Law

Environmental Law
Biodiversity Law
 QUADRANT-I (A) – PERSONAL DETAILS

Role Name Affiliation

Principal Investigator
Co-Principal Investigator
Paper Coordinator, if any
Content Writer/Author
Content Reviewer
Language Editor
Prof (Dr) Ranbir Singh
Prof (Dr) GS Bajpai
Ms Lovleen Bhullar
Ms Alphonsa Jojan Joseph
Ms Shalini Bhutani
Ms Lovleen Bhullar
Vice Chancellor, National
Law University Delhi
Registrar, National Law
University Delhi
School of Oriental and
African Studies, University
of London
Independent Researcher,
Bangalore
Legal Researcher & Policy
Consultant, New Delhi
School of Oriental and
African Studies, University
of London

QUADRANT-I (B) – DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Environmental Law
Module Name/Title Biodiversity Law
Module Id 11
Pre-requisites A basic understanding of biodiversity
Objectives To provide an overview of the legal
framework governing biodiversity in
India
Keywords Biodiversity, Biological Diversity Act,
Biosafety, Conservation, Convention
on Biological Diversity, Sustainable
use
 QUADRANT-I – E-TEXT

1. Introduction

Biological diversity (often referred to as biodiversity) is considered to be the whole ‘Life on Earth’.1
While biodiversity has been providing humankind with various economic, genetic, ecological, social,
cultural and aesthetic services, there has been significant loss and reduction of biological diversity due to
certain human activities.2

Agenda 21, a key output of the United Nations Conference on Environment and Development held in
1992 (the Rio conference), mainstreamed the biodiversity conservation agenda. In addition, 2010-2020
has been declared as the international decade of biodiversity by the United Nations. The Conference of
Parties to the Convention on Biodiversity has also adopted the Aichi Targets, which are time-bound
targets to be achieved by the end of 2020 (some of them even earlier).

The unit will refer to the Convention on Biological Diversity and the Cartagena Protocol on Biosafety (at
the international level), and the Biological Diversity Act, 2002, the Biological Diversity Strategy and
Action Plan, and the Environment (Protection) Act, 1986, etc. (at the national level). Issues relating to
access to biological resources and benefit sharing are addressed in another unit.

2. Learning Outcome

This unit intends to provide a basic understanding of the concept of biodiversity, its importance and
threats to biodiversity. It will also look at the existing legal framework for biodiversity conservation and
sustainable use in India. Special emphasis is given to legal provisions relating to knowledge associated
with biodiversity, issues relating to biodiversity conservation like sustainable collection of biological
resources, adverse effect of developmental projects on biodiversity, and threats due to genetically
modified organisms.

3. Biological diversity, its value and threats to biological diversity

Nations came together in 1992 and pledged conservation and sustainable use of biological diversity by
adopting the Convention on Biological Diversity (CBD). The CBD is based on a broad ecosystem
approach rather than separately dealing with particular ecosystems/species/sites, which is the basis of the
conservation approach in other international instruments like the Ramsar Convention on Wetlands, the
Convention on International Trade in Wild Species of Endangered Flora and Fauna, and the Convention
on Migratory Species. The CBD covers both wild biodiversity which includes wild animals, plants and
micro-organisms; and domesticated biodiversity which includes cultivated animals ,plants and micro-
organisms in farms, gardens, etc.

3.1. Understanding “Biological Diversity”

The Convention on Biological Diversity defines ‘biological diversity’ (often referred to as biodiversity) as
the ‘variability among the living organisms from all sources and the ecological complexes of which they
are part and includes diversity within species or between species and of ecosystem’ (Article 2).

1
Pearce, David and Dominic Moran. Economic Value of Biodiversity. Earthscan: London, 1995.
2
Preamble, Convention on Biological Diversity (1992).
The three components of biodiversity are ecosystem diversity, species diversity and genetic diversity.

