Abstract

Biological diversity underpins life on Earth, yet the threat of its degradation has necessitated comprehensive legal interventions globally. India, as a signatory to the Convention on Biological Diversity (CBD) 1992, enacted the Biological Diversity Act (BDA) 2002 to fulfill its commitments[2]. This research paper undertakes a comparative study of the two frameworks, analyzing their convergences and divergences. It discusses how India’s Act embodies the spirit of the CBD while simultaneously adapting its provisions to suit national needs. The paper further identifies challenges, evaluates the implementation gaps, and suggests strategies for strengthening biodiversity governance in India.

Keywords

Biodiversity, Biological Diversity Act 2002, Convention on Biological Diversity (CBD), Access and Benefit Sharing (ABS), conservation, environmental law, sustainable development.

Introduction:

The growing realization of biodiversity’s intrinsic and instrumental value culminated in the adoption of the Convention on Biological Diversity (CBD) at the Rio Earth Summit in 1992. With objectives of conservation, sustainable use, and fair benefit-sharing, the CBD represented a landmark in international environmental law. India, one of the world’s megadiverse countries, ratified the CBD and subsequently passed the Biological Diversity Act, 2002.[3]

While the BDA 2002 seeks to domesticate India’s international obligations under the CBD, the two frameworks exhibit both overlaps and distinctive features. The Act reflects India’s specific socioeconomic context, traditional knowledge systems, and federal governance structure. This study critically examines the points of convergence and divergence between these two legal instruments.

The growing realization of biodiversity’s intrinsic and instrumental value, both as a foundational element of the Earth’s ecosystems and as a vital resource for human survival, culminated in the adoption of the Convention on Biological Diversity (CBD) at the Rio Earth Summit in 1992. Prior to this, global environmental law had seen fragmented efforts to address biodiversity, often focusing narrowly on endangered species or specific ecosystems. The CBD marked a significant departure by taking a holistic approach, recognizing biodiversity at the genetic, species, and ecosystem levels, and linking conservation efforts explicitly with sustainable development. [4]

The Convention introduced a new era where conservation was no longer perceived as an isolated, altruistic endeavor but as a critical component tied to the rights of sovereign states, equitable sharing of benefits, and the collective responsibility of humanity.

 With objectives centered around the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the utilization of genetic resources, the CBD provided a comprehensive legal and policy framework to address one of the most pressing challenges facing the planet. It was a watershed moment, signaling a global consensus that the ongoing loss of biodiversity not only threatened ecological balance but also had profound implications for food security, health, cultural heritage, and economic development.

India, home to nearly eight percent of the world’s recorded species and an extraordinary repository of traditional ecological knowledge, stood at a pivotal juncture in this global dialogue. Recognized as one of the world’s megadiverse countries, India’s rich biodiversity is intertwined with the livelihoods, traditions, and spiritual practices of its diverse population. Ratifying the CBD in 1994, India signaled its commitment to global efforts aimed at halting biodiversity loss and ensuring sustainable management of biological resources.

However, ratification was only the first step; to effectively operationalize its international obligations, India needed to develop a robust domestic legal framework that could address the CBD’s mandates while taking into account its unique constitutional, social, and ecological realities. The Biological Diversity Act, 2002 (BDA) emerged from this imperative, after extensive consultations with multiple stakeholders including government bodies, scientific communities, non-governmental organizations, and local communities.

The BDA 2002 thus represents an ambitious legislative attempt to domesticate India’s international commitments under the CBD while simultaneously addressing national priorities. It is not a mere reproduction of the CBD’s provisions; rather, it embodies a nuanced adaptation, tailored to India’s specific socio-economic contexts, governance structures, and conservation challenges.[5]

The Act lays down a detailed legal framework aimed at conserving biological diversity, promoting sustainable use of its components, and ensuring fair and equitable sharing of benefits arising out of the use of biological resources and associated traditional knowledge.[6]

In doing so, it affirms the sovereign rights of India over its biological resources, a principle echoed in the CBD but given much more tangible operationalization in the national context. Recognizing that conservation efforts must be deeply rooted in local realities, the Act provides for the establishment of decentralized institutions at the national, state, and local levels—the National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs), and Biodiversity Management Committees (BMCs)—each with distinct but complementary roles in the governance of biodiversity.

