UNIT 2

1. Explain the powers and functions of State Bio-Diversity Board and Bio-Diversity management
committee.
2. Discuss the composition, powers and functions of State Bio Diversities Board.
3. What are the powers and functions of State Bio Diversity Board.
4. Discuss the powers and functions of State Bio Diversity Authority and National Bio Diversity Authority.
**
5. Discuss the constitution, powers and function of National Bio Diversity Authority. ******
6. Explain the powers and functions of National Bio Diversity Authority. **
7. Discuss the establishment of National Bio Diversity Authority and its functions and powers.
8. Define Biological Resources. Explain the powers and functions of National Bio Diversity Authority.
9. Discuss the function and powers of National Bio Diversity Authority and State Bio Diversity Board.
10. Define Biological Diversity. Explain the aims and objectives of Biological Diversity Act 2002. **
11. Define Bio Diversity and explain the objectives of Bio Diversity Act.
12. Explain the objects of Bio Diversity Act, 2002.
13. Explain the Salient Features of Bio Diversity Act.***
14. Why do we need legislation on Bio Diversity? Explain the salient features of Biological Diversity
Act, 2002.
15. Define Bio Diversity. What are the main concerns and issues in Biological Diversity.
16. Write a note on meaning, definition and scope of Biological Diversities.
17. What is Bio Diversity? Discuss the scope and nature of Biological Diversity.
18. Who is a Benefit Claimer? How can Benefit Sharing be given effect under Bio Diversity Act, 2002?
19. What is Bio Diversity? Trace the difference between Bio Diversity and Traditional Knowledge.

SHORT NOTES
1. Traditional Knowledge ****
2. Protection of Traditional Knowledge.
3. Biological Resources and Traditional Knowledge.
4. Bio Piracy **
5. Bio Diversity Managing Committee. ****
6. Convention on Bio Diversity.
7. State Bio Diversity Board.
8. Benefit Claimers.
9. Powers and Functions of Central and State Government.
I. NATIONAL AND STATE BIO DIVERSITY BOARD , BIODIVERSITY MANAGEMENT
COMMITTEE

1. Explain the powers and functions of State Bio-Diversity Board and Bio-Diversity management
committee.
2. Discuss the composition, powers and functions of State Bio Diversities Board.
3. What are the powers and functions of State Bio Diversity Board.
4. Discuss the powers and functions of State Bio Diversity Authority and National Bio Diversity Authority.
**
5. Discuss the constitution, powers and function of National Bio Diversity Authority. ******
6. Explain the powers and functions of National Bio Diversity Authority. **
7. Discuss the establishment of National Bio Diversity Authority and its functions and powers.
8. Define Biological Resources. Explain the powers and functions of National Bio Diversity Authority.
9. Discuss the function and powers of National Bio Diversity Authority and State Bio Diversity Board.

INTRODUCTION

Biodiversity is a generic term that can be related to many environments and species, for example,
forests, freshwater, marine and temperate environments, the soil, crop plants, domestic animals, wild species
and micro-organisms.
Biodiversity or Biological diversity is a term that describes the variety of living beings on earth. In
short, it is described as degree of variation of life. Biological diversity encompasses microorganism, plants,
animals and ecosystems such as coral reefs, forests, rainforests, deserts etc.
Biodiversity also refers to the number, or abundance of different species living within a particular
region. It represents the wealth of biological resources available to us. In biodiversity, each species, no
matter how big or small has an important role to play in ecosystem.
Various plant and animal species depend on each other for what each offer and these diverse species
ensures natural sustainability for all life forms. A healthy and solid biodiversity can recover itself from
variety of disasters.

The Biological Diversity Act, 2002 was born out of India’s attempt to realise the objectives
enshrined in the United Nations Convention on Biological Diversity (CBD) 1992 which recognizes the
sovereign rights of states to use their own Biological Resources.
 Biodiversity: The biodiversity 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 ecosystems
 Biological Resources: The biological resources mean 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.

The Biological Diversity act aims at the

 conservation of biological resources,
 managing its sustainable use and
 enabling fair and equitable sharing benefits arising out of the use and knowledge of biological
resources with the local communities.
MEANING & SCOPE BIOLOGICAL DIVERSITY

Biological diversity or biodiversity is ‘the variety of life’, and refers collectively to variation at all
levels of biological organization. Thus biodiversity can be considered as some small or large part of an area,
of the area as a whole, of the several areas in a region, of a continent or an ocean basin, or of the entire
Earth.
Many more formal definitions of biological diversity or biodiversity have been proposed, which develop this
simple one. Of these, perhaps the most important and far-reaching is that given in Article 2 the Convention
on Biological Diversity.
“Biological diversity’ means the variability among living organisms from all sources including, inter
alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part;
this includes diversity within species, between species and of ecosystems.”
Much of the usage of the term ‘biodiversity’ is value laden. It carries with its connotations that
biodiversity is per se a good thing, that its loss is bad, and that something should be done to maintain it.
Consequently, it is important to recognize that there is rather more to use of the term than a formal
definition in the Convention, or for that matter elsewhere, and its application often reveals just as much
about the values of the person using it.