Biological Diversity

“Variability”

Species Genetic
Diversity Ecosystem Diversity

Diversity

Diversity

Components of Meaning/Understanding/ Examples

biodiversity (National Biodiversity Action
Plan, 2008)
Genetic diversity Genetic variation within species Different varieties of brinjal, rice
(50,000 varieties3), etc.
Species diversity Variety (numbers and kinds) of Diverse species of animals such as
living organisms human beings, tigers, cats, birds,
reptiles, fishes, insects, micro-
organisms and diverse species of
plants
Ecosystem diversity Variety of habitats, biological Forest biodiversity, inland water
communities and ecological biodiversity, marine and coastal
processes biodiversity, island biodiversity, etc.

3.2. Value of Biological Diversity

Biodiversity provides economic services like continuous production of food, fibre, fuel, fodder; and
ecological services like purification of air and water, moderation of floods, droughts, temperature
extremes, and other kinds of services for the survival of mankind and other living beings.4

3.3. Threats to biological diversity

Human activities have been threatening and reducing biodiversity. The following have been identified as
the main threats to biological diversity:5

3
TPCG and Kalpavriksh. Securing India’s Future: Final Technical Report of the National Biodiversity Strategy and
Action Plan (Concise Version) 15. Kalpavriksh: Delhi/Pune, 2005.
4
CBD Secretariat, ‘About CBD’ on URL http://www.cbd.int/2010/biodiversity/.
 a) Habitat destruction and degradation ;
b) Unsustainable usage and harvesting practices;
c) Climate change and desertification;
d) Introduction of invasive alien species;
e) Impact of pollution and developmental projects.

In order to address these threats, nations have pledged concerted actions in a holistic manner of protection
(like the ecosystem approach) to conserve and sustainably use biodiversity in the CBD.

4. Conservation of biological diversity

With 8.1 per cent of the world’s diversity, India is one of the twelve mega diverse countries of the world
based on high level of endemism and species richness (TPCG & Kalpavriksh, 2005: 13). India has a
diverse variety of ecosystems covering two biodiversity hotspots, the Himalayan mountain systems, the
deserts of Rajasthan, the Aravalli Range, Islands, wetlands and other marine systems etc. India also has
significant species and genetic diversity. It is reported that about 45,000 to 47,000 plant species
representing 11 per cent of the known world flora; and 90,000 species of fauna, a little over 7 per cent of
the world’s reported animal diversity, occur in India (TPCG & Kalpavriksh, 2005: 14). In addition, at
least 166 species of crops (6.7 per cent of the total crop species in the world) and 320 species of wild
relatives of cultivated crops are believed to have originated in India (TPCG & Kalpavriksh, 2005: 14).
India also has the widest range of animal breeds within each species (e.g. 20 breeds of goat, 42 of sheep,
15 of buffalo, 30 of cattle and 18 of poultry), representing a significant percentage of the world’s
domesticated livestock diversity (TPCG & Kalpavriksh, 2005: 15).

Even before ratification of the Convention on Biodiversity, India had initiated and undertaken various
efforts to conserve its national biodiversity. At present, the conservation of biological diversity is
undertaken using different measures, which are discussed in this section.

4.1. In-situ conservation

In situ conservation is conservation in the natural habitat and it is considered to be the fundamental
method of conservation as stated in the Convention on Biological Diversity. In situ conservation is
defined in both the Convention on Biological Diversity (Article 2) and the Biological Diversity Act
(explanation to section 36) to mean the following:
 Conservation of ecosystems and natural habitats;
 Maintenance and recovery of viable populations of species in their natural surroundings;
 Domesticated or cultivated species - the surroundings where they have developed their distinctive
properties

As a part of its efforts for wildlife conservation, India has established a network of 668 protected areas
(PAs) under the Wildlife Protection Act, 1972 (WLPA) comprising 102 National Parks, 515 Wildlife
Sanctuaries, 47 Conservation Reserves and 4 Community Reserves. 6 The important features of these
protected areas as follows:

