This article is written by Karishma Arora of National Law University, Odisha, an intern under Legal Vidhiya
ABSTRACT
This analysis delves into the Law Commission of India’s role and history, emphasizing its advisory function to the Ministry of Law and Justice. It explores the continuous evolution of law reform in India and the establishment of various Law Commissions to address legislative changes. The focus then shifts to the Biological Diversity Act, 2002, highlighting its objectives, key features, and the establishment of the National Biodiversity Authority. The analysis concludes by scrutinizing the Law Commission’s report, advocating for a more robust executive role in biodiversity conservation. It stresses the need for specific powers and actions for the executive, beyond legal amendments, to ensure the effective implementation of the Biological Diversity Act and genuine benefits to biodiversity.
KEYWORDS: –
Law Commission of India, Biological Diversity Act, National Biodiversity Authority, Executive Powers, Biodiversity Conservation, Legal Framework, Legislative Reforms, Environmental Sustainability
INTRODUCTION
The Law Commission of India, a non-constitutional executive agency, has played a crucial role in shaping legal reforms. This introduction provides a historical context, tracing the evolution of law reform in India and the periodic establishment of Law Commissions. It then introduces the Biological Diversity Act, emphasizing its significance in safeguarding India’s rich biodiversity. The National Biodiversity Authority’s role is highlighted, setting the stage for an examination of the Law Commission’s recent report, which calls for a more proactive executive role in biodiversity conservation.
LAW COMMISSION
The Law Commission of India is an executive agency that was founded by an order from the Indian government; it is neither a statutory nor a constitutional organization. Its primary duty is to promote legal reforms. The Commission serves as an advisory body to the Ministry of Law and Justice and was constituted for a certain period of time. Legal professionals are the majority of its members.
HISTORY OF LAW COMMISSION
In Indian history, law reform has been a continuous process, especially during the last 300 years or more. During the prehistoric era, when customary and religious law ruled the land, the process of reform had been ad hoc rather than institutionalized through properly established law reform organizations. However, starting in the third decade of the nineteenth century, the government has periodically established Law Commissions, which have the authority to suggest legislative changes to define, combine, and codify certain legal areas when the government deems them necessary. The first of these commissions, chaired by Lord Macaulay and created in 1834 by the Charter Act of 1833, made codification of the Criminal Procedure Code and the Penal Code recommendations. Following that, the second, third, and fourth Law Commissions were established in 1853, 1861, and 1879, respectively. Over the course of fifty years, these commissions added a wide range of laws to the Indian Statute Book that were modelled after the English laws that were in effect at the time and tailored to Indian conditions. The first four Law Commissions produced several laws, including the Transfer of Property Act, the Indian Contract Act, the Indian Evidence Act, and the Indian Code of Civil Procedure. Article 372 of the Constitution mandated that pre-Constitutional laws be in effect after independence until they are changed or abolished. The establishment of a Central Law Commission to suggest updating and revising the inherited laws to meet the nation’s evolving requirements has been demanded both inside and outside of Parliament. In 1955, the Attorney General of India at the time, Mr. M. C. Setalvad, chaired the First Law Commission of Independent India, which was constituted by the Indian government. Twenty-one further Law Commissions, each with a three-year tenure, have been appointed since then. The 22nd Law Commission of India was established in 2020 with approval from the Union Cabinet, with a three-year term. In response to a request from the Central Government or suo-motu, the Law Commission conducts legal research and reviews current Indian laws in order to make necessary revisions and establish new laws. Additionally, it conducts investigations and research to bring about improvements in the justice delivery systems, with the goal of removing procedural delays, expediting case resolution, lowering litigation costs, etc.
The Law Commission also performs the following important duties:
Laws that are no longer relevant are identified, and recommendations are made to abolish any unneeded or out-of-date legislation.
Law and Poverty: looks at laws that have an impact on the underprivileged and conducts post-audits on socioeconomic laws.
Recommending the passage of new legislation as may be required to carry out the Directive Principles and achieve the goals outlined in the Constitution’s Preamble.
Judicial Administration: Taking into consideration and communicating to the Government its opinions on any legal or judicial administration-related matter that the Government may directly submit to it through the Ministry of Law and Justice (Department of Legal Affairs).
Research: Taking into account requests from the government, through the Ministry of Law & Justice (Department of Legal Affairs), to do research in any other nations.
Examine the current legislation in order to advance gender equality and make recommendations for changes[1].
