India in 2002 enacted the Biological Diversity Act, 2002 (BD Act) that came into force entirely in 2004 primarily to give effect to the United Nations Convention on Biological Diversity (CBD) held at Rio De Janeiro in 1992. India signed the CBD on June 5, 1992; ratified the Convention on February 18, 1994; and became a party to the same on May 19, 1994.
Statutory Provisions and Regulations Issued under BD Act, 2002
The main objective behind enacting the BD Act was to conserve Indian biological diversity, regulate access to Indian biological resources, ensure equitable benefit sharing arising from the utilization of those resources, and establish various governing bodies such as the National Biodiversity Authority (NBA) at the national level, the State Biodiversity Boards (SBBs) at the state level, and Biodiversity Management Committees (BMCs) at the local level.
The BD Act provides for four major categories of approvals. First, Section 3 of the Act mandates that people who are not citizens of India, entities registered outside India, and Indian companies having any portion of their shareholding or management held by non-Indians are required to obtain prior approval of NBA by applying in the prescribed manner (Form I under Rule 14 of the Biological Diversity Rules, 2004) to access biological resources occurring in India or any traditional knowledge associated thereto to undertake activities such as “research” or “commercial utilization” or “bio-survey and bio-utilization.” Further, Section 7 of the Act mandates that people who are citizens of India and entities registered in India can obtain biological resources occurring in India for “commercial utilization” or “bio- survey and bio-utilization for commercial utilization” only after giving an intimation of the said access to the concerned SBB in the form and manner prescribed under the concerned State Biodiversity Rules. Second, Section 4 of the Act mandates that all people are required to obtain the prior approval of NBA by applying in the prescribed manner (Form II under Rule 17 of the Biological Diversity Rules, 2004) for transferring “results of research” relating to Indian biological resources. This approval applies only when a transferee is not a citizen of India or is an entity registered outside India or Indian companies having any portion of their shareholding or management held by non- Indians. Third, Section 6 of the Act mandates that all people are required to obtain prior approval of NBA by applying in the prescribed manner (Form III under Rule 18 of the Biological Diversity Rules, 2004) before applying for any intellectual property right within or outside India for any invention based on any research or information on Indian biological resources. Fourth, Section 20 of the Act mandates that all people are required to obtain prior approval of NBA by applying in the prescribed manner (Form IV under Rule 19 of the Biological Diversity Rules, 2004) before transferring any Indian biological resource to others.
Another pertinent provision under the BD Act is Section 40, which provides that the Central Government may, in consultation with NBA, declare by means of a notification that the provisions of the Act shall not apply to certain Indian biological resources that are normally traded as commodities. The Central Government has previously issued a notification (S.O. 2726, dated October 26, 2009) enlisting 190 species of plants as exempt from the provisions of the Act, provided they are normally traded as commodities. However, the said notification stands superseded by another notification (S.O.1352, dated April 7, 2016) that enlists 384 species of plants as exempt from the provisions of the Act, provided they are normally traded as commodities. The said notification also clarifies that products derived from the 384 species of plants and traded as a matter of common practice shall also be treated as normally traded as commodities, and in such cases, the onus of substantiation that the said products fall within common practice shall lie on the claimant.
Further, a very important notification issued under the BD Act is the Guidelines on Access to Biological Resources and Associated Knowledge and Benefit-Sharing Regulations, 2014 (“ABS Regulations”) that was notified on November 21, 2014 by NBA under the aegis of the Ministry of Environment, Forests, and Climate Change. This notification was issued following the Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to CBD, which came into force on October 12, 2014. The ABS Regulations provide that benefit-sharing may be done in monetary and/or non-monetary modes, as agreed upon by the applicant and NBA (Regulation 7). Annexure I to the ABS Regulations contains the various types of monetary and non-monetary benefits that could be shared and are essentially adapted from the Annexure to the Nagoya Protocol. The benefit-sharing obligations and approvals in general are implemented through a mutual agreement between a party seeking access and use of biological resources occurring in India on one hand and NBA on the other hand. NBA also consults SBBs and BMCs from areas concerned in granting approvals for activities under the BD Act.
