Generic drugs and the law in India

A week or so ago, the Supreme Court of India, in a landmark case, ruled against the extension of copyright protections for pharmaceutical compositions with minimal changes from their original patents. It used an important section in current intellectual property (IP) law to determine that slight deviations in the composition of drugs do not warrant new patent protections in the absence of any significant improvement in efficacy or change in overall constitution. The ruling was hailed as a much-need fillip in the fight for greater access to affordable medicines and celebrated by civil society activists and generic drug companies alike as an affirmation of the right of patients to seek affordable, life-saving alternatives to expensive drugs. Two perspectives emerged in the mainstream media after the landmark judgment: the pharmaceutical company involved in the litigation called the verdict an affront to innovation in medical research, while others, particularly groups representing cancer patients and HIV-positive people, described it as a welcome step towards recognition of the generic drugs that are crucial to a developing society like India. Indian generic drugs are used not only in India but are distributed globally by health organizations working across the developing world. Moreover, scientists and manufacturers of generic drug companies argue that major pharmaceuticals generally recuperate their research and development costs in a single year of distribution in a country like the United States, which problematizes the latter's fear of the impact on innovation of a more relaxed patenting regime.

It is, therefore, of great concern to civil society in India that the draft EU-India Free Trade Agreement (FTA) currently under consideration in Germany reportedly contains several provisions that seem to go against the spirit of the Supreme Court verdict in that they specifically invoke IP protections that have reportedly been adopted from the Anti-Counterfeit Trade Agreement, which was roundly rejected by the European Parliament, and are more stringent than the requirements of the WTO-TRIPS Agreement. These provisions allegedly include the right of EU companies to "demand the freezing of bank accounts and seizure of properties of generic companies on the mere allegation of patent-infringement and to drag third parties like treatment-providers into litigation" (Hindu 11 April 2013). They also provide for the establishment of investor-state dispute mechanisms outside the rubric of the state's judicial system (common in trade agreements such as this), which, according to critics, work outside the domain of national laws and therefore disregard the delicate balance between patent rights and the public interest maintained, in a normative sense, in national adjudication.

Health advocates and civil society activists have called on the government to refrain from entering into any agreement detrimental to the country's health needs. However, past experience shows that the Indian government, in pursuit of commercial goals and under pressure from external powers, is entirely capable of ignoring crucial questions of survival to toe the line on international trade policies designed to benefit corporations rather than people. This will be a test not only of economic wisdom but also respect for political and judicial sovereignty.

Article on adoption in The Age

Today's edition of The Age has an insightful article on adoption and adoption law in Australia. The article, a full-page feature on its last page, discusses the relatively recent changes in the law (enabling access to information regarding the identity of the biological parent) against the backdrop of the personal struggles of several children adopted between the 1950s and 1970s to learn more about the conditions surrounding their birth. The article focuses in particular on the stories of two people from Melbourne who've spent more than 30 years trying to discover the identity of their respective birth mothers. Their inquiries have been thwarted by the fact that the adoption papers of their generation often contained factual anomalies - their birth dates and other details were changed to evade later identification. A historian at ACU argues that this is because adoptions, particularly of children born of unwed mothers, weren't socially publicized. This led several adoptive families to "effectively erase" any vestiges of their children's prior identity, including their prior name (if any) and birth information. For the two people profiled in the article, this has meant an unending, tenuous and difficult emotional journey. One of them discovered that he was adopted only after the death of his mother in 1980. He found, among her personal effects, albums with photos of his boyhood years but none of his birth, which led him to ask some difficult but pertinent questions. He found pictures of his mother dressed as a bride but none of the bridegroom, leading him to suspect that her wedding was a "mock-up". The other, a lady, found her birth mother's name on her birth certificate, which said that she was a nurse who'd arrived from London. She went to England in search of any remaining relatives or friends who could shed some light on her mother but returned unsuccessful. She said, "Not knowing is like a black hole and sometimes I feel as though I am falling into it."

