BIOLOGICAL DIVERSITY

LAW
-PAWANI PRAJIT
INTRODUCTION
Biodiversity refers to the variety of life forms on Earth, including plants, animals,
microorganisms, and the ecosystems they inhabit. It encompasses the richness and
variability of living organisms and the ecological complexes of which they are part.
India is a biodiversity-rich country with a vast array of ecosystems, and the Biological
Diversity Act plays a crucial role in conserving and sustainably utilizing its biological
resources.
The Biological Diversity Act is a legal framework established by the Indian government to
regulate access to biological resources and associated knowledge, and ensure the equitable
sharing of benefits arising out of their utilization.
The act aims to protect the country’s diverse biological resources by ensuring that their
utilization is sustainable, fair, and equitable, and that local communities benefit from their
use.
LEGISLATION ON BIODIVERSITY IS CRUCIAL BECAUSE-

● Curbing Extinction Rates: Human activities are causing a mass extinction event.
Legislation helps regulate actions that threaten species and their habitats, slowing down
this alarming trend.
● Maintaining Ecological Balance: Healthy ecosystems rely on a rich tapestry of life forms
interacting with each other. Biodiversity loss disrupts this delicate balance, potentially
leading to cascading environmental problems. Legislation helps protect this balance for the
benefit of all living things.
● Securing Ecosystem Services: From clean air and water to fertile soil and natural pest
control, biodiversity provides us with essential ecosystem services. Legislation helps
ensure these services continue for future generations.
● Safeguarding Natural Resources: Many medicines, foods, and industrial materials come
from diverse biological resources. Legislation helps manage these resources sustainably to
avoid depletion.
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● Protecting Traditional Knowledge: Indigenous communities often possess a wealth of knowledge
about local biodiversity. Legislation can help protect this knowledge and ensure these communities
benefit if it's used commercially.
● Promoting Sustainable Development: Biodiversity underpins healthy ecosystems, which are
vital for long-term human well-being and economic prosperity. Legislation fosters practices that
support sustainable development goals.
● Prevention of Biopiracy: Legislation discourages the unauthorized use of genetic resources
from developing countries.

Example: The Convention on Biological Diversity (CBD), an international treaty,

promotes fair and equitable sharing of benefits from the utilization of genetic resources. This
helps prevent companies from exploiting developing countries' biodiversity without proper
compensation.
SALIENT FEATURES of BIOLOGICAL DIVERSITY ACT, 2002

● Regulation of Access: Accessing biological resources in India, like plants or

microorganisms, for research or commercial use requires prior approval from the
National Biodiversity Authority (NBA).
● Conservation and Sustainability: The Act promotes practices that conserve India's
rich biodiversity and ensure its sustainable use for the long term.
● Protecting Local Knowledge: The Act recognizes the valuable knowledge of local
communities regarding biodiversity and aims to protect it.
● Benefit Sharing: Local communities are entitled to a fair share of benefits if their
knowledge or biological resources from their region are commercially utilized. (S21)
CONTINUED

● Threatened Species: The Act prioritizes the protection and rehabilitation of species
facing endangerment.
● Biodiversity Management: A three-tier structure is established: National
Biodiversity Authority (NBA), State Biodiversity Boards (SBBs), and Biodiversity
Management Committees (BMCs) at the local level. Each plays a role in
implementing the Act’s provisions.
● National Biodiversity Fund: A dedicated fund is created to support conservation
activities using the money collected from access fees and penalties.
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● Prior Approval for IPR: Intellectual Property Rights (IPR) applications
based on Indian biological resources need approval from the NBA.
● Exemptions: Traditional uses of biological resources, research by Indian
institutions, and activities by farmers and local healers are generally exempt
from the Act's regulations.
These features work together to strike a balance between promoting research
and development based on India's biodiversity, while ensuring its preservation
and fair benefit sharing with those who have knowledge and live in harmony
with these resources.
NATIONAL BIODIVERSITY AUTHORITY- Section 8-21
National Biodiversity Authority (NBA) had been set up under the Ministry of Environments
and Forest by the Government of India in 2003.