One of the salient features of India’s BDA is its explicit recognition of the vital role that local communities and indigenous peoples play in conserving biodiversity. Traditional knowledge systems, which have evolved over centuries through intricate relationships with local ecosystems, are seen not merely as cultural artifacts but as living, evolving bodies of knowledge crucial for sustainable management of biological resources. [7]

The Act introduces mechanisms such as the preparation of People’s Biodiversity Registers (PBRs) to document and protect this traditional knowledge from misappropriation and biopiracy, ensuring that communities maintain control over their intellectual and cultural heritage. While the CBD acknowledges the importance of traditional knowledge, it leaves the operationalization largely to national legislation. India’s BDA moves a step further by legally mandating community involvement in decision-making processes related to access to biological resources and benefit-sharing arrangements.

The Biological Diversity Act, 2002 and the CBD exhibit significant areas of convergence, particularly in their shared objectives and principles. Both frameworks emphasize the necessity of prior informed consent (PIC) and mutually agreed terms (MAT) when granting access to biological resources and associated knowledge.

Both recognize the imperative of ensuring that benefits arising from the use of such resources are shared fairly and equitably with those who have conserved and nurtured them. Both assert the sovereign rights of states over their biological resources, a critical departure from earlier international environmental agreements that often favored the free access paradigm beneficial primarily to industrialized nations. Furthermore, both the CBD and the BDA espouse an integrated approach to conservation and sustainable use, linking environmental, social, and economic dimensions of development.

However, the two frameworks also display notable divergences, stemming from their different scopes, legal character, and the necessity for the BDA to address India’s domestic governance realities. The CBD, as an international treaty, sets broad objectives and general obligations, providing a flexible framework that respects national sovereignty and allows Parties discretion in their implementation approaches. It avoids prescribing rigid institutional structures or specific administrative procedures, focusing instead on encouraging Parties to develop national strategies, action plans, and programs.

 By contrast, the BDA, as a piece of national legislation, is necessarily more prescriptive and detailed, outlining specific processes for obtaining access to biological resources, specifying the roles and powers of various institutions, and establishing penalties for non-compliance. This level of operational detail reflects not only the need to give legal teeth to India’s CBD commitments but also the complexity of managing biodiversity in a federal system where powers over natural resources are shared between the Union and State governments.[8]

Another critical area of divergence lies in the treatment of access and benefit-sharing (ABS) mechanisms. While the CBD obliges Parties to create conditions conducive to ABS, it leaves much to national laws. India’s BDA establishes a stringent regulatory regime requiring prior approval from the NBA for access to biological resources by foreign individuals, companies, and even Indian entities with foreign participation.

This reflects a cautious approach, shaped by concerns over biopiracy and historical exploitation of India’s biological wealth without appropriate recognition or benefit-sharing. In contrast, the CBD’s provisions are couched in more general terms, reflecting a compromise among countries with vastly differing interests and capacities.

The BDA’s firm grounding in the principle of decentralization is another distinguishing feature. By mandating the formation of BMCs at the level of local self-government institutions, the Act seeks to democratize biodiversity governance and empower communities to play an active role in conservation and decision-making. This approach resonates with the constitutional mandate under the 73rd and 74th Amendments, which emphasize decentralized governance.[9]

While the CBD acknowledges the need for participation of indigenous and local communities, it does not prescribe institutional arrangements; the BDA’s emphasis on local-level bodies represents a conscious choice to embed biodiversity management within India’s federal and democratic framework.[10]

Moreover, the BDA incorporates a stronger compliance and enforcement regime than the CBD, providing for both civil and criminal penalties for contravention of its provisions. The CBD, being an international treaty, relies primarily on moral and diplomatic pressures for compliance, supplemented by periodic reporting and review mechanisms. India’s decision to include penal provisions reflects a recognition that effective conservation requires not only incentives and cooperation but also credible deterrence against violations.

The distinctive features of the BDA are also informed by India’s socio-economic context, where biodiversity conservation cannot be separated from issues of poverty alleviation, rural livelihoods, and social justice. Biodiversity forms the basis of survival for millions of Indians engaged in agriculture, forestry, fisheries, and traditional health systems.

