29 Conservation of Biodiversity (Biological Diversity) Act, 2002

Dr. Lubna Siddiqui

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    Structure

 

1.1 Introduction to Biodiversity

 

1.2 Necessity of Biodiversity

 

1.3 Threats to Biodiversity

 

1.4 Biodiversity (Biological Diversity) Act, 2002

 

1.5 Objectives of the Act

 

1.6 Salient Features of the Act

 

1.7 Proposed Institutional Mechanism

 

1.8 Activities for Permission under the Act

 

1.9 Offences and Penalties under the Conservation of Biodiversity Act-2002

 

1.10 Weaknesses of the Act

 

1.11 Criticism of the Act

 

Objectives:

  • To comprehend importance and need of Biodiversity.
  •  To highlight threats to biodiversity
  • To confer familiar understanding about Biodiversity (Biological Diversity) Act, 2002
  • To discuss objectives and salient features of Biodiversity (Biological Diversity) Act, 2002
  •  To make familiar with proposed institutional mechanism , offences and penalties of Biodiversity (Biological Diversity) Act, 2002
  • To examine weaknesses and drawbacks of Biodiversity (Biological Diversity) Act, 2002

     1.1 Introduction to Biodiversity

 

Today most of us live in a socially and technologically evolved society where our exploitive potential and knowledge of nature has increased academically. The problem is that our contact with it has diminished morally. It may have diminished to such an extent as to be dangerous to us and to the nature itself. Biodiversity is the vast array of all the species of plants, animals, insects and the microorganisms inhabiting the earth either in the aquatic or the terrestrial habitats. The human civilization depends directly or indirectly upon this biodiversity for their very basic needs of survival–food, fodder, fuel, fertilizer, timber, liquor, rubber, leather, medicines and several raw materials. This diversity’s regulates the condition for the long-term sustainability of the environment, continuity of life on earth and the maintenance of its integrity. Although our understanding of the earth’s organisms–its biological resources- is still imperfect, there is no doubt that the abundance and diversity of living organisms provide many benefits and make our world a beautiful and interesting place to live. Biodiversity is generally described in terms of its 3 fundamental and hierarchically related levels of biological organisms.

 

       Biological diversity or biodiversity is that part of nature which includes the differences in genes among the individuals of a species, the variety and richness of all the plant and animal species at different scales in space, locally, in a region, in the country and the world, and various types of ecosystems, both terrestrial and aquatic, within a defined area. Biological diversity deals with the degree of nature’s variety in the biosphere. This variety can be observed at three levels; the genetic variability within a species, the variety of species within a community, and the organisation of species in an area into distinctive plant and animal communities constitutes ecosystem diversity.

 

“Biodiversity is the vast array of all the species of plants, animals, insects and the microorganisms inhabiting the earth either in the aquatic or the terrestrial habitats”.

 

1.2 Necessity of Biodiversity

 

Biodiversity is extremely important to people and the health of ecosystems. It provides an enormous range of goods and other services immediate as well as long term, material as well as spiritual and psychological which are vital to our well being. A few of the reasons are:

 

Consumption Use: It provides us with an array of foods and materials and it contributes to the economy. Without a diversity of pollinators, plants, and soils, our supermarkets would have a lot less produce. Man is mostly dependent on plant and animal resources for his’ dietary requirements.

 

Medicine: Most medical discoveries to cure diseases and lengthen life spans were made because of research into and animal biology and genetics. Many medicinal and aromatic plants are being exploited in the wild to tap their potential for different ailment cure in the field of drug extraction exampleHippophaerhamnoides, Ephedra Kerardiana. Dactylorrahizahatageriaetc. Besides, they are being cultured in plantations and protected in wild to encourage in-situ and ex-situ conservation viz. Valley of flowers, Rohtang in Kullu, Lahu and Spiti Valley.

 

Ecological Benefits: They include everything from cleaning water and absorbing chemicals, which wetlands do, to providing oxygen for us to breathe – one of the many things that plants do for people.Man cannot have control over nature in the wild. It can only put pressure on resources and pollute environment. Then what makes environment act as a self-replenishing system with respect to resource generation and self cleanliness. To answer this comes into picture the role of biological communities. The processes of soil formation, waste disposal, air and water purification, nutrient cycling, solar energy absorption, and management of biogeochemical and hydrological are all beyond the scope of man’s control.

