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.

Biological diversity Act, 2002

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.

● Conservation Provisions

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.

● The biodiversity authorities at the national and state levels

Section 8 lays down the provision of the establishment of the National

Biodiversity Authority at the national level whereas Section 22 does the
same for state biodiversity boards at the state level. Further Section 22(2)
does not allow the State Biodiversity Board to be constituted for a Union
territory. The National Biodiversity Authority shall exercise the powers and
perform the functions of a State Biodiversity Board for that Union territory:
Provided that in relation to any Union territory, the National Biodiversity
Authority may delegate all or any of its powers or functions under this
subSection to such person or group of persons as specified by the Central
Government.
The chairperson of the National Biodiversity Authority presides over the
meetings and all questions are decided by the votes of all members present
and voting. As per Section 13, the National Biodiversity Authority can form a
number of committees as required for the effective and efficient discharge of
its duties and functions under the Act. Such a committee should also choose
people who are not the members of the National Biodiversity Authority, as
they might have the right to attend the meetings of the committee and take
part in the proceedings but shall not have the right to vote.

Section 19 of the Act puts forth that any person wanting to obtain any
biological resource originating in India or information relating to it, for
research or for commercial purposes or transfer the results of such research
related to biological resources occurring or obtained from India, are required
to make an application and payment of prescribed fees. Also as per 19(2)
any person applying for patent or intellectual property protection whether in
India or outside India based on any invention, research, knowledge, or study
originating in India have to make an application to the biodiversity authority
and wait for its approval.

In the case of Akb Jagannath Nag v. Union Of India & Ors, it was appealed
that the petitioner had intellectual property rights in terms of Section 6 and
Section 19(2) of the Biological Diversity Act, 2002 and concerned Rules
which were in his favour. Therefore, such approval by the concerned
Authority under the Biological Diversity Act would clearly come in the way of
the order criticised before the learned Single Judge. The order passed by the
Controllers and Patents and Designs as per Section 15 of the Patents
(Amendment) Act, 2005 was appealable in terms of Section 117A of the
Patents Act, 1970 as amended in 2005. If there was an exercise of wrong
jurisdiction, excessive authority during passing such order, the same could
be challenged before the Appellate Authority.

Based on this the appellant had interfered with the order passed by the
Controllers of Patents and Designs as well as the learned Single Judge. If the
present approval under Section 6 of the Biological Diversity Act seemed to
change the entire scenario then it had to be brought under the notice of the
single learned judge by the way of review. Therefore, it was held that it
would not be just to point out faults with either the order of the Controllers
of Patents and Designs or the order of the learned Single Judge. This appeal
was disposed of with an application for stay given to the appellant with the
choice of option for approaching the learned Single Judge for review of the
order of the Appellate Authority as indicated.

National Biodiversity Authority

In order to carry out the provisions of the act, the National Biodiversity Authority (NBA)
had been set up under the Ministry of Environments and Forest by the Government of
India in 2003. The NBA is a statutory, autonomous body headquartered in Chennai.
State Biodiversity Boards (SBB) were also created in the 29 states along with Biological
management committees for each local body.

Under this act, the Central Government in consultation with the NBA:

● Shall notify threatened species and prohibit or regulate their collection,

rehabilitation, and conservation. Check out the IUCN Red list to know more about
endangered species.
● Designate institutions as repositories for different categories of biological
resources

The functions of the National Biodiversity Authority are as follows

● Monitoring and prevention of actions prohibited under the Act.

● Providing advice to the government on how best to conserve biodiversity in India.
● Prepare a report on how the government can select biological heritage sites.
● Make concrete steps to prevent the grant of intellectual property rights regarding
locally used biological resources or allied traditional knowledge.

Structure of the NBA

The National Biodiversity Authority consists of the following members to be appointed

by the central government, namely:

● A Chairperson.
● Three ex officio members, one representing the Ministry dealing with Tribal
Affairs and two representing the Ministry dealing with Environment and Forests.
● Seven ex-officio members to represent respectively the Ministries of the Central
Government dealing with:
● Agricultural Research and Education
● Biotechnology
● Ocean Development
● Agriculture and Cooperation
● Indian Systems of Medicine and Homoeopathy
● Science and Technology
● Scientific and Industrial Research;