COMMENTARY

Economic & Political Weekly EPW september 29, 2012 vol xlviI no 39
15
Ten Years of the
Biological Diversity Act
Shalini Bhutani, Kanchi Kohli
As India plays host to the
Convention on Biological
Diversitys 11th Conference of the
Parties in Hyderabad in October
2012, this article takes a closer
look at the countrys legislation on
the subject the Biological
Diversity Act (2002).
I
ndias Biological Diversity (BD) Act
was enacted in 2002. There is now a
decade of its existence to reect on.
The genesis of the law can be traced to
the Convention on Biological Diversity
(CBD), which was signed at the Rio Sum-
mit in 1992. While assessing the 10 years
of the Act, one has to be mindful of how
India itself has undergone change in
these years. By the time the Act came
into force, trade imperatives had begun
to inuence environmental law and policy-
making both at the national and global
level. The nal shape of the Act and the
manner of its implementation through
the BD rules issued by the Ministry of
Environment and Forests (MoEF) in
2004 reect that bent.
The economic reforms introduced in
1991 meant greater reliance on market
forces, encouragement of the private
sector and restructuring the role of the
government. In 1995, the country had
also become a member of the World Trade
Organisation (WTO). This, among other
things, meant changes in the countrys
intellectual property (IP) regime. Economic
liberalisation has created many new chal-
lenges for local communities. Situating the
10 years of the BD Act in this post-reforms,
post-WTO context, helps to better under-
stand the direction it has taken.
Building Institutions
The BD Act prescribed an institutional
framework in order to implement the
three CBD objectives of conservation,
sustainable use, and equitable sharing of
benets arising out of the use of biological
resources and related knowledge. So
from the start, the central government
was preoccupied with establishing the
institutional structure, particularly at
the national level. In 2003, the National
Biodiversity Authority (NBA) was set up
by the MoEF at Chennai.
1
It has seen seven
chairpersons up to date. The 15-member
authority has largely consisted of bureau-
crats or senior scientists, mostly ex ofcio
appointments. Apart from that, the NBA
has had the prescribed ve non-ofcial
specialists and expert members. The
NBA is required to function as the biodi-
versity board for the union territories but
there is little to show on that front.
Meanwhile, almost all states have state
biodiversity boards (SBBs). The count on
date is 26 out of 28,
2
with Kerala, Karnataka
and Madhya Pradesh being amongst the
rst to set up their SBBs. Most boards
have forest and wildlife ofcials doubling
up as chairpersons and member secre-
taries. Clearly, each of the SBBs is at dif-
ferent stages of implementation of the
BD Act, yet their role has remained lim-
ited to that of receiving intimation from
Indian institutions, corporate bodies or
individuals who wish to use biological
resources and related knowledge. Most
SBBs have busied themselves with steering
processes for biodiversity management
committees (BMCs) to be set up at village,
municipality or block levels and the doc-
umentation of local resources to be under-
taken by them. Till December 2011, only
14 states had notied their BD rules.
The Act mandates that seven-member
BMCs be set up by every local body.
There are 33,077 BMCs across 23 states of
India as of September 2012, of which
27,712 are in Madhya Pradesh.
3
Only
very few states such as Nagaland are
willing to integrate existing customary
institutions such as village councils and
Tribal Hohos with BMCs.
4
By and large,
the emphasis by the NBA and SBBs has
been to have as many BMCs ready on paper.
In many places that the authors visited,
Shalini Bhutani ([email protected])
is trained as a lawyer and works on trade,
agriculture and biodiversity. Kanchi Kohli
([email protected]) is an independent
writer and researcher. Both are based in Delhi
and coordinate the national-level Campaign
for Conservation and Community Control over
Biodiversity.
COMMENTARY
september 29, 2012 vol xlviI no 39 EPW Economic & Political Weekly
16
for instance, north Karnataka and cen-
tral India, not all the local individuals
listed as BMC members were even aware
of their position on these committees.
