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Bill No. 93 of 2000
WHEREAS
India is rich in biological diversity and associated traditional and
contemporary knowledge system relating thereto; AND
WHEREAS lndia 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 utilisation of genetic resources; AND
WHEREAS it is considered necessary to provide for conservation, sustainable
utilisation and equitable sharing of benefits arising out of utilisation of
genetic resources and also to give effect to the said Convention; BE
it enacted by Parliament in the Fifty-first Year [2000] of the Republic of India
as follows:- CHAPTER II REGULATION OF BIOLOGICAL DIVERSITY CHAPTER III NATIONAL BIODIVERSITY AUTHORITY CHAPTER IV FUNCTIONS AND POWERS OF THE NANONAL BIODIVERSITY AUTHORITY CHAPTER V APPROVALS BY THE NATIONAL BIODIVERSITY AUTHORITY CHAPTER VI STATE BIODIVERSITY BOARD CHAPTER VII FINANCE, ACCOUNTS AND AUDIT OF NATIONAL BIODIVERSITY
AUTHORITY CHAPTER VIII FINANCE, ACCOUNTS AND AUDIT OF STATE BIODIVERSITY BOARD CHAPTER IX DUTIES OF THE CENTRAL AND THE STATE GOVERNMENTS CHAPTER X BIODIVERSITY MANAGEMENT COMMITTEES CHAPTER XI LOCAL BIODIVERSITY FUND STATEMENT OF OBJECTS AND REASONS PRESIDENT'S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA MEMORANDUM REGARDING DELEGATED LEGISLATION
PRELIMINARY
1.
(1) This Act may be called the Biological Diversity Act, 2000. 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. (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 ecosystems; (c)
"biological resources" means plants, animals and micro organisms or
parts thereof, their genetic material and by-products with actual or potential
use or value but does not include human genetic material; (d)
"bio-survey and bio-utilisation" means survey or collection of
species, subspecies, genes, components and extracts of biological resource for
any purpose and includes characterisation, inventorisation and bioassay; (f)
"equitable benefit sharing" means sharing of benefits as determined by
the National Biodiversity Authority under section 21; (g)
"local bodies" means Panchayats and Municipalities, by whatever name
called, (h)
"member" means member of the National Biodiversity Authority or a
State Biodiversity Board and includes the Chairperson; (i)
"National Biodiversity Authority" means the National Biodiversity
Authority established under section 8; (j)
"prescribed" means prescribed by rules made under this Act; (k)
"regulations" means regulations made under this Act; (l)
"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. (m)
"State Biodiversity Board" means the State Biodiversity Board
established under section 22; (n)
"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. CHAPTER
II REGULATION OF BIOLOGICAL DIVERSITY
Certain
persons not to undertake Biodiversity related activities without prior approval
of National Biodiversity Authority. Results
of research not to be transferred to certain persons without approval of
National Biodiversity Authority. 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. (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,- Application
for intellectual property rights not to be made without approval of National
Biodiversity Authority. 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
sealing of the patent by the patent authority concerned. (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
utilisation of such rights. (3)
The provisions of this section shall not apply to any person making an
application for any rights under any law relating to protection of plant
varieties enacted by Parliament. (4)
Where any right is granted under 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 before obtaining biological resource for
certain purposes. Provided
that the provisions of this section shall not apply to the local people and
communities of the area, including vaids and hakims, who have been practising
indigenous medicine. CHAPTER
III NATIONAL BIODIVERSITY AUTHORITY
Establishment
of 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. (b)
three members ex officio to be appointed by the Central Government, one
representing the Ministry of Tribal Affairs and two representing the Ministry of
Environment and Forests of whom one shall be the Additional Inspector General of
Forests or the Inspector General of Forests; (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 knowledge
holders of biological resources. Conditions
of service of Chairperson and Members. Chairperson
to be Chief Executive of National Biodiversity Authority. Removal
of members Meetings
of National Biodiversity Authority. (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 the 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- Committees
of National Biodiversity Authority. 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 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. (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. Delegation
of powers. Expenses
of National Biodiversity Authority to be defrayed out of the Consolidated Fund
of India. CHAPTER
IV FUNCTIONS AND POWERS OF THE NANONAL BIODIVERSITY AUTHORITY
Functions
of National Biodiversity Authority. (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- (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. CHAPTER
V APPROVALS BY THE NATIONAL BIODIVERSITY AUTHORITY
Approval
by National Biodiversity Authority for undertaking certain activities. (2)
Any person who intends to apply for a patent or any other form of intellectual
property protection whether in India or outside India 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. (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 enquires as deemed 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. (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, (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 organisations, the National Biodiversity
