- The genesis of the Biological Diversity Act of 2002 can be traced back to India’s commitment to realize the objectives outlined in the 1992 United Nations Convention on Biological Diversity (CBD).
- This international convention recognizes the sovereign rights of states to utilize their own biological resources.
- Enacted in 2002, the legislation aims to safeguard biological resources, ensure their sustainable utilization, and facilitate an equitable distribution of benefits arising from their use and associated knowledge among local populations.
- The overarching objectives of the Act encompass regulating the appropriate utilization of components within biological diversity and ensuring the just sharing of benefits derived from such utilization.
- The Act pursues various goals, including the protection of traditional knowledge, prevention of biopiracy, prohibition of individuals obtaining patents without government consent, among others.
- In accordance with Section 8, sub-sections (1) and (3) of the Act, provisions are made for the establishment of a National Biodiversity Authority located in Chennai.
OBJECTIVES OF BIODIVERSITY ACT 2002
- Conservation of Biological Diversity: The primary objective is to conserve biological diversity by regulating and overseeing the proper utilization of its components and ensuring an equitable distribution of benefits arising from such usage.
- Protection of Traditional Knowledge: The Act aims to safeguard traditional knowledge associated with biological diversity.
- Prevention of Biopiracy: It seeks to prevent unauthorized acquisition or use of biological resources and knowledge, commonly known as biopiracy.
- Control on Patents: The Act prohibits individuals from obtaining patents related to biological resources without obtaining the necessary permission from the government.
- Biodiversity Conservation Plans: To achieve the conservation goal, the Act involves the development of national plans and programs for biodiversity conservation.
- State Powers for Biodiversity Areas: State governments are empowered to notify and preserve areas with significant biodiversity.
- Central Government Authority: The Central Government is given the authority to notify species falling under categories such as dangerously endangered, on the brink of extinction, threatened, and precluded species.
- Sustainable Use: The concept of sustainable use implies the regulation of natural resource utilization to ensure their continued availability, rather than depletion.
- Benefit Sharing: The Act includes provisions for benefit-sharing, aiming for fair and equitable distribution of benefits derived from accessed biological resources, by-products, knowledge, and associated practices. The terms and conditions for such benefit-sharing are agreed upon by the person seeking benefits and the relevant local bodies.
SALIENT FEATURES
- Prohibited Actions without Authorization: The Act prohibits certain actions without prior authorization from the National Biodiversity Authority (NBA), including acquiring biological resources for research or commercial use, disseminating study findings related to Indian biological resources, and asserting intellectual property rights over innovations created using biological materials imported from India.
- Specific Funding and Budget: Authorities conducting studies on the nation’s biological resources receive specific funding and a distinct budget as outlined by the Act.
- Monitoring and Sustainable Use: The Act empowers authorities to monitor the usage of biological resources, ensuring their sustainable use. It also grants control over financial investments, overseeing their returns and proper disposal.
- Notification of Threatened Species: The Central Government, in consultation with the NBA, is required to notify threatened species, imposing restrictions or controls on their collection, restoration, and conservation.
- Establishment of Institutions: The Act mandates the establishment of institutions as homes for various types of biological resources.
- Offence Definitions: Offences covered by the statute are classified as cognizable and non-bailable.
- National Green Tribunal Oversight: Any complaints regarding decisions on benefit-sharing or orders of the NBA or a State Biodiversity Board under this Act should be addressed to the National Green Tribunal.
EXEMPTIONS FROM BDA 2006
- Commodity Sale Exemption: The Act does not cover Indian biological resources that are typically sold as commodities. This exemption is applicable only when biological resources are exclusively used as commodities.
- Joint Research Initiatives: The legislation allows for the utilization of indigenous biological resources and associated knowledge, exempting cases where such usage is authorized by the central government for joint research initiatives involving Indian and foreign universities.
- Exemption for Cultivators and Breeders: Excluded from the Act are uses by cultivators and breeders, including farmers, animal and beekeepers, as well as traditional healers like vaids and hakims.
FRAMEWORKS OF BDA 2002
The Biological Diversity Act, 2002 establishes a three-tiered framework to regulate access to biological resources, involving:
The National Biodiversity Authority (NBA):
- The Central Government of India established the National Biodiversity Authority (NBA) in 2003 to implement the Biological Diversity Act (2002).
- NBA operates as a statutory organization, facilitating, regulating, and advising the Indian government on the preservation and sustainable use of biological resources.
- The headquarters of NBA is located in Chennai, Tamil Nadu, India.
Structure of NBA:
- Chairman: Appointed by the central government.
