MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New
Delhi, the 5th February, 2003/Magha
16, 1924 (Saka)
The
following Act of Parliament received the assent of the President on
the 5th February, 2003,
and is hereby published for general information:
THE BIOLOGICAL DIVERSITY ACT, 2002
No. 18 OF 2003
[5th February, 2003]
An
Act to provide for conservation of biological diversity, sustainable
use of its components and fair and equitable sharing of the benefits
arising out of the use of biological resources, knowledge and for matters
connected therewith or incidental thereto.
WHEREAS
India
is rich in biological diversity and associated traditional and contemporary
knowledge system relating thereto.
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 the said Convention came into force on the 29th December, 1993;
AND
WHEREAS the said Convention reaffirms the sovereign rights of the States
over their biological resources;
AND
WHEREAS the said Convention has the main objective of conservation of
biological diversity, sustainable use of its components and fair and
equitable sharing of the benefits arising out of utilization of genetic
resources;
AND
WHEREAS it is considered necessary to provide for conservation, sustainable
utilization and equitable sharing of the benefits arising out of utilization
of genetic resources and also to give effect to the said Convention.
BE
it enacted by Parliament in the Fifty‑third Year of the Republic
of India
as follows:–
CHAPTER - I
Preliminary
1. Short title, extent and commencement
(1) This Act may be called the Biological Diversity Act, 2002.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint:
Provided
that different dates may be appointed for different provisions of this
Act and any reference in any such provision to the commencement of this
Act shall be construed as a reference to the coming into force of that
provision.
2. Definitions
In
this Act, unless the context otherwise requires,–
(a) "benefit claimers" means the conservers of biological
resources, their byproducts, creators and holders of knowledge and information
relating to the use of such biological resources, innovations and practices
associated with such use and application;
(b) "biological diversity" means the variability among living
organisms from all sources and the ecological complexes of which they
are part, and includes diversity within species or between species and
of eco‑systems;
(c) "biological resources" means plants, animals and micro‑organisms
or parts thereof, their genetic material and by‑products (excluding
value added products) with actual or potential use or value, but does
not include human genetic material;
(d) "bio‑survey and bio‑utilization" means survey
or collection of species, subspecies, genes, components and extracts
of biological resource for any purpose and includes characterization,
inventorisation and bioassay;
(e) "Chairperson" means the Chairperson of the National
Biodiversity Authority or, as the case may be, of the State Biodiversity
Board;
(f) "commercial utilization" means end uses of biological
resources for commercial utilization such as drugs, industrial enzymes,
food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours,
extracts and genes used for improving crops and livestock through genetic
intervention, but does not include conventional breeding or traditional
practices in use in any agriculture, horticulture, poultry, dairy farming,
animal husbandry or bee keeping;
(g) "fair and equitable benefit sharing" means sharing of
benefits as determined by the National Biodiversity Authority under
section 2 1;
(h) "local bodies" means Panchayats and Municipalities,
by whatever name called, within the meaning of clause (1) of article
243B and clause (1) of article 243Q of the Constitution and in the absence
of any Panchayats or Municipalities, institutions of self‑government
constituted under any other provision of the Constitution or any Central
Act or State Act;
(i) "member" means a member of the National Biodiversity Authority
or a State Biodiversity Board and includes the Chairperson;
(j) "National Biodiversity Authority" means the National Biodiversity
Authority established under section 8;
(k) "prescribed" means prescribed by rules made 1 under this
Act;
(l) "regulations" means regulations made under this Act;
(m) "research" means study or systematic investigation of any
biological resource or technological application, that uses biological
systems, living organisms or derivatives thereof to make or modify products
or processes for any use;
(n) "State Biodiversity Board" means the State Biodiversity Board
established under section 22;
(o) "sustainable use"
means the use of components of biological diversity in such manner and
at such rate that does not lead to the long‑term decline of the
biological diversity thereby maintaining its potential to meet the needs
and aspirations of present and future generations;
(p) "value added products" means products which may contain portions
or extracts of plants and animals in unrecognizable and physically inseparable
form.
CHAPTER - II
Regulation of Access
to Biological Diversity
Certain persons not to undertake
Biodiversity related activities without approval of National Biodiversity
Authority
3. (1)
No person referred to in sub‑section
(2) shall, without previous approval of the National Biodiversity Authority,
obtain any biological resource occurring in India or knowledge associated
thereto for research or for commercial utilization or for bio‑survey
and bio‑utilization.
(2) The persons who shall be required to take the approval of the
National Biodiversity Authority under sub‑section (1) are the
following, namely:
(a) a
person who is not a citizen of India;
(b) a
citizen of India,
who is a non‑resident as defined in clause (30) of section 2 of
the Income‑tax Act, 196 1;
(c) a
body corporate, association or organization-
(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.
Results of research not to be transferred
to certain persons without approval of National Biodiversity Authority
4. 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 non‑resident as defined in
clause (30) of section 2 of the Income‑tax Act, 1961 or a body
corporate or organization 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.
