Bill No. 93 of 2000

 

THE BIOLOGICAL DIVERSITY BILL, 2000

ARRANGEMENT OF CLAUSES

CHAPTER I

PRELIMMARY

CLAUSES

1. Short title, extent and commencement

2. Definitions

CHAPTER II

REGULATION OF BIOLOGICAL DIVERSITY

3. Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority.

4. Result of research not to be transferred to certain persons without approval of National Biodiversity Authority.

5. Section 3 and 4 not to apply to certain collaborative research projects.

6. Application for intellectual property rights not to be made without approval of National Biodiversity Authority.

7. Prior intimation to State Biodiversity Board for obtaining biological resource for certain purposes.

CHAPTER III

NATIONAL BIODIVERSITY AUTHORITY

8. Establishment of National Biodiversity Authority.

9. Conditions of service of Chairperson and Members.

10. Chairperson to be Chief Executive of National Biodiversity Authority.

11. Removal of Members.

12. Meetings of National Biodiversity Authority.

13. Committees of National Biodiversity Authority.

14. Officers and employees of National Biodiversity Authority.

15. Authentication of orders and decisions of National Biodiversity Authority.

16. Delegation of powers.

17. Expenses of National Biodiversity Authority to be defrayed out of the Consolidated Fund of India.

CHAPTER IV

FUNCTIONS AND POWERS OF THE NATIONAL BIODIVERSITY AUTHORITY

18. Functions of National Biodiversity Authority.

CHAPTER V

APPROVALS BY THE NATIONAL BIODIVERSITY AUTHORITY

CLAUSES

19. Approval by National Biodiversity Authority for undertaking certain activities.

20. Transfer of biological resource-or knowledge.

20. Determination of equitable benefit -haring by National Biodiversity Authority.

CHAPTER VI

STATE BIODIVERSITY BOARD

22. Establishment, of State Biodiversity Board.

23. Functions of State Biodiversity Board.

24. Power of State Biodiversity Board to restrict certain activities violating the objectives of conservation, etc.

25. Provisions of sections 9 to 17 to apply with modifications to State Biodiversity Board.

CHAPTER VII

FINANCE, ACCOUNTS AND AUDIT OF NATIONAL BIODIVERSITY AUTHORITY

26. National Biodiversity Fund.

27. Application of National Biodiversity Fund.

28. Annual report of National Biodiversity Authority.

29. Budget, accounts and audit.

30. Annual report to be laid before Parliament

CHAPTER VIII

FINANCE, ACCOUNTS AM AUDIT OF STATE BIODIVERSITY BOARD

31. Grant of money by State Government to State Biodiversity Board.

32. State Biodiversity Fund.

33. Annual report of State Biodiversity Board.

34. Audit of accounts of State Biodiversity Board.

35. Annual report of State Biodiversity Board, to be laid before State Legislature,

CHAPTER IX

DUTIES OF THE CENTRAL AND THE STATE GOVERNMENTS

36. Central Government to develop National strategies, plans etc., for conservation, etc., of biological diversity.

37. Biodiversity Heritage sites.

38. Power of Central Government to notify threatened species.

39. Power of Central Government to designate repositories.

40. Power of Central Government to exempt certain biological resources.

CHAPTER X

BIODIVERSITY MANAGEMENT COMMITTEES

CLAUSES

4 1. Constitution of Biodiversity Management Committees.

CHAPTER XI

LOCAL BIODIVERSITY FUND

42. Grants to Local Biodiversity Fund.

43. Constitution of Local Biodiversity Fund.

44. Application of Local Biodiversity Fund.

45. Annual report of Biodiversity Management Committees.

46. Audit of Accounts of Biodiversity Management Committees.

47. Annual report of Biodiversity Management Committee to be laid before State Legislature.

CHAPTER XII

MISCELLANEOUS

48. The National Biodiversity Authority to be bound by the directions given by Central Government.

49. Power of State Government to give directions.

50. Settlement of disputes between State Biodiversity Boards.

51. Members, officers, etc., of National Biodiversity Authority and State Biodiversity Board deemed to be public servants.

