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3 August 2023
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The Biological Diversity (Amendment) Bill, 2023 – An Overview

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Shardul Amarchand Mangaldas & Co

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The Parliament on 1 August 2023 passed the Biological Diversity (Amendment) Bill, 2023 which amends the Biological Diversity Act, 2002.
India Food, Drugs, Healthcare, Life Sciences

The Parliament on 1 August 2023 passed the Biological Diversity (Amendment) Bill, 2023 which amends the Biological Diversity Act, 2002. The 2002 Act establishes a mechanism for fair and equitable sharing of benefits arising from the utilisation of biological resources as well as the preservation of biological diversity and the sustainable use of its components. The Bill encourages the use of indigenous medicine, provides for the simplification of patent applications for research and promotes the cultivation of wild medicinal plants. Some of the significant changes include:

Approval from NBA: The National Biodiversity Authority (NBA) oversees access to biological resources and the dissemination of research findings on such resources. Plants, animals, microorganisms or their genetic material that is useful to or valuable to humanity (human genetic material excluded) are considered as biological resources.

Before acquiring biological resources or submitting an IPR application, the following individuals and organisations are required to seek clearance from the NBA:

  • non-citizens
  • non-resident citizens
  • organisations not registered in India
  • organisations registered in India with any non-Indian shareholding or management.

The Bill has expanded the last group to include any 'foreign-controlled' companies that are registered in India under the Companies Act, 2013.

National Biodiversity Authority composition: The Bill has amended the total number of members and provides that the Authority shall have eleven more members which include:

  • six ex-officio members
  • four representatives from state biodiversity boards (SBBs)
  • one member-secretary

State Biodiversity Boards: Earlier, before obtaining any biological resource for commercial use, Indian citizens and organisations with Indian registration had to notify the relevant SBB and they also had to receive NBA's clearance. This is being changed by the Bill, which mandates that anyone who wishes to use biological resources but does not need NBA permission must first notify the relevant SBB. The Bill also adds that SBB will have the authority to determine 'benefit sharing' while granting or disposing applications for approvals.

Prior Intimation to SBB: The 2002 Act only specified entities which required NBA approval for obtaining biological resources occurring in India for commercial utilization. The Bill now mandates these specified entities to provide prior intimation for access to associated knowledge as well as for commercial utilization. Earlier, only the use by local people and communities including growers and cultivators of biodiversity, vaids and hakims practising indigenous medicines were exempted from intimation to SBB but now the Bill has extended this exemption for:

  • codified traditional knowledge
  • cultivated medicinal plants / products
  • AYUSH practitioners

Approval for IPR: The 2002 Act mandated approval from NBA before applying for intellectual property rights (IPR) or sealing of a patent. The Bill has changed the approval requirements and has eased the burden by requiring approval before the grant of IPR rather than before the application itself. Foreign companies will still require approval from NBA as against domestic companies which only need to register with NBA hereafter.

Biodiversity Management Committee (BMC): The 2002 Act required state governments to establish a BMC for encouraging habitat protection and recording the conservation of certain plant species, animal breeds and microorganisms. The Bill now stipulates that these BMCs must have a 7 to 11 members committee and additionally, state governments now have been directed to constitute BMCs in rural as well as urban areas for conservation of landraces, folk varieties, domesticated stocks etc.

Offences and Penalties: The offences under the 2002 Act were both cognizable and non-bailable. The offences under the Act earlier were punishable with imprisonment upto 5 years, fine, or both. The Bill has decriminalized this provision and has made all offences punishable with a penalty between 1 lakh to 500 lakhs. It also stipulates that an adjudicating officer shall be holding the inquiry in determining the penalties on a case-to-case basis.

The Biological Diversity (Amendment) Bill, 2022 has been passed by both houses of the Parliament after much deliberations. The joint parliamentary committee accepted several amendments which include exempting users of codified traditional knowledge and decriminalizing violations with penalties. The changes will promote the sustainable use of biological resources as well as the practice of traditional forms of medicine. It has been argued that the exemptions may lead to a loss of revenue and local communities specially may not receive their fair share of benefits. Decriminalisation of offences may also lead to over exploitation of biological resources. However, these changes could also boost the government initiatives to promote Ayurveda and if implemented properly could actually be more beneficial than the existing law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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