A
BRIEF OUTLINE OF THE PROPOSED BIOLOGICAL DIVERSITY ACT
Ministry
of Environment and Forests
Government
of India
October
1998
(Although
discussed and agreed upon on 26 October, yet to be officially released)
The
additions to earlier version are printed in bold and italics.
1.
PREAMBLE
Whereas
India is rich in biological diversity and traditional knowledge system, and
hence has to take steps towards its conservation and sustainable utilisation;
And
Whereas India is 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 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 give effect to the said Convention.
2.
TITLE
The
title of the Act shall be Biological Diversity Act, 1998.
An
Act to provide for conservation of biological diversity, the sustainable use
of its components and the equitable sharing of benefits arising out of the
use of biological resources.
3.
DEFINITIONS
"Equitable
Benefit Sharing" means the sharing of benefits mutually agreed upon the National
Authority, where relevant, local bodies, individuals and the applicant for
the accessed biological resources, their byproducts, knowledge, innovations
and practices with their use and application.
(i)
"Biological Diversity" means the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic ecosystems
and the ecological complexes of which they are part; this includes diversity
within species, between species and of ecosystems.
(ii)
"Biological Resources" means plants, animals and micro-organisms, or parts
thereof, and their genetic material and byproducts, with actual or potential
use or value, but does not include human genetic material.
(iii)
"Bioprospecting" means survey or/ and collection of species, sub-species,
genes, compounds and extracts of biological resource for any purpose and includes
characterization, inventorisation and bioassay.
(iv)
"By-product" means a compound, molecule or any extract of a living or dead
organism resulting from any metabolic process.
(v)
"Convention on Biological Diversity" means the international treaty related
to conservation and sustainable use of biological diversity signed during
the United Nations Conference on Environment and Development held in Rio de
Janeiro in Brazil in June 1992 and which came into force with effect from
29th December 1993.
(vi)
"Ex-situ Conservation" means the conservation of components of biological
diversity outside their natural habitats.
(vii)
"Genetic Material" means any material of plant, animal, microbial or other
origin containing functional units of heredity including genetic material
contained in soil and sediment.
"Heritage
sites" means areas important from the standpoint of biological diversity notified
under the present Act by the State Government.
(viii)
"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.
(ix)
"National Authority" means the National Biodiversity Authority established
under this Act.
"Prior
Informed Consent (PIC)" means the consent of the National Authority for granting
access to biological resources and/or knowledge related thereto, based on
the information provided by the applicant, disclosing fully the intent of
the access, before access is granted.
(X)
"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.
(xi)
"Rules" means the rules framed under the Act.
(xii)
"State Biodiversity Board" means the State Biodiversity Board established
under this Act.
(xiii)
"Sustainable Use" means the use of components of biological diversity in a
way and at a rate that does not lead to the long-term decline of biological
diversity, thereby maintaining its potential to meet the needs and aspirations
of present and future generations.
(xiv)
"Threatened Species" means species that are in immediate danger of extinction
or likely to become extinct or at the risk of becoming extinct in the near
future as notified by the Central Government from time to time.
(xv)
"Voucher Specimen" means a reference sample.
4.
THE NATIONAL BIODIVERSITY AUTHORITY
A
National Biodiversity Authority shall be established by the Central Government
with head quarters at Delhi. The Authority may be composed of a Chairperson
who shall be an eminent person to be appointed by the Central Government;
five ex-officio members who shall represent Ministries/ Departments of the
Central Government of whom one each shall be from the Ministry of Environment
and Forests, Department of Agricultural Research and Education, Department
of Biotechnology and Department of Ocean Development; five non-official members
to be appointed from amongst specialist, scientists conversant with 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; conserves of biological resources, creators and holders of knowledge
and information relating to the use of biological resources, with due regards
to gender representation;
(ii)
Central Government may remove from office, the Chairperson or any member,
who
(a) has been
adjudged as insolvent; or
(b) has been
convicted of an offence which, in the opinion of the Central Government involves
moral turpitude; or
(c) has become
physically or mentally incapable of acting as a member; or
(d) has acquired
such financial or other interest as is likely to affect prejudicially his
functions as a member; or
(e)
has so abused his position as to render his continuance in office prejudicial
to the public interests.
(iii)
The terms and conditions of service of the Chairperson and the members and
their salaries and allowances shall be prescribed by Rules.
