The Biological Diversity Act, 2002: Overview of Access and Benefit Sharing Provisions

India, known for its rich biological resources and traditional knowledge, enacted the Biological Diversity Act, 2002 (BDA) to fulfill its obligations under the Convention on Biological Diversity (CBD), 1992. One of the central pillars of the CBD is the principle of Access and Benefit Sharing (ABS), which seeks to ensure fair and equitable sharing of benefits arising from the utilization of genetic resources. The BDA operationalizes this principle in the Indian context.

This article delves into the objectives, key provisions, institutional framework, and challenges of the ABS mechanism under the Biological Diversity Act, 2002.

Objectives of the Biological Diversity Act, 2002

The primary objectives of the BDA, 2002 are:

1. Conservation of biological diversity;
2. Sustainable use of its components;
3. Fair and equitable sharing of the benefits arising from the utilization of biological resources and knowledge.

These objectives align with India’s commitments under the CBD and emphasize the need to regulate access to biological resources while ensuring that benefits flow to local communities and knowledge holders.

Understanding Access and Benefit Sharing (ABS)

Definition

Access and Benefit Sharing refers to the process by which a user (individual, organization, or company) accesses biological resources or associated traditional knowledge and agrees to share the benefits (monetary or non-monetary) arising from its use with the provider.

Global Framework

The Nagoya Protocol on Access and Benefit-sharing, adopted in 2010 under the CBD, further elaborates ABS mechanisms. India ratified the Nagoya Protocol in 2012 and incorporated its principles into domestic law via the BDA and subsequent rules.

Institutional Framework Under the BDA

To implement ABS, the BDA establishes a three-tier institutional structure:

1. National Biodiversity Authority (NBA) – established under Section 8;
2. State Biodiversity Boards (SBBs) – under Section 22;
3. Biodiversity Management Committees (BMCs) – under Section 41.

These bodies ensure decentralized, participatory governance of biodiversity and facilitate benefit sharing at national, state, and local levels.

Provisions on Access to Biological Resources

Section 3 – Access by Foreigners and NRIs

Foreign individuals, companies, or organizations must seek prior approval from the NBA before accessing biological resources or associated knowledge for research, commercial utilization, or bio-survey and bio-utilization.

Section 4 – Transfer of Results

Results of any research relating to biological resources cannot be transferred to foreign entities without prior approval of the NBA.

Section 6 – Intellectual Property Rights

No person shall apply for any IPR, such as patents, in or outside India for an invention based on a biological resource obtained from India without prior approval of the NBA.

The Turmeric Patent Case (USPTO, 1997) and Neem Case (EPO, 2000) underscored the importance of protecting traditional knowledge and laid the groundwork for ABS provisions.

Provisions on Benefit Sharing

Section 21 – Determination of Benefit Sharing

This is the key provision for implementing ABS. The NBA determines the terms and mode of benefit sharing, which may include:

• Joint ownership of IPRs;
• Technology transfer;
• Monetary compensation;
• Establishment of venture capital funds;
• Infrastructural support to local communities.

The section mandates consultation with BMCs and documentation of traditional knowledge in the People’s Biodiversity Registers (PBRs).

Rules and Guidelines

The Biological Diversity Rules, 2004 and the ABS Guidelines of 2014 provide detailed procedures for implementing the Act.

Access and Benefit Sharing (ABS) Guidelines, 2014

These guidelines outline:

• Approval mechanisms;
• Benefit sharing options;
• Model agreements for access;
• Roles of SBBs and BMCs.

They classify activities into research, commercial, or bio-utilization, and apply differential access criteria accordingly.

Recent Developments: Biological Diversity (Amendment) Act, 2023

The 2023 amendment aimed to:

• Simplify approval procedures for Indian companies and traditional practitioners;
• Exempt codified traditional knowledge and AYUSH practitioners;
• Introduce penalties for contravention in place of criminal prosecution.

While this was welcomed by the pharmaceutical and AYUSH industries, critics warned of dilution of ABS obligations and potential marginalization of local communities.

Challenges in Access and Benefit Sharing Implementation

Despite a strong legal framework, the ABS mechanism faces several issues:

1. Lack of Awareness: Many researchers, institutions, and companies are unaware of ABS requirements, leading to inadvertent violations.
2. Inadequate BMC Capacities: BMCs, especially in remote areas, often lack the training and resources to negotiate benefit-sharing agreements or maintain PBRs effectively.
3. Monitoring and Enforcement: The NBA and SBBs face difficulties in tracking access, particularly in sectors like biotechnology, agriculture, and cosmetics.
4. Ambiguity in Definitions: Terms such as “value-added products” and “research” are often broadly interpreted, confusing what constitutes a regulated activity.
5. Disparity in Benefit Distribution: There are concerns that benefits may be appropriated by intermediaries or elite community members, rather than reaching grassroots stakeholders.

Recommendations for Strengthening Access and Benefit Sharing

• Capacity Building: Empowering BMCs through training and funding to handle negotiations and monitor access.
• Awareness Campaigns: Conducting outreach programs for industries, research institutions, and local communities.
• Digital PBRs: Digitizing biodiversity registers to ensure transparency and facilitate benefit sharing.
• Collaboration with Traditional Knowledge Digital Library (TKDL): To avoid biopiracy and strengthen patent examination processes.
• Grievance Redress Mechanism: Establishing fast-track mechanisms to resolve ABS disputes at the local levels.

Conclusion

The Biological Diversity Act, 2002, through its Access and Benefit Sharing provisions, embodies India's commitment to biodiversity conservation and equitable development. While the legal framework is robust, its success depends on effective implementation, capacity-building, and genuine participation of local communities. The future of ABS in India lies in balancing conservation imperatives with commercial utilization, ensuring that those who safeguard biodiversity are recognized and rewarded.

References

[1] The Biological Diversity Act, 2002. 

[2] Biological Diversity Rules, 2004.

[3] Convention on Biological Diversity, Available Here

[4] ABS Mechanism under the Biological Diversity Act, 2002, Available Here