This article is written by Huzaifa Irfan, LL.B (Final Year, 2025), Bundelkhand University, Jhansi, during his internship at LeDroit India.
Keywords
Biodiversity Act 2002 | Access & Benefit Sharing | Traditional Knowledge | Biological Resources | ABS Guidelines | National Biodiversity Authority | Nagoya Protocol | Legal Compliance | Indigenous Rights | ESG | Biopiracy | Environmental Law
Abstract
The Biological Diversity Act, 2002 gives a legal framework for conservation and sustainable use of biological resources of India keeping in view Access and Benefit Sharing (ABS). This article elaborates on ABS provisions, regulatory functions, and India’s adherence to the Nagoya Protocol.
The article examines case law, criticizes policy, and provides comparative insight into ABS compliance issues, ranging from delays in procedures to issues of valuation, recommending legal reforms. It advocates for a participatory and fair ABS system that honours indigenous custodianship and improves biodiversity governance in the bioeconomy and ESG environment.
Introduction
India has more than 91,000 animal and 45,000 plant species and is thus one of the most biodiverse countries on earth. The biodiversity is ingrained in the livelihood and culture of the people and is maintained through traditional knowledge.
The Biological Diversity Act, 2002 regulates access to biological resources and ensures equitable benefit sharing with conservation communities. The Access and Benefit Sharing (ABS) mechanism prevents biopiracy, promotes sustainability, and ensures ecological justice.
India’s bio-diversity is under threat due to over-exploitation, climate-induced changes, and habitat loss. Thus, compliance with ABS is not merely a matter of law; it is a strategic balance between economic development and ecological conservation.
This research examines the ABS legal framework, rules of operation, mechanisms of institutions, international context, issues of compliance, and policy suggestions. It seeks to clarify ABS compliance in India and its role in biodiversity governance.
Legal Framework of ABS under the Biodiversity Act
Key Laws
The ABS mechanism comes under the provisions of the Biological Diversity Act, 2002:
- Section 3: Prevents foreign entities from accessing biological resources and information without the authorization of the NBA.
- Section 4: Bars transmitting traditional knowledge without approval of NBA.
- Section 6: NBA approval necessary for exportation of research outputs abroad.
- Section 7: Requires prior notice to State Biodiversity Boards (SBBs) for commercial use by Indian entities.
- Section 21: Enshrines benefit-sharing obligations, economic and otherwise.
These are backed by the Biological Diversity Rules, 2004, which establish application forms, timeframes, and dispute resolution.
ABS Guidelines, 2014
The Guidelines impose ABS requirements through:
- User types: Commercial, research, collaborative.
- Benefit-sharing frameworks
- Advance payments
- Royalties
- Milestone sharing
- Non-monetary advantages (e.g., shared IPRs, tech transfer)
- Approval procedures, timelines, and guidelines for negotiation.
The guidelines encourage community participation and openness in benefit-sharing negotiations.
Institutional Setting
| Authority | Role |
| NBA | Grants approvals, monitors compliance, negotiates benefit-sharing terms |
| SBBs | Regulate access within states, verify intimation filings |
| BMCs | Represent local communities, maintain People’s Biodiversity Registers (PBRs), participate in negotiations |
The decentralized nature encourages local self-government and people’s participation, in accordance with subsidiarity.
Legal and Constitutional Interpretation
ABS provisions are construed with regard to:
- Article 21: Right to livelihood
- Article 48A: Obligation to safeguard the environment.
- Article 51A(g): Obligation to safeguard natural heritage.
Courts prioritize participatory governance and equity-based sharing as constitutional mandates. In Centre for Environmental Law v. Union of India, the Supreme Court prioritized the conservation of biodiversity as a public trust.
Global Perspective: Nagoya Protocol & Norms
Convention on Biological Diversity (CBD), 1992
- Recognizes national sovereignty over biological resources
- Demands fair and equitable benefit sharing.
- Shaped India’s ABS law.
India ratified the Protocol in 2014. Key principles are:
- Prior Informed Consent (PIC)
- Agreed Terms (MAT)
- Verifying checkpoints for ABS compliance.
India’s ABS Guidelines adopt these principles, with the NBA as the national focal point.
Comparison Models
| Country | Highlights |
| Brazil | Streamlined ABS procedures under Law No. 13,123/2015 |
| South Africa | Community consultation and benefit-sharing agreements |
| Philippines | Incorporated ABS into wildlife legislation. |
India’s model is people-centered but requires improved enforcement and capacity development. Examples can be learned from Brazil’s computerized registry and South Africa’s consultative processes.
Compliance Challenges and Case Studies
Landmark Cases
- Biocon Ltd. v. NBA
- Retrospective benefit-sharing obligations
- Emphasized need for clearer guidelines.
