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GS Paper: GS2

  • Judicial federalism

    The article discusses the idea of judicial federalism and autonomy of the High Courts.

    Issue of transfer of cases from High Courts to Supreme Court

    • Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • In Parmanand Katara v. Union of India (1989), the Supreme Court underlined that the right to emergency medical treatment is part of the citizen’s fundamental rights.
    • As such, constitutional courts owe a duty to protect this right.
    • In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
    • These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
    • However, Supreme Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
    • Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

    Issues with the SC’s move

    • According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
    • There could be related subjects coming under the Union List or Concurrent List.
    • Also, there may be areas of inter-State conflicts.
    • But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
    • In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
    •  In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century”.
    • Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
    • This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
    • Judicial federalism has intrinsic and instrumental benefits which are essentially political.
    • The United States is an illustrative case.
    • The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.
    • The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.
    • Otherwise, autonomy, not uniformity, is the rule.
    • Decentralisation, not centrism, is the principle.

    Consider the question “Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law. However, transferring such cases should not impinge on judicial federalism. Comment.”

    Conclusion

    In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.

  • A WTO waiver on patents won’t help us against covid

    There has been growing clamour across the world for waiver of intellectual property protection for Covid-19 vaccines under TRIPS. The article suggests alternatives to achieve the desired production of vaccines without setting the precedent for a waiver.

    Waiver from TRIPS

    • Last October, India and South Africa moved a motion at the WTO asking its council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to provide a waiver on intellectual property protection for pharmaceutical patents.
    • Many developing countries have since supported the joint move.
    • While most advanced countries, home to the world’s major pharmaceutical companies, have opposed it.
    • Nobel economist Joseph Stiglitz, along with activist Lori Wallach, penned an opinion piece making a case for such a waiver.

    Voluntary licensing

    • Alternative to waiver could be voluntary licensing arrangements between pharmaceutical companies and countries that wish to make vaccine doses for their own use.
    • This is exactly what has occurred in India’s case, with a licensing agreement between AstraZeneca and Serum Institute of India.
    • The recent difficulties with this arrangement are a result of India diverting some doses intended for export (or for Covax) to its domestic vaccination drive.
    • But India will soon begin making other important global vaccines under similar licence arrangements, and a waiver would do nothing to speed up this process.

    Compulsory licensing

    • In the event that India needs to ramp up production more than is feasible via licences from global manufacturers, there is another alternative available, which is ‘compulsory licensing’.
    • Such an approach would not permit the export of vaccine doses made under a compulsory licence.
    • This approach should be taken by any developing country, if, for some reason, global pharmaceutical companies are unwilling to license a life-saving vaccine for domestic manufacture and distribution in that nation.

    Why TRIPS waiver won’t help

    • India’s limiting factors are a shortage of raw materials and low production capacity, neither of which would be cured with the supposed magic bullet of a WTO waiver.
    • Not only would a WTO waiver not do anything to address the real bottlenecks that constrain the global production and distribution of vaccines, it would also set a bad precedent.
    • It is true that governments, including the US and others, have significantly subsidized or incentivized in other ways the research and development activities of private pharmaceutical companies that now hold patents for major covid vaccines.
    • Yet, these governments required the ingenuity of private enterprise to invent these vaccines.

    Consider the question “What are the legal provisions to ensure the accessibility of life-saving drugs in the country?”

    Conclusion

    While it may seem appealing, a WTO waiver on intellectual property protection is an inappropriate priority. It’s a distraction from the heavy lifting needed to create the capacity to fight the scourge of covid.

  • India-Japan relations

    The article discusses the areas in which India-Japan are cooperating and also highlight the areas in which both countries can expand cooperation.

    Issues discussed in US-Japan summit

    • The discussion focused on their joint security partnership given the need to address China’s recent belligerence in territorial disputes in the South and East China Seas as well as in the Taiwan Strait.
    • Both sides affirmed the centrality of their treaty alliance, for long a source of stability in East Asia, and pledged to stand up to China in key regional flashpoints such as the disputed Senkaku Islands and Taiwan.
    • Both sides acknowledged the importance of extended deterrence vis-à-vis China through cooperation on cybersecurity and space technology.
    • Discussions also touched upon Chinese ambitions to dominate the development of new age technologies such as 5G and quantum computing.
    • Given China’s recent pledge to invest a mammoth $1.4 trillion in emerging technologies, Washington and Tokyo scrambled to close the gap by announcing a Competitiveness and Resilience Partnership, or CoRe.
    • Both sides have also signalled their intent to pressure on China on violations of intellectual property rights, forced technology transfer, excess capacity issues, and the use of trade-distorting industrial subsidies.
    •  Both powers repeatedly emphasised their vision of a Free and Open Indo-Pacific.

