Section 21: Fair and Equitable Benefit Sharing

In one line

Section 21 decides what a person who has been allowed to take an Indian biological resource must give back, and it gives the Authority six ways of taking it.

In exam wording: section 21(1) of the Biological Diversity Act 2002, as substituted in 2023, requires the National Biodiversity Authority, while determining benefit sharing for an approval granted under the Act, to ensure that the terms and conditions of the approval secure fair and equitable sharing of the benefits arising out of the use of accessed biological resources, their derivatives, innovations and practices associated with their use and applications and knowledge relating thereto, in accordance with mutually agreed terms and conditions between the applicant and the Biodiversity Management Committee represented by the Authority; section 21(2) lists six forms the benefit sharing may take; section 21(3) directs any monetary amount to the National Biodiversity Fund, with a proviso permitting direct payment to an identified benefit claimer; and section 21(4) requires the Authority, in consultation with the Central Government, to frame guidelines by regulations.

Why the section is the heart of the Act

The first two objectives of the Convention, conservation and sustainable use, are pursued by every environmental statute India has. The third, fair and equitable sharing of benefits, is what this Act adds and what nothing else does. Section 21 is where it happens.

Section 21(1), broken down

When it operates. While determining benefit sharing for an approval granted under the Act. Section 19(3A) makes the determination part of granting the approval, so the two run together.

What must be secured. That the terms and conditions of the approval secure fair and equitable sharing of the benefits arising out of the use of four things: the accessed biological resources; their derivatives; innovations and practices associated with their use and applications; and knowledge relating to them.

How the terms are set. In accordance with mutually agreed terms and conditions between the person applying for the approval and the Biodiversity Management Committee represented by the National Biodiversity Authority.

That last phrase repays attention. The counterparty to the agreement is the village-level Committee, and the Authority represents it. The 2023 amendment made the Committee the contracting party in terms, which is as close as Indian law comes to giving a community a seat at the table under article 8(j) of the Convention.

Section 21(2): the six forms

Subject to any regulations, the Authority determines the benefit sharing to be given effect in all or any of the following ways:

(a) grant of joint ownership of intellectual property rights to the Authority, or where benefit claimers are identified, to those claimers;

(b) transfer of technology;

(c) location of production, research and development units in areas which will facilitate better living standards to the benefit claimers;