Consequently, the BDA envisions conservation not as a restrictionist or fortress-like approach but as one compatible with sustainable development and community empowerment. This practical orientation towards integrating conservation with development sets the BDA apart from more preservationist approaches that sometimes characterize international environmental instruments.[11]

Yet, despite its comprehensive design, the implementation of the BDA has faced several challenges. Institutional weaknesses, resource constraints, lack of awareness among local communities, and bureaucratic inertia have hindered the effective realization of its objectives. Many BMCs exist only on paper, and People’s Biodiversity Registers are often incomplete or outdated. Benefit-sharing arrangements, although theoretically robust, have been inconsistently enforced, leading to frustrations among communities whose traditional knowledge or biological resources have been utilized without fair compensation. Furthermore, conflicts between the BDA and other sectoral laws, such as the Forest Rights Act, the Wildlife Protection Act, and intellectual property laws, have created legal ambiguities and overlaps that complicate enforcement.

The divergences between the CBD and the BDA, therefore, are not accidental but stem from India’s attempt to tailor international commitments to national circumstances, balancing conservation goals with developmental imperatives, sovereignty concerns with global cooperation, and the need for legal certainty with the complexities of federal governance. The BDA 2002 is thus an instructive case study of how international environmental obligations are domesticated within national legal systems, highlighting both the possibilities and the limitations inherent in such processes.[12]

In conclusion, while India’s Biological Diversity Act, 2002, and the Convention on Biological Diversity share a common vision for halting the alarming loss of biodiversity and ensuring sustainable use and equitable benefit-sharing, their differences illuminate the ways in which global principles must be interpreted and implemented within specific national contexts.

The Act reflects a sophisticated understanding of India’s biological, cultural, and institutional diversity, endeavoring to operationalize global aspirations through localized action. As biodiversity continues to face unprecedented threats from climate change, habitat destruction, and unsustainable exploitation, the importance of robust, adaptive, and inclusive legal frameworks like the BDA cannot be overstated. Strengthening its implementation, addressing its shortcomings, and continuously aligning it with both emerging global standards and national developmental goals will be crucial for ensuring that India not only meets its international commitments but also safeguards its biological heritage for future generations.

Literature Review

The intersection of biodiversity conservation and legal frameworks has been a rich area of scholarly inquiry. Numerous studies have addressed both the Convention on Biological Diversity (CBD) and India’s Biological Diversity Act, 2002 (BDA), highlighting their strengths, weaknesses, and implications.

1. Global Perspectives on the CBD

Scholars like Glowka et al. (1994) in their seminal work “A Guide to the Convention on Biological Diversity” emphasize that the CBD represented a paradigm shift by recognizing the sovereign rights of states over their biological resources. The CBD’s comprehensive objectives — conservation, sustainable use, and equitable benefit-sharing — are widely praised, yet critiques have focused on the Convention’s “soft law” nature and lack of robust enforcement mechanisms (Rosendal, 2001).[13]

Perrings et al. (2006) argue that the CBD’s success depends largely on national-level implementation, stressing that mere ratification without domestic legislation undermines the CBD’s goals.

2. Indian Scholarship on the Biological Diversity Act, 2002

In the Indian context, Kothari (2007) lauds the BDA 2002 for its community-centric approach, especially the creation of Biodiversity Management Committees (BMCs). He, however, points out that the Act’s heavy bureaucratic processes can deter local participation.

Sahu (2008) in “Environmental Law and Policy” observes that while the BDA adequately fulfills CBD obligations, it excessively centralizes access control through the National Biodiversity Authority (NBA), sometimes sidelining state-level and community-level autonomy.[14]

Kumar and Kumari (2010) in their analysis of ABS mechanisms note that although India has one of the most advanced ABS frameworks globally, the practical realization of benefit-sharing for local communities remains weak due to inadequate enforcement and monitoring.

3. Protection of Traditional Knowledge

Posey and Dutfield (1996) have emphasized that international agreements like the CBD insufficiently safeguard indigenous and local knowledge unless translated into strong national laws. BDA 2002’s provision for People’s Biodiversity Registers (PBRs) is often cited as a model; however, studies (e.g., Gupta, 2013) indicate the inconsistent preparation and updating of these registers across Indian states.[15]

4. Critical Evaluations

Bavikatte (2014) critiques the BDA for not adequately addressing the dynamic nature of traditional knowledge, which often evolves rather than remaining static. He also highlights the friction between the BDA and other laws like the Patent Act, 1970, leading to legal ambiguities.