Sections 3 and 4 not to apply to
certain collaborative research projects
5.(1) The provisions of sections
3 and 4 shall not apply to collaborative research projects involving
transfer or exchange of biological resources or information relating
thereto between institutions, including Government sponsored institutions
of India, and such institutions in other countries, if such collaborative
research projects satisfy the conditions specified in sub‑section
(3).
(2) All collaborative research projects, other than those referred
to in sub‑section (1) which are based on agreements concluded
before the commencement of this Act and in force shall, to the extent
the provisions of agreement are inconsistent with the provisions of
this Act or any guidelines issued under clause (a) of sub‑section
(3), be void.
(3) For the purposes of sub‑section (1), collaborative research
projects shall-
(a) conform to the policy guidelines issued by the Central Government
in this behalf;
(b) be approved by the Central Government.
Application for intellectual property
rights not to be made without approval of National Biodiversity Authority
6.(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 seating of tile 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.
(2) The National Biodiversity Authority may, while granting the approval
under this section, impose benefit sharing fee or royalty or both or
impose conditions including the sharing of financial benefits arising
out of the commercial utilization of such rights.
(3) The provisions of this section shall not apply to any person making
an application for any right under any law relating to protection of
plant varieties enacted by Parliament.
(4) Where any right is granted under law referred to in sub‑section
(3), the concerned authority granting such right shall endorse a copy
of such document granting the right to the National Biodiversity Authority.
Prior intimation to State Biodiversity
Board for obtaining biological resource for certain purposes
7. No
person, who is a citizen of India or a body corporate, association or
organization which is registered in India, shall obtain any biological
resource for commercial utilization, or bio‑survey and bio‑utilization
for commercial utilization 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 practicing indigenous medicine.
CHAPTER - III
National Biodiversity
Authority
Establishment of National Biodiversity
Authority
8.(1)
With effect from such date as
the Central Government may, by notification in the Official Gazette,
appoint, there shall be established by the Central Government for the
purposes of this Act, a body to be called the National Biodiversity
Authority.
(2) The National Biodiversity Authority shall be a body corporate
by the name aforesaid, 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 the said name sue and be sued.
(3) The head office of the National Biodiversity Authority shall be
at Chennai and the National Biodiversity Authority may, with the previous
approval of the Central Government, establish offices at other places
in India.
(4) The National Biodiversity Authority shall consist of the following
members,
(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 know ledge‑holders of biological resources.
Conditions of service of Chairperson
and members
9. The term of office and
conditions of service of the Chairperson and the other members other
than ex officio members of the National Biodiversity
Authority shall be such as may be prescribed by the Central Government.
Chairperson to be Chief Executive
of National Biodiversity Authority
10. The Chairperson shall
be the Chief Executive of the National Biodiversity Authority and shall
exercise such powers and perform such duties, as may be prescribed.
Removal of members
11.
The
Central Government may remove from the National Biodiversity Authority
any member who, in its opinion, has-
(a) been
adjudged as an insolvent; or
(b) been
convicted of an offence which involves moral turpitude; or
(c) become
physically or mentally incapable of acting as a member; or
(d) so
abused his position as to render his continuance in office detrimental
to the public interest; or
(e) acquired
such financial or other interest as is likely to affect prejudicially
his functions as a member.
Meetings of National Biodiversity
Authority
12.
(1) The National Biodiversity Authority shall meet at such time and
place and shall observe such rules of procedure in regard to the transaction
of business at its meetings (including the quorum at its meetings) as
may be prescribed.
(2) The Chairperson of the National Biodiversity Authority shall preside
at the meetings of the National Biodiversity Authority.
(3) If for any reason the Chairperson is unable to attend any meeting
of the National Biodiversity Authority, any member of the National Biodiversity
Authority chosen by the members present at the meeting shall preside
at the meeting.
(4) All questions which come before any meeting of the National Biodiversity
Authority shall be decided by a majority of votes of the members present
and voting and in the event of equality of votes, the Chairperson or,
in his absence, the person presiding, shall have and exercise a second
or casting vote.
(5) Every member who is in any way, whether directly, indirectly or
personally, concerned or interested in a matter to be decided at the
meeting shall disclose the nature of his concern or interest and after
such disclosure, the member concerned or interested shall not attend
that meeting.
(6) No act or proceeding of the National Biodiversity Authority shall
be invalidated merely by reason of-
(a) any vacancy in, or any defect in the constitution of, the National
Biodiversity Authority; or
(b) any defect in the appointment of a person acting as a member;
or
(c) any irregularity in the procedure of the National Biodiversity
Authority not affecting the merits of the case.
Committees of National Biodiversity
Authority
13. (1) The National Biodiversity
Authority may constitute a committee to deal with agro‑biodiversity.
Explanation‑
For the purposes of this sub‑section, "agro‑biodiversity"
means biological diversity, of agriculture related species and their
wild relatives.
(2) Without prejudice to the provisions of sub‑section (1),
the National Biodiversity Authority may constitute such number of committees
as it deems fit for the efficient discharge of its duties and performance
of its functions under this Act.
