ABSTRACT

India as a country has a huge stock of Biological Resources along with the traditional knowledge
associated with the utilization of such resources, however there have been several issues that
have emerged due to increasing commercialization of these resources. One such issue is the
dispute relating to the protection of Intellectual Property Rights over those resources. Instances
of Neem, Basmuti and several other such disputes have increased the concerns over this matter
for which a distinct study in this field has become utmost necessary for protecting the rights of
the local communities that are associated in the process of conservation of these resources.
Further, such traditional knowledge is also vital for the country’s economy most of which are
nourished by the traditions of various distinct local communities of the land.
This paper will therefore try to understand the various problems associated with the matter of
Intellectual Property Rights over the Biological Resources as well as will try to analyze the laws
governing this sector.
INTRODUCTION
Representing in the truest essence, the sustenance of all life on earth, biodiversity stands to be the
pedestal supporting the coexistence of all varieties of living organisms from several sources
which include the terrestrial, marine and all aquatic ecosystems. Biodiversity is also a foundation
for traditional and modern medicines, a source of food, provides raw materials for trade and
business.
Therefore, biodiversity loss would have negative repercussions on the lives of every species
existing on earth, causing an imbalance in the ecosystem which would eventually lead to the
destruction of the natural environment. Being one of the greatest diverse countries in the world
and holding a global record for being home to the most unique species, India has experienced
threats and semi-destruction of its biodiversity due to out bursting population, overutilization and
exploitation of resources, climate change, habitat loss due to human development, increasing
pollution levels and so on.
BIODIVERSITY IN INDIA ( BIOLOGICAL DIVERSITY ACT 2002) :
Before the Biological diversity Act, 2000, India had several environmental legislations put to
work but certainly a void existed which required the enactment of this Act in 2002. India had
signed the Convention on Biological Diversity at Rio de Janeiro providing a framework and
foundation for sustainable development and preservation of its biodiversity with a lot of focus on
natural resources. Following this ten years later the Biological Diversity Act, 2002 was enacted.
India saw a transformation of its closed economy into an open economy, post-1990. Biopiracy
thereafter, stood unguarded with no stringent legislation protecting the overexploitation and
piracy of resources. This further saw the formation of a civil society group appointed to
formulate a National Biodiversity strategy and plan. However, this wasn’t accepted and the
government itself articulated a legal framework and draft known as the Biodiversity Bill, 2000,
based on which this Act was passed by the Lok Sabha on 2nd December 2002 and Rajya Sabha
on 11th December 2002. It had finally received the Presidential assent on 5th February 2003.
The Biological Diversity, as federal legislation, was a mere attempt of India to uphold the
objectives put forth by the United Nations Convention on Biological Diversity (CBD) 1992,
giving immense importance to the rights of a state over its resources.
This Act broadly sets forth to protect and conserve the biological diversity, control the utilization
of resources, and maintain equality in the distribution of its resources and benefits arising from
it. Section 8, sub-Section (1) and (3) of this Act, puts forth the provision of establishing a
National Biodiversity Authority in Chennai.

IMPORTANT PROVISIONS
The Biological Diversity Act puts forth definitions, principles, appointed authorities, procedures,
mechanisms for conservation, access benefits, etc, all related to biodiversity. It also mentions an
institutional structure to be established for the same purpose.
Section 36 talks about the role of the Central government in developing national strategies and
plans for conservation purposes. The Central government has responsibilities such as:
1) It is duty-bound for formulating national strategies, plans and programmes to conserve
and uphold the sustainable use of biological diversity.
2) If any area rich in biological diversity or such resources seems to be facing threats then it
is the central government’s responsibility of notifying the respective state government
and asking them to take appropriate steps to prevent it. 
3) Composing sectoral and cross-sectoral plans and policies, which are practicable in the
notified environment on the foundation of integration of conservation and the sustainable
use of biological diversity. 
