Biological Diversity Act and access and benefit sharing

The first principle

A medicinal plant grows in one forest and its use is known to one community, but its commercial value is made far away, in a laboratory that patents a molecule and sells a product. For most of history that value flowed out freely, because biological resources were treated as the common heritage of mankind. The Convention on Biological Diversity (CBD) of 1992 changed the rule: states have sovereign rights over their biological resources, so a user must ask before taking (prior informed consent) and must share what it gains on terms agreed with the provider. The Biological Diversity Act is India's way of applying that rule, and every provision in it answers one of two questions: who must ask whom, and who receives the benefit.

The core

The Act and its purpose

• A law built on the convention. India ratified the CBD in 1994 and passed the Biological Diversity Act in 2002, with Rules in 2004. The Act carries the convention's three objectives into Indian law: conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits from using biological resources and the knowledge associated with them.
• Three tiers, matched to three levels of government. The National Biodiversity Authority (NBA), set up in 2003 with its seat at Chennai, regulates access by foreign users and grants approvals for patents and transfers. A State Biodiversity Board (SBB) in each State advises the State government and regulates Indian users through prior intimation. A Biodiversity Management Committee (BMC) in every local body, panchayat or municipality, documents local biodiversity and is consulted on every decision about resources from its area.
• The People's Biodiversity Register (PBR) is the BMC's main tool. It records, with the help of local people, the plants, animals, landraces and breeds of the area and the knowledge of their uses, so that the community's claim to a benefit is written down before anyone else claims the knowledge.

Who must ask whom

• Foreign users need prior approval of the NBA. A foreign person or a company that is foreign controlled must obtain the NBA's approval before obtaining any biological resource or associated knowledge from India, whether for research, commercial use or bio survey. Transferring the results of research on Indian material to a foreigner also needs approval.
• Intellectual property goes through the NBA. Since the 2023 amendment, an Indian applicant seeking a patent or other intellectual property right on an invention based on Indian biological resources registers with the NBA and needs its approval before commercialising, while a foreign applicant needs the NBA's approval.
• Indian users give prior intimation to the SBB. An Indian citizen or Indian company using a biological resource for commercial purposes must inform the State Board, which may restrict the activity if it threatens conservation. Local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, are exempt.
• What the 2023 amendment changed. The Biological Diversity (Amendment) Act, passed by Parliament in August 2023, exempted registered practitioners of Ayurveda, Yoga and Naturopathy, Unani, Siddha, Sowa Rigpa and Homoeopathy (AYUSH), cultivated medicinal plants and codified traditional knowledge from intimation and benefit sharing. It also replaced imprisonment with civil penalties of Rs 1 lakh to Rs 50 lakh, with up to Rs 1 crore more for a continuing breach, decided by an adjudicating officer.
• Biodiversity heritage sites. Under Section 37, a State government may notify an area of high biodiversity value as a biodiversity heritage site after consulting local bodies; the Nallur Tamarind Grove near Bengaluru was the first, in 2007.

How benefits are shared

• Forms of benefit. Section 21 allows monetary benefits, such as an upfront payment, royalty or a share of sales, and non monetary ones, such as joint ownership of patents, transfer of technology, joint research with Indian scientists and venture funds for the benefit claimers. Money goes to the National, State or local Biodiversity Fund and from there to the BMCs and benefit claimers.
• The 2025 regulations. The NBA's access and benefit sharing regulations of 2025 replaced the 2014 regulations. A user with an annual turnover up to Rs 5 crore pays nothing, and above that the share rises from 0.2 to 0.6 per cent of the annual gross ex factory sale price of the product, by turnover slab. Digital sequence information, the genetic sequence data that can be used without the physical sample, is now treated as a biological resource. High value resources such as red sanders, sandalwood and agarwood attract a higher share, and so does an invention that uses traditional knowledge.
• The Nagoya link. The Nagoya Protocol of 2010, in force since 2014 and ratified by India, is the CBD's agreement on access and benefit sharing, and the NBA's approvals are posted as internationally recognised certificates of compliance.

Dimensions

• Legal. The Act turned biological material from an open commons into a resource held in trust by the state for its people, and the 2023 move from criminal to civil penalties makes enforcement faster but lighter.
• Ethical and social. Biopiracy, the use of a community's resource or knowledge without consent or sharing, is the wrong the Act is meant to prevent; India's challenges to the turmeric patent in the United States (revoked in 1997) and to the neem fungicide patent in Europe (revoked in 2000) are the classic cases.
• Federal and local. Benefit sharing works only if the panchayat level BMC is real, so the Act rests on the local bodies created by the 73rd and 74th Amendments.
• Technological. Sequence data can be downloaded from open databases without touching a plant, so a law built around physical samples has to be extended to data, which the 2025 regulations attempt.
• International. The Kunming–Montreal Global Biodiversity Framework (2022) asks for benefit sharing to grow, and the sixteenth conference of the parties at Cali in 2024 created the Cali Fund, to which companies using digital sequence information are expected to contribute.