Both civic bodies in the urban centres
and panchayat samitis in the rural areas
have been reluctant to set up BMCs since
it creates additional work with no guar-
antee of visible benets to show their
immediate constituencies. In urban areas
there are very few BMCs set up with the
exception of some districts in Madhya
Pradesh and Maharashtra. So the BMC
experience largely remains a rural exer-
cise. National guidelines for BMCs are
being nalised by the NBA.
Meanwhile, the NBA has been setting
up several short-term (two-three years)
expert committees on specic issues on
need basis. The ones currently functional
are on agro biodiversity, medicinal plants,
training modules and access and benet
sharing (ABS).
5
An Indian Institute of
Biodiversity and likewise an Institute of
Marine Biodiversity have also been
approved since 2005. Earlier this year, a
Centre for Biodiversity Policy and Law
(CEBPOL) was created in April
6
and
Regional Biodiversity and Bio-resources
Centres (RBBC) too are envisaged. There
is a suggestion to have a regional ofce
of NBA at Shillong for the north-eastern
states.
7
So 10 years on, there is still
unnished work in building institutions.
Access Rules
The other objectives of conservation,
sustainable use and benet sharing have
not received as much attention as access
to biological resources and associated
knowledge of the people of India by foreign
persons, which requires the prior approval
of the NBA. This is in line with the CBD
requirement for the accessor to have the
prior informed consent (PIC) of the coun-
try providing genetic resources.
8
The CBD
also requires that in exchange, domestic
laws provide for fair and equitable benet
sharing on mutually agreed terms (MAT)
when access is granted
9
and the benets
are to be routed back to local peoples
who are the real keepers of biodiversity.
The legal provisions dealing with
grant of access were brought into effect
only in 2004 after the NBA was fully in
place.
10
At its second meeting in 2004,
the NBA processed the rst eight access
applications for biological resources re-
ceived by it. By its third meeting in July
2005, the ABS agreements for access,
material transfer and intellectual prop-
erty rights were prepared using the ex-
pertise of different lawyers from various
government departments. There was still
concern that SBBs had not been formed in
all states, which also meant that there
were no functioning BMCs in some states
at that time. Yet the work of processing
access applications continued unabated
despite the fact that the Act makes it
mandatory for NBA and SBBs to consult
BMCs before taking any decision.
11
In
2005, at an NBA meeting members
stressed the need to prioritise commer-
cialisation with fair and just benet shar-
ing because out of all resources spent by
NBA so far, not one penny has gone to
the communities whose know ledge and
resources we are supposed to care for.
12

After 10 years of the Act, India has 100
ABS agreements to show.
13
These were
publicly announced by the union envi-
ronment secretary in July 2012 at a CBD
meeting in Delhi. It is yet to be seen if
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COMMENTARY
Economic & Political Weekly EPW september 29, 2012 vol xlviI no 39
17
monetary collections from these 100 agree-
ments going into the National Biodiver-
sity Fund translate into real benets
for at least 100 local communities in India.
The challenge with respect to many of
these agreements is to reach out to the
legitimate local benet claimers who
are yet to be fully identied in most cases.
ABS implies that a user of genetic
resources or related knowledge is now
using them with permission; however,
there is no mechanism to monitor post-
access conduct of the accessor and com-
pliance with the terms of conditions on
which access was originally granted. At
the global level, to make countries abide
by each other's ABS procedures, in 2010 a
global protocol was established under
CBD at Nagoya, Japan.
14
Though India
has signed it, the protocol is yet to come
into force. In any case, there is a need to
build more capacity to deal with ABS-re-
lated issues at different levels.
Another important aspect of access, as
CBD insists, is that genetic resources be
used sustainably and for environmentally-
sound purposes. Yet many applications
before the NBA also seek clearance for use
or transfer of genetic material from India
for developing products through modern
biotechnology. In 2005, the private seed
company Maharashtra Hybrid Seeds
Corporation (MAHYCO) sought NBA ap-
proval for transfer results of research to
ship out parental eggplant seeds from
India to Bangladesh. This was required
as the source population of eggplant
RHR-51 used was from India into which
MAHYCO had inserted its Cry 1AC gene to
make genetically modied (GM) brinjal.
