| A monopoly for foreigners now By Rajeev Dhavan, Opinion, The Hindu Friday, December 4, 1998 Indian democracy stops at the hustings. Caucus loyalty and idiosyncratic behaviour mark the proceedings in Parliament. Most legislations go by default. Parliament's committees set schedules which evade people. After the Assembly elections in Rajasthan, Madhya Pradesh, Delhi and Mizoram, MPs are now obsessed with the fate of the BJP Government rather than the fate of Bills pending in Parliament. Amid all this, the Lokpal Bill has been sent to yet another committee. No Union Government wants to have a Lokpal watching over it. No doubt, the uncomfortable issue of reservation of parliamentary seats for women may come up again. Though democracy sleeps, some Bills may be, and will be, passed before the next elections. Secreted in the immediate agenda is the Patents (Amendment) Bill, which will create an impregnable monopoly for foreigners in crucial areas of the economy. This issue relates to the Uruguay Round of GATT (General Agreement on Tariffs and Trade), which transformed the global economy and handed it over to predator nations and the corporate kings of the world. The GATT was no longer concerned with goods and tariffs alone but with every aspect of the economy including agriculture, services, investment and, through the TRIPs (the Trade-Related Intellectual Property Rights) agreement, with medicine, health, drugs, chemicals, plants and even the seeds used by farmers. India capitulated, many other victim nations lost heart, and within Indian democracy, the whole process was clandestine. During Rajiv Gandhi's tenure, there was an assurance that nothing precipitous would happen. But, it did. The Arjun Singh Committee Report was kept a secret. Despite the reservations of the Gujral Parliamentary Committee, the Narasimha Rao Government went ahead, with the Prime Minister refusing to budge - resulting in three suits in the Supreme Court protesting that the States were not even consulted even though their exclusive Constitutional powers were affected. I am recounting all this to show how Indian democracy has failed - and, is conceivably, about to fail again - by providing for absolute monopolies to foreigners. The immediate problem has arisen in this way. Although the TRIPs Treaty gives the developing nations a moratorium till the year 2004 to 'reform' their laws, the pharmaceutical and chemical multinationals want a captive global market for their goods. These are the Exclusive Marketing Rights (EMR) which India was to provide immediately in 1994. Since India has a 'process' patent in this area, the administrative 'box' to receive the EMR applications was not enough. When the Congress(I) tried to implement the EMR by the ordinance route on October 31, 1994, a combined, unholy alliance of the then, Opposition, BJP and the Left, defeated the attempt to confirm the Ordinance or permit the Patents Bill 1995 to be passed. After this, the United States filed a case in the World Trade Organisaiton (WTO). The plaint is amazing with wild unsubstantiated claims. India did not put up a serious fight. The case was lost. India is under renewed pressure by the WTO. >Breaking under this pressure, the great swadeshi politician Dr. Murli Manohar Joshi, also capitulated. The BJP Government now wants to give not just an EMR but a full product patent for medicine and chemicals even though India is not obliged to do so till 2004. With the Congress(I) in favour already and the BJP's surrender on its way, India is about to give up. The first possible strategy is that Parliament should once again reject the bill. Just because India has signed a treaty, it does not mean the country has to implement it. The new judgments in the PUCL (1997) and Visaka (1997) cases directly incorporate into the fundamental rights chapter of the Constitution those treaties which enhance the fundamental rights. The WTO is not a rights enhancing treaty except for foreign predators. Parliament retains the sovereign will to reject the Patents Bill. But, does it have the courage to do so? More so, will it be prepared to withstand the unconscionable pressures from the big pharmaceutical, chemicals and other companies for whom the WTO (via the U.S.) is a front; and whose hunger has increased because of the global recession? The second strategy is to do some straight thinking on the issue of creating a foreigners' monopoly. The Patent Act, 1970 was a balanced legislation which made cheap medicine and chemicals possible, excluded agriculture from patentability, placed other limits on patentability and made elaborate provisions for compulsory licensing and the Licences of Right to protect the public interest. This was done after deliberation by two commissions and two parliamentary joint committees. The Act had a gestation period of 21 years. It is generally agreed that but for the predator nations' pressure through the WTO, a sovereign India would not seek to change its Patent law of 1970. Foreign pressure has mounted. India wants to crumble. Dr. Joshi and the BJP's solution to provide a full product patent is premature since the TRIPs treaty does not require a change till 2004. (Art. 65). If a product patent is provided in lieu of the EMR, it will have to conform to the TRIPs rather than to the Indian Patents Act 1970. The TRIPs place commercial premiums on the public interest (see Art. 30-2). If a day is a long time in politics, seven years will cross the millennium. The third strategy appears to be to grant the EMR - which, in its simplest form, is a pure, absolute monopoly. Each time this happens, a chunk of India's economy is handed over exclusively to foreigners. The EMR means that if a product is given in any WTO country, India will have to grant a marketing monopoly within its boundary. The TRIPs treaty is silent on how and - indeed - whether the EMR can be disciplined in the social and public interest. Will it be subject to anti-trust control under the Monopolies Commission? The Monopolies and Restrictive Trade Practices Act 1969 exempts its application for trade practices expressly authorised by the law (Sect. 32 (a), 37 (2) (b). This gives a do-what you like carte blanche to the EMR holders since their monopoly and working will be expressly authorised by the law. We are worse off than where we started. In all this, four aspects of the public interest have to be considered. First, India has a right to ask whether the EMR product is patentable in India. Why should an EMR right be granted in the interim in lieu of a patent product right if the patent right would not have been granted at all till 2004 A.D.? Matters may be within the public domain in India, but not in Togoland. A process patent may already exit. Second, India cannot forgo a full examination on marketability. It must be free to conduct full-fledged drug or other trials, no matter how long it takes. The right to health is a fundamental right. It cannot be surrendered to foreign monopolies without caution or demur. Third, there should be a full-fledged application of the anti-trust and consumer law so that any doubt is set at rest and the exclusion envisaged by the Monopolies and Restrictive Trade Practices Act 1969 does not apply. Fourth, the public interest should be fully protected not only in respect of price and marketing control but also by making the EMR subject to stringent Licence of Right and compulsory licensing provisions. These suggestions are being made as an alternative and not intended to pre-empt Parliament rejecting the Patents Bill altogether. Since India is in a capitulating mood, a sense of surrender also seems to cloud the air on the issue of seeds. The five leading seed companies of the world want the UPOV II regime (if not more) adopted by all the market victim countries. At present, the TRIPs treaty permits each signatory to the WTO to follow its own sui generis system till 1999-2000. The UPOV II regime interferes with the surplus seed stocks of farmers as also their breeding potential. Where there is largescale agriculture (as in the U.S.), the seed companies are especially solicitous about the huge surplus sales. Why should the Indian farmers be restrained even if the seed companies are hard to put to suing 400 million farmers? Likewise, issues of plant variety and bio-diversity need to be properly considered even if strong interim steps are taken to prevent the piracy of nature's bounty to India. Today, the global economy is in recession. Predator nations are anxious to create exclusive monopolies in victim nations. India is a victim nation. In surrendering to demands for such monopolies, India - led by the BJP's further capitulation - seems prepared to sacrifice even the basic public interest protection. Will our sovereign Parliament compound inattention with cowardice to create exclusive monopolies for foreigners at the expense of the public interest? I hope not. But the patents controversy is only one port of call. Disputes on insurance are brewing. More unholy alliances are in the air. But are our politicians capable of informed courage? Not for commercial use. Solely to be fairly used for the educational purposes of research and open discussion. Source: http://www.hinduonline.com/ Jai Maharaj Latest world news at: Om Shanti |