BIO DIVERSITY BILL 2000
The Biological Diversity Act, 2002 was adopted by the Indian parliament with the intention of protecting biodiversity and helping the local population manage biological resources sustainably. The Act was established in order for India to meet the requirements of the Convention on Biological Diversity (CBD), to which it is a party. The principal aim of the biological variety Act is to safeguard India’s abundant biological variety by encouraging sustainable exploitation of its constituent parts and guaranteeing equitable resource allocation to avert excessive usage and possible degradation of biodiversity. The legislation is essential to protecting India’s biological legacy because it is one of the world’s most biologically varied countries.
Access to the nation’s biological resources is regulated, among other important aspects of the Biological Diversity Act. Preservation and long-term administration of biological variety. preservation of local populations’ understanding of biodiversity. equitable benefit sharing with nearby communities in their capacity as knowledge keepers and guardians of biological resources. safeguarding and rehabilitating endangered animals. participation of state government agencies in the act’s implementation through specialized committees. The statute provides for both cognizable and non-bailable offenses. The National Green Tribunal (NGT) is the appropriate forum for bringing complaints on benefit sharing or directives issued by the National Biodiversity Authority (NBA).
The following are exempt from the Biological Diversity Act: biological resources sold as commodities in India. Conventional applications and related expertise in central government-approved joint research collaborations with overseas institutions. applications by traditional healers, breeders, growers, etc. The Ministry of Environments and Forests formed the National Biodiversity Authority (NBA) in 2003 to supervise the act’s implementation. Along with local Biological Management Committees, all 29 states established State Biodiversity Boards (SBB). In conjunction with the national government, the NBA:
Recognizes and protects endangered species.
Establishes institutions as biological resource repositories.
The NBA’s responsibilities include keeping an eye out for illegal activity, counselling the government on biodiversity preservation, and making recommendations on how to stop the granting of intellectual property rights pertaining to traditional knowledge or biological resources found in the area. The NBA must grant authorization to foreign companies and corporate bodies wishing to use its information or resources for surveys, research, or commercial purposes. State Biodiversity Boards must provide approval to businesses or Indian citizens. Results of research utilizing Indian biological resources may not be shared with other parties without the NBA’s approval, with the exception of publications in authorized or government-affiliated journals. Global biological diversity protection is the responsibility of the United Nations Convention on Biological Diversity (UNCBD). [2]
THE 171TH REPORT BY LAW COMMISSION
On December 29, 1999, the international community globally observed the International Day for Biological Diversity, commemorating the entry into force of the Convention on Biodiversity in 1993. This convention, currently ratified by 176 parties, serves as a primary instrument for preserving the delicate interconnected web of life on our planet. The three primary goals of the convention are the preservation of biological diversity, the sustainable use of its constituent parts, and the just and equitable distribution of the advantages associated with the use of genetic resources. The interconnectedness and advancement in each of these fields are essential to the convention’s success.
A communiqué from the May 5-7, 1999, Commonwealth Law Ministers’ conference in Port of Spain, Trinidad and Tobago, emphasized the significance of the Convention’s Article 15’s provisions for access to biological resources. The ministers agreed that while a large number of developing nations have significant biological variety, very few have made efforts to incorporate Article 15’s requirements into their national laws and customs.
The importance of the Convention’s intellectual property rights provisions was again underlined at the conference, especially in light of the rights pertaining to plants used in traditional remedies. The Law Commission’s proposed legislation set forth its goals in the Bill’s preamble, tying them in with the Convention on Biological Diversity’s (1992) Preamble and several of the convention’s articles, including Articles 1, 3, and paragraphs (1) and (5) of Article 15. The Act defined the responsibilities of the National Authority and the Central Government and included several new terminologies.
The National Authority’s powers were greatly expanded and its makeup was significantly altered to improve its efficacy. More precise rules were formed regarding access to biodiversity, and a number of crimes were created to stop unapproved use of biodiversity and theft of indigenous knowledge from nearby groups.
The present legislative endeavour essentially seeks to organize and optimize the procedures to guarantee the preservation and sustainable utilization of biological variety, in addition to the just and equal distribution of its advantages.[3]
RECOMMENDATIONS BY LAW COMMISSIONS
The Law Commission of India has embarked on a thorough review of the Bio-Diversity Bill, believed to be drafted by the Ministry of Environment and Forests. Through meticulous examination, the Commission suggests numerous additions, modifications, and amendments to enhance the draft Bill’s alignment with its overarching objectives. These goals are outlined in both the preamble to the Bill and the Convention on Biological Diversity (1992), specifically in Articles 1, 3, and paras (1) and (5) of Article 15.
