LLM Group 6 Environment and Legal Order Biological Diversity and Legal Order 2024 Question Paper with Solutions

For full marks, cover: this paper prints its short-note question first, and offers only three options of which two must be written, twelve and a half marks each. Each note needs its instrument or statute with dates, a worked authority, and a line on India. Notes (b) and (c) overlap and should not be written as the same note: (b) is genetic engineering in general, its definition, history, tools, uses and ownership, while (c) is about mutation, how a changed seed or microbe is obtained and how the law classifies each method. All three are written out below.

(a) Biodiversity and International Law

International law protects biodiversity through a web of treaties, customary principles and decisions of international courts, built up in layers over eight decades. No single instrument governs the whole field, and the defining feature of the subject is the need to read the instruments together.

The second layer: biodiversity as a whole. The Convention on Biological Diversity, opened for signature at Rio on 5 June 1992, treated biodiversity for the first time as a single object of law at the genetic, species and ecosystem levels, with three objectives of conservation, sustainable use and benefit sharing. Its Cartagena Protocol of 2000 governs living modified organisms and its Nagoya Protocol of 2010 access and benefit sharing. The International Treaty on Plant Genetic Resources for Food and Agriculture of 2001 creates a special regime for crops. The Kunming-Montreal Global Biodiversity Framework, adopted on 19 December 2022 as a decision of the Conference of the Parties rather than as a treaty, sets four goals for 2050 and twenty-three global targets for 2030, including the conservation of thirty per cent of terrestrial, inland water and coastal and marine areas.

General principles. Two obligations bind States as customary law independently of treaty. The obligation not to cause significant harm to the environment of other States or areas beyond national jurisdiction is restated in Article 3 of the Convention of 1992. The obligation to assess environmental impact where a project risks significant transboundary harm was declared a requirement of general international law in Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010, page 14. Other principles guide the reading of treaties without yet binding as custom. The precautionary approach of Principle 15 of the Rio Declaration is the stated basis of the Cartagena Protocol, and the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea described in 2011 only a trend towards making it customary. The preamble of the Convention of 1992 describes conservation of biodiversity as a common concern of humankind, a framing idea rather than a rule.

International courts have also put a value on lost biodiversity. In Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), compensation judgment of 2 February 2018, the International Court of Justice for the first time awarded compensation for environmental damage, for the felling of trees and excavation of channels in a protected wetland. It valued the damage from the perspective of the ecosystem as a whole, including the impairment or loss of environmental goods and services, and awarded Costa Rica US$ 378,890.59, which Nicaragua paid in March 2018. In Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), decided on 31 March 2014, the same Court held that Japan's lethal whaling programme was not for purposes of scientific research and ordered its permits revoked.

(b) Genetic engineering

Genetic engineering is the direct alteration of an organism's heritable material by laboratory techniques, as distinct from selection and cross-breeding. Rule 3(iv) of the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989, made under the Environment (Protection) Act 1986, defines it as the technique by which heritable material that does not usually occur in an organism, generated outside it, is inserted into it, and includes self-cloning and the deletion or removal of parts of the heritable material. The Cartagena Protocol on Biosafety of 2000, in Article 3(i), calls the same thing modern biotechnology: in vitro nucleic acid techniques, or fusion of cells beyond the taxonomic family, that overcome natural reproductive barriers and are not used in traditional breeding.

Uses. In medicine, genetically engineered micro-organisms and cell lines make insulin, vaccines, monoclonal antibodies and enzymes. In agriculture, crops have been engineered for insect resistance, herbicide tolerance and stress tolerance: Bt cotton, carrying a gene from Bacillus thuringiensis, was approved in India on 26 March 2002, and two genome-edited rice varieties were released on 4 May 2025. In industry and the environment, engineered microbes produce enzymes and are proposed for bioremediation.

Risks and ethics. The recognised risks are gene flow to wild relatives, the evolution of resistant pests, effects on non-target organisms, allergenicity, and concentration of seed ownership. The ethical questions include whether life should be owned, whether it is right to modify animals for human purposes, and how to weigh uncertain long-term harm against present benefit, which is the domain of the precautionary approach in Principle 15 of the Rio Declaration.

India's answer is statutory. Section 3(j) of the Patents Act 1970 excludes plants and animals in whole or in any part other than micro-organisms, including seeds, varieties and species, and essentially biological processes. An engineered micro-organism may be patented if it meets the tests of invention, but a genetically engineered plant or animal as such may not. Whether a claim to a gene construct escapes the exclusion is unsettled. In Monsanto Technology LLC v. Nuziveedu Seeds Ltd., (2019) 3 SCC 381, a Division Bench of the Delhi High Court had upheld a challenge under section 3(j) to claims on the nucleic acid sequence that gives Bt cotton its trait, but the Supreme Court set that decision aside and left for trial whether the patented sequence was a plant or a part of a plant.

