Biological Diversity Act, 2002

Conservation, sustainable use and fair sharing of benefits from biological resources

In one minute

The Biological Diversity Act, 2002 gives effect to the Convention on Biological Diversity. It controls who may take Indian biological resources and the knowledge linked to them. It requires fair and equitable sharing of the benefits.

It has three levels: the National Biodiversity Authority, State Biodiversity Boards and local Biodiversity Management Committees. Foreign persons need approval. Indian users give prior intimation.

Exam focus

Frequency: Rarely asked
Usually asked as: Short answer (4 to 6 marks)

Legal provision

The main sections, read from the Act as stored on this site (as amended up to Act 10 of 2023), are these.

Preamble: India is a Party to the Convention on Biological Diversity signed at Rio de Janeiro on 5 June 1992, in force from 29 December 1993. The Act also refers to the Nagoya Protocol adopted on 29 October 2010.
Section 3: approval of the National Biodiversity Authority is needed to obtain a biological resource or associated knowledge for research, commercial use, bio-survey or bio-utilisation.
Section 4: results of research cannot be transferred to such persons without the Authority's written approval.
Section 6: intellectual property rights based on Indian biological resources.
Section 7: prior intimation to the State Biodiversity Board for commercial use.
Section 8: the National Biodiversity Authority, with its head office at Chennai.
Section 21: benefit sharing.
Section 22: State Biodiversity Boards.
Section 41: Biodiversity Management Committees.
Section 55: penalty.

Meaning and definition

The Act protects biological resources and the knowledge that goes with them. Its aim is conservation, sustainable use and fair and equitable benefit sharing. A company that profits from an Indian plant must share the gain with the people and the country that preserved it.

The wrong the Act addresses is biopiracy, the taking of biological resources or traditional knowledge without permission or fair return. The wider idea of biodiversity is the variety of living things.

Three levels of the ActHow to read this: the outer box is the national body. Each inner box works under the one around it.

National Biodiversity Authority approvals under sections 3, 4 and 6; benefit sharing under section 21

State Biodiversity Boards regulate access under section 7 by prior intimation

Biodiversity Management Committees in every local body: conservation and documentation (section 41)

Detailed explanation

Step 1: who needs the Authority's approval (section 3)

Three groups need the previous approval of the National Biodiversity Authority. They are a person who is not a citizen of India, a citizen who is non-resident under the Income-tax Act, 1961, and a body corporate, association or organisation. The body falls in this group in two cases. One is that it is not incorporated or registered in India. The other is that it is registered in India but controlled by a foreigner under the Companies Act, 2013.

The Authority regulates these activities by granting or rejecting approvals (section 18). It also makes regulations on access and on benefit sharing.

Example. A foreign pharmaceutical company wants a medicinal plant from the Western Ghats for research. It must apply to the Authority. It cannot take the plant on the strength of a private agreement with a local seller.

Step 2: intimation by others (section 7)

Anyone else who accesses a biological resource and its associated knowledge for commercial use must give prior intimation to the State Biodiversity Board. The Board regulates the activity under section 23. Section 7 does not apply to codified traditional knowledge. It does not apply to local people and communities, including growers and cultivators of biodiversity. It does not apply to vaids, hakims and registered AYUSH practitioners who practise indigenous medicine for livelihood. Cultivated medicinal plants are exempt only on a certificate of origin from the Biodiversity Management Committee.

Step 3: intellectual property rights (section 6)

Persons covered by section 3 need the Authority's prior approval before any intellectual property right is granted on an invention based on an Indian biological resource or traditional knowledge. This includes resources deposited in repositories outside India. Persons covered by section 7 must register with the Authority before grant (section 6(1A)). If they already hold an intellectual property right, they need the Authority's approval at the time of commercialisation (section 6(1B)). The Authority may impose a benefit sharing fee or royalty.

Step 4: benefit sharing (section 21)

While deciding benefit sharing, the Authority must secure fair and equitable sharing on terms agreed between the applicant and the Biodiversity Management Committee. Section 21(2) lists the ways. Examples are joint ownership of intellectual property rights and transfer of technology. Others are production and research units located where they help the benefit claimers, and a role for Indian scientists and local people. A venture capital fund and money are also listed. Money ordered may be deposited in the National Biodiversity Fund.