 4) The central government has to take measures for assessing the harmful effects of
upcoming projects on biodiversity and to either prevent it or come up with techniques of
diminishing such effects. 
5) The central government must aspire to protect the traditional knowledge holders and their
knowledge with methods including registration of such knowledge at the local, state or
national levels, and other measures necessary for protection and so on.
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. The biodiversity-rich landscape and ecosystems brought under already legally
protected areas such as National Parks and Wildlife Sanctuaries in a method similar to that of the
declaration of Eco-sensitive areas as per the Environment Protection Act (1986). The Section
also puts the responsibility on the state government to compensate people or sections of people
economically affected by such declaration.
Without any sort of prejudice, 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.
Whereas Section 39 empowers the Central Government to designate repositories for biological
material to be kept in safe custody.
But again under Section 40 of the act, 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.
In the case of Environment Support Group v. National Biodiversity Authority, An appeal was
made to declare Section 40 of the Biological Diversity Act, 2002 illegal and unconstitutional as
serious prejudice was likely to be caused which could cause jeopardy to the national interest and
biodiversity of certain species. It wanted to draw the attention of authorities towards public
agricultural universities indulging in criminal biopiracy of local varieties of eggplant.
The petitioners also highlighted that they had got 18 critically endangered plants among its 190
plants as normally traded communities. The petition also argued that Section 40 of the
Biodiversity Act, 2002 deemed to allow arbitrary and unfettered trade of India’s biological
wealth leading to extensive bio-piracy. Although the National Biodiversity Board and Karnataka
Biodiversity Board had filed a criminal complaint of biopiracy before the High Court of
Karnataka, the petition filed for criminal proceedings in a relevant ruling of the High Court of
Karnataka dismissed petitions and quashed criminal prosecution of the respondents who had
been accused serious criminal acts of biopiracy by the National Biodiversity Authority and
Karnataka State Biodiversity Board.
OFFENCES AND PENALTIES:
Put forth by Section 58, offences under this Act are cognizable and non-bailable. Except for the
Central Government or any authority authorized by the government or any benefit claimant with
his intention to make a complaint, no court shall take cognizance of any offence under this Act or
rules as per Section 61 of the Act. 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
State Biodiversity Board with regard to an action done in good faith as per Section 54 of the Act.
Provisions of this Act even being inconsistent with any other law in force shall yet have effect
and put to work as laid under Section 59.
Offences punishable with imprisonment for a term which may extend to five years or fine which
may extend to ten lakh rupees or both:
1) In contravention to the provisions of Section 3, if a non-Indian, an Indian or corporate
body with foreign participation initiates biodiversity-related activities without prior
approval of the National Biodiversity Authority.
2) In contravention to the provisions of Section 4, any person whether a citizen or not,
delivers results of any research related to any biological resources for monetary gain to a
non-Indian. 
3) In contravention to the provisions of Section 6, any person making an application for an
Intellectual Property Right of an invention based on any research on a biological resource
obtained from India without previous approval of the National Biodiversity Authority.
Offences punishable with imprisonment for a term which may extend to three years, or with fine
which may extend to five lakh rupees or both:
1) Contravening Section 7 of the Act, if any citizen of India excluding Vaids and Hakims
who are practising indigenous medicines, acquires any biological resource for
commercial utilization or bio survey without giving prior notification to the State
Biodiversity Board.
2) Contravening Section 24 sub Section (1), if any citizen of India or a corporate
organization registered in India, aims to undertake any activity of obtaining biological
resources for commercial work and does not give prior intimation as is prescribed by the
State Government to the State Biodiversity Board.
A person going against any direction given by the Central Government, the State Government,
the National Biodiversity Authority or the State Biodiversity Board for which no punishment has
been specified under the Act, then he/she shall be punished with a fine which may extend to one
lakh rupees, in case of a subsequent offence extending to two lakh rupees which with continuous
contravention incur an additional fine two lakh rupees everyday laid by Section 56 of the Act.  

