Note on Biological Diversity (Amendment) Act, 2023

-Jaibatruka Mohanta*, Ishan Anand** & Diya Jayaraj***

This recent amendment can be considered necessary to provide for conservation, sustainable utilisation, fair and equitable sharing of the benefits arising out of the utilisation of biological resources and also to give effect to the Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation to the Convention on Biological Diversity which was adopted on October 29, 2010, in Nagoya, Japan to which India is also a party.

The Biological Diversity Amendment Bill, 2023 (“Amendment Bill”) has brought forth many substantial changes to the Biological Diversity Act, 2002 (“Principal Act”). The significant changes are highlighted below:

We analyse the crucial changes that have come into place.

• The Amendment Bill has substituted the word ‘party’ to ‘Party’ and has changed the last paragraph of the preamble to:

“AND WHEREAS India is a Party to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity which was adopted on the 29th October 2010 in Nagoya, Japan;

AND WHEREAS it is considered necessary to provide for conservation, sustainable utilisation, fair and equitable sharing of the benefits arising out of the utilisation of biological resources and also to give effect to the said Convention.”[1]

• Section 2(a) was added to define the term access in the Amendment Bill. The Amendment Bill has also added the definition of “codified traditional knowledge” under Section 2(ea), “derivative” inserted under Section 2(fa), “folk variety” added under Section 2(ga), “India” added under Section 2(gb), “Landrace” added as Section 2(gc) and “member- secretary” added as Section 2(ia).
• The Amendment Bill aligns the definition of a foreign company with the one given in the Companies Act, 2013. This amendment ensures that companies fall under the National Biodiversity Authority’s regulatory framework for commercial use and obtaining patents. Indian companies not controlled by foreigners as per the Companies Act, 2013, will be treated on par with other Indian companies.[2]
• The Amendment Bill changes Section 4, allowing any person under Section 3(2) to access research results with the National Biodiversity Authority’s approval, except for codified traditional knowledge, limited to Indians. Exceptions include publishing, disseminating knowledge, and workshops with financial benefits directed by the central government. Further research requires registration with the Authority, while commercial or intellectual property use demands authorization from the National Biodiversity Authority, both in India and abroad.[3]
• The Amendment Bill amends Section 6(1), requiring anyone under Section 3(2) and Section 7 seeking intellectual property rights based on research using Indian biological resources or traditional knowledge to obtain prior approval from the National Biodiversity Authority. Those with existing IP rights must seek approval during commercialization.[4]
• Section 7 allows persons under Section 3(2) access to biological resources for commercial use without prior intimation to State Biodiversity Board, except for codified traditional knowledge, certified medicinal plants, and certain local communities.[5]
• The Amendment Bill increases the number of ex-officio members in the National Biodiversity Authority to 16, including the Chairman, appointed by the central government. They represent various Ministries and are joined by four members from State Biodiversity Boards on a rotational basis. Additionally, a Member-Secretary with biodiversity conservation experience will be appointed by the central government.[6] The number of members of the State Biodiversity Board was also increased.[7]
• The Amendment Bill inserts Section 10A, designating the Member-Secretary as the Chief Coordinating Officer and Convener, assisting the National Biodiversity Authority in its functions and performing prescribed duties.
• Under Section 18 of the Amendment Bill, the National Biodiversity Authority gains the authority to create regulations for access to biological resources and traditional knowledge sharing, with Central Government approval. The Authority must also advise State Biodiversity Boards and oppose granting IP rights abroad for Indian biological resources and traditional knowledge.[8]
• The Amendment Bill introduces a new Section 36(A) that emphasizes monitoring of biological resources obtained from foreign countries used in India, complying with the Nagoya Protocol’s access and benefit-sharing provisions. Additionally, the newly added Section 36(B) empowers state governments to develop strategies and plans for conserving and sustainably using biological diversity.
• As part of the amendment process, a new Section 41(1A) was included to specify the functions of Biodiversity Management Committees clearly. Additionally, Section 41(18) was introduced to strengthen these committees by setting the minimum and maximum number of members they can have.
• Section 55 of the Principal Act was amended and the Bill aimed to decriminalize offenses under the Act and replace imprisonment with penalties ranging from Rs. 100,000 to Rs 5 million. For ongoing violations, an additional penalty of up to Rs.1 crore could apply. The committee noted that the penalty should not be too lenient, as it could allow offenders to evade consequences with a small fine. They recommended penalties be proportionate to the gains made by entities and the size of the company.[9]

Lastly, as mentioned above the Amendment brings the adjudicating authority to government representatives. Thus, the penalties will be based on an investigation. Therefore, the benefits and aim of this Amendment shall only be brought to light against the backdrop of time.

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* Jaibatruka Mohanta, Research Associate, CEERA-NLSIU.

** Ishan Anand, Student, B.A. LL.B., School of Law, Galgotias University, Greater Noida

*** Diya Jairaj,  Student, B.A. LL.B., KLE Society Law College, Bengaluru.

[1] Previously the Preamble of the Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2002 (India) (“The Principal Act”) read as follows: AND WHEREAS India is a party to the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992.

AND WHEREAS it is considered necessary to provide for conservation, sustainable utilisation and equitable sharing of the benefits arising out of the utilisation of genetic resources and also to give effect to the said Convention.

[2] Section 3(c) of the Principal Act: a body corporate, association or organisation— (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.

[3] Section 4 of the Principal Act: Results of research not to be transferred to certain persons without the approval of the National Biodiversity Authority.—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 (43 of 1961) or a body corporate or organisation which is not registered or incorporated in India or which has any non-Indian participation in its share capital or management. Explanation. —For the purposes of this section, “transfer” does not include publication of research papers or dissemination of knowledge in any seminar or workshop, if such publication is as per the guidelines issued by the Central Government.

[4] Section 6(1) of the Principal Act: Application for intellectual property rights not to be made without the approval of National Biodiversity Authority.—(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: Provided further that the National Biodiversity Authority shall dispose of the application for permission made to it within a period of ninety days from the date of receipt thereof.

[5] Section 7 of the Principal Act: Prior intimation to State Biodiversity Board for obtaining biological resources for certain purposes.—No person, who is a citizen of India or a body corporate, association or organisation which is registered in India, shall obtain any biological resource for commercial utilisation, or bio-survey and bio-utilisation for commercial utilisation except after giving prior intimation to the State Biodiversity Board concerned: Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, who have been practising indigenous medicine.

[6] Section 8(4) of the Principal Act: (4) The National Biodiversity Authority shall consist of the following members, namely:— (a) 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 Central Government; (b) 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; (c) seven ex officio members to be appointed by the Central Government to represent respectively the Ministries of the Central Government dealing with— (i) Agricultural Research and Education; (ii) Biotechnology; (iii) Ocean Development; (iv) Agriculture and Cooperation; (v) Indian Systems of Medicine and Homoeopathy; (vi) Science and Technology; (vii) Scientific and Industrial Research; (d) 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.

[7] Section 22(4) of the Principal Act: The Board shall consist of the following members, namely:— (a) 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; (b) not more than five ex officio members to be appointed by the State Government to represent the concerned Departments of the State Government; (c) not more than 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.

[8] Section 18(4) of the Principal Act: 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.

[9] Section 55 of the Principal Act: Penalties.—(1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 3 or section 4 or section 6 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both. (2) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 7 or any order made under sub-section (2) of section 24 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.