ROLE, POWERS AND FUNCTIONS OF STATE BIODIVERSITY BOARDS TO COLLECT ACCESS AND BENEFIT SHARING AMOUNT FROM INDIAN ENTITIES
ROLE, POWERS AND FUNCTIONS OF STATE BIODIVERSITY BOARDS TO COLLECT ACCESS AND BENEFIT SHARING AMOUNT FROM INDIAN ENTITIES
Ms. Geethanjali K.V., Legal Associate, CEERA-NLSIU
Ms. Namrata Rawat, 4th Year, RGNUL, Punjab
INTRODUCTION
The Convention on Biological Diversity (CBD) was adopted in 1992 at the Rio Earth Summit. It has three primary objectives: conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of genetic resources. To effectuate its third objective, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity[1] entered into force on 12th October, 2014. Its aim is to provide an effective legal framework for the implementation of the Access and Benefit Sharing (ABS) principle. India is a signatory to the CBD. The Biological Diversity Act, 2002[2] (Act), the Biological Diversity Rules, 2004[3] (BD Rules), the National Green Tribunal Act, 2010[4] and the Access and Benefit Sharing Guidelines, 2014[5] (ABS Guidelines, 2014), govern the legal framework for the same in India.
This work encapsulates the role of the State Biodiversity Boards (SBBs), constituted under Section 22 of the Act to collect ABS amount from Indian entities. The paper sheds light on pertinent topics like the procedure regarding access to biodiversity resources under an SBB, its jurisdiction in this regard, and remedies available in case of violation of the provisions. Lastly, the paper focuses on the provisions of the Karnataka Biodiversity Board (KBB) vis-à-vis ABS.
STATE BIODIVERSITY BOARDS AND ABS
Unlike Sections 3, 4 and 6 of the 2002 Act which require prior approval of the National Biodiversity Authority, Section 7 of the Act provides for prior ‘intimation’ to State Biodiversity Board for obtaining biological resource for certain purposes. It reads as,
“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.”[6]
However, a proviso to Section 7 has been appended which states 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 practicing indigenous medicine.[7] Thereby, not unduly restricting the local communities from accessing their regional biodiversity resources.
Before we proceed with the roles and powers of the State Biodiversity Board with respect to the ABS mechanism, it is pertinent to get an overview of the general functions and powers of the SBB. These have been delineated below.
State Biodiversity Board- Powers and Functions
Chapter VI of the Act pertains to the State Biodiversity Board. Section 23 therein outlines the functions to be performed by the State Biodiversity Board. According to this Section, these functions shall be to:[8]
(a) 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 utilisation of biological resources;
(b) regulate by granting of approvals or otherwise requests for commercial utilisation or bio-survey and bio-utilisation of any biological resource by Indians;
(c) perform such other functions as may be necessary to carry out the provisions of the Act or as may be prescribed by the State Government.
Furthermore, the State Biodiversity Board has been conferred with the power to restrict certain activities violating the objectives of conservation, etc. Section 24(1) further emphasises the prior intimation that has to be given by the citizen of India or a body corporate, organisation or association registered in India intending to undertake any activity referred to in Section 7. It also establishes that such intimation must be in such a form as may be prescribed by the State Government to the State Biodiversity Board.[9] The State Biodiversity Board may, on receipt of this intimation, consult with the local bodies concerned and after making such enquires as it 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.[10] This order, however, shall not be made without giving an opportunity of being heard to the person affected. Additionally, it has been provided that 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.[11] Lastly, it has been stated that other provisions like the structure of the SBB, conditions of service[12] and removal[13] of its members, committees,[14] meetings,[15] authentication of orders and decisions,[16] delegation powers,[17] and expenses[18] of the Board shall follow Sections 9- 17 (for NBA) with certain modifications.[19]
Chapter VIII which deals with the finance, accounts and audit of the State Biodiversity Board provides that the State Government may, after due appropriation made by the State Legislature by law in this regard, pay to the State Biodiversity Board by way of grants or loans such sums of money as the State Government may think fit.[20] Under Section 32, a State Biodiversity Fund is to be created. The Board shall also prepare an annual report of its functions and present a copy of the same to the State Government.[21] SBB’s accounts shall be maintained and audited in such manner as may, in consultation with the Accountant-General of the State, be prescribed and the State Biodiversity Board shall furnish, to the State Government, an audited copy of its accounts along with the auditor’s report.[22] SBB’s annual report and the auditor’s report shall be laid down before the State Parliament.[23]
