Daily News Simplified - DNS

17 MAY 2021
Notes
SL. THE HINDU
TOPICS
NO. PAGE NO.

1 Using all options 06

2 It is getting from bad to worse for women workers 06

3 The road from Ladakh is paved with disruptions 06

4 Restructuring the tribunals system 07

Date: 17-May-21 DNS Notes - Revision

1. UPSC Current Affairs: Using all options | Page – 06

UPSC Syllabus: GS Paper III- Economy
Sub Theme: Compulsory Licensing | UPSC

Context: The editorial highlights that India has rightly sought (along with South Africa) a temporary waiver
of provisions in the TRIPS Agreement to facilitate universal access to COVID-19 vaccines. But the Centre
has done nothing to bring vaccines and medicines under a statutory regime in India to allow for wider
availability and a diversity of options. In fact, the Centre’s submission to the Supreme Court that the
“exercise of statutory powers... under the Patents Act, 1970 can only prove to be counter-productive at
this stage”, is clearly contradictory to its international position for a temporary waiver in the TRIPS
Agreement. The Agreement allows exceptions to the rights of patent owners by grant of compulsory
licences. So, on this note let us understand about Compulsory Licenses and about its waiver under TRIPS
Agreement. According to Section 53 of Indian Patents Act, 1970, the term of patent shall be twenty years
from the date of filing of the application for the patent.
What does a patent grant?
• Patent grants exclusive right for an invention which may be of a product or a process for 20 years.
Patent is granted for –
ü inventions which is new,
ü involves an inventive step which did not exist before
ü Such thing has not existed before and
ü has industrial applications.
• When patent is granted on a particular invention, it means that no other person can either produce
or sell for commercial purpose those inventions in the market without the approval of the creator
of such invention.
• India grants legal protection to various inventions through Indian Patents Act, 1970.
• Thus, if patent is granted to a Company ABC for one its pharmaceutical product XYZ, then no other
company can produce the medicine XYZ without due permission from ABC for 20 years.

Compulsory Licenses under Indian Patent Act, 1970 (Section 84 & 92)
• Patents are granted to encourage inventions and to secure that the inventions are worked in India
on a commercial scale under Indian Patent Act, 1970.
• However, patents granted do not in any way prohibit Central Government in taking measures to
protect public health. Section 84 of Indian Patents Act, 1970 provides for “Compulsory Licencing.”
(CL)

Grounds to allow Compulsory Licencing (Section 84)

a) that the reasonable requirements of the public with respect to the patented invention have not
been satisfied, or
b) that the patented invention is not available to the public at a reasonably affordable price, or
c) that the patented invention is not worked in the territory of India.

In considering the application field under section for compulsory licensing, the Controller shall
take into account:
(i) the nature of the invention, the time which has elapsed since the sealing of the patent and the
measures already taken by the patentee or any licensee to make full use of the invention.
(ii) the ability of the applicant to work the invention to the public advantage.
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(iii) the capacity of the applicant to undertake the risk in providing capital and working the invention, if
the application were granted.
(iv) as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable
terms and conditions and such efforts have not been successful within a reasonable period as the
Controller may deem fit.

Section 92 - Special provision for compulsory licences on notifications by Central Government

• If the Central Government is satisfied, in respect of any patent in force in circumstances of
national emergency or in circumstances of extreme urgency or in case of public noncommercial
use, that it is necessary that compulsory licenses should be granted at any time after the sealing
thereof to work the invention, it may make a declaration to that effect, by notification in the
Official Gazette, and thereupon the following provisions shall have effect, that is to say—
(i) the Controller shall on application made at any time after the notification by any person
interested, grant to the applicant a licence under the patent on such terms and conditions
as he thinks fit.
(ii) in settling the terms and conditions of a licence granted under this section, the Controller
shall endeavour to secure that the articles manufactured under the patent shall be
available to the public at the lowest prices consistent with the patentees deriving a
reasonable advantage from their patent rights.
• Where the Controller is satisfied on consideration of the application for compulsory license, that it
is necessary in:
(i) a circumstance of national emergency; or
(ii) a circumstance of extreme urgency; or
(iii) a case of public non-commercial use, which may arise or is required, as the case may be,
including public health crises, relating to Acquired Immuno Deficiency Syndrome, Human
Immuno Deficiency Virus, tuberculosis, malaria or other epidemics, he shall not apply any
procedure (specified in section 87) in relation to that application for grant of compulsory
licence.