Authority may direct that the amount shall be paid directly to such individuals
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. (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 be 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 be appointed by the
State Government; (b)
not more than five ex officio members to be appointed by the State Government to
represent the 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. (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
utilisation of biological resources; (b)
regulate by granting of approvals or otherwise requests for commercial
utilization or bio-survey and bio-utilisation of any biological resource by
Indians; (c)
perform such other functions as may be 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 violating the
objectives of conservation, etc. (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 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. Provisions
of sections 9 to 17 to apply with modifications to State Biodiversity Board. (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 Board; (c)
reference to the Consolidated Fund of India shall be construed as reference to
the Consolidated Fund of the State. CHAPTER
VII FINANCE, ACCOUNTS AND AUDIT OF NATIONAL BIODIVERSITY AUTHORITY
National
Biodiversity Fund. Application
of National Biodiversity Fund. (2)
The Fund shall be applied for- Annual
report of National Biodiversity Authority. Budget,
Accounts and Audit. (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. CHAPTER
VIII FINANCE, ACCOUNTS AND AUDIT OF STATE BIODIVERSITY BOARD
Grant
of money by State Government to State Biodiversity Board. State
Biodiversity Fund. (2)
The State Biodiversity Fund shall be applied for -- Annual
report of State Biodiversity Board. Audit
of accounts of State Biodiversity Board. Annual
report of State Biodiversity Board to be laid before 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. (2)
The Central Government shall, as far as practicable wherever it deems
appropriate, integrate the conservation and sustainable use of biological
diversity into relevant sectoral or cross-sectoral plans, programmes and
policies. (3)
The Central Government shall undertake measures,-- (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. (4)
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)
"exsitu conservation" means the conservation of components of
biological diversity outside their natural habitats; (b)
"insitu 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. (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. Power
of Central Government to designate repositories. (2)
The repositories shall keep in safe custody the biological material including
voucher specimens deposited with them. (3)
Any new taxon discovered shall be notified to the repositories or any
institution designated for this purpose and deposit the voucher specimens with
such repository or institution. Power
of Central Government to exempt certain biological resources. CHAPTER
X BIODIVERSITY MANAGEMENT COMMITTEES
Constitution
of Biodiversity Management Committees. (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 fee
from any person for accessing or collecting any biological resource from areas
falling CHAPTER
XI LOCAL BIODIVERSITY FUND
Grants
to Local Biodiversity Fund. Constitution
of Local Biodiversity Fund. Application
of Local Biodiversity Fund. (2)
The Fund shall be used for conservation 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. Audit
of Accounts of Biodiversity Management Committees. Annual
report of Biodiversity Management Committee to be laid before State Legislature. CHAPTER
XII MISCELLANEOUS
National
Biodiversity Authority to be bound by the directions given by Central
Government. 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. 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. Settlements
of disputes between State Biodiversity Boards. (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 appellant shall he 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 (5 of 1908) in respect of the following
matters, namely:- (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 (45 of 1860) 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 XXVI of the Code of Criminal Procedure, 1973. (2 of
1974) Members,
officers, etc., of National Biodiversity Authority and State Biodiversity Board
deemed to be public servants. Protection
of action taken in good faith. Penalties. (2)
Whoever contravenes or attempts to contravene or abets the contravention of the
provisions of section 7 or any order made under sub-section (1) 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. Offences
by companies. 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,-- Offences
to be cognizable and non-bailable. Act
to have overriding effect. Power
of Central Government to give directions to State Government. Cognizance
of offences. Power
of Central Government to make rules. (a)
terms and conditions of service of the Chairperson and member under (3)
Every rule made under this section and every regulation made under this Act
shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for 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
modifier 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. (2)
In particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matter, namely:-- (3)
Every rule made by the State Government under this section shall be 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
to make regulations. Power
to remove difficulties. 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. STATEMENT
OF OBJECTS AND REASONS
Biodiversity
encompasses the variety of all life on earth. India is one of the 12
mega-biodiversity countries of the world. With only 2.5% of the land area, India
already accounts for 7-8% of the recorded species of the world. India is equally
rich in traditional and indigenous knowledge, both coded and informal. 2.
