Powers and Duties of the Central and State Governments; Offences, Penalties and Appeals

Law of Intellectual Property and Biodiversity · Unit V · Topic 13 of 14 · 8 min read

The duties of the Central and State Governments under Chapter IX and the miscellaneous provisions of the Biological Diversity Act (strategies, heritage sites, threatened species, repositories, exemptions, directions, rules), the decriminalised penalty regime with adjudicating officers since 2024, cognizance, and appeals to the National Green Tribunal and the Supreme Court.

← All Law of Intellectual Property and Biodiversity topics

On this page

1. Duties of the Central Government
2. Duties of State Governments
3. Offences and penalties: the old regime (to 31 March 2024)
4. The new penalty regime (from 1 April 2024)
5. Appeals
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. The first half of Unit V is about enforcement and governance. The 2023 amendment rewrote the penalty chapter completely, so an answer that gives the old imprisonment terms as current law will lose marks. State both: the old regime briefly for context, and the new one in detail.

1. Duties of the Central Government

National strategies (section 36). The Central Government shall, in consultation with State Governments and Union territories, develop national strategies, plans and programmes for conservation, promotion and sustainable use of biodiversity, including identification and monitoring of areas rich in biological resources, in situ and ex situ conservation of biological resources (including cultivars, folk varieties and landraces), incentives for research, training and public education. It must also:

issue directives to a State Government to take immediate ameliorative measures where an area rich in biodiversity is threatened by overuse, abuse or neglect, with technical and other assistance (36(2));
integrate biodiversity into relevant sectoral policies and cross-sectoral plans and programmes (36(3));
provide for environmental impact assessment of projects likely to harm biodiversity, with public participation where appropriate, and regulate the risks of living modified organisms (36(4));
endeavour to respect and protect the knowledge of local people relating to biodiversity, as recommended by the NBA, through measures that may include registration of such knowledge at the local, State or national level and other measures including a sui generis system (36(5));
involve the NBA or SBBs in measures for conservation and sustainable use (36(6), inserted in 2023).

Monitoring foreign resources (section 36A, inserted in 2023). The Central Government may authorise the NBA or another organisation to monitor and regulate, within India, the access and use of biological resources obtained from a foreign country, to meet India’s international obligations. This is India’s user-country compliance obligation under Articles 15 to 17 of the Nagoya Protocol.

Threatened species (section 38). The Central Government, in consultation with the State concerned, may notify a species on the verge of extinction or likely to become extinct as a threatened species, prohibit or regulate its collection, and take steps to rehabilitate and preserve it. Since 2023 it may delegate this power to the State Government, which must consult the NBA before notifying.

Repositories (section 39). The Central Government, in consultation with the NBA, may designate institutions as repositories for categories of biological resources, which keep biological material, including voucher specimens, in safe custody. A person discovering a new taxon must notify the repository and deposit voucher specimens.

Exemptions (section 40, substituted in 2023). In consultation with the NBA, the Central Government may by notification declare that all or any provisions of the Act do not apply to biological resources normally traded as commodities, items derived from them (including agricultural wastes) as notified, and cultivated medicinal plants and their products for section 7 entities registered as prescribed. No exemption may be made for the IP provisions in section 6(1) and (2). Notifications listing normally traded commodities have been issued under this power.

Control and rule-making. The NBA is bound by the Central Government’s written directions on policy, the Government’s decision on what is policy being final (section 48). The Central Government may give directions to State Governments for carrying out the Act (section 60), hears appeals in disputes between the NBA and an SBB (section 50), makes grants and loans to the NBA (section 26) and makes rules (section 62); the Biological Diversity Rules, 2024 are made under section 62. It also appoints adjudicating officers (section 55A) and empowers officers to inspect (section 55B).

2. Duties of State Governments

State strategies (section 36B, inserted in 2023): develop State strategies, plans and programmes for conservation, promotion and sustainable use, including cultivars, folk varieties and landraces, in conformity with the national ones, and integrate biodiversity into sectoral policies.
Biodiversity heritage sites (section 37): on the recommendation of the SBB, which must first consult the local body and the BMC, the State Government may notify areas of biodiversity importance as biodiversity heritage sites; frame rules for their management in consultation with the Central Government; and frame schemes to compensate or rehabilitate persons economically affected. Nallur Tamarind Grove near Devanahalli, notified by Karnataka in 2007, was the first in India.
Establishing the SBB (section 22), making grants to it (section 31), giving it policy directions (section 49), grants to Local Biodiversity Funds (section 42), and making rules (section 63) on intimation forms, BMC composition and the Local Biodiversity Fund.
Exercising the delegated power over threatened species (section 38).

