BASICS OF INDIAN

BIODIVERSITY LAW
Biological Diversity Act, 2002
 DEFINING BIODIVERSITY AND ALLIED
ASPECTS
 “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 [Section 2(a)]
 “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. [Section 2(b)]
 “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. [Section 2(c)]
 “bio-survey and bio-utilisation” means survey or collection of species,
subspecies, genes, components and extracts of biological resource for any purpose
and includes characterisation, inventorisation and bioassay (it means an appraisal
of the biological activity of a substance by testing its effect on an organism and
comparing the result with some set standards). [Section 2(d)]
 DEFINING BIODIVERSITY AND ALLIED
ASPECTS
 “commercial utilisation” means end uses of biological resources for
commercial utilisation 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. [Section 2(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.
[Section 2(m)]
 SOME MORE KEY DEFINITIONS

 “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. [Section 2(o)]
 “value added products” means products which may contain portions or
extracts of plants and animals in unrecognizable and physically inseparable
form. [Section 2(p)]
 PERMISSION OF NATIONAL BIODIVERSITY
AUTHORITY (NBA)
 No person mentioned in Section 3(2) shall, without previous approval of the
National Biodiversity Authority, obtain any biological resource occurring in
India or knowledge associated thereto for research or for commercial
utilisation or for bio-survey and bio-utilisation. [Section 3(1)]
 According to Section 3(2), Following person shall require NBA’s approval:
1. a person who is not a citizen of India
2. a citizen of India, who is a non-resident as defined in clause (30) of section 2
of the Income-tax Act, 1961
3. a body corporate, association or organisation—
a. not incorporated or registered in India; or
b. incorporated or registered in India under any law for the time being in force
which has any non-Indian participation in its share capital or management.
 IPR APPLICATION – NBA APPROVAL
 According to Section 6(1), no person shall apply for any intellectual property right, by
whatever name called, in or outside India for any invention based on any research or
information on a biological resource obtained from India without obtaining the
previous approval of the National Biodiversity Authority before making such
application
Provided that if a person applies for a patent, permission of the National Biodiversity
Authority may be obtained after the acceptance of the patent but before the sealing of
the patent by the patent authority concerned:
Provided further that the National Biodiversity Authority shall dispose of the application
for permission made to it within a period of ninety days from the date of receipt
thereof.
 The National Biodiversity Authority may, while granting the approval under this
section, impose benefit sharing fee or royalty or both or impose conditions including
the sharing of financial benefits arising out of the commercial utilisation of such
rights. [Section 6(2)]
 The provisions of this section shall not apply to any person making an application for
any right under any law relating to protection of plant varieties enacted by
Parliament. [Section 6(3)] – securing the rights of breeders and farmers
CITIZENS/LOCAL BUSINESSES – INTIMATION TO
THE STATE BIODIVERSITY BOARD (SBB)

