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Indias Biodiversity Act 2002 and Its Role in Cons
Indias Biodiversity Act 2002 and Its Role in Cons
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K. VENKATARAMAN
National Biodiversity Authority, #475, 9th South Cross Street, Kapaleeswar Nagar, Neelankarai,
Chennai 600 041
Abstract: This paper summarizes the main features of India’s Biological Diversity Act
2002 (BD Act) and its role in biodiversity conservation in the country. In order to implement
this Act, in accordance with its section 8, a National Biodiversity Authority (NBA) was
established in the year 2003. The BD Act provides provisions for regulated access to biological
resources by bonafide end-users for various purposes including scientific research, commercial
activities and sustainable use of non-timber forest produce. The Act is implemented through
three functional bodies viz., NBA at the national level, State Biodiversity Boards (SBBs) in
different states, and Biodiversity Management Committees (BMCs) at the level of local
community (Panchayat). At the national level, NBA is responsible for decisions pertaining to
access and benefit sharing (ABS), approval for access to and transfer of biological resources,
results or technology of scientific research to foreign citizens, companies or non-resident
Indians and several other matters related to conservation of India’s biodiversity. The Act
insists upon appropriate benefit sharing under mutually agreed terms related to access and
transfer of biological resources or knowledge occurring in or obtained from India for various
purposes.
e-mail: venkyzsi56@yahoo.com
24 INDIA’S BIODIVERSITY ACT 2002
Key words: Access and benefit sharing, biodiversity act, convention on biodiversity,
National Biodiversity Authority, Peoples’ Biodiversity Register.
production of 8.09 million tonnes (3.26 million and biodiversity at international, national and
tonnes from the marine sector and 4.83 million regional levels. Some of the significant initiatives
tonnes from the inland sector) has been achieved include the World Heritage Convention (1972),
at the end of the 2007. Convention on International Trade in Endangered
India holds a prominent position among the Species of Flora and Fauna (CITES) 1975, Ramsar
eight Vavilovian Centres of origin of cultivated Convention on Wetlands (1975), FAO’s
plants, which is the geographic region where crops International Undertaking on Plant Genetic
exhibit maximum diversity in terms of number of Resources (1983), Convention on Biological
races and botanical varieties (Vavilov 1926). Diversity (1992), UN Convention to Combat
Today, about 166 crop species and well over 324 Desertification (1994), Trade Related Intellectual
species of wild relatives of crop plants are Property Rights (WTO-1994) 1994, Cartagena
recognized and utilized for food production. Wild Protocol for Biosafety to CBD (2000), International
edible plants account for nearly 1000 species Treaty on Plant Genetic Resources for Food and
serving various purposes: 145 as roots/tubers, 526 Agriculture (FAO 2001), Global Strategy for Plant
as leafy vegetables/greens, 101 for buds/flower, 647 Conservation (2002), the Bonn Guidelines on
for fruits and 18 for seeds and nuts (Anonymous Access to Genetic Resources and Fair and
1994). Equitable Sharing of the benefits arising out of
Though, India can boast of having an their utilization (2002) among others. Consequent
impressive range of biological diversity, there is upon the ratification of CBD by India on 18th
hardly any scope for complacency. Ever mounting February 1994 and in pursuance of the Conference
human population, rapid expansion of agriculture, of Parties the Government of India, predominantly
industry, urbanization and large scale the Ministry of Environment and Forests, has
developmental projects such as dams, highways, taken steps to implement the CBD provisions by
mining have led to habitat destruction, promulgating the Biological Diversity Act, 2002 in
fragmentation, degradation and over exploitation the Parliament of India. Recognizing the urgent
of biological resources. Coupled with these factors need to develop human resources, capabilities and
unsustainable resource use practices and illegal public policy in order to take an active part in the
trade of high value wildlife products have severely new economy associated with the use of Biological
threatened many species of flora and fauna. The Diversity and Biotechnology, seventeen
agro-biodiversity has also suffered seriously due to biodiversity rich countries have formed a group
introduction and promotion of few ‘high yielding’ known as Like Minded Mega-diverse Countries
varieties. Yet very little has been done to harness (LMMC). In a recent meeting held in New Delhi
the traditional knowledge on biodiversity inherited (2005), this group has adopted the “New Delhi
by a large number of local communities, given that Ministerial Declaration of LMMCs on Access and
India has had rich tradition of conserving nature Benefit Sharing”, which is a new beginning
and natural resources. Worship of trees, forests, towards international regime on access and benefit
rivers, ponds, mountains and association of sharing as a legally binding instrument (http://
animals and birds with gods and goddesses had www.lmmc.nic.in/prologueLmmc_new.php?Section
contributed immensely to their conservation =two).