Step 5: the institutions

National Biodiversity Authority (section 8): a body corporate with a Chairperson, sixteen ex officio members, four representatives of State Boards and five non-official members. It can act to oppose the grant of intellectual property rights abroad (section 18(4)).
State Biodiversity Boards (sections 22 and 23): one for each State. A Union territory has none, and the Authority acts for it.
Biodiversity Management Committees (section 41): every Gram Panchayat, Nagar Panchayat or Municipal Committee must form one, of seven to eleven members. Each promotes conservation, sustainable use and documentation of biological diversity. The Authority and State Boards must consult the Committee before deciding on use of resources in its area.

Exceptions and special rules

Penalty (section 55)

A person who breaks section 3, 4, 6 or 7 is liable to a penalty of at least one lakh rupees and up to fifty lakh rupees. If the damage is greater, the penalty must match the damage. A continuing breach adds a penalty of up to one crore rupees. An adjudicating officer decides the penalty.

The 2023 amendment

Act 10 of 2023 (in force from 1 April 2024, as the footnotes to the stored text show) made these changes to the sections above.

A body corporate registered in India is outside section 3 unless it is controlled by a foreigner.
Sections 4 and 6 were also replaced with the text set out above, including registration for persons under section 7.
Section 7 exempts codified traditional knowledge, cultivated medicinal plants (with a certificate of origin) and registered AYUSH practitioners.
Section 55 now gives a money penalty decided by an adjudicating officer.

Don't confuse: sections 3, 6 and 7

Point	Section 3	Section 6	Section 7
Who	Non-citizens, NRIs and foreign-controlled bodies	Those under section 3 (approval); those under section 7 (registration)	Everyone else
What	Access for research or commercial use	Intellectual property rights	Access for commercial use
Step	Previous approval	Approval before grant, or registration	Prior intimation

Inside the concept. A Kerala firm owned by an Indian family wants to buy wild turmeric roots in bulk to make a skin cream. It gives prior intimation to the State Biodiversity Board under section 7.

Just outside it. A registered AYUSH practitioner in Wayanad uses local herbs in her clinic. Section 7 does not apply to her, so she need not give intimation.

Common mistakes

Saying every user needs the Authority's approval. Only the persons in section 3 do. Others give intimation under section 7.
Forgetting that section 6 covers intellectual property rights, not access.
Saying the Act protects only plants. It covers biological resources and associated knowledge.
Giving the head office as Delhi. It is Chennai.

Apply it

Problem

A Mumbai start-up controlled by a foreign investor wants to extract a compound from a forest herb. It will then file a patent. It has made no application anywhere.

Issue

Which approvals does the start-up need?

Rule

Section 3 covers a body corporate controlled by a foreigner. Section 6 requires approval before an intellectual property right is granted. Section 21 requires benefit sharing.

Application

The start-up falls under section 3, so it needs the Authority's approval to take the herb. It also needs approval before any patent is granted.

Conclusion

The start-up must obtain both approvals, and the Authority will fix benefit sharing. A breach carries a penalty of at least one lakh rupees under section 55.

Leading case laws

No case page on this site turns on this Act.

How to write this answer in the exam

5-mark answer

Object and the Convention on Biological Diversity.
Three-tier institutions.
Approval (section 3) and intimation (section 7).
Benefit sharing (section 21).

10-mark answer

Why the Act was needed: biopiracy.
National Biodiversity Authority, State Boards and Committees.
Sections 3, 4, 6 and 7, with the comparison table.
Benefit sharing and the National Biodiversity Fund.
Penalty and the 2023 amendment.

Key points to remember

Gives effect to the Convention on Biological Diversity (Rio, 1992).
Section 3: approval for non-citizens, NRIs and foreign-controlled bodies.
Section 7: prior intimation to the State Board for commercial use.
Section 6: intellectual property rights. Section 21: benefit sharing.
Three tiers: Authority (Chennai), State Boards, Management Committees.
Section 55: penalty of Rs 1 lakh to Rs 50 lakh.

Quick self-test

1. Where is the head office of the National Biodiversity Authority?

Chennai.

2. Who gives prior intimation instead of seeking approval?

Persons under section 7, to the State Biodiversity Board.

3. Which section requires benefit sharing?

Section 21.