Access and Benefit Sharing (ABS) under the Biological Diversity Act

Access and Benefit Sharing (ABS) is the regulatory and equity framework through which monetary and non-monetary benefits arising from the use of biological resources and associated traditional knowledge are channelled back to the nation, its biodiversity-rich regions, and the communities that conserve them. In India the concept is rooted in the third objective of the Convention on Biological Diversity (CBD), adopted at the Rio Earth Summit in 1992, which articulated "the fair and equitable sharing of benefits arising out of the utilization of genetic resources." India gave domestic effect to this obligation through the Biological Diversity Act, 2002, enacted on 5 February 2003, supplemented by the Biological Diversity Rules, 2004, and the dedicated Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014. India is also a Party to the Nagoya Protocol, the 2010 supplementary agreement on ABS that entered into force on 12 October 2014 and which the 2014 Regulations were designed to operationalise.

The procedural architecture turns on who the user is and to what end the resource is sought. Under Section 3 of the Act, foreign nationals, non-resident Indians, and bodies corporate not incorporated in India or with foreign participation must obtain prior approval of the National Biodiversity Authority (NBA), headquartered in Chennai, before accessing any biological resource occurring in India for research, commercial utilisation, bio-survey, or bio-utilisation. The applicant files Form I (for access), Form II (for transfer of research results), or Form III (for seeking intellectual property rights). The NBA scrutinises the application, may consult the relevant State Biodiversity Board and Biodiversity Management Committee, and grants approval subject to terms imposed under Section 19, mandatorily incorporating ABS conditions under Section 21. The agreement specifies benefit-sharing modalities, which the 2014 Guidelines fix as a percentage of accrued benefits or of annual gross ex-factory sale, calibrated on a sliding scale.

Indian citizens and entities registered in India occupy a lighter regime: under Section 7, they need only give prior intimation to the relevant State Biodiversity Board (SBB) before obtaining a biological resource for commercial use, except for vaidyas, hakims, and local cultivators who are exempted. Section 6 further provides that no person shall apply for any IPR within or outside India for an invention based on research or information on a biological resource obtained from India without prior NBA approval. Benefit-sharing forms enumerated in Section 21 include joint ownership of IPR, technology transfer, location of production units in biodiversity-rich areas, association of Indian scientists in research, and monetary compensation. Where the biological resource or knowledge is attributable to identifiable benefit claimers, the benefits flow directly to them; otherwise they are deposited in the National Biodiversity Fund established under Section 27.

Contemporary practice illustrates both the reach and the friction of the regime. In the Divya Pharmacy v. Union of India case decided by the Uttarakhand High Court in 2018, the court upheld the power of the Uttarakhand State Biodiversity Board to levy fair and equitable benefit-sharing demands even on a wholly Indian company, affirming that the State's sovereign right over genetic resources extends to domestic users. The NBA's pursuit of ABS dues from companies sourcing resources such as red sanders, sandalwood, and various medicinal plants has generated litigation before the National Green Tribunal. Internationally the principle was demonstrated by the long-running dispute over the Hoodia plant of the San people of southern Africa, where a 2003 agreement directed royalties to the community, and by the canonical neem and turmeric patent challenges of the 1990s that galvanised India's defensive documentation through the Traditional Knowledge Digital Library.

ABS must be distinguished from bioprospecting, which is the antecedent activity of searching for commercially valuable genetic and biochemical resources; ABS is the legal consequence that attaches once such prospecting yields utilisation. It also differs from biopiracy, the unauthorised appropriation of resources or knowledge without consent or benefit sharing, which ABS regimes are designed to prevent. ABS is narrower than the CBD's first two objectives—conservation and sustainable use—addressing specifically the equity dimension, and it operates alongside but distinct from the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), whose Multilateral System provides a separate facilitated-access channel for listed crops.

The framework has drawn sustained controversy, prompting the Biological Diversity (Amendment) Act, 2023, which received assent on 3 August 2023. The amendment exempts registered AYUSH practitioners and cultivated medicinal plants from benefit-sharing obligations, removes the requirement of prior NBA approval—substituting mere intimation—for several IPR-linked applications, and decriminalises offences by replacing imprisonment with monetary penalties adjudicated by an appointed officer. Critics, including conservation groups and several scientists, argued the changes dilute the Act in favour of industry; the government defended them as easing compliance burdens and encouraging investment in Indian traditional medicine. The reach of "prior approval" over derivatives and digital sequence information remains a live international debate carried into CBD COP-15 and COP-16 discussions.

For the working practitioner, ABS is the operational interface between sovereignty over genetic resources and the commercial pharmaceutical, cosmetic, agricultural, and biotechnology sectors. Desk officers handling environment portfolios, negotiators at CBD and Nagoya Protocol meetings, and analysts assessing India's stance on digital sequence information must grasp the precise division of competence between the NBA, the State Boards, and the local Biodiversity Management Committees. Mastery of ABS clarifies how India converts a constitutional and treaty commitment into enforceable revenue and equity flows, and why the 2023 amendments matter for both compliance certainty and the contested politics of conservation.