 

Cultural  Benefits: A particular species or community of organisms may have emotional value for a group of people who feel that their identity is inextricably linked to the natural components of the environment that shaped their culture. This may be expressed as a religious value, or it may be a psychological need for access to wildlife. In either case, we often place a high value on the preservation of certain wild species.

 

Biodiversity allows for ecosystems to adjust to disturbances like extreme fires and floods. If a reptile species goes extinct, a forest with 20 other reptiles is likely to adapt better than another forest with only one reptile. Genetic diversity prevents diseases and helps species adjust to changes in their environment.

 

1.3 Threats to Biodiversity

 

Extinction is a natural phenomenon. Over the history of the planet most of the species that ever existed, evolved and then gradually went extinct. Species go extinct because of natural shifts in the environment that take place over long periods of time, such as ice ages. Today species are going extinct at an accelerated and dangerous rate, because of non-natural environmental changes caused by human activities. Some of the activities have direct effects on species and ecosystems, such as habitat loss, over-exploitation and spread of non-native species and diseases. All of these threats have put a serious strain on the diversity of species on Earth. According to the International Union for Conservation of Nature (IUCN), globally about one-third of all known species are threatened with extinction. That includes 29 percent of all amphibians, 21 percent of all mammals and 12 per cent of all birds. If we do not stop the threats to biodiversity, we could be facing another mass extinction with dire consequences to the environment and human health and livelihood. Thus a need arise to save our biodiversity and there are many Programmes and Acts which has been initiated at national and international level and from among these Acts the Conservation of Biodiversity Act 2002 has been discussed in detail below.

    1.4 Biodiversity (Biological Diversity) Act, 2002

 

Biodiversity Act or Biological Diversity, 2002 came into existence much later than the other existing laws on environment such as the Indian Forest Act-1927, Wildlife Protection Act-1972, and Environment Protection Act-1986 etc. Though all these legislations laid impetus on the conservation of the environment, yet none of them properly addressed all the dimensions of the ecological and biodiversity preservation.All these conventions were to cater to the needs of the protection to the wildlife and the environment.

 

Landmarks of Biodiversity (Biological Diversity) Act, 2002

 

The Biological Diversity Act 2002 was born out of India’s attempt to realise the objectives enshrined in the United Nations Convention on Biological Diversity (CBD) 1992 which recognizes the sovereign rights of states to use their own Biological Resources.

 

Post 1990s, there was a change in the economic structure from closed economy to open economy. Thus, there were no laws to protect bio-piracy by the developed nation on the Indian soil. Hence, a strong legislation was required to curtail the overexploitation and piracy of the indigenous resources.

 

During the period of 2000-2002, a civil society group was commissioned for preparing India’s National Biodiversity Strategy and Action Plan. However, this plan was not accepted by the government. Therefore, the government decided to release its own draft on National Biodiversity Plan which was made by the technocrats.

 

The Act of 2002, based on this plan was passed by the LokSabha on 2nd December, 2002 and RajyaSabha on 11th December, 2002.

 

The Biological Diversity Act (BDA) was formulated after India became signatory to the CBD. The draft legislation was developed through an intensive consultation process involving all stakeholders such as the Central Government, State Governments, institutions of local self-government, scientific and technical institutions, experts, non-governmental organizations, industry, etc.

 

1.5 Objectives of the Act

 

The basic objectives were the Conservation of Biodiversity followed by sustainable use of its resources and lastly, fair and equitable sharing of the benefits arises out of utilization of genetic resources and through a just process for purposes of implementing the objects of the Act it establishes the National Biodiversity Authority in Chennai. It further requires that all inventors obtain the consent of the National Biodiversity Authority before applying for intellectual property rights where the invention is based on any biological resource obtained from India, and grants the authority the power to impose benefit sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising out of the commercial utilization of such rights. Given the lack of extraterritorial jurisdiction of the National Biodiversity Authority and its inability to monitor applications overseas though, the efficacy of such a provision will remain in doubt.