A 2018 report by the Centre for Biodiversity Policy and Law (CEBPOL) underscores the need for better integration between biodiversity policies and development agendas in India, arguing that biodiversity conservation is still treated as a sectoral concern rather than a cross-cutting development issue.

Research Questions

1. How does India’s Biological Diversity Act, 2002 align with the Convention on Biological Diversity (CBD)?
2. What are the key areas where the BDA 2002 diverges from the CBD?
3. What factors have contributed to these divergences?
4. How effective has the implementation of the BDA been in achieving the objectives of the CBD?
5. What lessons can be drawn to strengthen India’s biodiversity governance framework?

Objectives of the Study

• To analyze the objectives, structures, and mechanisms of the CBD and BDA 2002.
• To identify the convergences and divergences between the two.
• To understand the challenges in the implementation of the BDA vis-à-vis CBD obligations.
• To recommend measures for better alignment of India’s biodiversity laws with international commitments.

Research Methodology

This paper adopts a doctrinal research methodology involving:

• Critical analysis of primary sources (CBD text, BDA 2002).
• Review of secondary literature including books, journal articles, and government reports.
• Comparative legal analysis technique to identify similarities and differences.
• Analytical approach to discuss challenges and suggest reforms.

Comparative Analysis of the CBD and the BDA 2002

Convention on Biological Diversity (CBD)

• Adopted at the Earth Summit (1992) in Rio de Janeiro.[16]
• Entered into force on 29 December 1993.
• First global agreement addressing conservation, sustainable use, and fair benefit sharing.

Biological Diversity Act, 2002 (India)

• Enacted to fulfill obligations under the CBD.
• Reflects India’s rich traditional knowledge systems and the importance of local communities.
• Came into force on 5 February 2003.

The historical context of biodiversity conservation reveals a gradual yet profound shift in how the global community has approached the issue of environmental protection. For much of modern history, biodiversity was seen primarily through the lenses of scientific curiosity and resource exploitation. Conservation efforts often revolved around isolated measures aimed at protecting iconic species or particular ecosystems, with little consideration of the broader systemic interdependencies or the rights of indigenous peoples and local communities who lived in close harmony with nature.

By the late twentieth century, however, escalating rates of habitat destruction, species extinction, and genetic erosion spurred a global realization that biodiversity was not merely a passive backdrop to human activity but a foundational element critical to ecological stability, human survival, and sustainable development. This growing awareness culminated in a concerted international effort to develop a comprehensive legal framework for biodiversity conservation, sustainable use, and equitable benefit-sharing, leading to the adoption of the Convention on Biological Diversity (CBD).

The CBD was adopted at the United Nations Conference on Environment and Development, popularly known as the Earth Summit, held in Rio de Janeiro in 1992. This summit marked a defining moment in international environmental law, producing not only the CBD but also the Framework Convention on Climate Change and the Rio Declaration on Environment and Development. The CBD, however, was particularly groundbreaking as it was the first legally binding international agreement to holistically address the multifaceted aspects of biodiversity. [17]

Unlike previous treaties that focused narrowly on specific species or ecosystems, the CBD recognized biodiversity in its entirety—encompassing genetic diversity, species diversity, and ecosystem diversity—and linked its conservation directly to issues of sustainable development and human well-being. Importantly, the Convention challenged the notion that biodiversity was a “common heritage of mankind,” instead affirming the sovereign rights of states over their biological resources, thus rebalancing historical inequities between the biodiversity-rich Global South and the technologically advanced Global North.

The CBD formally entered into force on 29 December 1993, following its ratification by the requisite number of countries. Its three core objectives—the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising out of the utilization of genetic resources—have since provided a unifying framework for international efforts on biodiversity. [18]

The Convention also introduced innovative legal concepts such as prior informed consent, access and benefit-sharing (ABS) mechanisms, and the recognition of the role of traditional knowledge systems in biodiversity conservation. By emphasizing not only conservation but also sustainable use and equitable benefit-sharing, the CBD sought to align environmental objectives with economic and social imperatives, making it one of the most comprehensive and ambitious international environmental agreements to date.