during historic past. This calls for a concerted
effort towards scientific research, education and National legislation and implementing
policy back up so as to conserve the extant agency
biodiversity while ensuring economic and
The Government of India brought the CBD
ecological security.
into force from 19th May 1994. This convention
provides a framework for the sustainable
Policy initiatives and legal management and conservation of India's natural
framework resources. In order to regulate access to biological
resources of the country with the purpose of
International conventions securing equitable share in benefits arising out of
India has taken a number of policy initiatives the use of biological resources and associated
towards conservation of nature, natural resources knowledge, to conserve and sustainably use
26 INDIA’S BIODIVERSITY ACT 2002
(i) Access to biological resources and regulatory in nature, not prohibitive in any
traditional knowledge to foreign citizens, manner to any applicant irrespective of their
companies and non-resident Indians nationality, affiliations and origin. Since inception,
(NRIs) based on ‘prior approval of NBA’ NBA has received over 298 applications for access
(Section 3, 4, 6 of the Act and Rule 14-20). and transfer of bio-resources and patent
(ii) Access permits to Indian citizens, (http://www.nbaindia.org/approvals/status_approval
companies, associations and other s.htm).
organizations registered in India on the
basis of ‘prior intimation to the State Revocation of access or approval
Biodiversity Board’ concerned (Section 7 of
Revocation of access or approval granted to an
the Act).
applicant will be done only on the basis of any
(iii) Exemption of prior approval or intimation
complaint or suo moto under the following
for local people and communities, including
conditions: (i) violation of the provisions of the Act
growers and cultivators of biodiversity, and
or conditions on which the approval was granted
Vaids and Haqims, practicing indigenous
(ii) non-compliance of the terms of the agreement
medicines (Section 7 of the Act).
(iii) failure to comply with any of the condition of
The key procedures to be followed for access to
access granted (iv) on account of overriding public
biological resources and traditional knowledge are
interest or for protection of environment and
dealt with under Rule 14 of the Biodiversity Rules
conservation of biodiversity (Rule 15, Sub rule 1).
2004. These provisions are laid down to ensure
After having withdrawn the access permit, the
effective, efficient and transparent access
Authority is required to send an order of
procedures through written agreements and
revocation to the concerned BMC and the SBB for
applications in prescribed formats. Applicants
prohibiting the access and to assess the damage, if
seeking access to biological resources and
any, caused and steps to recover the damages
traditional knowledge are required to submit an
(Rule 15, Sub rule 2) (http://www.nbaindia.org/
application in Form I (http://www.nbaindia.org
rules.htm).
/applications/ ruleform14.htm) along with an
application fee of INR 10,000/- (http://www.
Restrictions for access to biological resources
nbaindia.org/applications/ application.htm). Once
the application is approved for access, an The Act imposes certain restrictions on request
agreement has to be signed by the applicant for related to access to biological resources and
access of bio-resources. traditional knowledge if the request is on: (i)
The NBA through appropriate consultation endangered taxa (ii) endemic and rare taxa (iii)
mechanisms, approves the applications and likely adverse effects on the livelihood of the local
communicates its decision to grant access or people (iv) adverse and irrecoverable
otherwise to the applicant within a period of six environmental impact (v) cause genetic erosion or
months from the date of receipt of the application. affect ecosystem function (vi) purpose contrary to
The authority is required to communicate the national interests and other related international
grant of access to the applicant in the form of a agreements to which India is party (Rule 16, Sub
written agreement duly signed by an authorized rule 1) (http://www.nbaindia.org/rules.htm).
official of the authority and the applicant. The rule
14 also stipulates the authority to provide reasons Procedure for prior approval of transfer of
in writing in cases of rejection of an application research results
and give reasonable opportunity to the applicant to
Guidelines on collaborative research projects
appeal. Provision has been made that the
(under Section 5 of the BD Act) involving transfer
authority shall publish the approval granted
or exchange of biological resources or information
through print or electronic media and also shall
relating thereto between institutions, including
monitor the compliance of the conditions agreed to
government sponsored institutions of India and
at the time of accordance of approval of grant for
such institutions in other countries has been
access, by the applicant (http://www.nbaindia.
