7 The Biological Diversity Act, 2002

Dr.Shilpa Jain

The Biological Diversity Act, 2002

LEARNING OUTCOME:

1. Understanding the need to protect biodiversity.
2. In depth the study of Biological Biodiversity Act, 2002.
3. Understanding the principles under the Biological Diversity Act, 2002

Introduction

Biodiversity encompasses the variety of all life on earth. India is one of the 12-mega diverse countries of the world. With only 2.5% of the land area, India already accounts for 7.8% of the global recorded species. India is also rich in traditional and indigenous knowledge, both coded and informal.

India is a Party to the Convention on Biological Diversity, 1992. Recognizing the sovereign rights of States to use their own biological resources, the Convention expects the parties to facilitate access to genetic resources by other Parties subject to national legislation and on mutually agreed terms (Article 3 and 15 of CBD).

After an extensive and intensive consultation process involving the stakeholders, the Central Government has brought Biological Diversity Act which was enacted in the year 2002. The genesis of the law can be traced to the Convention on Biological Diversity (CBD), which was signed at the Rio Summit in 1992.

The Act prescribed an institutional framework in order to implement the three Convention objectives of conservation, sustainable use, and equitable sharing of benefits arising out of the use of biological resources and related knowledge.

Salient Features of the Act

1. To regulate access to biological resources of the country with the purpose of securing equitable share in benefits arising out of the use of biological resources; and associated knowledge relating to biological resources;
2. To conserve and sustainably use biological diversity;
3. To respect and protect knowledge of local communities related to biodiversity;
4. To secure sharing of benefits with local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources;
5. Conservation and development of areas of importance from the standpoint of biological diversity by declaring them as biological diversity heritage sites;
6. Protection and rehabilitation of threatened species; and
7. Involvement of institutions of state governments in the broad scheme of the implementation of the Biological Diversity Act through constitution of committees.

Important Definitions (Section 2)

(a) “benefit claimers” means the conservers of biological resources, their by products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application;

(b) “biological diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of eco-systems;

(c) “biological resources” means plants, animals and micro-organisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value, but does not include human genetic material;

(d) “bio-survey and bio-utilization” means survey or collection of species, subspecies, genes, components and extracts of biological resource for any purpose and includes characterization, inventorisation and bioassay;

(e) “Chairperson” means the Chairperson of the National Biodiversity Authority or, as the case may be, of the State Biodiversity Board;

(f) “commercial utilization” means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping;

(g) “fair and equitable benefit sharing” means sharing of benefits as determined by the National Biodiversity Authority under section 21;

(h) “local bodies” means Panchayats and Municipalities, by whatever name called, within the meaning of clause (1) of article 243B and clause (1) of article 243Q of the Constitution and in the absence of any Panchayats or Municipalities, institutions of self-government constituted under any other provision of the Constitution or any Central Act or State Act;

(e) member” means a member of the National Biodiversity Authority or a State Biodiversity Board and includes the Chairperson;

(f) “research” means study or systematic investigation of any biological resource or technological application, that uses biological systems, living organisms or derivatives thereof to make or modify products or processes for any use

(g) “sustainable use” means the use of components of biological diversity in such manner and at such rate that does not lead to the long-term decline of the biological diversity thereby maintaining its potential to meet the needs and aspirations of present and future generations;

(h) “value added products” means products which may contain portions or extracts of plants and animals in unrecognizable and physically inseparable form.

Principles under the Biological Diversity Act, 2002

1. Prior Informed Consent

Prior Informed Consent is the approval in advance for the use of country’s biological resources. It is a norm under Prior Informed Consent that sufficient information should be provided to a community, either by intellectual property office or other regarding aims, risk or implication of using the resource including its commercial value.

Sections 3 and 4 of the Act provides for the access to biological resources of the country by non – individuals that is a body corporate, association or organisation and non – residents. In a nutshell, the provisions lay out the procedure for access to biological resources. Similarly, sections 6 and 7 of the Act stipulates the process for claiming intellectual property right over the invention created by using biological resource of India and access to biological resource by an Indian respectively. One of the common point in each of aforesaid sections being the principle of free and prior informed consent.

2. Technology Transfer

The Act creates an exception to the general process laid down for access to biological resources. Section 5 exempts the requirement of any consent wherein the access and usage to the biological resources is in pursuant to a collaborative research project. This plays a vital cog in balancing economic development while addressing the environmental concerns as biological resource rich countries starve for technology, the developed nations which control technology lack resources. Hence, to promote economic development and facilitate transfer of technology, section 5 was provided for in the Act.

The guidelines for International Collaborative Research Projects involving Transfer or Exchange of Biological Resources or Information have been notified by the Ministry of Environment and Forest, key features of which are provided as follows:

a) Appointment of key investigators of the project who shall be responsible for all the compliances;

b) Details of biological resources occurring in India

c) Collaborators to abide with all the applicable existing national and international laws;

d) The biological resource and the knowledge shall be used only for the intended purpose;

e) In case of an IPR emerging out of the research, collaborators to execute a fresh agreement which has to include a provision for benefit sharing;

f) Submission of specimen of biological resource obtained from India to be submitted to designated repository; and All studies and research to be strictly confidential and shall be transferred to schools or colleges or institutes and/ or third with prior approval of the Government

3. Benefit Sharing

The Act, according to Section 21 and Rule 20 of the Biodiversity Rules, 2004, insists upon including appropriate benefit sharing provisions in the access agreement and mutually agreed terms related to access and transfer of biological resources or knowledge occurring in or obtained from India for commercial use, bio-survey, bio-utilization or any other monetary purposes. The National Biodiversity Authority is in the process of developing a guideline based on the provision of the Biological Diversity Act and the same will be notified with the specific details of benefit sharing formula in an official gazette on a case-to-case basis. While granting approvals for access, NBA will impose terms and conditions so as to secure equitable sharing of benefits. These benefits, inter alia include:

a) grant of joint ownership of intellectual property rights to the NBA, or where benefit claimers are identified, to such benefit claimers;

b) transfer of technology;

c) location of production, research and development units in such areas which will facilitate better living standards to the benefit claimers;

d) association of Indian scientists, benefit claimers and the local people with research and development in biological resources and bio-survey and bio-utilization;

e) setting up of venture capital fund for aiding the cause of benefit claimers; and

f) Payment of monetary compensation and other non-monetary benefits to the benefit claimers as the NBA may deem fit.

