Analysis: The Biological Diversity Act, 2002

Introduction:

The diverse variety of life found on the earth is called biodiversity. India has a significant amount of biodiversity in its forests, wetlands, and marine areas.  Our country has a wide range of ecosystems, from the tropical rainforests to alpine woodland. Also from the temperate forests in the north to coastal wetlands. The Indian subcontinent is mainly composed of fertile plains and high plateaus. As well as many large rivers including the Ganga, the Brahmaputra, and the Indus.

Therefore, biodiversity is very important to the well-being of our country and the planet.

India is one of the 17-mega biodiversity countries of the world. With only 2.4% of the land area, India already accounts for 7-8% of the recorded species of the world. Over 46,000 species of plants and 81,000 species of animals have been recorded in the country. So far by the Botanical Survey of India and the Zoological Survey of India, respectively. India is an acknowledged center of crop diversity, and harbors many wild relatives and breeds of domesticated animals and fish besides millions of microbial diversity, insects and other species.^[1]

Background

The act was passed in the background when the world was witnessing numerous biopiracy cases. The Neem case, Turmeric case, and Basmati cases are the classic examples. In this India’s biological resources as well as the traditional knowledge of local communities are misappropriated. Also patented in foreign countries without any permission from Indian authorities or local communities.^[2]

The Biological Diversity Act, 2002 was passed to give effect to the United Nations Convention on Biological Diversity which was signed at the Rio Summit in 1992.

The Act was based on the proposal made by bureaucrats and politicians. Though a civil society group was authorize during the 2000-2002 period to prepare India’s National Biodiversity Strategy and action plan. The government reject their proposal and then agreed to publish its draft on the National Biodiversity Plan.

Objectives of the Act

The major objectives of the Act include conservation of the biological diversity of India. Sustainable use and regulation of access to Indian biological resources. Lastly ensuring equitable benefit sharing arising from the utilization of genetic resources.

The other objectives include setting up of the National Biodiversity Authority (NBA), State Biodiversity Board(SBB) and Biodiversity Management Committees(BMC’s). They work on conserving and developing areas of importance by declaring them biological diversity heritage sites. Also respecting and protecting knowledge of local communities. 

Salient Features

Some of the salient provisions made in the Biological Diversity Act for the regulation of access to biological diversity. Its conservation and sustainable use are:

• Conservation and sustainable use of biological diversity.
• Conservation and development of areas important from the standpoint of biological diversity by declaring them as biological diversity heritage sites.
• Protection and rehabilitation of threatened species.
• To respect and protect the knowledge of local communities related to biodiversity.
• Regulation of access to biological resources of the country to secure an equitable share; in benefits arising out of the use of biological resources, and associated knowledge relating to biological resources.
• To secure sharing of benefits with local people as conservers of biological resources and holders of knowledge. The information relating to the use of biological resources.
• Involvement of institutions of self-government in the broad scheme of the implementation of the Act through the constitution of committees.^[3]

Implementation of the Act

For this act to be implemented competent functional bodies were set up, which are: National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at the local level.

The major functions of these authorities are:

• The local level Biodiversity Management Committees (BMCs) are responsible for promoting conservation, sustainable use, and documentation of biological diversity. Including preservation of habitats, conservation of landraces, folk varieties and cultivars; domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity.

• At the state level, the State Biodiversity Boards (SBBs) are establish to focus on advising the State Governments. Subject to any guidelines issued by the Central Government, on matters relating to the conservation of biodiversity. Sustainable use of its components and equitable sharing of the benefits; arising out of the utilization of biological resources. The SBBs also regulate, by granting of approvals or otherwise upon requests for commercial utilization or bio-survey and bio-utilization of any biological resource by the Indians.

• At the national level, the National Biodiversity Authority (NBA) is establish to focus on advising the Central Government. Specially 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; and advising the State Governments in the selection of areas of biodiversity importance to be notified under Sub-Section (1) of Section 37 as heritage sites and measures for the management of such heritage sites. The NBA considers requests by approving or otherwise for undertaking any activity referred to in Sections 3,4 and 6 of the Act.