The National Biodiversity Authority (NBA) is a statutory body established under the Biological
Diversity Act of 2002 in India. It plays a central role in the implementation and enforcement of the
Act's provisions related to biodiversity conservation, sustainable use of biological resources, and
benefit-sharing.

Under this act, the Central Government in consultation with the NBA:
● Shall notify threatened species and prohibit or regulate their collection, rehabilitation, and
conservation.
● Designate institutions as repositories for different categories of biological resources

Constitution of NB Fund- Section 27.

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The National Biodiversity Authority consists of the following members to be appointed by the Central
government, namely:

1. A Chairperson.
2. Three ex officio members,
■ One representing the Ministry dealing with Tribal Affairs and
■ Two representing the Ministry dealing with Environment and Forests.
3. Seven ex-officio members to represent respectively the Ministries of the Central
Government dealing with:
■ Agricultural Research and Education
■ Biotechnology
■ Ocean Development
■ Agriculture and Cooperation
■ Indian Systems of Medicine and Homoeopathy
■ Science and Technology
■ Scientific and Industrial Research
FUNCTIONS OF NATIONAL BIODIVERSITY AUTHORITY s.18

● Regulatory Oversight: The NBA serves as the apex regulatory body for matters related to access
to biological resources and associated traditional knowledge. It oversees and regulates activities
such as bio-prospecting, research, and commercial utilization of biological resources.
● Granting Approvals: One of the primary functions of the NBA is to grant approvals for accessing
biological resources and associated traditional knowledge. This includes issuing permits, licenses,
and agreements for bio-prospecting and research activities, ensuring compliance with legal
requirements and benefit-sharing obligations.
● Benefit-Sharing Mechanisms: The NBA facilitates the implementation of fair and equitable
benefit-sharing mechanisms as per the provisions of the Biological Diversity Act. It ensures that
benefits derived from the utilization of biological resources are shared with local communities,
stakeholders, and biodiversity management committees.
CONTINUED
● Capacity Building and Awareness: The NBA conducts capacity-building programs, workshops,
and awareness campaigns to promote understanding of biodiversity conservation, sustainable use
practices, and legal obligations under the Act. It collaborates with government agencies, NGOs,
academic institutions, and civil society to enhance knowledge and skills related to biodiversity
management.
● Documentation and Monitoring: The NBA is responsible for maintaining databases, registers,
and documentation related to biological resources, traditional knowledge, and biodiversity
management activities. It monitors compliance with regulatory requirements, conducts inspections,
and takes enforcement actions against violations.
● International Cooperation: The NBA represents India in international forums and collaborations
related to biodiversity conservation, sustainable development, and access and benefit-sharing. It
promotes cooperation, exchange of information, and best practices on biodiversity issues at the
global level.
● Advise Central and State Governments.
STATE BIODIVERSITY BOARD- SECTION 22

State Biodiversity Boards (SBBs) are statutory bodies established under the
Biological Diversity Act of 2002 in India. These boards operate at the state level and
play a pivotal role in the conservation, sustainable use, and equitable sharing of benefits
related to biological diversity within their respective states.

The SBBs are established by the State Governments in accordance with Section 22 of
the Act and deal with all matters relating to access by Indians for commercial purposes.
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The State Biodiversity Board consists of the following members:
● A Chairperson
● Not more than five ex officio members to represent the concerned Departments
of the State Government
● Not more than five members from amongst experts in matters relating to
conservation of biological diversity, sustainable use of biological resources and
equitable sharing of benefits arising out of the use of biological resources.

All the members of the SBB are appointed by the respective State Governments.

Constitution of SB Fund- Section 32.