52. Protection of action taken in good faith

53. Penalties.

54. Penalty for contravention of directions or orders of Central Government, State Government, National Biodiversity Authority and State Biodiversity Boards.

55. Offences by companies.

56. Offences to be cognizable and non-bailable.

57. Act to have overriding effect.

58. Power of Central Government to give directions to State Government.

59. Cognizance of offences.

60. Power of Central Government to make rules.

61. Power of State Government to make rules.

62. Power to make regulations.

63. Power to remove difficulties.

 

Bill No. 93 of 2000

THE BIOLOGICAL DIVERSITY BILL, 2000

A

BILL

to provide for conservation of Biological Diversity, sustainable use of its components and equitable sharing of the benefits arising out of the use of biological resources and for matters connected therewith or incidental thereto.

WHEREAS India is rich in biological diversity and associated traditional and contemporary knowledge system relating thereto;

AND WHEREAS India 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, 190;

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 of the Republic of India as follows:

CHAPTETER I

PRELIMINARY

1. Short title, extent and commencement

(1) This Act may be called the Biological Diversity Act, 2000,

(2) It extends to the whole of India.

(3) it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

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.

2. Definitions.

In this Act, unless the context otherwise requires,-

(a) "benefit claimers" means the conservers of biological resources, their byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application;

(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 eco-systems;

(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;

(e) "Chairperson" means-the Chairperson of the National Biodiversity Authority or, as the case may be, of the State Biodiversity Board;

(t) "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, within the meaning of clause (1) of4rticle 243B and clause (1) of article 243Q of the Constitution and in the absence of any Panchayats or Municipalities, institutions of self-government constituted under any Central Act or State Act;

'(h) "member" means member of the National Biodiversity Authority or a stale 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.

CHAVIER II

REGULATION OF BIOLOGICAL DIVERSITY

3. Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority

(1) No person referred to in sub-section (2) shall without previous approval of the National Biodiversity Authority obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation.

(2) The persons who shall be required to take the approval of the National Biodiversity Authority under sub-section (1) are the fc1lowing, namely:-

(a) a person who is not a citizen of India;

(b) a citizen of India, who is a non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961;

(c) a body corporate, association or organisation

(i) not incorporated or registered in India; or

(ii) incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or management.

4. Results of research not to be transferred to certain persons without approval of National Biodiversity Authority

No person shall without the previous approval of the National Biodiversity Authority, transfer the results of any research relating to any biological resources occurring or obtained from India for monetary consideration or otherwise to any person who is not a citizen of India or a body corporate or organisation which is not registered or incorporated in India or Which has any non-Indian participation in its share capital or management

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 issues by the Central Government.

5. Sections 3 and 4not to apply to certain collaborative research projects

(1) The provisions of sections 3 and 4 shall not apply to collaborative research projects involving transfer or exchange of biological resources or information relating thereto between institutions, including Government sponsored institutions of India, and such institutions in other countries, if such collaborative research projects satisfy the conditions specified in sub-section (3).

(2) All collaborative research project 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,

(a) conform to the policy guidelines issued by the Central Government in this behalf;

(b) be approved by the Central Government.

6. Application for intellectual property rights not to be made with out approval of National Biodiversity Authority

(1) No person shall apply for any intellectual property right by whatever name called in or outside India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application:

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.

7. Prior intimation to State Biodiversity Board for Obtaining biological resource for certain purposes.

No person who is a citizen of India or a body corporate, association or organisation which is registered in India shall obtain any biological resource for commercial utilisation or bio-survey and bio-utilisation except after giving prior intimation to the State Biodiversity Board concerned:

Provided that the provisions of this section shall not apply to the local people and communities of the area, including vaids land hakims, who have been practising indigenous medicine.

CHAPTER III

NATIONAL BIODIVERSITY AUTHORITY

8. Establishment of National Biodiversity Authority.

(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established for the purposes of this Act, a body to be called the National Biodiversity Authority.

(2) The National Biodiversity Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seat, 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.