5
These threats have been recognized in a wide range of documents including the Aichi Guidelines (para 15.3), and
the National Biological Diversity Action Plan and Strategy (2008) prepared by Government of India (Ministry of
Environment and Forest).
6
MoEF. ‘Protected Area Network in India’ on URL http://envfor.nic.in/public-information/protected-area-network.
 a) National Parks established under section 35 of WLPA are areas, which are of adequate
ecological, faunal, floral, geomorphological, natural or zoological significance declared by the
government for the protection, propagation and development of wildlife and its environment7 The
area comes under the control and management of the government (through Chief Wildlife
Warden) (section 35(8)).
b) Sanctuaries are established under section 18 of WLPA for the same purpose as National Parks
and have similar management, but the Collector may allow, in consultation with the Chief
Wildlife Warden, the continuance of any right of any person in or over any land within the limits
of a sanctuary;
c) Conservation Reserves are government land, particularly the areas adjacent to National Parks and
sanctuaries and those areas which link one protected area with another, declared as conservation
reserves after consultation with local communities for the protection of landscapes, seascapes,
flora and fauna and their habitat (section 36A);
d) Community Reserves are private and community land declared by the government for the
protection of fauna, flora and traditional or cultural conservation values and practices, whenever
the individual or the community has volunteered to conserve wildlife and habitat (section 36C).

Besides, there are special conservation and management efforts for particular species like the tiger and the
elephant and the government has established approximately 39 Tiger Reserves and 28 Elephant Reserves
under various Centrally Sponsored Schemes. 8 It is pertinent to mention that the 2006 amendment of
WLPA led to the insertion of section 38V, which provided legal backing for tiger reserves. The Biological
Diversity Act also provides for constitution of areas of biodiversity importance as Biodiversity Heritage
Sites (section 37).

As mentioned above, management of national parks and sanctuaries is undertaken by the Forest &
Wildlife Department of the State Government. and the conservation efforts exclude people. Displacement
or threats of displacement of people/communities living in national parks, sanctuaries, tiger reserves or
dependent on those areas is one of the issues that stems out of these exclusionary conservation efforts.9

4.2. Ex-situ conservation

Ex-situ conservation is undertaken outside natural habitats such as botanical gardens, zoos, deer parks,
safari parks, aquaria as a means of ‘backing up’ the diverse range of species. Various biological resource
repositories are notified under section 39 of the Biological Diversity Act, 2002.

4.3. Community Conserved Areas

There are several areas including in situ and ex situ ??? that have been conserved by local communities.
These include their traditionally occupied habitats, sacred groves, farmers’ fields, gardens, etc. As
mentioned earlier, the conservation efforts were exclusionary in nature. But the Joint Forest Management
Circular, 1999 and the 2002 amendment to the Wildlife Protection Act which included conservation and
community reserves under the purview of Protected Areas initiated the process of recognising the
7
Section 35(1) and section 2(21) of the Wildlife Protection Act, 1972. A national Park can be established under
three provisions of WPA – it can be declared under sections 35 and sec. 38 or deemed to be declared under section
66(3).
8
MoEF. ‘Protected Area Network in India’ on URL http://envfor.nic.in/public-information/protected-area-network.
9
Lasgorceix, Antoine and Ashish Kothari, “Displacement and Relocation of Protected Areas: A synthesis and
Analysis of Case Studies.” Economic and Political Weekly. 44, no.49 (2009): 37-47.
communities’ right to conserve and manage biodiversity rich areas. India’s National Biodiversity Strategy
and Action Plan 2008 s also acknowledges the contribution of local communities in the conservation of
biodiversity and stated that the expansion of the protected areas network will depend on the recognition of
community conserved areas. Moreover, the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 has recognised the Scheduled Tribes and Other Forest Dwellers’
‘right to protect, regenerate or conserve or manage any community forest resource which they have been
traditionally protecting and conserving for sustainable use’ (section 3(1)(i)).

5. Efforts for conservation and sustainable use of biological diversity: Specific Areas

There have been efforts to integrate conservation and sustainable use of biodiversity into national
decision-making through policy statements, legislative measures and programmes.

The Biological Diversity Act, 2002 aims at conserving biological diversity, sustainable use of its
components and fair and equitable benefit sharing (see Preamble). Section 36 of the Act provides for
duties of the Central and State Governments for conservation and sustainable use of its components.