A CRITICAL APPRAISAL:
Along with several positive and worthy features, the Act also has several flaws and somewhere
leaves a void. One of the major flaws is that emphasis on preventing profit-sharing from the
commercial use of the biological resources rather than provisions for efficient conservation. One
of the reasons for laying this act was to prevent bio-piracy by the developed nations but this did
not give an opportunity for neglecting the other major aim of protecting biodiversity.
This legislation does not act as an umbrella and overlooks its possibilities of harmonizing with
prior existing legislation. Neither does it lay down guidelines for the assignment of non-
monopoly rights nor for assessing contributions made by firms, local communities, or individual
inventions. The basic provision of integrating the communities and nation is weak.  
The act doesn’t even give immediate rights-holders the authority of defending their rights in the
way that it weaponizes the Indian state to fight against biopiracy or even with rights equivalent to
that provided to patent holders or applicants. One of the main problems also stands to be no legal
protection given to the information recorded in the People’s Biodiversity Register. This register
is open to entities wanting to exploit resources of a particular area. Such documentation has to be
regulated by rigorous monitoring in order to ensure the benefits being shared.
SUGGESTIONS:
Few suggestions for the better  implementation of the Biodiversity Act, 2002 and ensuring
efficient work with regards to its provisions:
As seen most of the time statutory legislation and Acts even after put to force are not
implemented properly. Half of the time, the main purpose of such legislation is left behind and
no improvement takes place. Thereafter, even in this case, with years of worsening pollution
levels, untreated sewage, chemical pollutants, factory wastes, etc have been dumped in major
Indian rivers such as Ganga, Yamuna, Godavari, Cauvery, etc, main water sources, leaving it
tremendously polluted. Proper enforcement of this Act would certainly help in reducing such
pollution levels. 
Even if certain boards and committees are formed to look after biodiversity if each ministry
works hand in hand, monitors activities, makes themselves aware of environmental harms caused
by their actions then such a hurdle can be crossed easily since everyone gets accountable for their
actions and feels more responsible towards protecting the ecosystem. Working together,
cooperatively can do away with a lot of problems.
Since no specifications are put forth regarding official relations between the Biodiversity
management committees and local bodies this could often lead to common disputes and
conflicts. The introduction of a special committee would help in the unification of the numerous
local bodies and institutions so that they could work together in the prescribed time ahead. 
Whereas on one side it talks of the nation or state’s sole right towards its innovations, resources,
its by-products, etc, it lays no provision and protection for genetic resources leaving it to be
exploited by anyone. Leaving out human genetic material from the purview of the act could also
lead to the problem of the ‘cloning crisis.’
It is important for the government to continuously notify and be notified of special places by
awarding them special status and protection to biodiversity-rich areas by declaring them as
national parks, wildlife sanctuaries, etc.
CONCLUSION
Resources or traditional knowledge that are not assigned to any sort of private body or entity
through patents or grant of the state is considered to be available for free. Even after such
provisions losses have been faced year after year. Even though several provisions of this Act are
progressive, India is way down the ladder in its trial to protect biodiversity. Awareness has to be
created amongst the local communities on this biodiversity Act. Indian biodiversity indeed
requires good protection by putting its legal framework and policies to action. The purpose of the
Biodiversity Act became the reason for debates. The Act being implemented on time could lead
to preventing such a scenario becoming the reason for an argument
The definition of biological has to be broadened to prevent any sort of exploitation as it does not
provide an all-inclusive structure for conservation and feasible use of biological and genetic
resources. It is one of the oldest yet current challenges faced by the country as it is widely
accepted that the basic framework of the Act involves problems. In case of Intellectual Property
Rights, it is considered to be facilitating commercialization rather than truly accrediting and
empowering local communities.  
Therefore it is important for the government and every human to take efforts in their own ways
to effectuate and put the Act to work for getting the desired results. A kind of network and
integration of the civil society associations, local bodies, farmers, scientific institutions could
indeed help in better implementation of the Act.