Legal Framework for Biodiversity Protection
Biodiversity Act 2002
Pursuant to the CBD, India enacted the Biological Diversity Act in 2002, and notified Biological Diversity Rules in 2004, to give effect to the provisions of this Convention. The Act is implemented through a three-tiered institutional structure at the national, state and local levels.
The National Biodiversity Authority (NBA) has been set up in October, 2003 in Chennai. As per Section 8(4) of the Act, the NBA consists of a Chairperson, five non-official and ten ex-officio members to be appointed by the Central Government to represent various Ministries.
The vision of NBA is the conservation and sustainable use of India’s rich biodiversity and associated knowledge with peoples participation, ensuring the process of benefit sharing for well being of present and future generations. The mission of NBA is to ensure effective implementation of Biological Diversity Act, 2002 and the Biological Diversity Rules 2004 for conservation of biodiversity, sustainable use of its components and fair and equitable sharing of benefits arising out of utilization of genetic resources.
The NBA interalia deals with all matters relating to requests for access by foreign individuals, institutions or companies, and transfer of results of research to any foreigner. The State Biodiversity Boards (SBBs) constituted by the State Governments deal with all matters relating to access by Indians for commercial purposes. The institutions of self-governments are required to set up Biodiversity Management Committees (BMCs) in their respective areas for conservation, sustainable use, documentation of biodiversity and chronicling of knowledge related to biodiversity.
Powers and Functions of NBA
The main functions of the Authority are:
- It shall be the duty of the National Biodiversity Authority to regulate activities and by regulations issue guidelines for access to biological resources and for fair and equitable benefit sharing.
- The National Biodiversity Authority may grant approval for undertaking any activity.
- The National Biodiversity Authority may advise the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilization of biological resources.
- The National Biodiversity Authority may advise the State Governments in the selection of areas of biodiversity importance to be notified as heritage sites and measures for the management of such heritage sites.
- The National Biodiversity Authority may perform such other functions as may be necessary to carry out the provisions of this Act.
- The National Biodiversity Authority may, on behalf of the Central Government, take any measures necessary to oppose the grant of intellectual property rights in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource which is derived from India.
State Biodiversity Board
The State Biodiversity Boards (SBB’S) have the function of advising the State Government on matters of biodiversity and its equitable distribution and utilization in tandem with the guidelines of the Central Government but more importantly to regulate granting of approvals or requests for commercial utilization of biological resources. The State Boards require a prior intimation for obtaining biological resources only from Indian citizens or corporate associations or organizations registered in India. This power of the State Biodiversity Boards which is applicable only on Indian citizens or organizations can be easily exploited by vested interests of commercial giants which have substantial overseas shareholders.
The Biodiversity Act provides for payment of a prescribed fee to the Biodiversity Management Committees established at the Municipal or Panchayat level under “Access and Benefit Sharing “by companies who are using biological resources or use traditionally available knowledge which is often a bone of contention between companies and these Boards as they possess the power to grant them access to bio-resources of the State.
Since the grant of approval by the State Boards is only restricted to Indian companies and organizations the tactic of employing commission agents to get this approval is widely used for commercial exploitation as approval from the National Biodiversity Authority implies a cumbersome process requiring strict adherence to established regulations.
National Biodiversity Fund
There shall be constituted a Fund to be called the National Biodiversity Fund and there shall be credited to-
- Any grants and loans made to the National Biodiversity Authority.
- All charges and royalties received by the National Biodiversity Authority.
- All sums received by the National Biodiversity Authority from such other sources as may be decided upon by the Central Government.
State Biodiversity Fund
Constitution of State Biodiversity Fund.-
- There shall be constituted a Fund to be called the State Biodiversity Fund and there shall be credited to-
- Any grants and loans made to the State Biodiversity Board under section 31;
- Any grants or loans made by the National Biodiversity Authority;
- All sums received by the State Biodiversity Board from such other sources as may be decided upon by the State Government.
Biodiversity Management Committee
The BMC will be constituted by the local body with members of the Participatory forest/natural resources management committees members, including from members of horticulture/vaids/foot botanists/tribal heads, etc., based on the local conditions.
The SBB should issue suggestive list of persons to be included in the BMC. The representation may be flexible to meet the local requirements. The Biodiversity Management Committee may also draw its members from amongst the existing committees which have been formed under statutory powers/administrative orders of the respective Governments.
Each State Biodiversity Board shall arrive at a realistic number of BMCs to be established in the state based on biodiversity rich areas and socially conscious areas. The National Biodiversity Authority (NBA) on its part shall release the amount requested by the State Biodiversity Boards (SBBs). The SBBs are advised to release the amount to each BMC in instalments (2 – 4 instalments) after obtaining either a Statement of Expenditure and an Utilisation Certificate (UC). No copies of bills should be insisted upon by the SBBs
The BMCs would, in addition to the preparation of the People’s Biodiversity Register (PBR), participate in ensuring:
- Conservation and sustainable utilization of biological resources.
- Eco‐restoration of the local biodiversity.
- Proper feedback to the SBB in the matter of IPR, Traditional Knowledge and local Biodiversity issues, wherever feasible and essential feedback to be provided to the NBA.
- 3 Management of Heritage Sites including Heritage Trees, Animals/ Micro organisms etc., and Sacred Groves and Sacred Water bodies.
- Regulation of access to the biological resources and/ or associated Traditional Knowledge, for commercial and research purposes.
- Sharing of usufructs arising out of commercial use of bio‐resources.
- Conservation of traditional varieties/breeds of economically important plants/animals.
- Biodiversity Education and Awareness building.
- Documentation, enable procedure to develop bio‐cultural protocols.
- Sustainable Use and Benefit Sharing.
- Protection of Traditional Knowledge.
People’s Biodiversity Register
This shall contain comprehensive information on availability and knowledge of local biological resources, their medicinal or any other use or any other traditional knowledge associated with them.