- Ex Officio Members: Three members, one from the ministry overseeing tribal affairs and two from the ministry overseeing environment and forests.
- Ex Officio Members Representing Central Government Ministries: Seven members from ministries such as Agricultural Research and Education, Biotechnology, Ocean Development, Agriculture and Cooperation, Indian Systems of Medicine and Homoeopathy, Science and Technology, and Scientific and Industrial Research.
- Non-Official Members: Five members selected from professionals and scientists with specialized knowledge in relevant fields of science and technology, and scientific and industrial research.
State Biodiversity Boards (SBBs):
State Biodiversity Boards are established at the state level to implement the provisions of the Biological Diversity Act within their respective states.
Biodiversity Management Committees (BMCs):
Biodiversity Management Committees operate at the local level, working to promote conservation, sustainable use, and documentation of biological diversity.
Functions of the National Biodiversity Authority (NBA):
- Creating Supportive Environment:
- Foster an environment conducive to biodiversity conservation and sustainable usage where appropriate.
- Compliance with Biological Diversity Act, 2002:
- Advise the central government on compliance with the Biological Diversity Act, enforce regulations, and provide recommendations for fair and equitable benefit sharing and access to biological resources.
- Preventing Unauthorized Intellectual Property Rights:
- Take steps to prevent the granting of intellectual property rights on biological resources obtained from India or related information unlawfully in any foreign nation.
- Advice on Designation of Historic Sites:
- Provide advice to state governments on designating places of biological value as historic sites and offer management suggestions.
State Biodiversity Boards (SBBs):
- Establishment and Structure:
- SBBs are created by State Governments in accordance with Section 22 of the Act.
- Structure includes a Chairman, up to five ex-officio members representing relevant State Government Departments, and up to five specialists in biodiversity conservation and fair benefit distribution.
- Functions of SBBs:
- Provide advice to the State Government on conservation, sustainable usage, and fair benefit sharing, following directives from the Central Government.
- Approve or impose restrictions on commercial use and bio-utilization of biological resources.
Biodiversity Management Committees (BMCs):
- Establishment and Structure:
- Every local body must establish BMCs according to Section 41 of the Act.
- Structure includes a chairperson and no more than six members chosen by the local body.
- Functions of BMCs:
- Primary responsibility is to create the People’s Biodiversity Register (PBR) in collaboration with the local population.
- The PBR includes detailed information on local biological resources, traditional knowledge, and practices.
People’s Biodiversity Registers (PBR):
- Participatory documenting of regional biodiversity, traditional knowledge, and practices.
- Legal records for establishing the rights of local residents to biological resources and related traditional knowledge.
Biodiversity Heritage Sites (BHS):
- Designation by the State Government under Section 37 of the Act.
- Criteria include richness of species, endemism, presence of endangered species, keystone species, historical importance, and cultural, ethical, or aesthetic values.
SHORTCOMINGS OF BDA 2022
- profit-Centric Emphasis:
- Emphasis on preventing profit-sharing from commercial biological resource use rather than prioritizing provisions for efficient conservation.
- Neglect of Biodiversity Protection:
- The focus on preventing bio-piracy by developed countries led to neglect of the primary goal of efficient biodiversity protection.
- Lack of Harmonization:
- Fails to serve as an umbrella and lacks harmonization with previously enacted legislation, potentially leading to inconsistencies.
- Absence of Guidelines for Non-Monopoly Rights:
- Does not establish guidelines for assigning non-monopoly rights or evaluating contributions from firms, local communities, or individual inventions.
- Weak Integration of Communities:
- The fundamental provision for integrating communities and the nation is weak, limiting effective collaboration and participation.
- Limited Rights for Immediate Holders:
- Immediate rights holders lack authority to defend their rights comparable to patent holders or applicants, hindering their ability to protect their interests.
- Unprotected People’s Biodiversity Register:
- Information recorded in the People’s Biodiversity Register is not legally protected, exposing it to entities interested in utilizing a specific area’s resources.
- Lack of Strict Monitoring:
- The absence of strict monitoring for the documentation in the People’s Biodiversity Register raises concerns about ensuring equitable benefit sharing.
