TABLE OF CONTENTS

ACKNOWLEDGEMENT ......................................................................................................... 2

DECLARATION ....................................................................................................................... 3

I. INTRODUCTION .................................................................................................................. 4

AIM: ....................................................................................................................................... 6

OBJECTIVE........................................................................................................................... 6

LIMITATIONS: ..................................................................................................................... 6

RESEARCH QUESTIONS .................................................................................................... 6

RESEARCH METHODOLOGY ........................................................................................... 6

II. BIODIVERSITY CONVENTION ........................................................................................ 7

III. JUDICIAL ACTIVISM IN INDIA .................................................................................... 13

IV. CONCLUSION.................................................................................................................. 18

BIBLIOGRAPHY .................................................................................................................... 20
 ACKNOWLEDGEMENT

The researcher takes this opportunity to express her profound gratitude and deep regards to
her guide HRISHIKESH MANU his exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessing, help and guidance given by
him time to time shall carry the researcher a long way in the journey of life on which the
researcher is about to embark.Lastly, the researcher would like to thank almighty, her parents,
brother, sisters and friends for their constant encouragement without which this assignment
would not be possible.

THANK YOU,
DIKSHA
 DECLARATION

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled

“PROTECTION OF INDIA’S BIOLOGICAL DIVERSITY” submitted at Chanakya

National Law University, Patna is an authentic record of my work carried under the

supervision of HRISHIKESH MANU. I have not submitted this work elsewhere for any

other degree or diploma. I am fully responsible for the contents of our project report.

DIKSHA

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

SEPTEMBER, 2018
 I. INTRODUCTION

BIOLOGICAL DIVERSITY means heterogeneity in many aspects of life. It include

congregation of ecosystem where genetic diversity and species diversity play a major role in
maintaining ecological balance. Enrichment of natural resources that exist in water, air and
land are part of biological diversity. The word diversity itself means variability in every
dimension. The scope of biodiversity is very wide in such a way where its quantification is
difficult to assess. The assessment also becomes difficult due to complexity in ascertaining
productivity and functions of natural resources. Human beings can’t survive without
biodiversity because of total dependence. They use resources directly or indirectly for their
daily basis necessity. They need it for food consumption, medicinal purposes and biological
control over pest reduction for better agricultural yield. Biodiversity is something, which is
cherished and priceless.

India is one of 17 mega-diverse countries, as identified by Conservation International, and

has four biodiversity hotspots. India contains 668 protected areas comprising of wildlife
sanctuaries, national parks, tiger reserves, elephant reserves, community reserves, and
conservation reserves. India is recognized as one of the eight Vavilovian centres of origin and
diversity of crop plants, and possesses more than 300 wild ancestors and close relatives of
cultivated plants, which are still evolving under natural conditions. India is also a vast
repository of Traditional Knowledge (TK) associated with biological resources (MoEF 2009).

At the same time in India, a large population is dependent on forests for their livelihood,
either fully or partially. The figures estimated for forest dependent communities in India vary
from 200 to 350 million people. This dependence is in the form of collection of a variety of
non-timber forest produce for subsistence and livelihood purposes, collection of fuel and
fodder for subsistence and livelihood purposes, and lifestyles such as shifting cultivation or
pastoral nomadism – which are dependent on natural resources. At the same time, local
communities have been continuing with diverse sets of ownerships, rights, and concessions
over the use of natural resources such as forests, inland waters, coastal areas, and alpine
meadows etc. Thus, the ecosystem services, as characterized by the framework of
Millennium Ecosystem Assessment, form an integral part of association of local communities
with the ecosystems in India.

The floral and faunal biodiversity inside and above soil do have enormous value in
ecosystem. The phyllosphere of plants growing at the polluted site harbours a higher
population of fungi and actinomycetes. There are a large number of unknown species in
Indian biodiversity. Most of these components of biological diversity have enormous social
values. Human beings directly consume some of these species such as food, fisheries, fruits
etc. The existence of human beings indirectly depends upon the various biological species in
many respects such as medicines, woods, tea, coffee etc. The rich biodiversity of India is
under severe threat owing to habitat degradation, fragmentation, over exploitation of
resources, global warming etc.

