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Biodiversity and Traditional Knowledge Under Biological Diversity Act, 2002

India is one of the most biodiversity in the world, also one of the most ancient civilizations in the world. Therefore, it has a very rich treasure of traditional knowledge. It can be defined as the knowledge, innovation, and practices of indigenous and local communities around the world. This knowledge is gained by them from one generation to another. It has played an important role in the conservation of biodiversity.

Role of Traditional Knowledge in Conserving Biodiversity

Following role is being played by the traditional knowledge in conservation of biodiversity:

  1. Local communities believe in the principle of co-existence and worship flora and fauna as god. For example, sacred groves some thousands of years old, dedicated to a local deity.
  2. Contradictory to present scenario, local communities improve and nurture a diverse variety of crops and domesticated over a generation. With their traditional knowledge, they are fighting with hybrid and GMO crops.
  3. Ancient system of medicine is part of the official health care system in India and depends on biodiversity of biological resources and traditional knowledge.

Convention on Biological Diversity

For the protection and conservation of biodiversity, a multilateral treaty was signed, at Rio de Janeiro in 1992 and entered into force in 1993. This multilateral treaty is referred to as the Convention on Biological Diversity (CBD), also referred to as Biodiversity Convention.

The main aim of this convention is to protect biodiversity to use diversity without destroying it and to share any benefits from genetic diversity equally.

For the conservation of the biodiversity, Article 8(J) provides that each contracting party, subject to its national legislation, is required to respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities, tangible or visible lifestyle relevant for conservation and sustainable use of biological resources and promote the wider application of such knowledge, innovation, and practices with the approval and involvement of their holder and also encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovation, and practices. Along with the global efforts made for conservation and protection of biodiversity, India also took the initiatives for conserving and protecting biodiversity and traditional knowledge.

Traditional Knowledge Digital Library

Traditional knowledge digital library is an initiative by the Council of Scientific and Industrial Research (SIR) and the Ministry of Ayush in 2011. It is a repository of the traditional knowledge existing in the country.

The objective of the library is to protect the ancient and traditional knowledge of the country from exploitation through biopiracy and unethical patent, by documenting it electronically and classifying it as per international patent classification system. The most significant role of traditional knowledge digital library is to act as a bridge between traditional knowledge information existing in local languages and the patent examiner at international patent offices.

Biological Diversity Act, 2002

It is an Act of the Parliament of India for the preservation of biological diversity in India, and provides a mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge.

The important objectives of the Act are as follows:

  1. To conserve the Biological Diversity.
  2. Sustainable use of the components of biodiversity.
  3. Fair and equitable sharing of benefits arising out of the use of the Biodiversity.

Important Provisions under the Act

Important Definitions (Section 2)
Biological diversity means the variability among living organisms from all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of ecosystems. [Section 2(b)]

Biological resources means plants, animals, and micro-organisms or parts thereof, their genetic material and by-products (excluding value-added products) with actual or potential use or value, but does not include human genetic material. [Section 2(c)]

Bio-survey and bio-utilization means survey or collection of species, sub-species, genes, components and extracts of a biological resource for any purpose and includes characterization, inventorisation and bioassay. [Section 2(d)]

National Biodiversity Authority means the National Biodiversity Authority established under Section 8. [Section 2(j)]

Research means study or systematic investigation of any biological resource or technological application that uses biological systems, living organisms or derivatives thereof to make or modify products or processes for any use. [Section 2(m)]

State Biodiversity Board means the State Biodiversity Board established under Section 22. [Section 2(n)]

Sustainable use' means the use of components of biological diversity in such manner and at such rate that does not lead to the long-term decline of the biological diversity thereby maintaining its potential to meet the needs and aspirations of present and future generations. [Section 2(o)]

Section 3 of the Act

This section deals with provisions related to Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority.
The provisions are as follows:
No person referred to in sub-section (2) shall, without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization. [Section 3(1)]

The persons who shall be required to take the approval of the National Biodiversity Authority under sub-section (1) are the following, namely:
  1. a person who is not a citizen of India;
  2. a citizen of India, who is a non-resident as defined in clause (30) of Section 2 of the Income Tax Act, 1961;
  3. a body corporate, association, or organization
    1. not incorporated or registered in India; or
    2. incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or management. [Section 3(2)]

Section 4 of the Act

This section relates to 'Results of research not to be transferred to certain persons without the approval of the National Biodiversity Authority'.

It states that:
No person shall, without the previous approval of the National Biodiversity Authority, transfer the results of any research relating to any biological resources occurring in or obtained from, India for monetary consideration or otherwise to any person who is not a citizen of India or citizen of India who is a non-resident as defined in clause (30) of Section 2 of the Income Tax Act, 1961 or a body corporate or organization which is not registered or incorporated in India or which has any non-Indian participation in its share capital or management.