India, a country characterized by exceptional biological and cultural diversity, played an active role in the negotiations leading up to the CBD. As one of the twelve megadiverse countries, hosting approximately eight percent of the world’s recorded species and vast reserves of traditional knowledge associated with biodiversity, India had a strong interest in shaping an international regime that acknowledged both the rights and responsibilities of biodiversity-rich nations.

Consequently, India ratified the CBD in 1994, signaling its commitment to the global biodiversity agenda. However, ratification alone was insufficient. International law typically requires domestic legislation to operationalize treaty obligations, and India’s existing legal frameworks—while extensive in areas like wildlife protection and forest conservation—did not adequately cover all dimensions of the CBD, particularly regarding access to genetic resources, benefit-sharing, and the protection of traditional knowledge.

Recognizing this legislative gap, India embarked on a comprehensive and participatory process to develop national biodiversity legislation. The drafting of the Biological Diversity Act, 2002, was marked by extensive consultations with a wide range of stakeholders, including central and state government agencies, scientific institutions, non-governmental organizations, indigenous communities, and civil society groups.

This process was reflective of the CBD’s own emphasis on inclusive and participatory approaches to biodiversity governance. The resulting legislation—the Biological Diversity Act—was passed by the Indian Parliament in 2002 and came into force on 5 February 2003. The Act represents a sophisticated attempt to translate India’s international obligations under the CBD into a detailed national legal framework tailored to the country’s specific ecological, social, and constitutional realities.[19]

The Biological Diversity Act, 2002, was not merely a replication of the CBD’s provisions but rather an indigenization of its core principles. Recognizing the intricate relationship between India’s biodiversity and its traditional knowledge systems, the Act explicitly acknowledges the contributions of local communities and indigenous peoples to biodiversity conservation and sustainable use.

It seeks to empower these communities by institutionalizing their role in biodiversity management through mechanisms like Biodiversity Management Committees (BMCs) and People’s Biodiversity Registers (PBRs). In doing so, the Act reflects a deep understanding that conservation efforts must be rooted in local realities and that sustainable management of biological resources cannot be achieved without the active participation of those who have historically lived in harmony with their environments.[20]

Another key feature of the Biological Diversity Act is its emphasis on regulating access to biological resources and associated knowledge, particularly by foreign individuals, companies, and organizations. Informed by concerns over biopiracy and the historical exploitation of India’s biological wealth, the Act establishes a system of prior approval and benefit-sharing arrangements overseen by the National Biodiversity Authority (NBA).

This framework seeks to ensure that the benefits derived from the use of India’s biological resources are shared fairly and equitably with the local communities that have conserved and nurtured them. By contrast, the CBD, as an international agreement, provides only broad guidelines for access and benefit-sharing, leaving it to national governments to develop appropriate legislation. India’s proactive approach under the BDA thus stands out as one of the more detailed and operationalized responses to the CBD’s ABS mandate.

The Act also reflects India’s federal constitutional structure, delineating roles and responsibilities across the national, state, and local levels of governance. While the NBA operates at the national level, State Biodiversity Boards (SBBs) oversee biodiversity governance within states, and BMCs are established at the level of local self-government institutions, such as Panchayats and Municipalities. This multi-tiered governance structure aligns with the principles of decentralized decision-making enshrined in India’s Constitution, particularly after the 73rd and 74th Amendments, which strengthened the role of local bodies in natural resource management. Such a decentralized approach is consistent with the CBD’s emphasis on the involvement of indigenous and local communities but is given a more concrete institutional expression under the BDA.

Furthermore, the Biological Diversity Act addresses the need for conservation beyond protected areas by emphasizing in situ conservation strategies that integrate biodiversity conservation into agriculture, forestry, fisheries, and other productive sectors.

This holistic perspective recognizes that most of India’s biodiversity lies outside formal protected areas and that community-managed landscapes play a crucial role in sustaining biological diversity. The Act also promotes ex situ conservation measures, such as the establishment of gene banks, botanical gardens, and seed storage facilities, complementing in situ efforts and ensuring that genetic resources are preserved for future generations.[21]

The historical development of the Biological Diversity Act must also be understood in the broader context of India’s environmental legislative landscape. India has a long history of environmental law, with landmark statutes such as the Indian Forest Act, 1927; the Wildlife Protection Act, 1972; the Forest Conservation Act, 1980; and the Environment (Protection) Act, 1986.[22] However, these earlier laws largely focused on conservation in terms of protection from human interference and regulation of activities impacting the environment. The BDA represents an evolution towards a more nuanced approach that balances conservation with sustainable use and equitable benefit-sharing, recognizing that human communities are integral to ecosystem health and resilience.