The whole world is, at present, under terrific threat of extinction of various floral and faunal
species. India, like other countries, is facing a major decline in biological diversity due to
global warming, climate change, uncalculated and unplanned deforestation, random poaching
and killing of various important rare species, unfettered industrialization etc.

Conservation of biological diversity and its sustainable development is essential for the
maintenance of ecosystem and protection of environment of this earth. It is meaningless to
initiate any administrative measures without legal recognition to cope with this gigantic
problem. Legal measures are to be developed to prevent the loss of biological diversity and
for protection of environment.

Why is biodiversity important?

Everything that lives in an ecosystem is part of the web of life, including humans. Each
species of vegetation and each creature has a place on the earth and plays a vital role in the
circle of life. Plant, animal, and insect species interact and depend upon one another for what
each offers, such as food, shelter, oxygen, and soil enrichment.

Maintaining a wide diversity of species in each ecosystem is necessary to preserve the web of
life that sustains all living things. In his 1992 best-seller, "The Diversity of Life," famed
Harvard University biologist Edward O. Wilson -- known as the "father of biodiversity," --
said, "It is reckless to suppose that biodiversity can be diminished indefinitely without
threatening humanity itself."
AIM: To study and critically analyses the topic of intention of legislature.

OBJECTIVE: The researcher intends to find out the following during the course of research:

i) To know the concept of biological diversity.

ii) To know the different legislations framed for protection of India’s biological

diversity.

iii) To know the about the constitutional provision regarding the protection of India’s

biological diversity.

iv) To know the leading cases in protection of biological diversity of India.

LIMITATIONS: The researcher has undergone time limitation.

RESEARCH QUESTIONS: The researcher has formulated the following research questions,

the answer for which has been found during the course of research:

i) What is the importance of biological diversity?

ii) What are the legislations framed for the protection of India’s biological diversity?

iii) What are the constitutional provisions regarding protection of the biological diversity?

iv) What is the view of the Supreme Court?

RESEARCH METHODOLOGY: The researcher will use only doctrinal method of research.

Sources of data:

SECONDARY SOURCES: Books, Articles, Weblogs

Methods of data collection: The researcher will make use of doctrinal methods that includes

library work.
 II. BIODIVERSITY CONVENTION

Fig. - Development of Legislation on Biological Diversity in India

Stockholm conference, 1972

Brutland Report, 1987

Our Common Future

Convention on
Earth Summit,1992 Biological Diversity,
1993

Biological Diversity
Act, 2002

World Summit for

Sustainable Development,
2002

United Nations Climate

Change conference, 2009

National Environment Policy, 2006

The National Environmental policy, 2006 was approved by the Union Cabinet on 18 th May,
2006. The National Environment Policy1 seeks to extend the coverage and fill in gaps that
still exist, in light of present knowledge and accumulated experience. It does build on the
1
National Environment Policy; the Five Year Plan 2002-2007, Volume II, Chapter 1, Planning Commission,
Government of India.
earlier policies such as National Forest Policy, 1988; National Conservation Strategy and
Policy Statement on Environment and Development, 1992; Policy Statement on Abatement
of Pollution, 1992; National Agriculture Policy, 2000; National Population Policy, 2000;
National Water Policy, 2002.

The dominant theme of this policy is to ensure that people dependent on particular resources
obtain better livelihoods from the fact of conservation than from degradation of the resource.
The loss of the environmental resource base can result in certain groups of people being made
destitute, even if overall, the economy shows strong growth.2 It is increasingly evident that
poor environmental quality has adversely affected human health. This policy has evolved
from the recognition that only such development is sustainable which respects ecological
constraints, and the imperatives of justice.

The principal objectives of this policy are3

i. to protect and conserve critical ecological systems and resources and invaluable
natural and man-made heritage,
ii. to ensure equitable access to environmental resources and quality for all sections of
society;
iii. to ensure judicious use of environmental resources to meet the needs and aspirations
of the present and future generations;
iv. to integrate environmental concerns into policies, plans, programmes and projects for
economic and social development;
v. to ensure efficient use of environmental resources in the sense of reduction in their
use per unit of economic output, to minimize adverse environmental impacts;
vi. to apply the principles of good governance (transparency, rationality, accountability,
reduction in time and costs, participation, and regulatory independence) to the
management and regulation of use of environmental resources and
vii. to ensure higher resource flows, comprising finance, technology, management skills,
traditional knowledge, and social capital, for environmental conservation through
mutually beneficial multi-stakeholder partnerships between local communities, public
agencies etc.

