Editorial 1
Editorial 2
Nation of property
Letters to the editor


Step right up

The Election Commission has the political parties over a barrel. Its suggestion that parties themselves set aside a fixed number of seats for women candidates without waiting for the women’s reservations bill to be passed is embarrassing for anti-reservation politicians in a number of ways. First, the EC is proposing a simpler procedure. A mandatory quota for women at the party level would not require a constitutional amendment bill at all, just a provision in the Representation of the People Act. More embarrassing is the question of political correctness. No party would like to be perceived as obstructing gender justice. By leaving it up to the parties to reserve the seats they wish for women, the EC has left virtually no loophole for evasion.

But most important perhaps is the EC’s suggestion regarding women from backward classes and minority communities. One of the major arguments used by parties opposed to the women’s reservations bill and even by members of pro-bill parties like the Congress and the Bharatiya Janata Party — witness Ms Uma Bharati — has been the potential deprivation of backward classes women in case of quotas. The Rashtriya Janata Dal and the Samajwadi Party have consistently claimed that the reservations bill will only see women from the privileged classes sitting in the highest legislative bodies. The bill has been stalled repeatedly on the question of a separate quota for backward classes women. The set of problems this has set spiralling has ensured the bill remain a piece of paper, occasionally torn up by unruly legislators. Those fighting for 33 per cent reservation are not willing to set aside a quota within that, while reservations on top of 33 per cent are unthinkable, given that this figure is still being haggled over. The EC has cannily given the political parties the freedom to decide how many seats they would like to keep for women from the backward classes and minority communities. This is independence with a vengeance. It is also the EC’s gentle way of completely sabotaging the highly publicized debate over the women’s bill. The debate has always served the politicians’ purposes. The bill has never been passed. But women have constantly been assured that the importance of their elevation into decisionmaking positions is always on legislators’ minds.

But there is another side to all this. Reservations, as recent history has shown, are most often self-defeating and almost always divisive. Quotas on the basis of gender, instead of class or caste, can be even more problematic. Without going into the finer points, it is obvious that if the increased representation of women in top decisionmaking bodies is the result of reservations, then it is little more than tokenism for appearance’s sake. It is to expect development after the image of development is in place. The secretary general’s report at the sixth Commonwealth conference for ministers responsible for women’s affairs praised India for its attempts to right gender inequities. But it noted there were few women in apex decisionmaking bodies. The EC’s proposal, although accepting the principle of reservations, offers a kind of middle way by placing the onus of gender justice on the parties. It is a concrete step towards ending the barren debate on the women’s reservations bill.    


Cruellest month

When something as basic as drinking water is at stake, governmental mismanagement and myopia are all the more lamentable. During 1999-2000, 126 districts, spread over 11 states, have been officially declared as drought-affected. Among these states, the crises in Rajasthan, Gujarat, Madhya Pradesh and Andhra Pradesh have now reached a degree of acuteness that has provoked the usual flurry of belated responses from the respective state and Central governments. The principal cause of drought is, of course, natural — the inadequacy of the monsoons over the last couple of years. But the regular recurrence of this crisis and the inability to forestall this extreme situation by properly noticing the very obvious and alarming fall in groundwater levels point out fundamental shortcomings in the immediate and long term handlings of the crisis.

First, the politicization of drought mismanagement still hinders the coordination of Centre-state strategies in salvaging this grim situation. Opposition parties, particularly in Rajasthan and Gujarat, ought to stop putting the state administrations down to score their own points with the Centre. Second, the levying of extra food grain and arranging for the quick distribution of safe drinking water are, of course, imperative emergency measures. But they cannot provide long term solutions, and could even be seen as ensuring the recurrence of the crisis. Mr Amartya Sen has shown how a proper distribution of surplus food grain during drought can be ensured, not through the levying of extra food as relief, but by mobilizing a workfare system in the affected area that enables the redistribution of the otherwise wasted surplus. Third, significant private and public investment in irrigation and in the providing of drinking water can be made only if the state initiates a proper system of pricing water. A consciousness of the importance of water conservation can be effected only if the public is made to pay for the water that it often wastes unthinkingly. Finally, a systematic revival of simple and traditional rain harvesting technologies will restore water management to the sphere of local self-government. Any government programme should aim to encourage an eventually decentralized ethos of water management based in the community and driven by price and demand.    