(3) A committee constituted under this section shall co-opt such number
of persons, who are not the members of the National Biodiversity Authority,
as it may think fit and the persons so co‑opted shall have the
right to attend the meetings of the committee and take part in its proceedings
but shall not have the right to vote.
(4) The persons appointed as members of the committee under sub‑section
(2) shall be entitled to receive such allowances or fees for attending
the meetings of the committee as may be fixed by the Central Government.
Officers and employees of National
Biodiversity Authority
14.(1)
The National Biodiversity Authority may appoint such officers and other
employees as it considers necessary for the efficient discharge of its
functions under this Act.
(2) The terms and conditions of service of such officers and other
employees of the National Biodiversity Authority shall be such as may
be specified by regulations.
Authentication of orders and decisions
of National Biodiversity Authority
15. All orders and decisions of the National Biodiversity Authority
shall be authenticated by the signature of the Chairperson or any other
member authorized by the National Biodiversity Authority in this behalf
and all other instruments executed by the National Biodiversity Authority
shall be authenticated by the signature of an officer of the National
Biodiversity Authority authorized by it in this behalf.
Delegation of powers
16. The National Biodiversity Authority may, by general or special
order in writing, delegate to any member, officer of the National Biodiversity
Authority or any other person subject to such conditions, if any, as
may be specified in the order, such of the powers and functions under
this Act (except the power to prefer an appeal under section 50 and
the power to make regulations under section 64) as it may deem necessary.
Expenses of National Biodiversity
Authority to be defrayed out of the Consolidated Fund of India
17.
The
salaries and allowances payable to the members and the administrative
expenses of the National Biodiversity Authority including salaries,
allowances and pension payable to, or in respect of, the officers and
other employees of the National Biodiversity Authority shall be defrayed
out of the Consolidated Fund of India.
CHAPTER - IV
Functions and Powers of the National
Biodiversity Authority
Functions and powers of National
Biodiversity Authority
18.(1)
It shall be the duty of the National Biodiversity Authority to regulate
activities referred to in sections 3, 4 and 6 and by regulations issue
guidelines for access to biological resources and for fair and equitable
benefit sharing.
(2) The
National Biodiversity Authority may grant approval for undertaking any
activity referred to in sections 3, 4 and 6.
(3) The National Biodiversity Authority may-
(a) advise the Central Government on matters relating to the conservation
of biodiversity, sustainable use of its components and equitable sharing
of benefits arising out of the utilization of biological resources;
(b) advise the State Governments in the selection of areas of biodiversity
importance to be notified under sub‑section (1) of section 37
as heritage sites and measures for the management of such heritage sites;
(c) perform such other functions as may be necessary to carry out
the provisions of this Act.
(4) 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.
CHAPTIER - V
Approval by the National
Biodiversity Authority
Approval by National Biodiversity
Authority for undertaking certain activities
19.(1)
Any person referred. to in sub‑section (2) of section 3 who intends
to obtain any biological resource
occurring in India or knowledge associated thereto for research or for
commercial utilization or for bio‑survey and bio‑utilization
or transfer the results of any research relating to biological resources
occurring in, or obtained from, India, shall make application in such
form and payment of such fees as may be prescribed, to the National
Biodiversity Authority.
(2) Any person who intends to apply for a patent or any other form
of intellectual property protection whether in India or outside India
referred to in sub‑section (1) of section 6, may make an application
in such form and in such manner as may be prescribed to the National
Biodiversity Authority.
(3) On receipt of an application under sub‑section (1) or sub‑section
(2), the National Biodiversity Authority may, after making such enquiries
as it may deem fit and if necessary after consulting an expert committee
constituted for this purpose, by order, grant approval subject to any
regulations made in this behalf and subject to such terms and conditions
as it may deem fit, including the imposition of charges by way of royalty
or for reasons to be recorded in writing, reject the application:
Provided that no such order for rejection
shall be made without giving an opportunity of being heard to the person
affected.
(4) The National Biodiversity Authority shall give public notice of
every approval granted by it under this section.
Transfer of biological resource
or knowledge
20.(1) No person who has been granted
approval under section 19 shall transfer any biological resource or
knowledge associated thereto which is the subject matter of the said
approval except with the permission of the National Biodiversity Authority.
(2) Any person who intends to transfer any biological resource or
knowledge associated thereto referred to in sub‑section (1) shall
make an application in such form and in such manner as may be prescribed
to the National Biodiversity Authority.
(3) On receipt of an application under sub‑section (2), the
National Biodiversity Authority may, after making such enquiries as
it may deem fit and if necessary after consulting an expert committee
constituted for this purpose, by order, grant approval subject to such
terms and conditions as it may deem fit, including the imposition of
charges by way of royalty or for reasons to be recorded in writing,
reject the application:
Provided that no such order for rejection
shall be made without giving an opportunity of being heard to the person
affected.
(4) The National Biodiversity Authority shall give public notice of
every approval granted by it under this section.
Determination of equitable benefit
sharing by National Biodiversity Authority
21.(1)
The National Biodiversity Authority shall while granting approvals under
section 19 or section 20 ensure that the terms and conditions subject
to which approval is granted secures equitable sharing of benefits arising
out of the use of accessed biological resources, their by‑products,
innovations and practices associated with their use and applications
and knowledge relating thereto in accordance with mutually agreed terms
and conditions between the person applying for such approval, local
bodies concerned and the benefit claimers.