India is a Party to the Convention on Biological Diversity (1992). The main
objectives of the Convention are: 3.
Recognizing the sovereign rights of States to use their own biological
resources, the Convention expects the Parties to facilitate access to genetic
resources by other Parties for environmentally sound purposes subject to
national legislation and on mutually agreed upon terms (Articles 3 and 15).
Article 8 (j) of the Convention recognizes contributions of local and indigenous
communities to the conservation and sustainable utilization of biological
diversity through traditional knowledge, practices and innovations and provides
for equitable sharing of benefits with such people arising from the utilisation
of their knowledge, practices and innovations. 4.
Biodiversity is a multi-disciplinary subject involving diverse sectoral
activities and actions. The stakeholders in biological diversity include the
Central Government, State Governments, institutions of local self-government,
scientific and technical institutions, experts, non-governmental organisations,
industry, etc. One of the major challenges before India lies in adopting an
instrument which helps realise the objectives of equitable sharing of benefits
enshrined in the Convention on Biological Diversity. 5.
After an extensive and intensive consultation process involving the
stakeholders, the Central Government has decided to bring a legislation with the
following salient features:-- (i)
to regulate access to biological resources of the country with the purpose of
securing equitable share in benefits arising out of the use of biological
resources, and associated knowledge relating to biological resources, 6.
The proposed legislation primarily addresses the issue concerning access to
genetic resources and associated knowledge by foreign individuals, institutions
or companies, and equitable sharing of benefits arising out of the use of these
resources and knowledge to the country and the people. In order to safeguard the
interests of the local people, vaids and hakims and to allow research by Indian
citizens within the country, the following exceptions are proposed:- 7.
It is proposed to have National Biodiversity Authority, State Biodiversity
Boards and Biodiversity Management Committees. (b)
State Biodiversity Boards will deal with matters relating to access by Indians
for commercial purposes and restrict any activity which violates the objectives
of conservation, sustainable use and equitable sharing of benefits. (c)
Biodiversity Management Committees will be set up by institutions of self-
government in their respective areas for conservation, sustainable use,
documentation of biodiversity and chronicling of knowledge relating to
biodiversity. Biodiversity Management Committees shall be consulted by the
National Biodiversity Authority and State Biodiversity Boards on matters related
to use of biological resources and associated knowledge within their
jurisdiction. 8.
It is proposed to set up Biodiversity Funds at Central, State and local levels.
The monetary benefits, fees, and royalties received as a result of approvals by
National Biodiversity Authority will be deposited in National Biodiversity Fund.
The Fund will be used for conservation and development of areas from where
resources have been accessed. 9.
Normally-traded commodities may be exempted by the Central Government, by
notification, and in consultation with the National Biodiversity Authority, from
the purview of the proposed legislation. 10.
Traditional knowledge is proposed to be protected. It is also proposed that the
State Governments notify National Heritage Sites which are important from the
standpoint of biodiversity, in consultation with institutions of local self
government. 11.
The notes on clauses explain in detail the various provisions contained in the
Bill. 12.
The Bill seeks to achieve the above objectives. PRESIDENT'S
RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA
T.R.