5.1. National Biodiversity Strategy and Action Plan for conservation and sustainable use of
biodiversity and bio-resources

Section 36(1) of the Biological Diversity Act, 2002 stipulates that the Central Government should
develop national strategies, plans and programmes for conservation, promotion and sustainable use of
biological diversity, including the following:
(a) Identification and monitoring of areas rich in biological resources
(b) Promotion of in-situ and ex-situ conservation
(c) Incentives for research, training, education to increase awareness about biological diversity

Accordingly, a National Biological Diversity Action Plan and Strategy has been developed by the
Ministry of Environment and Forests, Government of India in 2008 with strategies and action points to
deal with a number of identified threats and constraints in a time-bound manner (on a long, medium and
short term basis). It has also identified co-ordination and associated agencies for implementation of these
action points. The identified threats and constraints involve the following:
1. Strengthening and integrating in-situ, on farm and ex-situ conservation;
2. Augmentation of natural resources base and its sustainable utilization; ensuring inter- and intra-
generational equity;
3. Regulating introduction and management of invasive alien species;
4. Assessment of vulnerability and adaptation to climate change and desertification;
5. Integration of biodiversity concerns in economic and social development;
6. Impact of pollution;
7. Development and integration of biodiversity database;
8. Strengthening implementation of policy, legislative and administrative measures for biodiversity
conservation and management;
9. Developing national capacities for biodiversity conservation and appropriate use of new
technologies;
10. Use of economic instruments/valuation in biodiversity related decision making processes;
11. International co-operation.
The formulation of the Action Plan and Strategy was a participatory and consultative process resulting in
the development of a technical report, “Securing India’s Future a technical report on Biodiversity Strategy
and Action Plan” (TPCG & Kalpavriksh, 2005). This comprehensive report was prepared after many
rounds of public consultation and the participation of various stakeholders. It identified major gaps in the
existing administrative, policy and legal framework on biodiversity conservation and sustainable use, and
recommended 101 strategies and 345 actions under following major heads:
1. Overall planning and governance: 2 Strategies, 2 Actions
2. Wild biodiversity: 65 Strategies, 250 Actions
3. Domesticated biodiversity: 34 Strategies, 89 Actions
4. Links between wild and domesticated biodiversity: 4 Actions

5.2. Documentation of People’s Knowledge of Biodiversity

One of the most significant provisions of the Biological Diversity Act and the Rules framed thereunder is
the requirement of registration of local people’s knowledge of biodiversity, through measures including
the sui generis system (section 36(5)).

In addition, the Act provides that the Biodiversity Management Committee shall be constituted for, inter
alia, chronicling knowledge related to biological diversity including knowledge related to landraces which
is the primitive cultivar that was grown by ancient farmers and their successors; folk varieties meaning
cultivated varieties of plants that are developed, grown and exchanged informally among farmers; and
cultivars which are varieties of plants that have originated and been specifically bred for the purpose of
cultivation, domesticated stocks and breeds of animals and micro-organisms (section 41(1)).

The Protection of Plant Variety and Farmers Right Act, 2001 has also recognised the right of the farmers
to register varieties including farmers’ variety which has been defined as variety that (i) has been
traditionally cultivated and evolved by the farmers in their fields; or (ii) is a wild relative or land race or a
variety about which the farmers possess the common knowledge.

5.3. Sustainable use of components of biodiversity

The Biological Diversity Act and the Rules framed thereunder provide for sustainable use of the
components of biodiversity. This calls for their use in a manner which will not lead to the long-term
decline of biological diversity 10 . In this regard, the National Biodiversity Authority and the State
Biodiversity Boards have the power to revoke access applications and prohibit or restrict access to
biological resources (section 3 and 7 of the Act respectively).

5.4. Biodiversity inclusive Environmental Impact Assessment

The Biological Diversity Act mandates the Central Government to take measures to undertake the
assessment of environmental impacts of those projects which are 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 (section 36(4)(i)). The section is in compliance with Article 14 of
the CBD.

10
Secretariat of the Convention on Biological Diversity. Addis Ababa Principles and Guidelines for the Sustainable
Use of Biodiversity. Montreal, 2004.
While there are no specific measures taken for such an assessment, a project proponent under the
Environmental Impact Assessment Notification 2006 (issued under the Environment (Protection) Act,
1986) has to provide information pertaining to biodiversity of the prospective site while applying for
environmental clearance. This includes information with respect to environmental sensitivity (Form IA of
the Notification). The appropriate body has to appraise this information while granting environmental
clearance.