prepared and notified (http://www.nbaindia.org/
org/approvals.htm). The access procedures are only
docs/so-1911-english.pdf). Establishment of
28 INDIA’S BIODIVERSITY ACT 2002
Designated National Repository (DNR) (Section results to the applicant in the form of a written
39) is an essential part of the infrastructure for agreement duly signed by an authorized official
biodiversity conservation. DNR consists of service and the applicant. The authority shall
providers and repositories of preserved specimen communicate the reasons in case a request for
consisting of all fauna, herbarium (dried plant transfer of research results is not granted and
material for research), the living cells, genomes of shall give reasonable opportunity and time to the
organism, and information relating to heredity and applicant for an appeal, if any (Rule 17, Sub rules
the functions of biological systems. DNRs also 1-6).
contain collections of culturable organisms (e.g.
micro-organisms, plant, animal and human cells), Criteria for benefit sharing
replicable parts of these (e.g. genomes, plasmids,
The Act, according to Section 21 and Rule 20 of
viruses, cDNAs), viable but not yet culturable
the Biodiversity Rules, (http://www.nbaindia.org
organisms, cells and tissues, as well as databases
/rules.htm) insists upon including appropriate
containing molecular, physiological and structural
benefit sharing provisions in the access agreement
information relevant to these collections and
and mutually agreed terms related to access and
related bioinformatics.” The NBA has prepared
transfer of biological resources or knowledge
guidelines on DNR and it is in the process of
occurring in or obtained from India for commercial
notification. The other guidelines such as access to
use, bio-survey, bio-utilization or any other
bio-resources or associated knowledge for research
monetary purposes. The NBA is in the process of
or for commercial purpose by foreigners (Section 3
developing a guideline based on the provision of
of the BD Act) and determination of equitable
the BD Act and the same will be notified with the
benefit sharing arising out of the use of accessed
specific details of benefit sharing formula in an
biological resources, their by-products, innovations
official gazette on a case-to-case basis. While
and practices associated with their use and
granting approvals for access, NBA will impose
applications and knowledge (Section 21 of the BD
terms and conditions so as to secure equitable
Act), transfer of results of any research relating to
sharing of benefits. These benefits, inter alia
any biological resources occurring in or obtained
include:
from India for further research or for
a) grant of joint ownership of intellectual
commercialization (Section 4 of BD Act),
property rights to the NBA, or where
intellectual property rights of invention based on
benefit claimers are identified, to such
any research or information on a biological
benefit claimers;
resources obtained from India (Section 6 of the BD
b) transfer of technology;
Act), biological resources normally traded as
c) location of production, research and
commodities (Section 40 of the BD Act), and areas
development units in such areas which will
of importance as Biodiversity Heritage sites
facilitate better living standards to the
(Section 37) are in the process of notification under
benefit claimers;
the Act.
d) association of Indian scientists, benefit
The Act does not permit any person to transfer
claimers and the local people with research
the results of any research relating to biological
and development in biological resources
resources obtained from India for monetary
and bio-survey and bio-utilization;
consideration to foreign nationals, companies or
e) setting up of venture capital fund for
NRIs without the prior approval of the authority
aiding the cause of benefit claimers;
(Section 4). Approval for such transfers shall be
f) payment of monetary compensation and
done on the basis of an application to authority in
other non-monetary benefits to the benefit
Form II (http://www.nbaindia.org/applications
claimers as the NBA may deem fit.
/ruleform17.htm) along with the payment of an
The BD Act provides for setting up of
application fee of INR 5000/-. The authority within
biodiversity funds at national, state and local
a period of three months from the receipt of an
levels. Benefits will be given directly to individuals
application shall take a decision on it. As in the
or group of individuals only in cases where
case of access permits the authority shall
biological resources or associated knowledge are
communicate the approval for transfer of research
accessed directly through them. In all other cases,
VENKATARAMAN 29
monetary benefits will be deposited in the local and traditional communities in all decision-
Biodiversity Fund which in turn is used for the making processes related to biological diversity
conservation and development of biological and traditional knowledge. BMCs are entrusted
resources and socio-economic development of areas with the preparation of PBRs (http://www.