 

The Act aims at:

 

Conservation of biological resources and associated knowledge.

 

Facilitating access to biological resources in a sustainable manner.

 

The Biodiversity Act is a federal legislation enacted by the Parliament of India for preservation of biological diversity in India, and provides mechanism for equitable sharing of benefits arising out use of traditional biological resources and knowledge.

 

The Act was enacted to meet the obligations under Convention on Biological Diversity (CBD), to which India is a party.

 

Particularly it aimsto provide for the conservation of biological diversity, sustainable use of its components and for the equitable sharing of the benefits arising out of the use of biological resources.

 

It institutes a National Biodiversity Authority at the national level and State Biodiversity Authorities at the state level, as nodal bodies to oversee the conservation, use and sharing of the benefits from the use of biological resources.

 

Making  prior  intimation  of  the  intention  to  obtain  biological  resources  for commercial utilization or bio-survey or bio-utilization, to these boards mandatory.

 

 

1.6 Salient Features of the Act

 

i. Approval of Indian Government is needed for transfer of Indian genetic material outside the country and for anyone claiming an Intellectual Property Right (IPR), such as a patent, over biodiversity or related knowledge.

 

ii. Other than local communities all Indian nationals were regulated for collection and use of biodiversity.

 

iii. Measures for sharing of benefits from the use of biodiversity, including transfer of technology, monetary returns, joint research and development, joint IPR ownership, etc.

 

iv. Measures to conserve and sustainably use biological resources, including habitat and species protection, environmental impact assessments (EIAs) of projects, integration of biodiversity into the plans, programmes, and policies of various departments/sectors;

 

v. Provisions for local communities to have a say in the use of their resources and knowledge, and to charge fees for this;

 

vi. Protection of indigenous or traditional knowledge, through appropriate laws or other measures such as registration of such knowledge;

 

vii. Regulation of the use of genetically modified organisms;

 

viii. Setting up of National, State, and Local Biodiversity Funds, to be used to support conservation and benefit-sharing;

 

ix. Setting up of Biodiversity Management Committees (BMC) at local village level, State Biodiversity Boards (SBB) at state level, and a National Biodiversity Authority (NBA).

 

 

1.7 Proposed Institutional Mechanism

     For the effective implementation of the BDA, the Central Government would undertake activities to develop national strategies, plans and programmes for conservation and sustainable use of biological resources, with the following proposed institutional mechanisms:

 

It would take measures for identification and monitoring biodiversity-rich areas and notify threatened species.

 

It would also undertake promotion of incentives for research, training, public awareness and education with respect to biodiversity, and make assessment of environment impact of any activity likely to have adverse impact on biological diversity.

 

It would regulate, manage or control the risks associated with use and release of living modified organisms resulting from biotechnology, likely to have adverse impact on conservation and sustainable use of biodiversity and human health.

 

It may also declare some resources to be exempted from the provisions of this Act, including resources normally traded as commodities.

 

It is proposed to have National Biodiversity Authority (NBA), State Biodiversity Boards (SBB) and Biodiversity Management Committees (BMC) for effective implementation of the Act.

 

The NBA will deal with matters relating to requests for access by foreign individuals, institutions or companies, and those relating to transfer of results of research to any foreigner.

 

Imposition of terms and conditions to secure fair and equitable sharing of benefits arising out of utilization of biological resources and approvals for seeking any form of Intellectual Property Rights (IPR) in or outside India for an invention based on research or information pertaining to a biological resource or knowledge associated thereto obtained from India, would also be dealt with by the NBA.

 

SBB would be constituted for every state in India to deal with matters relating to access by Indians for commercial purposes and restrict any activity which violates the objectives of conservation, sustainable use and equitable sharing of benefits.

 

1.8 Activities for Permission under the Act

 

    1.9 Offences and Penalties under the Conservation of Biodiversity Act-2002

 

The offences under the biological diversity act are cognizable and non-bailable (section-58).

 

No court shall take cognizance of any offence under this Act or rules and regulations made there under save on a complaint made by the National Biodiversity Authority or State Bio diversity board, as the case may be (section-61).