(2) The National Biodiversity Authority shall, subject to any regulations
made in this behalf, determine the benefit sharing which shall be given
effect in all or any of the following manner, namely:
(a) grant of joint ownership of intellectual property rights to the
National Biodiversity Authority, or where benefit claimers are identified,
to such benefit claimers;
(b) transfer of technology;
(c) location of production, research and development units in such
areas which will facilitate better living standards to the benefit claimers;
(d) association of Indian scientists, benefit claimers and the local
people with research and development in biological resources and bio‑survey
and bio‑utilization;
(e) setting up of venture capital fund for aiding the cause of benefit
claimers;
(f) payment of monetary compensation and non‑monetary benefits
to the benefit claimers as the National Biodiversity Authority may deem
fit.
(3) Where any amount of money is ordered by way of benefit sharing,
the National Biodiversity Authority may direct the amount to be deposited
in the National Biodiversity Fund:
Provided that where biological resource or
knowledge was a result of access from specific individual or group of
individuals or organizations, the National Biodiversity Authority may
direct that the amount shall be paid directly to such individual or
group of individuals or organizations in accordance with the terms of
any agreement and in such manner as it deems fit.
(4) For the purposes of this section, the National Biodiversity Authority
shall, in consultation with the Central Government, by regulations,
frame guidelines.
CHAPTER - VI
State Biodiversity Board
Establishment of State Biodiversity
Board
22.(1)
With effect from such date as the State Government may, by notification
in the Official Gazette, appoint in this behalf, there shall be established
by that Government for the purposes of this Act, a Board for the State
to be known as the (name of the State) Biodiversity Board.
(2) Notwithstanding anything contained in this section, no State Biodiversity
Board shall be constituted for a Union territory and in relation to
a Union territory, the National Biodiversity Authority shall exercise
the powers and perform the functions of a State Biodiversity Board for
that Union territory:
Provided that in relation to any Union territory,
the National Biodiversity Authority may delegate all or any of its powers
or functions under this sub‑section to such person or group of persons
as the Central Government may specify.
(3) The Board shall be a body corporate by the name aforesaid, 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 the said name sue and he sued.
(4) 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 he 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.
(5) The head office of the State Biodiversity Board shall be at such
place as the State Government may, by notification in the Official Gazette,
specify.
Functions of State Biodiversity
Board
23.
The
functions of the State Biodiversity Board shall be to–
(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 utilization of biological resources;
(b) regulate by granting of approvals or otherwise requests for commercial
utilization or bio‑survey and bio‑utilization of any biological
resource by Indians;
(c) perform such other functions as may he necessary to carry out
the provisions of this Act or as may be prescribed by the State Government.
Power of State Biodiversity Board
to restrict certain activities
24.(1)
Any citizen of India or a body corporate, organization or association
registered in India intending to undertake any activity referred to
in section 7 shall give prior intimation in such form as may be prescribed
by the State Government to the State Biodiversity Board.
(2) On receipt of an intimation under sub‑section (1), the State
Biodiversity Board may, in consultation with the local bodies concerned
and after making such enquires as it conservation, 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:
Provided that no such order shall be made
without giving an opportunity of being heard to the person affected.
(3) Any 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.
Provisions of sections 9 to 17 to
apply with modifications to State Biodiversity Board
25. The provisions of sections
9 to 17 shall apply to a State Biodiversity Board and shall have effect
subject to the following modifications, namely:
(a) references to the Central Government shall be construed as references
to the State Government;
(b) references to the National Biodiversity Authority shall be construed
as references to the State Biodiversity Board;
Provisions of sections 9 to 17 to apply with
modifications to State Biodiversity Board.
(c) reference to the Consolidated Fund of India shall be construed
as reference to the Consolidated Fund of the State.
CHAPER - VII
Finance, Accounts and Audit of National
Biodiversity Authority
Grants or loans by the Central Government
26. The Central Government may, after due appropriation made by Parliament
by law in this behalf, pay to the National Biodiversity Authority by
way of grants or loans such sums of money as the Central Government
may think fit for being utilized for the purposes of this Act.
Constitution of National Biodiversity
Fund
27.(1)
There shall be constituted a Fund to be called the National Biodiversity
Fund and there shall be credited thereto ‑‑
(a) any grants and loans made to the National Biodiversity Authority
under section 26;
(b) all charges and royalties received by the National Biodiversity
Authority under this Act; and
(c) all sums received by the National Biodiversity Authority from
such other sources as may be decided upon by the Central Government.
(2) The Fund shall be applied for–
(a) channeling benefits to the benefit claimers;
(b) conservation and promotion of biological resources and development
of areas from where such biological resources or knowledge associated
thereto has been accessed;
(c) socio‑economic development of areas referred to in clause
(b) in consultation with the local bodies concerned.
Annual report of National Biodiversity
Authority
28.