Additionally, State Government has the power to give directions, in writing, on questions of policy and the SBB shall be bound by such direction in the discharge of its functions and duties under the Act.[24] However, the SBB shall be given, as far as practicable, an opportunity to express its opinions before any such direction is given. Herein, the State Government’s decision on whether a question is one of policy or not shall be final.[25]
PROCEDURE TO BE FOLLOWED REGARDING ABS
State Biodiversity Board
Section 63 of the Act confers certain powers on the State Government to make rules in furtherance of the objectives of the Act, by way of notification in the Official Gazette.[26] Clause 2 of the said Section which provides an array of areas for which such rules can be mandated include the form in which the prior intimation shall be given under sub-section (1) of section 24 to the SBB for accessing a bio-resource for commercial purposes.[27] In pursuance of this provision, States have rolled out their respective rules, and provided the forms applicable therein. The Karnataka Biodiversity Rules, 2005, shall be studied in detail in subsequent sections.
National Biodiversity Authority
Rule 14 of the Biological Diversity Rules, 2004 and Form I
The Biological Diversity Rules, 2004 were promulgated by the Central Government, in exercise of its powers under Section 62 of the Act. These Rules pertain to the functioning of the NBA. Rule 14 is of particular relevance here. It prescribes the procedure regarding access to biological resources and associated traditional knowledge. An applicant seeking approval of the Authority for access to biological resources and associated knowledge for research or for commercial utilization shall make an application in Form 1 thereunder. An application herein shall be accompanied by a fee of ten thousand rupees in the form of a cheque or demand draft drawn in favour of the Authority.[28]
The applicant, under Form 1 read with Rule 14 shall therein provide information regarding: (i) Full particulars of the applicant (ii) Name (iii) Permanent address (iv) Address of the contact person/agent, if any, in India (v) Profile of the organization (personal profile in case the applicant is an individual) (vi) Nature of business (vii) Turnover of the organization in US$.
Additionally, details and specific information about nature of access sought and biological material and associated knowledge to be accessed must be provided. These include-
(a) Identification (scientific name) of biological resources and its traditional use; b) Geographical location of proposed collection; c) Description/ nature of traditional knowledge; d) Any identified individual/community holding the traditional knowledge; e) Quantity of biological resources to be collected (give the schedule); f) Time span in which the biological resources is proposed to be collected; g) Name and number of persons authorized by the company for making the selection; h) The purpose for which the access is requested including the type and extent of research, commercial use being derived and expected to be derived from it; i) Whether any collection of the resource endangers any component of biological diversity and the risks which may arise from the access.
Further, the applicant must also furnish the following details:
Details of any national institution which will participate in the Research and Development activities; primary destination of accessed resource and identity of the location where the R&D will be carried out; the economic and other benefits including those arriving out of any IPR, patent obtained out of accessed biological resources and knowledge that are intended, or may accrue to the applicant or to the country that he/she belongs; the biotechnological, scientific, social or any other benefits obtained out of accessed biological resources and knowledge that are intended, or may accrue to the applicant or to the country that he/she belongs; estimation of benefits that would flow to India/communities arising out of the use of accessed bio-resources and traditional knowledge; proposed mechanism and arrangements for benefit sharing; and any other information considered relevant.
Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014[29]
These Regulations were promulgated by the NBA in exercise of the powers conferred on it under Section 64 read with Sections 18(1) and 21(4). Regulation 2 herein provides for the procedure regarding access to biological resources, for commercial utilization or for bio-survey and bio-utilization for commercial utilization. Sub- regulation (1) provides that any person who intends to have access to biological resources including access to biological resources harvested by Joint Forest Management Committee (JFMC)/ Forest dweller/ Tribal cultivator/ Gram Sabha, shall apply to the NBA in Form-I of the Biological Diversity Rules, 2004 or to the State Biodiversity Board (SBB), in such form as may be prescribed by the SBB, as the case may be, along with Form ‘A’ annexed to these Regulations. Sub-regulation (2) mandates that the NBA or the SBB, as the case may be, shall, on being satisfied with the application, enter into a benefit sharing agreement with the applicant which shall be deemed as grant of approval for access to biological resources, for commercial utilization or for bio-survey and bio-utilization for commercial utilization referred to in that sub-regulation.