BAALU [Copy
of letter No. J-22018/11/2000-CSC (BC) dated 8 May, 2000 from Shri T.R. Baalu,
Minister for Environment and Forests to the Secretary-General, Lok Sabha.] The
President, having been informed of the proposed Bill to protect India's rich
biodiversity and associated knowledge against their use by foreign individuals
and organisations without sharing the benefits arising out of such use, has
given his recommendation for introduction of the Bill under article 117(1) and
for consideration of the Bill under article 117(3) of the Constitution. Notes
on Clauses
Clause
1--This clause gives the short title of the Bill, the area of its operation and
the date of commencement of the Act and its various provisions. As adequate
steps have to be taken for administering the provisions of the proposed
legislation, provision has been made that different dates may be appointed for
the different provisions of the Act. Clause
2--This clause contains definition of various expressions used in the Bill, such
as "Benefit claimers", "Biological Diversity",
"bio-survey and bio-utilisation", "Equitable benefit
sharing", "National Biodiversity Authority", "State
Biodiversity Board" and "Sustainable use". etc. Clause
3--This clause specifies that certain persons such as non-Indian citizens, NRIs,
body corporate associations or organisations not incorporated/registered in
India or registered in India but have non-Indian citizen participation in its
share capital or management cannot undertake biodiversity related activities
without approval of National Biodiversity Authority. Clause
4--This clause provides that no person who intends to transfer the results of
research relating to biological resources occurring or obtained from India to
non-Indian citizens; any body corporate association or organisation; any body
corporate registered in India but has non-Indian participation in share capital
or management, shall do so without obtaining approval of National Biodiversity
Authority. Publication of research papers or dissemination of knowledge through
seminars or workshops is exempted provided such publications, etc. are as per
the policy guidelines of the Central Government. Clause
5--Under this clause collaborative research projects are exempted from the
provisions of clauses 3 and 4 if such collaborative research projects are
approved by the Central Government and are drawn up as per the policy guidelines
specified by the Central Government. Collaborative research projects based on
agreements concluded before the commencement of this Act are required to make
appropriate amendments to conform to the provisions of this Act. Clause
6--This clause provides that any person seeking any kind of intellectual
property right in or outside India for any invention based on any biological
research or information on a biological resource obtained from India, is
required to obtain prior permission of the National Biodiversity Authority. In
case of persons applying for Patents, prior permission of the National
Biodiversity Authority is required after the acceptance of the Patent but before
sealing of the Patent by the concerned patent authority. It provides for the
National Biodiversity Authority to impose for benefit sharing fee or royalty or
both or impose conditions for sharing of financial benefits arising out of the
commercial utilisation of such rights. Clause
7--This clause provides that Indian citizens, body corporate, association or
organisation registered in India are required to give prior intimation to the
State Biodiversity Boards about obtaining biological resources for commercial
utilization. However, local people and communities of the area including vaids
and hakims who have been practising indigenous medicine are exempted from the
provisions of this clause. Clause
8--This clause provides for the establishment of an Authority to be called
"The National Biodiversity Authority". The head office of the
Authority shall be located at Chennai. The Authority shall consist of a
Chairperson, eight ex officio members and five non-official members. The
Chairperson shall be an eminent person in the field of conservation and
sustainable use of biological diversity and in matters relating to equitable
sharing of benefits. The ex officio members include representatives of the
Ministries dealing with Environment and Forests, Agricultural Research and
Education, Ocean Development, Agriculture & Cooperation, Indian Systems of
Medicine and Homeopathy, and Tribal Affairs. The non-official members include
specialists and scientists in the field of biological diversity, representatives
of industry, conservers and knowledge holders of biological resources. Clause
9--This clause specifies that the term of office, and service conditions of the
non-official members will be laid down in the rules. Clause
10--This clause specifies that the Chairperson of the Authority shall be the
Chief Executive of the authority. His detailed powers and functions will be laid
down in the rules. Clause
11--This clause lays down the conditions for removing the members from the
National Biodiversity Authority. Clause
12-- This clause lays down detailed procedure for convening the meetings of the
Authority. Clause
13--This clause seeks to provide for the appointment of various committees by
the Authority for efficient discharge of its duties. One such committee will be
on agro-biodiversity. Clause