(4) The National Biodiversity Authority 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 Central Government;

(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 whorn one shall be the Additional Inspector General of Forests or the Inspector General of Forests;

(c) five members ex officio to be appointed by the Central Government to represent respectively the Ministries of the Central Government dealing with--

(i) Agricultural Research and Education;

(ii) Biotechnology;

(iii) Ocean Development;

(iv) Agriculture and Cooperation;

(v) Indian Systems of Medicine and Homeopathy;

(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 resources, representatives of industry, conservers, creators and knowledge holders of biological resources.

9. Conditions of service of Chairperson and Members.

The term of office and conditions of service of the Chairperson aid the other members other than ex officio members shall be such as may be prescribed by the Central Government.

10. Chairperson to be Chief Executive of National Biodiversity Authority.

The Chairperson shall be the Chief Executive of the National Biodiversity Authority and shall exercise such powers and perform such duties, as may be prescribed.

11. Removal of members.

The Central Government may remove from the National Biodiversity Authority any member who, in its opinion has,-

(a) been adjudged as an insolvent; or

(b) been convicted of an offence which involves moral turpitude; or

(c) become physically or mentally incapable of acting as a member; or

(d) so abused his position as to render his continuance in office detrimental to the public interest; or

(e) acquired such financial or other interest as is likely to affect prejudicially his functions as a member.

12. Meeting of National Biodiversity Authority.

(1) The National Biodiversity Authority shall meet at such time and place and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be prescribed.

(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 be 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--

(a) any vacancy in, or any defect in the constitution of the National Biodiversity Authority; or

(b) any defect in the appointment of a person acting as a member; or

(c) any irregularity in the procedure of the National Biodiversity Authority not affecting the merits of the case.

13. Committees of National Biodiversity Authority

(1) The National Biodiversity Authority may constitute a committee to deal with agro-blodiversity.

Explanation.- For the purpose of this sub section "agro-biodiversity" means biological diversity of agriculture related species and 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.

14. Officers and other employees of National Biodiversity Authority

(1) The National Biodiversity Authority may appoint such officers employees as it considers necessary for the efficient discharge of its functions under this Act.

(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.

15. Authentication of orders and decisions of National Biodiversity Authority

All orders and decisions of the National Biodiversity Authority shall be authenticated by the signature of the Chairperson or any other member authorised by the National Biodiversity Authority in this behalf and all other instruments executed by the National Biodiversity Authority shall be authenticated by the signature of an officer of the National Biodiversity Authority authorised by in this behalf.

16. Delegation of powers

The National Biodiversity Authority may, by general or special order in writing, delegate to any member, officer of the National Biodiversity Authority or any other person subject to such conditions, if any, as may be specified in the order, such of the powers and functions under the Act (except the power to settle disputes under section 50 and the power to make regulations under section 62) as it may deem necessary.

17. Expressions of National Biodiversity Authority to be defrayed out of the Consolidated Fund in India.

The salaries and allowances payable to the members and the administrative expenses of the National Biodiversity Authority including salaries, allowances and pension payable to, or in respect of the officers and other employees of the National Biodiversity Authority shall be defrayed out of the Consolidated Fund of India.

CHAPTER IV

FUNCTIONS AND POWERS OF THE NATIONAL BIODIVERSITY AUTHORITY

18. Functions of National Biodiversity Authority

(1) It shall be the duty of the National Biodiversity Authority to regulate activities referred to in sections 3, 4 and 6 and by regulations issue guidelines for access to and equitable benefit sharing.

(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

(a) advise the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilisation of biological resources;

(b) advise the State Governments in the selection of areas of biodiversity importance to be notified as heritage sites and measures for the management of such heritage sites;

(c) perform such other functions as may be necessary to carry out the provisions of this Art.

(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 biological resource which is derived from India.

CHAPTER V

APPROVALS BY THE NATIONAL BIODIVERSITY AUTHORITY

19. Approval by National Biodiversity Authority for undertaking certain activities

(1) Any person referred to in sub-section (2) of section 3 who intends to obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation or transfer the results of any research relating to biological resources occurring in, or obtained from, India, shall make application in such form and payment of such fees as may be prescribed, to the National certain Biodiversity Authority.

(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.

20. Transfer of biological resource or knowledge.

(1) No person who has been granted approval under section 19 shall transfer any biological resource or knowledge associated thereto which is the subject matter of the said approval except with the permission of the National Biodiversity Authority.