Regulation 14 stipulates the criteria for determination of benefit sharing. It states that benefit sharing may be done in monetary and/or non-monetary modes, as agreed upon by the applicant and the NBA/SBB concerned in consultation with the BMC/benefit claimer, etc.[30] Options for such benefit sharing are provided in Annexure–1 of the Regulations. Further, the Regulations state that the determination of benefit sharing shall be based on considerations such as commercial utilization of the biological resource, stages of research and development, potential market for the outcome of research, amount of investment already made for research and development, nature of technology applied, time-lines and milestones from initiation of research to development of the product and risks involved in commercialization of the product.[31] A proviso to the same states that special consideration may be given to cases where technologies/products are developed for controlling epidemics/diseases and for mitigating environmental pollution affecting human/ animal/ plant health. The amount of benefit sharing shall remain the same whether the end product contains one or more biological resources.[32] Additionally, it accounts for cases where the biological resources of a product are sourced from the jurisdiction of two or more SBBs and provides that the total amount of the accrued benefits shall be shared among them in proportion as decided by the NBA/ SBBs concerned, as the case may be.[33]
Regulation 15 further provides for percentage of sharing of benefits. Sub- regulation (1) herein provides that where approval has been granted by the NBA for research or for commercial utilization or for transfer of results of research or for Intellectual Property Rights or for third party transfer, the mode of benefit sharing shall be as under:[34]
(a) 5.0% of the accrued benefits shall go to the NBA, out of which the NBA shall retain half of the amount and the other half may be passed on to the concerned SBB for administrative charges.
(b) 95% of the accrued benefits shall go to concerned BMC(s) and/ or benefit claimers.
A couple of provisos have been appended herein. Firstly, where the biological resource or knowledge is sourced from an individual or group of individuals or organizations, the amount received under this provision shall directly go to such individual or group of individuals or organizations, in accordance with the terms of any agreement and in such manner as may be deemed fit. Secondly, where benefit claimers are not identified, such funds shall be used to support conservation and sustainable use of biological resources and to promote livelihoods of the local people from where the biological resources are accessed.
Moreover, Sub- regulation (2) of Regulation 15 states that where approval has been granted by SBB under these Regulations, the SBB may retain a share of the accrued benefits, not exceeding 5%, towards their administrative charges, and the remaining share shall be passed on to the BMC concerned or to benefit claimers, where identified. Like the Sub-regulation (1), a proviso herein also states that where any individual or group of individuals or organizations cannot be identified, such funds shall be used to support conservation and sustainable use of biological resources and to promote livelihoods of the local people from where the biological resources are accessed.
These were some of the major rules and regulations outlining the procedure regarding the benefit sharing procedure and requirements. It must be herein noted that each State provides for its own rules in consonance with the BDA, Biological Diversity Rules, 2004 and the ABS Regulations, 2014. These shall be of prime importance while discussing the functioning of the SBBs, procedure for intimating SBBs with regards to any access requirement under Section 7 of the Act read with Section 24(1) of the same, percentage of shares in the ABS amount, and the penalties/ remedies provided to the Board thereunder.
NON- COMPLIANCE WITH STATUTORY PROVISIONS- REMEDY/ PENALTY PROVISIONS
Remedies are available to the industry persons aggrieved by any determination of benefit sharing or order of the National Biodiversity Authority or a State Biodiversity Board under the Biological Diversity Act. As per Section 52 and 52A, such aggrieved persons may file an appeal to the High Court within 30 days of such communication (or by a further extension but not exceeding 60 days, if the Court is satisfied of the sufficient cause for delay) and the National Green Tribunal (established under Section 3[35] of the National Green Tribunal Act, 2010), respectively.