Since July 1991, India has been trying hard to come out of its shell and integrate itself into the global economy and adjust to an atmosphere of free trade and competition. New Delhi realized that to gain a foothold in international trade, the country must move closer to the major trading nations and become more fully part of the world trading system. This is why there was never any real question of not joining the World Trade Organization in 1994.

Strangely, even after six years, India is yet to take a firm step towards adhering to some of the principal norms of the WTO. An example of this inaction that comes to mind concerns the agreement on trade-related aspects of intellectual property rights.

India must have strong IPR legislation if it hopes to sustain its high technology sectors. Second, given that a modern firm spends quite a lot in research and development, an absence of IPRs would mean an unscrupulous firm could eat into the former’s revenue by copying its product.

Trade related IPR is all about protecting intellectual property. It is the one agreement of the WTO that has far reaching consequences for the Indian pharmaceutical and software companies which are responsible for the resurgence in the economy today.

True, TRIPs were the brainchild of United States pharmaceutical companies and are another tool in the hands of multinational companies to establish market control. But it is also true Indian companies themselves use this agreement to further their own cause and protect their ingenuity. In any case, India has committed itself by signing the agreement. There can be no looking back.

The TRIPs agreement aims at reducing distortions and impediments to international trade. They take into account the need to promote effective and adequate protection of IPRs and ensure that measures to enforce IPRs do not themselves become barriers to international trade.

The idea is noble. Sadly Indian producers have done precious little to take advantage of the agreement that protects them against imitators and should have motivated them to come up with innovations that would improve their profitability and market share.

T he TRIPs agreement specifies that the term of patents in all fields of technology must be 20 years from the date of filing. However, according to the 1970 Indian Patent Act, the term of patents should be seven years for food and drugs and 14 years for other fields of technology. The amendment to the act should change the duration to comply with TRIPs.

The required 20 years of protection is optimal. The pharmaceutical industry is one where IPRs are immensely important. It takes almost 12 years for a pharmaceutical company to develop a new drug. The investment required averages a whopping $ 125 million per drug. In this case, a protection period of only seven years is totally inadequate. It is impossible for the inventor to recover his costs in such a short time even if he is granted a monopoly for the product.

It is the area of patents that the greatest deviation exists between the TRIPs agreement and Indian law. While one glaring difference is the length of patents, the other area of difference is concerned with what constitutes patentable subject matter. This brings product and process patents into focus. According to the TRIPs agreement, product patents should be available for any invention in all technology fields. The Indian Patent Act only allowed for process patents in inventions relating to food, pharmaceuticals, agricultural chemicals and chemicals. No patent has been allowed in the field of atomic energy or genetically engineered microorganisms.

Further, process patents owners had the exclusive right of using the process — but only that. They could not exclude third parties from using, selling or distributing the product for which the process patent was taken. All these need to be changed in order to comply with the TRIPs agreement.

The agreement dictates that those countries which have failed to provide product patents by January 1, 1995, would have to do so by January 1, 2005. However, this additional period is only for product patents in the fields of pharmaceuticals, agricultural chemicals, food, chemicals, microorganisms and atomic energy. All other amendments to the Indian Patent Act were to be brought about by January 1, 2000. However, the Indian government ailed to pass the patent amendment bill within the required time period.

India was therefore in clear violation of the TRIPs agreement. Consequently, both the US and the European Union took India to the dispute settlement body, which in turn asked India to give a legally backed patent cover for global pharmaceutical and agrochemical innovations. With time running out, the government introduced an ordinance incorporating some changes. Only in the spring of 1999 did the government introduce the amendment bill in Parliament. To strike a balance between property rights and public interest the drafters incorporated measures such as a compulsory licensing provision.