FUNCTIONS OF STATE BIODIVERSITY BOARD s. 23
● Conservation and Management: SBBs are responsible for promoting the conservation and
sustainable management of biological diversity within their states. They develop strategies, policies,
and action plans for biodiversity conservation, taking into account the unique ecosystems, species, and
habitats present in each state.
● Biodiversity Registers and Documentation: SBBs oversee the establishment and maintenance of
biodiversity registers at the local level. These registers document information about biological
resources, traditional knowledge, and practices associated with biodiversity. SBBs ensure the accuracy,
completeness, and accessibility of biodiversity data for decision-making and planning purposes.
● Biodiversity Management Committees (BMCs): SBBs coordinate and support the functioning of
Biodiversity Management Committees (BMCs) at the district and local levels. BMCs play a crucial role
in promoting community participation, conservation initiatives, and sustainable utilization of biological
resources within their jurisdictions.
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● Granting Approvals and Permits: SBBs review and grant approvals for activities involving access to
biological resources and associated traditional knowledge within their states. They issue permits, licenses,
and agreements for bio-prospecting, research, and commercial utilization, ensuring compliance with legal
requirements and benefit-sharing provisions.
● Capacity Building and Awareness: SBBs conduct capacity-building programs, workshops, and
awareness campaigns to enhance knowledge and skills related to biodiversity conservation, sustainable
use practices, and legal obligations under the Biological Diversity Act. They collaborate with
stakeholders, NGOs, educational institutions, and local communities to promote awareness and
understanding of biodiversity issues.
● Monitoring and Enforcement: SBBs monitor the implementation of biodiversity conservation measures,
compliance with regulatory requirements, and adherence to benefit-sharing agreements. They conduct
inspections, investigations, and take enforcement actions against violations of biodiversity laws and
guidelines.
● Advise State Governments subject to the guidelines given by the Central Government.
BIODIVERSITY MANAGEMENT COMMITTEE- SECTION 41

A Biodiversity Management Committee (BMC) is a local-level statutory body

established under the Biological Diversity Act of 2002 in India.

BMCs play a crucial role in promoting community participation, conservation,

sustainable use, and documentation of biological diversity within their respective areas.
● Section 42- Grants to Local Biodiversity Fund
● Section 43- Constitution of LB Fund
FUNCTIONS OF BMC

● Documentation of Biodiversity: The BMC is responsible for preparing a People's

Biodiversity Register (PBR) which documents the availability and status of
biodiversity in the area.
● Sustainable use of Biodiversity: The BMC encourages the sustainable use of
biodiversity by promoting conservation measures and providing incentives to local
communities for conservation.
● Identification of Biodiversity-rich areas: The BMC identifies areas that are rich in
biodiversity and takes steps to protect them.
CONTINUED

● Biodiversity Impact Assessment: The BMC carries out biodiversity impact

assessment of any developmental project or activity proposed to be undertaken in the
area.
● Monitoring and Evaluation: The BMC monitors and evaluates the implementation
of biodiversity conservation measures in the area.
● Awareness and Education: The BMC creates awareness among the local people
about the importance of biodiversity and promotes education and research in the field
of biodiversity conservation.
OFFENCES AND PENALTIES - SECTION 55-58

● Unauthorized access to biological resources: Any person who accesses biological resources
without obtaining prior approval of the National Biodiversity Authority (NBA) or the State
Biodiversity Board (SBB) shall be punishable with imprisonment for a term which may extend
to five years or with a fine which may extend to ten lakh rupees or with both. (VIOLATION OF
SECTION 3)
● Transfer of biological resources: Any person who transfers any biological resources outside
India without the prior approval of the NBA or SBB shall be punishable with imprisonment for a
term which may extend to five years or with a fine which may extend to ten lakh rupees or with
both. (VIOLATION OF SECTION 4)
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● Application of related IPR- Any person who applies for IPR for any invention based on any
research on a biological resource obtained from India without obtaining previous approval of the
National Biodiversity Authority shall be punishable with imprisonment for a term which may
extend to five years or with a fine which may extend to ten lakh rupees or with both.
(VIOLATION OF SECTION 6)
● Misuse of biological resources: Any person who misuses biological resources for commercial
or any other purposes without the prior approval of the NBA or SBB shall be punishable with
imprisonment for a term which may extend to five years or with a fine which may extend to ten
lakh rupees or with both.
CONTINUED