However, under this part, we shall focus on the penalties and remedies available with the SBBs when prior intimation under Section 7 has not been provided and/or other ABS requirements have not been complied with.
Penalty Provisions
State Biodiversity Boards are constituted under Section 22 of the Act. Clause 3 of Section 22 provides that the Board shall be a body corporate, 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 its name, sue and be sued. Anyone who contravenes or attempts to contravene or abets the contravention of the provisions of Section 7 or any order made under Section 24(2) 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.[36] Thus, it has been expressly provided that prior intimation to the respective SBB under Section 7 is a necessary requirement, the violation of which shall attract penalty under the Act.
Remedies
There has been a certain degree of uncertainty regarding the penalties and remedies provided under the Act. Herein, it must be clarified that remedies exist for both: the authorities implementing the Act as well as the benefit claimers. As per Section 2(a), “benefit claimers” are the conservers of biological resources, their by-products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application. Section 61 in this regard, provides a remedy wherein it provides for cognizance of offences.[37] The Section states that no Court shall take cognizance of any offence under this Act except on a complaint made by-
(a) the Central Government or any authority or officer authorised in this behalf by that Government; or
(b) any benefit claimer who has given notice of not less than thirty days in the prescribed manner, of such offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.
This Section needs to be read with Central Government’s notification[38] dated 17th November, 2008 which has designated the following officers who could file complaint under Section 61(1) of the Act.
Image: Notification, S.O. 2708(E) dated 17th November, 2008, MoEF
This Notification had been subsequently amended in 2009[39] and 2015[40] to further add the following officers authorised for the same:
| Notification | S. No. | Officers authorised to file complaints under Section 61(a) of the BDA, 2002 | Area of Jurisdiction |
| S.O. 120(E) dated 7th January, 2009 | 4. | Forest Officers not below the rank of Range Officers | In their respective jurisdictions |
| S.O. 1633(E) dated 10th June, 2015 | 5. | Advisor (Law), NBA, Chennai | Whole of India |
This indicates that the aforementioned officers can file complaints with regards to the violations under the Act within their jurisdiction as provided in the respective tables.
Other Remedies
- While Section 61 provides a direct remedy for the SBBs in cases of non- compliance by industries/ industry personnel with regards to the ABS requirement and violation of Sections 7 and 24(1) of the Act, Section 53 provides execution of an order of the SBB. It states that every determination of benefit sharing or order made by the National Biodiversity Authority or a State Biodiversity Board under the Act or the order made by the High Court in any appeal against any determination or order of the National Biodiversity Authority or a State Biodiversity Board shall, on a certificate issued by any officer of the National Biodiversity Authority or a State Biodiversity Board or the Registrar of the High Court, as the case may be, be deemed to be decree of the civil court and shall be executable in the same manner as a decree of that court.
An Explanation appended to Section 53 provides that for the purposes of this section and Section 52, the expression ‘State Biodiversity Board’ would include the person or group of persons to whom the powers or functions under sub-section (2) of section 22 have been delegated under the proviso to that sub-section and the certificate relating to such person or group of persons under this section shall be issued by such person or group of persons, as the case may be.
- Other remedies like the right to inspection of the properties of the said body corporate, etc. have been provided under the respective SBB Rules. Those with regards to the Karnataka SBB shall be discussed in the subsequent sections.
JURISDICTIONAL ISSUES
It is observed that as per the procedural laws, complaints can be filed at the jurisdiction where the defendant is present or where the cause of action arose. Due to the recent developments in the ABS procedure and payments, and the very niche nature of the disputes regarding the same, the position regarding jurisdiction of SBBs remains shrouded in the dark. It therefore becomes pertinent to study the same and bring a semblance of clarity on the same. Albeit the lack of specific cases wherein SBBs have resorted to move the HC for exercising the provisions under Section 7 read with 24 of the Act, certain cases on the validity of ABS requirement from Indian entities and the jurisdiction of SBBs to act as a regulatory mechanism for this purpose, shall be discussed to shed some light on the current position.