The article raises several important questions about the nature of identity and the ways in which it can become the overriding determinant of a person's life. I personally believe that greater transparency in adoption laws, and in social relations surrounding adoption, is a necessary and important development. I find it hard to imagine being in the shoes of the two people mentioned in the article and undoubtedly those of several others like them. It is also important to recognize that it must be equally difficult for the adoptive family to process the emotional uncertainties, vulnerabilities and pitfalls inherent in the journey. Adoption is beautiful and life-changing. But it is also an onerous undertaking. There is so much at stake. The loss of the adoptive parents' primacy in their child's life can be devastating, and the journey towards self-discovery, in whatever form it may take, can be painful and arduous. Openness and some serious thinking about the support mechanisms available to families would definitely contribute to better understanding and improved communication between families.

The right to voice an opinion: Mumbai politics and the arrest of two young women

In the city of Mumbai, Bal Thackeray, the leader of the nationalist and far-right political party Shiv Sena, died on November 17. A de facto bandh (or daylong curfew) was observed immediately after his death. A 21-year-old woman in a town near Mumbai called Palgarh put up a status message on facebook questioning the rationale behind observing a complete shut-down in a city as busy as Mumbai. A friend of hers 'liked' the post.

Both were arrested by the police upon receipt of a complaint made by a party functionary, and reportedly at night, which is against Supreme Court guidelines pertaining to the arrest of women. They were charged with "causing enmity between classes" and instigating religious conflict or hurting "religious sentiments" under provisions of the IT Act. Their uncle's clinic, as reported in the press, was vandalized by around 30-40 people, causing losses estimated somewhere between 15 and 20 lakh INR (around 35k AUD).

While it has been acknowledged by rational-minded individuals that her comment had nothing to do with causing religious offense - democracy ensures and safeguards the right to an opinion on political matters - the damage has already been done. The girls, in their interaction with the media after their arrest and release on bail, said that they had deactivated their facebook accounts and would think several times before posting anything again. They apologized for the comment and accepted responsibility for their actions. It is evident that a climate of intimidation and violence leads to self-censorship. It is also evident that a person cannot exercise his or her right to freedom of expression when political parties and the police, powerful arms of the state, react in such a manner, causing mental trauma and often physical hurt. Although women's rights groups, civil society and several political parties have condemned the incident and sought reparation, and though the courts may intervene, the fact remains that the damage has already been done. The purpose of intimidation is to spread fear, and fear is most palpable when handed out by the arm of the law. The lesson lies not in the arbitrary nature of the arrest, it lies in the retraction of the girl's comments, her submission and her apology. It lies in the fact that she conceded she would never post anything again without thinking twice. Whether justified or not, the arrest has served its purpose. It will remind several others of the dangers of voicing an opinion.

One-way traffic

This post is a bit academic, and is taken from something I'm putting together today, so I may as well leave in all the in-text references for greater coherence.

One of the interesting things about globalization theory is the wide range of opinion on it (Held 2000). While several critics (Tunstall 1977; Schiller 1976; Fejes 1981; Golding 1983; MacBride 1980, etc.) have argued that globalization necessarily implies a Westernization of developing societies, and hence a form of cultural imperialism, several others have also called it an inevitable by-product of the process of universal and simultaneous modernization, thereby undercutting the idea of intentionality or its relation to "imperialism" (Tomlinson 1991; Barker 1997, Giddens 2002). In academic theory, there is growing consensus that the multifarious processes of globalization imvolve complex interactions between the global (mostly understood to mean Western) and local (mostly non-Western), emphasizing hybridity, confusion and inter-operability (Giddens 2002; Pieterse 1995). Several have noted the phenomenon of global corporations and entities modifying themselves to suit local contexts and situations, in order to deliver what's important to local consumers (Robertson 1995; Madden 2002). There is a sense that the global needs to conform to the local in order to produce something that is uniquely trans-local, i.e. the phenomenon many refer to using the neologism "glocalization".

