Evolution of Biodiversity Law in India and the Biological Diversity Act, 2002

Law of Intellectual Property and Biodiversity · Unit III · Topic 9 of 14 · 6 min read

From community conservation and colonial forest law through the wildlife, forest and environment statutes and the constitutional duties of 1976 to the Biological Diversity Act 2002: its objects, scheme and salient features, the 2023 amendment in force from April 2024, the 2024 Rules and 2025 ABS Regulations, and the main critiques.

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On this page

1. Evolution: the phases
2. Objects of the Act
3. Salient features
4. The 2023 amendment in brief
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Two questions sit here: “trace the evolution of biodiversity law in India” and “discuss the objects and salient features of the Biological Diversity Act, 2002”. For the first, give phases. For the second, give the objects from the preamble, then the scheme chapter by chapter, then the 2023 changes and a critique. Section numbers below follow the Act as amended by Act 10 of 2023.

1. Evolution: the phases

(a) Community traditions. Long before statute, communities conserved through custom: sacred groves, sacred species, seasonal bans on harvest, and the Bishnoi community’s protection of khejri trees and blackbuck, remembered for the Khejarli sacrifice of 1730. These are the practices that Article 8(j) of the CBD and the “benefit claimers” of the BDA now try to recognise.

(b) Colonial forest law. The Indian Forest Acts of 1865, 1878 and 1927 asserted state control over forests for timber revenue, converted community commons into reserved forests, and treated customary users as offenders. Conservation was a by-product of commercial forestry.

(c) Post-independence environmental statutes.

Wild Life (Protection) Act, 1972 (protected areas, scheduled species, trade controls; substantially amended in 2022 to implement CITES).
Constitution (Forty-second Amendment) Act, 1976: Article 48A and Article 51A(g); “forests” and “protection of wild animals and birds” moved to the Concurrent List.
Forest (Conservation) Act, 1980 (Central approval for diversion of forest land; renamed the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 by the 2023 amendment).
Environment (Protection) Act, 1986, under which the 1989 rules on genetically engineered organisms were made.
Seed, plant quarantine and fisheries laws regulating particular sectors.

(d) The CBD and the biopiracy years (1992–2002). India ratified the CBD in 1994. The turmeric (1995–97) and neem (1994–2005) patents and the basmati patent (1997) showed that the existing statutes protected habitats and species but said nothing about access to genetic resources, TK or IP. The National Policy and Macro-level Action Strategy on Biodiversity (1999) prepared the ground. The Biological Diversity Bill was introduced in 2000, passed in 2002 and received assent on 5 February 2003 as Act 18 of 2003. In the same period came the PPV&FR Act, 2001, the GI Act, 1999 and the patent amendments of 2002 and 2005.

(e) Implementation and judicial development (2003–2022). The Act came into force in stages on 1 October 2003 and 1 July 2004; the Biological Diversity Rules, 2004 followed. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 recognised a community right to IP and TK related to biodiversity. The National Green Tribunal Act, 2010 transferred appeals under the BDA to the NGT. India ratified the Nagoya Protocol and the NBA issued ABS guidelines in 2014. Courts read biodiversity into Article 21: the T.N. Godavarman forest case from 1996, the lion translocation case (Centre for Environmental Law, WWF-I v. Union of India, 2013 INSC 254), and M.K. Ranjitsinh v. Union of India, 2024 INSC 280, on the Great Indian Bustard, where the Supreme Court recognised a right against the adverse effects of climate change under Articles 14 and 21.

(f) Reform (2023–2025). The Biological Diversity (Amendment) Act, 2023 (Act 10 of 2023, assented to on 3 August 2023, in force from 1 April 2024), the Biological Diversity Rules, 2024 (replacing the 2004 Rules), and the NBA’s ABS Regulations of 2025 (replacing those of 2014).

