This is a bit dated, but recent posts and discussions on this blog have reminded me of the relevance of some of the ideas mentioned by Jack Balkin, who teaches at Yale Law School, and has been an early advocate of law blogs and the use of technology to advance legal knowledge and discussions. Though commenting on the phenomenon as it exists in the U.S., some of his thoughts are applicable to a broader context. I am including some of his quotes from an interview with the Yale Law Report here, but the entire interview makes for interesting reading.
"YLR: How is legal blogging changing legal discussion and legal education?
Balkin: Blogging changes the relationship between law professors and their audiences because professors can reach more people. It changes the relationship between law professors and journalists because law professors don’t need journalists to get their ideas out to the broader public; conversely, blogging makes it easier for journalists to find the right experts to interview. It changes the timing and pace of legal scholarship because law professors can talk about cases the day they come down, driving the discussion forward in a very short time rather than through a series of law review articles that may take years to appear. Just as the Internet collapses the news cycle, it also collapses the publication and discussion cycle. It produces a type of legal writing that is more journalistic, more personal, and more driven by current events.
Compared with traditional legal scholarship, blogging produces a different combination of analysis and opinion. The conversation is more informal, and it progresses very quickly. People also use sources differently: they cite to supporting information or authorities by linking to them, so that you can see the evidence for yourself.
... ... ... This is the first generation of law students who are going to law school after the rise of the blogosphere. If you went to law school a few years ago, you were totally immersed in the experience of a single law school, and your professors (and the law library) were the main sources of expertise. Now law students can hear legal opinions from law professors and their fellow students around the country-- and around the world-- on almost any topic they desire. The blogosphere becomes part of your legal education. That didn’t really exist before.
... Blogging is both a way of participating in the Internet and a way of learning about it. I have learned more about how the Internet affects public discourse from being a blogger than I would ever have learned from reading what other people had to say about it. There’s no substitute for participating in the medium if you want to understand what the medium does: how it affects your relationships with other people; how it affects the work and the status of law academics; how it affects the dissemination of legal ideas throughout society; how it changes the law professor’s calling; how it changes the nature of legal education. It’s much easier to see what’s happening from a blogger’s perspective.
... The blogosphere not only routes around the traditional mass media, it also gloms onto it, commenting on it and criticizing it. Conversely, the traditional mass media increasingly turn to the blogosphere for fresh content, and it’s no accident that newspapers and magazines are becoming more interactive in their online versions and even starting their own blogs. The shape and structure of the public sphere is being transformed by the blogosphere."
Wednesday, February 28, 2007
National Judicial Council Bill
Abhishek Singhvi, senior advocate in the Supreme Court, and the Congress-I spokesperson, writes a column in Hindustan times, called candid corner. Today's piece, Judges in law, deals with the National Judicial Council Bill, presently being considered by the Parliamentary Standing Committee. In his piece, he justifies the Bill, as it does not require a Constitutional amendment, even though he admits it falls short of expectations in the civil society for a more broad-based body in charge of appointments, transfers, discipline and removal of Judges of Higher Judiciary. A Constitutional amendment, according to him, has certain difficulties. These include a fractured polity, and fragmented consensus, which he says, would make a constitutional amendment an exercise in eternity.
Singhvi's thesis that a broadbased commission with political and other elements external to judicial family as its members would be in conflict with judicial independence is debatable. There are several examples across the world (in vibrant democracies, not banana republics) where such broadbased commissions exist, but is not at odds with independence of judiciary.
But the more important issue is this: If he agrees that the status quo is unsatisfactory, and the brahmastra of impeachment has to be made usable rather than rendered dormant as it has been all these years, then a Constitutional amendment is inevitable. And why he is shying away from a Constitutional amendment? A fractured polity and a fragmented consensus are not the issues which are likely to come in the way of a Constitutional amendment on this issue. Today, there exists a wide political consensus across the spectrum. Look at NJC proposal. This was promised by all the parties in their election manifestos - including the BJP and the Left Parties, and the Congress. There may be differences in degrees about its composition, but the parties are not divided on the question of reforming the existing method of appointing and transferring Judges, legitimised in favour of Judiciary with primacy to the Chief Justice of India. No doubt, the present system of impeaching Judges failed in the case of Justice Ramaswami in 1993 because of lack of political will, as the Congress chose to abstain during the crucial vote in Parliament. That in fact reveals the flaw of the existing system of impeachment. The answer, therefore, lies in reforming the system, rather than blame the players. A Constitutional amendment, therefore, would not fail because of fractured polity and a fragmented consensus. Today, the entire political class wants to limit the scope of judicial activism, and frequent judicial aberrations. Where is the question of parties opposing such a key reform aiming to put judiciary in its place?
