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State Biological Diversity Rules – A puzzle waiting to be solved

by Vasanth Vaidyanathan Malathi Lakshmikumaran

India ratified the Convention on Biological Diversity (CBD), which was held in Rio de Janeiro, Brazil, in 1992 [endnote 1] by becoming a Party to it on February 1994. Thus, began India’s tryst with biodiversity-related laws, whereby the country started to tread on a path to fulfill the three objectives laid down by the CBD, namely, conservation of biological diversity, sustainable use of its components, and fair and equitable benefit sharing arising out of the use of the biological resources and knowledge. In order to give effect to its obligations under the CBD, India enacted the Biological Diversity Act, 2002 on 5th February 2003, and by 1st July 2004 all the sections of Biological Diversity Act, 2002, (Act) were in force.

Since flora and fauna of the country is widespread, the Act facilitates a three-tiered structure, one at the national level, second at the state level and third at the local level to be curated by National Biodiversity Authority (NBA), State Biodiversity Boards (SBB), and Biodiversity Management Committees (BMC) respectively, which are statutory bodies established under the Act. The Act has provided distinct roles and powers to the NBA and the SBBs.

Overview – Powers and functions of NBA and SBB

Section 18 of the Act lays down certain powers and functions of the NBA, which includes regulating activities mentioned in Sections 3, 4, and 6 of the Act. As per Section 3 of the Act, a person not being a citizen of India,  a person being a citizen but a non-resident as per Section 2 of the Income Tax Act, 1961, and a body corporate having any foreign participation in its share capital or management require prior permission from the NBA before accessing any biological resource occurring in India or knowledge associated thereto for the purpose of research, or commercial utilization, or bio-survey and bio-utilization. As per Section 4 of the Act, results of research relating to any biological resource occurring in or obtained from India should not be transferred to any person specified in Section 3(2) of the Act without taking the prior permission from the NBA. Section 6 of the Act mandates prior approval from the NBA before applying for any intellectual property right (IPR) for any invention based on any research or information on a biological resource obtained from India, said section is applicable for Section 3(2) entities as well as for non-Section 3(2) entities. In the case of patents, such patents shall not be granted until the approval from the NBA is obtained. Further, Section 20 of the Act makes it clear that no person who has been granted approvals under Section 19 of the Act shall transfer the biological resource to a third party, except after obtaining the prior permission from the NBA. The above permissions from the NBA are to be sought by way of applications under specific forms provided under the Biological Diversity Rules, 2004. 

Section 7 of the Act requires any Indian person or entity which has no foreign participation in its share capital or management to provide prior intimation to the concerned SBB(s) before obtaining any biological resource from the specific state(s) for commercial utilization or for bio-survey and bio-utilization for commercial utilization.  Access of biological resources for the purposes of research by any Indian person or entity [other than a Section 3(2) person] does not require even prior intimation under section 7. Section 24 of the Act provides powers to SBB for restricting or prohibiting the activities contemplated in the intimation requests received under Section 7 of the Act, if the SBB is of the 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. Further, no order can be issued by the SBB without giving the person making the intimation under Section 7 of the Act, an opportunity of being heard. Section 23 of the Act lays down the functions of SBB, whereby, SBBs shall advise the State Governments, subject to any guidelines issued by the Central Government, on the objectives of the Act, regulate the access or approvals for commercial utilization or bio-survey and bio-utilization by Indian entity, and perform such other functions as may be necessary to carry out the provisions of the Act or as laid down by the State Government.

From the afore-mentioned explanation of various sections, it is clear that the Act mandates a prior approval from the NBA for entities falling under the scope of Section 3(2) of the Act for accessing Indian biological resource for any of the specified activities (i.e. research, commercial utilization, or bio-survey and bio-utilization), whereas for wholly Indian entities or non-Section 3(2) entities, only prior intimation to the concerned SBB is required and that too only for activities pertaining to commercial utilization, or bio-survey and bio-utilization for commercial utilization. Thus, a bare perusal of the provisions of the Act indicates that for accessing biological resources by Indian entities for the purpose of research no approval or intimation to the SBB is required. But is this really the case? It appears to be not so as can be seen from the Rules framed by certain State Governments under Section 63 of the Act.

The dichotomy between Biological Diversity Act and State Biodiversity Rules

It is observed that certain States have inserted in their rules, a requirement for Indian entities to make prior intimation to the SBB for accessing Indian biological resource even for conducting research. Around 15 states[see endnote 2]  which have mentioned such a requirement in their rules are Kerala, Sikkim, Maharashtra, Arunachal Pradesh, Uttarakhand, Manipur, Meghalaya, Tripura, Andhra Pradesh, Telangana, Uttar Pradesh, Nagaland, Gujarat, Mizoram, and Bihar. Not very surprisingly, even the requirement of intimation for access pertaining to research has been captured in different ways by the various States.