Section 94 - Termination of compulsory licence

1. On an application made by the patentee or any other person deriving title or interest in the
patent, a compulsory licence granted under section 84 may be terminated by the controller, if and
when the circumstances that gave rise to the grant thereof no longer exist and such circumstances
are unlikely to recur:
Provided that the holder of the compulsory licence shall have the right to object to such
termination.
2. While considering an application for revocation of CL, the Controller shall take into account that
the interest of the person who had previously been granted the licence is not unduly prejudiced.

Section 100 - Power of Central Government to use inventions for purposes of Government
• Allows the Centre to license specific companies to manufacture the vaccines.

Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement allows Compulsory
Licensing
• The TRIPS Agreement allows the use of compulsory licences. Compulsory licensing enables a
competent government authority to license the use of a patented invention to a third party or
government agency without the consent of the patent-holder.
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• Article 31 of the Agreement sets forth a number of conditions for the granting of compulsory
licences. These include:
v a case-by-case determination of compulsory licence applications,
v the need to demonstrate prior (unsuccessful) negotiations with the patent owner for a
voluntary licence and
v the payment of adequate remuneration to the patent holder.
• Where compulsory licences are granted to address a national emergency or other
circumstances of extreme urgency - certain requirements are waived in order to hasten the
process, such as that for the need to have had prior negotiations obtain a voluntary licence from
the patent holder.
• Although the Agreement refers to some of the possible grounds (such as emergency and
anticompetitive practices) for issuing compulsory licences, it leaves Members full freedom to
stipulate other grounds, such as those related to non-working of patents, public health or public
interest.
• The Doha Declaration states that each Member has the right to grant compulsory licences and
the freedom to determine the grounds upon which such licences are granted.
• The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) also allows for
compulsory licencing of drugs to produce generic version of life saving drugs required to meet
public health challenges.
• Thus CL effectively allows countries to overcome the restriction imposed by patent and make the
drugs available at lower price.
• Under CL, government can allow other countries to make, use, sell or import a product under
patent without the permission of the patent owner.

Steps which Central Government can take during national emergency or health crisis for
Compulsory Licence
• In India, the patent regime is governed by the Patents Act, 1970, Section 92 of which envisages the
grant of a compulsory license, in circumstances of national emergency and extreme urgency.
• Once a declaration of national emergency is made, and the relevant patents notified, any person
interested in manufacturing the drug can make an application to the Controller General of Patents
who can then issue a compulsory license.
• The patentee would be paid a reasonable royalty as fixed by the Controller General of Patents.
• Further, under Section 100 of the Patents Act, the Central Government can authorize certain
companies to use any patents for the “purpose of the government”.
• Indian companies can begin manufacturing the drugs while negotiating the royalties with the
patentees.
• If the Central Government or its authorized company is not able to reach an agreement with the
patentee, the High Court has to fix the reasonable royalty that is to be paid to the patentee.
• Another alternative is for the Central Government to acquire the patents under Section 102 from
the patentees.
• If the Central Government and the patentee is not able to reach a consensus on the price of the
patents, it is up to the High Court to fix the royalty.
• Additionally, under Section 66 of the Patents Act, the Central Government is also entitled to revoke
a patent in the public interest.
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• The utilization of these flexibilities has also been detailed in the Trade Related Aspects of
Intellectual Property Rights Agreement as well.