5.5. Biosafety

[For more information, please refer to the unit on Biosafety in the Environmental Law module.]

5.5.1. National framework

Another mandate that the Biological Diversity Act specifies with respect to conservation and sustainable
use of biological diversity is 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)(ii)). In this regard, the
Ministry of Environment and Forests has notified the Rules for The Manufacture, Use, Import, Export
and Storage of Hazardous Micro Organisms Genetically Engineered Organisms or Cells, 1989, under the
Environment (Protection) Act, 1986. The Rules regulate the following:
(a) Manufacture, import and storage of micro-organisms and gene-technological products;
(b) Genetically engineered organisms, micro-organisms and cells and any substances and
products and food stuffs, etc. of which such cells, organisms or tissues;
(c) Sale, offers for sale, storage for the purpose of sale, offers and any kind of handling of
genetically engineered organisms or cells with or without a consideration;
(d) Export and import of genetically engineered organisms or cells;
(e) Production, manufacturing, processing, storage, import, drawing off, packaging and
repacking of genetically engineered products;
(f) Production, manufacture etc. of drugs, pharmaceuticals, food stuffs, distilleries and tanneries,
etc. which make use of genetically engineered micro-organisms one way or the other (rule 2).

The Rules have created six institutional bodies, namely,

i. Recombinant DNA Advisory Committee under the Department of Biotechnology;
ii. Review Committee on Genetic Manipulation under the Department of Biotechnology;
iii. Institutional Biosafety Committee constituted by person or institutions handling genetically
engineered organisms;
iv. Genetic Engineering Appraisal Committee under the Ministry of Environment and Forests;
v. State Biotechnology Co-ordination Committee;
vi. District Level Committee.

The Rules provide that the main regulatory body is the Genetic Engineering Appraisal Committee without
whose approval no persons shall:
(a) Import, export, transport, manufacture, process, use or sell any hazardous microorganisms or
genetically engineered organisms/substances or cells including release of genetically engineered
organisms and products into the environment for any purposes including experiment and field
trials.
(b) Produce, sell, import or use any substance or product containing genetically engineered
organisms and cells;
 (c) Produce, sell, import or use food stuffs, ingredients in food stuffs and additives including
processing and containing or consisting of genetically engineered organisms or cells (rules 7, 8,
10 and 11).
One of the issues in this regard is the fact that in practice, the GEAC is only responsible for appraisal and
it is not the body granting the approval.

5.5.2. International framework

The Cartagena Protocol on Biosafety adopted by States under the Convention on Biological Diversity
applies to the trans-boundary movement, transit, handling and use of all living modified organisms
(LMO) that may have adverse effects on the conservation and sustainable use of biological diversity,
taking also into account risks to human health.

The Protocol establishes the procedure for import and export of LMOs from one country to another.
There are two sets of procedures: one for direct introduction of LMO into the environment, and another
for direct use of LMOs for food or feed, or for processing of food and feed. The procedures are as
follows:
(a) In case of direct introduction of LMO – an Advanced Informed Agreement is required, wherein
the country intending to export the LMO must notify the party importing the LMO about the
intended export. The notification given by the exporting party shall be acknowledged within 90
days and a decision as to whether to allow the import or not shall be communicated within 270
days.
(b) In case of direct use of LMO - Decision as to whether to approve and allow LMO - Food or Feed
or for Processing (FFP) on the market of the importing country needs to be made available
through a Biosafety Clearing House.

6. Summary

The Biological Diversity Act stipulates that the Central and State Governments have to take measures for
conservation and sustainable use of biodiversity. Efforts for in situ conservation have been undertaken by
India under the primary legislation, the Wildlife Protection Act, 1972. Other ways of conservation like ex
situ conservation are not sufficiently covered under any of the legislation. The National Biodiversity
Strategy and Action Plan lays down several actions plan conservation of biodiversity and its sustainable
use. The specific areas that are of biodiversity concern like development projects and genetically
modified organisms are also dealt with in the Biological Diversity Act, 2002 and under the Environment
(Protection) Act, 1986.