Taking for instance, the case of Arunachal Pradesh, Rule 17(1)[see endnote 3] of the said State’s Biodiversity Rules recites that: Any person seeking access to/collection of biological resources and associated knowledge for research or for commercial utilization shall make an application to the Board in Form-1 Part A and B appended to these rules. Every application shall be accompanied by a fee of Rs. 100/- per species/items for government institution and Rs. 500/- for others either in Cheque/Drafts/ Treasury Challan or Cash. The commercial utilization fee for biological resources (other than scheduled flora, fauna and microbes) shall be decided by the Board from time to time.

Sikkim Biodiversity Rule 17(1)[see endnote 4] recites: Any person seeking access to or collection of biological resources and associated knowledge for research or for commercial utilization shall make an application to the Board in Form-1 as given in the schedule. Every application shall be accompanied by a fee of Rs. 100/- in case such access is for research purpose and Rs. 1000/- for commercial utilization and shall be in form of a Cheque or demand draft.

Even though both the above-mentioned rules differ with respect to the fee charged for the application, both of them mandate the requirement for filing a Form and thereby seeking permission for accessing the biological resource for the purpose of research. Further, it is to be noted that the heading given for Rule 17 for both the said State Biodiversity Rules is as follows: “Procedure for access to or collection of biological resources (section 24 of the Act)”. Section 24 of the Act, as discussed above provides powers to SBBs for restricting or prohibiting access to the intimation requests received under Section 7 of the Act, and Section 7 of the Act is applicable only to non-section 3(2) entities or wholly Indian entities. In this regard, a dichotomy is visibly evident between the provisions mentioned in the Act and those specified by State Biodiversity Rules as framed by some of the States, which is, firstly that the States have interpreted prior intimation as prior approval such that they have also included application forms and fees for the same. Secondly, whereas intimation for research is not at all required as per Section 7 of the Act, the State Biodiversity Rules mandate making an application for approval even if the accession is for research. Can the State Biodiversity Rules travel beyond the scope and ambit of the provisions of the Act? The answer is No. Thus, the requirement of prior approval for accessing biological resources for research is clearly ultra vires the Act.

Provision of “voluntary” disclosure – An enigma

Another interesting aspect is Rule 4(1)[see endnote 5] of the State Biodiversity Rules formulated by Punjab, which covers the procedure for prior intimation and approval for commercial utilization of biological resources. Despite the fact that the said Rule adds the word “approval” which is not contemplated under Section 7 of the Act, the Rule otherwise seems to be in consonance with the Act as it does not deal with the research aspect. However, Rule 4(5) of the said Rules provides for voluntary disclosure which recites: “For the voluntary disclosure for access of biological resources for the purposes of research or bio-survey and bio-utilization as defined in clauses (m) and (d) of section 2 of the Act, respectively, any citizen of India or a body corporate, association or organization, which is registered in India may before or after accessing/obtaining biological resources or traditional knowledge of such biological resources, occurring within the State of Punjab, fill in Form-IA accompanied with a cheque or Demand Draft amounting to Rs. 100/- in favour of Punjab Biodiversity Board payable at Chandigarh towards administrative charges.”. As per the said rule, it appears that any non-Section 3(2) entity, or Indian entity or person who intends to access the biological resource from Punjab jurisdiction for the purposes of research or bio-survey and bio-utilization, can voluntarily intimate the SBB.  Given the fact that no Applicant would like to get involved in official formalities under such circumstances, the intent behind insertion of this “voluntary” provision seems enigmatic.

A stitch in time – Amendments made by Madhya Pradesh and Karnataka SBB

The amendments made in the biodiversity rules of MP and Karnataka presents an interesting picture. In the State Biodiversity Rules published in the respective Gazette, a provision requiring intimation in case of using biological resources for research was incorporated. Rule 17(1)[see endnote 6] of MP State Biological Diversity Rules upon enactment, recited as: Any person seeking access to/collection of biological resources and associated knowledge for research or for commercial utilization shall make an application to the Board in Form-1 appended in these rules. Every application shall be accompanied by a fee of Rs. 100/- in case such access is for research purpose and Rs. 1000/- for commercial utilization and shall be in form of a Cheque or demand draft. However, as per a recent publication on 4th July 2019 in the Madhya Pradesh Gazette[see endnote 7] the aspect related to “research” was omitted from Rule 17(1). Rule 15(1)[see endnote 8] of Karnataka State Biological Diversity Rule upon enactment, recited as: Any person intending to obtain any biological resources and associated knowledge for research or for commercial utilization, with the exception of those in the proviso to section 7 of the Act, shall give prior intimation to the Board by making an application in Form-I. However, as per a notification dated 10th August 2018[see endnote 9], the Amended rule 15(1) recites “Any person who is a citizen of India or a body corporate, association or organization which is registered in India intending to obtain any biological resources for commercial utilization, or bio-survey and bio-utilization for commercial utilization, with the exception of those in the proviso to section 7 of the Act, shall give prior intimation to the Board by making an application in Form-I”. By way of the respective amendments, the States have brought clarity which is in consonance with the Act as the un-amended provision was ambiguous with regard to its applicability and also included “research” within its ambit.

