The Whole Legal Framework, in One Chapter

Subordinate. The Biological Diversity Rules 2024; the Access and Benefit Sharing Regulations 2025; the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells 1989; the Environmental Impact Assessment Notification 2006; the Recognition of Zoo Rules 2009; and the Breeding of and Experiments on Animals (Control and Supervision) Rules 1998.

The evaluation: five tests

1. Is anything left uncovered? Yes, and the largest gap is the harvest of a wild medicinal plant that is not a specified plant in Schedule III to the 1972 Act. Nothing limits how much may be taken. Section 38 of the 2002 Act allows the Central Government to notify a threatened species and prohibit or regulate its collection, and it is a discretionary power.

2. Do the statutes fit together? Only partly. A single project may need clearance under the Environmental Impact Assessment Notification 2006, under section 2 of the Van Adhiniyam 1980, under section 29 or section 35 of the 1972 Act, and settlement of rights under the Forest Rights Act 2006. Four processes, four authorities, four timetables. In T.N. Godavarman Thirumulpad v. Union of India, the judgment of 6 July 2011 in the Lafarge matter, the Supreme Court laid down guidelines for all future cases precisely because the pieces had not fitted.

3. Is enforcement adequate? The 1972 Act is a criminal statute with graded penalties under section 51 and a forfeiture chapter in Chapter VIA. The 2002 Act is not: the Biological Diversity (Amendment) Act 2023 converted its offences into penalties adjudicated by an officer under sections 55 and 55A and omitted section 58. That is a deliberate softening, and whether it is right is a fair question in an answer.

4. Do the people who bear the cost receive anything? Sections 21 and 27 of the 2002 Act direct benefit sharing to benefit claimers and to the National Biodiversity Fund. Section 3 of the Forest Rights Act 2006 vests rights, and section 5 makes the holders the conservators. But the identification of a benefit claimer depends on a People's Biodiversity Register that many Committees have not compiled.

5. Does it reach conduct outside India? Barely. Section 18(4) of the 2002 Act allows the Authority to oppose a foreign patent. Beyond that, India depends on the compliance provisions of the Nagoya Protocol operating in the user country.

Worked example

Answer the 2015 question in outline, in the order an examiner can follow.

Paragraph 1. State the four layers, in one sentence each.

Paragraph 2. The constitutional layer, with Subhash Kumar v. State of Bihar for Article 21 and Vellore Citizens' Welfare Forum v. Union of India for the principles.

Paragraph 3. The 2002 Act in its three tiers, sections 8, 22 and 41, and the two decisions it makes, approval under section 19 and benefit sharing under section 21.

Paragraph 4. The 1972 Act in its three functions: prohibit hunting under section 9, protect a place under sections 18, 26A and 35, and control a trade under Chapters V, VA and VB.

Paragraph 5. The forest statutes: section 2 of the Van Adhiniyam 1980, the three classes of forest under the Indian Forest Act 1927, and the rights vested by section 3 of the Forest Rights Act 2006.

Paragraph 6. The subordinate layer, naming the Rules of 1989 and the Notification of 2006, and saying that neither is an Act.

Paragraph 7 to 9. The five tests above, one paragraph for the first two, one for enforcement, one for the reach beyond India.

Paragraph 10. A conclusion that says the framework is complete on paper for places and species and incomplete for wild plants, and that the 2023 amendment traded deterrence for ease of compliance.

Quick revision

• Four layers: constitutional, international, statutory, subordinate.
• Eleven statutes, six subordinate instruments, six treaties and one framework decision.
• The five evaluation tests: coverage, coherence, enforcement, distribution, extraterritorial reach.
• The largest gap: harvest of wild medicinal plants that are not specified plants.
• The largest change: the 2023 decriminalisation of the Biological Diversity Act.
• The forum since 2010 is the National Green Tribunal.

Test yourself

1. Name the four layers and one instrument from each. Constitutional, Article 48A; international, the Convention on Biological Diversity 1992; statutory, the Biological Diversity Act 2002; subordinate, the Biological Diversity Rules 2024.

2. Give two respects in which the framework can fairly be criticised. That a single project must pass four separate clearance processes under four statutes with no single decision point, which is what the guidelines in the Lafarge judgment of 6 July 2011 were laid down to address; and that the harvest of wild medicinal plants is unregulated unless the species is a specified plant under Schedule III to the Wild Life (Protection) Act 1972.

3. What changed in the enforcement of the Biological Diversity Act in 2023? Every offence became a penalty. Section 55 as substituted provides for a penalty of not less than one lakh rupees and up to fifty lakh rupees, with an additional penalty of up to one crore for a continuing failure; section 55A creates an adjudicating officer not below the rank of Joint Secretary to the Government of India or Secretary to a State Government; and section 58, which had made offences cognizable and non-bailable, was omitted with effect from 1 April 2024.