Before proceeding with the jurisdiction issue pertaining to SBBs, we shall analyse the statutory provisions regarding the regulatory function of the SBBs under the Act. In a recent landmark case of Divya Pharmacy v. Union of India and Ors.,[41] the Uttarakhand High Court heard the pleas of the petitioner who had challenged the jurisdiction and regulatory authority of the SBB under the BDA. The petitioner had pointed out that only the non- Indian/ foreign entities were required to meet the procedures stipulated under the Act regarding the Fair and Equitable Benefit Sharing (FEBS) principle and the regulatory authority whose approval was so required was the NBA. Thereby implying that the Indian entities had no such FEBS obligations under the statute. This was challenged by SBB’s counsel on the following grounds:
- That FEBS was one of the objectives behind the statute.
- That a distinction between the Indian and non- Indian entities in matters related to FEBS would only defeat the purpose of the Act.
- That there was a distinction between the ‘prior approval’ required from the NBA by non-Indian entities and the ‘prior intimation’ to be given by the Indian entities to the SBB.
- That the existence of Section 52A wherein appeals could be preferred against the order of the SBB, itself entails that the SBB is part of the regulatory framework in the statute.
Section 32 of the Act was also relied upon wherein provision for the constitution of a State Biodiversity Fund is present where, inter alia, all sums received by the State Biodiversity Board or such other sources have to be kept. The SBB’s counsel thus pleaded in favour of a holistic reading of the entire provisions of the Act which would show that SBB has an important role to play, particularly in the field of FEBS.
Relying on a plethora of judgments[42] and upholding the importance of ‘purposive interpretation of law’, especially in cases of socially or economically beneficial legislations, the High Court held that the claiming of fee for FEBS by the SBB was intra vires the Act. Thus, the writ petition was dismissed.
An important issue of jurisdiction of SBB arose in M/s. Vishwanath Paper & Boards Ltd. and another v. State of Uttarakhand and Others.[43] The Uttarakhand High Court had herein clubbed cases relating to the paper and pulp industries in the State which had been served notices by the Uttarakhand Biodiversity Board (UBB). The Court held, inter alia, that the UBB had the jurisdiction to require prior intimation regarding the bioresources accessed from the State, although they were only a fraction of those obtained from states like Bihar and Uttar Pradesh. Interestingly, the Uttarakhand Government had not, at that point in time, issued its rules related to the procedure for prior intimation of access to bioresources (Section 7) as provided for under the Section 63. The Hon’ble Court held that despite the lack of any ‘prescribed form’ of guidelines, the industries had to provide the necessary information to the UBB. It was noted that the BS obligations had been made mandatory under Section 7 of the Act and that the petitioners were bound to give the information to the UBB. Absence of any prescribed form did not absolve them of their BS obligations.[44] Hon’ble Justice U.C. Dhyani gave the order on 2nd June, 2006. The petitions were disposed of with directions.
Thus, the above judgments, provide some clarity regarding the jurisdiction and regulatory authority of the SBBs in implementing the FEBS principle. When read with Section 61 of the Act and the notifications issued thereunder, it becomes clear that authorised officers qua the respective SBBs would have the necessary jurisdiction to file complaints in their respective States.
KARNATAKA BIODIVERSITY BOARD
The Karnataka Biodiversity Board (KBB) was established as per Section 22 of the Biological Diversity Act, 2002, in 2003 and the Government of Karnataka notified the Karnataka Biological Diversity Rules in 2005 (KBD Rules, 2005) as per the powers conferred under the Section 63 of the Biological Diversity Act, 2002. The main objective of the Board is to foster the institutional setup for documentation, sustainable use and development of the rich biodiversity of the State of Karnataka for effective implementation of the Biological Diversity Act, 2002 and helping in the formation of Biodiversity Management Committees (BMCs) at elected body levels, documentation of the People’s Biodiversity Registers (PBRs) and the declaration of Biodiversity Heritage Sites (BHS).[45]
Karnataka Biological Diversity Rules, 2005[46]
As discussed above, these Rules had been promulgated under the powers provided to the State Governments under Section 63 of the Act. In line with the Biological Diversity Act and the rules and regulations made thereunder, it provides for powers and functions of the KBB[47], specifics regarding the structure of the Board, procedure for prior intimation for obtaining biological resources[48], revocation of access/ approval[49], restriction on activities related to access to biological resources[50], provisions regarding Annual Report and Annual Statement of Account[51], establishment and Management of Biodiversity Heritage Sites[52], constitution of biodiversity Management Committees[53], Local Biodiversity Funds[54], etc. Any person intending to obtain any biological resources and associated knowledge for research or for commercial utilization, with the exception of those in the proviso to section 7 of the Act, shall give prior intimation to the Board by making an application in Form I.[55]
Form I herein requires the full particulars of the applicant, viz., (a) Name; (b) Permanent address; (c) Address of the contact person/ agent, if any, in India; (d) Profile of the organization (personal profile in case the applicant is an individual) along with the attachment of relevant documents for authentication; (e) Nature of business; (f) Turnover of the organization in Indian Rupee.