Did the Amendments serve the purpose? – A peep into Telangana Biodiversity Rules

However, not all such amendments bring clarity. Rule 16(1)[see endnote 10] of Telangana Biodiversity Rules, as enacted read as: “Any person seeking access to/collection of biological resources and associated knowledge for research or for commercial utilization shall make an application to the Board in Form-I appended to these rules. Every application shall be accompanied by a fee of Rs. 1000/- in case such access is for research purpose and Rs. 10,000/- for commercial utilization and shall be in the form of a cheque or demand draft.” Amendment to the rules was published on 3rd November 2016, amended Rule 16(1)10 read as: “Any person seeking access to/collection of biological resources and associated knowledge for research or for commercial utilization shall make an application to the Board in Form-I appended to these rules. Every application shall be accompanied by a fee of Rs. 1000/- for commercial utilization and shall be in the form of a cheque or demand draft and the fees shall be exempted, in case, such access is for research purpose.”. One can interpret that the amendment has been done for (a) reducing the cost involved in filing an intimation for the purpose of access for commercial utilization (b) making the intimation for the purpose of research free of cost. However, the fact remains that access to biological resources for research does not even require a prior intimation as per the Act, and hence even the amended Rule is ultra vires the Act.

Uttarakhand SBB also has a similar understanding when it comes to intimation for the purpose of research. Rule 14(1)[see endnote 11]of Uttarakhand Biodiversity Rules recites: “Any citizen of India or a body corporate, organization or association registered in India, intending to undertake any activity referred to Sec. 7 of the Act, in the territory of Uttarakhand, shall give prior intimation to the Board in Form-1”. Further, Rule 14(2) states: “Every such application in form-1 shall be accompanied by fees in the form of demand draft from Nationalized Bank as prescribed below for different kinds of commercial utilization of biological resources: (i) for commercial utilization such as trading and manufacturing: Rs. 10,000/-; (ii) for bio-survey/bio-utilization/research etc. meant for commercial utilization: Rs. 5,000”/-; (iii) for bio-survey/bio-utilization/research etc. not meant for commercial utilization: No fee. Since Rule 14(1) mentions activity referred to in section 7 of the Act, it can be interpreted that the rule does not encompass the requirement for prior intimation for accessing biological resources for purpose of research. However, part (iii) of sub-rule 2 of Rule 14 mentions that no fee is payable for the purpose of research in which no commercial utilization is involved leading to an interpretation that filing an intimation in such a case is still required, although no fee is associated with such an action. The same applies to accessing biological resources for research for commercial utilization for which a fee of Rs 5000 is payable.

Conclusion

Thus, the SBB Rules of some States go beyond the requirement of the Act by requiring prior “approval” for obtaining biological resources for commercial utilization and some others requiring prior intimation for access to biological resources for the purpose of research and bio-survey and bio-utilization. It is important to note that even the guidelines issued by the NBA to SBB for processing Applications[see endnote 12], clearly states that the applications related to access for biological resources for the purpose of research should not be entertained by the SBBs.

There are also some states like Tamil Nadu, Jharkhand, Rajasthan, Goa, Assam, West Bengal, Orrisa, and Chattisgarh in which the relevant rule deals with prior intimation only for commercial utilization and not research. Thus, there is a need for ensuring that the Rules framed by all SBBs are in consonance with the Act.

The authors are Associate and Executive Director, respectively, in the IPR practice in Lakshmikumaran & Sridharan, New Delhi

Endnotes :

  1. https://www.cbd.int/convention/
  2. http://nbaindia.org/link/241/34/1/SBBs.html
  3. http://nbaindia.org/uploaded/pdf/notification/Arunachal_pradesh_Rules.pdf
  4. http://nbaindia.org/uploaded/pdf/notification/Sikkim.pdf
  5. http://nbaindia.org/uploaded/pdf/Punjab_Biodiversity_Rules_2016.pdf (Rule 4(1) - Any citizen of India or a body corporate, organization or association registered in India seeking access to/collection of biological resources for commercial utilization with the exception of those in proviso to Section 7 of the Act, shall make an application to the Board in Form-I appended to these rules for prior intimation and approval under clause (b) of Section 23 of the Act)
  6. http://mpsbb.nic.in/Acts/a4.pdf
  7. http://mpsbb.nic.in/LatestNews/Amendment%20MPBD%20Rules%202004.pdf
  8. https://www.karnataka.gov.in/kbb/english/BDACT/Karnataka-Biological-Diversity-Rules-2005.pdf
  9. https://www.karnataka.gov.in/kbb/english/BDACT/Karnataka%20Biological%20Diversity%20(Amendment)%20Rules,%202018.pdf
  10. http://www.tsbiodiversity.org/GEF/WEBSITE%20GEF/TSBDB%20Rules,%202015.pdf
  11. http://www.sbb.uk.gov.in/files/act/Uttarakhand_State_Biodiversity_Rules_English_2015-Final.pdf
  12. http://nbaindia.org/uploaded/pdf/Guidelines_for_Processing_ABSapplications_SBBs.pdf