    Issues that need to be discussed in Japan PM’s visit to India

    1) Continuation of balancing security policy

    • First, one can expect a continuation of the balancing security policy against China that began in 2014.
    • Crucially, India’s clashes with China in Galwan have turned public opinion in favour of a more confrontational China policy.
    • In just a decade, New Delhi and Tokyo have expanded high-level ministerial and bureaucratic contacts, conducted joint military exercises and concluded military pacts such as the Acquisition and Cross-Servicing Agreement (ACSA) logistics agreement.
    • Both countries need to affirm support for a Free and Open Indo-Pacific and continued willingness to work with the Quad.
    • Both countries need to take stock of the state of play in the security relationship while also pushing the envelope on the still nascent cooperation on defence technology and exports.

    2) Expanding cooperation in various sectors

    • The two powers will look to expand cooperation in sectors such as cybersecurity and emerging technologies.
    • Digital research and innovation partnership in technologies from AI and 5G to the Internet of Things and space research has increased between the two countries in the recent past.
    • There is a need to deepen cooperation between research institutes and expand funding in light of China’s aforementioned technology investment programme.
    • Issues of India’s insistence on data localisation and reluctance to accede to global cybersecurity agreements such as the Budapest Convention may be discussed in the summit.

    3) Economic ties

    • Economic ties and infrastructure development are likely to be top drawer items on the agendas of New Delhi and Tokyo.
    • Though Japan has poured in around $34 billion in investments into the Indian economy, Japan is only India’s 12th largest trading partner.
    • Trade volumes between the two stand at just a fifth of the value of India-China bilateral trade.
    • India-Japan summit will likely reaffirm Japan’s support for key manufacturing initiatives such as ‘Make in India’ and the Japan Industrial Townships.
    • Further, India will be keen to secure continued infrastructure investments in the strategically vital connectivity projects currently under way in the Northeast and the Andaman and Nicobar Islands.

    4) Joint strategy toward key third countries

    • In years past, India and Japan have collaborated to build infrastructure in Iran and Africa.
    • Both countries have provided vital aid to Myanmar and Sri Lanka and hammer out a common Association of Southeast Asian Nations outreach policy in an attempt to counter China’s growing influence in these corners of the globe.
    • However, unlike previous summits, the time has come for India and Japan to take a hard look at reports suggesting that joint infrastructure projects in Africa and Iran have stalled with substantial cost overruns.
    •  Tokyo will also likely try to get New Delhi to reverse its decision not to join the Regional Comprehensive Economic Partnership.

    Consider the question “Changes on the geopolitical horizon offers India-Japan relations multiple avenues to deepen their ties. In light of this, discuss the areas of cooperation and shared concerns for India and Japan.” 

    Conclusion

    Writing in 2006, Shinzo Abe, expressed his hope in his book that “it would not be a surprise if in another 10 years, Japan-India relations overtake Japan-U.S. and Japan-China relations”. Thus far, India has every reason to believe that Japan’s new Prime Minister is willing to make that dream a reality.

  • Supreme Court must oversee vaccination to protect the right to life

    The article highlights the role the Supre Court can play in universal vaccination in India.

    Why Supreme Court needs to step in

    • Amid raging debate over the vaccination strategy, the role the Supreme Court of India can play to safeguard the right to life guaranteed under Article 21, for which it is duty-bound to exercise jurisdiction under Article 32 needs consideration.
    • In this regard, universal vaccination is a glimmer of hope.
    • The Supreme Court of India can facilitate speed and deeper penetration of universal vaccination, which is now commonly accepted as the only possible solution to the pandemic in the long run.

    Issue of patent of vaccine

    • It is time to question patents claimed by vaccines that have been developed with aid from the state in research and development.
    • These patents, if established, must be immediately acquired with just and adequate compensation and made accessible to all manufacturers.
    • This was done for medicines for AIDS and it can be done again under the Patents Act.
    • The Court can also issue mandamus to undertake this exercise on an emergency basis.
    • Thereafter, all pharmaceutical companies with Good Manufacturing Practices (GMP) as per the Drugs and Cosmetics Act must be allowed to manufacture vaccines at a pre-approved price of cost + 6 per cent return on investment.
    • States can also be directed to incentivise the setting up of new manufacturing facilities as a possible third wave, periodic booster doses and the need for ancillary vaccines make it a long-term phenomenon.
    • All this has to be ensured in addition to the free import of vaccines approved by advanced nations.

