The Biodiversity Act, 2002

Manish Sharma
M. Pharm. Sem-II
Pharmaceutical Management & regulatory affairs

The Biodiversity Act, 2002

Contents
Introduction
Definitions
Regulation of Access to Biological Diversity
National Biodiversity Authority
Functions and Powers of The National
Biodiversity Authority
State Biodiversity Board
Duties of The Central and The State
Governments
Biodiversity Management Committees

The Biodiversity Act, 2002

 Forms
Significance/ Role in Pharmaceutical
Industry
Nagoya Protocol
Conclusion
References

The Biodiversity Act, 2002

Introduction
Developed countries use the biogenetic
resources accessed from the developing
countries. It results in beginning of the
unprotected flow of genetic information from the
developing countries to the capital-rich west,
and a protected flow in the reverse direction
mainly through patents and Plant Breeders
Rights (PBR)
The Biological Diversity Act 2002 was born out of
India's attempt to realise the objectives
enshrined in the United Nations Convention on
Biological Diversity (CBD) 1992 which
recognizes the sovereign rights of states to use
their own Biological Resources
The Biodiversity Act, 2002

 An Act to provide for conservation of

biological diversity, sustainable use of its
components and fair and equitable sharing
of the benefits arising out of the use of
biological resources, knowledge and for
matters connected therewith or incidental
thereto.
This Act may be called the Biological
Diversity Act, 2002

The Biodiversity Act, 2002

Definitions
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 eco-systems;
biological resources means plants,
animals and micro-organisms or parts
thereof, their genetic material and byproducts (excluding value added products)
with actual or potential use or value, but
does not include human genetic material;
The Biodiversity Act, 2002

 commercial utilization means end uses of

biological resources for commercial
utilization such as drugs, industrial
enzymes, food flavors, fragrance, cosmetics,
emulsifiers, oleoresins, colors, extracts and
genes used for improving crops and
livestock through genetic intervention, but
does not include conventional breeding or
traditional practices in use in any
agriculture, horticulture, poultry, dairy
farming, animal husbandry or bee keeping;

The Biodiversity Act, 2002

 sustainable use means the use of

components of biological diversity in such
manner and at such rate that does not lead
to the decline of the biological diversity
thereby maintaining its potential to meet
the needs and aspirations of present and
future generations;

The Biodiversity Act, 2002

Regulation of Access to Biological

Diversity
Sec. 3. (1) No person referred to in subsection (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.

The Biodiversity Act, 2002

(2) The persons who shall be required to take

the approval of the National Biodiversity
Authority under sub-section (1) are the
following, namely :(a) a person who is not a citizen of India;
(b) a citizen of India; who is a non-resident as
defined in clause (30) of section 243 of
1961 of the Income-tax Act, 1961;
(c) a body corporate, association or
organization
(i) not incorporated or registered in India; or
(ii) 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.
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10

Sec. 6. (1) No person shall apply for any

intellectual property right, by whatever name
called, in or outside India for any invention
based on any research or information on a
biological resource obtained from India
without obtaining the previous approval of the
National Biodiversity Authority before making
such application:
Provided that if a person applies for a
patent, permission of the National
Biodiversity Authority may be obtained
after the acceptance of the patent but
before the sealing of the patent by the
patent authority concerned:

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11

 Provided further that the National

Biodiversity shall dispose of the
application for permission made to it
within a period of ninety days from the
date of receipt thereof.
Process for approval:
1. Application shall be made in form III for
getting approval with fee of 500.
2. Authority investigate the application and if
satisfy approval shall be granted as a
written agreement.

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National biodiversity authority

sec. 8. The head office of the national
biodiversity authority shall be at chennai.
Chairperson

Members

ex-officio
(10)
non-official
(5)
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13

ex-officio
(10)
Ministry of
Tribal Affairs
(1)

Ministry of
Agriculture
Research
and
Education
(1)

Ministry of Environment and

Forests (2)
whom1 shall be ADG/DG

Ministry
of
Biotechno
logy (1)

Indian Systems
of Medicine and
Homeopathy
(1)

Ministry
of Ocean
Develop
ment (1)

Science and
Technology
(1)
The Biodiversity Act, 2002

Ministry of
Agriculture and
Cooperation
(1)

Scientific and
Industrial
Research (1)
14

non-official
(5)
sustainable
use of
biological
resources

conservation
of biological
diversity
specialists and
scientists having
special knowledge
of, or experience in
representatives
of industry

Conservers,
creators &
knowledge-holders
of biological
resources
The Biodiversity Act, 2002

equitable
sharing of
benefits

15

Sec. 11.
The Central Government may remove any member
from NBA who has
adjudged
as an
insolvent

Offence of
moral
turpitude

Removal
of
member
from NBA
physically
or
mentally
incapable

abusing
position
financial or
other interest
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16

Functions and powers of the

national biodiversity authority
Sec. 18.
(1) It shall be the duty of the National
Biodiversity Authority to regulate
activities, and
(2) grant approval for undertaking any
activity referred to in section 3, 4 and 6.
(3) The National Biodiversity Authority may
(a) 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;
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17

(b) advise the State Governments in the

selection of areas of biodiversity
importance as heritage sites and measures
for the management of such heritage
sites;
(4) 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
resource which is derived from India.