Singhvi's thesis that a broadbased commission with political and other elements external to judicial family as its members would be in conflict with judicial independence is debatable. There are several examples across the world (in vibrant democracies, not banana republics) where such broadbased commissions exist, but is not at odds with independence of judiciary.
But the more important issue is this: If he agrees that the status quo is unsatisfactory, and the brahmastra of impeachment has to be made usable rather than rendered dormant as it has been all these years, then a Constitutional amendment is inevitable. And why he is shying away from a Constitutional amendment? A fractured polity and a fragmented consensus are not the issues which are likely to come in the way of a Constitutional amendment on this issue. Today, there exists a wide political consensus across the spectrum. Look at NJC proposal. This was promised by all the parties in their election manifestos - including the BJP and the Left Parties, and the Congress. There may be differences in degrees about its composition, but the parties are not divided on the question of reforming the existing method of appointing and transferring Judges, legitimised in favour of Judiciary with primacy to the Chief Justice of India. No doubt, the present system of impeaching Judges failed in the case of Justice Ramaswami in 1993 because of lack of political will, as the Congress chose to abstain during the crucial vote in Parliament. That in fact reveals the flaw of the existing system of impeachment. The answer, therefore, lies in reforming the system, rather than blame the players. A Constitutional amendment, therefore, would not fail because of fractured polity and a fragmented consensus. Today, the entire political class wants to limit the scope of judicial activism, and frequent judicial aberrations. Where is the question of parties opposing such a key reform aiming to put judiciary in its place?
Latest expose on Mashelkar
Today's Times of India carries the latest expose by Manoj Mitta on Mashelkar. The previous 'victim' says Mashelkar is irresponsible, if not dishonest. I would like to know Shamnad Basheer's comment.
Sunday, February 25, 2007
Criminalisation of Politics: Latest initiative of the Supreme Court and the case for invoking Article 356 in U.P.
Last week, the Supreme Court referred a PIL seeking to prevent 'tainted' Ministers (i.e. those who have a criminal background) to a Constitution Bench, and also directed individual state governments to compile and submit reports to the Court on the issue. Yesterday's Indian Express carries a detailed story about the case, which contain interesting facts, including the following:
"In the ruling UPA, 15 Congress MPs, 10 from the RJD and five NCP MPs have cases against their names. The Opposition is no better: of the NDA’s 37 MPs with criminal antecedents, 26 come from the BJP. The Samajwadi Party and BSP too have 18 such MPs."
The Express piece focuses on the following issues (it is not clear if these are the actual questions that have been referred to the Constitution Bench):
"* Is there a constitutional convention that a minister charged with commission of serious offence by a court should resign
* Does it follow that people charged by courts cannot be appointed as ministers?
* Should the president or governor have a residuary power to act in their discretion and advise the prime minister or chief minister to sack such a minister? Can the president or governor refuse oath to such a minister?
* Are the president and prime minister obligated by their oath of office not to appoint chargesheeted ministers?
* Not guilty unless proved, so if a person is only accused, does it make him eligible to be appointed as minister or on other offices under the Constitution?
* Do the provisions of the Representation of Peoples Act 1951 apply only to members of Houses or do they also apply to appointment of ministers when the charge is not a criminal charge?
* Would setting down of such parameters amount to interfering with parliamentary prerogative?
* Does the PM’s or CM’s discretion to appoint ministers prevent the court from deciding if somebody should be appointed?"