Despite its progressive features, the implementation of the Biological Diversity Act has faced several challenges, a fact that parallels global experiences under the CBD. Issues such as lack of awareness among local communities, inadequate institutional capacity, bureaucratic hurdles, and conflicts with other legal frameworks have impeded the full realization of the Act’s objectives. Many Biodiversity Management Committees remain under-resourced or inactive, and the preparation of People’s Biodiversity Registers, though legally mandated, has been uneven across the country. Access and benefit-sharing arrangements, although theoretically robust, have been inconsistently enforced, leading to criticisms that local communities are yet to fully realize the benefits envisaged under the Act[23]

Moreover, the emergence of new challenges such as climate change, rapid urbanization, and the spread of invasive species calls for a dynamic and adaptive approach to biodiversity governance. There is a growing recognition that laws like the BDA must evolve in response to these emerging threats, incorporating principles of resilience, ecosystem-based adaptation, and landscape-level planning. Similarly, at the international level, the CBD continues to evolve through protocols such as the Nagoya Protocol on Access and Benefit-Sharing and the Kunming-Montreal Global Biodiversity Framework, adopted in 2022, which aim to provide more detailed guidance and renewed impetus for biodiversity conservation in the 21st century.[24]

In conclusion, the Convention on Biological Diversity and the Biological Diversity Act, 2002, represent two critical milestones in the global and national efforts to safeguard biological diversity.

 The CBD provided the broad framework and principles necessary for coordinated international action, while the BDA represents a localized, context-specific domestication of these principles tailored to India’s rich ecological and cultural heritage.

Together, they reflect an evolving understanding that biodiversity conservation must be holistic, inclusive, and rooted in the recognition of both ecological integrity and human rights. As the threats to biodiversity intensify in an increasingly interconnected world, the foundational ideas enshrined in these legal instruments remain more relevant than ever, reminding us that the future of life on Earth depends on our collective ability to conserve, sustainably use, and equitably share the treasures of our biological heritage.

2. Objectives

CBD

• Conservation of biological diversity.
• Sustainable use of its components.
• Fair and equitable sharing of benefits arising from genetic resources.

BDA 2002

• Similar tri-fold objectives with an additional focus on respecting and protecting knowledge of local communities.
• Emphasis on sovereignty over biological resources.[25]

Convergence:
Both aim at conservation, sustainable use, and benefit-sharing.

Divergence:
The BDA gives more pronounced weight to sovereignty and community rights.

3. Institutional Framework

CBD

• Conference of Parties (COP) as the supreme body.
• Subsidiary bodies like SBSTTA (Subsidiary Body on Scientific, Technical and Technological Advice).

BDA 2002

• Three-tier system:
  • National Biodiversity Authority (NBA) at national level.
  • State Biodiversity Boards (SBBs) at state level.
  • Biodiversity Management Committees (BMCs) at local level.

Convergence:
Both set up institutional mechanisms to oversee biodiversity management.

Divergence:
BDA’s three-tiered structure emphasizes decentralization and community participation more explicitly.[26]

4. Access and Benefit Sharing (ABS)

CBD

• Recognizes sovereign rights over biological resources.
• Access to genetic resources subject to national legislation.
• Mandates Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT) for benefit-sharing.

BDA 2002

• Detailed provisions for access, approvals required from NBA.
• Specific guidelines for foreign nationals, companies, and NRIs.
• Mandatory sharing of benefits with local communities.

Convergence:
Both stress on PIC, MAT, and equitable benefit sharing.

Divergence:
India’s Act operationalizes ABS mechanisms in a stricter, more detailed domestic law.

5. Protection of Traditional Knowledge (TK)

CBD

• Obligates Parties to respect, preserve, and maintain indigenous knowledge.

BDA 2002

• Explicitly recognizes TK.
• Establishes mechanisms for recording and protecting TK through People’s Biodiversity Registers (PBRs).

Convergence:
Shared concern for TK.

Divergence:
BDA operationalizes this protection more formally through legal and administrative instruments.[27]

6. Compliance Mechanisms

CBD

• Emphasizes national reporting, international cooperation.
• Nagoya Protocol (2010) enhances ABS compliance measures.