National Biodiversity Action Plan, 2008

2
http://www.nbaindia.org/act/act.htm
3
http://assets.panda.org/custom/flash/daversitycode/
Biological diversity is essential to meet the human needs and vital for the survival of this
Earth. India had developed a ‘National Policy and Macro-level Action Strategy on
Biodiversity’4 in 1999. The National Biodiversity Action Plan (NBAP) which has been
approved by the Union Cabinet on 6th November, 2008, Ministry of Environment and
Forests, Government of India has been prepared through a consultative process by revising
and updating the earlier policy in consonance with the National Environment Policy NEP),
2006. This NBAP has been formulated in pursuance of Article 6(a) of the CBD as well as
Sections 36(1) and (3) of the Biological Diversity Act, 2002.5

The NBAP states that India, a mega-diversity country with only 2.4% of the area, accounts
for 7-8% of the recorded species of the world spread over 45,500 species of plants and 91,000
species of animals as documented so far. In India, 5,650 microbial species have been
described while at the global level, 2, 78,900 species of microorganisms have been described
so far out of the estimated 3.75 million extant species6.

At the Central level, the Ministries/Departments of Agriculture, Health, Water Resources,

Rural Development, Power, Industry, New and Renewable Energy, Urban Development,
Science and Technology, and others have important programmes relating to biodiversity.
India has taken strategy for conservation and sustainable utilization of biodiversity by
declaring the biodiversity-enriched areas as national parks, wildlife sanctuaries, biosphere
reserves and ecologically fragile and sensitive areas; afforestation of degraded areas and
wastelands.7 It has also concentrated upon alternative measures for meeting fuel wood and
fodder needs of people in order to divert pressure on reserve forests and creation of ex situ
conservation facilities such as gene banks, conservation programmes for species such as tiger
and elephant, and species-specific sanctuaries for wild and domesticated biodiversity etc.

The National Green Tribunal ACT, 2010

It has been felt for long time by the Government of India to provide effective access to
judicial and administrative proceedings, including redress and remedy and to develop
national laws regarding liability and compensation for the victims of pollution. India, being
one of the participating countries in the United Nations Conference on the Human
Environment held at Stockholm in June, 1972 and the United Nations Conference on

4
http://ecoclub.com.library/epapers/13pdf.
5
http://blogsearch.google.com
6
Ministry of Environment & Forest, Government of India
7
www.uclan.ac.uk/Genbenefit
Environment and Development held at Rio de Janeiro in June, 1992, aims to set up
specialized environmental courts in the country namely ‘National Green Tribunal’ for the
effective and expeditious disposal of cases relating to environmental protection and
conservation of forests and other natural resources including enforcement of any legal right
relating to environment and giving relief and compensation for damages to persons and
property and for matters connected therewith or incidental thereto.8 Accordingly, the Indian
Legislature enacted the National Green Tribunal Act, 2010.

The basic features of the Act are as follows9:

i. The Act aims to set up specialized environmental courts in the country;

ii. it replaces the existing National Environmental Appellate Authority (NEAA) and has
wider jurisdiction than the NEAA. It would hear initial complaints as well as appeals
from decisions of authorities under various environmental aws;
iii. the Tribunal would consist of both judicial and expert members. Judicial members
must have been judges of the Supreme Court or High Courts. Expert members have to
possess technical qualifications and expertise and also practical experience;
iv. the Tribunal would hear only ‘substantial question relating to the environment’.
Substantial questions are those which
a. affect the community at large and not just individuals or groups of individuals,
or
b. cause significant damage to the environment and property, or
c. cause harm to public health which is broadly measurable;
v. the criteria to determine what a ‘substantial question related to the environment’ are
open to interpretation;
vi. the Act may reduce access to justice in environmental matters by taking away the
jurisdiction of civil courts. All cases under laws mentioned in the Bill would now be
handled by the Tribunal which would initially have benches at only five locations;
vii. the Act does not give the jurisdiction of a Tribunal over some laws related to the
environment;
viii. The qualifications of judicial members of the Tribunal are similar to that of the
NEAA.