(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.

21. Determination of equitable benefit sharing by National Biodiversity Authority.

(1) The National Biodiversity Authority shall while granting approvals under section 19 or section 20 ensure that the terms and conditions subject to which approval is granted secures equitable sharing of benefits arising out of the use of accessed biological resources, their by-products, innovations and practices associated with their use and applications and knowledge relating thereto in accordance with mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers.

(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;

(b) transfer of technology;

(c) location of production, research and development units in such areas which will facilitate better living standards to the benefit claimers;

(d) association of Indian scientists, benefit claimers and the local people with research and development in biological resources and bio-survey and bio-utilisation-,

(e) setting up of venture capital fund for aiding the cause of benefit claimers;

(f) payment of monetary compensation and other non-monetary benefits to the benefit claimers as the National Biodiversity Authority may deem fit.

(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 die Central Government, by regulations, frame guidelines.

CHAPTER VI

STATE BIODIVERSITY BOARD

22. Establishment of State Biodiversity Board.

(1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established for the purposes of this Act, a Board for the State to be known as the _________________ (name of the 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 it- 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.

23. Functions of State Biodiversity Board.

The functions of the State Biodiversity Board shall be to,-

(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.

 

24. Power of State Biodiversity Board to restrict certain activities violating the objectives of conservation, etc.

(1) Any citizen of India or a body corporate, Organisation or association registered in India intending to undertake any activity referred to in section 7 shall give prior intimation in such form as may be prescribed by the State Government to the State Biodiversity Board.

(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.

25. Provisions of sections 9 to 17 to apply with modifications to State Biodiversity Board.

The provisions of sections 9 to 17 shall apply to a State Biodiversity Board and shall have effect subject to the following modifications, namely:-

(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 Board. 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

26. National Biodiversity Fund.

The Central Government may, after the appropriation made by Parliament by law in this behalf, pay to the National Biodiversity Authority by way of grants or loans such sums of money as the Central Government may think fit for being utilised for -the purposes of this Act.

27. Application of National Biodiversity Fund.

(1) There shall be constituted a Fund to be called the National Biodiversity Fund and there shall be credited thereto

(a) any grants and loans made to the National Biodiversity Authority under section 26;

(b) all charges and royalties received by the National Biodiversity Authority under this Act; and

(c) all sums received by the National Biodiversity Authority from such other sources as may be decided upon by the Central Government.

(2) the Fund shall be applied for-

(a) channeling benefits to the benefit claimers:

(b) conservation of biological resources and development of areas from, where such biological resources or knowledge associated thereto has been accessed;

(c) socio economic development of areas referred to in clause (b) in consultation, with the local bodies concerned.

28. Annual Report of National Biodiversity Authority.

The National Biodiversity Authority shall prepare, in such form and at such time each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and furnish, to the Central Government, before such date as may be prescribed, its audited copy of accounts together with auditors' report thereon.

29. Budget accounts and audit.

(1) The National Biodiversity Authority shall prepare a budget, maintain proper accounts and other relevant records (including the accounts an J other relevant records of the National Biodiversity Fund) and prepare an annual statement of account in such form as way be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the National Biodiversity Authority shall be audited by the Controller and Auditor-General of India at such intervals as m9y be specified by him and any expenditure occurred 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 privilege, 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 respect 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.

30. Annual report to be laid before Parliament.

The Central Government shall cause the annual report and auditor's report to be laid, as soon as may be after they are received, before each House of Parliament.

CHAPTER VIII

FINANCE, ACCOUNTS AND AUDIT OF STATE BIODIVERSITY BOARD

31. Grant of money by State Government to State Biodiversity Board.

The State Government may, after due appropriation made by the State Legislature by law in this behalf, pay to the State Biodiversity Board by way of grants or loans such sums of money as the State Government may think fit for being utilized for the purposes of this Act.

32. State Biodiversity Fund.

(1) There shall be constituted a Fund to be called the State Biodiversity Fund and there shall be credited thereto-

(a) any grants and loans made to the State Biodiversity board under section 3 1;

(b) any grants or loans made by the National Biodiversity Authority;

(c) all sums received by the State Biodiversity Board from such other sources as may be decided upon by the State Government.