    Free for all

    • The availability of all the vaccines, whether indigenous or imported, must be free for all the recipients to be paid by GoI.
    • The vaccines can be distributed to states on a pro-rata basis as per population and price adjusted as part of general revenue sharing in GST.

    Vaccine administration

    •  The vaccine administration needs to be ramped up both in state and private facilities.
    • For vaccine hesitancy, we need to incentivise the vaccination through a direct deposit of Rs 500 in Jan Dhan accounts for each vaccinated member of BPL families.
    • This vaccination can be made compulsory for identifiable categories of persons from MGNREGA beneficiaries to Aadhaar Card holders to income-tax payers to bank account holders to driving-licence holders.
    • There must be a strict penalty to be recovered from those who do not get vaccinated without medical reasons.
    • Private efforts can be made eligible for reimbursement of cost.

    Conclusion

    The Supreme Court can steer us, with greater emphasis on the right to life. The pandemic may leave nothing and nobody behind to bicker about.

  • [pib] Agreement between India and UK on custom cooperation approved

    Background of the agreement

    • The Cabinet, chaired by Prime Minister has approved the signing and ratification of an Agreement with the UK on Customs Cooperation and Mutual Administrative Assistance in Customs Matters.
    • The Agreement would provide a legal framework for sharing of information and intelligence between the Customs authorities of the two countries.
    • It will also help in the proper application of Customs laws, prevention and investigation of Customs offences and the facilitation of legitimate trade.
    • The Agreement takes care of Indian Customs’ concerns and requirements, particularly in the area of exchange of information on the correctness of the Customs value, tariff classification and origin of the goods traded between the two countries.

    Impact

    • The Agreement will help in the availability of relevant information for the prevention and investigation of Customs offences.
    • The Agreement is also expected to facilitate trade and ensure efficient clearance of goods traded between the countries.

  • Govt leverage in Covid-19 vaccine pricing

    How government regulate prices of drugs

    • The Supreme Court flagged the issue of differential pricing for vaccines among States and the Centre and directed the central government to clarify it in an affidavit.
    • To ensure accessibility, the pricing of essential drugs is regulated centrally through The Essential Commodities Act, 1955.
    • Under Section 3 of the Act, the government has enacted the Drugs (Prices Control) Order (DPCO).
    • The DPCO lists over 800 drugs as “essential” in its schedule, and has capped their prices.
    • The capping of prices is done based on a formula that is worked out in each case by the National Pharmaceutical Pricing Authority (NPPA), which was set up in 1997.

    So, why the government is not regulating price of vaccines through DPCO

    • This is because the regulation through DPCO is not applicable for patented drugs or fixed-dose combination (FDC) drugs.
    • This is why the price of the antiviral drug remdesivir, which is currently in great demand, is not regulated by the government.
    • To bring vaccines or drugs used in the treatment of Covid-19 such as remdesivir under the DPCO policy, an amendment can be brought.

    What other options government can explore to deal with the vaccine price issue

    1) Patent Act 1970

    • The Patent Act 1970 has two key provisions that could be potentially invoked to regulate the pricing of the vaccine.
    • Section 100 of the Patents Act gives the central government the power to authorise anyone (a pharma company) to use the invention for the “purposes of the government”.
    • It enables the government to license the patents of the vaccine to specific companies to speed up manufacturing and ensure equitable pricing.
    •  Under Section 92 of the Act, which deals with compulsory licensing, the government can, without the permission of the patent holder, license the patent under specific circumstances prescribed in the Act.
    • Section 92 can be invoked in case of circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use.
    • After the government issues a notification under Section 92, pharma companies can approach the government for a licence to start manufacturing by reverse engineering the product.
    • However, in the case of biological vaccines like Covid-19, even though ingredients and processes are well known, it is difficult to duplicate the process from scratch.
    • The process will also entail new clinical trials to establish safety and efficacy, which makes compulsory licensing less attractive.