8
http://www.wii.gov.in/nwdc/biosphere.htm)
9
"http://en.indiapolicywiki.org/index.php?title=The_National_Green_Tribunal_Bill_2010
Section 16 of the said Act states that the person aggrieved by—

i. an order or decision, made by the appellate authority under section 28 of the Water
(Prevention and Control of Pollution) Act, 1974;
ii. an order passed by the State Government under section 29 of the Water (Prevention
and Control of Pollution) Act, 1974;
iii. directions issued by a Board, under section 33A of the Water (Prevention and Control
of Pollution) Act, 1974;
iv. an order or decision made by the appellate authority under section 13 of the Water
Prevention and Control of Pollution) Cess Act, 1977;
v. an order or decision made by the State Government or other authority under section 2
of the Forest (Conservation) Act, 1980;
vi. an order or decision, made of the Appellate Authority under section 31 of the Air
(Prevention and Control of Pollution) Act, 1981;
vii. any direction issued under section 5 of the Environment (Protection) Act, 1986;
viii. an order made granting environmental clearance in the area in which any industries,
operations or processes or class of industries, operations and processes shall not be
carried out or shall be carried out subject to certain safe guards under the Environment
(Protection) Act, 1986;
ix. an order made refusing to grant environmental clearance for carrying out any activity
or operation or process under the Environment (Protection) Act, 1986;
x. any determination of benefit sharing or order made by the National Biodiversity
Authority or a State Biodiversity Board under the provisions of the Biological
Diversity Act, 2002, may, within a period of thirty days from the date on which the
order or decision or direction is communicated to him, prefer an appeal to the
Tribunal provided that the Tribunal may, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within the said period, allow it to
be filed under this section within a further period not exceeding sixty days.10

The decision of the Ministry of Environment and Forests to set up a National Green
Tribunal11 is considered one of the long awaited requirements to deal with the flurry of
environmental litigations across the country. Pursuant to the observations of the Supreme

10
http://india.gov.in/knowindia/national_bird.php.
11
http://assets.panda.org/custom/flash/daversitycode/
Court of India in four landmark judgments, namely, M.C. Mehta Vs. Union of India12; Indian
Council for Environmental Legal Action Vs. Union of India13; A.P. Pollution Control Board
Vs. M.V. Nayudu14 and A.P. Pollution Control Board Vs. M.V. Nayudu II15, the Central
Government has taken steps to set up Special Courts which will deal with environmental
issues only. The Law Commission in its 186th Report had recommended to set up “multi-
faceted” Environmental Court in each State of India with judicial and technical/scientific
experts as they exist in Australia, New Zealand and other countries.
On 30th April, 2010 Lok Sabha has passed the National Green Tribunal Bill, 2009. 16 It
envisages the setting up of a national tribunal, a judicial body exclusively to deal with
environmental laws and to provide citizens a right to environment. The Tribunal would have
four circuit Benches. The main Bench of the tribunal would be set up in Bhopal. It would
deal with all environmental laws on air and water pollution, the Environment (Protection)
Act, the Forest Conservation Act and the Biodiversity Act. With this effort, India would join
Australia and New Zealand, which have such specialized environment tribunals.

CONSTITUTIONAL BACKDROP OF BIODIVERSITY CONSERVATION IN INDIA

While introspecting the basis of legislation related to protection of biodiversity in India and
Bangladesh, it is important to comprehend and contemplate specific articles in the
constitution of India and Bangladesh to know the background how so far theyare correlated to
biodiversity conservation & protection of rightful custodians. According to Indian
Constitution, state has certain obligation to maintain social order by saving the social,
economic interest of citizens of India.17 Indian Constitution also provides that state has to
maintain equitable balance to protect common good. It is obligatory on the part of the State to
safeguard the interest of community by shielding ownership & control of material
resources.18