from where resources have been accessed. The nbaindia.org/docs/comments-the-piblic. pdf) and to
time frame and quantum of benefits to be shared assist the SBBs and NBA in matters on ABS
shall be decided on case-to-case based on mutually related to local biogenetic resources and
agreed terms between the applicant, authority, traditional knowledge. With the globalization and
local bodies, and other relevant stakeholders, increasing influence of IPRs, there is an urgent
including local and indigenous communities. One need to develop appropriate national and
of the suggested mechanisms for benefit sharing international guidelines for implementing the
includes direct payment to persons or group of provisions of ABS and thereby preventing
individuals through district administration, if the misappropriation of traditional knowledge as well
biological material or knowledge is accessed from as conserving of bioresources for the future.
specific individuals or organizations. In cases
where such individuals or organizations could not References
be identified, the monetary benefits shall be paid
to the National Biodiversity Fund. Five percent of Anonymous. 1994. Conservation of Biological Diversity
the benefits shall be earmarked for the Authority in India: An Approach. Ministry of Environment
or State Biodiversity Board towards the and Forests, Government of India.
administrative service charges. Approval Status: http://www.nbaindia.org/approvals/
The ABS procedures stipulated under the status_approvals.htm
Biodiversity Act (2002) are in line with the Biological Diversity Act. http://www.nbaindia.org/act
provisions of international laws and policies, /act_ch3.htm
particularly CBD and the Bonn Guidelines. The Biological Diversity Act: http://www.nbaindia.org/act/
entire procedures as described in the Act can act_english.htm
contribute substantially to facilitate an Biological Diversity Act, 2002: http://www.nbaindia.org
international regime of ABS on genetic resources /act/act_english.htm
Biological Diversity Rules: http://www.nbaindia.org
and traditional knowledge.
/rules.htm
Botanical Survey of India: http://envfor.nic.in/bsi
Peoples’ Biodiversity Registers (PBRs)
/books.html
The rules promulgated under BD Act include Gadgil, M. 1996. Peoples’ Biodiversity Register. A Record
the provision to constitute the BMCs. The main of India’s Wealth. Amruth, 1-16. October.
function of BMC is to prepare Peoples’ Biodiversity Gadgil, M. 2006. Methodology Manual for People’s
Registers (PBR) in consultation with the local Biodiversity Register. National Workshop on
people. The register shall contain comprehensive People’s Biodiversity Register 22-23 June 2006.
information on availability and knowledge of local National Biodiversity Authority, Chennai.
biological resources or any other traditional Guidelines - Collaborative Projects: http://www.
knowledge associated with them. Preparation of nbaindia.org/docs/so-1911-english.pdf
IPR Application Form: http://www.nbaindia.
PBRs involves the active support and cooperation
org/applications/ ruleform19.htm
of a large number of people who need to share
LMMC: http://www.lmmc.nic.in/prologueLmmc_new.
their common as well as specialized knowledge.
php?Section=two)
The documentation of PBR by the BMCs includes
Ministry of Environment and Forests: http://
information on bio-resources and associated
envfor.nic.in/
knowledge gathered from individuals (Gadgil Mudgal, V. & P.K. Hajra. 1997. Floristic Diversity and
1996). Establishment of comprehensive PBRs Conservation Strategies in India. Vol. 1: Cryptogams
would not only help to inventorize and document and Gymnosperms. Botanical Survey of India,
the local biological and genetic resources, but also Calcutta.
to conserve and sustainably use the bio-cultural National Biodiversity Authority: http://www.nbaindia.
diversity for rewarding income generation (Gadgil org/applications/ ruleform14.htm
2006). PBR also ensures active involvement of the
30 INDIA’S BIODIVERSITY ACT 2002
National Biodiversity Authority: http://www.nbaindia. Vavilov, N. I. 1926. Studies on the origin of cultivated
org/approvals.htm) plants. Bulletin of Applied Botany 16: 1-248.
Rodgers, W.A. & H.S. Panwar. 1990. Planning a Venkataraman, K. 2006. Biodiversity legislations in
Protected Area Network in India. Vol. 1 & 2. Wildlife likeminded mega diversity countries. pp.79-92. In:
Institute of India, Dehra Dun. D.D. Verma, S. Arora & R.K. Rai (eds.) Perspectives
Transfer Res. Results Application: http://www.nbaindia. in Biodiversity. Ministry of Environment and
org/applications/ruleform18.htm Forests, Govt. of India, New Delhi.
Third Party Transfer Application: http://www.nbaindia.
org/docs/comments-the-piblic.pdf