Expanding the legislative framework significantly, the Commission introduces various new definitions while precisely outlining the jurisdictional boundaries between the Central Government and the National Authority. To bolster the effectiveness of the National Authority, recommendations include substantial changes in its composition and increased powers.
Provisions pertaining to access to biodiversity are refined, and a range of offenses is introduced to counter unauthorized exploitation of biodiversity and the misappropriation of traditional knowledge from local communities. The overarching objective of these alterations is to create a structure and process ensuring the conservation and sustainable use of biological diversity, along with fair and equitable benefit-sharing.
A key focus of the Commission’s efforts is to empower local communities by granting them a share in the benefits derived from the use of their knowledge. Drawing inspiration from legal frameworks in countries like Australia, Brazil, South Africa, and particularly Colombia, the Commission seeks to amalgamate global best practices. Acknowledging the valuable contributions of the Expert Committee on Biodiversity Legislation chaired by Dr. M.S. Swaminathan and an extensive body of literature from expert bodies and non-governmental organizations, the Commission emphasizes the depth of its research.
Furthermore, the Commission recognizes the influence of international agreements, highlighting the parallel between Section 3 of its draft and Section 102 of the Uruguay Round Agreements Act (1994) in the U.S.A. Overall, the proposed changes by the Commission, rooted in the Ministry’s draft and aligned with national and international considerations, aim to create a systematic and expansive legislative framework responsive to the varied concerns within the field of biotechnology.[4]
ANALYSIS
The Law Commission’s report, while focusing on refining the existing Biological Diversity Act, indeed places considerable emphasis on enhancing the legislative framework. However, for the effective implementation of the law and substantial benefits to biodiversity, it should not solely rely on legal amendments but also outline specific powers and actions that the executive must exercise.
To truly serve its purpose, the report should propose executive powers that actively contribute to biodiversity conservation. This includes empowering the executive to conduct rigorous monitoring and enforcement mechanisms to prevent unauthorized exploitation. The executive should be vested with the authority to designate and manage protected areas, ensuring the conservation of critical habitats and ecosystems. Collaborative efforts between the executive and local communities should be encouraged, emphasizing community-based conservation initiatives that align with sustainable practices.
Furthermore, the report should advocate for the executive’s role in promoting research and scientific advancements in biodiversity conservation. This involves allocating resources for comprehensive biodiversity surveys, identifying threatened species, and implementing measures for their protection and rehabilitation.
In addition to strict regulatory measures, the report should suggest executive-led initiatives to raise public awareness about the importance of biodiversity. Educational campaigns, workshops, and outreach programs can foster a sense of responsibility and active participation among citizens. The executive’s role in facilitating benefit-sharing mechanisms should be clearly outlined, ensuring that local communities receive fair and equitable compensation for their role in conserving biological resources. Moreover, the report should propose executive-led strategies to streamline the process of obtaining permissions, making it more accessible for researchers and organizations genuinely contributing to biodiversity research and conservation.
CONCLUSION
In conclusion, this analysis underscores the importance of a comprehensive approach to biodiversity conservation beyond legal frameworks. While the Biological Diversity Act is a crucial legislative tool, the Law Commission’s report advocates for a more robust executive engagement. Specific executive powers, from monitoring and enforcement to community-based initiatives, are essential for effective implementation. The report’s emphasis on public awareness, benefit-sharing, and streamlined permissions aligns with a holistic vision for biodiversity conservation. For the Biological Diversity Act to truly make a positive impact, the integration of legal refinement and executive empowerment is imperative, ensuring a harmonious and sustainable balance between legal provisions and on-the-ground conservation efforts.
[1] Law Commission of India, Drishti IAS, https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-institutions/law-commission-of-india-1 (last visited Dec 17, 2023).
[2] Biological Diversity Act, India [2002]: National Biodiversity Authority | Biodiversity Protection, BYJUS, https://byjus.com/free-ias-prep/biological-diversity-act-2002/ (last visited Dec 17, 2023).
[3]2022082460-1.pdf, https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082460-1.pdf (last visited Dec 14, 2023).
[4] Id.
Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.
