The Biodiversity Act of 2002 was enacted considerably later than previous environmental legislation, such as the Indian Forest Act of 1927, the Wildlife Protection Act of 1972, and the Environment Protection Act of 1986. Despite the fact that all of these laws emphasized environmental preservation, none of them adequately addressed all aspects of ecological and biodiversity protection.

A civil society committee was tasked with developing India’s National Biodiversity Strategy and Action Plan between 2000 and 2002. The administration, however, refused to approve this idea. As a result, the government chose to produce its own draught of the National Biodiversity Plan, drafted by technocrats. The Lok Sabha enacted the Act of 2002 on December 2, 2002, and the Rajya Sabha passed it on December 11, 2002, based on this proposal.

The main objectives of the act were in conserving the Biological Diversity, maintaining and controlling the proper use of its components, ensuring equitable distribution of benefits derived from such utilization. The mentioned objectives of the Act provide for a safeguard of traditional knowledge, prevent biopiracy, prohibit people from claiming patents without the government’s permission, etc.

IMPORTANT PROVISIONS OF THIS ACT

Chapter IX of this Act highlights the various aspects of the goal of preserving biological diversity, particularly Sections 36, 37, and 38, which deal with developing national plans and programmes for biodiversity conservation, powers given to state governments to notify and preserve biodiversity areas, and the authority of the Central Government to notify species that are endangered. While the usage of its component in a sustainable manner would suggest a regularization of natural resource utilization rather than exhaustion.

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. This Section of the Act is an act which has faced a lot of contention such as when an appeal was filed in the case of Environment Support Group v. National Biodiversity Authority to declare Section 40 of the Biological Diversity Act, 2002 illegal and unconstitutional because serious prejudice was likely to be caused, putting the national interest and biodiversity of certain species in jeopardy. It aimed to attract authorities’ attention to public agricultural colleges that were engaging in illegal biopiracy of native eggplant varieties. The petitioners further mentioned that 18 highly endangered plants were among the 190 typically traded groups.

The petition also claimed that Section 40 of the Biodiversity Act of 2002 allowed for the arbitrary and unrestricted trading of India’s biological resources, which resulted in widespread bio-piracy. Despite the fact that the National Biodiversity Board and the Karnataka Biodiversity Board had filed a criminal complaint of biopiracy in the High Court of Karnataka, the petition filed for criminal proceedings was dismissed and the criminal prosecution of the respondents who had been accused of serious criminal acts of biopiracy by the National Biodiversity Board was quashed.

Another important part of the Act is Section 19 of the Act which 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. Also, 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. Section 6 of the Act is related to this provision as it states that application for intellectual property rights not to be made without approval of National Biodiversity Authority.

These Sections were called into the picture in the case of Akb Jagannath Nag v. Union of India & Ors, where it was appealed that the petitioner had intellectual property rights in terms of Section 6 and Section 19(2) of the Biological Diversity Act, 2002 and concerned rules which were in his favor. Therefore, such approval by the concerned Authority under the Biological Diversity Act would clearly come in the way of the order criticized before the learned Single Judge. The order passed by the Controllers and Patents and Designs as per Section 15 of the Patents (Amendment) Act, 2005 was appealable in terms of Section 117A of the Patents Act, 1970 as amended in 2005. If there was an exercise of wrong jurisdiction, excessive authority during passing such order, the same could be challenged before the Appellate Authority. Based on this the appellant had interfered with the order passed by the Controllers of Patents and Designs as well as the learned Single Judge. If the present approval under Section 6 of the Biological Diversity Act seemed to change the entire scenario, then it had to be brought under the notice of the single learned judge by the way of review. Therefore, it was held that it would not be just to point out faults with either the order of the Controllers of Patents and Designs or the order of the learned Single Judge. This appeal was disposed of with an application for stay given to the appellant with the choice of option for approaching the learned Single Judge for review of the order of the Appellate Authority as indicated.

Offences and penalties are spoken about and put forth by Section 58 which states that offences under this Act are cognizable and non-bailable. Except for the Central Government or any authority authorized by the government or 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. Provisions of this Act even being inconsistent with any other law in force shall yet have effect and put to work as laid under Section 59.

A very important aspect of this Act is Access Benefit Sharing. 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. This was the inspiration behind the implantation of Access Benefit Sharing in the Act.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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