OBJECTIVE

SALIENT FEATURES OF THE ACT (refer Q 2)

THE NATIONAL BIODIVERSITY AUTHORITY

The National Biodiversity Authority (NBA) was established in 2003 by the Central Government to
implement India’s Biological Diversity Act (2002). It is a Statutory body that performs facilitative,
regulatory and advisory functions for the Government of India on the issue of Conservation and sustainable
use of biological resources.
Section 8 lays down the provision of the establishment of the National Biodiversity Authority at the
national level. The National Biodiversity Authority shall be a body corporate, having perpetual succession
and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and
to contract, and shall by the said name sue and be sued.

Headquarters: NBA has its Headquarters in Chennai, Tamil Nadu, India.

Structure of the NBA

The National Biodiversity Authority consists of the following members to be appointed by the central
government, namely:

i.A Chairperson,
ii.Three ex officio members,
one representing the Ministry dealing with Tribal Affairs and
two representing the Ministry dealing with Environment and Forests.
iii.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;
iv.Five non-official members to be appointed from amongst specialists and scientists having special
knowledge and experience in the required matters.

Functions of the NBA

Section 18 of the act mentions the functions of NBA an they are following:

i.It shall be the duty of the National Biodiversity Authority to regulate activities referred to in sections 3, 4
and 6 and by regulations issue guidelines for access to biological resources and for fair and equitable
benefit sharing.
Section 3: Certain persons not to undertake Biodiversity related activities without approval of
National Biodiversity Authority
Section 4: Results of research not to be transferred to certain persons without approval of National
Biodiversity Authority
Section 6: Application for intellectual property rights not to be made without approval of National
Biodiversity Authority

ii.The National Biodiversity Authority may grant approval for undertaking any activity referred to in
sections 3, 4 and 6.

iii.Advising the central government, regulating activities and issuing guidelines for access to biological
resources and for fair and equitable benefit sharing arising out of the biological resources.

iv.Advising the State Governments in the selection of areas of biodiversity importance to be notified as
heritage sites and suggest measures for their management.

v.Taking necessary measures 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 resources
derived from India illegally.

vi.perform such other functions as may be necessary to carry out the provisions of this Act.

STATE BIODIVERSITY BOARDS (SBBS)

The SBBs are established by the State Governments in accordance with Section 22 of the Act. The
Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal,
with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and
shall by the said name sue and be sued.
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 sub-section to such person or group of persons as specified by
the Central Government.

Structure

The State Biodiversity Board consists of the following members:

i. A Chairperson

ii. Not more than five ex officio members to represent the concerned Departments of the State Government

iii. Not more than five members from amongst experts in matters relating to conservation of biological
diversity, sustainable use of biological resources and equitable sharing of benefits arising out of the use of
biological resources.

iv.All the members of the SBB are appointed by the respective State Governments.

Functions of SBBs

According to Section 23 of the act, the SBB has the following functions:

i. Advise the State Government, subject to any guidelines issued by the Central Government, on matters
relating to the conservation, sustainable use or sharing equitable benefits.

ii. Regulate by granting approvals or otherwise requests for commercial utilization or bio-survey and bio-
utilization of any biological resource by people.

iii.perform such other functions as may be necessary to carry out the provisions of this Act or as may be
prescribed by the State Government.

CHAIRPERSON

Section 8 and Section 22(4) (a) states that the chairman should shall be an eminent person having
adequate knowledge and experience in the conservation and sustainable use of biological diversity and in
matters relating to equitable sharing of benefits, to be appointed by the Central Government.
Section 9 states that the term of office and conditions of service of the Chairperson and the other
members other than ex officio members of the NBA/SBB shall be such as may be prescribed by the Central
Government.
Section 10 states that chairperson shall be the Chief Executive of the National Biodiversity Authority
and shall exercise such powers and perform such duties, as may be prescribed.

MEETINGS OF NBA/SBB

Section 12 of the act states the meetings of the NBA/SBB and its procedures:
The NBA/SBB shall meet at such time and place and shall observe such rules of procedure in regard to the
transaction of business at its meetings (including the quorum at its meetings) as may be prescribed.
The Chairperson of the NBA/SBB shall preside at the meetings of the NBA/SBB.