The
National Biodiversity Authority shall prepare, in such form and at such
time each financial year as may be prescribed, its annual report, giving
a full account of its activities during the previous financial year
and furnish, to the Central Government, before such date as may be prescribed,
its audited copy of accounts together with auditors report thereon.
Budget accounts and audit
29.(1)
The National Biodiversity Authority shall prepare a budget, maintain
proper accounts and other relevant records (including the accounts and
other relevant records of the National
Biodiversity Fund) and prepare an annual statement of account in such
form as may be prescribed by the Central Government in consultation
with the Comptroller and Auditor‑General of India.
(2) The accounts of the National Biodiversity Authority shall be audited
by the Comptroller and Auditor‑General of India at such intervals
as may be specified by him and any expenditure incurred in connection
with such audit shall be payable by the National Biodiversity Authority
to the Comptroller and Auditor‑General of India.
(3) The Comptroller and Auditor‑General of India and any other
person appointed by him in connection with the audit of the accounts
of the National Biodiversity Authority shall have the same rights and
privileges and authority in connection with such audit as the Comptroller
and Auditor‑General generally has in connection with the audit
of the Government accounts and, in particular, shall have the right
to demand the production of books, accounts, connected vouchers and
other documents and papers and to inspect any of the offices of the
National Biodiversity Authority.
(4) The accounts of the National Biodiversity Authority as certified
by the Comptroller and Auditor‑ General of India or any other
person appointed by him in this behalf together with the audit report
thereon shall be forwarded annually to the Central Government.
Annual Report to be laid before
parliament
30.
The
Central Government shall cause the annual report and auditor's report
to be laid, as soon as may be after they are received, before each House
of Parliament.
CHAPTER - VIII
Finance, Accounts and
Audit of State Biodiversity Board
Grants of money by State Government
to State Biodiversity Board
31. The State Government
may, after due appropriation made by the State Legislature by law in
this behalf, pay to the State Biodiversity Board by way of grants or
loans such sums of money as the State Government may think fit for being
utilized for the purposes of this Act.
Constitution of State Biodiversity
Fund
32.(1)
There shall be constituted a Fund to be called the State Biodiversity
Fund and there shall be credited thereto‑
(a) any grants and loans made to the State Biodiversity Board under
section 31;
(b) any grants or loans made by the National Biodiversity Authority;
(c) all sums received by the State Biodiversity Board from such other
sources as may be decided upon by the State Government.
(2) The State Biodiversity Fund shall be applied for‑
(a) the management and conservation of heritage sites;
(b) compensating or rehabilitating any section of the people economically
affected by notification under sub‑section (1) of section 37;
(c) conservation and promotion of biological resources;
(d) socio‑economic development of areas from where such biological
resources or knowledge associated thereto has been accessed subject
to any order made under section 24, in consultation with the local bodies
concerned;
(e) meeting the expenses incurred for the purposes authorized by this
Act.
Annual report of State Biodiversity
Board
33.
The State Biodiversity Board
shall prepare, in such form and at such time in each financial year
as may be prescribed, its annual report, giving a full account of its
activities during the previous financial year, and submit a copy thereof
to the State Government.
Audit of accounts of State Biodiversity
Board
34.
The
accounts of the State Biodiversity Board 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, before such date as may be prescribed, its
audited copy of accounts together with auditor's report thereon.
Annual Report of State Biodiversity
Board to be laid before State Legislature
35.
The
State Government shall cause the annual report and auditor's report
to be laid, as soon as may be after they are received, before the House
of State Legislature.
CHAPTER - IX
Duties of the Central
and the State Governments
Central Government to develop National
strategies plans. Etc., for conservation, etc., of biological diversity
36.(1) The Central Government shall develop national
strategies, plans, programmes for the conservation and promotion and
sustainable use of biological diversity including measures for identification
and monitoring of areas rich in biological resources, promotion of in situ, and ex situ, conservation of biological resources, incentives for research,
training and public education to increase awareness with respect to
biodiversity.
(2) Where the Central Government has reason to believe that any area
rich in biological diversity, biological resources and their habitats
is being threatened by overuse, abuse or neglect, it shall issue directives
to the concerned State Government to take immediate ameliorative measures,
offering such State Government any technical and other assistance that
is possible to be provided or needed.
(3) The Central Government shall, as far as practicable wherever it
deems appropriate, integrate the conservation, promotion and sustainable
use of biological diversity into relevant sectoral or cross‑sectoral
plans, programmes and policies.
4) The Central Government shall undertake measures,-
(i) wherever necessary, for assessment of environmental impact of
that project which is likely to have adverse effect on biological diversity,
with a view to avoid or minimize such effects and where appropriate
provide for public participation in such assessment;
(ii) to regulate, manage or control the risks associated with the
use and release of living modified organisms resulting from biotechnology
likely to have adverse impact on the conservation and sustainable use
of biological diversity and human health.
(5) The Central Government shall endeavour to respect and protect
the knowledge of local people relating to biological diversity, as recommended
by the National Biodiversity Authority through such measures, which
may include registration of such knowledge at the local, State or national
levels, and other measures for protection, including sui
generis system.