Since the Supreme Court is now deciding Constitution Bench cases quite quickly (as opposed to the practice a few years ago, when referring a case to a C.B. was an effective delaying tactic), the case promises to be yet another of those decisions which will have an immediate impact on the playing out of everyday politics.
The facts that lie at the heart of this case are also important for setting the context against which one must understand Jayanthi Natarajan's impassioned Op-Ed in today's Indian Express, where she espouses the "moral case" for invoking Article 356 against the Mulayam Singh government. She argues:
"There has been a complete breakdown of governance and law and order in UP, over a period of time. Nithari was possibly the lowest depth to which democracy could degenerate. The lack of remorse shown by the state government, the collusion and cynical indifference displayed by the state police and the overwhelming helplessness of the victims’ families are vignettes of government failure. They constitute a blot on the record of our democratic polity. Until the bitter end, the chief minister did not step into Nithari village to condole with the bereaved families. On the contrary, evidence was tampered with, and records allegedly destroyed in order to cover up the collusion of highly placed persons and officials. The truth will never be known now.
The communal violence at Gorakhpur, the alleged involvement of cabinet ministers in murder cases such as the current Kavita Rani case, are all but the latest manifestations of the systemic rot that had permeated the state."
While her overall argument is persuasive enough, the medium she has chosen allows her to ignore some inconvenient facts and questions about the Congress' complicit conduct in the series of acts that she details. Her colleague - and fellow-advocate of invoking Article 356 in U.P. - Kapil Sibal had to confront those questions in an interview published in Sunday's Indian Express:
"COOMI KAPOOR: Your party has been supporting this government for three-and-a-half years. Why?
This has been asked a number of times. This matter was raised on September 4, 2003. People met the Governor in August 2003, and the first petition was filed on September 5, 2003. Even the writ was in 2003. The judgment came in February 14, 2007. How can I take a public position on the issue that hasn’t been proved by court, which is pending with them? And even if I say it is illegal, assuming I withdraw the support mid-term, what happens to Mulayam’s government? It makes no difference to Mulayam’s government at all unless the court and the institutions act in accordance to the Constitution. I cannot take a political stand on it even, because they will say who are you to say it is invalid. What did the other side do last time? I have already given you the background to that. The problem in this country is that when the institutions do not discharge their constitutional functions the Constitution gets subverted.
MANINI CHATTERJEE: But even if you had an inkling that the government is illegal, you should not have supported it.
You asked for my personal opinion I have given you that¿ politically there are other considerations to be taken. You asked for my personal opinion, you did not ask for the Congress party’s decision to support Mulayam’s government. The party’s support or non-support is based on political considerations over and above this. In my answer, I am giving you the Constitutional basis of my stand. There can be no doubt, objection or opposition to this, if there is, I would like to invite them to challenge the basis of my stand. In your hearts you know that Mulayam Singh’s government has little Constitutional basis to continue. Then why should Article 356 not be imposed? That is a decision the party has to take and I am nobody as an individual minister to oppose that.
PAMELA PHILLIPOSE: Isn’t the problem the lack of credibility of the Congress party, given its various experiments with this Article.
Luckily, you cannot have Article 356 in the Central Government. It’s not an issue, I am talking about the underlying Constitutional principle. I am not talking about politics here. If you want to talk politics, we can talk politics, but that’s a separate issue. Which political party has credibility in this area? BJP tried this with Lalu, BJP supported Narendra Modi, and when we said we didn’t think this government should be in power in Gujarat, BJP said that was all politics. Let’s be very clear when we talk about credibility: it’s a common thread that runs through all parties. But we are talking about Mulayam Singh, and Constitutionally it would have been right."
Given these troubling facts (the high number of criminal-politicians in every major political grouping, and the abuse of Article 356 irrespective of which party is in power), politicians who seek to adopt the high moral ground on these issues should think about how, by doing so, they set themselves up for the obvious charge of hypocrisy, or worse. Arguments hinging on "morality" don't sound very persuasive when raised by people who turn a blind eye to moral concerns when it suits their interests.
"In the ruling UPA, 15 Congress MPs, 10 from the RJD and five NCP MPs have cases against their names. The Opposition is no better: of the NDA’s 37 MPs with criminal antecedents, 26 come from the BJP. The Samajwadi Party and BSP too have 18 such MPs."
