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  • Organise required documentation for authorisation for using bio-resources
  • Assist with the report filing process
  • Legal advice throughout the application process

Overview of the Bio-Diversity Act, 2002

Healthy biological diversity is declared a fundamental right of citizens under Article 21 of the Constitution of India. Healthy bio-diversity indicates the peaceful coexistence of all organisms in a pollution-free environment. But this has been disrupted due to the introduction of industrialisation, the shift of population from rural to urban areas, and overpopulation. Thus, Bio-Diversity Act 2002 came into the picture.

Before enacting the Biological Diversity Act 2002, India participated in many international initiatives to save biodiversity. The list of initiatives includes the Cartagena Protocol for Biosafety to BIOLOGICAL DIVERSITY  (2000), the CITES (the Convention on International Trade in Endangered Species of Flora and Fauna)of 1975, the World Heritage Convention (1972), the Ramsar Convention on Wetlands (1975), International Treaty on Plant Genetic Resources for Food and Agriculture (FAO 2001), UN Convention to Combat Desertification (1994), the Bonn Guidelines of 2002 on Access to Genetic Resources and Fair and Equitable Sharing of the advantages arising out of their utilisation, FAO’s International Undertaking on Plant Genetic Resources (1983), Trade Related Intellectual Property Rights (WTO-1994) 1994 and Global Strategy for Plant Conservation (2002).

Besides, India also has signed Convention on Biological Diversity in Rio de Janeiro to protect its biodiversity. The main objective was to provide a framework and introduce a system of sustainable development. After agreeing to the implementation of this convention correctly and addressing the urgent need for proper legislation relating to the protection and regulation of biodiversity in India, the Ministry of Environment, Forest and Climate Change (MoEF&CC)implemented the Biological Diversity Act, 2002.

The Salient features of the Bio-diversity Act, 2002

The Bio-Diversity Act2002 was implemented to address the issues linked to the right to use genetic resources and related knowledge by foreign nationals, institutions or companies. The other objective mentioned the allocation of benefits arising from using these resources and associated knowledge by the country and its people. Some of the other essential features of the Bio-Diversity Act 2002 are: -

  • The act conserves and promotes sustainable usage of biological diversity.
  • The Biological Diversity Act mandates the setting up of the Biodiversity Management Committees (BMCs), National Biodiversity Authority (NATIONAL BIODIVERSITY AUTHORITY (NBA)) and State Biodiversity Board (SBB)
  • The Act also prescribes National Biodiversity Authority and State Biodiversity Boardconsult Biodiversity Management Committees in resolutions relating to bioresources.
  • To respect and protect indigenous communities' traditional information related to biodiversity.
  • To protect the distribution of profits with local folks as conservers of biological resources and holders of information and knowledge.
  • Under the Biological Diversity Act, all foreign organisations require authorisation from the National Biodiversity Authority to obtain biological resources and associated knowledge.
  • Indian individuals and scientists need the National Biodiversity Authority's support for transferring research results to foreign organisations or nationals.
  • Development and conservation of regions of importance from the perspective of biological diversity by pronouncing them as biological diversity heritage sites.
  • Rehabilitation and protection of threatened species.
  • Participation of state government departments in the comprehensive scheme of executing the Biological Diversity Act through the composition of committees.
  • Under the Bio-Diversity Act 2002, Indian business needs prior suggestion from the state Biodiversity Board to obtain bioresource. State Biodiversity Board has the right to confine if found to encroach upon preservation, sustainable use and profit sharing.
  • Guidelines for reporting heritage sites by the state government in discussion with the local body.
  • Prior consent is needed from National Biodiversity Authority for Intellectual Property Rights in India or outside India on Bioresource.

Duties of the central and state governments

Under the Bio-Diversity Act 2002, chapter IX defines the duties of the central and state governments. These duties are: -

  1. According to the act, the central government has to formulate policies and strategies for the preservation and environmentally sustainable usage of biodiversity.
  2. The state government must also declare any unique biological diversity as a heritage site for its protection.
  3. The central government is responsible for notifying any species as threatened or endangered.
  4. The central government also have the power to designate repositories.
  5. They also have the power to excuse Normally Traded Commodities.

Duties of National and State Biodiversity Authorities

  1. According to the Bio-Diversity Act, 20202, the National and State Biodiversity Authorities must ensure that no person can claim a patent over bio-diversity without getting approval from the Indian government.
  2. They must advise central and state governments on biodiversity conservation, benefit sharing and sustainable usage of resources.
  3. National Biodiversity Authorities also have to regulate activities by sections 3, 4 and 6 of the Biological Diversity Act.
    • According to Section 3, certain persons are not allowed to take on Biodiversity-related activities without the consent of the NATIONAL BIODIVERSITY AUTHORITY (NBA).
    • According to Section 4, the research results are not to be shifted to particular persons minus the agreement of the NBA.
    • According to Section 6, an application for Intellectual Property Rights is not to be prepared without the endorsement of the NBA (Section 6).

Approval from National and State Biodiversity Authorities

Chapter V of the Biological Diversity Act 2002mentions obtaining authorisation from NATIONAL BIODIVERSITY AUTHORITY (NBA)and informing SBA (State Biodiversity Authorities) for people to admission and use biological resources. This further explains acquiring information associated with research purposes, industrial utilisation, biological survey and biological utilisation for obtaining intellectual property.

The Biological Diversity Act 2022 entails that a person/entity acquire prior consent for the following things from the National Biodiversity Authority:

  • To obtain access to biological resources to acquire information for research purposes, industrial utilisation, biological survey and biological utilisation.
  • To make an application for intellectual property rights.
  • To transfer any results of research.