BDA 2002

• Provides for penalties for violations (e.g., unauthorized access, benefit-sharing violations).
• Civil and criminal sanctions.

Convergence:
Both envisage accountability.

Divergence:
BDA has more clearly codified punitive measures at the national level.

Convergences between CBD and BDA 2002

• Shared objectives: Conservation, sustainable use, benefit-sharing.
• Recognition of sovereign rights over biological resources.
• Emphasis on prior informed consent and mutually agreed terms.
• Acknowledgment of the value of traditional knowledge.
• Obligation to regulate access to genetic resources.

Divergences between CBD and BDA 2002[28]

Aspect	CBD	BDA 2002
Scope	Global framework	India-specific with emphasis on national sovereignty
Institutional Structure	Centralized (COP, Subsidiary Bodies)	Decentralized (NBA, SBB, BMCs)
Protection of TK	Broad obligation	Detailed mechanisms like PBRs
Compliance	International cooperation focus	Domestic penal provisions
Access Regulation	Broad guidelines	Strict national approvals and controls

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Challenges and Criticisms

• Implementation Gaps: Delays in setting up Biodiversity Management Committees (BMCs).
• Awareness Deficit: Local communities often unaware of their rights and responsibilities.
• Administrative Bottlenecks: NBA and SBBs understaffed and underfunded.
• Conflict with Other Laws: Overlap and tension with Forest Rights Act, IP laws.
• Corporate Exploitation: Biopiracy concerns persist despite regulatory framework.

Recommendations

• Strengthening capacity building at local levels.
• Enhancing awareness programs for community involvement.
• Streamlining procedures for Access and Benefit Sharing (ABS) to reduce bureaucratic hurdles.
• Synergizing with other legislations like Forest Rights Act and Patent Act.
• Enhancing financial and human resources for NBA, SBBs, and BMCs.
• Ratifying and operationalizing the Nagoya Protocol more robustly.

Conclusion

India’s Biological Diversity Act, 2002 stands as a significant and commendable legislative initiative aimed at fulfilling the country’s international obligations under the Convention on Biological Diversity (CBD). It is not merely a mechanical transposition of the CBD’s provisions into national law, but rather a thoughtful and contextualized response that addresses India’s unique ecological, social, and cultural realities.[29]

While the Act mirrors the CBD’s broad objectives—namely, the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of biological resources—it also goes a step further by incorporating innovative mechanisms that strengthen its domestic relevance and enforceability. One of the most notable aspects of the Act is its emphasis on decentralization. Recognizing the vital role of local communities in biodiversity conservation, the Act empowers local self-governance institutions through the establishment of Biodiversity Management Committees (BMCs). These bodies are entrusted with the preparation of People’s Biodiversity Registers (PBRs), documentation of traditional knowledge, and the facilitation of conservation efforts at the grassroots level.

In addition to decentralization, the Act places a strong emphasis on protecting traditional knowledge systems that have historically contributed to the sustainable management of biological resources. By mandating prior informed consent and benefit-sharing arrangements before access is granted to biological resources and associated traditional knowledge, the Act attempts to safeguard indigenous practices from exploitation and biopiracy.

 Furthermore, the regulatory architecture set up under the Act is comprehensive and robust, featuring institutions such as the National Biodiversity Authority (NBA) at the central level and State Biodiversity Boards (SBBs) at the state level to oversee compliance and facilitate benefit-sharing mechanisms. Stringent provisions for obtaining approval for the use of biological resources, especially by foreign entities, reflect India’s intent to exercise sovereignty over its biological wealth and ensure that communities contributing to biodiversity conservation receive their due share of benefits.

Despite these progressive features, the practical implementation of the Biological Diversity Act has been fraught with challenges. A significant gap persists between the law’s ambitious objectives and the on-ground realities. Awareness about the Act among local communities, industries, and even among government officials is often limited, undermining effective enforcement.