Explanation:-For
the purposes of this section,–
(a) "ex situ conservation”
means the conservation of components of biological diversity outside
their natural habitats;
(b) "in situ conservation"
means the conservation of ecosystems and natural habitats and the maintenance
and recovery of viable populations of species in their natural surroundings
and, in the case of domesticated or cultivated species, in the surroundings
where they have developed their distinctive properties.
Biodiversity heritage sites
37.(1)
Without prejudice to any other law for the time being in force, the
State Government may, from time to time in consultation with the local
bodies, notify in the Official Gazette, areas of biodiversity importance
as biodiversity heritage sites under this Act.
(2) The State Government, in consultation with the Central Government,
may frame rules for the management and conservation of all the heritage
sites.
(3) The State Government shall frame schemes for compensating or rehabilitating
any person or section of people economically affected by such notification.
Power of Central Government to notify
threatened species
38.
Without prejudice to the
provisions of any other law for the time being in force, the Central
Government, in consultation with the concerned State Government, may
from time o time notify any species which is on the verge of extinction
or likely to become extinct in the near future as a threatened species
and prohibit or regulate collection thereof for any purpose and take
appropriate steps to rehabilitate and preserve those species.
Power of Central Government to designate
repositories
39.(1) The Central Government may, in consultation with
the National Biodiversity Authority, designate institutions as repositories
under this Act for different categories of biological resources.
(2) The repositories shall keep in safe custody the biological material
including voucher specimens deposited with them.
(3) Any new taxon discovered by any person shall be notified to the
repositories or any institution designated for this purpose and he shall
deposit the voucher specimens with such repository or institution.
Power of Central Government to exempt
certain biological resources
40.
Notwithstanding
anything contained in this Act, the Central Government may, in consultation
with the National Biodiversity Authority, by notification in the Official
Gazette, declare that the provisions of this Act shall not apply to
any items, including biological resources normally traded as commodities.
CHAPTER - X
Biodiversity Management
Committees
Constitution of Biodiversity Management
Committee
41.(1)
Every local body shall constitute a Biodiversity Management Committee
within its area for the purpose of promoting conservation, sustainable
use and documentation of biological diversity including preservation
of habitats, conservation of land races, folk varieties and cultivars,
domesticated stocks and breeds of animals and microorganisms and chronicling
of knowledge relating to biological diversity.
Explanation.‑
For the purposes of this sub‑section,–
(a) "cultivar" means a variety of plant that has originated
and persisted under cultivation or was specifically bred for the purpose
of cultivation;
(b) "folk variety" means a cultivated variety of plant that
was developed, grown and exchanged informally among farmers;
(c) “landrace” means primitive cultivar that was grown by ancient
farmers and their successors.
(2) The National Biodiversity Authority and the State Biodiversity
Boards shall consult the Biodiversity Management Committees while taking
any decision relating to the use of biological resources and knowledge
associated with such resources occurring within the territorial jurisdiction
of the Biodiversity Management Committee.
(3) The Biodiversity Management Committees may levy charges by way
of collection fees from any person for accessing or collecting any biological
resource for commercial purposes from areas falling within its territorial
jurisdiction.
CHAPTER - XI
Local, Biodiversity
Fund
Grants to Local Biodiversity Fund
42.
The
State Government may, after due appropriation made by State Legislature
by law in this behalf, pay to the Local Biodiversity Funds by way of
grants or loans such sums of money as the State Government may think
fit for being utilized for the purposes of this Act.
Constitution of Local Biodiversity
Fund
43.(1)
There shall be constituted a Fund to be called the Local Biodiversity
Fund at every area notified by the State Government where any institution
of self‑government is functioning and there shall be credited
thereto-
(a) any grants and loans made under section 42;
(b) any grants or loans made by the National Biodiversity Authority;
(c) any grants or loans made by the State Biodiversity Boards;
(d) fees referred to in sub‑section (3) of section 41 received
by the Biodiversity Management Committees;
(e) all sums received by the Local Biodiversity Fund from such other
sources as may be decided upon by the State Government.
Application of Local Biodiversity
Fund
44.(1)
Subject to the provisions of sub‑section (2), the management and
the custody of the Local Biodiversity Fund and the purposes for which
such Fund shall be applied, be in the manner as may be prescribed by
the State Government.
(2) The Fund shall be used for conservation and promotion of biodiversity
in the areas falling within the jurisdiction of the concerned local
body and for the benefit of the community in so far such use is consistent
with conservation of biodiversity.
Annual Report of Biodiversity Management
Committees
45.
The
person holding the custody of the Local Biodiversity Fund shall prepare,
in such form and during each financial year at such time as may be prescribed,
its annual report, giving a full account of its activities during the
previous financial year, and submit a copy thereof to the concerned
local body.
Audit of accounts of Biodiversity
Management Committees
46.
The accounts of the Local
Biodiversity Fund shall be maintained and audited in such manner as
may, in consultation with the Accountant‑General of the State,
be prescribed and the person holding the custody of the Local Biodiversity
Fund shall furnish, to the concerned local body, before such date as
may be prescribed, its audited copy of accounts together with auditor's
report thereon.