If for any reason the Chairperson is unable to attend any meeting of the NBA/SBB, any member of the
NBA/SBB chosen by the members present at the meeting shall preside at the meeting.

All questions which come before any meeting of the NBA/SBB shall be decided by a majority of votes of
the members present and voting and in the event of equality of votes, the Chairperson or, in his absence, the
person presiding, shall have and exercise a second or casting vote.

Every member who is in any way, whether directly, indirectly or personally, concerned or interested in a
matter to be decided at the meeting shall disclose the nature of his concern or interest and after such
disclosure, the member concerned or interested shall not attend that meeting.

No act or proceeding of the NBA/SBB shall be invalidated merely by reason of—

a.any vacancy in, or any defect in the constitution of, the National Biodiversity Authority; or
b.any defect in the appointment of a person acting as a member; or
c.any irregularity in the procedure of the National Biodiversity Authority not affecting the merits of the case.

CONSTITUTION OF COMMITTEES BY NBA AND SBB

According to Section 13, NBA/SBB may constitute a committee to deal with agro-biodiversity.
“Agro-biodiversity” means biological diversity of agriculture related species and their wild relatives.

MEMBERS OF THE COMMITTEE

NBA/SBB may constitute such number of committees as it deems fit for the efficient discharge of its duties
and performance of its functions under this Act.

A committee constituted under this section shall co-opt such number of persons, but they should not be
members of the NBA/SBB, the persons so co-opted shall have the right to attend the meetings of the
committee and take part in its proceedings but shall not have the right to vote.

The persons appointed as members of the committee under sub-section (2) shall be entitled to receive such
allowances or fees for attending the meetings of the committee as may be fixed by the Central
Government/State government.

OTHER FUNCTIONS AND POWERS

In addition to Section 18 and Section 23, the NBA/SBB also have the following functions and powers:

i.Appointment of certain officers and employees

According to Section 14 of the act, NBA/SBB may appoint such officers and other employees as it
considers necessary for the efficient discharge of its functions under this Act. The terms and conditions of
service of such officers and other employees of the NBA/SBB shall be such as may be specified by
regulations.

ii.Authentication of orders and decisions of NBA/SBB

According to Section 15, all orders and decisions of the NBA/SBB shall be authenticated by the signature of
the Chairperson or any other member authorized by the NBA/SBB in this behalf and all other instruments
executed by the NBA/SBB shall be authenticated by the signature of an officer of the National Biodiversity
Authority authorized by it in this behalf.

iii.Delegation of powers:
According to Section 16, NBA/SBB, by general or special order in writing, delegate to any member, officer
of the NBA/SBB or any other person subject to such conditions, if any, as may be specified in the order,
such of the powers and functions under this Act as it may deem necessary.
Exceptions to this provision is Section 50 and Section 64 (power to prefer an appeal under section 50 and
the power to make regulations under section 64)

REMOVAL OF MEMBERS

Section 11 of the act states that the Central Government may remove from the NBA/SBB any member who,
in its opinion, has:

a.been adjudged as an insolvent; or

b.been convicted of an offence which involves moral turpitude; or
c.become physically or mentally incapable of acting as a member; or
d.so abused his position as to render his continuance in office detrimental to the public interest; or
e.acquired such financial or other interest as is likely to affect prejudicially his functions as a member.

BIODIVERSITY MANAGEMENT COMMITTEES (BMCS)

According to Section 41 of the Act, every local body shall constitute the BMC within its area for the
purpose of promoting conservation, sustainable use and documentation of biological diversity
including:
 Preservation of habitats
 Conservation of Landraces
“landrace” means primitive cultivar that was grown by ancient farmers and their successors
 Folk varieties and cultivars
“Folk variety” means a cultivated variety of plant that was developed, grown and exchanged
informally among farmers;
“cultivar” means a variety of plant that has originated and persisted under cultivation or was
specifically bred for the purpose of cultivation;
 Domesticated stocks and breeds of animals
 Microorganisms And Chronicling of Knowledge Relating to Biological Diversity

