What the Statute Means by Biological Diversity

Vocabulary

A definition clause is a section of an Act that tells the reader what a word means in that Act. It usually opens with a saving such as "unless the context otherwise requires", which section 2 of this Act does, so a definition can yield to a contrary context.

"Means" and "includes". A definition that says "means" is exhaustive: nothing outside it counts. A definition that says "includes" is expansive: the listed things count and so may others. Section 2(b) does both, saying "means" for the core and "includes" for the three levels.

An eco-system, hyphenated in the Act and unhyphenated in the Convention, is defined by article 2 of the Convention as a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit. The Indian Act does not define it, so the treaty meaning is the natural one.

Worked example

A State Biodiversity Board is asked whether a soil sample taken from a farm, containing bacteria that fix nitrogen, is within the Act at all. The company says soil is not biodiversity.

Step one, the definition of biological diversity. Section 2(b) covers variability among living organisms from all sources. Bacteria are living organisms. Soil bacteria are therefore inside the concept.

Step two, the operative definition. What the Act regulates is not biological diversity in the abstract but a biological resource, defined in section 2(c) as including plants, animals and micro-organisms or parts of their genetic material and derivatives. Micro-organisms are named in terms, so the bacteria are a biological resource.

Step three, the activity. Taking the sample for research is access within section 2(a), which means collecting, procuring or possessing any biological resource occurring in or obtained from India for the purposes of research, bio-survey or commercial utilisation.

Step four, the permission. If the company is not incorporated or registered in India, or is an Indian company controlled by a foreigner within the meaning of section 2(27) of the Companies Act 2013, section 3 applies and approval of the National Biodiversity Authority is required. If it is an Indian company that no foreigner controls, section 3 does not apply, and section 7 requires prior intimation to the State Biodiversity Board only where the access is for commercial utilisation, subject to the proviso the 2023 amendment inserted. Taking the sample for research alone needs no intimation.

The answer. Soil itself is not biodiversity, but the organisms in it are, and the Act reaches them through the definition of biological resource, not through the definition of biological diversity. That distinction is the point of the worked example: the definition in section 2(b) sets the subject of the Act, and section 2(c) sets what may actually be regulated.

What beginners get wrong

Reading section 2(b) as the operative provision. It is not. Nothing is prohibited by a definition. The prohibitions are in sections 3, 4, 6 and 7, and they all speak of biological resources, not of biological diversity.

Assuming the Indian and treaty definitions are identical. They are nearly identical in substance and different in wording, and a good answer says so rather than quoting one for the other.

Forgetting that "unless the context otherwise requires" is part of the section. A definition in an Indian Act yields to a contrary context, and section 2 of this Act opens with those very words.

Quick revision

• Section 2(b) of the Biological Diversity Act 2002 and article 2 of the Convention on Biological Diversity 1992 carry the same definition.
• The Act omits the Convention's illustrative list of ecosystems and adds nothing of substance.
• "biodiversity" was added to the defined term by the Biological Diversity (Amendment) Act 2023.
• A definition creates no obligation. Sections 3, 4, 6 and 7 do that.
• The operative term is biological resource in section 2(c), not biological diversity in section 2(b).

Test yourself

1. Where does the Indian definition of biological diversity come from? From article 2 of the Convention on Biological Diversity 1992. The Act was enacted to implement the Convention, using Parliament's power under Article 253 of the Constitution to legislate for the implementation of an international agreement.

2. Does the omission of the Convention's list of ecosystems narrow the Indian definition? No. The Indian phrase "from all sources" is as wide as the treaty phrase, and the definition of India in section 2(gb) expressly reaches the territorial waters, the seabed, the continental shelf and the exclusive economic zone.

3. If a definition creates no obligation, why does it matter which definition applies? Because every operative section is read through it. Whether soil bacteria may be collected without permission depends on whether they are a biological resource, and that is answered by section 2(c) read with section 2(b).