Annual report, etc, of the Biodiversity
Management Committee to be submitted to district Magistrate
47.
Every local body constituting
a Biodiversity Management Committee under sub‑section (1) of section
41, shall cause, the annual report and audited copy of accounts together
with auditor's report thereon referred to in sections 45 and 46, respectively
and relating to such Committee to be submitted to the District Magistrate
having jurisdiction over the area of the local body.
CHAPTER - XII
Miscellaneous
National Biodiversity Authority
to be bound by the directions given by Central Government
48.(1)
Without prejudice to the foregoing provisions of this Act, the National
Biodiversity Authority shall, in the discharge of its functions and
duties under this Act, be bound by such directions on questions of policy
as the Central Government may give in writing to it from time to time.
Provided that the National Biodiversity Authority
shall, as far as practicable, be given opportunity to express its views
before any direction is given under this sub‑section.
(2) The decision of the Central Government whether a question is one
of policy or not shall be final.
Power of State Government to give
Directions
49.(1)
Without prejudice to the foregoing provisions of this Act, the State
Biodiversity Board shall, in the discharge of its functions and duties
under this Act, be bound by such directions on questions of policy as
the State Government may give in writing to it from time to time:
Provided that the State Biodiversity Board
shall, as far as practicable, be given an opportunity to express its
views before any direction is given under this sub‑section.
(2) The decision of the State Government whether a question is one
of policy or not shall be final.
Settlement of disputes between State
Biodiversity Boards
50.(1)
If a dispute arises between the National Biodiversity Authority and
a State Biodiversity Board, the said Authority or the Board, as the
case may be, may prefer an appeal to the Central Government within such
time as ma be prescribed.
(2) Every appeal made under sub‑section (1) shall be in such
form as may be prescribed by the Central Government.
(3) The procedure for disposing of an appeal shall be such as may
be prescribed by the Central Government:
Provided that before disposing of an appeal,
the parties shall be given a reasonable opportunity of, being heard.
(4) If a dispute arises between the State Biodiversity Boards, the
Central Government shall refer the same to the National Biodiversity
Authority.
(5) While adjudicating any dispute under sub‑section (4), the
National Biodiversity Authority shall be guided by the principles of
natural justice and shall follow such procedure as may be prescribed
by the Central Government.
(6) The National Biodiversity Authority shall have, for the purposes
of discharging its functions under this section, the same powers as
are vested in a civil court under the Code of Civil Procedure, 1908
in respect of the following matters, namely–
(a) summoning and enforcing the attendance of any person and examining
him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions; dismissing an application for default
or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default
or any order passed by it ex parte;
(h) any other matter which may be prescribed.
(7) Every proceeding before the National Biodiversity Authority shall
be deemed to be a judicial proceeding within the meaning of sections
193 and 228, and for the purpose of section 196, of the Indian Penal
Code and the National Biodiversity Authority shall be deemed to be a
civil court for all the purposes of section 195 and Chapter XXV1 of
the Code of Criminal Procedure, 1973.
Members, officers, etc., of National
Biodiversity Authority and State Biodiversity Board deemed to be public
servants
51.
All members, officers and
other employees of the National Biodiversity Authority or the State
Biodiversity Board shall be deemed, when acting or purporting to act
in pursuance of any of the provisions, of this Act, to be public servants
within the meaning of section 21 of the Indian Penal Code.
Appeal
52.
Any person, aggrieved by
any determination of benefit sharing or order of the National Biodiversity
Authority or a State Biodiversity Board under this Act, may file an
appeal to t ' he High Court within thirty days from the date of communication
to him, of the determination or order of the National Biodiversity Authority
or the State Biodiversity Board, as the case may be:
Provided that the High Court may, if it is
satisfied that the appellant was prevented by sufficient cause from
filing the appeal‑within the said period, allow it to be filed
within a further period not exceeding sixty days.
Execution of determination or order
53.
Every determination of benefit
sharing or order made by the National Biodiversity Authority or a State
Biodiversity Board under this 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.
Explanation.‑
For the purposes of this section and section 52, the expression “State
Biodiversity Board" includes 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.
Protection of action taken in good
faith
54.
No suit, prosecution or other
legal proceedings shall lie against the Central Government or the State
Government or any officer of the Central Government or the State Government
or any member, officer or employee of the National Biodiversity Authority
or the State Biodiversity Board for anything which is in good faith
done or intended to he done under this Act or the rules or regulations
made thereunder.
Penalties
55.(1)
Whoever contravenes or to 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 tend 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.
Penalty for contravention of directions
or orders of Central government, State government, National Biodiversity
Authority and State Biodiversity Boards
56.
If
any person contravenes any direction given or order made by the Central
Government, the State Government, the National Biodiversity Authority
or the State Biodiversity Board for which no punishment has been separately
provided under this Act, he shall be punished with a fine which may
extend to one lakh rupees and in case of a second or subsequent offence,
with fine which may extend to two lakh rupees and in the case of continuous
contravention with additional fine which may extend to two lakh rupees
everyday during which the default continues.