12
M.C. Mehta Vs. Union of India, 1986(2) SCC 176.
13
Indian Council for Environmental Legal Action Vs. Union of India, 1996(3) SCC 212.
14
A.P. Pollution Control Board Vs. M.V. Nayudu, 1999(2) SCC 718.
15
A.P. Pollution Control Board Vs. M.V. Nayudu II, 2001(2) SCC 62.
16
http://www.hindu.com/2010/05/01/02hdline.htm
17
Constitution of India, art.38.
18
Constitution of India, art. 39(b).
 III. JUDICIAL ACTIVISM IN INDIA

Judicial activism for protection of the environment in India formally began after the 1972
Stockholm Conference on Human Environment. The process of accommodation by court
denotes a process where at one end there are the logically principled rules in the hands of
court and at other end, there are demands to accommodate with the framework of law.
Environmental provisions are introduced in the Constitution of India by its 42nd amendment
in 1976 wherein it has been stated that it is a “fundamental duty” for every State and citizen
of India to protect and improve the natural environment19. Several laws pertaining to the
protection of the environment were enacted in India prior to it. There are a number of public
laws such as the Indian Penal Code, 1860 and the Environmental (Protection) Act
(EPA),1986 against industrial pollution and the Conservation of Forest and Natural
Ecosystems Act of 1994 to stop deforestation and habitat destruction are, among others, good
pieces of legislation(s) for the protection of the environment in India. Public Interest
Litigation (PIL) to prevent environmental degradation has been increasing day by day in
India and the judiciary has come to rescue the environment on a number of occasions.
There are several historical judicial decisions serving both man and environment in India.