 

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 Sate Biodiversity Board for anything which is done in good faith or intended to be done under this Act or the rules or regulations made there under (section-54).

 

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force (section-59).

 

1. The following shall be punishable with imprisonment for a term which may extend to five years or fine which may extend to ten lakh rupees or both.

 

 

a) A non-citizen and an Indian who is an individual or a body corporate having non- Indian participation shall if he undertakes biodiversity related activities without prior approval of the National Biodiversity Authority (Contravention of the provisions of section-3).

 

b) Any person whether a citizen or not transfers results of any research relating to any biological resources for monetary consideration to any person who is not a citizen of India.(contravention to the provision of section 4) and.

 

c) Any person who makes an application for an Intellectual Property Right on an invention based of any research or information on a biological resource obtained from India without previous approval of the National Biodiversity Authority before making such application. (Contravention of the provision of Section 6).

 

2. The following 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 both.

 

a) Any citizen of India excluding Vaids and Hakims who are practicing indigenous medicines, who obtains any biological resource for commercial utilization or bio survey without giving prior intimation to the Sate Biodiversity Board (Contravention to the provision of section 7).

 

b) Any citizen of India or a body corporate, organization or association registered in India intending to undertake any activity of obtaining biological resources for commercial utilization violates the order that he shall give prior intimation in such forms as may be prescribed by the State Government to the State Biodiversity Board. (Contravention of any order made under sub-section (1) of section-24).

 

3. If a person contravenes any direction given or order made by the Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punishment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second or a subsequent offence, with fine which may extend to two lakh rupees and in the case of a continuous contravention with additional fine which may extend to two lakh rupees everyday during which the default continues.(sec.56)

 

1.10 Weaknesses of the Act

 

It exempts those plants that are registered under the Protection of Plant Varieties and Farmers’ Rights (PVPFR) Act, 2001. This Act provides corporations and scientists who are breeding new varieties of crops, to gain intellectual property rights.

    It does not provide citizens the power to directly approach the courts; such power is restricted to an appeal in the High Court against any order by the NBA or the SBB.

 

   It is unnecessarily soft on Indian corporate and other entities, requiring only ‘prior intimation’ to a SBB for the commercial use of bio-resources, rather than permission from the NBA as in the case of foreigners. This is unjustified, given that Indians (especially industrial corporations) are not necessarily any more responsible towards the environment or towards local communities, also some Indian companies could just be local fronts for foreign enterprises.

 

It does not fully empower local communities, to protect their resources and knowledge from being misused, or to generate benefits (except charging collection fees). It has very weak or no representation of local community members on the State Biodiversity Boards or National Biodiversity Authority.

 

 

1.11 Criticism of the Act

 

The formulation of the Biodiversity Act, 2002 nearly took a decade after the ratification of the Convention on Biological Diversity. Thus, it clearly demonstrates that the government officials, NGO’s and academicians formulated the provisions after through research and consideration. Eventually with the enactment of the Biodiversity Rules under Biodiversity Act in 2004, there was an establishment of Biodiversity Management Committee which gave powers to the local and indigenous communities to voice out there opinion conservation, use and equitable sharing. However, certain lacunas are still apparent in the Act. A major flaw is that this act does not give sufficient consideration to conservation; rather it lays more emphasis on preventing profit-sharing from the commercial use of the biological resources. It is true that the foundation of this act was laid to prevent bio-piracy by the developed nations. There were several problems with the Rules which would only facilitate privatisation of biological resources and knowledge, allow bio-piracy, weaken the communities’ rights over natural resources and allow vested interests to exploit India’s biodiversity. However, one cannot forget another major aim of this act i.e. to protect the biodiversity. After the draft Rules were put up for public comment in 2003, several citizens and groups sent in detailed comments to MoEF (Ministry of Environment and Forest), but each of these was completely ignored in the finalisation of the Rules. Indeed, the draft Rules finally notified on 15th April 2004 was almost identical to the draft put up for public comment, including repeating scientific mistakes. This was a mockery of “public participation”.

 

 

you can view video on Conservation of Biodiversity (Biological Diversity) Act, 2002

 

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