Establishment of National Biodiversity Authority (Section 8)

With the effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established by the Central Government for the purposes of this Act, a body to be called the National Biodiversity Authority. [Section 8(1)]

The National Biodiversity Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. [Section 8(2)]

The head office of the National Biodiversity Authority shall be in Chennai and the National Biodiversity Authority may, with the previous approval of the Central Government, establish offices at other places in India. [Section 8(3)]

The National Biodiversity Authority shall consist of the following members:

  1. Chairperson, who shall be an eminent person having adequate knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to be appointed by the Central Government;
  2. three ex-officio members to be appointed by the Central Government, one representing the Ministry dealing with Tribal Affairs and two representing the Ministry dealing with Environment and Forests of whom one shall be the Additional Director-General of Forests or the Director-General of Forests;
  3. seven ex-officio members to be appointed by the Central Government to represent respectively the Ministries of the Central Government, dealing with:
    1. Agricultural Research and Education;
    2. Biotechnology;
    3. Ocean Development;
    4. Agriculture and Cooperation;
    5. Indian Systems of Medicine and Homoeopathy;
    6. Science and Technology;
    7. Scientific and Industrial Research;
  4. five non-official members to be appointed from amongst specialists and scientists having special knowledge of, or experience in, matters relating to conservation of biological diversity, sustainable use of biological resources, and equitable sharing of benefits arising out of the use of biological resources, representatives of industry, conservers, creators, and knowledge-holders of biological resources. [Section 8(4)]

Functions and Powers of National Biodiversity Authority (Section 18)

It shall be the duty of the National Biodiversity Authority to regulate activities referred to in Sections 3, 4, and 6 and by regulations issue guidelines for access to biological resources and for fair and equitable benefit sharing. [Section 18(1)]

The National Biodiversity Authority may grant approval for undertaking any activity referred to in Sections 3, 4, and 6. [Section 18(2)]

The National Biodiversity Authority may:
  1. advise the Central Government 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;
  2. advise 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;
  3. perform such other functions as may be necessary to carry out the provisions of this Act. [Section 18(3)]

The National Biodiversity Authority may, on behalf of the Central Government, take any measures necessary to oppose the grant of intellectual property rights in any country outside India on any biological resource obtained from India or knowledge associated with such biological resources which is derived from India. [Section 18(4)]

Establishment of State Biodiversity Board (Section 22)

With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established by that Government for the purposes of this Act, a Board for the State to be known as the (name of the State) Biodiversity Board. [Section 22(1)]

Notwithstanding anything contained in this section, no State Biodiversity Board shall be constituted for a Union territory and in relation to a Union territory, the National Biodiversity Authority shall exercise the powers and perform the functions of a State Biodiversity Board for that Union territory.

Provided that in relation to any Union territory, the National Biodiversity Authority may delegate all or any of its powers or functions under this sub-section to such person or group of persons as the Central Government may specify. [Section 22(2)]

The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. [Section 22(3)]

The Board shall consist of the following members, namely:
  1. a chairperson who shall be an eminent person having adequate knowledge and experience in the conservation and sustainable use of biological diversity and in matters relating to equitable sharing of benefits, to be appointed by the State Government;
  2. not more than five ex-officio members to be appointed by the State Government to represent the concerned departments of the State Government;
  3. not more then five members to be appointed from amongst experts in matters relating to conservation of biological diversity, sustainable use of biological resources and equitable sharing of benefits arising out of the use of biological resources. [Section 22(4)]
The head office of the State Biodiversity Board shall be at such place as the State Government may, by notification in the Official Gazette, specify. [Section 22(5)]

Functions of State Biodiversity Board (Section 23)

The functions of the State Biodiversity Board shall be to:
  1. advise the State Government, 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;
  2. regulate by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians;
  3. perform such other functions as may be necessary to carry out the provisions of this Act or as may be prescribed by the State Government.

Power of State Biodiversity Board to Restrict certain Activities (Section 24)

Any citizen of India or a body corporate, organization, or association registered in India intending to undertake any activity referred to in Section 7 shall give prior intimation in such form as may be prescribed by the State Government to the State Biodiversity Board. [Section 24(1)]

On receipt of an intimation under sub-section (1), the State Biodiversity Board may, in consultation with the local bodies concerned and after making such enquires as it conservation, may deem fit, by order, prohibit or restrict any such activity if it is of opinion that such activity is detrimental or contrary to the objectives of conservation and sustainable use of biodiversity or equitable sharing of benefits arising out of such activity.

Provided that no such order shall be made without giving an opportunity of being heard to the person affected. [Section 24(2)]
Any information given in the form referred to in sub-section (1) for prior intimation shall be kept confidential and shall not be disclosed, either intentionally or unintentionally, to any person not concerned thereto. [Section 24(3)]

Annual Report of National Biodiversity Authority (Section 28)
The National Biodiversity Authority shall prepare, in such form and at such time each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and furnish, to the Central Government, before such date as may be prescribed, its audited copy of accounts together with auditor's report thereon.

