While COVID-19 has proliferated across all parts of the world, the present times are unprecedented in India as it reports record spike in cases and simultaneously grapples with cyclones, locust attacks, floods and earthquakes. Today, we are posed with the greatest humanitarian crisis and if we further neglect our nature and environment, it could be the death knell for biodiversity and, with it, humanity's life support systems. In this context, with the environment having some downtime, the theme for this year's World Environment Day, 5 June 2020 –Biodiversity assumes paramount significance.
Biological diversity is the resource upon which families, communities, nature and future generations depend. It is the link between organisms, binding each into an interdependent community or ecosystem in which all living creatures have their place and role. Recognizing the need to conserve biodiversity and inspired by the world community's growing commitment to sustainable development, the Convention on Biological Diversity ("Convention") was signed on 5 June 1992 and entered into force on 29 December 1993. Article 4 of the Convention provides that its provisions apply to each 'Contracting Party', in case of components of biological diversity, in areas within its national jurisdiction and in case of processes and activities, within or beyond the limits of national jurisdiction. India is a Contracting Party by virtue of signing the Convention on 5 June 1992 and consequently ratifying it on 18 February 1994. It is also one of the 12 'mega-diversity' countries in the world. India is also at the meeting zone of the three major bio-geographic realms, namely, the Indo-Malayan (the richest in the world), the Eurasian and Afro- tropical. We also have the two richest bio-diversity areas, one in the northeast and the other in the Western Ghats.
The Biological Diversity Act, 2002
The legislative framework in India for conservation of biodiversity emanates from the Biological Diversity Act, 2002 ("Act") and the rules framed thereunder. The Act recognizes India's rich biological diversity and provides for its conservation, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources. The National Biodiversity Authority ("Authority"), with its head-office in Chennai has been constituted for providing approvals in relation to undertaking biodiversity related activities, transfer of results of any research to certain persons, applications for intellectual property rights and exemptions available for collaborative research projects, under the provisions of the Act. It may be noted that the Authority only provides approvals for obtaining biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization to the following:
- person who is not a citizen of India;
- non-resident or under the provisions of the Income Tax Act, 1961;
- a body corporate, association or organization;
- not incorporated or registered in India; or
- incorporated or registered in India which has any non-Indian participation in its share capital or management (collectively referred as "Person").
In recognition of the principle that Contracting States have sovereign rights over their biological resources, while Person(s) have to obtain prior approval of the Authority, the meaning of 'non-Indian participation in its share-capital or management' is amenable to different legal interpretations. For example, in case of a company, whether non-Indian participation would be linked to the definition of "control" under the Companies Act, 2013 or even a single non-Indian shareholder would be construed as non-Indian participation is not clear. Similarly, in case of partnership, whether foreign employees of a partnership firm entrusted in its management shall fall within the ambit of non-Indian participation.
However, in case of any other Person, an approval of the Authority is dispensed with and it can obtain any biological resource for commercial utilization, or bio-survey and bio-utilization, by providing a "prior intimation" to the concerned State Biodiversity Board ("Board"). Though the nomenclature "prior intimation" may be construed as non-requirement of approval, states may consult local bodies and by order, prohibit or restrict any such activity if it is detrimental or contrary to the objectives of conservation and sustainable use of biodiversity.
Further, while granting approvals, the Authority is to ensure that equitable sharing of benefits arising out of the use of accessed biological resources, by-products, innovations and practises, in accordance with mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers. In pursuance thereof, the Central Government has formulated guidelines such as 'Guidelines for International Collaboration Research Projects Involving Transfer or Exchange of Biological Resources or Information relating thereto between institutions including government sponsored institutions and such institutions in other countries' ("Collaborative Research Guidelines") and 'Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014'.
The Central Government is also empowered to exempt certain biological resources normally traded as commodities, from the provisions of this Act. In this regard, the Ministry of Environment, Forest and Climate Change vide its notification dated 7th April 2016, has facilitated trade of items including biological resources which are normally traded as commodities.
A significant point to be noted here is that while collaborative research projects are not required to obtain approval from the Authority, such projects shall adhere to the Collaborative Research Guidelines and need to be approved by the Central Government. It therefore appears that though the intention of the legislature was to foster bilateral research on biodiversity, requirement of an approval from the Central Government may stall or obliterate such research projects.
Judiciary and Protection of Biodiversity
The Supreme Court, has played a major role in ensuring conservation of our ecology and protection of biodiversity. In the landmark judgment of T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors., the Hon'ble Supreme Court observed that natural resources are assets of the entire nation and damage to environment is a damage to country's assets as a whole. While dealing with the issue of diversion of forest and for non-forest purpose and consequential loss of benefits accruing from the forests, the Court observed that forests are a vital component to sustain life and support system on earth. Holding that conservation of biological diversity is a key element of ecological, economic and social sustainability, the Court arrived at the concept of Net Present Value (NPV) to be paid by project proponents for diverting the forest land for non-forest use and to use the amount so collected in the fund to conserve the ecology.
Protection from extinction of Asiatic Lions (Panthera leo persica) and creating a second home for them was the cause of concern before the Hon'ble Supreme Court in Centre for Environment Law, WWF-I v. Union of India (UOI) and Ors. India is known for its rich heritage of biological diversity and has documented over 91,200 species of animals. Ironically, we have many critically threatened animal species. In this light, the Apex Court observed that the main objective of the Act is the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Bio-diversity and biological diversity includes all the organisms found on our planet i.e. plants, animals and micro-organisms, the genes they contain and the different eco-systems of which they form a part. The rapid deterioration of the ecology due to human interference is aiding the rapid disappearance of several wild animal species. Poaching and the wildlife trade, habitat loss, human-animal conflict, epidemic etc. are also some of the reasons which threaten and endanger some of the species. With this background, the Hon'ble Court allowed the introduction of Asiatic lion from Gir to Kuno to ensure their preservation. The Court highlighted the necessity of an exclusive legislation for preservation and protection of endangered species.
World Environment Day and the decade of Time for Nature
The United Nations member states in furtherance of their decisions at the Convention along-with United Nations Environment Programme and its partners have decided to make the decade (2021-2030) as the decade of Time for Nature or the UN Decade on Restoration of Ecosystems. However, restoration can be only achieved through reversing the negative impact on loss of biodiversity and living in harmony with nature.
With the pandemic and the associated myriad problems specifically in the Indian context viz, the migrant crisis, doctors and police being forefront corona warriors et. al. giving us lessons on compassion for fellow beings, and the staying home mandate rubbing in the opportunity lost for soaking in the scenic natural views at our travels, maybe we could also imbibe compassion for nature.
 T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors. (2006)1SCC 1
 Section 2(c) of the Act : "biological resources" means plants, animals and micro-organisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value, but does not include human genetic material;
 Section 2(f) of the Act: "commercial utilization" means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping;
 (2006)1SC C 1
 (2013)8SC C 234