5.
COMMITTEES OF THE NATIONAL AUTHORITY
The
National Authority may appoint such committees as may be necessary for discharging
its functions. These committees shall have representation from concerned Biodiversity
Management Committee in local bodies. In addition to nominated members on
these committees, members will be co-opted in accordance with the requirements
of the work. The co-opted members will be active members of the committees
except that they will not have any right to vote.
6.
OFFICERS AND EMPLOYEES OF THE NATIONAL AUTHORITY
Subject to the
previous approval of the Central Government the National Authority may appoint
such
number of officers and employees as may be necessary. The terms and conditions
and other conditions of service shall be prescribed by the Rules.
7.
CERTAIN EXPENSES TO BE MET FROM THE CONSOLIDATED FUND OF INDIA
The salaries
and allowances of the Chairperson, members and other officers and employees
of
the
National Authority and other administrative expenses of the National Authority
shall be defrayed out of the Consolidated Fund of India.
8.
FUNCTIONS OF THE NATIONAL AUTHORITY
The
National Authority shall grant approvals for undertaking activities referred
to in section 11 and frame guidelines for access and benefit sharing. Further
it shall also advise the Central Government on:
(i) matters relating
to the conservation of biological diversity, sustainable use of its components
and equitable sharing of the benefits arising out the utilisation of biological
resources;
(ii) the manner
in which the National Biodiversity Fund may be utilised;
(iii) the heritage
sites to be notified and also the measures for the management of such heritage
sites,
(iv) implementation
of the Act generally and such other functions as may be prescribed.
(v)
Monitor and challenge, if necessary, intellectual property rights
applications relating to biodiversity and knowledge of Indian origin.
9.
STATE/UNION TERRITORY BIODIVERSITY BOARD
State
Governments/ Union Territory Administrations may establish State Biodiversity
Boards for the purpose of implementation of this Act. The terms of reference
of constitution and composition of the Board may be notified by Rules.
10.
BIODIVERSITY MANAGEMENT COMMITTEES IN LOCAL BODIES
Institutions
of self government shall constitute biodiversity management committees in
their respective areas with the purpose of promoting the conservation, sustainable
use and documentation of biological diversity. This may include preservation
of habitats, conservation of land races, folk varieties and cultivars, conservation
of domesticated stocks and breeds of animals, and conservation of micro organisms.
Chronicling of knowledge relating to the use of biological diversity will
also be promoted by Biodiversity Management Committees. BMCs shall
be consulted by the NBAI SBB for the use of resources and knowledge.
CONSERVATION
AND SUSTAINABLE USE
The
conservation and sustainable use of biological diversity shall be integrated
as far as possible and as appropriate into relevant sectoral or cross sectoral
plans, programmes and policies.
IMPACTASSESSMENTAND
MINIMIZING ADVERSE IMPACTS
The
central government shall notify through rules appropriate procedures required
in prior impact assessment of its proposed projects that are likely to have
significant adverse effect on biological diversity with a view to avoiding
or minimizing such effects and where appropriate, allow for public participation
in such procedures.
PROTECTION
OF PEOPLES KNOWLEDGE
People's
intellectual rights relating to their knowledge regarding biodiversity shall
be protected through a sui generis system.
11.
ACTIVITIES WITH PRIOR INFORMED CONSENT (PIC)
(i)
Any person who is not a citizen of India, any body corporate, association
or organisation which is not registered in India, or which is registered in
India but has non-Indian citizen participation in equity or management is
prohibited from obtaining any biological resources
occurring in India and/or associated knowledge for
research, commercial utilisation or bioprospecting without prior approval
of the National Authority. This prohibition will also apply to a citizen of
India who stays abroad either temporarily or permanently.
From
ten years of the enactment of this legislation, the Indian industry, researchers
and other citizens will also have to obtain prior approval of the national
authority before accessing the resources and knowledge. However, till such
time the Indian industry and researchers will keep the national authority
informed of the accessions being made by them.
(ii)
It is also proposed to prohibit transfer of any result of research with respect
to any biological resource by any citizen of India or any body corporate,
association, organisation registered in India, without the prior approval
of the National Authority to the following:
(a) any person
who is not a citizen of India.
(b) any person
who is a citizen of India but is staying outside India temporarily or permanently.
(c) any body
corporate, association or organisation which is not registered in lndia.
