The Nepal reset
Patents and protecting public health
The Nepal reset
Synoptic line: It throws light on issue of India-Nepal ties.
(GS paper II)
- India and Nepal are the two countries, which are more than just neighbours and the relationship is “special.” One aspect of this is that the Indian establishment has always viewed Nepal as being within India’s larger security envelope in relation to China. But, since late 2015, cultural and political issues have strained relations between the two countries with anti-Indian sentiment growing amongst the government and people of Nepal.
- Both the countries appear to have repaired relations for the time being. In this time Nepali Prime Minister K.P. Sharma Oli’s visit to India signals an important recalibration of bilateral ties.
- The focus of the official pronouncements has been on connectivity, it is the perceptible absence of tensions in public interactions and official meetings, including with Prime Minister that gives hope that the rupture in ties over India’s reservations about Nepal’s new constitution is being repaired.
- The visit follows a great deal of preparation by both Delhi and Kathmandu. It was a significant shift from 2015-17, when the five-month-long blockade of truck trade at the Nepal-India border and Nepal’s ties with China placed a severe strain on the relationship.
- For his part, Mr. Oli put aside the anti-India rhetoric of his election campaign, and came to India on his first post-election visit abroad seeking ‘friendship first, and friendship second and third’. Bilateral meetings at Hyderabad House were devoid of any sermonising and defensive postures, steering clear of contentious issues on the constitution and China; Indian PM promised support on development projects that meet “Nepal’s priorities”.
- Kathmandu has been too susceptible to conspiracy theories about Indian meddling, while New Delhi and its diplomats in the Nepal embassy have sometimes lent credence to the theories by adopting a patronising attitude. A first step to the reset would be the completion of the ongoing process of updating the 1950 Treaty of Peace and Friendship.
- Nepal would acknowledge that its citizens have benefited from the ease of employment and residence in India that the treaty provides. But India must recognise that as in all other developing economies, Nepal’s aspirational young population is also looking beyond the open Indian border for opportunities, and Mr. Oli’s desire to turn his “land-locked” country into a “land-linked” country with a merchant navy must be considered positively.
- Both sides would like to jointly start a new rail link connecting Kathmandu with India which will be game changer for the Himalayan State. “With the objective of expanding connectivity to enhance people-to-people linkages and promote economic growth and development, the Prime Ministers of India and Nepal agreed to construct a new electrified rail line, with India’s financial support, connecting the border city of Raxaul in India to Kathmandu in Nepal.
- Deliverables, such as road and railway links, power projects and post-earthquake reconstruction commitments that will determine the success of the partnership, not just the announcement of new initiatives. India has residual concerns over enhancing the constitution’s provisions for Nepal’s plains-based Madhesi population, but these should be taken up discreetly and diplomatically.
Question –Delhi and Kathmandu should rebuild ties by focussing on deliverables, analyse in the context of recent visit by Nepal’s PM.
Synoptic line: It throws light on the issue of The National Institutional Ranking Framework, 2018 ranking.
(GS paper II)
- The National Institutional Ranking Framework, 2018, recent publication shows that the data make it possible to assign objective credentials to some aspects of education. Its assessment of some of the top institutions such as the Indian Institute of Science, the Jawaharlal Nehru University, the IITs and the IIMs is unsurprising, given their record of research, peer-reviewed publications and outcomes for graduates.
The National Institutional Ranking Framework, 2018
- The National Institutional Ranking Framework (NIRF) was approved by the MHRD and launched by Honourable Minister of Human Resource Development on 29th September 2015.
- This framework outlines a methodology to rank institutions across the country. The methodology draws from the overall recommendations broad understanding arrived at by a Core Committee set up by MHRD, to identify the broad parameters for ranking various universities and institutions.
- The parameters broadly cover “Teaching, Learning and Resources,” “Research and Professional Practices,” “Graduation Outcomes,” “Outreach and Inclusivity,” and “Perception”.
- Participation levels are inadequate-as there were 40,026 colleges and 11,669 standalone institutions according to the HRD Ministry’s All India Survey on Higher Education for 2016-17. To the faculty and students in many colleges, what matters is the vision of the administrative leaders and a commitment to excellence.
- The governing bodies should make available adequate financial and academic resources to colleges, particularly the younger ones, to help them improve performance. These are measured by the NIRF in terms of the percentage of faculty with doctoral degrees, papers published in credentialed journals, inclusivity and diversity of students, and median salaries for the graduates.
- Ranking educational and research institutes has practical uses, such as helping students make study choices, sponsors to identify research projects, and other universities to form partnerships. Yet, for the process to evolve and be relevant, it should be able to enrol all recognised educational institutions, not just the public ones. In the absence of such participation, older institutions with historical advantages could enjoy a higher ranking, obscuring newer entrants who may have stronger claims to excellence.