(2) The State Biodiversity Fund shall be applied for

(a) the management and conservation of heritage sites;

(b) compensating Or rehabilitating any section of the people economically affected by restriction imposed under section 37;

(c) conservation of biological resources-,

(d) socio-economic development of such biological resources or knowledge associated thereto has been accessed subject to any approval granted under section 24, in consultation with the local bodies concerned.

(e) meeting the expenses incurred for purposes authorized by this Act.

33. Annual report of State Biodiversity Board.

The State Biodiversity Board shall prepare, in such form and at such time each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year, and submit a copy thereof to the State Government.

34. Audit of accounts of State Biodiversity Board.

The accounts of the State Biodiversity Board shall be maintained and audited in such manner as may, in consultation with the Accountant-General of the State, be prescribed and the National Biodiversity Authority shall furnish, to the State Government, before such date as may be prescribed, its audited copy of accounts together with auditors report thereon.

35. Annual report of State Biodiversity Board to be laid before State Legislature.

The State Government shall cause the annual report and auditor's report to be laid, as soon as may be after they are received, before the House of State Legislature.

CHAPTER IX

DUTIES OF THE CENTRAL AND THE STATE GOVERNMENTS

36. Central Government to develop National strategies, plans etc., for conservation, etc., of biological diversity.

(1) The Central Government shall develop national strategies, plans, programmes for the conservation and sustainable use of biological diversity including measures for identification and monitoring areas rich in biological resources, promotion of insitu conservation and exsitu conservation of biological resources, incentives for research, training, public education to increase awareness with respect to biodiversity.

(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,

(i) wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimise such effects and where appropriate provide for public participation in such assessment;

(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 Biodiversity 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.

37. Biodiversity Heritage sites.

(1) Without prejudice to any other law for the time being in force, the State Biodiversity Government may from time to time in consultation with the local bodies, notify in the heritage sites. Official Gazette, areas of biodiversity importance as biodiversity heritage sites under this Act.

(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.

38. Power of Central Government to notify threatened species.

Without prejudice to the provisions of any other law for tht: time being in force, the Central Government may from time to time notify, any species which is on the verge of extinction or likely to become extinct in the near future as a threatened species and prohibit or regulate collection thereof for any purpose and take appropriate steps to rehabilitate and preserve those species.

39. Power of Central Government to designate repositories.

(1) The Central Government may in consultation with the National Biodiversity Central Authority, designate institutions as repositories under this Act for different categories of biological resources.

(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.

40. Power of Central Government to exempt certain biological resources.

Notwithstanding anything contained in this Act, the Central Government may in consultation with the National Biodiversity Authority, by notification in the Official Gazette, declare that the provisions of this Act shall not apply to any items, including biological resources normally traded as commodities.

CHAPTER X

BIODIVERSITY MANAGEMENT COMMITTEES

41. Constitution of Biodiversity Management Committees.

(1) Every local body shall constitute a Biodiversity Management Committee within its area for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals and micro organisms and chronicling of knowledge relating to biological diversity.

(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 within its territorial jurisdiction.

 

CHAPTER XI

LOCAL BIODIVERSITY FUND

42. Grants of Local Biodiversity Fund.

The State Government may, after due appropriation made by State Legislature by law in this behalf, pay to the Local Biodiversity Funds by way of grants or loans such sums of money as the State Government may think fit for being utilised for the- purposes of this Act.

43. Constitution of Local Biodiversity Fund.

(1) There shall be constituted a Fund to be called the Local Biodiversity Fund at every area notified by the State Government where any institution of self-government is functioning and there shall be credited thereto-

(a) any grants and loans made under section 42;

(b) any grants or loans made by the National Biodiversity Authority;

(c) any grants or loans made by the State Biodiversity Boards;

(d) fee referred to in sub-section (3) of section -41 received by the biodiversity management Committee;

(e) all received by the Local Biodiversity Fund from such other sources as may be decided upon by the State Government.