Furthermore, it also requires the applicant to furnish details and specific information about nature of access sought and biological material and/or associated knowledge to be accessed. These include: (a) Identification (Scientific name) of biological resources and its traditional use; (b) Geographical location (including village, taluka, and district) of proposed collection; (c) Description/ nature of traditional knowledge and its existing manifestations and uses (oral/ documented); (d) Any identified individual/ family/ community holding the traditional knowledge; (e) Quantity of biological resources to be collected; (f) Time span in which the biological resources are proposed to be collected; (g) Name and number of person authorized by the company for making the selection; (h) The purpose for which the access is requested including the type and extent of research, commercial use being derived and expected to be derived from it; (i) whether any collection of the resource endangers any component of biological diversity and the risks which may arise from the access
One would also be required to submit the estimation of benefits, that would flow to committees arising out of the use of accessed bio resources and traditional knowledge, proposed mechanism and arrangements for benefit sharing, and any other information that must be provided.
Remedies under Karnataka Biodiversity Rules, 2005
Certain remedies have been provided under the Rules. These can be viewed in reference to the powers provided to the Board under Rule 13. Some of these powers and functions allow the Board to recommend, prescribe, modify, collection fee of biological resources from time to time,[56] undertake physical inspection of any area in connection with the implementation of the Act.[57] The Board shall also have power to acquire, hold and dispose of property, both movable and immovable and enter into contract for the same.[58]
Additionally, in cases where a prior intimation has been given to the SBB and its approval has been granted, the Board may also revoke such access/approval. The Board may either on the basis of any complaint or suo moto withdraw the access granted and revoke the written agreement under the following reasons:[59]
(i) on the basis of reasonable belief that the person accessing the said bio-resource has violated any of the provisions of the Act or the condition on which application was allowed;
(ii) when the person has failed to comply with the terms of agreement;
(iii) on failure to comply with any of the conditions of access;
(iv) on account of overriding public interest with reference to protection of environment and conservation of biological diversity, and protection of the rights, livelihoods, and knowledge of local communities.
It must herein be noted that the revocation order shall be made only after making such inquires as required after giving the person so affected an opportunity of being heard.[60] Additionally, the Board shall send a copy of such revocation order to the biodiversity Management Committees for prohibiting the access and also to assess the damage, if any, caused and take steps to recover the damage.[61]
CONCLUSION
Through the paper, the author has tried to extensively discuss about the FEBS requirement vis-à-vis the State Biodiversity Boards: the provisions and procedure; remedies available to the SBBs; their jurisdiction in filing cases against the defaulting accessors, in light of certain prominent judgments; and the provisions specific to the Karnataka Biodiversity Board. The aim of the paper has been to shed some light on the oft- neglected yet pertinent subject regarding jurisdiction of SBBs to initiate complaints against the accessors who fail to comply with the requirements under Section 7 of the Act. As has often been seen, such a route has not popularly been taken by SBBs. Additionally, there is a lack of proper guidelines or even precedents regarding the focal subject. Hence, it is generally observed that the persons aggrieved by the SBBs’ notices served under Section 24(1) read with Section 7 of the Act, are the ones who move the respective High Courts against such notices/ directions. Also, majority of cases in Courts regarding the ABS mechanism involve the interpretation of certain definitions, or the declaration of whether a particular raw material used qualifies as biological resource under Section 2(c) of the Act, or the issue regarding whether there is a requirement of prior intimation for accessing the biological resource for research purposes. Therefore, the author seeks to provide some lucidity on the subject and find some plausible remedies for the SBBs. Furthermore, it is recommended that the Central Government and the Courts provide some respite to the SBBs by clarifying the position on the same.
