Abstract
With the rapid growth of biotechnology and increasing demand for nature-based health remedies, access to biological resources and traditional knowledge has become a paramount necessity in the present context. The Convention on Biological Diversity and the Nagoya Protocol on Access and Benefit Sharing have rolled out legally binding obligations to the state parties. India being one of the pioneering parties in promoting access and benefit sharing (ABS) mechanism, has enacted the Biological Diversity Act (BD Act) to regulate the ABS process to conserve biodiversity and to protect the interests of traditional knowledge holders. The National Biodiversity Authority and the State Biodiversity Boards have taken several measures to implement the BD Act. The Biodiversity Management Committees have been set up at the local level in most of the states. Nevertheless, there are many compliance issues with the industry stakeholders and research institutions. Enforcement of the provisions of the BD Act need a fresh look to cope with the modern-day requirements of the law. The article focuses on the implementation and enforcement issues relating to the Biological Diversity Act in India.
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Notes
- 1.
The Convention on Biological Diversity (CBD) adopted at Rio de Janeiro on June 5, 1992, entered into force on Dec. 29, 1993, reprinted in 31 ILM 818 (1992). Almost all countries in the world (196 State Parties) are Party to the CBD except only Holy See (Vatican City) and the United States.
- 2.
See Article 1 of the CBD.
- 3.
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, 2010. www.cbd.int/abs/text/. Accessed 09 April 2022.There are 135 parties to the Nagoya Protocol as on 25 May 2022. 63 countries are the non-parties, these include Australia, Bangladesh, Canada, Columbia, Costa Rica, Italy, Jamaica, New Zealand, Nigeria, Russian Federation, Singapore, Sri Lanka, and the USA. Morocco and Saint Lucia have already ratified, and the Protocol has not yet come into force for them.
- 4.
Balakrishna Pisupati, Access and Benefit Sharing: Issues and Experiences from India, Jindal Global Law Review, (2015) 6(1):31.
- 5.
See the Compendium of all the notifications issued under the BD Act, http://nbaindia.org/uploaded/pdf/Compendium_Book.pdf.
- 6.
Section 8 of the BD Act.
- 7.
Writ Petition (M/S) No. 3437 of 2016, High Court of Uttarakhand, India; 2018 SCC Online Utt. 1035.
- 8.
Notification F. No. 28–5/2008-CS (NBA), dt. 17 Dec 2014, Ministry of Environment, Forests and Climate Change, Government of India.
- 9.
Section 5 of the Biological Diversity (Amendment) Bill, 2021.
- 10.
The term ‘codified traditional knowledge’ is being intruded in the definition of benefit claimers, section 4 relating to transfer of research results, and in section 7 of the Act.
- 11.
See section 3 of the Biological Diversity (Amendment) Bill, 2021 that substitutes a modified definition of ‘benefit claimers’ and section 6 of the same Bill that modifies section 4 of the BD Act.
- 12.
Section 6 of the Biological Diversity (Amendment) Bill, 2021.
- 13.
Section 8 of the Biological Diversity (Amendment) Bill, 2021.
- 14.
Section 9 of the Biological Diversity (Amendment) Bill, 2021.
- 15.
Section 39 of the Biological Diversity (Amendment) Bill, 2021.
- 16.
Section 38 of the Biological Diversity (Amendment) Bill, 2021 modifying section 55 of the BD Act.
- 17.
See Section 38 of the Biological Diversity (Amendment) Bill, 2021 introducing section 55A.
- 18.
Section 38 of the Biological Diversity (Amendment) Bill, 2021 introducing section 55B.
Acknowledgements
The author gratefully acknowledges the support provided by the Institution of Eminence, University of Delhi under the FRP that helped in developing this research article.
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Lakshmanan, P.K. (2022). The Biological Diversity Act and Enforcement: Challenges in India. In: Oommen, O.V., Laladhas, K.P., Nelliyat, P., Pisupati, B. (eds) Biodiversity Conservation Through Access and Benefit Sharing (ABS). Springer, Cham. https://doi.org/10.1007/978-3-031-16186-5_13
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