In practice

• Divya Pharmacy v Union of India (Uttarakhand High Court, 2018). The company argued that as an Indian entity it needed only to inform the State Board and could not be asked for benefit sharing. The Court held that the Act's purpose is to share benefits with the communities who conserve the resource, so the State Board can demand fair and equitable benefit sharing from Indian companies as well.
• The Bt brinjal case (2011). The NBA decided to proceed against the developers of Bt brinjal for using local brinjal varieties in their research without its approval, the first attempt to prosecute biopiracy under the Act.
• The Kani model. Before the Act, the Tropical Botanic Garden and Research Institute in Kerala developed the tonic Jeevani from the arogyapaacha plant (Trichopus zeylanicus), whose use it learnt from the Kani tribe, and shared the licence fee with a Kani trust.
• BMCs and PBRs. Hearing Chandra Bhal Singh v Union of India from 2016, the National Green Tribunal set deadlines for States to constitute BMCs and complete PBRs, and the country now has well over two and a half lakh BMCs, almost one for every local body.
• The Patents Act backs the Act. Section 3(p) of the Patents Act, 1970 bars patents on traditional knowledge, and an applicant must disclose the source and geographical origin of biological material, so non disclosure is a ground to oppose or revoke a patent.

Issues and way forward

• Registers on paper. Many PBRs were prepared quickly by consultants to meet the tribunal's deadlines, so they list species but record little of the knowledge that would support a claim; they need to be updated by the BMCs themselves, digitised and kept confidential where knowledge is sensitive.
• Benefits do not reach the village. Money collected by the NBA and the Boards often cannot be traced to a particular BMC, because the source of the resource is not recorded; a resource tracking system and ring fenced transfers to the BMC of origin would fix this.
• The codified knowledge exemption. The 2023 amendment does not define codified traditional knowledge, and PRS India notes that a broad reading could exempt almost all knowledge written in classical texts, which is most of what the herbal industry uses; a narrow definition in the Rules is the remedy.
• Lighter deterrence. Civil penalties are quicker to impose, but a maximum of Rs 50 lakh is small for a large firm, so penalties should be linked to the value of the product.
• Slow approvals and sequence data. Slow approvals push users to avoid declaring resources, and sharing on sequence data held abroad is hard to enforce; a single online window with fixed timelines and the multilateral Cali Fund are the remedies.

Common confusions

• NBA approval and SBB intimation. A foreign user or foreign controlled company needs the NBA's prior approval, while an Indian user for commercial purposes only informs the State Board, which can still restrict the activity and fix benefit sharing.
• Biological Diversity Act and the Protection of Plant Varieties and Farmers' Rights Act, 2001. The first governs access to biological resources and sharing of benefits, while the second grants breeders' rights over new plant varieties and protects farmers' right to save and sell seed.
• Nagoya and Cartagena. Both are protocols under the CBD, but Nagoya (2010) is about access and benefit sharing, while Cartagena (2000) is about the safe movement of living modified organisms.
• Bioprospecting and biopiracy. Bioprospecting is the search for useful compounds in nature and is lawful with consent and sharing, while biopiracy is the same activity without them.
• Biodiversity heritage site and biosphere reserve. A heritage site is a small area notified by a State under the Biological Diversity Act, while a biosphere reserve is a large landscape recognised under UNESCO's Man and the Biosphere programme or by the Centre.

For the exam

• Keyword bank: sovereign rights over biological resources, prior informed consent, mutually agreed terms, access and benefit sharing, three tier structure, National Biodiversity Authority, State Biodiversity Board, Biodiversity Management Committee, People's Biodiversity Register, biopiracy, codified traditional knowledge, digital sequence information, biodiversity heritage site, Nagoya Protocol.
• Previous year questions: Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: India holds about 7 to 8 per cent of the world's recorded species on 2.4 per cent of its land, and the Biological Diversity Act, 2002 is the law that decides who may use these resources and who shares the gain.
  • Introduction with a judgement: In Divya Pharmacy v Union of India (2018), the Uttarakhand High Court held that even Indian companies must share benefits with the communities who conserve a resource, because benefit sharing is the purpose of the Act.
  • Conclusion: The 2023 amendment eased compliance for the AYUSH sector and cultivators, but the Act will succeed only when the People's Biodiversity Registers are living records and the money reaches the Biodiversity Management Committee of origin.
  • Conclusion: Access and benefit sharing turns conservation into an asset for the people who protect nature, and India's task now is to extend that principle from plants to the sequence data drawn from them.