● Non-compliance with access and benefit-sharing (ABS) provisions: Any person who fails to
comply with the ABS provisions of the Act shall be punishable with imprisonment for a term
which may extend to three years or with a fine which may extend to five lakh rupees or with
both.
● Unauthorized use of traditional knowledge: Any person who uses or exploits any traditional
knowledge associated with biological resources without the prior approval of the concerned
authority shall be punishable with imprisonment for a term which may extend to three years or
with a fine which may extend to five lakh rupees or with both.
IMPORTANT PROVISIONS
● Section 20- No transfer of Biological Resource or knowledge without the permission
of National Biodiversity Authority.
● Section 24- SBB has the power to restrain activities violating the objectives of
conservation.
● Section 36 talks about the role of the Central government in developing national
strategies and plans for biological diversity conservation purposes.
● 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.
CONTINUED
● 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.
● Section 39 empowers the Central Government to designate repositories for biological
material to be kept in safe custody.
● Section 40 - 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.
CONTINUED
● Section 48- NBA to be bound by the directions of Central Government.
● Section 52- Any person aggrieved by an order or decision of the NBA or State
Biodiversity Board can appeal to High Court within 30 days from the date of
communication of the order.
● Section 52 A- Any person aggrieved by an order or decision of the NBA or State
Biodiversity Board can appeal to NGT.
● Section 57- Offences by Companies
● Section 60- Power of Central Government to give directions to the State Government.
● Section 62- Power of Central Government to make rules.
● Section 63- Power of State Government to make rules.
BIO PIRACY
Biopiracy refers to the unauthorized appropriation or exploitation of biological resources, traditional
knowledge, or genetic resources, often by individuals, corporations, or institutions from developed countries,
without proper consent or compensation to the communities or countries that are the custodians of these
resources.

Components of Biopiracy:
● Biological Resources: Biopiracy involves the exploitation of biological resources, which could include
plants, animals, microorganisms, and other living organisms found in nature.
● Traditional Knowledge: Indigenous and traditional knowledge about the properties, uses, and applications
of biological resources, passed down through generations within local communities, is often a target of
biopiracy. This knowledge is valuable for its insights into medicinal properties, agricultural practices, and
ecological sustainability.
● Genetic Resources: Biopiracy can also involve the unauthorized collection, use, or patenting of genetic
material or genetic sequences derived from biological resources.
Legal and Ethical Issues
1. Intellectual Property Rights (IPRs): Biopiracy raises questions about the ethical and legal implications
of patenting biological or genetic material derived from indigenous knowledge or resources. It highlights
the need for stronger intellectual property laws that respect the rights of indigenous communities and
ensure fair benefit-sharing.
2. Access and Benefit-sharing (ABS): The Nagoya Protocol, a supplementary agreement to the Convention
on Biological Diversity (CBD), addresses issues related to access to genetic resources and the fair and
equitable sharing of benefits arising from their utilization. It provides a framework for countries to
implement ABS measures to prevent biopiracy and ensure that benefits derived from genetic resources are
shared with the providers.
3. Safeguarding Traditional Knowledge: Efforts to protect traditional knowledge systems and practices are
crucial in preventing biopiracy. This includes documenting and legally recognizing traditional knowledge,
establishing community protocols for access to genetic resources, and promoting community-based
conservation initiatives.
BENEFIT CLAIMERS
Benefit claimers typically refer to individuals or communities who hold traditional
knowledge about biological resources. These could include indigenous communities,
local tribes, or any individuals or groups who have traditionally used biological
resources and have knowledge about their uses, properties, or applications.
Under the Biodiversity Act, benefit claimants are local communities who play a
crucial role in conserving biological resources. This includes two main groups:
● Those engaged in conserving biological resources: This refers to
communities actively involved in protecting the biodiversity in their area.
This could involve traditional practices of conservation or participation in
government initiatives.
● Those possessing knowledge and information on biological resources: This
group encompasses communities with traditional knowledge about the use
of biological resources, including medicinal plants or agricultural practices.
CONTINUED