(c) Genetic mutation of seeds and micro-organisms

A mutation is a change in the sequence of an organism's genetic material. Mutations occur naturally and are the raw material of evolution and of all plant and microbial breeding. The legal question is not whether a seed or a micro-organism has been mutated, since all of them have, but how the change was brought about, because the law treats natural variation, induced mutation, transgenic insertion and genome editing very differently.

Four ways a mutation is obtained. Spontaneous mutations arise without human intervention and are selected by farmers and breeders. Induced mutation breeding exposes seeds or microbial cultures to radiation, such as gamma rays, or to chemical mutagens, and selects useful random changes; the Bhabha Atomic Research Centre has released crop varieties, notably of groundnut and pulses, developed in this way. Transgenesis inserts a gene from another organism, as in Bt cotton. Genome editing makes a targeted change at a chosen site: SDN-1 edits create small insertions or deletions without a template, SDN-2 edits use a template to make a specific small change, and SDN-3 edits insert a larger piece of DNA such as a whole gene.

Seeds: rights in mutated varieties. Under section 15 of the Protection of Plant Varieties and Farmers' Rights Act 2001 a new variety, however produced, may be registered if it is novel, distinct, uniform and stable. Section 18(1)(c) requires an affidavit that the variety contains no gene or gene sequence involving terminator technology, and section 29(3) forbids registration of any variety involving technology injurious to life or health, expressly including genetic use restriction and terminator technology, which engineer seed so that it will not germinate in the next generation. Section 39(1)(iv) preserves the farmer's right to save and resow seed of a protected variety other than branded seed. Section 3(j) of the Patents Act 1970 excludes seeds and varieties from patent protection altogether.

How another legal system answered the same question. In Confédération paysanne v. Premier ministre, Case C-528/16, decided by the Court of Justice of the European Union on 25 July 2018, a French agricultural union and eight associations challenged the exemption of mutagenesis from the European rules on genetically modified organisms, arguing that herbicide-tolerant varieties produced by new mutagenesis techniques escaped assessment. Directive 2001/18/EC exempted organisms obtained by mutagenesis from its main obligations.

Micro-organisms. Mutation has always been used to improve microbial strains: repeated rounds of induced mutation and selection greatly increased the penicillin yields of Penicillium moulds in the twentieth century. Genetically engineered micro-organisms are regulated by the 1989 Rules, which apply in terms to micro-organisms and to products and foodstuffs containing them, confine research with them to notified laboratories under rule 7(2), and classify pathogenic organisms by risk group in their Schedule.

Patent law treats a mutated or engineered microbe differently from a plant. Section 3(c) of the Patents Act excludes the discovery of any living thing occurring in nature, so a naturally occurring strain found in soil is not an invention, but section 3(j) excludes plants and animals and not micro-organisms, so a strain produced or modified by human intervention may be patented if it meets the tests of invention. Where such a strain cannot be described in writing, section 10(4)(ii) requires its deposit with an international depositary authority under the Budapest Treaty and disclosure of its source and geographical origin. The Calcutta High Court held in Dimminaco A.G. v. Controller of Patents and Designs, decided on 15 January 2002, that a process for preparing a vaccine containing a living virus is a manner of manufacture and may be patented.

Conclusion. The three notes meet at one point: international law and Indian law both regulate living resources by classifying them, and the classification decides the protection. Internationally, biodiversity is protected through species and habitat treaties, the Convention on Biological Diversity and its protocols, the law of the sea as applied in the South China Sea Arbitration, and customary duties to prevent harm and assess impacts. Nationally, a genetically engineered organism is a living modified organism requiring the approval of the Genetic Engineering Appraisal Committee under the 1989 Rules, an SDN-1 or SDN-2 genome-edited plant free of foreign DNA has been exempt from rules 7 to 11 since 30 March 2022, a conventionally mutated variety is ordinary seed, and an engineered micro-organism, unlike a plant or animal, may be patented because section 3(j) of the Patents Act 1970 excludes only plants and animals. Confédération paysanne shows the European Union drawing the line by process, so that a seed edited without foreign DNA, released in India without transgenic approval, is still a genetically modified organism in the Union until Regulation (EU) 2026/1388 applies, when plants meeting its category 1 criteria will be treated like conventional ones.