Again, the TRIPs agreement specifies that executive marketing rights should be granted for a period of five years until the product patent is itself granted. The government was only too quick to abide by this rule and consequently granted EMRs to foreign pharmaceutical and agrochemical companies.

New Delhi’s decision to extend EMRs and not introduce product patents can only mean policymakers are still trying to shield domestic companies from foreign competitors. But the exercise is futile since the domestic sector must be opened up by 2005 in any case. Or else India will once again be in default of its WTO obligations.

Meanwhile, the world is watching. US pharmaceutical companies are slated to increase research and development investment to a record shattering $ 26.4 billion. But US pharmaceutical manufacturers have pointed out that such research could face piracy and worse in India given the absence of strong intellectual property protection here.

India has been the loser elsewhere. The country is a rich source of medicinal plants. Herbal medication has consequently become one of India’s strengths. However, the absence of IPRs has meant foreign firms have been able to take patents on those plant based drugs in which Indian producers have had a natural advantage.

For instance, India has traditionally been a supplier of pepper to the world. Pepper has medicinal value too. In 1997 the Sabinas Corporation stopped Indian exporters from shipping pepper to the US saying they had a patent on its medicinal use. The list of naturally occurring resources abundant in India, yet caught in patent controversies abroad, is never ending. These include pepper, neem, turmeric, amaltas, euphorbia, gul mehendi, Indian mustard, pomegranate, bhui amla and many more.

India needs to grant product patents immediately. That will help its own producers get patents of their own. TRIPs are an area which, when implemented, will not only imbibe the spirit of competition but also force various industrial sectors to wake up from their slumber. India should learn from its experiences in software, where strong IPR legislation has been followed by increased investment.

India’s legislators need to grasp this reality. Otherwise the economy will be dealt a severe blow in all those areas where the establishment of IPR is the key to growth.    


Centre should not hold

Sir — The Congress’s revered “high command” has kept it until too late to be considerate of the interests of regional party satraps (“Ghani keeps Sonia waiting”, April 21). One reason for the Congress’s sorry state is that its central leaders have always dictated to its state leaders. They have dismissed legitimate criticisms as signs of the latter becoming too big for their boots. Such highhandedness does not pay in today’s fragmented political scenario. No wonder Sonia Gandhi is now eating humble pie. She could not censure party legislators for crossvoting in the Rajya Sabha elections. She had to grin and bear it when A.B.A. Ghani Khan Chowdhury ignored her summons. Sonia Gandhi was reduced to sending emissaries to “extract” anti-Bharatiya Janata Party statements from Khan Chowdhury. All she has done is tie herself up in knots over the irrelevant debate of secularism versus communalism. She should take a lesson from her state unit which has kept itself to the simple and indomitable task of winning elections.

Yours faithfully,
G. Singh,

Reserved benches

Sir — The editorial, “Equal before the Law” (April1), is rightly appreciative of the Supreme Court ruling that makes caste-based reservations inadmissible in judicial services. “Reverse discrimination” is neither desirable nor justifiable as compensation for historical discrimination. Divisions among Hindu society have been made worse by unscrupulous politicians. The colonial caste schedule has been more than doubled by the incorporation of a number of sub-castes, leading to the creation of a formidable pressure group. This has given rise to a privileged group within schedule castes and tribes intent on perpetuating its interests at the expense of the nation and even the poorer sections of that group.

For example, the son of a top bureaucrat will benefit from reservations while that of a poor clerk will not, even if he is meritorious, only because he belongs to the upper caste. This is against all norms of equity and social justice. The reservations policy has harmed the nation by promoting social fragmentation. Worse, the erosion of self-respect the system has given rise to has also led to acrimonious relations between the general and reserved categories.

Yours faithfully,
Hrishikesh Banerjee,

Sir — The increasing number of court cases in the country can be reduced by instituting effective checks on lawyers apart from reforms in the judicial system. All courts should have sections where lawyers can file monthly returns of income. Fees charged for cases should also be compulsorily mentioned in the file. A lawyer-client agreement mentioning fees settled and mode of payment should be included in the court files. Some lawyers charge the full fee in advance and later pressurize their clients for more money. The income tax department should make it compulsory for lawyers to accept fees through cheques or drafts. “Costs” decreed by the courts should be paid to the opposite party by account payee cheques so that the money is not pocketed by the opposing lawyers.