Structure
 It shall consist of a chairperson and not more than six persons nominated by the local body. Out
of total members of a BMC, at least 1/3rd should be women and at least 18% should belong to
the Scheduled Castes/ Scheduled Tribes.
 The Chairperson of the Biodiversity Management Committee shall be elected from amongst
the members of the committee in a meeting to be chaired by the Chairperson of the local body.
 The chairperson of the local body shall have the casting votes in case of a tie.
Functions
 The main function of the BMC is to prepare People’s Biodiversity Register in consultation with
the local people.
 The register shall contain comprehensive information on availability and knowledge of local
biological resources, their medicinal or any other use or any other.
 Biodiversity Management Committees are to be constituted at the municipal level according to
Section 41 of the Law. Biodiversity Management Committees are critical for documenting
biodiversity, ensuring its appropriate use, and resolving Access and Benefit Sharing (ABS)
concerns.
 The National Biodiversity Authority and the State Biodiversity Boards shall consult the
Biodiversity Management Committees while taking any decision relating to the use of
biological resources and knowledge associated with such resources occurring within the
territorial jurisdiction of the Biodiversity Management Committee.
II. MEANING, SCOPE, OBJECTIVE AND SALIENT FEATURES OF BIO DIVERSITY ACT

1. Define Biological Diversity. Explain the aims and objectives of Biological Diversity Act 2002. **
2. Define Bio Diversity and explain the objectives of Bio Diversity Act.
3. Explain the objects of Bio Diversity Act, 2002.
4. Explain the Salient Features of Bio Diversity Act.***
5. Why do we need legislation on Bio Diversity? Explain the salient features of Biological Diversity Act,
2002.
6. Define Bio Diversity. What are the main concerns and issues in Biological Diversity.
7. Write a note on meaning, definition and scope of Biological Diversities.
8. What is Bio Diversity? Discuss the scope and nature of Biological Diversity.

INTRODUCTION

Biodiversity is a generic term that can be related to many environments and species, for
example, forests, freshwater, marine and temperate environments, the soil, crop plants, domestic
animals, wild species and micro-organisms.
Biodiversity or Biological diversity is a term that describes the variety of living beings on earth.
In short, it is described as degree of variation of life. Biological diversity encompasses microorganism,
plants, animals and ecosystems such as coral reefs, forests, rainforests, deserts etc.
Biodiversity also refers to the number, or abundance of different species living within a
particular region. It represents the wealth of biological resources available to us. In biodiversity, each
species, no matter how big or small has an important role to play in ecosystem.
Various plant and animal species depend on each other for what each offer and these diverse
species ensures natural sustainability for all life forms. A healthy and solid biodiversity can recover
itself from variety of disasters.

The Biological Diversity Act, 2002 was born out of India’s attempt to realise the objectives
enshrined in the United Nations Convention on Biological Diversity (CBD) 1992 which recognizes the
sovereign rights of states to use their own Biological Resources.
 Biodiversity: The biodiversity 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 ecosystems
 Biological Resources: The biological resources mean 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.

The Biological Diversity act aims at the

 conservation of biological resources,
 managing its sustainable use and
 enabling fair and equitable sharing benefits arising out of the use and knowledge of biological
resources with the local communities.
MEANING & SCOPE BIOLOGICAL DIVERSITY

Biological diversity or biodiversity is ‘the variety of life’, and refers collectively to variation at all
levels of biological organization. Thus biodiversity can be considered as some small or large part of an area,
of the area as a whole, of the several areas in a region, of a continent or an ocean basin, or of the entire
Earth.
Many more formal definitions of biological diversity or biodiversity have been proposed, which develop this
simple one. Of these, perhaps the most important and far-reaching is that given in Article 2 the Convention
on Biological Diversity.
“Biological diversity’ means the variability among living organisms from all sources including,
inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they
are part; this includes diversity within species, between species and of ecosystems.”
Much of the usage of the term ‘biodiversity’ is value laden. It carries with its connotations that
biodiversity is per se a good thing, that its loss is bad, and that something should be done to maintain it.
Consequently, it is important to recognize that there is rather more to use of the term than a formal
definition in the Convention, or for that matter elsewhere, and its application often reveals just as much
about the values of the person using it.

OBJECTIVE
During the period of 2000-2002, a civil society group was commissioned for preparing India’s
National Biodiversity Strategy and Action Plan. However, this plan was not accepted by the
government. Therefore, the government decided to release its own draft on National Biodiversity Plan
which was made by the technocrats. The Act of 2002, based on this plan was passed by the Lok Sabha
on 2nd December, 2002 and Rajya Sabha on 11th December, 2002.The objectives of the Act were:

1. Conservation of Biological diversity:

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:
i. It is duty-bound for formulating national strategies, plans and programs to conserve and uphold
the sustainable use of biological diversity.
ii. 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.
iii. 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.
iv. 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.
v. 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.