[1] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, The Convention on Biological Diversity, United Nations (2011), https:// www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.
[2] The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[3] Biological Diversity Rules, 2004, No. G.S.R. 261(E), Acts of Parliament, 2004, (India).
[4] The National Green Tribunal Act, 2010, No. 19, Acts ofc Parliament, 2010, (India).
[5] Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[6] Section 7, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[7] Section 7, Proviso, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[8] Section 23, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[9] Section 24(1), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[10] Section 24(2), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[11] Section 24(3), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[12] Section 9, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[13] Section 11, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[14] Section 13, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[15] Section 12, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[16] Section 15, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[17] Section 16, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[18] Section 17, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[19] Section 25, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[20] Section 31, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[21] Section 33, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[22] Section 34, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[23] Section 35, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[24] Section 49(1), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[25] Section 49(2), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[26] Section 63(1), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[27] Section 63(2)(b), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[28] Rule 14(2), Biological Diversity Rules, 2004, No. G.S.R. 261(E), Acts of Parliament, 2004, (India).
[29] Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[30] Regulation 14(1), Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[31] Regulation 14(2), Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[32] Regulation 14(3), Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[33] Regulation 14(4), Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[34] Regulation 15(1), Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014, Ministry of Environment, Forests and Climate Change (National Biological Diversity Authority), No G.S.R 827, Acts of Parliament, Nov. 21, 2014, (India).
[35] Section 3, The National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010, (India).
[36] Section 55(2), The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[37] Section 61, The Biological Diversity Act, 2002, No. 18, Acts of Parliament, 2003, (India).
[38] Notification- S.O. 2708(E) dated 17th November, 2008, Ministry of Environment and Forests, Government of India, http://nbaindia.org/uploaded/pdf/notification/2%20enforcement%201.pdf.
[39]Notification- S.O. 120(E) dated 7th January, 2009, Ministry of Environment and Forests, Government of India, http://nbaindia.org/uploaded/pdf/notification/3%20enforcement%202.pdf.
[40] Notification- S.O. 1633(E) dated 10th June, 2015, Ministry of Environment and Forests, Government of India, http://nbaindia.org/uploaded/pdf/notification/enforcement3.pdf.
[41] Divya Pharmacy v. Union of India and Ors., 2018 SCC OnLine Utt 1035.
[42] Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner, (2009) 10 SCC 123; Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619; Government (NCT of Delhi) v. Union of India, (2018) 8 SCC 501; Rizzo & Rizzo Shoes Ltd. case, 1998 SCC OnLine Can SC 4: [1998] 1 SCR 27.
[43] M/s. Vishwanath Paper & Boards Ltd. and another v. State of Uttarakhand and Others, AIR 2016 Utt 87.
[44] Shalini Bhutani & Kanchi Kohli, Litigating- india’s Biological Diversity Act, A Study of Legal Cases (18 Feb., 2021), https://counterview1.files.wordpress.com/2016/12/bd-litigating-report-final-5-12-2016.pdf.
[45](18 Feb., 2021), https://kbbwebportal.karnataka.gov.in/default.aspx.
[46] Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[47] Rule 13, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[48] Rule 15, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[49] Rule 16, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[50] Rule 17, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[51] Rule 19, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[52] Rule 20, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[53] Rule 21, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[54] Rule 22, Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[55] Rule 15(1), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[56] Rule 13(xiv), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[57] Rule 13(xvii), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[58] Rule 13(xxiii), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[59] Rule 16(1), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[60] Rule 16(2), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).
[61] Rule 16(3), Karnataka Biological Diversity Rules, 2005, Forest, Ecology and Environment Secretariat, Notification No. FEE 151 ENV 2005, Government of Karnataka, 3rd May, 2006, (India).