The Biological Diversity Act 2002 provides for setting up of Biodiversity funds at National Level (Section 27), State Level (Section 31) and Local Levels (Section 43). Benefits will be given directly to individuals or group of individuals only in cases where biological resources or associated knowledge are accessed directly through them. In all other cases, monetary benefits will be deposited in the Biodiversity Fund which in turn is used for the conservation and development of biological resources and socio-economic development of areas from where resources have been accessed. The time frame and quantum of benefits to be shared shall be decided on case-to-case based on mutually agreed terms between the applicant, authority, local bodies, and other relevant stakeholders, including local and indigenous communities. One of the suggested mechanisms for benefit sharing includes direct payment to persons or group of individuals through district administration, if the biological material or knowledge is accessed from specific individuals or organizations. In cases where such individuals or organizations could not be identified, the monetary benefits shall be paid to the National Biodiversity Fund. Five percent of the benefits shall be earmarked for the Authority or State Biodiversity Board towards the administrative service charges.

The ABS procedures stipulated under the Act are in line with the provisions of international laws and policies, particularly CBD and the Bonn Guidelines. The entire procedures as described in the Act can contribute substantially to facilitate an international regime of ABS on genetic resources and traditional knowledge.

National Biodiversity Authority (Section 8)

The NBA shall be established by the central government. The National Biodiversity Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued.

The National Biodiversity Authority shall consist of the following members,

(a) a Chairperson, who shall be an eminent person having adequate knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to be appointed by the Central Government;

(b) three ex officio members to be appointed by the Central Government, one representing the Ministry dealing with Tribal Affairs and two representing the Ministry dealing with Environment and Forests of whom one shall be the Additional Director General of Forests or the Director General of Forests;

(c) seven ex officio members to be appointed by the Central Government to represent respectively the Ministries of the Central Government dealing with –

(i) Agricultural Research and Education;

(ii) Biotechnology;

(iii) Ocean Development;

(iv) Agriculture and Cooperation;

(v) Indian Systems of Medicine and Homoeopathy;

(vi) Science and Technology;

(vii) Scientific and Industrial Research;

    (d) five non-official members to be appointed from amongst specialists and scientists having special knowledge of, or experience 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, representatives of industry, conservers, creators and know ledge-holders of biological resources.

The functions of the National Biodiversity Authority (Section 18)

The Board shall advise the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilization of biological resources. It shall also advise the State Governments in the selection of areas of biodiversity importance .It is also authorized to take any measures necessary to oppose the grant of intellectual property rights in any country outside India.

Prior Approval of the NBA is necessary to obtain any biological resource occurring in India and to apply for intellectual property protection whether in India or outside India.

State Biodiversity Board (Section 22)

The State Government may, by notification in the Official Gazette, appoint for the purposes of this Act, a Board for the State to be known as the (name of the State) Biodiversity Board. The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and he sued.

The Board shall consist of the following members, namely:

• (a) a Chairperson who shall be an eminent person having adequate knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to he appointed by the State Government;
• (b) not more than five ex officio members to be appointed by the State Government to represent the concerned Departments of the State Government;
• (c) not more than five members to be appointed 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.

The Functions of State Biodiversity Boards (Section 23)

a) advise the State Government, subject to any guidelines issued by the Central Government, on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of the benefits arising out of the utilization of biological resources

b) regulate by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians

c) perform such other functions as may be necessary to carry out the provisions of this Act.

Further one has to seek prior approval of the State Board to obtain Biological Resources for commercial utilization after giving prior intimation.

Biodiversity Management Committees (Section 41)

Every local body shall constitute a Biodiversity Management Committee within its area for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity.

The National Biodiversity Authority and the State Biodiversity Boards shall consult the Biodiversity Management Committees while taking any decision relating to the use of biological resources and knowledge associated with such resources occurring within the territorial jurisdiction of the Biodiversity Management Committee.

The Biodiversity Management Committees may levy charges by way of collection fees from any person for accessing or collecting any biological resource for commercial purposes from areas falling within its territorial jurisdiction.

Penalties (Section 55)

1. Whoever contravenes or attempts to or abets the contravention of the provisions of Section 3(to obtain Biological Resources with the permission of the National Board) or Section 4(results of research not to transferred to a foreigner or NRI without the permission of the National Board) or Section 6(application of Intellectual property right not to be made without the approval of National Board) shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both.

2. Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 7 (Prior intimation to State Biodiversity Board for obtaining biological resource for certain purposes)or any order made under sub-section (2) of Section 24(order, prohibiting or restricting any such activity which is detrimental or contrary to the objectives of conservation and sustainable use of biodiversity or equitable sharing of benefits) shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.

Conclusion

India’s National Biodiversity Act and Rules form the core of India’s commitment to implementing the CBD. However, implementation of the Act requires human resource, institutional, financial capacities that still need to be strengthened along with much needed increase in awareness of public at local level in order to make the Act relevant and useful for conservation and development.