has a provision that proclaims that all offences under this Act are cognizable and non-bailable according to Section 58 of the Act. It implies that the police can arrest anybody without an arrest warrant and the grant of bail is not an issue of right however, an issue of discretion of the court. Further, Section 61 of this Act makes it very difficult to efficiently deal with the wrongdoings under the Act. This provision mandates that no Court can take perceptions of any wrongdoings apart from a complaint made by the authorized officers. Section 61 of the Biological Diversity Act efficiently constrains the authority of a Magistrate to take cognizance of the wrongdoings through only complaints. This provision creates further vagueness on the method of taking cognizance of wrongdoing which is investigated by the police.
India has made a legal approach and structure in regards to biodiversity which empowers the nation to address some essential issues regarding the protection of biodiversity. The Biological Diversity Act was an impressive endeavour to protect the rich biological diversity of India. The conservation of biodiversity is a grave and collective concern of human beings for better living. However, the lack of a well-defined or clear law is propelling a contest of strength between consumers of the biological resources and governing bodies. It is presently a high time for the judiciary to step in to develop legislation on justifiable and reasonable governance of the biodiversity while protecting the principles of the constitution against arbitrary search, and arrest. Furthermore, the definition of biodiversity has to be widened to stop any sort of exploitation as it doesn’t offer a comprehensive context for the conservation and reasonable use of biological and genetic resources.
1. Malathi Lakshmikumaran and Vindhya S. Mani, “Biological Diversity Act, 2002: An Overview” available at, https://www.legaleraonline.com/articles/biological-diversity-act-2002-an-overview?infinitescroll=1 (visited on October 7, 2020).
2. V Sundararaju, “Implement the Biological Diversity Act in its true spirit” Down To Earth, available at https://www.downtoearth.org.in/blog/wildlife-biodiversity/implement-the-biological-diversity-act-in-its-true-spirit-63322 (visited on October 6, 2020).
3. Krishna & Saurastri Associates LLP, “Beware of the Indian Biological Diversity Act, 2002” LEXOLOGY, available at https://www.lexology.com/library/detail.aspx?g=1294c10e-82ad-471a-a010-371762810bd7 (visited on October 7, 2020).
4. Udisha Ghosh and Chandralekha Akkiraju, “Biodiversity Act, 2002: An Analysis” available at https://www.lawctopus.com/academike/biodiversity-act-2002-analysis/ (Visited on October 8, 2020).
5. Ashwin Sapra and Biplab Lenin, “The Biodiversity Act Of India: An Introduction” mondaq, available at https://www.mondaq.com/india/environmental-law/862744/the-biodiversity-act-of-india-an-introduction (visited on October 8, 2020).