2. Sustainable use of its components:

It is needed to ensure that the life support system is maintained. Therefore, one of the goals of
sustainable development is to preserve, restore or enhance biodiversity, for the sake of life on Earth.
3. Fair and equitable sharing of the benefits arising out of utilization of genetic resources:

 It secures sharing of benefits with local people as they are conservers of biological resources and
holders of knowledge and information relating to the use of biological resources.
 Access Benefit Sharing can be described as the process when bio-resources or people’s knowledge
are accessed, the user/ accessor must compensate the provider community either in financial
terms or acknowledge the source. However once access is allowed, then the challenges for
regulatory mechanisms are to identify and claim a share of benefits and to ensure just and
equitable sharing. Article 16 of the Convention on Biological Diversity states the ways in which
the Access and Transfer of Technology should take place.
 The Act centralizes all the property rights either in the hand of state through sovereign
appropriation or in the hands of private inventors through monopoly of intellectual property
rights. It does not however provide a framework for the rights of all other holders of biological
resources and related information. The consequence is that resources and knowledge are not
allocated through intellectual property rights, the rest is freely available.
 The Nagoya Protocol on access benefit sharing in Tokyo in 2001 is an agreement which aims at
sharing the benefits arising from utilization in a fair and equitable way, thereby contributing in
the conservation and sustainable use of biodiversity. Genetic resources ranging from plants,
animals, micro-organisms are used for various reasons from research to products etc. However, at
times the traditional knowledge so associated with the genetic resources is obtained from the
indigenous and local communities, providing valuable information to researchers.

Apart from these main objectives the Act has also given force to some of the terms of CBD by the
following provisions:

4. To set up National Biodiversity Authority (NBA), State Biodiversity Board (SBB) and Biodiversity
Management Committees (BMC’s)

 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.
 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 sub-section 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.
 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.

5. To respect and protect knowledge of local communities’ traditional knowledge related to

biodiversity:
 Traditional knowledge is practical common sense based on teachings and experiences passed on
from generation to generation. It covers knowledge of the environment and the relationships
between things.
 As the elders die, the full richness of tradition is diminished, because some of it has not been
passed on and so is lost. As a result, the local communities’ rights are respected and protected by
the authority by regulating the access given by NBA and SBB. The NBA may consult the
communities to work out benefit sharing mechanisms after the decision to allow access is made.
 Since local communities are aware of the manner in which bio resources from their village are
being used and would notice any unwanted outside influence over resource extraction or external
parties interested in resource extraction, their vigilance would help in preventing bio piracy, as
would the other civil society organizations and individuals.

6. To conserve and develop areas of importance from the standpoint of biological diversity by
declaring them biological diversity heritage sites.
 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.

SALIENT FEATURES OF THE ACT

1. Prohibition
The Act prohibits the following activities without the prior approval from the National Biodiversity
Authority:
a. Any person or organization (either based in India or not) obtaining any biological resource
occurring in India for its research or commercial utilization.
 b. The transfer of the results of any research relating to any biological resources occurring in, or
obtained from, India.
c. The claim of any intellectual property rights on any invention based on the research made on
the biological resources obtained from India.
d. The act envisaged a three-tier structure to regulate the access to biological resources:
i. The National Biodiversity Authority (NBA)
ii. The State Biodiversity Boards (SBBs)
iii. The Biodiversity Management Committees (BMCs) (at local level)

2. Special funds
The Act provides these authorities with special funds and a separate budget in order to carry out any
research project dealing with the biological natural resources of the country.
It shall supervise any use of biological resources and the sustainable use of them and shall take
control over the financial investments and their return and dispose of those capitals as correct.

3. Powers of Central Government

Under this act, the Central Government in consultation with the NBA:
 Shall notify threatened species and prohibit or regulate their collection, rehabilitation and
conservation
 Designate institutions as repositories for different categories of biological resources

4. Exemptions from the Act

i. The Act excludes Indian biological resources that are normally traded as commodities. Such
exemption holds only so far, the biological resources are used as commodities and for no other
purpose.
ii. The act also excludes traditional uses of Indian biological resources and associated knowledge
and when they are used in collaborative research projects between Indian and foreign
institutions with the approval of the central government.
iii. Uses by cultivators and breeds, e.g., farmers, livestock keepers and bee keepers and traditional
healers e.g., vaids and hakims are also exempted.

5. National Biodiversity Authority

6. State Biodiversity Authority

7. Appeal
Any grievances related to the determination of benefit sharing or order of the National Biodiversity
Authority or a State Biodiversity Board under this Act, shall be taken to the National Green Tribunal
(NGT) or the High Court under Section 52A and 52 of the act.