- NBA Order No. NBA/Tech/ABS/2016/01
- PepsiCo India
- Used potato germplasm without ABS clearance.
- NBA initiated proceedings.
- NBA Proceedings, 2018
- Turmeric and Neem Patent Controversies
- Foreign patenting of indigenous Indian knowledge
- Led to creation of TKDL
- US Patent 5,401,504; EPO Neem case
- Rosy Periwinkle Case (Madagascar)
- Used in cancer drugs without benefit-sharing
- Biopiracy and ABS failure globally.
Compliance Problems
- They do not know.
- Benefit uncertainty
- Approval process delays
- BMCs have limited capacity.
- Overlapping spheres and scattered enforcement.
- Insufficient model contracts and digital infrastructure
- Resistance in the private sector to perceived overregulation.
- Ineffective grievance redressal systems for citizens
Improving ABS Compliance
Legal Reforms
- Revise ABS Guidelines to clarify valuation metrics and timelines.
- Develop sample benefit-sharing model contracts.
- Define past commitments.
- Implement ABS into patent law and filings.
- Institute streamlined approval procedures for low-risk studies.
Organizational Capability
- Train SBBs and BMCs in law negotiation.
- Digitize PBRs and workflows.
- Establish ABS Cells in law schools and research centers.
- Create a national ABS dashboard for transparency.
- Strengthen NBA’s enforcement powers through legislative reforms.
Business Engagement
- Implement ABS in ESG and sustainability reporting.
- Reward compliance.
- Develop industry-specific ABS codes.
- Enforce ABS certification on complying companies.
- Encourage biodiversity audits in CSR initiatives.
Community Strengthening
- Legal literacy training for indigenous populations.
- Community-based documentation and biodiversity checklists
- Create benefit-sharing trusts for equitable fund distribution.
- Identify typical laws and gender roles in ABS agreements.
- Promote women-conservation activities.
Academic Integration
- Apply ABS in law and environment studies.
- Provide grants for biodiversity law research.
- Establish open-access databases of ABS agreements and case law.
- Encourage collaboration among law, ecology, and economics.
ESG Integration and Corporate Compliance
ESG frameworks are becoming more integral to corporate strategy and investment. Biodiversity, previously on the periphery of ESG metrics, is emerging as important, particularly in pharmaceuticals, agriculture, cosmetics, and biotechnology that depend on biological resources.
ABS as an ESG Indicator
ABS compliance indicates a company’s commitment to sustainable sourcing, local engagement, and environmental responsibility. It aligns with various ESG pillars:
- Conservation of biological resources.
- Reasonable compensation to the natives.
- Governance: Clear benefit-sharing conditions and legal adherence.
The world needs biodiversity disclosures. The TNFD and the CSRD of the EU mandate that companies report nature-related risks and ABS obligations.
Corporate Best Practices
Some Indian and multinationals are integrating ABS into their ESG frameworks:
- Dabur India Ltd. partnered with local communities for herbal procurement and documented benefit-sharing arrangements.
- Himalaya Wellness: Works with tribal cooperatives for medicinal plant cultivation, ensuring non-monetary benefits like training and infrastructure
- Biocon updated its compliance procedures to match NBA standards following lawsuits.
Industry Suggestions
- Conduct biodiversity audits for ESG reporting.
- Add ABS clauses to supplier contracts.
- Assign biodiversity compliance officers.
- Active engagement with NBA and SBBs to avoid litigation.
- Report ABS metrics in sustainability reports.
The incorporation of ABS into ESG decreases legal risk but increases brand reputation, investor confidence, and sustainability.
Intellectual Property Rights and ABS
The ABS-IPR interface is complicated and controversial. Most products such as drugs and cosmetics are traditional knowledge and biological resource products. Patents gained without benefit sharing lead to biopiracy.
Legal Tensions
- Patent Law protects inventions under the Patents Act, 1970, while the Biodiversity Act requires sharing of benefit for access to resources.
- Indian patent law requires disclosure of origin of biological resources, but the enforcement is weak.
- TKDL: The Traditional Knowledge Digital Library eschews flawed patents but does not guarantee benefit-sharing.
Judicial Trends
Courts now understand the importance of balancing IPR with ABS. In Divya Pharmacy v. Union of India (2018), the Uttarakhand High Court has imposed ABS conditions on Ayurvedic firms despite traditional knowledge being public.
Policy Recommendations
- Modify the Patents Act to mandate NBA approval of biological resource patents.
- Develop joint IPR ownership formats for businesses and societies.
- Implement ABS-related patent licensing.
- Enhance TKDL’s ABS enforcement role beyond defensive protection.
Sealing ABS into IPR regimes protects indigenous rights and environmental justice while promoting innovation.