Each of these structures are required to be connected for decision-making processes on various issues, including on issues of access and benefit-sharing (ABS).^[4]

The Drawbacks/ Lacunae in the Act

The major drawback is that this act does not give adequate attention to conservation; on the contrary, it puts greater focus on preventing profit-sharing from the industrial usage of bioresources. The developing nations indeed laid the groundwork for this act to deter bio-piracy. We can not, however, neglect another major objective of this act, that is to protect and conserve biodiversity. Some of the other drawbacks are:

1. Lack of Inclusion of Local Communities and Authorities

There are a range of concerns regarding the ‘consultation’ provisions for local authorities.

The phrase is often use ambiguously to imply communicating with just a few people, or to a village head, or an enterprise in an urban environment. Legitimate consultation should include communication with the entire affected community or settlement.  Having citizens completely aware of the benefits and drawbacks of their consent is a significant precondition for exercising their consent. However, the Act and Central Rules leave the inference of the word ambiguous and thus do not encourage the full involvement of local communities.

2. Federal Structure

The CBD recommends the preservation and management of biodiversity, and the establishment of national and state-level institutions. State biodiversity authorities established under the Act have little total authority and their powers are limited to that of an advisory body that adheres to the guidelines provided by the Central Government. State authorities should be more flexibility to address biodiversity-related problems through a bottom-up approach.

3. Absence of Mechanism to Deal with Biodiversity Offences

The third major problem with this Act is the lack of provisions to do with the search, seize or arrest aspects of criminal procedures. Juxtaposing this with the 1927 Indian Forest Act and the 1972 Wild Life Protection Act, which have clear search, seize and arrest provisions, shows the procedural disparity posed by the Biological Diversity Act. The Indian Forest Act has a specific chapter (Chapter 9) on sanctions and procedures that empower forest officers to arrest, search, and seize the offenses punishable under it.

Similarly, under Chapter 6, the Wild Life Protection Act has specific provisions that give similar powers to authorized officers in respect of offenses punishable under it. On the contrary, this Act only includes a clause stating that “all crimes under this Act cognizable and non-bailable” (Section 58). This implies that police may arrest someone without an arrest warrant and that bail is not a matter of law but a matter of court discretion.

Further, the inclusion in the Act of Section 61 makes it much more difficult to deal efficiently with offenses under the Act. This clause states that “except by a complaint made by the approved officers, no court can recognize any offense.” To explain it further, under Section 190 of the Code of Criminal Procedure, a Magistrate can take the cognizance of an offense by three means:  accusation, police report or records. Section 61 of the Act essentially limits a Magistrate’s powers to recognize crimes only by complaints and not the other two types. This clause provides unnecessary ambiguity about the protocol for cognizance of an offense being prosecuted by the police.^[5]

Conclusion

So we may conclude that while many provisions of the Biological Diversity Act are progressive, the major flaws exist in different areas and provisions of the Act. The Act does not have a broad framework for the preservation of biological resources and their sustainable use. Conservation of biodiversity includes various stakeholders and a multi-sectoral outlook is necessary for its conservation in all spheres of the ecosystem.

Many still feel that the basic idea behind the act is itself problematic since it is defensive and puts greater emphasis on intellectual property rights and commercial aspects rather than the empowerment of the local community and conservation and protection of the country’s biodiversity. Therefore, there is an immediate need to ensure proper implementation of this Act through cooperation and inclusion of the local communities and by providing clarity in the provisions and a greater focus on conservation of biodiversity. With the rapidly evolving world, the Act needs to be reviewed again keeping in mind the changes around us.

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References:

^[1]Safiq Ahamed, Frequently Asked Questions on the Biological Diversity Act, 2002 National Biodiversity Authority- FAQ (2008), http://nbaindia.org/content/19/16/1/faq.html (last visited Jul 1, 2020).

^[2]Punam Singh Chandel, Critical Review of Biodiversity Act 2002 Academia.edu – Share research (2017), http://www.academia.edu/242307/Critical_Review_of_Biodiversity_Act_2002. (last visited Jul 1, 2020).

^[3] http://sbbsikkim.nic.in/pdf/publications/Posters/salient_features_BDA_2002.pdf

^[4]Safiq Ahamed, About National Biodiversity Authority- National Biodiversity Authority (2008), http://nbaindia.org/content/22/2/1/aboutnba.html (last visited Jul 1, 2020).

^[5]Alphonso Jojan,  The Curious Case of the Indian Biological Diversity Act SpicyIP (2017), https://spicyip.com/2017/11/the-curious-case-of-the-indian-biological-diversity-act.html (last visited Jul 1, 2020).