8. Biodiversity Management Committees (BMCs)

9. People’s Biodiversity Registers (PBR)

 The PBRs focus on participatory documentation of local biodiversity, traditional knowledge
and practices.
  The register shall contain comprehensive information on the availability and knowledge of
local biological resources, their medicinal or any other use or any other traditional knowledge
associated with them.
 They are seen as key legal documents in ascertaining the rights of local people over the
biological resources and associated traditional knowledge.
10. Biodiversity Heritage Sites (BHS)
 Meaning:
The Biodiversity Heritage Sites are the well-defined areas that are unique, ecologically fragile
ecosystems - terrestrial, coastal and inland waters and, marine having rich biodiversity.
 Notify areas as BHS:
Under Section 37 of Biological Diversity Act, 2002 the State Government in consultation with
local bodies may notify the areas of biodiversity importance as Biodiversity Heritage Sites.
 Frame rules: The State Government, in consultation with the Central Government, may frame
rules for the management and conservation of all the heritage sites.
 Frame schemes: the State Government shall frame schemes for compensating or rehabilitating
any person or section of people economically affected by such notification.

11. Punishments

The act stipulates all offences under it as cognizable and non-bailable.

Section 58, states that all offences under this Act are cognizable and non-bailable.

 Who can take cognizance?

1. Central Government or
2. any authority authorized by the government or
3. 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.

 Offences punishable with imprisonment for a term which may extend to five years or fine which may
extend to ten lakh rupees or both:
i. 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.
ii. 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.
iii. 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:
 i. 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.
ii. 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.

 Offences for which no punishment is mentioned

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.
III.BENEFIT SHARING AND BENEFIT CLAIMER
1. Who is a Benefit Claimer? How can Benefit Sharing be given effect under Bio Diversity Act, 2002?
2. Benefit Claimers.

INTRODUCTION

‘Benefit claimers’ means the conservers of biological resources, their byproducts, creators and holders
of knowledge and information relating to the use of such biological resources, innovations and
practices associated with such use and application.

The manner of determination of equitable benefit sharing is provided in Section 21. The NBA, while
granting approvals under Section 19 or Section 20, would ensure that the terms and conditions
subject to which approval is granted, secure 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 NBA shall determine the benefit sharing subject to any regulations made in this behalf, which
shall be given effect in all or any of the following manners:
a. Grant of Joint ownership of intellectual property rights to the National Biodiversity Authority, or
where benefit claimers are identified, to such benefit claimers.
b. Transfer of technology.
c. Location of production, research and development units in such areas which will facilitate better
living standards to the benefit claimers.
d. Association of Indian scientists, benefit claimers and the local people with research and
development in biological resources and bio-survey and bio-utilization.
e. Setting up of venture capital fund for aiding the cause of benefit claimers.
f. Payment of monetary compensation and other nonmonetary benefits to the benefit claimers as the
National Biodiversity Authority may deem fit.
Where any amount of money is ordered by way of benefit sharing, the NBA may direct the
amount to be deposited in the National Biodiversity Fund.

Benefit-Sharing Mechanisms

The CBD mandates its member countries to enact national laws that would facilitate prior
informed consent and benefit sharing in a fair and equitable manner, prior to access and use of
biological resources and traditional knowledge.
Several countries have already enacted laws to put in place the access and benefit sharing
(ABS) regime. Under Section 6 of the Indian Biological Diversity Act, there is a clear message that
nobody can apply for IPR without taking prior permission from NBA.
The NBA can impose benefit-sharing fee or royalty or both, or ask for sharing financial benefit
arising out of commercialization of the material.
Section 7 envisages that nobody except local communities and vaids can have access to
biological resources for commercial purpose without prior intimation to the SBB concerned.
IV. TRADITIONAL KNOWLEDGE AND BIODIVERSITY
V. BIOPIRACY

1. Traditional Knowledge **** (6 marks)

2. Protection of Traditional Knowledge. (6 marks)
3. Biological Resources and Traditional Knowledge. (6 marks)
4. Bio Piracy ** (6 marks)

BIOLOGICAL RESOURCES AND TRADITIONAL KNOWLEDGE

Biological resources and traditional knowledge are closely linked, as traditional knowledge often
involves the use of biological resources in a sustainable and holistic manner. Biological resources refer to
the components of biodiversity that can be used for economic or other purposes, such as plants,
animals, microorganisms, and genetic material.

Traditional knowledge, on the other hand, refers to the knowledge, innovations, and practices
of indigenous and local communities that are developed over generations and passed down orally or
through other traditional means. This knowledge often involves the use of biological resources for
medicinal, cultural, or other purposes.

In many cases, traditional knowledge is essential for the sustainable use and conservation of
biological resources. For example, traditional healers may have knowledge of medicinal plants and
their uses, and may be able to identify and treat illnesses that are not recognized by Western
medicine. Similarly, indigenous peoples may have knowledge of sustainable hunting and fishing
practices that can help to conserve fish and wildlife populations.

