National Biodiversity Authority — Powers and Functions — Intellectual Property Rights II Notes

National Biodiversity Authority — Powers and Functions

At the top of the whole scheme sits one body in Chennai — the National Biodiversity Authority. It is the gatekeeper: no foreigner may take an Indian biological resource, and no one may patent one abroad, without its nod. It is also the single most-asked topic in this unit, so learn its constitution, functions and powers cold.

The NBA — constitution, functions, powers

A. Constitution — ss.8–10

The NBA was established under s.8 in 2003 as a statutory, autonomous body corporate, with its headquarters at Chennai. Under s.8(4) it consists of a Chairperson, and ex-officio and appointed members representing the Central Government ministries and experts in conservation, sustainable use and benefit-sharing.

B. Access-regulation powers — ss.3, 4, 6

The NBA is the approving authority for:

s.3 — foreign access. Non-citizens, NRIs, and bodies corporate/associations not registered/incorporated in India, or with foreign participation, must obtain prior NBA approval before obtaining any biological resource or associated knowledge in India for research, commercial use or bio-survey.
s.4 — transfer of research results to foreigners requires NBA approval.
s.6 — patent-linkage. No person shall apply for any IP right (in or outside India) for an invention based on a biological resource obtained from India without prior NBA approval (approval may come before grant).

C. Functions — s.18

Under s.18, the NBA shall:

Regulate activities under ss.3, 4 and 6 and grant approvals.
Advise the Central Government on conservation, sustainable use and benefit-sharing, and on selecting biodiversity heritage sites.
Take measures to oppose the grant of IP rights abroad on any biological resource or associated traditional knowledge obtained from India (s.18(4)) — the anti-bio-piracy function.
Determine benefit-sharing under s.21.

D. Powers

The NBA may impose terms and conditions and benefit-sharing on any approval (s.19–21), and has the powers of a civil court for its inquiries.

Section 3(1): “No person referred to in sub-section (2) shall, without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation.”

In Simple Terms: The NBA is the national gatekeeper. Foreigners cannot access India’s bio-resources without it (s.3); no one can patent them without it (s.6); and it fights bio-piracy by opposing wrongful patents abroad (s.18(4)).

🧩 WORKED EXAMPLE — the foreigner in the Western Ghats

Facts. A foreign citizen carries out biodiversity-related activities (collecting biological resources) in the Western Ghats without NBA approval.

Rule. s.3 — a non-citizen must obtain prior approval of the NBA to access any biological resource occurring in India. Contravention is an offence under s.55 (penalties).

Apply. The foreigner falls squarely within s.3(2); he accessed Indian bio-resources without the mandatory prior approval.

Decoy. That the activity is “research” does not exempt him — s.3 covers research, commercial use and bio-survey alike.

Conclusion. His act is illegal; he needed prior NBA approval and is liable to penalties under the Act.

💡 EXAM TIP — separate NBA from SBB jurisdiction

The trap. Candidates say “the NBA approves all access”, forgetting that Indian commercial users go to the SBB.

What to write. State the split cleanly: foreigners/foreign entities → NBA (s.3); Indian citizens/companies for commercial use → prior intimation to SBB (s.7); patent on Indian bio-resource → NBA (s.6).

Why it scores. The problem is engineered on this exact fault-line; naming the right authority for the right person is the whole answer.

flowchart TD
    ROOT["National Biodiversity Authority (s.8, Chennai)"]:::root
    ROOT --> A["Approve foreign access (s.3)"]:::leaf
    ROOT --> B["Approve transfer of research results (s.4)"]:::leaf
    ROOT --> C["Approve IP applications on bio-resources (s.6)"]:::leaf
    ROOT --> D["Determine benefit-sharing (s.21)"]:::leaf
    ROOT --> E["Oppose wrongful patents abroad (s.18(4))"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Divya Pharmacy v Union of India (2018) — NBA’s benefit-sharing power upheld against an Indian manufacturer.
Bt-brinjal biopiracy proceedings (ESG complaint, 2010–12, Karnataka) — ESG’s complaint to the Karnataka State Biodiversity Board over access to brinjal landraces without prior approval (ss.3/7).

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