(Now, for the non-academic/ blog bit -)

Yet in all of this, there is some degree of unidirectionality. Everything seems to flow from the global to the local, or from the Western to the non-Western. Either this is a pecularity of theory, or there is something essentially true about this particular characteristic of global flows. Maybe it is indeed a one-way process. Many would argue that it isn't, and that local flows do make their way (back) into the dominant paradigms of the West. However, isn't this what we call "multiculturalism", i.e. the presence of the non-Western in Western paradigms? And this term evokes some degree of critical (e.g., Schmitt 1992) and journalistic (e.g., Andrew Bolt and others) anxiety. So, in a way, there is something universal about the flow of the global to the local, and simultaneously something problematic or disorienting or disruptive about the entry of the local into the global. A lot of these concepts are somewhat antedated now (surely because of the cotinuous success or effectiveness of globalization?), but it's still interesting to see how they relate to each other even today.  

Media scholarship in India

As a researcher looking at the Indian media, you may encounter certain impediments. The first is the ostensible lack of media scholarship. A lot of the extant scholarship out there comes from the pre-1990 era, and a sizeable portion of that lacks rigour. There are several reasons for this. Media studies have not gained an academic foothold yet. Journalism and mass communication courses do cater to the professional requirements of the industry, as they should, but do not focus too much on the need for consolidating scholarship on the media. A part of this has to do with the nature and constitution of academia in India - the resistance to innovation and scholarly forays into new fields; administrative suspicion of traditional academic values such as creativity, learning and old-fashioned erudition; the corporatization of education and reformulation of what constitutes a "good education"; and the somewhat more discernible and worrisome lack of a strong research culture. Apart from this, one is compelled to acknowledge over time, in opposition to Amartya Sen's understanding of the Argumentative Indian, that Indian culture and society neither promote nor seem conducive to rigorous intellectual enquiry, either formal (as institutional academia) or informal (as the less quantifiable but more important constituent of civic life conceptualized as the "public sphere"). There are many ways to argue this point but a simple way is to point out that most students, including students of the Humanities, are apathetic to reading the newspaper or watching the news, believing, as some do, that what happens in politics and society does not affect their daily lives. What does it all mean for the student of media? Plain old grumbling about the lack of this and the poor quality of that? No. It means that you are looking at a very specific kind of social framework - the framework of the anti-intellectual society, wherein bureaucratic demands and market forces subsume knowledge and learning; as also a framework that privileges politicking, sub-standard quality over learning and talent. If, as a researcher, you find yourself embedded in this framework, you need to understand what this means for you and you need to come to terms with your limitations. There is no one answer and there is no position of "privilege" if you seek meaningful ways of understanding your society. On the issue of writing and reportage, even the way language is constructed and constituted in the public domain impacts its overall meaning - the sometimes unclear and difficult-to-read reportage of newspapers reflects on the nature of society too.

What the Seema Azad verdict says about us

It has been a while now since Seema Azad and her husband, Vishwa Vijay, were first sentenced to life imprisonment by a UP sessions court and then granted bail by the Allahabad High Court. The case did not get as much attention in the national media as the Binayak Sen case (2007-11), but the PUCL and other democratic organizations fought consistently through the years of their incarceration for their freedom and vindication. They are social activists in UP who have written extensively on illegal mining in the state and have worked several years to highlight instances of state oppression and injustice. At the time of her arrest, Seema was the organizing secretary of the state unit of the PUCL. They were arrested in February 2010 and charged with being members and supporters of the banned CPI (Maoist). On June 8, 2012, after they had spent two years in jail without reprieve, the Allahabad sessions court found them guilty and sentenced them to life imprisonment. The verdict was based primarily on the so-called "pro-Maoist" literature recovered from their residence and a purported confession made in police custody (which is inadmissible by law). While a lot of the literature cited as incriminatory in court was essentially political in nature (it's an ironic comment on Indian "democracy" that anything remotely to do with social justice is selectively interpreted as inflammatory or "seditious", re sec. 124-A of the IPC), the judge also reportedly admitted the confession as valid and based his judgment on it. The high court, in granting her bail earlier this month, obviously took note of these anomalies; however, the appeal against the sessions court verdict, given the pace of judicial review, will now only come before the high court much later (some estimate that it may even take 30 years).

What does the verdict say about us? That we are essentially an undemocratic and repressive police state with a judicial system that often contradicts itself and undermines its own stated principles?