14--This clause seeks to provide for the appointment of various officers and
employees of the Authority for efficient performance of its functions. It also
enables the Central Government to lay down rules governing the method of
appointment, salary and other terms and conditions of the officers and
employees. Clause
15--This clause provides that all orders and decisions of the Authority shall be
authenticated by the signature of the Chairperson or any member authorised by
the National Biodiversity Authority. Clause
16--This clause enables the Authority to delegate its powers (except the power
to settle disputes under section 50 and the power to make regulations under
clause 62) by order in writing to the Chairperson or any member or officer of
the National Biodiversity Authority subject to such conditions or limitations. Clause
17--This clause provides that salaries and allowances payable to members,
officers and other employees of the National Biodiversity Authority shall he
defrayed out of the Consolidated Fund of India. Clause
18--This clause lays down the detailed functions of the Authority which include
granting of approvals for undertaking any activity referred to in clauses 3, 4
and 6, framing guidelines for access and equitable sharing of benefits; advising
the Central Government on matters relating to conservation and sustainable use
of biological diversity; advise the State Governments in the selection of areas
to be notified as heritage sites. This clause also provides that the National
Biodiversity Authority may take necessary measures to oppose grant of
Intellectual Property Rights in any country outside India on any biological
material obtained from India or associated knowledge which is derived from
India. Clause
19--This clause provides for making application to the Authority for undertaking
activities referred to in clauses 3, 4 and 6. This clause specifies that after
receiving of application, the National Biodiversity Authority shall make an
appraisal of the case and either grant approval subject to terms and conditions
or reject the application giving reasons. Clause
20--This clause stipulates that persons granted approvals under section 19 are
required to obtain approval by the Authority for third party transfer. Clause
21--This clause deals with determination of equitable sharing of benefits by the
authority while granting approvals under clauses 19 and 20. It stipulates that
the authority in consultation with local bodies impose terms and conditions for
securing equitable sharing of benefits; depositing of monetary benefits into the
National Biodiversity Fund except in cases where biological resources and
knowledge are accessed from specific individual or group of individuals, in
which case the monetary benefit will be directly made to the providers. Clause
22--This clause provides for the establishment of Biodiversity Boards by the
State Governments to be called "State Biodiversity Board". The Board
shall consist of a Chairperson, five ex officio members representing various
departments of the State Governments and five non-official members. Clause
23--This clause specifies the general functions of the State Biodiversity Board. Clause
24--This clause provides that the State Biodiversity Board may regulate the
activities of Indian citizens, body corporate, organisation or association
registered in India, related to obtaining of biological resources for commercial
utilisation. Indian citizens, body corporate, association, etc., are required to
give prior intimation to State Biodiversity Board about obtaining biological
resources for commercial utilization. The State Biodiversity Board, in
consultation with local bodies and after making enquiries, restrict such
activity if it is contrary to the objectives of conservation or sustainable use
of biodiversity or equitable sharing of benefits. Clause
25--This clause provides that clauses 9 to 17 will apply to State Biodiversity
Board with certain modifications. Clause
26--This clause enables the Central Government to provide grants and loans to
the National Biodiversity Authority for the implementation of the various
provisions of the proposed legislation after due appropriation by Parliament. Clause
27- This clause provides for constitution of a National Biodiversity Fund;
grants and loans to the Authority, all charges and royalties received by the
Authority, etc., shall be credited into this Fund. The Fund shall be utilised
for channelling benefits to the benefit claimers, conservation of biological
resources and development of areas from where biological resources and knowledge
have been accessed. Clause
28--This clause deals with the preparing of the Annual Report by the National
Biodiversity Authority giving full account of its activities including audited
statement of accounts. Clause
29--This clause provides that the accounts of National Biodiversity Authority
will be audited by the Comptroller and Auditor General of India and a copy of
audited statement of accounts will be furnished to the Central Government. Clause
30--This clause provides that the Annual Report and Auditors' Report of the
National Biodiversity Authority will be laid before the Parliament. Clause
31--This clause enables the State Governments to provide grants and loans to the
State Biodiversity Boards, after due appropriation by the State Legislatures. Clause
32--This clause provides for constitution of State Biological Diversity Fund.