I. PROTECTION OF DOON VALLEY IN THE HIMALAYAS: A MILESTONE

The Apex Court of India historically passed a judgment20 to preserve the ecological
balance(s) and maintain environmental health.
The facts of the case are as follows -
The Rural Litigation and Entitlement Kendra, Dehradun made allegations that the
unauthorized and illegal mining operations were being carried on in the Mussoorie Hills and
the surrounding areas adversely affecting the ecology of the area and leading to
environmental disturbances. The Court treated these allegations as a writ petition and issued
notice. In July, 1983 this Court directed to stop all fresh quarrying.
On 11.8.1983 this Court appointed Bhargav Committee for inspecting all the mines except
those belonging to the State of Uttar Pradesh and the Union of India for determining whether
the safety standards/measures laid down in the Mines Act, 1952 and the Mines Rules were
being observed or not and whether there was any danger of landslides or was any hazard to
19
Article 48 A and 51 A (g) have been inserted in the Constitution of India by 42nd amendment in
1976.
20
Rural Litigation and Entitlement Kendra & Ors Vs. State of U.P. & Ors AIR 1987 SC 359; 1987
(1) SCR 641.
individuals, cattle or agricultural lands by carrying on mining operations. Direction was
issued to stop to blasting operations in the area. On the basis of the main report of the said
Committee, this Court, on August 24, 1983, permitted to remove the limestone already
quarried. The Committee directed closure of some of the mines and reported the defects
appearing in other mines and called upon the mine owners to carry out rectifications.
The Bhargav Committee classified the mines in A, B and C groups. As regards the mines in
Group A, the Committee opined that the quarrying could be carried on without any
environmental or ecological hazard. The Committee also recommended closure of B Group
mines permanently. So far as the mines in Group C were concerned, the Committee
recommended that they should be closed down. The Union Government had also appointed a
Working Group on mining of limestone quarries in Dehradun and Mussoorie area some time
in 1983 which was also headed by Shri Bhargav who was heading the Committee appointed
by this Court. The Working Group submitted its report in September, 1983. After a
comparative analysis of the two reports, the Court found that the Working Group had taken
these very mines for their study and had divided the mines into two categories, namely, Class
I and Class II. All the mines then categorized as Class I were now included by the Bhargav
Committee in Group A and the remaining mines now classified as Group B and C were in
Class II. This Court had also appointed an Expert Committee headed by Professor Valdia to
consider the problems of ecology and environment with reference to mining.
Professor Valdia gave a separate report while the other two members gave a joint report. In
its order of March 12, 1985, this Court observed that it did not propose to rely on the report
of Professor Valdia and it would not be safe to direct continuance or discontinuance of
mining operations in limestone quarries on the basis of Main Boundary Thrust. On 12th
March, 1985, this Court directed that the limestone quarries located in Sahasradhara Block
and placed in Category Il by the Working Group should be closed down, that the limestone
quarries placed in Category II by the Working Group other than those which were placed in
Category B and C by the Bhargav Committee should also be closed down save and except for
the limestone quarries covered by the mining leases numbers 31, 36 and 37 for which the
same direction should be given as would be given in regard to the limestone quarries
classified as Category B in the Bhargav Committee Report and that if there were any
subsisting leases in respect of any of these limestone quarries they would forthwith come to
an end and if any suits or writ petitions for continuance would expire. The leases in respect of
which the limestone quarries were pending, they too would stand dismissed.
This Court directed closing down of the mines in A Category located within the municipal
limits of Mussoorie. In regard to B Class quarries of the Bhargav Committee Report which
featured in Category II of the Working Group Report, as also of the A Category quarries
within the municipal limits, this Court set up a Committee headed by Shri Bandopadhyay, the
then Secretary in the Ministry of Rural Development and called upon the mine owners to
submit a full and detailed scheme to that Committee for its examination and report to the
Court about the same. It was directed that until further orders from this Court on the basis of
the Bandopadhyay Committee Report, these mines would not be worked. The Bandopadhyay
Committee submitted its report rejecting the schemes put forward by various lessees of the
mines which have been closed down. On 20th November, 1986 this Court granted time to the
erstwhile lessees of mines to file objections to Bandopadhyay Committee Report within six
weeks and reply, if any, to be filed by the petitioners and the State within four weeks
thereafter. The petitions were to come up for hearing in February, 1987.
By order dated March 12, 1985 the Court made a detailed order containing various directions
reported in [(1985) 3 SCR 169] and the reasons therefore were to follow later.
In passing judgment the Apex Court observed that -
The Himalayan range on the Northern Boundary of India is the most recent mountain range
and yet it is the tallest. It has formed the Northern boundary of the country and until recent
times, provided an impregnable protection to the Indian sub-continent from the Northern
direction. This mountain range has been responsible to regulate the monsoons and
consequently the rainfall in the Indo-gangetic belt. The Himalayas are the source for
perennial rivers such as the Ganges, Yamuna and Brahmputra as also several other tributaries
which have joined these main rivers. The Himalayas has been the store house of herbs, shrubs
and plants. Deep forests on the lower hills have helped to generate congenial conditions for
good rain. The Doon Valley has been an exquisite region bounded by the Himalayan and the
Shivalik ranges and the Ganga and Yamuna rivers. The perennial water streams and the
fertile soil have contributed not only to the growth of dense lush green forests but have
helped the yield 651 of basmati rice and leeches.
At present the Valley is in danger because of erratic, irrational and uncontrolled quarrying of
limestone. The landscape has been stripped bare of its verdant cover. Green cover today is
about 10 per cent of the area while from decades ago it was almost 70 per cent. Governments-
both at the Centre and in the State must realize and remain cognizant of the fact that the stake
involved in the matter is large and farreaching.
The evil consequences would last long. Once that unwanted situation sets in, amends or
repairs would not be possible. The greenery of India, as some doubt, may perish and the Thar
Desert may expand its limits. Consciousness for environmental protection is of recent origin.
The United Nations Conference on World Environment held in Stockholm in June, 1972 and
the follow-up action thereafter is spreading the awareness.
The Court appreciated the steps taken by the Rural Litigation and Entitlement Kendra. But
for this move, all that has happened perhaps may not have come. Preservation of the
environment and keeping the ecological balance unaffected is a task which not only
Governments but also every citizen must undertake. It is a social obligation and that it is the
fundamental duty of every citizen as enshrined in Article 51 A (g) of the Constitution. The
courts further stated that the Kendra should be entitled to the costs of this proceeding
amounting to Rs. 10.000 and direct the State of Uttar Pradesh to pay the same either directly
or through Court within one month.