2. Objects of the Act

The long title states the three objects: conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge. The preamble recites that India is rich in biological diversity and associated traditional and contemporary knowledge, that India is a party to the CBD, which reaffirms the sovereign rights of states over their biological resources, and (since 2023) that India is a party to the Nagoya Protocol. Read with the debates, the purposes were:

to give effect to the CBD and later Nagoya;
to regulate access to Indian biological resources and associated knowledge, especially by foreigners, to stop biopiracy;
to secure benefit sharing for the communities that conserve resources and hold knowledge;
to control IP claims based on Indian resources;
to create a decentralised institutional structure down to the local body; and
to provide for conservation measures (heritage sites, threatened species, repositories).

3. Salient features

Definitions (section 2): access, benefit claimers, biological resources, codified traditional knowledge, commercial utilisation, derivative, folk variety, landrace, sustainable use, value added products.
Regulation of access (Chapter II, sections 3–7): prior approval of the NBA for foreign persons and foreign-controlled companies (section 3); NBA approval for transfer of research results to them (section 4); exemption for approved collaborative research (section 5); approval or registration before grant of IP (section 6); prior intimation to the SBB by Indian entities for commercial utilisation (section 7).
Three-tier institutions: the National Biodiversity Authority at Chennai (section 8), State Biodiversity Boards (section 22), and Biodiversity Management Committees in every local body (section 41).
Approval procedure and benefit sharing (sections 19–21): applications, enquiries, conditions, rejection after hearing, public disclosure of approvals, and modes of benefit sharing.
Funds: National Biodiversity Fund (section 27), State Biodiversity Fund (section 32), Local Biodiversity Fund (section 43).
Duties of governments (sections 36–40): national and state strategies, biodiversity heritage sites, threatened species, repositories, exemptions.
Penalties and adjudication (sections 55–55B): monetary penalties imposed by adjudicating officers since 2024, replacing imprisonment.
Appeals to the National Green Tribunal (section 52A; section 55A(3)).
Relationship with other laws: the Act is in addition to forest and wildlife laws (section 59) and does not apply to persons approved under the plant varieties law to the extent such approval does not require similar approval under the BDA (section 59A).

4. The 2023 amendment in brief

Codified traditional knowledge (knowledge from the authoritative books in the First Schedule to the Drugs and Cosmetics Act, 1940) is excluded from benefit claimers for Indians and from section 7 intimation.
AYUSH and cultivated medicinal plants: registered AYUSH practitioners and cultivated medicinal plants (with a BMC certificate of origin) are exempt from section 7.
Foreign-controlled company: section 3(2)(c)(ii) now catches Indian companies “controlled by a foreigner” under the Companies Act, 2013, instead of any company with any non-Indian participation.
IP approval moved to before grant (section 6), with registration for Indian applicants and approval at commercialisation.
Decriminalisation: imprisonment replaced by penalties from one lakh to fifty lakh rupees; section 58 (cognizable and non-bailable) omitted.
Institutional changes: larger NBA with a Member-Secretary; BMCs of seven to eleven members; State strategies (section 36B); NBA monitoring of foreign resources used in India (section 36A).

Critiques. Early commentary, collected in the dossier Understanding the Biological Diversity Act 2002 edited by Kanchi Kohli (Kalpavriksh, GRAIN and IIED, 2006), which includes Suman Sahai’s essay “Biodiversity Act Falls Short of National Needs”, questioned whether the Act did enough for communities. Common points: communities are consulted but cannot refuse access; Indian industry faces only intimation; benefit claimers are hard to identify; and the NBA is a central body with little local presence. The 2023 amendment sharpened the debate. Government and industry say it removes red tape for AYUSH, seed and research sectors and attracts investment. Critics, including opposition members of Parliament and environmental groups, say that exempting codified TK and AYUSH firms removes benefit sharing from the largest domestic users, and that decriminalisation weakens deterrence.

How this is examined

Likely long questions. “Trace the evolution of biodiversity law in India.” “Discuss the objects and salient features of the Biological Diversity Act, 2002.” “Critically evaluate the changes made by the Biological Diversity (Amendment) Act, 2023.”

Likely short notes. Codified traditional knowledge; biodiversity heritage sites; Article 48A and 51A(g); value added products; National Biodiversity Fund.