Legal Insights
ABS compliance is constitutional law-oriented. Article 21 ensures the right to livelihood, including the rights of communities to their biological heritage. Articles 48A and 51A(g) hold it obligatory for the state and citizens to safeguard biodiversity. These laws are interpreted by the judiciary to ensure ABS obligations, emphasizing biodiversity as a public trust.
Legal certainty is required in several fields:
- ABS applied retrospectively.
- Valuing non-monetary benefits
- Conflicts of jurisdiction among NBA, SBBs, and environmental regulators.
- Implementation of ABS in trade and patent law.
A biodiversity code or an amendment would codify these provisions and reduce lawsuits.
Institutional Needs
ABS success is dependent on robust institutions. NBA requires greater enforcement authority, budgetary support, and digital resources. SBBs and BMCs need training, legal support, and negotiation resources. Coordination between MoEFCC, DPIIT, CSIR, and tribal ministries is essential for policy implementation.
Electronic mediums like ABS dashboards and e-filing portals enhance effectiveness and transparency. Public-private partnerships enhance outreach and capacity development.
Community Governance
ABS prioritizes community justice. Local and indigenous communities preserve biodiversity for survival and culture, not profits. Protecting their rights involves:
- Respecting customary norms and legislation.
- Ensuring gender equality in benefit-sharing
- Community-based conservation and documentation assistance.
- Legal assistance and grievance redressal.
ABS should transition from a compliance checklist to a participatory governance model.
The Future Direction
India is at a crossroads. The bioeconomy is growing, with genetic resources driving innovation in all sectors. Climate change is speeding up biodiversity loss. Global initiatives like the Post-2020 Biodiversity Framework and TNFD are transforming how nations and companies interact with nature.
ABS should be:
- Legally robust
- Effective institutions
- Ethically sound
- Globally aligned.
- Empowering locally
Policymakers must look at ABS as a platform for sustainable development, not as an obstacle to innovation. Legal students, scholars, and practitioners must view ABS as a dynamic topic that combines environmental law, intellectual property, human rights, and international law.
India can be at the forefront of biodiversity management. Securing ABS guarantees that conservation is a public good, and it gives authorities in decision-making forums to forest dwellers, indigenous healers, and farmers.
Conclusion
The ABS mechanism of the Biodiversity Act, 2002 strikes a balance between conservation and justice in rewarding and recognizing communities for conserving India’s biodiversity when their knowledge and resources are commercially or research-wise utilized.
India’s accession to the Nagoya Protocol is a reflection of its proactive approach towards biodiversity management. There are, however, implementation gaps in terms of inefficiencies and institutional constraints that require legal reforms, capacity building, and participatory measures.
With India shifting towards an innovation-led and sustainable bioeconomy, ABS compliance will be essential for sustainable use, indigenous empowerment, and environmental justice. ABS reinforcement is an ethical imperative to honour our custodians of natural heritage.
The future of ABS rests on becoming a dynamic, inclusive, and transparent system. Legal instruments, institutional facilitation, and the participation of people can help India become a global leader in biodiversity governance and a model for fair benefit sharing for the world.
The Access and Benefit Sharing clause of the Biodiversity Act, 2002 is an expression of India’s values and obligations. It provides compensation to the keepers of biodiversity while others reap the benefits.
India’s legislative framework is ambitious and impressive. Its three-tier architecture and adherence to the Nagoya Protocol make it a fore runner in regulating biodiversity. However, immediate gaps in implementation must be addressed.
References
- Biological Diversity Act, 2002
- Biological Diversity Rules, 2004
- Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014
- Convention on Biological Diversity (CBD), 1992
- Nagoya Protocol on Access and Benefit Sharing, 2010
- NBA Order No. NBA/Tech/ABS/2016/01 (Biocon Case)
- NBA Proceedings, 2018 (PepsiCo Case)
- US Patent No. 5,401,504 (Turmeric)
- European Patent Office Case on Neem
- Law No. 13,123/2015 (Brazil)
- South Africa’s National Environmental Management: Biodiversity Act, 2004
- Wildlife Resources Conservation and Protection Act, 2001 (Philippines)
- Traditional Knowledge Digital Library (TKDL), Government of India
- Ministry of Environment, Forest and Climate Change (MoEFCC) Reports
- National Biodiversity Authority Annual Reports
- Gurdial Singh Nijar, “Access and Benefit Sharing: The Malaysian Experience,” Third World Network
- Centre for Biodiversity Policy and Law (CEBPOL), NBA
- ESG India Reports on Biodiversity and Corporate Compliance
- Divya Pharmacy v. Union of India, Uttarakhand High Court, 2018
- Centre for Environmental Law v. Union of India, Supreme Court of India, AIR 2013 SC 221
