Biological Diversity Act, 2002
🗂️ Background
Let us first understand why India needed a Biodiversity Law at all.
India is one of the 17 mega-biodiverse countries of the world. Along with rich biodiversity, India also possesses immense traditional knowledge, especially related to medicinal plants, agriculture, and indigenous practices. However, for decades, foreign entities exploited these resources without sharing benefits. This exploitation led to the phenomenon called biopiracy.
To address this, India enacted the Biological Diversity Act, 2002, in fulfillment of its international commitments under the Convention on Biological Diversity (CBD), 1992.
🎯 Objectives of the Biological Diversity Act, 2002
The Act rests on three core pillars:
- Conservation of biodiversity
- Sustainable use of biological resources
- Fair and equitable sharing of benefits arising from the use of biological resources and associated traditional knowledge
At its heart, the Act aims to prevent biopiracy.
📌 What is Biopiracy?
Biopiracy refers to the unauthorised or unethical commercial exploitation of biological resources or traditional knowledge without prior informed consent and without fair compensation to indigenous or local communities.
🏛️ Three-Tier Institutional Structure under BDA, 2002
To operationalise these objectives, the Act establishes a decentralised but coordinated three-tier structure:
- National Biodiversity Authority (NBA) – National level
- State Biodiversity Boards (SBBs) – State level
- Biodiversity Management Committees (BMCs) – Local body level
This structure ensures that local knowledge is protected while national interests are regulated centrally.
🟢 National Biodiversity Authority (NBA)
The National Biodiversity Authority (NBA) is the apex statutory body under the Act.
Key Features
- Autonomous statutory body
- Possesses powers of a civil court
- Headquarters: Chennai
- Regulates access to biological resources for research, commercial use, and IPR-related activities
🧭 Functions of the National Biodiversity Authority
1️⃣ Regulation of Access to Biological Resources
Approval of NBA is mandatory for certain categories of activities.
Who needs prior approval?
| Activity | Approval Required |
|---|---|
| Access to biological resources or associated knowledge | Foreign nationals / foreign organisations |
| Transfer of research results to foreign entities | Approval required |
| Applying for IPR based on Indian biological resources | Approval mandatory |
| Collaborative research projects (as per GoI guidelines) | Exempted |
| Indian citizens, local communities, AYUSH practitioners | Mostly exempt |
👉 Key idea: The law distinguishes foreign access strictly to prevent exploitation.
2️⃣ Intellectual Property Rights (IPRs)
Any invention based on Indian biological resources requires NBA approval before seeking IPR protection (earlier stage under the original Act).
This ensures that commercial gains do not bypass benefit-sharing obligations.
3️⃣ Benefit-Sharing Mechanism
Benefit-sharing is the soul of the Act.
- NBA determines monetary and non-monetary benefits
- Benefits are shared with:
- Local communities
- Traditional knowledge holders
- Conservers of biodiversity
All proceeds are deposited in the National Biodiversity Fund (NBF), which is used for:
- Conservation of accessed areas
- Sustainable development initiatives
- In consultation with local self-government institutions
4️⃣ People’s Biodiversity Registers (PBRs)
NBA facilitates the documentation of:
- Local biological resources
- Associated traditional knowledge
These registers are maintained at the village/urban local body level through BMCs and act as legal evidence against biopiracy.
5️⃣ Biodiversity Heritage Sites (BHS)
NBA has the authority to identify and notify Biodiversity Heritage Sites, which are:
→ Ecologically fragile
→ Rich in endemic or threatened species
Special conservation measures are applied to these sites.
6️⃣ Advisory Role
NBA advises the Government of India on:
→ Biodiversity conservation
→ Sustainable use strategies
→ International biodiversity negotiations
📝 Biological Diversity (Amendment) Act, 2021
Why Amendment?
The government argued that the original Act:
- Was procedurally complex
- Discouraged research and innovation
- Created compliance burdens for AYUSH and medicinal plant sectors
Objectives of the Amendment
- Promote Indian systems of medicine
- Encourage cultivation of wild medicinal plants
- Fast-track research and patent processes
- Decriminalise offences
- Attract foreign investment
🔑 Key Provisions of the Amendment
1️⃣ Access to Biological Resources
- Reclassifies entities
- Expands exemptions
- Reduces approval requirements for certain Indian entities
2️⃣ Intellectual Property Rights
- NBA approval required before grant of IPR, not before application
👉 This reduces procedural delays for researchers.
3️⃣ Benefit-Sharing Provisions
- Original Act: Applicable to research, bio-survey, bio-utilisation, and commercial use
- Amendment: Removes benefit-sharing obligations for research activities
4️⃣ Offences and Penalties
- Earlier: Criminal offences (imprisonment up to 5 years)
- Amendment: Decriminalised
- Introduces civil penalties ranging from ₹1 lakh to ₹50 lakh
⚠️ Criticism of the Amendment
1️⃣ Reduced Role of Local Communities
- Earlier: Benefit-sharing terms involved local bodies and benefit claimers directly
- Now: Negotiation mediated by NBA
👉 Direct participation of indigenous communities diluted
2️⃣ Removal of Prior Informed Consent
- The Bill does not explicitly ensure prior informed consent
- This is seen as inconsistent with the Nagoya Protocol, which mandates consent and involvement of indigenous communities
3️⃣ Change in Adjudicating Authority
- Earlier: Judicial process before a Judge
- Now: Inquiry conducted by government officials
👉 Raises concerns over excessive executive discretion
Comparison Table: BDA, 2002 vs Amendment Act 2021
| Area of Change | BDA, 2002 | Amendment Bill, 2021 |
|---|---|---|
| IPR Approval Stage | NBA approval before IPR application | NBA approval before IPR grant |
| Benefit Sharing | Applicable to research + commercial use | Removed for research activities |
| Local Community Role | Direct involvement in benefit-sharing terms | Indirect role via NBA |
| Prior Informed Consent | Implied community consent framework | No explicit consent mechanism |
| Nature of Offences | Criminal (jail + fine) | Decriminalised (civil penalty) |