I. Recent Litigation under Biological Diversity Act, 2002
The Nagpur Bench of the Bombay High Court in the case of Central India Ayush Drugs Manufacturers Association and Ors. vs State of Maharashtra and Ors. 1 by order dated September 28, 2016 dismissed a preliminary objection raised by respondents as to the maintainability of the writ petition pertaining to challenging the vires of certain provisions under the BD Act before the Bombay High Court. The bench held that the Bombay High Court has jurisdiction to entertain the writ petition pertaining to challenging the vires of certain provisions under the BD Act and that petitioners do not have any alternative remedy before National Green Tribunal (NGT) to raise grounds asserted in the writ petition.
In the said writ petition, petitioners’ inter alia sought the following reliefs:
- A declaration that Rule 17 of the Biological Diversity Rules, 2004 does not apply to Indian entities or body corporates;
- As an alternative to the abovementioned point, a declaration that to the extent Rule 17 of the Biological Diversity Rules, 2004 envisages equitable sharing of benefits by Indian entities, it should be declared ultra vires to the provisions of the Act and therefore unconstitutional;
- A declaration that the ABS Regulations, notified on November 21, 2014 by NBA under the aegis of the Ministry of Environment, Forests, and Climate Change, apply only to transactions involving non-Indian entities and that the same do not apply to Indian entities not trading any biological resources with non-Indian entities;
- A declaration that the ABS Regulations are ultra vires of Sections 23 and 24 of the BD Act.
The division bench of the Bombay High Court vide order dated December 2, 2015 issued notices to the concerned respondents (NBA, Maharashtra SBB, State of Maharashtra, and Union of India) and restrained them from taking any coercive action against the petitioners under the BD Act and Biological Diversity Rules, 2004.
The division bench of the Bombay High Court vide order dated December 2, 2015 issued notices to the concerned respondents (NBA, Maharashtra SBB, State of Maharashtra, and Union of India) and restrained them from taking any coercive action against the petitioners under the BD Act and Biological Diversity Rules, 2004. Subsequently, the respondents raised a preliminary objection as to the maintainability of the writ petition before the Bombay High Court on grounds that the issues raised by the petitioners in the instant writ petition could be decided only by NGT by virtue of Section 14 of the NGT Act, 2010.
Section 14 of the NGT Act reads as follows:
- The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I.
- The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
- No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
The respondents placed reliance upon the Constitution Bench judgment of the Hon’ble Supreme Court in the case of L. Chandrakumar v. Union of India and Ors. 2 and submitted that Tribunals such as NGT were constituted with a view to reduce frivolous litigation in high courts and that reliefs claimed by the petitioners in the instant petition could be examined by NGT as the petitioners are challenging the vires of the BD Act and not the NGT Act or Rules that constitute the parent enactment of NGT.
The petitioners on the other hand argued that when there is a challenge to the vires of any Act or Rule, a Tribunal does not possess jurisdiction to look into the validity of the said challenged statutory provision. It was further argued that Section 14 of the NGT Act does not confer any jurisdiction beyond what is provided in the enactments mentioned under Schedule-I of the Act. Thus, it was contended that NGT only has the power to entertain an appeal as provided under Section 52A of the BD Act and it does not have the power to adjudicate upon any challenge to the vires of provisions under the BD Act or Biological Diversity Rules, 2004 or any regulations made thereunder.
The division bench considered the provisions of the NGT and BD Acts and of the enactments under Schedule-I of the NGT Act and interpreted that under Section 14 of the NGT Act, NGT has been conferred with only limited jurisdiction to deal with specific types of civil disputes. The bench held that NGT has the power to entertain disputes subject to the fulfilment of the following ingredients:
- that disputes must be civil in nature;
- disputes must necessarily arise out of the implementation of the enactments specified in Schedule I; and
- disputes must involve a substantial question relating to the environment.
The bench held that only if the abovementioned ingredients are satisfied, the bar under Section 14(1) of the NGT Act gets attracted such that jurisdiction in such cases lies solely with NGT. On the question as to whether NGT can adjudicate issues raised in an instant writ petition, the bench, placing reliance on an earlier Division Bench judgment 3 of the same high court, wherein a similar contention under the City of Nagpur Corporation Act, 1948 was dealt with, held that NGT does not have the power to adjudicate upon any dispute arising out of a challenge as to the vires of any provision of any subordinate legislation mentioned under Schedule I of the NGT Act or any regulations made thereunder. The bench reasoned that the scheme of the NGT Act does not permit NGT to decide upon the vires of any enactment that confers appellate or other jurisdiction upon it and accordingly dismissed the preliminary objection.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.