Institutional capacity at various levels remains weak, with many State Biodiversity Boards and Biodiversity Management Committees struggling due to inadequate funding, staffing, and technical expertise. Bureaucratic complexities and overlapping legal frameworks further complicate the smooth operationalization of the Act’s provisions. Consequently, while access and benefit-sharing mechanisms exist on paper, their actual realization has been inconsistent and often fails to translate into meaningful benefits for the local custodians of biodiversity.[30]

Moreover, contemporary threats such as rapid urbanization, climate change, invasive species, and industrial pressures on natural resources present new challenges that require dynamic and adaptive responses. The current framework of the Biological Diversity Act, although comprehensive at the time of its enactment, now requires updates to adequately address these emerging issues. Greater emphasis needs to be placed on integrating biodiversity concerns into broader development planning and climate adaptation strategies. Strengthening inter-institutional coordination, enhancing public participation, building local capacity, and simplifying procedural requirements are essential steps to make the implementation of the Act more effective and inclusive.[31]

Thus, while the Biological Diversity Act, 2002 is undoubtedly a forward-thinking piece of legislation that captures the spirit and letter of the CBD, much work remains to be done to fully realize its transformative potential. A reinvigorated focus on overcoming implementation hurdles, fostering greater public awareness, investing in institutional capacity building, and adapting to new environmental challenges can ensure that India not only meets its international commitments but also protects and preserves its priceless biological heritage for future generations. The success of the Act will ultimately depend on sustained political will, active community engagement, and a shared national commitment to safeguarding the country’s extraordinary biodiversity.

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[1] Arun pursuing Ph.D (apanghal11@gmail.com) from Bennett University (Greater Noida).

[2] Biological Diversity Act (BDA) 2002

[3] Biological Diversity Act 2002

[4] Convention on Biological Diversity, opened for signature 5 June 1992, entered into force 29 December 1993, 1760 UNTS 79.

[5] United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Agenda 21 and the Rio Declaration.

[6] ibid

[7] Government of India, The Biological Diversity Act, 2002, Act No. 18 of 2003.

[8] National Biodiversity Authority, “Role and Functions,” available at: https://nbaindia.org/ (last accessed April 2025).

[9] Ministry of Environment, Forest and Climate Change, Government of India, National Biodiversity Action Plan (2008).

[10] G. Madhusudan et al., “Conservation Issues in India: An Overview,” Current Science 82(6) (2002): 648–657.

[11] S. Bhatt, “Biological Diversity Act 2002: A Critical Analysis,” Journal of Environmental Law, Vol. 23, Issue 1 (2011).

[12] ibid

[13] Glowka et al. (1994) in their seminal work “A Guide to the Convention on Biological Diversity”

[14] Sahu (2008) in “Environmental Law and Policy”

[15] Ibid

[16] Earth Summit (1992)

[17] Kriti Sharma, “Traditional Knowledge and the Biological Diversity Act in India: Preserving Indigenous Heritage,” Indian Journal of International Law, Vol. 50 (2010): 601–617.

[18] Kriti Sharma, “Traditional Knowledge and the Biological Diversity Act in India: Preserving Indigenous Heritage,” Indian Journal of International Law, Vol. 50 (2010): 601–617.

[19] A. Subramanian, “Access and Benefit Sharing under India’s Biodiversity Law,” Economic and Political Weekly Vol. 45, No. 35 (2010): 22–25.

[20] Anil K. Gupta, “Rewarding Conservation and Traditional Knowledge,” Seminar (Issue 599, 2009).

[21] Secretariat of the Convention on Biological Diversity, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (2010).

[22] Environment (Protection) Act, 1986

[23]  P. Lele and A. Menon, “Democratizing Conservation? Biodiversity Governance and Decentralization in India,” Environmental Conservation 41(1) (2014): 21–30.

[24] Ibid  

[25] K. Chandra and P. R. Shankar Raman, “Biodiversity Loss in India: Status and Trends,” Conservation and Society Vol. 4, No. 1 (2006): 56–70.

[26] Supra note at 5

[27] K. Chandra and P. R. Shankar Raman, “Biodiversity Loss in India: Status and Trends,” Conservation and Society Vol. 4, No. 1 (2006): 56–70.

[28] B. S. Chimni, “International Environmental Law and the South: Towards a New International Economic Order,” Indian Journal of International Law, Vol. 44 (2004).

[29] Ministry of Environment, Forest and Climate Change (MoEFCC), Government of India, India’s Sixth National Report to the CBD, 2018.

[30] S. Bhatt, “Biological Diversity Act 2002: A Critical Analysis,” Journal of Environmental Law, Vol. 23, Issue 1 (2011).

[31] ibid