44. Application of Local Biodiversity Fund.

(1) Subject to the previsions of sub-section (2), the management and, the custody of the Local Biodiversity Fund and the purposes for which such Fund shall be applied as may be prescribed by the State Government.

(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.

45. Annual report of Biodiversity Management Committees.

The person holding the custody of the Local Biodiversity Fund shall prepare, in such form and during each financial year at such time as may be prescribed, its annual report, giving a full account of its activities during the previous financial year, and submit a copy thereof to the State Government.

46. Audit of Accounts of Biodiversity Management Committees.

The accounts of the Local Biodiversity Fund shall be maintained and audited in Audit of such manner as may, in consultation with the Accountant-General of the State, be prescribed and the person holding the custody of the Local Biodiversity Fund shall furnish, to the State Biodiversity

Management Government, before such date as may be prescribed, its audited copy of accounts together Committees with auditors report thereon.

47. Annual report of Biodiversity Management Committee to be laid before State Legislature.

The State Government shall cause the annual report and auditors' report to be laid, as soon as may be after they are received, before the House of State Legislature.

 

CHAPTER XII

MISCELLANEOUS

48. The National Biodiversity Authority to be bound by the directions given by Central Government.

(1) Without prejudice to the foregoing provisions of this Act, the National Biodiversity Authority shall, in the discharge of its function and duties under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time:

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 riot shall be final.

49. Power of State Government to give directions.

(1) Without prejudice to the foregoing provisions of this Act, the State Biodiversity Board shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the State Government, may give in writing to it from time to time:

Provided that the State Biodiversity Board shall, as far as practicable, be given an opportunity to express it., 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.

50. Settlement of disputes between State Biodiversity Boards.

(1) If a dispute arises between the National Biodiversity Authority and a State Biodiversity Board, the said Authority or the Board, as the case may be, may prefer, an appeal to the Central Government within such time as may be prescribed.

(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 be 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 under sub-section (4), be National Biodiversity Authority shall be guided by the principles of natural justice and shall follow such procedure

as may be 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 in respect of the following matters, namely:- 5 Of 1908.

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(h) any other matter which may be prescribed.

(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 of the Indian Penal Code and the National Biodiversity Authority shall be deemed (45 of 1860) 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).

51. Members, officers, etc., of National Biodiversity Authority and State Biodiversity Board deemed to be public servants.

All members, officers and other employees of the National Biodiversity Authority or the State Biodiversity Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

52. Protection of action taken in good faith.

No suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government or any officer of the Central Government or the State Government or any member, officer or employee of the National Biodiversity Authority or the State Biodiversity Board for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder.

53. Penalties.

(1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 3, section 4 or section 6 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees, or with both.

(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.

54. Penalty for contravention of directions or orders of Central Government, State Government, National Biodiversity Authority and State Biodiversity Boards.

If a person contravenes any direction given or order made by the Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punishment has been separately provided under this Act, be shall be punished with a fine which may extend to one lakh rupees and in case of a second or subsequent offence, with time which may extend to two lakh rupees and in the case of continuous contravention with additional fine which may extend to two lakh rupees everyday during which the default continues

55. Offences by companies.

(1) Where an offence or contravention under this Act has been committeed by a company, every person who at the time the offence or contravention was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly.

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

    1. "company" means any body corporate and includes a firm or other association of individuals; and
    2. "director", in relation to a firm, means a partner in the firm.

56. Offences to be cognizable and non-bailable.

The offences under this Act shall be cognizable and non-bailable.

57. Act to have overriding effect.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

58. Power of Central Government to give directions to State Government.

The Central Government may give directions to any State Government as to the carrying into execution in the State of any of the provisions of this Act or of any rule or regulation or order made thereunder.

59. Cognizance of offences.

No court shall take cognizance of any offence under this Act or rules and regulations made thereunder save on a complaint made by the National Biodiversity Authority or State Biodiversity Board, as the case may be.