 According to Section 7, no person, who is a citizen of

India or a body corporate, association or organisation
which is registered in India, shall obtain any biological
resource for commercial utilisation, or bio-survey and bio-
utilisation for commercial utilisation except after giving
prior intimation to the State Biodiversity Board
concerned.
Provided that the provisions of this section shall not apply to
the local people and communities of the area, including
growers and cultivators of biodiversity, and vaids and
hakims, who have been practicing indigenous medicine.
 Other Important Aspects (Layered or
Multi-Level Biodiversity Governance)
 Establishment and Constitution of NBA (Section 8)
 Functions and Powers of NBA (Section 18) – approvals and advisory
 Determination of equitable benefit sharing by National Biodiversity Authority (Section 21)
– to be discussed further
 Establishment and Constitution SBB (Section 22)
 Functions of SBB (Section 23) – to work as an agent of the Central Government and assist the
states as per the guidelines of the NBA – work at state level in relation to bio-utilisation
 Constitution of National Biodiversity Fund (Section 27) – for extending benefit to benefit-
claimers, conservation of biological resources, etc.
 Constitution of State Biodiversity Fund (Section 32)
 Constitution of Biodiversity Management Committee (Section 41) – for local area functioning
 Constitution of Local Biodiversity Fund (Section 43) – to be used at the local level
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 Annual Report of the NBA to be laid before the Parliament
 Annual Report of the SBB to be laid before the State Legislature
 Annual Report of the Biodiversity Management Committee to be submitted to the District
Magistrate
 Determination of equitable benefit sharing
by National Biodiversity Authority
 The National Biodiversity Authority shall while granting approvals ensure that the terms and
conditions subject to which approval is granted secures equitable sharing of benefits arising
out of the use of accessed biological resources, their by-products, innovations and practices
associated with their use and applications and knowledge relating thereto in accordance with
mutually agreed terms and conditions between the person applying for such approval, local
bodies concerned and the benefit claimers.
 The National Biodiversity Authority shall, subject to any regulations made in this behalf,
determine the benefit sharing which shall be given effect in all or any of the following
manner, namely:—
1. grant of joint ownership of intellectual property rights to the National Biodiversity Authority,
or where benefit claimers are identified, to such benefit claimers;
2. transfer of technology;
3. location of production, research and development units in such areas which will facilitate
better living standards to the benefit claimers;
4. association of Indian scientists, benefit claimers and the local people with research and
development in biological resources and bio-survey and bio-utilisation;
5. setting up of venture capital fund for aiding the cause of benefit claimers;
6. payment of monetary compensation and other non-monetary benefits to the benefit claimers
as the National Biodiversity Authority may deem fit.
 Determination of equitable benefit sharing
by National Biodiversity Authority

SECTION 21(3)
 Where any amount of money is ordered by way of benefit sharing, the
National Biodiversity Authority may direct the amount to be deposited in the
National Biodiversity Fund:

Provided that where biological resource or knowledge was a result of access from
specific individual or group of individuals or organisations, the National
Biodiversity Authority may direct that the amount shall be paid directly to such
individual or group of individuals or organisations in accordance with the terms of
any agreement and in such manner as it deems fit.
 Biodiversity Heritage Sites and
Threatened Species
SECTION 37
 Without prejudice to any other law for the time being in force, the State Government
may, from time to time in consultation with the local bodies, notify in the Official
Gazette, areas of biodiversity importance as biodiversity heritage sites under this Act.
 The State Government, in consultation with the Central Government, may frame rules
for the management and conservation of all the heritage sites.
 The State Government shall frame schemes for compensating or rehabilitating any
person or section of people economically affected by such notification.
_____________________________________________________________________
SECTION 38
 Without prejudice to the provisions of any other law for the time being in force, the
Central Government, in consultation with the concerned State Government, may from
time to time notify any species which is on the verge of extinction or likely to become
extinct in the near future as a threatened species and prohibit or regulate collection
thereof for any purpose and take appropriate steps to rehabilitate and preserve those
species.
 Appeal to NGT [Section 52A]

 Any person aggrieved by any determination of benefit

sharing or order of the National Biodiversity Authority or a
State Biodiversity Board under this Act, on or after the
commencement of the National Green Tribunal Act, 2010
(19 of 2010), may file an appeal to the National Green
Tribunal establishment under section 3 of the National
Green Tribunal Act, 2010, in accordance with the
provisions of that Act.
 OFFENCES AND PENALTIES
 Whoever contravenes or attempts to contravene or abets the contravention of the
provisions of section 3 or section 4 or section 6 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. [Section
55(1)]
 Whoever contravenes or attempts to contravene or abets the contravention of the
provisions of section 7 or any order made under sub-section (2) of section 24 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. [Section 55(2)]
 If any 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 subsequent offence, with fine which may extend
to two lakh rupees and in the case of continuous contravention with additional
fine which may extend to two lakh rupees every day during which the default
continues. [Section 56]
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 The offences under this Act shall be cognizable and non-bailable. [Section 58]
 COGNIZANCE OF OFFENCES [Section 61]

 No Court shall take cognizance of any offence under this Act

except on a complaint made by—
(a) the Central Government or any authority or officer
authorised in this behalf by that Government; or
(b) any benefit claimer who has given notice of not less than
thirty days in the prescribed manner, of such offence and of
his intention to make a complaint, to the Central
Government or the authority or officer authorised as
aforesaid.