This is even more distressing when costs are imposed because of the erroneous advice of the lawyers themselves. Ironically, the courts do not impose penalties on themselves when important papers and files are not made available on time. In these times of advanced technology, higher courts should make available certified copies of judgments and rulings soon after they are delivered, abolishing the need to apply for these documents.

A record should be published of cases won or lost by lawyers. This will prevent lawyers from taking up baseless cases which increase the burden on the courts. Lawyers should be able to attest or verify for their clients, abolishing the need for notary publics and oath commissioners.

Yours faithfully,
Subhash Chandra Agrawal,

Sir — The expulsion of Ram Jethmalani from the Supreme Court Bar Association reveals how far lawyers will go to maintain their interests (“Club expels Jethmalani”, March 10). Cases are piling up, litigants are harassed, but instead of doing anything to stem the rot, lawyers are desperate to maintain the status quo, to perpetuate the corrupt practices which fetch them huge incomes. Besides, it is unclear why lawyers should go on strike against a move to reduce the number of appeals and of levels at which appeals can be directed. These will only make the judicial process faster.

Yours faithfully,
Tapan Pal,

Sir — The proposed revision of the Civil Procedure Code has been criticized by advocates all over the country. After all, they stand to lose the most from the changes. Litigants however are supportive since they have for long been victims of lawyers’ caprices.

Yours faithfully,
A.K. Bose,

Uncivil policing

Sir — Whom are the senior officers in the police department trying to fool by pretending they know nothing about bribe-taking by fellow policemen, in the face of the admission by a sub-inspector of the traffic department, H.L. Singh (“Lalbazar sets a cop to catch a cop”, March 13)? While most policemen succeed in getting away with it, Singh was caught red-handed accepting Rs 2000.

Singh admitted that his share in such “catches” was a paltry Rs 400, while the rest went to senior police officers. Fair enough. How else would it be difficult for the bribe takers to survive in the midst of a hostile environment of vigilants, special branch, their own colleagues and a host of other adversaries. It is a well acknowledged fact that bribing is an “essential” part of the functioning of the police department.

It is also known that such operations cannot take place in the absence of support from senior bosses, and other influential staff of the department. This is a quid pro quo affair. Naturally, there is no prosecution or punishment, except in a few exceptional cases. This explains the amazing ingenuity in doing evil in this country, take the example of the invigilators of the Madhyamik examination centre at Kendua Mahendranath High School in south Calcutta who demanded Rs 15 from each examinee as tiffin allowance (“Invigilators ask for tiffin money from examinees”, March 10). Surely, nothing can be more striking.

Yours faithfully,
Som Dutt,

Sir — The picture of teachers injured in a lathicharge near Raj Bhavan was shocking and gruesome (“Bleeding teachers battle for Basu’s ears”, March 28). That these teachers were beaten up merely because they demanded regular pensions, the introduction of English from class I and the regular supply of school text books and uniforms for school children makes the whole thing beyond comprehension.

It is an unforgivable offence by the lathi-charging policemen to injure teachers, who were out on the streets making legitimate demands. This is a shameful episode in the chronicles of the administration of law and order in the state by the police department.

Yours faithfully,
Prasanta Kumar Ghosh,

Sir — The news report, “Buddha bows to probe demand”,(March 31), in which the police chief has been asked to hold an inquiry into the disgraceful incident of a lathicharge on school teachers appears ludicrous. After all, any “inquiry” undertaken by the police department will be biased. The propensity of the report will always be to defend policemen if the inquiry is conducted by the police themselves.

Given the politicization and inefficiency in the force, it is naive to expect that an unbiased and honest report will come from the police in the state. Such probes are thus merely farcical. Only investigations conducted by independent authorities might be expected to reveal the real truth.

Yours faithfully,
Shabbir Ahmed,
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