Offences by companies
57.(1)
Where an offence or contravention under this Act has been committed
by a company, every person who at the time the offence or contravention
was committed was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence or contravention and shall
be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub‑section
shall render any such person liable to any punishment provided in this
Act, if he proves that the offence or contravention was committed without
his knowledge or that he had exercised all due diligence to prevent
the commission of such offence or contravention.
(2) Notwithstanding anything contained in sub‑section (1), where
an offence or contravention under this Act has been committed by a
company and it is proved that the offence or contravention has been
committed with the consent or connivance of, or is attributable to,
any neglect on the part of any director, manager, secretary or other
officer of the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of the offence or contravention and
shall be liable to be proceeded against and punished accordingly.
Explanation.
‑For the purposes of this section,–
(a) "company" means any body corporate and includes a firm
or other association of individuals; and
(b) "director", in relation to a firm, means a partner in
the firm.
Offences to be cognizable and non‑bailable
58.
The offences under this Act
shall be cognizable and non‑bailable.
Act to have effect in addition to
other Acts
59.
The provisions of this Act
shall be in addition to, and not in derogation of, the provisions in
any other law, for the time being in force, relating to forests or wildlife.
Power of Central Government to giver
directions to State Government
60.
The Central Government may
give directions to any State Government as to the carrying into execution
in the State of any of the provisions of this Act or of any rule or
regulation or order made thereunder.
Cognizance of offences
61. 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 authorized
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
authorized as aforesaid.
Power of Central Government to make
rules
62.(1) The Central Government may'
by notification in the Official Gazette, make rules for carrying out
the purposes of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for A or any of the following
matters, namely:–
(a) terms and conditions of service of the Chairperson and members
under section 9;
(b) powers and duties of the Chairperson under section 10;
(c) procedure under sub‑section (1) of section 12 in regard
to transaction of business at meetings,
(d) form of application and payment of fees for undertaking certain
activities under sub-section (1) of section 19;
(e) the form and manner of making an application under sub‑section
(2) of section 19;
(f) form of application and the manner for transfer of biological
resource or knowledge under sub‑section (2) of section 20;
(g) form in which, and the time of each financial year at which, the
annual report of the National Biodiversity Authority shall be prepared
and the date before which its audited copy of accounts together with
auditor's report thereon shall be furnished under section 28;
(h) form in which the annual statement of account shall be prepared
under subsection (1) of section 29;
(i) the time within which and the form in which, an appeal may be
preferred, the procedure for disposing of an appeal and the procedure
for adjudication, under section 50;
(j) the additional matter in which the National Biodiversity Authority
may exercise powers of the civil court under clause (h) of sub‑section
(6) of section 50;
(k) the manner of giving notice under clause (b) of section 61;
(1) any other matter which is to be, or may be,
prescribed, or in respect of which provision is to be made, by rules.
(3) Every rule made under this section and every regulation made under
this Act shall be laid, as soon as may he after it is made, before each
House of Parliament, while it Is in session or a total period of thirty
days which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following.
The session or the successive sessions aforesaid, both Houses agree
in making any modification in the rule or regulation or both Houses
agree that the rule or regulation should not be made, the rule or regulation
shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything
previously done under that rule or regulation.
Power of State Government to make
rules
63.(1)
The State Government may, by notification in the Official Gazette, make
rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may provide for all or
any of the following matters, namely:–
(a) the other functions to be performed by the State Biodiversity
Board under clause (c) of section 23;
(b) the form in which the prior intimation shall be given under sub‑section
(1) of section 24;
(c) the form in which, and the time of each financial year at which,
the annual report shall be prepared under section 33;
(d) the manner of maintaining and auditing the accounts of the State
Biodiversity Board and the date before which its audited copy of the
accounts together with auditor's report thereon shall be furnished under
section 34;
(e) management and conservation of national heritage sites under section
37;
(f) the manner of management and custody of the Local Biodiversity
Fund and the purposes for which such Fund shall be applied under sub‑section
(1) of section 44;
(g) the form of annual report and the time at which such report shall
be prepared during each financial year under section 45;
(h) the manner of maintaining and auditing the accounts of the Local
Biodiversity Fund and the date before which its audited copy of the
accounts together with auditor's report thereon shall be furnished under
section 46;
(i) any other matter which is to be, or may be, specified.
(3) Every rule made by the State Government under this section shall
he laid, as soon as may be after it is made, before each House of the
State Legislature where it consists of two Houses, or where such Legislature
consists of one House, before that House.
Power of remove difficulties
64.
The National Biodiversity
Authority shall, with the previous approval of the Central Government,
by notification in the Official Gazette, make regulations for carrying
out the purposes of this Act.
Power to remove difficulties
65.(1)
If any difficulty arises in giving effect to the provisions of this
Act, the Central Government may, by order, not inconsistent with the
provisions of this Act, remove the difficulty:
Provided that no such order shall be made
after the expiry of a period of two years from the commencement of this
Act.
(2) Every order made under this section shall be laid, as soon as
may be, after it is made, before each House of Parliament.
SUBHASH C. JAIN
Secretary
to the Government of India