The benefits outlined in the BDA can be monetary or non-monetary. These benefits are
intended to provide a fair share of the profits derived from the use of biological resources to the
communities that have helped conserve them and hold valuable knowledge about them.
TRADITIONAL KNOWLEDGE
Traditional knowledge (TK) refers to the knowledge, innovations, and practices of
indigenous and local communities that are developed over generations and are often
passed down orally. In the context of intellectual property rights (IPR), traditional
knowledge is significant because it often involves valuable insights into biodiversity,
medicinal properties of plants, agricultural practices, and other aspects of nature.
Traditional knowledge can be related to various fields such as agriculture, healthcare,
and environmental management.
However, traditional knowledge is often vulnerable to misappropriation and
exploitation due to its informal nature and lack of legal protection. Efforts to protect
traditional knowledge under intellectual property regimes involve recognizing the rights
of indigenous and local communities over their knowledge and ensuring that they
benefit from any commercial use or exploitation of that knowledge.
CONTINUED

This can include mechanisms such as the development of sui generis

systems, which are specialized legal frameworks tailored to the
protection of traditional knowledge, as well as the integration of
traditional knowledge into existing intellectual property systems through
measures like patents, trademarks, and geographical indications.
BIO PROSPECTING

Bioprospecting (also known as biodiversity prospecting) refers to the

exploration of natural sources for small molecules, macromolecules, and
biochemical and genetic information that could be developed into commercially
valuable products. These products find applications in various industries,
including agriculture, aquaculture, bioremediation, cosmetics, nanotechnology,
and pharmaceuticals.
Bioprospecting involves searching for plant or animal species that can serve as
sources of valuable products. These products may include medicinal drugs,
among others.
CASE LAWS

1. Environment Support Group v. National Biodiversity

Authority
2. Akb Jagannath Nag V. Union of India & Ors.
3. Divya Pharmacy V. Union of India
Environment Support Group vs. National Biodiversity Authority, AIR 2014
KARNATAKA 20

The Environment Support Group (ESG) filed a Public Interest Litigation (PIL) challenging
section 40 of India's Biodiversity Act. They argued this section weakened protection of
biodiversity and traditional knowledge by allowing easier access to certain resources. In simpler
terms, Section 40 allows the government to exclude commonly bought and sold biological
resources from the stricter controls of the Act. This aims to streamline trade and avoid
unnecessary burdens for activities like selling agricultural products.
This case highlights the ongoing debate around balancing economic development with
biodiversity conservation in India. The Environment Support Group continues to advocate for
stricter regulations to prevent biopiracy.
Section 40 : Exemption for Normally Traded Commodities (NTCs): The Central
Government, after consulting with the National Biodiversity Authority (NBA), can exempt
certain biological resources, especially those normally traded as commodities, from the
provisions of the Act. This means these resources wouldn't require permissions or follow
regulations outlined in the Act.
Akb Jagannath Nag vs. Union of India & Ors, 2016

This case handled the ecological and social implications of shrimp farming business
in India.

The petitioner sought the enforcement of a coastal area law notification issued with
the aid of using the Government of India, for stoppage of in depth and semi-in depth
farming withinside the ecologically fragile coastal areas, prohibition to apply moist lands
for Prawn farming and the charter of a National Coastal Management Authority to shield
the marine lifestyles and coastal areas.

SC applied the principle of precautionary principle and polluter pays principle.

Divya Pharmacy vs. Union of India, 2018

Fair and Equitable Benefit Sharing (FEBS) subjected under the Biodiversity Act, 2002,
become welfare law that become made to cater the desires of the neighborhood and
indigenous group.

The Uttarakhand High Court ruled that Indian companies extracting biological
resources must seek prior approval and share a portion of their profits. This decision
clarified issues related to access and benefit sharing concerning biological resources.

Divya Pharmacy, a petitioner in the case, challenged the requirement, but the court
upheld the ruling.

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