The Express piece focuses on the following issues (it is not clear if these are the actual questions that have been referred to the Constitution Bench):
"* Is there a constitutional convention that a minister charged with commission of serious offence by a court should resign
* Does it follow that people charged by courts cannot be appointed as ministers?
* Should the president or governor have a residuary power to act in their discretion and advise the prime minister or chief minister to sack such a minister? Can the president or governor refuse oath to such a minister?
* Are the president and prime minister obligated by their oath of office not to appoint chargesheeted ministers?
* Not guilty unless proved, so if a person is only accused, does it make him eligible to be appointed as minister or on other offices under the Constitution?
* Do the provisions of the Representation of Peoples Act 1951 apply only to members of Houses or do they also apply to appointment of ministers when the charge is not a criminal charge?
* Would setting down of such parameters amount to interfering with parliamentary prerogative?
* Does the PM’s or CM’s discretion to appoint ministers prevent the court from deciding if somebody should be appointed?"
Since the Supreme Court is now deciding Constitution Bench cases quite quickly (as opposed to the practice a few years ago, when referring a case to a C.B. was an effective delaying tactic), the case promises to be yet another of those decisions which will have an immediate impact on the playing out of everyday politics.
The facts that lie at the heart of this case are also important for setting the context against which one must understand Jayanthi Natarajan's impassioned Op-Ed in today's Indian Express, where she espouses the "moral case" for invoking Article 356 against the Mulayam Singh government. She argues:
"There has been a complete breakdown of governance and law and order in UP, over a period of time. Nithari was possibly the lowest depth to which democracy could degenerate. The lack of remorse shown by the state government, the collusion and cynical indifference displayed by the state police and the overwhelming helplessness of the victims’ families are vignettes of government failure. They constitute a blot on the record of our democratic polity. Until the bitter end, the chief minister did not step into Nithari village to condole with the bereaved families. On the contrary, evidence was tampered with, and records allegedly destroyed in order to cover up the collusion of highly placed persons and officials. The truth will never be known now.
The communal violence at Gorakhpur, the alleged involvement of cabinet ministers in murder cases such as the current Kavita Rani case, are all but the latest manifestations of the systemic rot that had permeated the state."
While her overall argument is persuasive enough, the medium she has chosen allows her to ignore some inconvenient facts and questions about the Congress' complicit conduct in the series of acts that she details. Her colleague - and fellow-advocate of invoking Article 356 in U.P. - Kapil Sibal had to confront those questions in an interview published in Sunday's Indian Express:
"COOMI KAPOOR: Your party has been supporting this government for three-and-a-half years. Why?
This has been asked a number of times. This matter was raised on September 4, 2003. People met the Governor in August 2003, and the first petition was filed on September 5, 2003. Even the writ was in 2003. The judgment came in February 14, 2007. How can I take a public position on the issue that hasn’t been proved by court, which is pending with them? And even if I say it is illegal, assuming I withdraw the support mid-term, what happens to Mulayam’s government? It makes no difference to Mulayam’s government at all unless the court and the institutions act in accordance to the Constitution. I cannot take a political stand on it even, because they will say who are you to say it is invalid. What did the other side do last time? I have already given you the background to that. The problem in this country is that when the institutions do not discharge their constitutional functions the Constitution gets subverted.
MANINI CHATTERJEE: But even if you had an inkling that the government is illegal, you should not have supported it.
You asked for my personal opinion I have given you that¿ politically there are other considerations to be taken. You asked for my personal opinion, you did not ask for the Congress party’s decision to support Mulayam’s government. The party’s support or non-support is based on political considerations over and above this. In my answer, I am giving you the Constitutional basis of my stand. There can be no doubt, objection or opposition to this, if there is, I would like to invite them to challenge the basis of my stand. In your hearts you know that Mulayam Singh’s government has little Constitutional basis to continue. Then why should Article 356 not be imposed? That is a decision the party has to take and I am nobody as an individual minister to oppose that.
PAMELA PHILLIPOSE: Isn’t the problem the lack of credibility of the Congress party, given its various experiments with this Article.
