Right to Health and Compulsory Licenses: A way forward?

Right to health in the Indian constitution

The right to health has been discussed and affirmed in Indian courts multiple times. Most significantly in the recent past, the Supreme Court reaffirmed the position of the right to health in Indian jurisprudence in a landmark case.

The Court in Navtej Singh Johar and Ors. v. Union of India held that the right to life under Article 21 of the Indian constitution is meaningless if it is not accompanied by certain “concomitant rights” including the right to health.

In 1984, the Supreme Court applied this right to the public at large. It found the right under Article 21 must be widely interpreted using the Directive Principles of State Policy. The Court recognized male and female workers’ right to protection of health.

The Gujarat HC also navigated the constitutional right to health. The court heavily criticized the practice of prostitution, finding it to be an activity that is a grave danger to public health. Thereby the court reaffirmed a broader perspective of the right to health.

In a recent order of the Supreme Court, the Court advised the Government to revisit its vaccine policy as the result of the policy would be a “detriment to the right to public health which is an integral element of Article 21 of the Constitution”.

Through the development of case law, we can find strong grounds for the recognition and application of the right to public health by Indian courts. 

While the right is not drawn out to be a Fundamental Right in the Constitution, it remains an inviolable right through the COVID-19 pandemic.

Compulsory Licensing in India

In India, the Patent Act of 1970 lays down the process of acquiring and using compulsory license from Section 84 to 94 of the Act. 

Section 92 and 92A, empowers the Central Government to issue a compulsory license because of a national emergency, or because of extreme urgency or for public non-commercial use.

Clearly, the COVID-19 pandemic in India is a circumstance of extreme emergency faced by the health infrastructure and the public. A case is made for the non-commercial vaccination programme for the public, as proposed by the Central Government.

The Supreme Court has stated before that the, “law of patent is a compromise between interest of the inventor and the public.” However, Section 92 does not jeopardize the rights of the inventor or the patent holder, who would actually be paid a fixed sum as royalty.

The landmark case of Bayer Corporation was the first instance in India where the issue of compulsory license arose after India became signatory to the TRIPS Agreement. The Bombay HC held that essential cancer drugs should be made publicly available through the process of compulsory licensing.

Last month, the Supreme Court stressed on the potential of compulsory licenses as a solution to the deficit of medicines like Remdesivir and Favipiravir.

In the same month, the Delhi HC passed an order recommending using Section 92 and 100 the Act in order to ramp up domestic production of medicines. 

The bench observed that it takes investment and hard work to create medicines. The patent holders should be encouraged to give voluntary licenses to other manufacturers. If such efforts fail, then there would be no option but to grant compulsory licenses to prevent deaths.

Compulsory Licensing as a response to COVID-19

Many foreign countries have resorted to compulsory licensing. In March 2020, Israel issued a compulsory license to import Ritonavir, a drug which could have been a possible treatment for COVID-19.

Canada amended its Patent Act in the same month to allow the issue of compulsory licenses. The amendment allows it to swiftly issue a compulsory license and negotiate a remuneration later.

In India, we find that there is a  lack of medicines to treat patients. An attempt was made in the Kerala HC where the petitioner sought a direction to issue a compulsory license to pharmaceutical companies to manufacture the COVID-19 vaccine.

Pharmaceutical companies are uncomfortable with this. Even during the pandemic, these companies are not ready to shed their profit-generating mindset. In the same breath, FICCI, which is largely influenced by Big Pharma, has also advised against compulsory licensing.

Therefore, we find that compulsory licensing is a matter of state policy and so, is subject to the whims of lobbying political powers.

Conclusion

Compulsory licensing is a dramatic step in solving the problem of deficit in vaccines or general medicine. It is also a step in the right direction.

At the same time this policy also affects Big Pharma, international and domestic, negatively. The onus now is on the Central Government to prioritize the lives of the citizens over corporate profit margins.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Ambuj Sachan

Cases argued by Aditya Pratap can be viewed here.

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