Annual Report of State Biodiversity Board (Section 33)
The State Biodiversity Board shall prepare, in such form and at such time in each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year, and submit a copy thereof to the State Government.

Section 36 of the Act
This section empowers Central Government to develop National strategies plans etc., for conservation, etc., of biological diversity.

The provisions under this section are as follows:
The Central Government shall develop national strategies, plans, programs for the conservation and promotion and sustainable use of biological diversity including measures for identification and monitoring of areas rich in biological resources, promotion of in situ, and ex-situ, conservation of biological resources, incentives for research, training, and public education to increase awareness with respect to biodiversity. [Section 36(1)]

Where the Central Government has reason to believe that any area rich in biological diversity, biological resources and their habitats is being threatened by overuse, abuse or neglect, it shall issue directives to the concerned State Government to take immediate ameliorative measures, offering such State Government any technical and other assistance that is possible to be provided or needed. [Section 36(2)]

The Central Government shall, as far as practicable wherever it deems appropriate, integrate the conservation, promotion and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies. [Section 36(3)]

The Central Government shall undertake measures:
  1. wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and where appropriate provide for public participation in such assessment;
  2. to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology likely to have adverse impact on the conservation and sustainable use of biological diversity and human health. Section 36(4)
The Central Government shall endeavour to respect and protect the knowledge of local people relating to biological diversity, as recommended by the National Biodiversity Authority through such measures, which may include registration of such knowledge at the local, State or national levels, and other measures for protection, including sui generis system. [Section 36(5]

Power of Central Government to Notify Threatened Species (Section 38)
Without prejudice to the provisions of any other law for the time being in force, the Central Government, in consultation with the concerned State Government, may from time-to-time notify any species which is on the verge of extinction or likely to become extinct in the near future as a threatened species and prohibit or regulate collection thereof for any purpose and take appropriate steps to rehabilitate and preserve those species.

Constitution of Biodiversity Management Committee (Section 41)
Every local body shall constitute a Biodiversity Management Committee within its area for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and micro-organisms and chronicling of knowledge relating to biological diversity. [Section 41(1)]

The National Biodiversity Authority and the State Biodiversity Boards shall consult the Biodiversity Management Committees while taking any decision relating to the use of biological resources and knowledge associated with such resources occurring within the territorial jurisdiction of the Biodiversity Management Committee. [Section 41(2)]

The Biodiversity Management Committees may levy charges by way of collection fees from any person for accessing or collecting any biological resource for commercial purposes from areas falling within its territorial jurisdiction. [Section 41(3)]

Section 48 of the Act
This section mention the provisions related to 'National Biodiversity Authority to be bound by the directions given by Central Government'. It says that:
Without prejudice to the foregoing provisions of this Act, the National Biodiversity Authority shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time-to-time.

Provided that the National Biodiversity Authority shall, as far as practicable, be given opportunity to express its views before any direction is given under this sub-section. [Section 48(1)]

The decision of the Central Government whether a question is one of policy or not shall be final. [Section 48(2)]

Settlement of Disputes between State Biodiversity Boards (Section 50)
If a dispute arises between the National Biodiversity Authority and a State Biodiversity Board, the said Authority or the Board, as the case may be, may prefer an appeal to the Central Government within such time as may be prescribed. [Section 50(1)]

Every appeal made under sub-section (1) shall be in such form as may be prescribed by the Central Government, [Section 50(2)]

The procedure for disposing of an appeal shall be such as may be prescribed by the Central Government. Provided that before disposing of an appeal, the parties shall be given a reasonable opportunity of, being heard, [Section 50(3)]

If a dispute arises between the State Biodiversity Boards, the Central Government shall refer the same to the National Biodiversity Authority, [Section 50(4)]

While adjudicating any dispute under sub-section (4), the National Biodiversity Authority shall be guided by the principles of natural justice and shall follow such procedure as may be prescribed) by the Central Government. [Section 50(5)]

The National Biodiversity Authority shall have, for the purposes of discharging its functions under this section, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of the following matters, namely:
  1. summoning and enforcing the attendance of any person and examining him on oath;
  2. requiring the discovery and production of documents;
  3. receiving evidence on affidavits;
  4. issuing commissions for the examination of witnesses or documents;
  5. reviewing its decisions; dismissing an application for default or deciding it ex-parte;
  6. setting aside any order of dismissal of any application for default or any order passed by it ex-parte;
  7. any other the matter which may be prescribed. {Section 50(6)]

Appeal (Section 52)

Any person, aggrieved by any determination of benefit sharing or order of the National Biodiversity Authority or a State Biodiversity Board under this Act may file an appeal to the High Court within thirty days from the date of communication to him, of the determination or order of the National Biodiversity Authority or the State Biodiversity Board, as the case may be.

Provided that the High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

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