    2) The Epidemic Diseases Act, 1897

    • Section 2 of this law gives the government “power to take special measures and prescribe regulations as to dangerous epidemic disease”.
    • These broad, undefined powers can be used to take measures to regulate pricing.
    • However, the law lacks the teeth to implement such an important policy framework.
    • Violation of the Act is penalised under Section 188 of the Indian Penal Code, which deals with “disobedience to order duly promulgated by (a) public servant”.

    3) Direct procurement by the Centre

    • Apart from these legislative options, experts suggest that the central government procuring directly from the manufacturers could be the most beneficial route to ensure equitable pricing.
    • As the sole purchaser, it will have greater bargaining power.

  • Making social welfare universal

    The article highlights the need for universal social protection scheme in India and suggests a way to achieve it.

    Need for universal social security

    • The pandemic has revealed that leveraging our existing schemes and providing universal social security is of utmost importance.
    • This will help absorb the impact of external shocks on our vulnerable populations.
    • The country has over 500 direct benefit transfer schemes for which various Central, State, and Line departments are responsible.
    • However, these schemes have not reached those in need.

    Lessons from Poor Law System in Ireland

    • An example of a universal social protection scheme is the Poor Law System in Ireland.
    • In the 19th century, to deal with poverty and famine, Ireland introduced the Poor Law System to provide relief that was financed by local property taxes.
    • These laws were notable for not only providing timely assistance but maintaining the dignity and respectability of the poor while doing so.
    • They were not designed as hand-outs but as necessary responses to a time of economic crisis.
    • Today, the social welfare system in Ireland has evolved into a four-fold apparatus that promises social insurance, social assistance, universal schemes, and extra benefits/supplements.

    Issues with the existing social protection schemes in Inda

    • Existing schemes in India cover a wide variety of social protections.
    • However, they are fractionalised across various departments and sub-schemes.
    • This causes problems beginning with data collection to last-mile delivery.

    How universal system would help

    • Having a universal system would improve the ease of application by consolidating the data of all eligible beneficiaries under one database.
    • It can also reduce exclusion errors.
    • The Pradhan Mantri Garib Kalyan Yojana (PMGKY) is one scheme that can be strengthened into universal social security.
    • It already consolidates the public distribution system (PDS), the provision of gas cylinders, and wages for the MGNREGS.
    • Generally, social assistance schemes are provided on the basis of an assessment of needs.
    • Having a universal scheme would take away this access/exclusion barrier.
    • For example, PDS can be linked to a universal identification card such as the Aadhaar or voter card, in the absence of a ration card.
    • This would allow anyone who is in need of foodgrains to access these schemes.
    • It would be especially useful for migrant populations.
    • Making other schemes/welfare provisions like education, maternity benefits, disability benefits etc. also universal would ensure a better standard of living for the people.
    • To ensure some of these issues are addressed, we need to map the State and Central schemes in a consolidated manner.
    • This is to avoid duplication, inclusion and exclusion errors in welfare delivery.
    • The implementation of any of these ideas is only possible through a focus on data digitisation, data-driven decision-making and collaboration across government departments.

    Consider the question “What are the issues with existing social security schemes in India? What would be the benefits of replacing all these social security schemes with universal social security scheme?”

    Conclusion

    India is one of the largest welfare states in the world and yet, with COVID-19 striking in 2020, the state failed to provide for its most vulnerable citizens. This underlines the need for a universal social protection scheme in India.

  • The Supply Chain Resilience Initiative (SCRI) formally launched

    Tackling the supply chain disruption through SCRI

    • The Supply Chain Resilience Initiative (SCRI) was formally launched on Tuesday by the Trade Ministers of India, Japan and Australia.
    • The three sides agreed that the pandemic revealed supply chain vulnerabilities globally and in the region and noted the importance of risk management and continuity plans in order to avoid supply chain disruptions.
    • Some of the joint measures they are considering include supporting the enhanced utilisation of digital technology and trade and investment diversification, which is seen as being aimed at reducing their reliance on China.

    How China reacted

    • China’s Foreign Ministry on Wednesday described the move as ‘unrealistic’.
    • The formation and development of global industrial and supply chains are determined by market forces and companies choices, it said.
    • It also said that the artificial industrial ‘transfer’ is an unrealistic approach that goes against the economic laws and can neither solve domestic problems nor do anything good to the stability of the global industrial and supply chains, or to the stable recovery of the world economy.

  • Antimicrobial resistance

    The article highlights the challenges posed by anti-microbial resistance (AMR) and suggests ways to deal with it.