However, the use of traditional knowledge and biological resources can also raise ethical and
legal issues related to intellectual property rights and access to genetic resources. In many cases,
traditional knowledge and biological resources have been exploited without the informed consent or
fair compensation of the indigenous or local communities that hold them.

To address these issues, international agreements such as the Convention on Biological

Diversity and the Nagoya Protocol on Access and Benefit Sharing have been established to ensure that
the use of biological resources and traditional knowledge is done in a fair and equitable manner.
These agreements recognize the importance of traditional knowledge and aim to promote the
conservation and sustainable use of biological resources, while ensuring that the benefits are shared
fairly with the communities that hold the knowledge and resources.

KEY CHARACTERISTICS OF TRADITIONAL KNOWLEDGE

1. It is preserved and transmitted in a traditional context from generation to generation.

2. It pertains to a particular traditional or indigenous people or community

3. It is not static, but rather evolves as communities respond to new challenges and needs

4. It may be collective or individual in nature.

5. About 370 million indigenous and tribal people all around the world are the real custodian and
holders of traditional knowledge

6. Up to 80% of the world’s population depends on traditional medicine for its primary health care

7. This knowledge is indispensable for the poorest segments of society

8. Traditional knowledge also prevents land and soil degradation, fisheries depletion, biodiversity
erosion and deforestation.

BIO PROSPECTING

Bio prospecting is the search for biological resources and accompanying indigenous knowledge
for the purpose of commercial exploitation. It is a process of appropriation and commercialization
of natural products ranging from plants and animals. Bio prospecting could be a useful tool in
economic conservation.

BIOPIRACY

Bio piracy is a situation where indigenous knowledge of nature, originating with indigenous
people, is used by others for profit, without permission from and with little or no compensation or
recognition to the indigenous people themselves.

Developed countries are exploiting genetic resources of the developing countries and the
traditional knowledge of the indigenous communities in the name of patents on the inventions derived
from those genetic resources. This leads to bio piracy.

Bio piracy operates through unfair application of patents to genetic resources and traditional
knowledge. Bio piracy is the theft or usurpation of genetic materials especially plants and other
biological materials by the patent process. For example, use of indigenous knowledge of medicinal plants
for patenting by medical companies without recognizing the fact that the knowledge is not new, or invented
by the patentee, and thereby the piracy deprives the indigenous community to the rights to commercial
exploitation of the technology that they themselves had developed.

Threats Posed by Bio piracy

Following are the main threats posed by biopiracy:

•Knowledge and/or genetic resources belonging to a region, community or country are stolen or
claimed as one’s own

•The use of this knowledge or genetic resource in the area of its origin or traditional usage may be
hampered

•The patent holder will unfairly profit from the patent

• The patent claimed and awarded illegally and unethically is bound to disturb an established system
somewhere in the world.
Bio prospecting vs. Bio piracy

Bio prospecting involves “the exploration, extraction and screening of biological diversity and indigenous
knowledge for commercially valuable genetic and biochemical resources”. Unfortunately, indigenous
people are all too often unaware of the value of their knowledge. Legislation has attempted to prevent
such unrestricted bio prospecting or what is often referred to as “bio piracy.”

Bio prospecting or collecting biological samples, can help medical and other scientific research, while
Bio piracy or illegal collection, can-

· infringe on the sovereign rights of nations

· decrease the economic health of indigenous communities

· deplete or destroy species.

BIOPIRACY AND TRADITIONAL KNOWLEDGE

Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to
misappropriation. The traditional knowledge, particularly, related to the treatment of various diseases
has provided leads for development of biologically active molecules by the technology rich countries.

In other words, traditional knowledge is being exploited for bio- prospecting. Also Traditional
knowledge is often misappropriated, because it is conveniently assumed that since it is in public
domain, communities have given up all claims over it. Traditional Knowledge includes both the
codified (documented) as well as non-codified information (not documented but may be orally
transmitted).

Bio-piracy of codified Indian traditional knowledge continues, since, this information exists
in regional languages, and there exists a language barrier due to which the patent offices are unable
to search this information as prior art, before granting patents.

The reliability of the traditional medicine systems coupled with the absence of such information with
patent offices, provides an easy opportunity for interlopers for getting patents on these therapeutic
formulations derived from traditional medicine systems.

MISAPPROPRIATIONS OF TRADITIONAL KNOWLEDGE

The grant of patents on non-patentable knowledge (related to traditional medicines), which is

either based on the existing traditional knowledge of the developing world, or a minor variation
thereof, has been causing a great concern to the developing world.

