Section 19: How an Approval Is Applied For and Given

In one line

An approval under the Act is an application, an enquiry, an expert committee if needed, a hearing before refusal, an order with conditions, and a benefit sharing determination made at the same time.

In exam wording: section 19(1) of the Biological Diversity Act 2002 requires a person referred to in section 3(2) who intends to obtain a biological resource occurring in India or knowledge associated thereto for research, commercial utilisation or bio-survey and bio-utilisation, or to transfer the results of research, to apply to the National Biodiversity Authority in the prescribed form on payment of the prescribed fee; section 19(2) governs applications relating to intellectual property; section 19(3) empowers the Authority, after such enquiries as it deems fit and if necessary after consulting an expert committee, to grant approval subject to regulations and to such terms and conditions as it thinks fit, including charges by way of royalty, or to reject the application for reasons recorded in writing after a hearing; section 19(3A) requires the Authority to determine benefit sharing while granting approval and permits it to prohibit or restrict a detrimental activity; and section 19(4) requires it to place in the public domain the details of every approval granted or rejected.

The five steps

Step one: the application. Section 19(1) for access and for transfer of research results; section 19(2) for an application for a patent or other intellectual property right under section 6(1). Section 19(2A) requires a person covered by section 6(1A) to register with the Authority at the time of making the application under section 19(2), and a person covered by section 6(1B) to obtain prior approval at the time of commercialisation.

Step two: the enquiry. The Authority may make such enquiries as it deems fit and, if necessary, consult an expert committee constituted for the purpose. The expert committee is constituted under section 13.

Step three: the consultation with the village. Section 41(2) requires the Authority and the State Boards to consult the Biodiversity Management Committee while taking any decision relating to the use of biological resources or associated traditional knowledge occurring within its territorial jurisdiction. This is a mandatory consultation and it is the step most often overlooked in an answer.

Step four: the order. Grant, subject to any regulations and to such terms and conditions as the Authority deems fit, including the imposition of charges by way of royalty; or reject, for reasons to be recorded in writing. The proviso requires an opportunity of being heard before a rejection.

Step five: benefit sharing and publication. Section 19(3A) requires the Authority, while granting approval, to determine the benefit sharing in the manner specified by regulations, and permits it, by order for reasons recorded in writing, to prohibit or restrict an activity it considers detrimental or contrary to the objectives of conservation and sustainable use or of fair and equitable sharing, again after a hearing. Section 19(4) requires the details of every approval granted or rejected to be placed in the public domain.