S
Sahaj Vidhi
Law Optional 2020 Paper II

Discuss the access and benefit sharing (ABS) law provided under the Biodiversity Conservation Act, 2002 with special reference to adjudication of biodiversity disputes and jurisdiction of the National Green Tribunal.

Verified Answer

  1. Core Legal Answer & Context: The Biodiversity Conservation Act, 2002 (BCA) in India operationalizes the principles of the Convention on Biological Diversity (CBD), particularly regarding Access and Benefit Sharing (ABS). The core idea of ABS is that those who access genetic resources and associated traditional knowledge from a country must share the benefits arising from their utilization with the providers of those resources and knowledge. The BCA establishes a three-tiered institutional structure: the National Biodiversity Authority (NBA) at the national level, State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at the local level. These bodies are responsible for regulating access to biological resources and traditional knowledge, and for ensuring equitable benefit sharing. Benefits can be monetary (e.g., royalties, fees) or non-monetary (e.g., technology transfer, capacity building). The Act aims to prevent biopiracy and ensure that local communities, who often conserve and maintain biodiversity, receive a fair share of the benefits derived from their resources.

  2. Relevant Statutes and Sections:

  • Biodiversity Conservation Act, 2002:
    • Section 3: Regulates access to biological resources by foreign entities.
    • Section 6: Requires prior approval from NBA for applying for intellectual property rights based on biological resources obtained from India.
    • Section 7: Regulates access by Indian citizens for commercial utilization.
    • Section 18: Outlines the functions of the NBA, including regulating access and benefit sharing.
    • Section 21: Deals with the determination of equitable benefit sharing.
    • Section 22: Establishes State Biodiversity Boards.
    • Section 41: Mandates the establishment of Biodiversity Management Committees.
  • National Green Tribunal Act, 2010:
    • Section 14: Confers jurisdiction on the NGT to hear all civil cases where a substantial question relating to the environment (including enforcement of any legal right relating to the environment) is involved.
    • Schedule I: Lists the enactments over which the NGT has jurisdiction, including the Biodiversity Conservation Act, 2002.
  1. Important Landmark Cases:
  • Divya Pharmacy v. Union of India (2018): The Uttarakhand High Court held that traditional knowledge associated with biological resources, even if codified in ancient texts, falls under the purview of the BCA, and commercial utilization requires compliance with ABS provisions. This case underscored the importance of benefit sharing with local communities.
  • M/s. Carborundum Universal Ltd. v. The National Biodiversity Authority (2020): The Madras High Court clarified the scope of 'commercial utilization' and the requirement of prior intimation/approval, emphasizing that even research leading to commercial products requires adherence to ABS principles.
  1. Clear Conclusion: The BCA, 2002, provides a robust legal framework for ABS, ensuring the conservation of biodiversity and equitable sharing of benefits. The NBA, SBBs, and BMCs are key institutions for its implementation. The National Green Tribunal (NGT) plays a crucial role in adjudicating disputes arising under the BCA, providing an accessible and specialized forum for environmental justice, thereby strengthening the enforcement of ABS principles and biodiversity protection in India.