Along with this, the Biological Diversity Act also mandates that individuals have to get authorisation from State Biodiversity Authorities for specific biological resources or knowledge. This needs to be done to acquire information for research purposes, industrial utilisation, biological survey and biological utilisation.

Applicability to get authorisation

According to Section 3 of the Biological Diversity Act, 2002, any citizen, non-citizen/non-resident or corporate body operating outside India must get prior consent from the National Biodiversity Authority. This is done to access any biological resources or knowledge individuals have to information associated with research purposes, industrial utilisation, biological survey and biological utilisation occurring in India. In addition, under Section 7 of the Act, any citizen or corporate body registered in India that does not have non-India participation must get consent from State Biodiversity Authorities before initiating any activities mentioned above for commercial purposes.

Process of Authorisation

The main procedure that any citizen, non-citizen/non-resident follows, or corporate body for individuals to access and use biological resources to acquire information associated with purposes of research, industrial utilisation, biological survey and biological utilisation is defined under Rules 14 of the Biological Diversity Rules, 2004. One of the benefits of this process is the insurability of effectiveness, efficiency and transparency.

Applicants are mandated to submit an application in Form 1 along with the applicable fees. Once the said application is approved, an agreement has to be signed by the authorised person for biological resources. This is done as per the Biological Diversity Act 2002.

The National Biodiversity Authority must communicate to the applicant its decision to approve within six months of receipt of the approval application. The assigned officer of the authority must duly sign the grant of approval given to the applicant. Rule 14 also mandates that if the approved application is rejected, the authority has to provide sufficient reason for the rejection in writing. The applicant must also be given sufficient time to appeal.

Exemptions from approval

The Biological Diversity Act stipulates that the central government, with input from theNational Biodiversity Authority through the notification from the official gazette, may exempt some biological resources imported/exported as commodities. The Central Government, in April 2016, exempted 385 biological resources from the Biological Diversity Act 2002. Further, in 2017, they again exempted an additional 36 biological resources. However, by looking at the notifications provided in the official gazette, such exclusion was made to enable the trade of items usually operated as commodities. It can also be renowned that the maximum exempted categories notified by the government through a notification are from the plant category.

Revocation of access or approval

The approval by the authority can be revoked or cancelled by the National or State Biodiversity Authority only if any complaints have been received or the authorities have noticed the violation of their own accord. These include-

  • Under rule 15, sub-rule 1, if the approval violates the public interest or for conserving the environment and biological diversity.
  • If the applicant is not complying with the terms of the agreement
  • If the applicant does not adhere to the conditions or regulations mentioned while the access was granted
  • At last, if the applicant is violating any laws, then in that case as well, the access is revoked.

Once the approval is revoked, the authority sends the direction of revocation to the concerned State Biological Diversity Authority. This is so that they can stop the access, examine if any damage has occurred, and take appropriate steps to improve the damage under rule 15, sub-rule 2.

Withdrawal of application

Under the Biological Diversity Act 2002, in any case, if the applicant desires to withdraw any application made before the National Biodiversity Authority (NBA), then the applicant may make an unrestricted request for the same. Such an appeal is checked by the NBA only when the authority believes that no contrary implication on the extraction of such an application is secure. All needs for the conclusion of an application are inspected and reflected upon by the expert committee, who, after conversation and discussion, may:

  • endorse closure of the request;
  • pursue additional details for the applicant’s withdrawal and re-examine them;
  • endorseaquery by designated persons or via the State Biodiversity Authority or any appropriate agency in case of non-response or on suspicion of misuse/defilement of the Biological Diversity Act provisions, or
  • endorse any other accomplishment. Based on the references of the expert committee, the NBA may contemplate the closure of the application.

Once the submission is closed after the conclusion of all official procedures, a termination or closure letter is directed to the applicant. A duplicate of the same is submitted to the respective SBA (State Biodiversity Authority) or other pertinent agencies. It is also linked to the applicant/legal counsel's respective attorney. This step finishes the process of closure. Once a request has been terminated or closed, the applicant cannot revive the same appeal but can apply again by reimbursing the agreed fee and satisfying the necessary compliance as provided in the Biological Diversity Act, 2002.

Penalty/Offense Section

The penalty or offence section allocated under chapter XII is responsible for implementing joint arrangements with a penalty, company offences, appeals, cognisance of offences etc. In particular, Section 58 of the Biological Diversity Act, 2002 mandates that the crimes shall be non-bailable and cognisable. Any person distressed by any provisions of benefit sharing or instruction of the NBA under this Act may report an appeal to the High Court. The time permissible to prefer an appeal is thirty days from the announcement date to the aggrieved individual of the order of the NBA.

Suppose any person breaches any direction order made or given by the Central Government, the State Government, NBAor SBA (the State Biodiversity Board) for which no penalty has been independently provided under the Biological Diversity Act, 2002. In that case, the person shall be penalised with a fine of one lakh rupees. In case of the following offence, the fine may extend to two lakh rupees, and in case of continuous infringement with additional fine may extend to two lakh rupees daily.

How can Enterclimate assist you? 

Customised legal assistance

 

Our legal experts offer assistance all through the process of obtaining authorisation and complying with the Bio-Diversity Act, 2002.

 

Aid in annual report filing

 

We offer comprehensive guidance individually catering to your specialised needs.

Support on filing for renewal

 

Our team of experts also delivers thorough service for filing a renewal application for authorisation using bio-resources.

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