- Also, the ranking approach worldwide is critiqued for failing to capture the crucial metric of learning outcomes, relying instead on proxy data on faculty strength and qualifications. In the case of the NIRF, the final responsibility for accuracy of data lies with the participating institution, except for aspects like research publications that are independently verifiable.
- The positive about the system is its emphasis on achieving measurable goals and bringing in transparency. The 2018 exercise added the disciplines of law, medicine and architecture and it hopes to cast the net wider in the future. Beyond competitive ranking, however, the higher order goal is to foster learning and scholarship. This can be achieved solely by encouraging faculty to exercise complete academic freedom, without the pressure of perception management.
- The NIRF ranks will measure the measurable, but there will be some dimensions it may not be able to fully capture.
Question – Explain why ranking of educational institutions is useful for India. Also explain how need to focus on other some dimensions to improve efficiency of educational institution.
Patents and protecting public health
Synoptic line: It throws light on the issue of the access to medication debate in India.
(GS paper II)
- In India the access to medication debate began when Shamnad Basheer filed public interest litigation before the Delhi High Court, which pointed out the importance of “working requirements” in the Patents Act, 1970; the need to amend Form 27; and the lapses by patentees in furnishing information. The importance of Form 27 on the question of access to health cannot be underestimated.
- Form 27 seeks information to ensure that the patented material is adequately supplied in India. If the supply of the patented invention does not cater to the demands, statutorily the reasonable requirement of the public with regard to the patented invention is deemed as not met. This will be a ground to seek compulsory licensing of the product within India. The underlying rationale is to protect public health.
- Starting Patent law grants to the patentees the privilege of enjoying a limited monopoly in order to achieve the objective of public benefit. Thus, the quid pro quo for getting patent monopoly is patent disclosure. As part of the disclosures, patentees are required to disclose if they are locally working their patented invention in exchange for the conferred benefits.
- Thus, Section 83 of the Patents Act states that “patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable” and that the monopoly granted to the patentees is not merely to import the invention. Historically, laws in India have considered “working” the invention as being so crucial to the enjoyment of the monopoly that non-working in India entitled a third party to apply for a compulsory license.
- In streamlining the local working requirement India is in line with its international trade obligations. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides flexibilities and underscores the sovereign rights of countries to weave in the ground realities of each country while honouring their international trade commitments.
- Paragraph 5(2) of the Doha Declaration outlines the right of national governments to compulsorily license patents and the “freedom to determine the grounds upon which such licences are granted”, including the use of grounds not explicitly specified in Article 31 of TRIPS.
- Thus, lack of local working of the patent can be grounds for granting a compulsory licence along with other grounds such as high prices and non-supply of the patented invention locally. In doing so, the Doha Declaration allows the exercise of sovereign rights to define when exclusive rights could be curtailed to achieve a larger public interest result.
- Seeking local working information is part of India’s use of its sovereign rights. The state is obligated to protect the right to life of its citizens under Article 21, and this duty is heavier than any duty that the state may owe the patentees.
- Currently, Form 27 requires patentees to submit a statement “regarding the working of the patented invention on a commercial scale in India”. But as the Form is bereft of crucial details, India’s next step is not to abjure it, but to revise it in a way that the conditions subject to which the patent privilege is granted are complied with.
- India needs to appreciate that the World Trade Organisation (WTO) rules do not prohibit getting information on the local working. After all, TRIPS Article 27 does not apply to this situation. The Article 27 prohibition against discrimination based on whether the goods are locally manufactured or imported applies to the grant of a patent and not to grounds for issuing a compulsory license.
- Further, the WTO’s jurisprudence in Canada Pharmaceuticals states that the word “discrimination” does not ban all forms of differentiation and that it refers to “results of the unjustified imposition of differentially disadvantageous treatment.”
- Countries like India signed up to the intellectual property bandwagon to maximise opportunities for technology transfer. Part of this exercise involves allowing local firms to compete and improve innovation, especially on life-saving pharmaceuticals.
- There is no wisdom in enacting patent laws that mainly enable foreign companies to import into a jurisdiction, without using it as a tool to foster scientific and technological progress at home. Thus, disclosures under Form 27 are required as part of a national strategy to improve innovation and further technology transfer into India, to maintain public health and to ensure supply of pharmaceuticals nationally.
- The amendment of Form 27 presents a great opportunity for India to reiterate the limits and limitations of the unilateral approach, should the U.S. choose to take unilateral action.
- Kaushik Sunder Rajan has rightly asserted that in a world, in which the structure of monopolistic drug development is the norm, there are consequences for both health and democracy, since the initial rationale of patents as a purely instrumental monopoly in public interest is subverted and forgotten. It is not only about the right to health but also about the state’s sovereign right to preserve public health and duty to fulfil a Constitutional mandate.
Question – Seeking full disclosure on how patents are working locally through Form 27 will help promote innovation, explain in the Indian context.