Some of the examples illustrate the bio piracy of traditional knowledge and in many of these
cases the country had to fight for revocation of the granted patents, Revocation, may not be a feasible
option possible for all the patents taken on the traditional knowledge since it involves huge costs and
time.
 Patent examiners, in the international patent offices, while examining the patentability of any
claimed subject matter, use available resources for searching the appropriate non-patent literature
sources. Patent literature, is usually wholly contained in several distinctive databases and can be more
easily searched and retrieved. Therefore, a need was felt to create more easily accessible non-patent
literature databases on traditional knowledge of India.

PROTECTION OF TRADITIONAL KNOWLEDGE

The protection of traditional knowledge innovations and practices of indigenous and local
communities has received increasing international attention since the adoption of the CBD in 1992. It is now
a well-documented fact that TK plays an important role in the global economy and is valuable not only to
those who depend on it in their daily lives but also to modern industry and agriculture. Most traditional
societies depend on this knowledge for their food and healthcare needs. There are no reliable estimates of
the total contributions of TK associated with traditional crop varieties (landraces) to the global economy, but
the contributions of TK in the development and growth of pharmaceuticals and biotechnology-based
industries are widely reported. A recent study by the Organization for Economic Co-operation and
Development (OECD) has outlined the relative importance of biotechnology patent activity by concluding
that the absolute number of biotechnology patents issued by the United States Patent Office and the
European Patent Office has grown substantially in comparison with the total number of patents.

Traditional knowledge associated with a biological resource is an intangible component of the

resource itself. TK has the potential of being translated into commercial benefits by providing
valuable leads for the development of useful products and processes. The valuable leads provided by
TK save time, money and investment of modern biotech firms into any research and product
development. It is estimated that a hit-rate of 80 percent or more can be achieved in developing
medical drugs where the screening of plants is limited to species used by indigenous communities.

The issue of protection and preservation of TK at the international level has been brought to the fore
front at the instance of developing countries because of different concerns and perspectives. A large
number of countries rich in genetic resources and TK and folklore believe that the traditional
communities have been deprived of the benefits from the use of their knowledge, innovations and
practices which have been monopolized and used by others, mainly by major companies, without their
authorization and without acknowledging or rewarding them for their knowledge. Consequently,
there is a perceivable asymmetry between the benefits obtained by the companies that commercial
exploitation of this knowledge and the lack of benefits for its true holders. Developed countries have a
moral obligation to ensure that indigenous/local peoples receive a fair and equitable share of benefits
arising out of the use of their TK and the commercialization of genetic resources. Moreover, if the
knowledge assets of developed countries are to be protected by means of an international agreement
such as the TRIPs Agreement, it is only fair and equitable that the knowledge assets of developing
countries also be similarly protected in a similar way. It is indeed the responsibility of the
international community to create an egalitarian system for the availability, acquisition, maintenance
and enforcement of intellectual property rights. An international regime would give holders of TK
control over the use of their knowledge assets and the capacity to ensure that they are not exploited
commercially. There has been an increasing number of reported cases of misappropriation and
commercial exploitation of this knowledge under patents and other IPRs. In many of these cases,
claims in the patents on plants and their genetic resources are not fundamentally different from the
practices applied by the traditional communities in the utilization of these plants as food, cosmetics or
traditional medicines. Some of these case have been successfully challenged, such as in the cases of
neem and turmeric. This raises an important issue of the legal protection of our TK.

The protection of TK is important for the conservation and sustainable development of the
environment, as much of the world’s crop diversity has been conserved and preserved by
indigenous/local peoples, which has helped in the protection and conservation of biodiversity. Their
knowledge is central to the conservation and preservation of GRs and other bio-resources. Most of
these communities live in areas where the vast majority of the world’s plant genetic resources (PGRs)
are found. There is also the danger that the biological resources increasingly subjected to IPRs and
patents are likely to be plucked to extinction, which raises concerns over their exhaustibility and loss
of habitat besides the loss of lifestyles and livelihoods to indigenous communities that have nurtured
and used these resources for generations. This may also ultimately would affect food security.
International recognition and protection of TK would help in the protection / conservation of the
environment and in the management of biodiversity. The movement of traditional communities from
their natural habitat and their increasing attraction with modern society has also raised concerns
about the protection of TK, which will lead to its extinction as well will affect biodiversity. Lack of
motivation in the younger generation to learn the traditions is another reason for the protection of
TK. There is a fear that TK will suffer extinction with the death of the elders of the community. TK is
generally viewed as being inferior, since it does not conform to the accepted scientific methods of
learning in the context of the modern approach of science. Only by concerted efforts to protect it and
accord it due respect can this trend be stopped. There is also a need to enable these communities to
harness TK for their economic uplift and growth.