Luckily, you cannot have Article 356 in the Central Government. It’s not an issue, I am talking about the underlying Constitutional principle. I am not talking about politics here. If you want to talk politics, we can talk politics, but that’s a separate issue. Which political party has credibility in this area? BJP tried this with Lalu, BJP supported Narendra Modi, and when we said we didn’t think this government should be in power in Gujarat, BJP said that was all politics. Let’s be very clear when we talk about credibility: it’s a common thread that runs through all parties. But we are talking about Mulayam Singh, and Constitutionally it would have been right."
Given these troubling facts (the high number of criminal-politicians in every major political grouping, and the abuse of Article 356 irrespective of which party is in power), politicians who seek to adopt the high moral ground on these issues should think about how, by doing so, they set themselves up for the obvious charge of hypocrisy, or worse. Arguments hinging on "morality" don't sound very persuasive when raised by people who turn a blind eye to moral concerns when it suits their interests.
Deconstructing the Mashelkar Committee Report: Part 1
Coming as I do from the relatively apolitical world of research and academia, the events of the last two weeks have taken me by surprise and left me wondering as to how easy it is for the substantive issues in any debate to get sidelined. I thought I’d reflect on the “real” issues surrounding this controversy once the “name” calling and personal/ad hominem attacks had died down. But it only seems to be getting worse. Friends keep asking me as to why I haven't said anything on my blog yet. I therefore thought this an opportune time to attempt to deconstruct some of the arguments that are being flung around in this controversy.
I wrote a letter to the TOI and Hindu in response to the editorials that first sparked off this controversy and include it below.
Unfortunately, despite more than a week going by, neither of these papers have published this. Fortunately, the DNA carries some of the key points that I'd stated in the respose to the TOI and the Hindu. See http://dnaindia.com/report.asp?NewsID=1081968.
Also, the Hindu Business Line carried my interview where I have tried to clarify some of the factual inaccuracies regarding this debate--see http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm
TO THE EDITOR OF THE TIMES OF INDIA
Dear Sir/Madam:
This refers to your article dated 12 February 2007, titled “Patent Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the Mashelkar Committee Report, the authors have called into question my academic integrity, albeit indirectly. They have also alleged that the Committee “plagiarized” key conclusions from my submission.
I first deal with their charge of plagiarism, since I am the alleged “victim” here. They attempt to substantiate their claim of plagiarism by selectively quoting from my blog. They however omit the most critical part of my blog statement in this regard “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.”
In other words, the Committee did include my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. It bears noting in this regard that the Committee received submissions from a variety of IP stakeholders including industry (Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms (Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired members of the judiciary (Justice Krishna Iyer). Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were borrowed from my report to them. This being so, qualifying their borrowing of some of my conclusions as “plagiarism” is incorrect.
Park and Prabhala may not have intended this, but their writing casts aspersions on my academic integrity. If I understand their argument correctly, it runs something like this:
1. Shamnad Basheer is commissioned to write a paper on certain TRIPS issues for the purpose of submission to the Mashelkar Committee.
2. The paper is commissioned by the Intellectual Property Institute (IPI), with funding from Interpat.
3. Therefore, this paper necessarily reflects the industry position of Interpat.
4. Therefore, Shamnad Basheer exercised no independent judgment, but merely reiterated Interpat’s industry position.
5. The Mashelkar Committee was wrong to rely on the conclusions of a paper that reflects Interpat’s position.
These “leaps of logic’ rest on certain incorrect assumptions:
1. Anything funded by the pharmaceutical industry has to necessarily represent an industry view/position, despite the fact that the person commissioned holds himself out as an objective and independent academic.
2. The IPI is an “industry think-tank” that always resonates industry positions on all issues, despite the fact that its website (http://www.ip-institute.org.uk/) makes clear that is an independent charitable organisation which organises and peer reviews IP research.
3. The Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own, despite the fact that it comprises members who are highly distinguished in their respective fields and known for their integrity.
Most importantly, the Park and Prabhala paper does no more than beg the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Park and Prabhala brush off this rather nuanced issue on TRIPS compatibility with broad statements such as “the report overlooks these (TRIPS) flexibilities—even the judgment of the WTO on this matter”.