II. PROTECTION OF SARISKA TIGER RESERVE IN THE ARAVALLI HILLS,

1993 CASE
The Supreme Court of India once again expressed its concern over the protection of
environment and preservation of biological diversity21.
The facts of the case are as follows:
The petitioner filed the writ petition in which this Court had passed several orders from time
to time restraining mining activity in the Sariska Tiger Reserve area. The mine-owners in the
area and their supporters had been threatening and harassing the Secretary and other office-
bearers and members of the petitioner-organization, Tarun Bharat Sangh, in several ways. On
a previous occasion, one of the mine-owners had assaulted the Secretary of the petitioner-
organization, Shri Rajinder Singh, in the very presence of Shri Justice M.C. Jain, a
Commissioner appointed by this Court, for which act he was convicted by the court for
criminal contempt of this Court and sentenced to imprisonment for one week.
At the instance of the petitioner-organization, he (Dr Rajeev Dhavan) went to the Sariska
Tiger Reserve area to make a spot inspection on 3-4-1993. A meeting was also organized by
the petitioner organization in this connection at 10.30 a.m. on 4-4-1993 in the office premises
of the petitioner. When he went to the site of the meeting on that morning, he found some
persons picketing at the entrance.

21
Tarun Bharat Singh Vs Union of India (1994) INSC 565; 1995 (1) SCC 150;
While the meeting was in progress, some persons burst into the hall and started shouting
slogans and disrupting the meeting. He went out and told the disrupters that they should not
do so, whereupon they advanced towards him and surrounded him.
He was pushed by one or two persons. At about 1.00 p.m., another incident took place
whereby the same group but this time led by a person called Dr Upendra Dublish advanced
towards him and Rajinder Singh and surrounded them and threatened that he would not let
his meeting continue; and, if necessary destroy the ashram.
The Court observed that from a reading of the affidavits of Dr Dhavan and the counte
affidavits of Dr Dublish that the latter had not specifically denied the allegation of Dr Dhavan
that Dr Dublish advanced towards him while he was there with Rajinder Singh, surrounded
them and told Dr Dhavan, in particular, that he would not allow the meeting to continue.
There was also no specific denial of the allegation of Dr Dhavan to the effect that Dr Dublish
asserted that he wished to disrupt the meeting precisely because of the environment case
pending in this Court.
In view of the above circumstances, the Court accepted the unconditional apology tendered
by Dr Dublish but with a severe warning to him not to indulge in similar activities in future.
So far as Shri Ratan Katyani was concerned, he had unconditionally tendered an unqualified
apology. Having regard to the fact that he too was a member of the legal profession and a
social activist in that area, his unconditional apology was also accepted. The court stated that
they were sure that Shri Katyani would be careful in future and would give no occasion for
any such complaint. Interlocutory Application No. 13 of 1993 is ordered accordingly.
Under the orders passed earlier in this matter including the one dated 10-5-1993 referred to
above, the Court had directed due protection to be extended to the office bearers of the
petitioner-organization and in particular to its Secretary, Shri Rajinder Singh. The Court
further stated that they had also recorded the undertaking of Shri Ratan Katyani that he would
not enter the premises of the petitioner organization or take any other offensive action against
them. He similarly wanted an assurance from the petitioner-organization that they too would
not enter the premises of Shri Katyani's Organization and would not take any offensive action
against that organization. So far as Dr Dublish was concerned, the Court had recorded in their
order in IA No. 13 of 1993 pronounced that day separately that he has nothing to do with the
petitioner-organization since 4-4-1993 and that he was then settled in Jaipur.
The orders and observations aforesaid were affirmed herewith and on that basis IA No. 15 of
1993 was disposed of.
 IV. CONCLUSION
It is obligatory on the countries, which ratified convention on biological diversity that
commercial usage of indigenous resources should be done with the permission and active
engagement of holders of such knowledge in the process of such reciprocal agreement.22
Two important point of deliberation arise in this regard, namely;
i. Who is holder as mentioned in the article 8(j) of Convention of Biological Diversity,
1992?
ii. What can be construed from the word consultation with biological management
committee by national biodiversity authority and state biodiversity boards mentioned
in section 41(2) the Act, 2002 of India?
Holders of indigenous knowledge and resources are local communities and they must be
interpreted as real custodians of indigenous resources because such resources are protected
and utilized for livelihood purpose from generation to generation. It is the job of state
biodiversity board to help in establishing the composition of biodiversity management
committee by local body.23 But the responsibility of biodiversity management committee is
limited to the affairs of people’s biodiversity register as per the Biological Diversity Rules,
2004, whereas their objective is to stimulate the growth of biodiversity and supervise their
viable use and documentation process as mentioned in the Act, 2002.24 With respect to the
word consultation used in the act, it give ambiguous explanation because it seems to be a
kind of informal dialogue or passive involvement that national biodiversity authority or state
biodiversity authority will take first initiative and it can be misused at the same time. There is
another kind of apprehension which can be perceived from certain provisions related to the
composition of National Biodiversity Authority as well as state biodiversity board i.e.,
absence of any kind representative of indigenous or local communities. Centralisation can
become an impediment in bringing the whole mechanism transparent in nature. Inclusion of
representatives of indigenous communities in the composition can bring appropriate use of
prior informed consent mechanism and it can also help them in getting their right of benefit
sharing in full satisfaction because, there is no clarity in the whole mechanism of benefit
sharing even after national biodiversity authority’s regulation came into existence in 2014.
The extent of appropriateness has to be introspected whether it just and proportionate enough
or not, as it is mentioned that benefit sharing will continue to exist unchanged even if there is

