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Editorials & Articles – 3 May 2024

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Editorials & Articles – 3 May 2024

The judiciary’s shadow over standard essential patents

Topic: GS2 – Indian Polity – Judiciary

GS3 – Science & Technology – Issues relating to IPR

 

Context
●  The article discusses India’s looming crisis surrounding the use of Standard Essential Patents (SEPs) by tech companies against its telecom manufacturing sector.

●  It highlights the challenges of SEP licensing, judicial response characterised by lethargy and activism, and the detrimental impact on India’s manufacturing sector.

●  Drawing comparisons with Europe, it underscores the urgent need for government intervention to regulate SEPs and protect domestic interests amidst international patent enforcement obligations.

Introduction to SEP Issue in India

  • There’s a potential crisis brewing in India regarding the use of Standard Essential Patents (SEPs) by certain technology companies against the telecom manufacturing sector.
  • SEPs are patents covering technologies adopted as industry standards, crucial for interoperability of cellular phones.
  • The process of setting standards is privatised and dominated by Standard Setting Organizations (SSOs) largely run by private tech firms, leaving countries like India with little influence.
Standard Essential Patents (SEPs)
● Standard Essential Patents (SEPs) are patents covering technologies essential for industry standards, ensuring interoperability of products.

●  For instance, GSM, CDMA, LTE are such standards in telecom.

● Companies owning SEPs have significant leverage, as manufacturers must licence them to comply with industry standards.

Challenges with SEP Licensing

  • SEP owners gain significant leverage as manufacturers must license these standards to stay competitive.
  • This monopoly power often leads to exorbitant royalties, termed as the “patent holdup” problem.
What is “patent holdup” problem?
●  The “patent holdup” problem occurs when owners of Standard Essential Patents (SEPs) exploit their monopolistic position.

●  SEP owners demand excessive royalties or favourable licensing terms from manufacturers.

●  Manufacturers are compelled to comply to ensure their products adhere to industry standards.

●  This monopolistic behaviour stifles competition and innovation.

●  It undermines the principle of Fair, Reasonable, and Non-Discriminatory licensing, leading to anti-competitive practices and market distortions.

  • SSOs theoretically require SEP owners to license at Fair, Reasonable, and Non-Discriminatory (FRAND) rates but fail in practice due to opacity and anti-competitive practices.

Judicial Response in India

  • Indian judiciary’s response has been marked by both lethargy and activism, particularly at the Delhi High Court.
  • The Competition Commission of India’s (CCI) investigation into SEP abuse by Ericsson faced legal challenges, delaying resolution for seven years.
  • Meanwhile, the Delhi High Court heard infringement lawsuits against manufacturers, bypassing the resolution of competition law issues.
  • The court’s interim remedies, such as requiring manufacturers to deposit money during trials, are unprecedented and detrimental to defendants’ working capital.

Impact on Manufacturing Sector

  • Judicial activism combined with delays negatively impacts the government’s efforts to attract investment in manufacturing.
What does it mean by judicial activism?
● Judicial activism refers to courts actively shaping public policy through their decisions.

● It involves courts interpreting laws broadly to address social and political issues.

● Judicial activism can lead to courts expanding constitutional rights or intervening in legislative matters.

● It’s often seen as a departure from traditional judicial restraint.

● Courts may use activism to fill gaps in legislation or rectify perceived injustices.

● Critics argue it encroaches on the domain of other branches of government.

● Proponents view it as a necessary mechanism to protect individual rights and ensure justice.

  • While the government provides incentives for domestic manufacturing, judicial rulings disproportionately burden manufacturers with hefty deposits.
  • Unlike manufacturers creating jobs, SEP owners repatriate profits, hindering India’s economic growth.

Comparison with Europe

  • European Parliament enacted regulatory measures to control SEPs, recognizing the need for intervention.
  • India’s lack of influence in SEP selection by SSOs and obligation to enforce foreign patents make regulatory measures imperative.
  • India’s case for stronger regulatory measures is stronger than Europe’s due to its limited influence in SSOs and international patent enforcement obligations.

Call for Government Intervention

  • It’s crucial for the Indian government to intervene and regulate SEPs to protect its manufacturing interests.
  • Government intervention is necessary to prevent further damage caused by judicial delays and activism.
  • Such measures are vital for India’s economic growth and to ensure a fair playing field for domestic manufacturers.

Conclusion

  • India faces a critical challenge regarding SEP abuse, impacting its telecom manufacturing sector.
  • Judicial delays and activism exacerbate the problem, necessitating government intervention.
  • Regulatory measures similar to those in Europe are crucial to safeguard India’s manufacturing interests and economic growth.