Their note omits to explain as to what these “flexibilities” are, or where, in their opinion, the said flexibilities stem from and more importantly, which judgment of the WTO they are relying on—particularly, when there is not “one” but several WTO panel decisions dealing with TRIPS.
Article 27 of TRIPS mandates that patents shall be granted to all “inventions” in all “fields of technology”, provided such inventions are new, non obvious and have utility. Having studied TRIPS in some detail and now teaching it to graduate students at the George Washington University, my own view (as expressed to the Committee in more than 35 pages in a report that is now the subject matter of controversy) is that the term “invention” as used in Article 27 of TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. Were it to be a term “freely” interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. In short, the term invention would be rendered redundant and such a result would fly in the face of a basic tenet of treaty interpretation that is well accepted under international law—that one cannot read a treaty term in a manner as to render it redundant.
Incremental pharmaceutical inventions are very “technical” in nature, and ought to fall within even the lowest common denominator that any sensible reading of the term “invention” would offer. As such, their exclusion from patentability (when the other patentability criteria of novelty, non obviousness and utility are satisfied) is likely to contravene the mandate under Article 27 to grant patents to all “inventions”.
Unfortunately, Park and Prabhala fail to engage with any of these substantive TRIPS issues. They may have had the best of intentions, but what they’ve engaged in amounts to what can at best be described as an adhominem argument which, according to Wikipedia, “consists of replying to an argument by attacking or appealing to the person making the argument, rather than by addressing the substance of the argument. It….. consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument.”
The authors also reference section 3(d), a highly controversial section that is the subject matter of a lawsuit by Novartis in this debate, when the Committee never really speaks about section 3(d) in their report. It bears noting that the Committees mandate was never to examine the TRIPS compatibility of section 3(d) or of any existing provision in the Indian Patents Act and to be fair to them, they never engaged in this exercise.
This being so, it is rather far fetched to allege a “conspiracy” theory, simply because the Mashelkar Committee chose to adopt some of the positions advocated in my paper and to use some of the language from my paper. One has to bear in mind that this Committee was commissioned by the Government to come to a conclusion as independent technical experts. They were entitled to deliberate, seek outside guidance and then come to their own conclusions as they deemed fit. Of course, as I point out in my blog, although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. Park and Prabhala conveniently ignore this not so “waxing jubilant” reception to the Committee Report in my blog.
A “thin analysis”, appears to be their main grudge against the Mashelkar Committee Report. It’s a sheer pity that the authors failed to use this fantastic opportunity (very rarely does one get space in the editorials of two leading newspapers on the same day) to “fatten” their own analysis.
The author is the Frank H Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University law School, where he teaches a course on TRIPS, pharmaceutical patents and public health.
Shamnad Basheer
Frank H Marks Visiting Associate Professor of Law
George Washington University Law School
Washington DC-- 20052
Ph: 001 (202) 957 3442
Email: sbasheer@law.gwu.edu
I wrote a letter to the TOI and Hindu in response to the editorials that first sparked off this controversy and include it below.
Unfortunately, despite more than a week going by, neither of these papers have published this. Fortunately, the DNA carries some of the key points that I'd stated in the respose to the TOI and the Hindu. See http://dnaindia.com/report.asp?NewsID=1081968.
Also, the Hindu Business Line carried my interview where I have tried to clarify some of the factual inaccuracies regarding this debate--see http://www.thehindubusinessline.com/2007/02/24/stories/2007022402940700.htm
TO THE EDITOR OF THE TIMES OF INDIA
Dear Sir/Madam:
This refers to your article dated 12 February 2007, titled “Patent Wrong” by Chan Park and Achal Prabhala. In the process of critiquing the Mashelkar Committee Report, the authors have called into question my academic integrity, albeit indirectly. They have also alleged that the Committee “plagiarized” key conclusions from my submission.
I first deal with their charge of plagiarism, since I am the alleged “victim” here. They attempt to substantiate their claim of plagiarism by selectively quoting from my blog. They however omit the most critical part of my blog statement in this regard “To be fair to the Committee, they did include the crux of my submission in an Annex to their Report.”