Response of the Central Govt. in Supreme Court

• Whether and if so, the extent to which the provisions of TRIPS and Indian Patent Act, 1970 should
be utilized is a policy decision for the Central Government.
• The Central Government have only outlined the legal framework within which the Central
Government can possibly consider compulsory licensing and government acquisition of patents.
• The Central Government is free to choose any other course of action that it deems fit to tackle the
issue of vaccine requirements in an equitable and expedient manner, which may involve
negotiations with domestic and foreign producers of vaccines.
• We clarify that it is up to the Central Government to choose the best possible measures it can
undertake during the current crisis keeping in mind that public interest is of paramount
importance.
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2. UPSC Current Affairs: It is getting from bad to worse for women workers Page 06
UPSC Syllabus: Mains GS paper 2 : Social Issues
Sub Theme: Women Employment | UPSC

Context:
The year 2020 marked the 25th anniversary the adoption of Beijing Declaration and Platform for Action for the
women empowerment across the world. The empowerment of women is multi-faceted in nature and includes higher
economic, socio-cultural and political rights for the women. In a nutshell, it requires coordinated set of policies that
lead to “Engendering of Development”.

However, the CoVID-19 pandemic has disproportionately affected women in comparison to men. On one hand, a
large number of women have lost their jobs and livelihoods, while on the other hand, the burden of household
responsibilities has increased.

In this regard, Centre for Sustainable Employment, Azim Premji University has published a report titled ‘State of
Working India 2021: One Year of Covid-19” to analyse impact of CoVID-19 on the women employment. The facts
and figures published in the report are not important from the perspective of the UPSC Exam. But, from the
perspective of UPSC exam, the following dimensions would be important:
• Status of Women's Participation in Work force
• Trends in Labour Force Participation Rate (LFPR)
• Reasons for decline in female LFPR
• Effect of Pandemic on Women

UPSC Mains Essay 2016

” If development is not engendered, it is endangered”

Status of Women's Participation in Workforce

The World Economic Forum’s Global Gender Gap Report 2021 ranks India at 140 among 156 countries in terms of
women’s economic participation and opportunity. Similarly, women are paid far lower wages as compared as men.
It is evident in 2019 Oxfam report which highlighted that gender wage gap for India is highest in Asia.
Further, majority of women are employed in informal sector wherein they do not have access to minimum wages or
the social security benefits. For example, agriculture sector employs almost 60% of women who work as agricultural
labourers without any form of guaranteed minimum wages.
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Important Observations:
• Labour Force Participation Rate in 2017-18: Total- 49.8%; Male- 75%; Female- 25.3%.
• Female LPFR in Rural Areas (26.6%) higher as compared to Urban Areas (22.3%)
• Decline in the total Female LPFR from 45.2% in 1993-94 to 25.3% in 2017-18.
• Decline in Female LPFR sharper in Rural areas (from 52% in 1993-94 to 26.6% in 2017-18) as compared to Urban
areas (from 25.1% in 1993-94 to 22.3% in 2017-18).

Reasons for decline in Female LFPR

SUPPLY SIDE DEMAND SIDE

• Higher Enrolment of Females in higher • Structural Transformation: Decline in agriculture not

Educational Institutions.
• More number of Women opting for Household
duties due to increase in household incomes. •
• Cultural factors- Social Constraints and •
Patriarchal norms.
accompanied by creation of jobs for women in other
sectors.
Decline in Labour Intensive Industries in Urban areas.
Significant wage gap between males and females

How has lockdown adversely affected Female Work Participation?

Lower Employment: According to the Centre for Monitoring Indian Economy (CMIE), almost 80% of the working
women were affected due to lockdown in comparison to 60% of the men. Similarly, 47% of employed women who
had lost jobs during the lockdown, had not returned to work. The equivalent number for men was only 7%.
Increased Household Burden: With schools closed and almost everyone limited to the confines of their homes,
household responsibilities have increased for women. Married women and women from larger households are less
likely to return to work