BIOLOGICAL DIVERSITY AMENDMENT BILL 2021
| Provisions | Biological Diversity Act, 2002 | Amendments to the 2002 Act |
| Access to Biological Resources | Requires anyone seeking access to biological resources or associated knowledge in India to obtain prior approval or inform the regulatory authority about their intent. | The Bill modifies the classification of entities and activities requiring intimation, introducing exemptions in certain cases. |
| Intellectual Property Rights (IPR) | Demands NBA approval before applying for IPR related to biological resources from India. | Suggests that approval will be required before the actual grant of the IPR, not during the application process. |
| Exempting AYUSH Practitioners | – | Seeks to exempt registered AYUSH medical practitioners and others from giving prior intimation to State biodiversity boards for accessing biological resources for certain purposes. |
| Benefit Sharing | Mandates benefit sharing, including monetary and non-monetary benefits, determined by NBA when granting approvals. | The Bill removes the applicability of benefit sharing requirements from research, bio-survey, and bio-utilisation. |
| Criminal Penalties | Imposes criminal penalties, including imprisonment, for offenses such as not obtaining approval or intimation for specific activities. | Decriminalizes offenses, introducing fines ranging from one lakh to fifty lakh rupees instead. |
CONCERNS RELATED TO AMENDMENT
- Favoring Industry over Conservation:
- Amendments may prioritize industry interests over biodiversity conservation, contrary to CBD principles.
- Weakening benefit-sharing and community involvement frameworks.
- Decriminalization of Violations:
- Proposes decriminalization, limiting NBA’s power to file FIRs.
- Potential hindrance to enforcing biodiversity protection laws.
- Exemption for Domestic Companies:
- Only “foreign-controlled companies” need permission for biodiversity resource use.
- Concerns about unchecked exploitation by domestic companies with foreign shareholding.
- Limited Benefit Sharing:
- Exemption for “codified traditional knowledge” may allow profiteering without benefit sharing.
- Risks neglecting responsibility to share profits with traditional knowledge holders.
- Ignoring Conservation Issues:
- Amendments criticized for not effectively addressing biodiversity conservation challenges.
- Perception of a focus on reducing regulations, potentially impacting biodiversity and traditional knowledge holders negatively.
WAY FORWARD
Achieving a harmonious blend of economic development and sustainable biodiversity conservation in India requires a strategic approach. Here’s a proposed way forward:
- Balancing Act:
- Economic Development and Conservation: Strive for policies that balance economic growth with biodiversity preservation, aligning with national and international commitments.
- Inclusive Consultations:
- Stakeholder Engagement: Initiate transparent and inclusive dialogues with diverse stakeholders, such as local communities, indigenous groups, conservationists, scientists, and industry representatives.
- Varied Perspectives: Ensure that the decision-making process considers the diverse perspectives of all stakeholders.
- Scientific Rigor:
- Informed Decision-Making: Base decisions on rigorous scientific evidence, ensuring that biodiversity conservation measures are effective and sustainable.
- Public Awareness:
- Education and Awareness: Promote public awareness regarding the importance of biodiversity conservation and the potential impacts of legislative amendments.
- Community Involvement: Encourage active involvement and understanding among communities to garner support for conservation efforts.
- Adaptive Management:
- Flexibility in Policies: Implement policies that can adapt to changing circumstances and emerging conservation needs over time.
- Monitoring and Evaluation:
- Impact Assessment: Establish a robust monitoring and evaluation framework to assess the impact of legislative changes on biodiversity conservation regularly.
- International Collaboration:
- Global Cooperation: Collaborate with international bodies and countries to share best practices, experiences, and technologies in biodiversity conservation.
- Legal Safeguards:
- Protecting Indigenous Knowledge: Strengthen legal provisions to safeguard indigenous knowledge and ensure fair benefit-sharing mechanisms.
FAQs – Biological Diversity Act 2002
1. What is the Biological Diversity Act (BDA) 2002?
A: The Biological Diversity Act, enacted in 2002, is a legislation in India designed to regulate access to biological resources, protect traditional knowledge, and ensure the fair and equitable sharing of benefits derived from their utilization.
2. What prompted the enactment of the Biological Diversity Act 2002?
A: The Act was enacted to fulfill India’s commitments under the 1992 United Nations Convention on Biological Diversity (CBD), recognizing the sovereign rights of states over their biological resources.
3. What are the primary objectives of the Biological Diversity Act 2002?
A: The Act aims to conserve biological diversity, protect traditional knowledge, prevent biopiracy, control patents related to biological resources, and facilitate the sustainable use of biological resources.
4. How is the Act structured in terms of enforcement at different levels?
A: The Act establishes a three-tiered framework comprising the National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at the local level.
5. What is the main objective of the Biological Diversity Act 2002?
A: The primary objective is the conservation of biological diversity by regulating the proper utilization of its components and ensuring an equitable distribution of benefits arising from such usage.
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