In other words, the Committee did include my submission as an Annexure, as they did with every other submission (about 24 in all) that was made to them. It bears noting in this regard that the Committee received submissions from a variety of IP stakeholders including industry (Ranbaxy, Biocon, IPA, IDMA), civil society groups (ALF, MSF), law firms (Lex Orbis, K&S Partners), IP Associations (AIPPI) and even retired members of the judiciary (Justice Krishna Iyer). Those with the patience to read the entire report including the Annexures would have gathered that some of the Committee’s observations were borrowed from my report to them. This being so, qualifying their borrowing of some of my conclusions as “plagiarism” is incorrect.
Park and Prabhala may not have intended this, but their writing casts aspersions on my academic integrity. If I understand their argument correctly, it runs something like this:
1. Shamnad Basheer is commissioned to write a paper on certain TRIPS issues for the purpose of submission to the Mashelkar Committee.
2. The paper is commissioned by the Intellectual Property Institute (IPI), with funding from Interpat.
3. Therefore, this paper necessarily reflects the industry position of Interpat.
4. Therefore, Shamnad Basheer exercised no independent judgment, but merely reiterated Interpat’s industry position.
5. The Mashelkar Committee was wrong to rely on the conclusions of a paper that reflects Interpat’s position.
These “leaps of logic’ rest on certain incorrect assumptions:
1. Anything funded by the pharmaceutical industry has to necessarily represent an industry view/position, despite the fact that the person commissioned holds himself out as an objective and independent academic.
2. The IPI is an “industry think-tank” that always resonates industry positions on all issues, despite the fact that its website (http://www.ip-institute.org.uk/) makes clear that is an independent charitable organisation which organises and peer reviews IP research.
3. The Mashelkar Committee blindly relied on the conclusions of my paper, without exercising any independent judgment of its own, despite the fact that it comprises members who are highly distinguished in their respective fields and known for their integrity.
Most importantly, the Park and Prabhala paper does no more than beg the question: is there something wrong with the analysis of TRIPS undertaken by me and relied on by the Committee? Park and Prabhala brush off this rather nuanced issue on TRIPS compatibility with broad statements such as “the report overlooks these (TRIPS) flexibilities—even the judgment of the WTO on this matter”.
Their note omits to explain as to what these “flexibilities” are, or where, in their opinion, the said flexibilities stem from and more importantly, which judgment of the WTO they are relying on—particularly, when there is not “one” but several WTO panel decisions dealing with TRIPS.
Article 27 of TRIPS mandates that patents shall be granted to all “inventions” in all “fields of technology”, provided such inventions are new, non obvious and have utility. Having studied TRIPS in some detail and now teaching it to graduate students at the George Washington University, my own view (as expressed to the Committee in more than 35 pages in a report that is now the subject matter of controversy) is that the term “invention” as used in Article 27 of TRIPS is to be vested with some basic meaning i.e. at the very least, it denotes something of “technical” import. Were it to be a term “freely” interpretable according to the whims of member states, we could end up with a situation where a member state may argue that it needn’t grant patents at all, since its unique lexicon suggests that nothing ever amounts to an “invention” under Article 27. In short, the term invention would be rendered redundant and such a result would fly in the face of a basic tenet of treaty interpretation that is well accepted under international law—that one cannot read a treaty term in a manner as to render it redundant.
Incremental pharmaceutical inventions are very “technical” in nature, and ought to fall within even the lowest common denominator that any sensible reading of the term “invention” would offer. As such, their exclusion from patentability (when the other patentability criteria of novelty, non obviousness and utility are satisfied) is likely to contravene the mandate under Article 27 to grant patents to all “inventions”.
Unfortunately, Park and Prabhala fail to engage with any of these substantive TRIPS issues. They may have had the best of intentions, but what they’ve engaged in amounts to what can at best be described as an adhominem argument which, according to Wikipedia, “consists of replying to an argument by attacking or appealing to the person making the argument, rather than by addressing the substance of the argument. It….. consists of criticizing or personally attacking an argument's proponent in an attempt to discredit that argument.”