Way forward
Proper implementation of Labour Laws: The Indian Parliament has recently passed the 3 labour codes to simplify
the labour laws, reduce the compliance burden and boost employment creation. Going forward, there is a need to
include provisions to reduce the gender wage gap and improve conditions of work for women. For instance, the
Labour Codes allow women to work in the night shifts. However, it does not place much emphasis on ensuring their
safety at workforce or fixing the responsibility on the management. Hence, there is need to incorporate gender
sensitive policies and rules in our Labour Codes to improve the conditions of work for women, reduce the gender
wage gap and boost female participation.
Other measures include:
• Expansion of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) to provide for
more employment opportunities for women.
• Introduction of an urban employment guarantee programme in the urban areas on lines of MGNREGA
• Systematically address the demand and supply side constraints to improve female LFPR.
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• Adequate investment in social infrastructure such as Education, Health, Housing, Child care, Elderly care etc.
This would lead to creation of more employment opportunities for the women and at the same time reduce
their household burden.
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3. UPSC Current Affairs: The road from Ladakh is paved with disruptions I Page 06
UPSC Syllabus: GS paper 2 : International Relations
Sub Theme: India-China| UPSC

Disengagement:
Since Galwan stand off last year, India and china have been engaged in series of Military-Diplomatic talks
to arrive at a plan for complete disengagement of troops across the border. Both china and India agreed
on a five-point course of action to disengage and reduce tensions along the Line of Actual Control (LAC)
ü Not allowing differences to become disputes
ü continue their dialogue, quickly disengage, maintain proper distance and ease
tensions
ü Abiding by the existing India-China border protocols and avoiding escalatory action
ü continue to have dialogue and communication through the Special Representative
mechanism on the India-China boundary question
ü Confidence Building Measures to maintain and enhance peace and tranquility in the
border areas

As a result, Chinese withdrew their troops from the North and South banks of Pangong tso lake
Problem resolved?
l Disengagement at pangong tso was only a first small step. Standoff still persists at other locations -
Depsang Plains, Demchok and Gogra-Hot spring region

l Buffer zones were created as part of disengagement process but these buffer zones lie majorly on
the Indian side of LAC, thus converting a hitherto Indian controlled territory into a neutral zone. These
Buffer zones can provide only temporary relief but not permanent solution
l India is also concerned about Chinese activity in the disputed eastern sector- Sikkim and Arunachal
Pradesh

Mutual delineation of LAC is the only long-term solution to the border dispute between India and China.
However, India-china issues are beyond the border domain
Issues in other areas:
• China actively encroaching on India’s sphere of Influence in South Asia and Indian ocean
• China blocking India’s ambitions for permanent membership in UNSC (United Nations Security
Council) and entry into NSG (Nuclear Suppliers Group)
• Chinese state sponsored hackers attacking critical Infrastructure of India
Ex: cyber-attacks on Maharashtra power grid
• Huge Trade deficit for India with China (around $50 bn)

Vaccine Maitri and China:

l New Delhi has been able to overtake China in terms of influence in South Asia, Indian ocean Island
nations and African continent through Vaccine Diplomacy
But India failed to continue the vaccine supply due to vaccine shortge in India during second
wave. China filled the void and supplied vaccines to Nepal, Bangaladesh, Srlanka and Pakistan

QUAD Shaping India’s Post COVID foreign Policy?

India enhanced its engagement with QUAD countries beyond the security realm. Examples:
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l QUAD joint Vaccine Intitiative- India-US-Japan-Australia at its maiden summit decided to build a first-
of-its-kind joint vaccine supply chain to address the current and any future pandemic situations in the
Indo-Pacific region

l Line of actual Control(LAC) and concerns regarding Chinese cyber attacks were discussed in first
QUAD leadership summit

l Supply Chain Resilience Intitiative - As COVID-19 threatening supply chains, Japan, Australia and India
launched Supply chain resilience inititative recently

However, QUAD is not a pancea to contain China. India should bilaterally resolve the disputes with China
to have peace at border and for economic growth as well.
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4. UPSC Current Affairs: Restructuring the tribunals system I Page 07

Date: 17-May-21 DNS Notes - Revision

UPSC Syllabus: GS paper 2 : Polity and Governance

Sub Theme: Tribunals| UPSC

Context: The Centre has abolished several appellate tribunals and authorities and transferred their
jurisdiction to other existing judicial bodies through the Tribunals Reforms (Rationalisation and Conditions
of Service) Ordinance 2021. This Ordinance has been challenged in the Supreme Court.
What has been changed through the Ordinance?

