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FOREWORD
November 2006 Foreword from Dr A D Damodaran
Greetings and
November 2006, Foreword
Dear Sirs/Friend,
Sub: Foreword
www.patentmatics.org November 2006.
1.In his celebrated
IUCN lecture "Science and the Problems of Development" in Bombay on
January 7,1966, Homi Bhabha said:
"...I think it
only appropriate that I should recall at this stage the immense debt
that Indian science and scientists owe to Jawaharlal Nehru. Science
was an essential, indeed basic, component of the India, which he
sought and worked so hard to build.’ It is now patent', he said,
'that without science and technology we cannot progress'. So great
was his zeal for science and for scientific approach to life that he
missed no opportunity of imparting his views to others. To quote,’
You know that whenever the chance offers itself I say something
about the importance of science and its off-shoot, technology, I
think we should realize how modern life is an offspring of science
and technology'. And he fully realized that modern science and
technology were as necessary for a highly developed agriculture as
for industry. 'After all', he said, 'how has agriculture grown in
many other countries greatly? It is because of the application of
science and technology. If modern life depends so much on science
and technology, then we must seize hold of them, understand them and
apply them'. To give one more quotation: 'Science has developed at
an ever-increasing pace since the beginning of the century, so that
the gap between the advanced and backward countries has widened more
and more. It is only by adopting the most vigorous measures and by
putting forward out utmost effort into development of science that
we can bridge the gap. It is an inherent obligation of a great
country like India, with its traditions of scholarships and original
thinking and its great cultural heritage, to participate fully in
the march of science, which is probably mankind’s greatest
enterprise today'".
We cannot
remind ourselves of a more powerful quotation (of a great leader by
a foremost scientist-leader of our country) when in November 2006
the national body-politique has to once again braze itself, “not
badly or madly, but through incessant strivings”, to face the
mounting S&T challenges of the new WTO/TRIPS dictated policy regime
as applied to even essential sectors like health and family welfare
of those for whom India does not yet shine, agriculture, food and
livelihood of over 60% of our rural population or for that matter in
‘India-centric’ policy options on strategic areas like nuclear and
allied technologies to meet our urges and requirements in such
fields from a long term and sustained mode.
Even on the issue of the Indo-US Nuclear Agreement, it is very
worthy to appreciate Bhabha’s elaboration on his celebrated “Growing
Science” model as applied to the very same nuclear technology
(though equally applicable to the larger field of industrialization
itself); and while
debating on the plus and minus of the Indo US Nuclear Agreement, it
will be very rewarding to go through how Homi Bhabha had visualized
his strategy of developing nuclear technology in our country to make
it economically viable. To quote him again (op.cit.),
"The decision
to build an uranium metal plant was taken in may 1956... and the
first ingot of atomically pure uranium was produced in January
1959...Similarly the fuel fabrication plant... and the first fuel
element (brought out) in June 1959.... our fuel elements (for one
full charge) would cost Rs 26 lakhs or $520,000 equivalent (even
with that of uranium at double market price). This fuel charge, if
imported, would cost $750,000". Thus, not only that we obtain fuels
at two-thirds of the price at which we could buy them through
import, "we now have first hand technical knowledge for the erection
of such plants on a much larger scale”. In other words, Bhabha had
envisaged that indigenous manufacture of systems was the surest way
to achieve economic viability in this sophisticated field of
technology, thanks to the possibility of creating adequately trained
manpower within itself. Undoubtedly this situation has not changed
now also. In other words, economic viability of imported
reactor-fuel assembly systems is yet to be adequately firmed up,
thanks to the same reasons, leave alone the possible pressures on
the nation to amend the very patents law once again!
Undoubtedly the nation has to reinvent the
basic tenets of the Nehru-Bhabha synergy in handling those crucial
S&T issues of vital interest for national development within the
framework of national dignity and sustained self-reliance.
2. The foremost
issue of concern for November is aptly enough the ones related to
WTO Treaty itself. As exquisitely brought out by the learned
Supreme court legal luminary and public interests activist Shri
Rajeev Dhavan through his article
“
Indian Governance and Treaties:
The Advent of the WTO”, India is obviously yet to learn lessons for
handling such executive actions within the democratic processes
envisaged in the constitution (Reference: Final Act of WTO: Abuse of
Treaty Making Power, Shiva Kant jha, 2006).
Pointing out that increasingly –
and certainly since the advent of the WTO – the world is going to be
governed by treaties; he examines the prevalent mode of Treaty
Making and Democratic Governance in
India in great detail. To
quote, “ Treaties
play, and will play, an increasing role in Indian governance. But,
the practice in India has generally been to allow the Executive to
make the treaties without really invoking the democratic process
other than the fact that the Prime Minister and his cabinet are
collectively responsible to Parliament. No doubt, a debate can be
raised in Parliament but even such a process lacks both persistence
and rigor. The WTO treaty is a case in point. In 1995-96, the
National Working Group on Patent Laws set up a Peoples’ Commission
on GATT. The membership of this Commission included Justices Krishna
Iyer, Chinnappa Reddy, D.A.Desai and Rajinder Sachar. In the
Submissions of PILSARC (a legal public interest group) I included
an account of how, the then Government handled the negotiations.