15

In the absence of an effective biosafety
regime in the country, there are con-
cerns that the access regime will only
encourage India's genetic wealth being
marketed for the manufacture of poten-
tially hazardous GM seeds and breeds.
Intellectual Property
A key expectation from the legislation was
that it would check the grant of illegal
and unjustied patents or other intellectu-
al property rights (IPR) based on Indias
biological resources by other countries
and foreign companies. The country had
been at the receiving end of biopiracy,
with the basmati rice and neem fungicide
patent cases making much news since the
1980s. Council of Scientic and Industrial
Research (CSIR), on behalf of the central
government, had successfully challenged
one such patent on use of turmeric in the
US patent ofce in 1996. Post-BD Act, CSIR
was amongst the rst public research in-
stitutes to seek approval for IPR applica-
tions from the NBA. And in the last 10
years there has been no instance of the
NBA invoking the legal provision that gives
it the function and power to oppose the
grant of any IPR in any foreign country on
any biological resource or knowledge from
India.
16
The CBD itself does not provide for
a global forum to take such cases.
Nonetheless, the BD Act does not take a
clear position on IPR on living matter or
peoples know-how. Meanwhile, at the
WTO Indias position had long shifted from
no patents on life forms to patents on bi-
ological resources on fullment of certain
conditions. The BD Act does not outrightly
disallow IPR for any invention based on
research or information on a biological
resource obtained from India; it simply
requires approval of NBA and compliance
with the benet sharing and other condi-
tions that NBA may impose. So the NBA has
become an ofce to screen requests for
approval being sought for IPR applications
by both foreign and Indian entities.
Of the 100 ABS agreements approved
and endorsed by the NBA till date, 54 are
agreements allowing applicants to seek
IPR
17
and 51 of these 54 are from Indian
applicants, whether individuals or insti-
tutes. (The three granted during 2012-13
have not yet been made public.)
Ironically, Indias patent law does not
regard anything in the area of traditional
knowledge (TK) as patentable;
18
however,
only a few states like Kerala have articu-
lated their own IPR policy with respect
to TK in medicine. Moreover, Nagalands
draft BD rules dene community intel-
lectual property as belonging to the
community as a whole rather than to in-
dividual inventors.
19
Under the Act, the
central government has the statutory duty
to respect and protect the know ledge of
local people relating to biological diver-
sty.
20
On the basis of an non-governmen-
tal organisation (NGO) text, NBA did issue
the draft Protection, Conservation and
Effective Management of Traditional
Knowledge relating to Biological Diver-
sity Rules, 2009 but this text has not
been nalised. Not surprisingly, the
Ministry of Commerce and its depart-
ment of industrial policy and promotion
(DIPP) that handles IP-related issues is
now working on a draft TK Bill for India
through a DIPP-approved FICCI task force
on traditional knowledge.
Documentation
The BD rules make documentation the
main function of BMCs. Many local groups
and peoples campaigns have consistently
questioned these rules and pointed out
that they dilute the Act since knowledge
holders at the local level are reduced to
mere data providers rather than facili-
tating self-governance of Indias many
(bio) knowledge-based local communi-
ties. The BD rules require the authority
to take steps to specify the form of Peoples
Biodiversity Registers (PBRs), the partic-
ulars these registers will contain and the
format for the electronic database. As a
result, an NBA expert committee prepared
the methodology for PBRs for which guide-
lines were issued in 2009. Ever since, the
work of making and digitising PBRs has
been going on in several states and a little
over 1,100 had been made by the end of
2011. SBBs guide the BMCs in its documen-
tation with the help of a technical support
group (TSG). The experts in the TSG are
drawn from various disciplines, govern-
ment line departments, universities, re-
search institutes, colleges and schools and
NGOs. But the proposed digital Indian
Biodiversity Information System (IBIS) is
yet to be fully set up. Meanwhile, BMCs
such as those in Heggarni village of Uttara
Kannada or Purola tehsil in Uttarakhand
are waking up to the fact that this ofcial
documentation process can be extractive.