3. Offences and penalties: the old regime (to 31 March 2024)

Under the original section 55, contravention of sections 3, 4 or 6 was punishable with imprisonment up to five years, or fine up to ten lakh rupees (or commensurate with the damage if it exceeded that), or both; contravention of section 7 or of an SBB order under section 24(2), with imprisonment up to three years, or fine up to five lakh rupees, or both. Section 58 made offences cognizable and non-bailable. Prosecutions were rare, the best known being the NBA’s decision in 2011 to proceed against Mahyco and its partners over local brinjal varieties used in developing Bt brinjal.

4. The new penalty regime (from 1 April 2024)

Section 55: a section 3(2) person or section 7 person who contravenes, attempts to contravene or abets contravention of sections 3, 4, 6 or 7 is liable to a penalty of not less than one lakh rupees, extending to fifty lakh rupees; where the damage exceeds that amount, the penalty is commensurate with the damage; for a continuing failure, an additional penalty up to one crore rupees.
Section 55A: the Central Government appoints adjudicating officers (not below Joint Secretary to the Government of India or a State Secretary), who hold an inquiry, may summon witnesses and documents, and impose the penalty after a hearing.
Section 55B: officers empowered by the Central Government may enter and inspect land, vehicles and premises, seize materials and records, exercise civil court powers, issue search warrants and hold inquiries.
Section 56 (unchanged): contravention of any direction or order of the Central or State Government, the NBA or an SBB, for which no separate punishment is provided, is punishable with fine up to one lakh rupees, up to two lakh for a second offence, and up to two lakh rupees a day for continuing contravention.
Section 57: offences or contraventions by companies make the company and the persons in charge liable, subject to the defence of lack of knowledge or due diligence; directors and officers whose consent, connivance or neglect is proved are also liable.
Section 58 (cognizable and non-bailable) has been omitted.
Section 61: no court takes cognizance of an offence except on a written complaint by the Central Government or an authorised authority or officer, or by any person or benefit claimer who has given at least thirty days’ notice to the Central Government or that authority.

The debate on decriminalisation. The Government’s case is that criminal liability deterred compliance by researchers and AYUSH firms, clogged the system and was rarely used, and that graded civil penalties imposed quickly by administrators work better, in line with the wider Jan Vishwas approach. Critics reply that biopiracy is often committed by well-resourced firms for whom a fifty lakh penalty is a licence fee, that adjudicating officers are civil servants of the same Ministry that promotes ease of business, and that the citizen complaint route under section 61 has become less useful since most contraventions are no longer offences.

5. Appeals

Section 52: originally, any person aggrieved by a determination of benefit sharing or an order of the NBA or an SBB could appeal to the High Court within thirty days (extendable by sixty). Provisos added by the National Green Tribunal Act, 2010 make the section inapplicable from the commencement of that Act, saving appeals then pending.
Section 52A: such appeals now lie to the National Green Tribunal under the NGT Act, 2010, which lists the Biological Diversity Act in its Schedule.
Section 55A(3)–(5): an appeal against an adjudicating officer’s penalty order lies to the NGT within sixty days of receipt of the order; the NGT may confirm, modify or set aside the order after hearing the parties.
An appeal from the NGT lies to the Supreme Court under section 22 of the NGT Act.
Section 50: a dispute between the NBA and an SBB goes on appeal to the Central Government; a dispute between SBBs is referred by the Central Government to the NBA, which acts with the powers of a civil court.
Section 53: every determination of benefit sharing or order of the NBA, an SBB, the High Court or the NGT is executable as a decree of a civil court on a certificate issued by the appropriate officer or Registrar.
Section 54 protects action taken in good faith.

How this is examined

Likely long questions. “Discuss the powers, functions and duties of the Central and State Governments under the Biological Diversity Act, 2002.” “Examine the provisions relating to offences, penalties and appeals under the Act after the 2023 amendment.”

Likely short notes. Biodiversity heritage sites; threatened species; adjudicating officer; appeal to the National Green Tribunal; normally traded commodities; section 36(5).