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18

State biodiversity board

Sec. 22.
(1) With effect from such dates as the State
Government may appoint, for the purposes
of this Act, a Board for the State to be
known as the ________________(name
of the State) Biodiversity Board.
(4) The Board shall consist of the following
members, namely:a)
b)
c)

a Chairperson
five ex-officio members
five members from among the 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.
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Sec. 23.
The functions of the State Biodiversity
Board shall be to
(a) advise the State 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;
(b) regulate by granting of approvals or
otherwise requests for commercial
utilization or bio-survey and bio-utilization
of any biological resource by Indians;
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Procedure for third party transfer

of accessed biological resource
Person shall make an application to the
Authority in Form IV, accompanied by a fee
of ten thousand rupees in the form of Bank
draft or cheque drawn in favour of the
Authority.
The Authority shall after collecting any
additional information, decide upon the
application as far as possible within a period
of six months of receipt of the same.
The approval as may be granted in the form
of a written agreement decided by the
Authority.
The Biodiversity Act, 2002

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Duties of the central and the state

governments
Sec. 36.
To develop national strategies, plans, etc., for
conservation, etc., of biological diversity:(1) The Central Govt. provides in-situ and ex-situ
conservation of biological resources.
(2) To provide immediate measures for safety of
biological areas rich in biological diversity.
(3) The Central Govt. shall integrate the
conservation, promotion and sustainable use
of biological diversity and provide measures
for protection, including sui-generis system.

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Sec.39
Powers of Central Govt. to designate
Repositories:
(1) Designate institutions as repositories for
different categories of biological
resources.
(2) To keep safe custody of the biological
material including voucher specimens.
(3) To keep safe custody of any new taxon
discovered by any person.

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Biodiversity management committees

Sec.41.
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,
chronicling of knowledge relating to
biological diversity.
The Biodiversity Act, 2002

24

(a) cultivar means a variety of plant that

has originated and persisted under
cultivation or was specifically bread for
the purpose of cultivation;
(b) folk variety means a cultivated variety of
plant that was developed, grown and
exchanged informally among farmers;
(c) landrace means primitive cultivar that
was grown by ancient farmers and their
successors.

The Biodiversity Act, 2002

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Forms
I

Application form for access to Biological resources and

associated traditional knowledge

10,000

II

Application for seeking prior approval of National Biodiversity

Authority for transferring the results of research to foreign
nationals, companies, NRIs, for commercial purposes.

5000

III

Application for seeking prior approval of National Biodiversity

Authority for applying for Intellectual Property Right

500

IV

Application form for seeking approval of National Biodiversity

Authority for third party transfer of the accessed Biological
resources and associated traditional knowledge.

10,000

Form of Memorandum of Appeal

Within 30-45
days

VI

Notice for hearing of the appeal

VII

Form of notice
The Biodiversity Act, 2002

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Significance/ Role in Pharmaceutical

Industry
The NBA deals with the requests for access
to bio-resources and associated traditional
knowledge by foreign nationals, institutions
or companies, and all matters pertaining to
the transfer of research findings to any
foreign national, imposition of terms and
conditions to secure equitable sharing of
benefits, establish sovereign rights over the
bio-resources of India and approval for
seeking any form of Intellectual Property
Rights (IPRs) in or outside India for an
invention based on research or information
pertaining to a biological resource and
The Biodiversity Act, 2002

27

associated traditional knowledge obtained

from India.
The Act imposes certain restrictions on
request made by industries related to access
to biological resources and traditional
knowledge if the request is on:
a. endangered taxa
b. endemic and rare taxa
c. likely adverse effects on the livelihood of
the local people
d. adverse and irrecoverable environmental
impact
e. cause genetic erosion or affect ecosystem
function
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Nagoya Protocol
The Nagoya Protocol is a supplementary
agreement to the Convention on Biological
Diversity . To access genetic resources and
the fair and equitable sharing of benefits
arising from their utilization to the
Convention on Biological Diversity.
The Nagoya Protocol will create greater
legal certainty and transparency for both
providers and users of genetic resources by:
Establishing more predictable conditions for
access to genetic resources.
Helping to ensure benefit-sharing when genetic
resources leave the contracting party providing
the genetic resources
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Access obligations:Domestic-level access measures are to:

a) Create legal certainty, clarity and
transparency
b) Provide fair and non-arbitrary rules and
procedures
c) Establish clear rules and procedures for
prior informed consent and mutually agreed
terms
d) Provide for issuance of a permit or
equivalent when access is granted
e) Create conditions to promote and
encourage research contributing to
biodiversity conservation and sustainable
use
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a) Pay due regard to cases of present or

imminent emergencies that threaten
human, animal or plant health
b) Consider the importance of genetic
resources for food and agriculture for food
security
Benefit-sharing obligations:Domestic-level benefit-sharing measures
are to provide for the fair and equitable
sharing of benefits arising from the
utilization of genetic resources with the
contracting party providing genetic
resources.

The Biodiversity Act, 2002

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The Biodiversity Act, 2002

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