NAVIGATING ACCESS AND BENEFIT SHARING: KEY QUESTIONS ON INDIA’S BIODIVERSITY LAW

INTRODUCTION

India’s biodiversity governance framework is one of the most ambitious in the world. Anchored in the Biological Diversity Act, 2002[1], further strengthened by the Biological Diversity (Amendment) Act, 2023[2], and operationalised through the Access and Benefit Sharing (ABS) Regulations, 2025[3]It represents India’s commitment to conserving its natural wealth while ensuring that local communities benefit fairly from its use.

The objectives are clear: conservation, sustainable utilisation, and equitable benefit-sharing. Yet, as the system has matured, practical challenges and grey areas have emerged. Companies, researchers, and regulators alike are grappling with questions that go beyond statutory text and enter the realm of day-to-day implementation.

This blog examines three recurring scenarios that highlight these tensions:

• whether sourcing material through Biodiversity Management Committees (BMCs) automatically ensures compliance
• whether foreign buyers require National Biodiversity Authority (NBA) approval even after Indian exporters pay ABS, and
• whether international sustainability certifications can substitute for ABS obligations.

1. Does sourcing material from BMCs make it automatically ABS-compliant?

Under Section 41 of the Biological Diversity Act[4]Every local body in India is required to establish a Biodiversity Management Committee (BMC). These committees play a vital role in decentralising biodiversity governance. Their key functions include:

• Preparing People’s Biodiversity Registers (PBRs) to document local biological resources and associated knowledge.
• Safeguarding community rights over resources and traditional knowledge.
• Issuing certificates of origin, confirming where a resource has been sourced from.

At first glance, it may appear that if a company procures material through a BMC, its legal obligations are automatically fulfilled. However, this is not the case.

• Not pre-compliant by default: The Act makes it clear that ABS obligations under Sections 3, 4, and 6 continue to apply[5]. BMCs facilitate conservation and documentation; they do not act as vendors, exempting companies from compliance.
• Limited exemptions: Section 7(2) of the 2023 Amendment exempts certain cultivated species[6] Such as medicinal plants, when accompanied by a valid certification. Yet these are narrow carve-outs and not blanket exemptions.
• Voluntary contributions: Section 21(2)(f) encourages companies to support communities through scholarships, training, or infrastructure[7]. This is supplementary, not a substitute for legal ABS obligations.

In practice, BMCs are gatekeepers and facilitators. They can enhance traceability and community participation, but they cannot override statutory obligations. Companies must still assess whether their activity falls under access, research, or commercial utilisation as defined in the law.

2. If ABS has been paid in India, does a foreign buyer still need NBA approval?

Another common scenario involves exports. Imagine an Indian company, HAPL, which pays full ABS on biological resources used in India. It then exports the processed material to a distributor in the United States. The pressing question is: Does the US distributor also require approval from the NBA?

The answer depends on how the Act defines “access.”

• Section 3: Non-Indian individuals, foreign companies, or entities with foreign participation must obtain NBA approval before accessing Indian biological resources.[8]
• Section 6: NBA approval is mandatory before filing for intellectual property rights related to Indian biological resources.[9]
• Section 20(2)(b): NBA approval is required when transferring research results or biological material to foreign entities.[10]

Therefore, even if HAPL has complied domestically, from the foreign distributor’s perspective, importing Indian biological resources constitutes “access” under the Act. Unless specifically exempted, they too may need NBA approval.

Exemptions may apply in limited circumstances:

1. If the exported product is so thoroughly transformed that its biological origin cannot be identified (for example, a finished cosmetic cream where the plant extract is chemically indistinguishable).
2. If the foreign distributor uses the product solely for retail without conducting further research or filing for patents.
3. If prior approval granted to HAPL already covers downstream foreign transfers.

For Indian exporters, the safest approach is to secure NBA approval upfront for foreign transfers. This avoids leaving international partners exposed to legal uncertainty and protects the credibility of India’s biodiversity governance in global supply chains.

3. Can international certifications substitute for ABS obligations?

Global markets increasingly demand ethical and sustainable sourcing. Certifications like Fair Trade, Naturland, and Fair for Life already require companies to pay premiums to cultivators and invest in community development. This raises a logical question: if these systems deliver benefits to local communities, should companies holding such certifications be exempt from ABS to prevent duplication?

The legal position

• Section 7 of the 2023 Amendment exempts Indian-owned companies from prior approval, but the 2025 Regulations re-impose ABS duties even on such entities — creating a regulatory contradiction.[11]
• Section 21(2)(f) allows benefit-sharing through non-monetary contributions such as capacity building, technology transfer, or scholarships. This overlaps with the objectives of international certifications.[12]
• Section 23(b) empowers State Biodiversity Boards to regulate activities under Section 7, giving them discretion in recognising equivalence.[13]

Doctrinal insights

Two important legal principles are relevant here:

1. Doctrine Against Double Burden: In Kesoram Industries v Commissioner of Commercial Taxes (AIR 1966 SC 1370)[14]The Supreme Court held that the same transaction cannot be taxed twice if certifications already channel money to communities, imposing ABS on top could be interpreted as duplication.
2. Doctrine of Ultra Vires: In Indian Express Newspapers v Union of India (AIR 1986 SC 515)[15]The Court clarified that subordinate legislation cannot override the parent statute. Regulations that re-impose obligations on entities exempted by the Act risk being struck down as beyond their authority.

Conclusion

India’s biodiversity framework is both visionary and complex. It seeks to conserve natural wealth, empower communities, and regulate commercial use. Yet, as the three scenarios demonstrate, ambiguities in implementation can create confusion.

1. BMCs are essential facilitators but not substitutes. Sourcing through them improves transparency but does not automatically ensure ABS compliance.
2. Foreign transfers remain sensitive. Even after domestic ABS is paid, foreign buyers may need NBA approval unless exemptions apply.
3. Certifications offer a bridge. Recognising Fair Trade, Naturland, and Fair for Life as equivalents could prevent duplication and strengthen global confidence in India’s biodiversity governance.

For the law to be effective, its implementation must be both legally consistent and practically workable. Harmonising the 2025 Regulations with the Act, clarifying foreign access rules, and acknowledging international certifications would provide stakeholders with the certainty they need. In doing so, India can continue to set a global example in balancing conservation, commerce, and community rights.

Author(s) Name: Vaishnavi Vedmurti Hiremath (Alliance School of Law, Alliance University, Bangalore)

References:

[1] Biological Diversity Act, 2002

[2] Biological Diversity (Amendment) Act, 2023

[3] Biological Diversity (Access to Biological Resources and Knowledge Associated thereto and Fair and Equitable Sharing of Benefits) Regulations, 2025 (Gazette of India, Extraordinary, Part III, Section 4, F. No. NBA/Tech/EC/9/14/32, 29 April 2025).

[4] Biological Diversity Act, 2002 (n 1) s 41.

[5] ibid ss 3, 4, 6.

[6] Biological Diversity (Amendment) Act, 2023 (n 2) s 7(2).

[7] Biological Diversity Act, 2002 (n 1) s 21(2)(f).

[8] ibid s 3.

[9] ibid s 6.

[10] ibid s 20(2)(b).

[11] Biological Diversity (Amendment) Act, 2023 (n 2) s 7; ABS Regulations 2025 (n 3) reg 5.

[12] Biological Diversity Act, 2002 (n 1) s 21(2)(f).

[13] ibid s 23(b).

[14] Kesoram Industries v Commissioner of Commercial Taxes AIR 1966 SC 1370.

[15] Indian Express Newspapers v Union of India AIR 1986 SC 515.