The 2023 Recast of the Biological Diversity Act

In one line

The 2023 amendment turned every access offence into a money penalty decided by an officer, and repealed the section that made the offences cognizable and non-bailable.

In the wording a student can write in an exam: section 55, as recast, provides that a person or entity covered by section 3(2) or section 7 who contravenes, attempts to contravene or abets a contravention of section 3, 4, 6 or 7 shall be liable to pay a penalty of not less than one lakh rupees and up to fifty lakh rupees, and where the damage caused exceeds the penalty, the penalty shall be commensurate with the damage, with an additional penalty not exceeding one crore rupees for a continuing contravention, decided by the adjudicating officer appointed under section 55A; and section 58, which made offences cognizable and non-bailable, was omitted by the Amendment Act of 2023 with effect from 1 April 2024.

What the amendment did

Before 2023 these were offences. Contravening the access provisions was punishable with imprisonment, and section 58 made the offences cognizable and non-bailable.

After 2023 they are civil contraventions. The word "penalty" replaces "punishment"; the amount is a money sum; and the decision is made not by a criminal court but by an adjudicating officer who is an officer not below the rank of Joint Secretary to the Government of India or a Secretary to the State Government.

The three things this changes are worth listing in an answer.

The forum. A departmental officer, on an inquiry, instead of a magistrate on a trial.

The standard. An inquiry in the prescribed manner rather than proof beyond reasonable doubt.

And the consequence. Money instead of imprisonment, so a defaulting company pays and continues, and the deterrent is the size of the penalty rather than the risk of jail.

The penalty and its adjudication

Section 55. The floor is one lakh rupees, the ceiling fifty lakh rupees; where the damage caused exceeds the penalty, the penalty shall be commensurate with the damage; and a continuing failure attracts an additional penalty not exceeding one crore rupees.

The damage clause is the interesting one. It removes the ceiling in the case that matters, which is the case where a resource has been taken and something irreversible has happened. It is the polluter pays principle written as a penalty rule.

Section 55A, the adjudicating officer. Appointed by the Central Government, not below Joint Secretary to the Government of India or Secretary to the State Government, to hold an inquiry in the prescribed manner and impose the penalty; as many may be appointed as are required. In the inquiry he may summon and enforce the attendance of any person acquainted with the facts, to give evidence or produce a document; and if satisfied of a failure to comply with section 3, 4, 6 or 7, he may impose such penalty as he thinks fit under section 55, not without giving the person an opportunity of being heard.