The authors also reference section 3(d), a highly controversial section that is the subject matter of a lawsuit by Novartis in this debate, when the Committee never really speaks about section 3(d) in their report. It bears noting that the Committees mandate was never to examine the TRIPS compatibility of section 3(d) or of any existing provision in the Indian Patents Act and to be fair to them, they never engaged in this exercise.
This being so, it is rather far fetched to allege a “conspiracy” theory, simply because the Mashelkar Committee chose to adopt some of the positions advocated in my paper and to use some of the language from my paper. One has to bear in mind that this Committee was commissioned by the Government to come to a conclusion as independent technical experts. They were entitled to deliberate, seek outside guidance and then come to their own conclusions as they deemed fit. Of course, as I point out in my blog, although they got their conclusions right, the key failing of the Committee is in not demonstrating how they worked through the TRIPS issues/analysis in their report. Park and Prabhala conveniently ignore this not so “waxing jubilant” reception to the Committee Report in my blog.
A “thin analysis”, appears to be their main grudge against the Mashelkar Committee Report. It’s a sheer pity that the authors failed to use this fantastic opportunity (very rarely does one get space in the editorials of two leading newspapers on the same day) to “fatten” their own analysis.
The author is the Frank H Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University law School, where he teaches a course on TRIPS, pharmaceutical patents and public health.
Shamnad Basheer
Frank H Marks Visiting Associate Professor of Law
George Washington University Law School
Washington DC-- 20052
Ph: 001 (202) 957 3442
Email: sbasheer@law.gwu.edu
Saturday, February 24, 2007
Supreme Court's collegium
Another glaring instance of how the Supreme Court's collegium responsible for the choice of Judges in the Higher Judiciary does not jealously guard its primacy accorded by the Supreme Court's Opinion in Third Judges Case has come to light. Manoj Mitta's story in Times of India shows how Justice S.Ashok Kumar was appointed as a permanent Judge of the Madras High Court. The new CJI, Justice K.G.Balakrishnan, the story says, recommended Justice Kumar's confirmation, bypassing other members of the SC collegium. As the story suggests, is it an example of executive managing its way in the collegium system? If it is true that the previous CJIs too favoured Justice Kumar's extension - despite an adverse IB report - as additional Judge, does it mean the executive's influence is writ large on the collegium, especially, the CJI, who does not have any veto power? The story, in fact, partly contradicts what the SCBA was arguing the other day in New Delhi, (see my earlier contribution under the comments section) against the primacy of the collegium. The primacy of the collegium practically means the primacy of the CJI, and with lack of transparency, one does not know the factors which merit serious consideration by the CJI in the matter of appointments or transfers. In the Third Judges Case (In Re: Under Article 143(1) of the Constitution of India), delivered in 1998, the Supreme Court discussed at length the concept of collegium and the importance of the consultation process, only to dilute the element of arbitrariness implicit in the Second Judges case judgment, equating primacy with the CJI's view. It appears that arbitrariness is now back thus defeating the very thrust of the Third Judges case judgment.
New Contributor to Law and Other Things Blog
I am very pleased to welcome V. Venkatesan to our blog. Mr. Venkatesan is a long-standing and well-known commentator on legal and judicial developments in India. He writes a widely read column in Frontline, which does not hesitate to tackle tough and controversial issues. I do hope that Mr. Venkatesan's online presence will encourage greater debate on the amazing number of constitutional and legal issues that are confronting our country today.
Finally, to add our standard caveat, opinions and views expressed on this blog reflect the personal views of the posters, and not the institutions to which they are affiliated. These views and opinions are based on well-considered and articulated positions and are an exercise of our fundamental right to freedom of speech and expression under Article 19 (1) (a) of our Constitution. They are not intended to defame anyone or constitute contempt of court.
Finally, to add our standard caveat, opinions and views expressed on this blog reflect the personal views of the posters, and not the institutions to which they are affiliated. These views and opinions are based on well-considered and articulated positions and are an exercise of our fundamental right to freedom of speech and expression under Article 19 (1) (a) of our Constitution. They are not intended to defame anyone or constitute contempt of court.
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