The Biological Diversity Act, 2002: Communities, Knowledge and IPR

Law of Intellectual Property Rights, Human Rights and Environment · Unit IV · Topic 13 of 17 · 6 min read

The Biological Diversity Act read as the meeting point of environmental law, IP and the rights of communities: sovereignty versus community ownership, the NBA, State Boards and BMCs, the IP approval rule in section 6 and the NBA's power to oppose foreign patents, benefit sharing, People's Biodiversity Registers, the 2023 amendment, Divya Pharmacy, the Kani-Jeevani model, the Bt brinjal complaint, and UNDRIP and ILO standards.

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On this page

1. Whose resources? Three claims
2. The structure in brief
3. The IP provisions
4. Benefit sharing
5. Examples
6. The 2023 amendment and the human rights critique
7. The three Acts together
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 Act is the third statute named in Unit IV, and the one where all three parts of this paper meet: it conserves biodiversity (environment), controls IP over Indian biological resources (IPR), and gives local communities a claim to benefits from their resources and knowledge (human rights). The CBD and Nagoya background and the Act’s structure are covered in the plant varieties paper’s note on the CBD; this note takes the human rights and IP angle.

1. Whose resources? Three claims

The patent system traditionally treated genetic resources as a free common heritage: anyone could collect them and patent what they developed.
The CBD (1992), Article 3 and 15, replaced this with national sovereignty: access depends on the providing state’s prior informed consent and mutually agreed terms.
Communities claim that the resources and the knowledge are theirs: they bred the land races and identified the medicinal uses. CBD Article 8(j), the Nagoya Protocol (Articles 5(2), 6(2) and 7 on community consent), Article 31 of the UN Declaration on the Rights of Indigenous Peoples (2007), and General Comment 17 (states should protect indigenous peoples’ productions with consent and equitable benefit sharing) support this claim. India has ratified ILO Convention 107 (1957) on indigenous and tribal populations, but not Convention 169 (1989).

The Biological Diversity Act, 2002 takes the second position and partly accommodates the third: the state controls access, and communities are consulted and share benefits through local bodies.

2. The structure in brief

National Biodiversity Authority (Chennai): approvals for foreign persons and entities, transfer of research results abroad, and IP.
State Biodiversity Boards: regulate commercial use by Indian entities through prior intimation.
Biodiversity Management Committees in every local body: conservation, documentation, and the People’s Biodiversity Register of local resources and knowledge; they must be consulted on decisions about resources from their area and may levy collection fees.

3. The IP provisions

Section 6: no person may apply for or obtain any IP right, in or outside India, for an invention based on research or information on a biological resource obtained from India without the NBA’s approval. After the 2023 amendment, approval is needed before the grant (not the filing) of the right, and Indian citizens and Indian bodies that are not foreign-controlled need only register with the NBA before the grant, and obtain its approval before commercialising. The NBA may impose a benefit-sharing fee or royalty or conditions including sharing of financial benefits from commercial use. Plant variety rights under the PPV&FR Act are dealt with under that Act’s own scheme.
Section 18(4): the NBA may take any measures necessary to oppose the grant of IP rights in any country outside India on any biological resource obtained from India or knowledge associated with it. This is the defensive tool used against foreign patents of the neem and turmeric kind.
Section 36: the Central Government shall endeavour to respect and protect the knowledge of local people relating to biodiversity, through registers and a sui generis system.
The Patents Act link: source disclosure under section 10(4)(d)(ii)(D) and the grounds of opposition and revocation for non-disclosure and anticipation by traditional knowledge (previous notes).

4. Benefit sharing

Benefits are fixed on mutually agreed terms and may be monetary (royalties, fees, joint ownership of IP) or non-monetary (technology transfer, location of production units in the area, research collaboration, support for local conservation). The money goes to the National or State Biodiversity Fund and, where the benefit claimers are identified, to them through the BMC. The Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations of 2014 set percentage ranges, and later regulations revised them.

Divya Pharmacy v. Union of India (Uttarakhand High Court, 2018). The company argued that it, as an Indian entity, need not share benefits. The court held that the Act, read with the CBD and Nagoya, requires fair and equitable benefit sharing by Indian entities as well, because the communities, not the state, are the holders of the resource and knowledge. It is the strongest Indian judicial statement that benefit sharing is a right of communities.

5. Examples

Kani tribe and Jeevani. Kani guides in Kerala showed scientists of the Tropical Botanic Garden and Research Institute the use of the plant arogyapacha against fatigue. The institute developed the formulation Jeevani and licensed it to a pharmaceutical firm in the 1990s, sharing the licence fee and royalty with a trust formed by the Kani. It predates the Act and is cited as a model, though questions remained about which Kani settlements were represented.
Neem and turmeric. The European neem patent and the US turmeric patent were revoked for lack of novelty (see the biopiracy note in the plant varieties paper); these cases drove both section 18(4) and the TKDL.
Bt brinjal. The NBA decided in 2011 to proceed against Mahyco, its partners and agricultural universities for using local brinjal varieties to develop Bt brinjal without approval: the first enforcement action against alleged biopiracy under the Act. The proceedings were slow and contested, which itself shows the weakness of enforcement.

6. The 2023 amendment and the human rights critique

The Biological Diversity (Amendment) Act, 2023 decriminalised most offences, exempted codified traditional knowledge and AYUSH practitioners from certain requirements, eased access for cultivated medicinal plants, defined foreign-controlled companies, and moved the IP approval to before grant.

The debate. The Government’s case: the Act had deterred research and the AYUSH sector, and criminal penalties were disproportionate. The critics’ case, in human rights terms: (1) exempting “codified” knowledge removes most Ayurvedic, Siddha and Unani knowledge from benefit sharing, though communities still hold and practise it; (2) the Act’s consent is the state’s, and BMCs are consulted but cannot refuse, which falls short of the free, prior and informed consent in UNDRIP; (3) People’s Biodiversity Registers, meant to protect knowledge, can disclose it and destroy its novelty, so they need confidentiality; (4) decriminalisation makes biopiracy a matter of fees. The Supreme Court’s Niyamgiri judgment (2013) on gram sabha consent under the Forest Rights Act offers the stronger model of community decision-making.

7. The three Acts together

Issue	Patents Act	PPV&FR Act	BDA
Environmental exclusion	s.3(b)	s.29(2), (3)	conservation is the purpose
Origin disclosure	s.10(4)(d)(ii)(D)	passport data, s.40	s.6 approval
Benefit sharing	none directly	s.26, Gene Fund	mutually agreed terms, Funds
Community rights	TK as prior art, s.3(p)	s.39, s.41	BMC, PBR, Divya Pharmacy
Access for the public	ss.84, 92, 100	s.47	exemptions for local users

How this is examined

Likely long questions: “Discuss the interface of IPR, human rights and environment under the Patents Act, the PPV&FR Act and the Biological Diversity Act,” “Examine the role of the National Biodiversity Authority in preventing biopiracy,” or “Critically evaluate the Biological Diversity (Amendment) Act, 2023.” Short notes: section 6; People’s Biodiversity Registers; Divya Pharmacy; the Kani model; benefit sharing. For the combined question, use the table above as the spine of the answer.