(d)
any body corporate, association or organisation which is registered in India
but has non-Indian citizen participation in capital or management.
Sharing
of knowledge through seminars and publications will be exempted from the purview
of this provision, provided such publications are in public domain and papers
presented in such seminars are widely circulated and published in technical
journals.
(iii)
Collaborative research projects involving transfer/ exchange of biological
resources and information relating to them between institutions, including
government sponsored institutions of India and similarly placed institutions
in other countries will be exempted from the provisions of subparagraphs (i)
and (ii) above, provided such collaborative research projects have been drawn
up subject to overall policy guidelines of the Central Government and have
the approval of the Central Government.
(iv)
Applications will be submitted to the National Authority for seeking approval
in accordance with sub-paragraphs (i) and (ii) above in the prescribed form.
The National Authority may make enquiries as deemed fit. Based on such enquiries
and appraisal of the material placed before it, the National Authority shall
communicate its approval or otherwise subject to such terms and conditions
as it may deem fit, including the imposition of charges by way of royalty.
(v)
Transferring the resources or knowledge acquired by any agency or individual
through prior approval of the authority shall not be transferred directly
to a third party the other party has to obtain a separate prior approval.
12.
EQUITABLE BENEFIT SHARING
While
granting approvals under Section 11, the National Authority shall ensure that
the terms and conditions of approval secure equitable sharing of benefits
arising out of the use of biological resources and knowledge relating to them.
Such benefits may include transfer of technology, location of R & D, association
of Indian scientists, local people with R &
D and bioprospecting, location of production units, setting up
of venture capital funds, direct monetary compensation and other
non-monetary benefits, as may be appropriate for the
entity from where it has been accessed. Direct monetary benefits
shall be deposited in the National Biodiversity Fund except in cases were
biological resource or knowledge is accessed from specific individual(s),
or group of individuals, or organisations, in which case the money could be
directly made over to such providers of resources in accordance with the terms
of agreement, after sufficient public notice. The
nature and combination of benefits will be determined in accordance with the
merits of each case. The National Authority shall frame guidelines for the
purpose.
13.
PRIOR INTIMATION REGARDING COMMERCIAL APPLICATION
Any
person intending to apply for any form of intellectual property right in or
outside India for any invention based on any research or information on a
biological resource occurring and accessed from
India shall be required to obtain prior permission
of the National Biodiversity Authority in the prescribed form. The National
Authority may impose benefit sharing fee or royalty or conditions on the financial
benefits arising out of the commercial utilisation of such rights.
14.
NOTIFICATION OF BIOLOGICAL DIVERSITY HERITAGE SITES
Without
prejudice to any other law for the time being in force and survival
and livelihood of people, State Government may from time to
time in consultation with institutions of self government notify areas of
biodiversity importance as Biological Diversity Heritage Sites under the Act.
The State Government in consultation with the Central Government may frame
rules for the management of conservation of Heritage Sites.
15.
POWER TO NOTIFY THREATENED SPECIES
Without
prejudice to the provisions of any other law for the time being in force,
the Central Government may from time to time notify threatened species and
prohibit or regulate their collection for any purpose and take appropriate
steps to rehabilitate and preserve such species.
16.
REPOSITORIES FOR DIFFERENT CATEGORIES OF BIOLOGICAL RESOURCES
The
Central Government in consultation with the National Biodiversity Authority
may designate institutions and local bodies as repositories
under the Act for different categories of biological resources. Repositories
shall keep in safe custody the biological material in ex-situ conditions
including voucher specimens deposited with them. Any new taxon discovered
shall be notified to the repositories or any other institution designated
for this purpose. All researchers must deposit voucher specimens
of the new species being described.
17.
NATIONAL BIODIVERSITY FUND
There
shall be a National Biological Diversity Fund (NBF). NBF shall be composed
of grants/ loans from the Central Government, fees, royalties, monetary benefits,
cess as a result of approvals granted by the National Authority and any donations/
grants/ loans from other institutions for the purpose of this Act.
The
fund shall be utilised inter-alia for the following purposes
(a) Channeling
benefits to the conservers of biological resources, creators and holders of
knowledge.
(b) Conservation
of biological resources and conservation and development of biological resources
in areas from where such resource, or knowledge has been accessed. Funds may
also be utilised for socioeconomic development of such areas in consultation
with the local self government concerned.