grants or loans to the State Biodiversity Boards, and any grants or loans made
by the National Biodiversity Authority and from other sources shall be credited
into the State Biodiversity Fund. The Fund shall be utilised for conservation of
biological resources, management and conservation of Heritage sites,
socio-economic development of areas from where biological resources and
knowledge have been accessed, subject to any approval granted by the State Board
under clause 24. Clause
33--This clause deals with the preparing of the Annual Report by the State
Biodiversity Boards. Clause
34--This clause provides that the accounts of the State Biodiversity Board will
be audited by the Accountant General of the State and a copy of the audited
statement will be furnished to the State Government. Clause
35--This clause provides that the Annual Report and Auditors' Report of the
State Biodiversity Board will be laid before the State Legislature. Clause
36--Under this clause the Central Government shall develop national strategies,
plans and programme for conservation and sustainable use of biodiversity; as far
as Clause
37-- This clause provides that the State Government may, in consultation with
the local bodies, notify areas of biodiversity importance as biodiversity
heritage sites under this Act, in consultation with the Central Government frame
rules for the management and conservation of heritage sites; and framing of
schemes for compensating or rehabilitating people economically affected by such
notification. Clause
38-- This clause empowers the Central Government to notify threatened species,
prohibit or regulate their collection and take steps to rehabilitate and
preserve these species. Clause
39--This clause provides that the Central Government in consultation with the
National Biodiversity Authority may designate institutions as Repositories under
this Act for different categories of biological resources; the Repositories to
keep in safe custody the biological materials including voucher specimens
deposited with them; and that any new taxon discovered shall he notified to the
Repositories or any other institution designated for this purpose and its
voucher specimen deposited with such Repository or institution. Clause
40--This clause provides that the Central Government may in consultation with
the National Biodiversity Authority exempt, by notification biological resources
normally traded as commodities from the provisions of this Act. Clause
41--This clause stipulates that every local body shall constitute a Biodiversity
Management Committee for conservation, sustainable use and documentation of
biodiversity; the National Biodiversity Authority and the State Boards will
consult the Biodiversity Management Committees while taking any decision
relating to the use of biological resources and associated knowledge occurring
within their Jurisdiction, and the Biodiversity Management Committee may impose
collection fees for collecting biological resources from their territory. Clause
42--This clause enables the State Government to provide grants or loans to Local
Biodiversity Funds after due appropriation by the State Legislature. Clause
43--This clause provides for constitution of a Local Biodiversity Fund in areas
where institutions of self-government are functioning. Grants or loans made by
the National Authority, any grants or loans made by the State Biodiversity
Boards, collection fees received by the Biodiversity Management Committee, and
other sources shall be credited into such Fund. Clause
44--This clause provides that the Local Biodiversity Fund shall be used for
conservation of biodiversity in the jurisdiction of the local self-governments. Clause
45--This clause provides for preparing the Annual Report of the Biodiversity
Management Committee and accounts for submission to the State Governments. Clause
46--This clause provides that the accounts of the Local Biodiversity Fund Clause
47--This clause provides that the Annual Report and the Auditors' Report of the
Local Biodiversity fund will he laid before the State Legislature. Clause
48--This clause stipulates that the National Biodiversity Authority in discharge
of its functions and duties shall he bound by the directions of the Central
Government. Clause
49--This clause stipulates that the State Biodiversity Board in discharge of its
functions and duties shall be bound by the directions of the State Government. Clause
50--This clause sets out the detailed procedure for settlement of disputes
between State Biodiversity Boards; proceedings before the National Authority
shall be deemed to be a judicial proceeding for the purpose of section 196 of
the Indian Penal Code and the National Authority shall be deemed to be a Civil
Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973. Clause
51--This clause states that the members officers and other employees of the Clause
52--This clause provides for protection of action taken in good faith by the
Central Government or the State Government, officers and employees of the said
governments, members, officers or employees of the National Biodiversity
Authority or the State Biodiversity Board, from any suit, prosecution or other
legal proceedings. Clause
53--This clause provides for penalties for contravening clauses 3, 4 and 6. The
penalty will be imprisonment for a term which may extend to 5 years or fine
which may extend to Rs. 10 lakhs or both; and that penalty for contravention of
the provisions of clause (7) and sub-clause (1) of clause 24 shall be
imprisonment for a term which may extend to three years or fine which may extend
to Rs. 5 lakhs or both. Clause
54--This clause provides for penalty for contravention of directions or orders
of the Central Government, the State Government, the National Biodiversity
Authority and the State Biodiversity Boards. Clause
55--This clause contains provisions for offences by companies. This clause seeks
to provide that where a person committing offence is a company, every person
responsible in the company for the conduct of its business will be liable; where
a person accused proves that the offence was committed without his knowledge he
will not be liable. However, where it is proved that an offence has been
committed with the consent or connivance or is attributable to the neglect of
any director, manager, secretary or any other officer of the company, he shall
be deemed to be guilty of the offence. Clause
56--This clause provides that the offences under this act shall be cognizable
and non-bailable. Clause
57--This clause states that the provisions of the proposed legislation shall
have overriding effect on all other laws for the time being in force or anything
inconsistent with the proposed legislation contained in any instrument. Clause
58--This clause stipulates that the Central Government may give directions to
the State Governments for execution any of the provisions of this Act. Clause
59--This clause provides that no court shall take cognizance of any offence
under this act or rules/regulations made thereunder except for complaints made
by National Biodiversity Authority or State Biodiversity Boards. Clause 60--This clause empowers the Central Governme |