    Understanding the severity of challenges posed by AMR

    • Antimicrobial resistance (AMR) is the phenomenon by which bacteria and fungi evolve and become resistant to presently available medical treatment.
    • AMR represents an existential threat to modern medicine.
    • Without functional antimicrobials to treat bacterial and fungal infections, even the most common surgical procedures, as well as cancer chemotherapy, will become fraught with risk from untreatable infections.
    • Neonatal and maternal mortality will increase.

    How AMR will affect low and middle-income countries

    • All these effects will be felt globally, but the scenario in the low- and middle-income countries (LMICs) of Asia and Africa is even more serious.
    • LMICs have significantly driven down mortality using cheap and easily available antimicrobials.
    • In the absence of new therapies, health systems in these countries are at severe risk of being overrun by untreatable infectious diseases.

    Factors contributing to AMR

    • Drug resistance in microbes emerges for several reasons.
    • These include the misuse of antimicrobials in medicine, inappropriate use in agriculture, and contamination around pharmaceutical manufacturing sites where untreated waste releases large amounts of active antimicrobials into the environment.

    Stagnant antibiotics discovery

    •  The Challenge of AMR is compounded by fact that no new classes of antibiotics have made it to the market in the last three decades.
    • This has happened on account of inadequate incentives for their development and production.
    • A recent report from the non-profit PEW Trusts found that over 95% of antibiotics in development today are from small companies, 75% of which have no products currently in the market.
    • Major pharmaceutical companies have largely abandoned innovation in this space.

    Measures to deal with the challenge of AMR

    •  In addition to developing new antimicrobials, infection-control measures can reduce antibiotic use.
    • A mix of incentives and sanctions would encourage appropriate clinical use.
    • To track the spread of resistance in microbes, surveillance measures to identify these organisms need to expand beyond hospitals and encompass livestock, wastewater and farm run-offs.
    • Finally, since microbes will inevitably continue to evolve and become resistant even to new antimicrobials, we need sustained investments and global coordination to detect and combat new resistant strains on an ongoing basis.

    Way forward

    •  A multi-sectoral $1 billion AMR Action Fund was launched in 2020 to support the development of new antibiotics.
    • The U.K. is trialling a subscription-based model for paying for new antimicrobials towards ensuring their commercial viability.
    • Other initiatives focused on the appropriate use of antibiotics include Peru’s efforts on patient education to reduce unnecessary antibiotic prescriptions.
    • Australian regulatory reforms to influence prescriber behaviour, and initiatives to increase the use of point-of-care diagnostics, such as the EU-supported VALUE-Dx programme.
    • Denmark’s reforms to prevent the use of antibiotics in livestock have led to a significant reduction in the prevalence of resistant microbes in animals and improved the efficiency of farming.
    • Finally, given the critical role of manufacturing and environmental contamination in spreading AMR there is a need to curb the amount of active antibiotics released in pharmaceutical waste.
    • Regulating clinician prescription of antimicrobials alone would do little in settings where patient demand is high and antimicrobials are freely available over-the-counter in practice, as is the case in many LMICs.
    • Efforts to control prescription through provider incentives should be accompanied by efforts to educate consumers to reduce inappropriate demand, issue standard treatment guidelines.
    • Solutions in clinical medicine must be integrated with improved surveillance of AMR in agriculture, animal health and the environment.
    • AMR must no longer be the remit solely of the health sector, but needs engagement from a wide range of stakeholders, representing agriculture, trade and the environment with solutions that balance their often-competing interests.
    •  International alignment and coordination are paramount in both policymaking and its implementation.

    Consider the question “Anti-microbial resistance (AMR) represents an existential threat to modern medicine. What are the factors contributing to AMR? Suggest the measures to deal with it.”

    Conclusion

    With viral diseases such as COVID-19, outbreaks and pandemics may be harder to predict; however, given what we know about the “silent pandemic” that is AMR, there is no excuse for delaying action.

  • Centre notifies GNCT Act that gives more powers to Delhi L-G

    GNCT Act comes into effect

    • The Ministry of Home Affairs (MHA) issued a gazette notification stating that the provisions of the Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021, would be deemed to have come into effect from April 27.
    • The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.

    What the Amendment seeks to achieve

    • The Act will clarify the expression Government and address ambiguities in legislative provisions.
    • It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.
    • Clause (4) of Article 239AA provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.
    • Now Act will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.