This submission finds place in the Report of the Commission and
reads as follows:
“On March
15 and 30,1990, the Government stated “…. that it will not
participate in any negotiation …under threat of retaliation” (Lok
Sabha Qn. 33 and 2873)
“On march
19 and 27,1990 the Government stated that there was no proposal to
amend the Indian Patents Act which was a statutory legislation (Rajya
Sabha Qn. 643 and 660; Lok Sabha Qn. 2221 and 2312).
“On May
3,1990 the Government stated that investment and services”…lie in
the domain of sovereign decision making not covered by GATT or any
other multi-lateral or bilateral agreement” (Rajya Sabha Qn. 88).
On 4-10th
May, 1990 the Government reiterated that “.. …. It cannot enter into
bilateral negotiations to change basic economic policies which are
in the domain of our sovereign decision making, and that too, under
threat of retaliation”. India would provide support and leadership
to the concerns of developing nations (Lok Sabha Qn. 7452; Rajya
Sabha Qn. 7603).
On May
11,1990 the Government was hopeful that the GATT Negotiations would
result in a “balanced outcome” for developing countries; and ensure
that India’s interests were safeguarded (Lok Sabha Qn. No. 8334).
On 17th
May 1990 the Indian Government repeated “The Indian delegation also
reiterated its stand that it would not negotiate under threat of
retaliation under Super 301 (Rajya Sabha Qn. 221).
On 9-10
August 1990, the Government reported that there would be no
negotiation under threat of retaliation but admitted that the US had
stayed its hand because of India’s potential through (its)
participation…in negotiations on (TRIMS and Services” (Rajya Sabha
Qn. 46; Lok Sabha Qn. 883)
On 31
August 1990, the Government admitted that the comprehensive package
of the developed nations in GATT “did not…take our development and
other concerns fully into account”. The Government claimed that
India had “held its position” in GATT and much depended on the
ability of the developing nations to “stand together and firmly” in
the final phase of negotiations”….
In
another statement it was also repeated that India would not
negotiate under threat of retaliation (Statement in reply to Lok
Sabha Qn. 3868).
On 28
December 1990, the Government declared that its stance in GATT was
that developing countries are different and unique and that Indian
labour should be able to travel to industrialized countries
temporarily. Aspects of India’s tentative position were stated in
one-line policy statements on textiles, patents and services (Lok
Sabha Qn. 382).
However with the
change of Government in June 1991, a process of adjustment and
reversal seems to have resumed again.
By 16
July 1991, the Government talked of “different perceptions on
patents and trademarks” from the US; but took no stand (Lok Sabha Qn.
418).
On 11,
September 1991, the Government admitted that the Dunkel proposals
would fundamentally alter various aspects of the economy including
patents. Thus, it is evident that during the first five years of the
Uruguay Round, the Indian Government failed to make any substantive
policy statement to Parliament, the State Assemblies, the Chief
Ministers or the people. The Union Government failed to issue any
position paper detailing the status of the negotiations, the
position taken by various countries, the proposed changes to
domestic legislation and anticipated consequences of signing the
Treaty”. This evasive conduct on the part of the Government
continued. After some time, the Arjun Singh Committee was informally
established in 1992-93. Its sessions were in camera. Its report
remained secret. One of the Committees of Parliament, headed by Shri
Gujral, was very critical of the implication of the Treaty on
India’s people and its economy. This
made little difference to the government, which knew it had the
power to do what it wanted. The Indian constitutional system does
not keep an eye on treaties, which are signed by the Executive
without submitting to the democratic process.
....".
Aptly enough, he
highlights the anomalous manner in which the ongoing discussions are
held ‘democratically’ on the July 18, 2005 Indo US Nuclear Agreement.