(c)
Conservation of heritage sites declared under this Act.
(ii)
The Fund shall be subject to audit of the Comptroller and Auditor General
of India.
(iii)
The Central Government shall frame Rules for the management and administration
of the National Biodiversity Fund.
18.
STATE BIODIVERSITY FUND
State
Biodiversity Funds shall be created in States as in case of national fund.
These funds will be composed of transfers from the National Biodiversity Fund
and any other grants made to the fund by the State Government, Central Government,
or any other institution or organisation. The management and utilisation of
the fund shall be subject to the rules notified under the Act in this connection.
LOCAL
BIODIVERSITY FUND
Local
Biodiversity Fund shall be created in the local Biodiversity Management committees
in the local bodies. This funds will be composed of transfers from the National
Biodiversity Fund and other grants made to the Fund by the State Government,
Central Government or any other institutions or organisation. These funds
could also be contributed by the local body by levying charges on the biodiversity
resources being traded from within its boundaries. The operation of the funds
shall be specified by the rules.
19.
ANNUAL REPORT
The
National Authority shall furnish to the Central Government returns and statements
in such form as may be prescribed; it shall also prepare a report giving the
summary of its activities which shall be forwarded to the Central Government.
A copy of the report shall be laid before the Parliament. Similarly a Report
shall be submitted by the State Biodiversity Board to the State Government
which shall be laid before the State Legislature.
21.
APPEALS
Appeals
from the decision of the National Biodiversity Authority shall lie to the
High Court.
22.
PENALTIES AND OFFENCES (BEING REVISED)
Any
contraventions of the provisions of Act will be punishable with imprisonment
for a term of which may extend upto 5 years or fine which may extend upto
Rs. 10 lakhs or with both.
23.
DIRECTIONS TO NATIONAL AUTHORITY AND STATE BIODIVERSITY BOARDS
The
Central and the State Governments will have power to give directions to the
National Authority and State Biodiversity Boards respectively.
24.
POWER OF CENTRAL GOVERNMENT TO GIVE DIRECTIONS TO THE STATE GOVERNMENTS
The
Central Government will have the power to give directions to the State Governments
for carrying into effect the provisions of the Act.
25.
POWER TO GRANT EXEMPTIONS
The
Central Government in consultation with the National Authority,
may notify items, areas for exclusion from the purview of the provisions of
this Act, provided that such exclusion does not violate other
provisions of this act.
DISPUTE
RESOLUTION
The
central government will notify the rules for establishing mechanisms to resolve
the disputes in relation to the act.
26.
POWER TO MAKE RULES (BEING MADE FLEXIBLE)
The
Central Government may, by notification in Official Gazette, make rules for
carrying out the purposes of this Act. Rules made under this Act, shall be
laid before Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or 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 both houses agree that the rule should not be made, the rule
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 the
rule.
27.
PROTECTION OF ACTION TAKEN IN GOOD FAITH
No
suit, prosecution or legal proceeding shall lie against any officer or other
employee of the Central Government for anything which is done in good faith
in pursuance of this Act or the rules made thereunder.
28.
COGNIZANCE OF OFFENCES
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 person who has given notice of not less than sixty days, in the manner
prescribed, of the alleged offence of his intention to make a complaint, to
the Central Government or the authority authorised, as aforesaid.
29.
MEMBERS, OFFICERS AND EMPLOYEES OF THE AUTHORITY CONSTITUTED UNDER SECTION
4 TO BE PUBLIC SERVANTS
All
the members of the authorities constituted under Section 4 and all officers
and employees of such authority when acting or purporting to act in pursuance
of any provisions of this Act or the rules made thereunder shall be deemed
to be public servants within the meaning of Section 21 of the Indian Penal
Code.
30.
BAR OF JURISDICTION (BEING REVISED)
No
civil court shall have jurisdiction to entertain any suit or proceeding in
respect of anything done, action taken or order/ direction issued by the Central
Government or the State Government or the authorities in pursuance of any
power conferred by or in relation to its function under this Act.
31.
POWER TO DELEGATE
Without
prejudice to the provisions of Section 4, the Central Government may, by notification,
in the official Gazette, delegate, subject to such conditions and limitations
as may be specified in the notification, such of its powers and functions
under this Act as it may deem necessary or expedient, to any officer, State
Government or other authority.
32. Other general
provisions for removal of difficulties in the implementation will be there.