Summary
This post examines the regulatory framework established by the National Biodiversity Authority (NBA) under India's Biological Diversity Act, 2002. It discusses the background of the Convention on Biological Diversity and India's obligations as a signatory. The NBA's role in regulating access to India's unique biological resources, overseeing benefit-sharing arrangements, and involving state and local bodies is outlined. The post highlights mechanisms such as Prior Informed Consent and Mutually Agreed Terms, particularly in the context of foreign research entities, and addresses the NBA's authority beyond national boundaries. The author concludes by evaluating the effectiveness of the NBA in balancing conservation, sustainable use, and equitable sharing of benefits.
India’s rich biological heritage — encompassing an extraordinary range of plant, animal, and microbial species — has long attracted interest from foreign researchers, corporations, and governments. The need to regulate access to those resources while ensuring that their benefits are shared equitably with the country and its indigenous communities gave rise to a dedicated statutory framework.
The Convention on Biological Diversity
The Convention on Biological Diversity came into force on December 29, 1993. It identifies three principal objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the utilisation of genetic resources. Article 2 of the Convention on Biological Diversity defines “biological diversity” as meaning “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.”
India became a party to the Convention in 1992. Ratification led to the enactment of the Biological Diversity Act, 2002 (the “2002 Act”), designed to fulfil India’s obligations as a member state.
The National Biodiversity Authority
The National Biodiversity Authority (NBA) was established as an autonomous body in 2003, pursuant to the 2002 Act. Headquartered in Chennai, it serves as the apex regulatory body for the implementation of the Act. Its principal mandate is to regulate access to India’s biological resources by foreign individuals and corporate bodies, and to ensure that such projects are conducted within parameters that prevent exploitation of those resources.
Recognising that effective regulation cannot be achieved by a central authority alone, the legislature established State Biodiversity Boards and local bodies under Section 22 of the 2002 Act, and under Clause (1) of Article 243B and Clause (1) of Article 243Q of the Constitution respectively. These bodies enable implementation at the state and municipal levels.
Regulation of Foreign Access
Any foreign individual or corporate body seeking to conduct research in India using biological resources is required to obtain prior approval from the NBA. Applicants must provide a detailed description of the proposed research project, identify the resources to be used, and specify the duration of the project. The NBA evaluates each application on its merits; projects proposing to use endangered resources may be refused. Where approval is granted, it may be subject to conditions.
Where a proposed project involves resources of significance to a tribal community residing in India, the NBA requires that Prior Informed Consent (PIC) be obtained from the relevant community. Projects of this nature are implemented on Mutually Agreed Terms (MATs) if the community or the authorities specify conditions regarding the use of those resources. Indian entities, by contrast, are required only to notify the relevant State Biodiversity Board.
Access Benefit Sharing
A central component of the regulatory framework is the principle of Access Benefit Sharing (ABS). The NBA evaluates the commercial value of each approved project and frames appropriate benefit-sharing arrangements. These may require a percentage of annual profits to be paid to the Government or mandate that the outputs of the research be made available in India at subsidised prices. The NBA’s regulatory authority is not confined to India: if a foreign entity applies for a patent in another country using biological resources obtained from India without prior NBA approval, the NBA has the power to oppose such patent applications before the relevant foreign patent authority, and may impose penalties for such unauthorised use.
Institutional Functions
The NBA exercises three categories of functions: facilitative, regulatory, and advisory. In its facilitative capacity it supports conservation and sustainable use of biological resources. In its regulatory capacity it controls access by foreign entities. In its advisory capacity it provides guidance to the Government of India on matters of conservation, sustainable use, and equitable benefit sharing.
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.