60. Power of Central Government to make rules.

(1) The Central government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(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: -

    1. terms and conditions of service of the Chairperson and member under section 9;
    2. powers and duties of the Chairperson under section 10;
    3. procedure under sub-section (1) of section 12 in regard to transaction of business at meetings;
    4. form of application and payment of fees for undertaking certain activities under sub-section (1) of section 19;
    5. form of application and the manner for transfer of biological resource or knowledge under sub-section (2) of section 20.
    6. form in which and the time of each financial year at which, the annual report shall be prepared under section 28.
    7. form in which the annual statement of account shall be prepared under section 29.
    8. the time within which and the form in which, an appeal may be preferred, the procedure for disposing of an appeal and the procedure for adjudication, under section 50;
    9. any other matter which is to be, or may be, prescribed, or in respect of which provision is to be made, by rules.

(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 modified 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.

61. Power of State Government to make rules.

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -

    1. the form in which the prior intimation shall be given under sub-section (1) of section 24;
    2. the form in which, and the time of each financial year at which, the annual report shall be prepared under section 33;
    3. management and conservation of national heritage sites under section 37;
    4. the purposes for which local Biodiversity Fund shall be applied under sub-section (1) of section 44;
    5. any other matter which is to be, or may be, specified.

(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.

62. Power to make regulations.

The National Biodiversity Authority shall with the previous approval of the Central Government by notification in the Official Gazette, make regulations for carrying out the purposes of this Act.

63. Power to make difficulties.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government, may, by order, not inconsistent with the provisions of this Act, remove the difficulty:

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

1. Biodiversity encompasses the variety of all life on earth. India is one of the 12 megabiodiversity 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 of the Convention on Biological Diversity (1992). The main objectives of the Convention are:

(i) Conservation of biological diversity;

(ii) Sustainable use of its components;

(iii) Fair and equitable sharing of benefits arising out of utilisation of genetic resources.

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 utilisation of biological diversity through traditional knowledge, practices and innovations and provides for equitable sharing of benefits with such people arising from the utilization 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 Government, institutions of local self-government, scientific and technical institutions, experts, non-governmental organizations, 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: -

    1. 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;
    2. to conserve and sustainably use biological diversity;
    3. to respect and protect knowledge of local communities related to biodiversity;
    4. to secure sharing of benefits with local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources;
    5. conservation and development of areas important from the standpoint of biological diversity by declaring them as biological diversity heritage sites;
    6. protection and rehabilitation of threatened species;
    7. involvement of institutions of self-government in the broad scheme of the implementation of the Act through constitution of committees.

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, vaid and hakims and to allow research by Indian citizens within the country, the following exceptions are proposed: -

    1. Free access to biological resources for use within India for any purpose other than commercial use for Indian people.
    2. Use of biological resources by vaids and hakims.
    3. Free access to the Indian citizens to use biological resources within the country for research purposes.
    4. Collaborative research through government sponsored or government approved institutions subject to overall policy guidelines and approval of the Central Government.

7. It is proposed to have National Biodiversity Authority, State Biodiversity Boards and Biodiversity Management Committees.

    1. The National Biodiversity Authority will deal with matters relating to requests for access by foreign individuals, institutions or companies, and all matters relating to transfer of results of research to any foreigner; imposition of terms and conditions to secure equitable sharing of benefits and approval for seeking any form of Intellectual Property Rights (IPRs) in or outside India for an invention based on research or information pertaining to a biological resource obtained from India.
    2. 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.
    3. 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.


New Delhi

T. R. BAALU

The 20th April, 2000





PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA


[Copy of letter No. J-22018/11/2000-CSC (BC) dated 8 May 2000 from Shri T. R. Baalu, Minister of 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 definitions of various statements 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 specified 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 organisations; 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 confirm to the provisions of this Act.

Clause 6 – This clause provides that any person seeking any kind of intellectual property rights 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 the 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 utilization of such rights.

Clause 7 – This clause provides that Indian citizens, body corporate, association or organizations 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 5and hakims who have been practicing 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 and Cooperation, Indian Systems of Medicine and Homoeopathy, 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 power (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 members or officer of the National Biodiversity Authority subject to such conditions or limitations.

Clause 17- This clause provides the salaries and allowances payable to members, officers and other employees of the National Biodiversity Authority shall be 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 clause 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 and 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 benefits will be directly made to the providers.