• The Ordinance amends various Acts and has replaced the word “Tribunal” with High Court, Central Government or
other authority for different legislations.
• The Finance Act, 2017 empowered the central government to notify rules on:
(i) qualifications of members of tribunals,
(ii) terms and conditions of their service, and
(iii) composition of search cum selection committees for 19 tribunals (such as the Customs, Excise, and Service
Tax Appellate Tribunals).
• The 2021 Ordinance amends the 2017 Act to include provisions related to the composition of search-cum-
selection committees and term of office of tribunal members in the Act itself.

Transfer of functions of key appellate bodies as proposed under the Ordinance

Acts (Legislations) Present Appellate Proposed Entity to which authority is Transferred

Body

The Cinematograph Act, High Court

1952 Appellate Tribunal

The Trade Marks Act, Appellate Board High Court

1999
The Copyright Act, 1957 Appellate Board Commercial Court or the Commercial Division of a High
Court
The Customs Act, 1962 Authority for Advance High Court
Rulings
The Patents Act, 1970 Appellate Board High Court
The Airports Authority of Airport Appellate Central government, for disputes arising from the
India Act, 1994 Tribunal disposal of properties left on airport premises by
unauthorised occupants.

High Court, for appeals against orders of an eviction

officer.

The Control of National The Airport Appellate Civil Court

Highways (Land and Tribunal
Traffic) Act, 2002
The Geographical Appellate Board High Court
Indications of Goods
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(Registration and
Protection) Act, 1999

Criticisms:
• Bypassing the legislative process to avoid discussion in Parliament.
• Despite the Supreme Court’s direction in Rojer Mathew v. South Indian Bank (2019), no judicial
impact assessment was conducted prior to abolishing the tribunals through this Ordinance.
• Fixed tenure of Chairpersons of Tribunals as ruled in Madras Bar Association v. Union of India
(2020) judgment disregarded.
• Centre is yet to constitute a National Tribunals Commission (NTC), an independent umbrella body to
supervise the functioning of tribunals, appointment of and disciplinary proceedings against members,
and to take care of administrative and infrastructural needs of the tribunals. The idea of an NTC was
first mooted in L. Chandra Kumar v. Union of India (1997), but it has still not seen the light of day.

Why National Tribunals Commission (NTC) needs to be established?

• In India, executive interference in the functioning of tribunals is often seen in matters of
appointment and removal of tribunal members, as well as in provision of finances, infrastructure,
personnel and other resources required for day-to-day functioning of the tribunals.
• Therefore, the NTC must be established vide a constitutional amendment or be backed by a
statute that guarantees it functional, operational and financial independence.
• Establishment of NTC will provide an authority to support uniform administration across all
tribunals.
• The NTC could therefore pave the way for the separation of the administrative and judicial
functions carried out by various tribunals.
• A ‘corporatised’ structure of NTC with a Board, a CEO and a Secretariat will allow it to scale up its
services and provide requisite administrative support to all tribunals across the country.

Duties which NTC can take up?

• The NTC would ideally take on some duties relating to administration and oversight. It could set
performance standards for the efficiency of tribunals and their own administrative processes.
• NTC can also function as an independent recruitment body to develop and operationalise the
procedure for disciplinary proceedings and appointment of tribunal members.
• Giving the NTC the authority to set members’ salaries, allowances, and other service conditions,
subject to regulations, would help maintain tribunals’ independence.
• Administrative roles of the NTC include providing support services to tribunal members, litigants,
and their lawyers. For this purpose, it would need to be able to hire and supervise administrative
staff, and to consolidate, improve, and modernise tribunals’ infrastructure.

Way Forward
• Until the NTC is constituted, Ministry of Finance should come up with a transition plan.
• The way to reform the tribunal system is to look at solutions from a systemic perspective
supported by evidence.
• Establishing the NTC will definitely entail a radical restructuring of the present tribunals system.