Conservation Objectives
The Act opens with the words that it is
meant to provide for the conservation
of biological diversity. That is also the
primary objective of the CBD and con-
cern of local communities whose lives
and livelihoods depend on it. Early
meetings of NBA reiterated the point that
it was not meant to be an institution to
promote trade but was constituted to
protect the biodiversity of the country.
COMMENTARY
september 29, 2012 vol xlviI no 39 EPW Economic & Political Weekly
18
Certain provisions of the BD Act lay
down the duties and responsibilities of
the central government (through MoEF)
towards ensuring conservation.
21
These
have hardly even been put to use. Even
though in the last decade several large
development projects including on min-
ing, big dams, etc, have invited controversy
for their likely impact on biodiversity, they
have never been either questioned from
the point of view of the BD Act or required
to undertake a biodiversity impact assess-
ment other than the environment and for-
est clearances. In this context, it is im-
portant to point out that the central gov-
ernment is not bound by the NBAs rec-
ommendations, which are only advisory
in nature. On the contrary, NBA remains
bound by the directions on questions of
policy given by the central government.
The BD Act has also created a new cate-
gory of conservation, Biodiversity Heritage
Sites (BHS), and NBA issued its guidelines
for the declaration of the same in 2009. So
far four BHS have been declared in the
country, all being in Karnataka.
22
Regarding resources, the thinking
vis--vis the biodiversity regime is that it
will generate its own funds through sell-
ing genetic material, which can then be
used for conservation. NBA charges a
standard 5% of estimated benets as its
non-refundable administrative fee, apart
from the costs of the prescribed forms
and any other royalty imposed on an
applicant seeking access. The benet-
sharing mechanism is meant to plough
back (monetary) benets to the local
biodiversity funds. However, there are
few instances to speak of. For example,
the Hyderabad-based Bio India Biologi-
cals Corporation had exported neem
leaves accessed from Amarchinta BMC in
Mahbubnagar district of Andhra Pradesh
by paying a royalty of Rs 53,000 to NBA.
Earlier this year the authority reportedly
transferred Rs 20,000 to Amarchinta
BMC and the money was utilised for
planting saplings, fencing, etc.
The central government is also required
by CBD and the BD Act to develop national
strategies, plans and programmes for
conservation and sustainable use of bio-
logical diversity. Between 2000 and 2003,
MoEF, with United Nations Development
Programme-Global Environment Facility
support, commissioned the civil society
group Kalpavriksh to prepare Indias Na-
tional Biodiversity Strategy and Action
Plan (NBSAP). After a four-year process
with over 100 organisations from across
India being involved, the nal report was
not accepted by the MoEF. In August 2007,
MoEF released its own draft National
Biodiversity Action Plan (NBAP) made by
technocrats, which was then approved
by the union cabinet in 2008.
To ensure that business-as-usual should
not be disrupted by the workings of the BD
Act, a list of 190 normally traded com-
modities have been kept out of the pur-
view of the Act;
23
only conservation con-
cerns can keep certain threatened species
out of the list. A MoEF notication to that
effect was issued in early 2010. However,
an NBA consultation on the subject con-
rms that on this issue there is a difference
of opinion between technical institutions
and those dealing with trade in species.
24
Biodiversity Governance
Though CBD laid down the principle
of national sovereignty over biological
resources, from the point of view of people
it was to translate into community sov-
ereignty. The real biodiversity-keepers,
be it farmers, sherfolk, pastoralists, etc,
are required to be central to preserving
biodiversity, not simply their knowledge,
innovations and practices. Integrating
women's concerns also remains an issue
that needs attention. In the villages in
Uttarakhand women were denied an
all-female BMC because it deemed to be
legally impermissible.