Clause 22 – This clause provides for the establishments 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, relating 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 channeling 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 Auditor’s 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 Auditor’s 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 programmes for conservation and sustainable use of biodiversity; as far as practicable and wherever appropriate integrate the conservation and sustainable use of biodiversity into relevant sectoral or cross-sectoral plans, programmes and policies; take measures – (I) for assessment of environmental impact of projects, wherever necessary, and with public participation where appropriate; and (ii) to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology and endeavour to respect and protect knowledge of local people relating to biodiversity through measures such as registration and sui generis system as per the recommendations of the National Biodiversity Authority.

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 be notified to the Repositories or any other institutions 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, the 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 shall be maintained and audited in consultation with the Accountant General of the State.

Clause 47- This clause provides that the Annual Report and the Auditor’s Report of the Local Biodiversity Fund will be laid before the State Legislature.

Clause 48- This clause stipulates that the National Biodiversity Authority in discharge of its functions and duties shall be 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 National Authority or State Biodiversity Boards shall be deemed to be public servants.

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 recognizable 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 Government to make rules to carry out the provisions of the proposed legislation; enumerates the various matters in respect of which such rules may be made; and seeks to provide that every rule made shall be laid before Parliament.

Clause 61- This clause empowers the State Government to make rules to carry out the provisions of the proposed legislation, enumerates the various matters in respect of which such rules may be made, and seeks to provide that every rule made shall be laid before the State Legislature.

Clause 62- This clause empowers the National Biodiversity Authority to make regulations consistent with the provisions of the proposed legislation and the rules made thereunder. Such regulations are required to be made with the previous approval of the Central Government and by notification in the Official Gazette.

Clause 63-This clause empowers the Central Government to remove difficulties which may arise in giving effect to the provisions of the proposed legislation by order published in the Official Gazette. Such order shall not be inconsistent with the provisions of the proposed legislation. This power can be exercised only within two years from the commencement of the proposed legislation. Every such order shall be required to be laid before Parliament.


FINANCIAL MEMORANDUM

Clause 8 provides for setting up of a Statutory Authority to be known as the National Biodiversity Authority at Chennai. The Authority may decide in the future to establish offices in other places in India as envisaged under clause 8(3) of the Bill. The recurring expenditure towards salary, allowances and other expenditure relating to Chairperson, members and other officers and employees of the Authority appointed under Clause 14 will be of the order of Rs. 10 lakhs per annum. The other recurring expenditure by way of rent, maintenance, meetings, office expenses and contingency etc, will be of the order of Rs. 80 lakhs per annum. Non-recurring expenditure on establishment, office equipment, vehicles, etc. will be approximately of the order of Rs. 50 lakhs.


MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 60 of the Bill empowers the Central Government to make rules by notification in the official Gazette for carrying out the purposes of the proposed legislation. Sub-clause (2) of that clause enumerates the matters with respect to which rules may be made under the proposed legislation. These matters inter alia relate to the terms of office; the salary and allowances and conditions of the Chairperson and members of the National Biodiversity Authority; powers and duties of Chairperson, transaction of business of the National Biodiversity Authority, form of application and payment of fees for undertaking certain activities; the procedure for adjudication, etc.

2. Clause 61 of the Bill empowers the State Governments to make rules by notification in the official Gazette for carrying out purposes of this proposed legislation. Sub-clause (2) of that clause enumerates the various matters with respect to which rules may be made under this legislation. These matters inter alia relate to the form in which the prior intimation shall be given; rules for the management and conservation of heritage sites; management of the Local Biodiversity Fund, etc.

3. Clause 62 of the Bill empowers the National Biodiversity Authority to make regulations with the previous approval of the Central Government by notification in the Official Gazette.

4. The rules and regulations made under the proposed legislation shall be required to be laid before Parliament.

5. The aforesaid matters in respect of which rules, regulations may be made or framed relate to matters of procedure or administrative detail and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore of a normal character.

 

LOK SABHA

A
BILL

to provide for conservation of Biological Diversity, sustainable use of its components and equitable sharing of the benefits arising out of the use of biological resources and for matters connected therewith or incidental thereto.


(Shri T.R. Baalu Minister for Environment and Forests)