22
Convention on Biological Diversity, 1992, art.8 (j).
23
Constitution of Biodiversity Management Committees, Biological Diversity Rules, 2004, Rule 22.
24
Ibid. S.41 (1).
commercial usage of more than one biological resources.25 Another grey area of concern is
when origin and derivation of biological resources is from jurisdiction or zone of two or more
state biodiversity boards, benefit sharing will be distributed proportionately as decided by
national biodiversity authority or state biodiversity board, but there is no specific need to
consult biodiversity management committees of those respective zones.26
The distributed amount from benefit received is not necessarily justified and equitable in
nature per as quantity and important factors related to biological resources in all cases. It can
also vary with respect to other diversified factors like nature of biological resources, extent of
dependence by benefit claimer, nationality of stakeholder in this regard, existence or non
existence of biodiversity management committees in local areas, level of competence and
decision making power of persons holding position in biodiversity management committee
and state biodiversity boards, etc. Since there is no specific definition of benefit mentioned
either in the legislation or rule framed by national biodiversity authority or latest regulation,
which was introduced in 2014.
Whenever the claim of benefit sharing arise in any kind of trade including bio-prospecting,
benefit should be considered on monetary and/or nonmonetary basis as perceived from
regulation related to benefit sharing.27 With the passage of time and fast driven economy,
time is ripe now that any kind of nonmonetary benefit should be included compulsorily in
any agreement related to commercial utilization of biodiversity, otherwise the whole purpose
of benefit will not be fruitful & prosperous in the long term so as to conserve biodiversity for
sustainable development.
It is important to understand a real fact that protection of environment and biodiversity is not
the sole task of one specific authority established under a specific legislation in both
countries. Having such a huge responsibility for preserving ecosystem, time has come to
realize the importance of proper coordination and collaboration between authorizes
established under forest law, environment protection law and law related to conservation of
biodiversity. Maintenance of ecosystem can only be possible when transparent way of
functioning will be implemented form ground level to avoid all possible kinds of conflicting
interest.

25
Guidelines on access to biological resources and associated knowledge and benefits sharing
regulation, 2014, see, reg. 14(3), ‘Determination of benefit sharing’.
26
Ibid. Reg. 14(4).
27
Ibid. Ann. 1, ‘Non-monetary benefits options, Fair and equitable benefit sharing options’.
 BIBLIOGRAPHY

 National Environment Policy; the Five Year Plan 2002-2007, Volume II, Chapter 1,
Planning Commission, Government of India.
 http://www.nbaindia.org/act/act.htm
 http://assets.panda.org/custom/flash/daversitycode/
 http://ecoclub.com.library/epapers/13pdf.
 http://blogsearch.google.com
 Ministry of Environment & Forest, Government of India
 www.uclan.ac.uk/Genbenefit
 http://www.wii.gov.in/nwdc/biosphere.htm)
 "http://en.indiapolicywiki.org/index.php?title=The_National_Green_Tribunal_Bill_20
10
 http://india.gov.in/knowindia/national_bird.php.
 http://assets.panda.org/custom/flash/daversitycode/
 http://www.hindu.com/2010/05/01/02hdline.htm
 Guidelines on access to biological resources and associated knowledge and benefits
sharing regulation, 2014