The BD Act so far only requires consul-
tation with local communities, not their
full or free PIC. BMCs have not breathed life
into the idea of a grass-roots democracy.
They are still to become the authorities
on decision-making on local resources
as prescribed by both the BD Act and CBD.
Till the Act delivers, people require the
immediate benet of the living resources
and intellectual heritage through which
they get by. However, in the current devel-
opment model, communities are being
forced to move or migrate from their lands.
With such shifting populations, who will
constitute the BMC and who are local
communities are fundamental questions
that confront the administration.
Given the law and the reality in which
it operates, the question is whether the BD
Act will come anywhere near to effect-
ing biodiversity justice in the next 10
years, or will our most biodiversity-rich
areas and peoples from them continue to
remain in poverty.
Notes
1 National Biodiversity Authority (Salary, Allow-
ances and Conditions of Service of Chairperson
and Other Members) Rules, 2003; about NBA
http://nbaindia.org/content/16/14//introduc-
tion.html
2 http://nbaindia.org/link/241/34//SBBs.html
Barring Bihar and J&K, all other states in India
have an SBB at least on paper.
3 http://nbaindia.org/content/20/35//bmc.html
4 Proposed Nagaland Biological Diversity Rules,
2011.
5 http://nbaindia.org/content/21/18//commit-
tees.html
6 Launch of CEBPOL, http://nbaindia.org/blog/
466/47//LaunchofCenterfor.html
7 First meeting of SBBs in the NE Region, 4-5
May 2012, Shillong, Meghalaya, http://nbaindia.
org/blog/469/47//TheFIRSTMeetingof.html
8 Article 15 of the Convention on Biological Diversity.
9 Article 15(7) of the Convention.
10 Sections 3, 4, 5, 6 and 7 of the Chapter on Reg-
ulation of Access to Biological Diversity in the
BD Act came into effect only from 1 July 2004.
11 Section 41(2) of the BD Act.
12 Minutes of the fourth meeting of the NBA held
on 6 October 2005 at Port Blair. http://nbain-
dia.org/uploaded/docs/fourth_meeting.pdf
13 Agreements signed by the applicant with NBA
(MAT), http://nbaindia.org/text/19/Statusap-
provalsagreementsigned.html
14 The Nagoya Protocol on Access to Genetic Re-
sources and the Fair and Equitable Sharing of
Benets Arising from their Utilisation to the
Convention on Biological Diversity is an inter-
national agreement under the CBD. http://
www.cbd.int/abs/
15 Application reference no: F. No. 9-68/2005 dis-
cussed at the fth meeting of the NBA on 20

January 2006.
16 Section 18(4) of the BD Act.
17 http://www.nbaindia.org/approvals/agree-
ment_signed_total_form3.htm
18 Section 3 (p) of the Patent Act.
19 Proposed Section 2(6) of the Nagaland Biologi-
cal Diversity Rules, 2011.
20 Section 36(5) of the BD Act.
21 Section 36 of the BD Act.
22 http://nbaindia.org/content/106/29//bhs.html
23 Section 40 of the BD Act.
24 Report of national consultation on normally
traded commodities http://nbaindia.org/
blog/504/1/Reportof.html
References
Kalpavriksh and GRAIN (2009): Six Years of the
Biological Diversity Act in India, Kalpavriksh
and GRAIN, Delhi/ Pune.
Kohli, Kanchi and Shalini Bhutani (2011): Chasing
Benets: A Post-Nagoya Protocol View on Access
and Benet Sharing, brieng paper, Kalpa-
vriksh and World Wide Fund for Nature, Pune.
Shalini Bhutani (2012): Prized or Priced: Protec-
tion of Indias Traditional Knowledge Related to
Biological Resources and Intellectual Property,
brieng paper (Delhi: WWF-India).