The Supreme Court has set several precedents (e.g. Kedar Nath Singh v. State of Bihar, 1962) that delimit the law of sedition (eliminating any factors that do not survive the test of free speech guaranteed by the constitution) and has established, through various judgments, the fact that mere membership of a banned organization does not by itself constitute a crime. There is virtually no plausible explanation for the fact that so many people are sentenced to jail on non-existent, untenable or fabricated evidence despite a clear and unambiguous history of judicial review that impugns such judgments and unequivocally rejects the doctrine of "guilt by association" (especially if such association is patently fabricated and specious).

However, this isn't primarily about the judicial process. The police persecute social activists and the state actively sanctions their persecution, with government after government supporting the existence and continuance of draconian "anti-terror" laws. This is primarily about the suppression of dissent and the punishment of those who speak out against oppression. While almost all liberal democratic countries have done away with the crime of "sedition", Indian citizens continue to languish in jail on the basis of such obsolete and insidious colonial-era laws as the one on sedition. The Indian state thrives on the brutal suppression of dissent and of those who question or obstruct its path of expropriation, exclusion and even annihilation. There are thousands of people trapped in jails across the country on false cases and false allegations, simply because they chose to question the logic of exploitation and fight against their oppression. Moreover, the persecution of activists and human rights workers slips in and out of mainstream national discourse, and due to decreased and inconsistent media scrutiny, many instances remain unreported, hidden and ignored. We have grown accustomed to state violence and see nothing special about lives wasted in jail. What this verdict says about us is that we live under active state repression and our democracy is constantly besieged by internal, implosive forces. 

Mass exodus

Thousands of migrant workers and students from the north-east are fleeing the southern cities now, particularly Mumbai, Bangalore, Hyderabad and Chennai. For the past few days, there have been stampedes at railway stations crammed with multitudes of people desperately waiting for a number of specially scheduled trains to take them back to Guwahati. Every such train that arrives at Bangalore railway station precipitates a virtual stampede, with thousands of panic-stricken passengers, with or without tickets, pushing into overcrowded compartments. Railway platforms have become veritable makeshift camps, with stranded passengers anxiously waiting to board the next train, uncertain about the possibility of making it in time. To ameliorate the situation, the railway authorities have arranged for additional services but these are nowhere near commensurate with the sudden and tremendous upsurge in demand. Yesterday, there were 7,500 ticketed passengers boarding four Guwahati-bound trains in Bangalore, including three special trains apart from the regular Banglore-Guwahati Express. Workers, students, professionals from the north-east are reluctant to go back to their lives in Mumbai, Bangalore and Chennai (and towns like Madurai, Coimbatore and others). The perceptible threat of ethnic conflict in the air makes any pretense of normalcy impossible.

What is particularly insidious about this "threat" is that it's been instigated by "rumours" and the circulation of doctored videos. A report in the papers yesterday quoted from a Pakistani blogger's study of the videos doing the rounds in Indian cities, which found that the videos, purportedly of the Bodo-Muslim conflict in Assam, contained a number of shots from previous incidents of violence from other places. These videos were not of the Assam riots but were circulated as "evidence" of the atrocities committed in Assam. While hundreds of thousands of people have been displaced from their homes in Assam and continue to languish in makeshift IDP camps, these calculated attempts to incite further violence in other parts of the country are opportunistic and extremely dangerous. North-eastern migrant workers in Chennai speak of "rumours" and implicit threats to leave the city by August 20. In Mumbai, 58 policemen and 5 civilians were injured when a crowd clashed with the police at a protest meeting organized by the Raza Academy in Azad Maidan. Two people died in the police firing that followed.

The home minister of Karnataka arrived at the railway station in Bangalore on Wednesday evening and made an appeal to the passengers to return to their homes in the city. He assured them that security would be maintained at all costs. His appeal was drowned out by the angry responses of the passengers. The police held meetings on Thursday with north-eastern and Muslim representatives. The fact of the matter is that no ethnic conflict in the past has been mitigated by police vigilance. The people, fearing for their safety in a polarized and violent political climate, have no alternative but to rush back "home" and hope for some semblance of normalcy and security.