To quote Shri
Dhavan again,
“Under the American Constitution,
treaties have the same status as law to implement them. More
significantly, the treaties have to be ratified by the Senate unless
the law provided some leeway. So, every treaty has to be tested
under the procedures provided by the Constitution as well as the
framework of laws within which decisions in respect of treaties have
to be made. The world had to wait until all this was done or move at
speeds dictated by the inner compulsions of governance of the US. In
the year 2005-6, India had entered into an agreement with the US on
the supply of nuclear fuel. The US wants to impose its will on India
by interposing new conditions, which India is required to meet. But,
then, even if signatures were made on the agreement, it had to be
ratified by the Senate. For several months, India had to wait and
respond to the treaty making system of the US. For India this
created issues of pride and prejudice. Within India, political
parties of the right and the left criticized India’s Prime Minister
for entering into such humiliating and inchoate agreements. Prime
Minister Manmohan Singh had to reply to a debate in Parliament on 17
August 2006 and assure both Parliament and India’s populace that he
would not countenance a surrender of India’s sovereignty to the US
or agree to conditions, which were onerous. Whether this was a
good parliamentary tactic or a bonafide assurance remains to be
seen. On WTO, India simply capitulated during the treaty making
process”. And will the GOI do the same when the “final product” is
placed on the table? Alternately, is it the truth that the Executive
has already surrendered since, it is truly disturbing to read news
items such as “On his first day in office as External Affairs
Minister, Pranab Mukherjee reportedly got some positive news on the
UPA government’s most important foreign policy initiative — the
Indo-US nuclear deal. US Secretary of State Condoleezza Rice called
to assure him that the Bush Administration will “do its best” to
ensure the Indo-US Civil Nuclear Cooperation Bill passes through the
Senate in the November session!
Coming back to
the procedures on Treaty making, Shri Jha has in his monograph has
ably summarised the practices in UK, USA, Australia, France, Japan,
and so on, in all of which the democratic processes are, unlike in
India, supreme over the executive authority in treaty making.
Organised efforts are reportedly being made by a group of learned
legal luminaries to move a Writ Petition in the apex court seeking
its appropriate intervention to see that India remains a liberal
parliamentary democracy, not only an ‘enlightened dictatorship’.
There is very little doubt that if Jawaharlal Nehru was alive today,
there is every reason to believe that he certainly would have
graciously supported such a constitutional review move on Treaty
Making Rights!
With great privilege,
patentmatics is placing this Constitutional Issue before its readers
for their studied support in the matter; after all, by now they know
only too well that even an otherwise ‘neutral’ sector like S&T is
increasingly being subject to the WTO/TRIPS dictated challenges!
Whether it is on new life saving drugs, new plant varieties for even
those like rice and cotton, Data Exclusivity as applied to drugs and
agrochemicals, optimised patent monopoly/ competition law synergy to
meet peoples’ needs, ‘liberalizing’ the education sector for
even the foreign investors (as announced by a Commerce Secretary,
not even one handling Education!), and so on, the WTO dictated
challenges are ill-affecting every sector of our developing economy,
not forgetting the temporary gains through the so-called ICT
Revolution or the escalating Stock Exchange Index through FII
induced speculative capital much beyond what is justifiably
indicative of improved performance indices. When Indians are crying
for quality and affordable medicines, major Indian drug companies
are encouraged to getting ‘globalized’, with, in some cases, even
90% of their revenue accruing from sales in advanced countries like
US! With one R&D Centre at Bangalore since 1991, about 40 per cent
of the software used in Motorola phones globally is what is
developed by MSG's India design centers, thanks to the New IPR
Regime. A new international division of labour, a truly
“Inclusive Globalization” (due apology to Prime Minister’s use of
this description in his recent lecture in Cambridge University!)
with reverse benefits!
Last but not the
least, the great success of ISRO in successfully developing the
cryogenic engine matching with its GSLV launch architecture.
Incidentally, US have now a New Space Policy released in
August 2006. Under the heading,
Freedom of action, the document says: “For
50 years, the U.S. has led the world in space exploration,
developing “a solid civil, commercial, and national security space
foundation,” the document notes. “Space has become a place that is
increasingly used by a host of nations, consortia, businesses, and
entrepreneurs,” the space policy states. “In this new century, those
who effectively utilize space will enjoy added prosperity and
security and will hold a substantial advantage over those who do
not.” Additionally, the Bush space policy is designed to “ensure
that space capabilities are available in time to further
U.S. national security, homeland security, and foreign policy
objectives.” Moreover, a fundamental goal of the policy is to
“enable unhindered U.S. operations in and through space to defend
our interests there.” The
policy calls upon the Secretary of Defence to “develop capabilities,
plans, and options to ensure freedom of action in space, and, if
directed, deny such freedom of action to adversaries.”. And on
Overhead intelligence in a section called “Space-related
Security Classification,” the new space policy lists several
unclassified facts, such as: The U.S. government conducts satellite
photoreconnaissance that includes a near real-time capability, as
well as overhead signals intelligence collection. Among a number of
tasks, U.S. government photoreconnaissance is used to “image the
United States and its territories and possessions, consistent with
applicable laws, for purposes including, but not limited to,
homeland security.” The Director of National Intelligence is charged
by the policy to “provide a robust foreign space intelligence
collection and analysis capability that provides timely information
and data to support national and homeland security.” Will this
mean anything for the indigenous ISRO programs?
Looking
forward to your comments and suggestions,
Yours truly,
A D Damodaran.
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