Does PMJAY need a design change?

Topic: GS2 – Social Justice – Health

GS2 – Governance – Government policies – Issues arising out of their design & implementation

Context
●  The article delves into the performance and challenges of India’s flagship healthcare program, Ayushman Bharat’s Pradhan Mantri Jan Arogya Yojana (PMJAY).

●  Launched in 2018, PMJAY aims to provide health coverage to over 12 crore families from the bottom 40% of the population.

●  However, recent reports of hospitals facing financial dues and turning away PMJAY patients raise questions about the scheme’s sustainability and effectiveness, prompting discussions on potential design changes.

 Introduction to PMJAY

  • Ayushman Bharat, initiated in 2018, comprises two main components: health and wellness centres and the Pradhan Mantri Jan Arogya Yojana (PMJAY).
  • PMJAY’s goal is to provide healthcare coverage of ₹5 lakh per family per year for secondary and tertiary care hospitalisation to over 12 crore families, representing the bottom 40% of the population.
  • As of now, PMJAY has issued 34.27 crore cards, facilitated treatment for about 6.5 crore individuals, and enlisted over 30,000 hospitals.
Ayushman Bharat – Pradhan Mantri Jan Arogya Yojana
● Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) is the world’s largest health insurance/assurance scheme fully financed by the government.

●  Launched in February 2018, it offers a sum insured of Rs. 5 lakh per family for both secondary and tertiary care.

● PMJAY provides cashless and paperless access to services at empaneled hospitals.

● Health Benefit Packages cover surgery, medical and day care treatments, medicines, and diagnostics.

● Packaged rates ensure comprehensive coverage without additional charges to beneficiaries.

●  Target beneficiaries are identified based on the latest Socio-Economic Caste Census (SECC) data.

● Once identified, beneficiaries can access services at any empaneled hospital.

● Funding is shared: 60:40 for states and UTs with legislature, 90:10 in Northeast states and specific UTs, and 100% central funding for UTs without legislature.

● The National Health Authority (NHA) is the autonomous entity responsible for PMJAY’s implementation in collaboration with state governments.

● State Health Agencies (SHAs) oversee AB PM-JAY implementation at the state level.

Discussion on PMJAY’s Design

  • Need for Design Change:
    • Concerns arise regarding PMJAY’s sustainability, especially as some hospitals in certain states report significant outstanding dues and reduced acceptance of PMJAY patients.
    • Key questions emerge regarding the scheme’s effectiveness and the necessity of design modifications to address existing challenges.
  • Supply Side Perspective:
    • There’s acknowledgment of the importance of allowing patients to access the private sector due to perceived deficiencies in the public sector’s ability to provide universal healthcare.
    • However, doubts linger over whether PMJAY was adequately designed to address comprehensive healthcare costs, as it currently represents a minor fraction of total health expenditure.
    • Concerns are raised about the potential misallocation of government resources and the emergence of barriers, even within the public sector, which may hinder access to healthcare for low-income families.
  • Demand Side Perspective:
    • The preference for private hospitals over public ones reflects a perception of better quality care, potentially indicating a need to enhance trust in the public health system.
    • Challenges faced by the private sector, such as capacity limitations, delays in claim payments, claim rejections, and capped treatment charges, hinder effective implementation of PMJAY.

Performance Disparity among States

  • Varied Performance Metrics:
    • Disparities exist among states in terms of hospital activity levels, with some hospitals remaining inactive since empanelment.
    • Differences are observed in coverage rates, hospital dispersion, and claim payment delays, necessitating further research to understand underlying factors contributing to performance variations.
  • Drivers of Disparities:
    • While technological platforms enable claim processing, deficiencies in hospital capacity, particularly in Northern and North-Eastern states, contribute significantly to performance discrepancies.
    • Lack of network adequacy requirements for insurers exacerbates challenges, as cards are issued without ensuring accessible healthcare facilities.

Addressing Out-of-Pocket Expenditure

  • Need for Holistic Approach:
    • While PMJAY aims to mitigate healthcare cost shocks, its current design may not comprehensively cover outpatient care, diagnostics, and drugs.
    • Alternative state schemes like those in Tamil Nadu and Rajasthan offer insights into providing some form of universal healthcare, indicating the need for a broader perspective.
  • Evaluating the Insurance Model:
    • While the insurance model has been instrumental in delivering universal health coverage in several countries, its effectiveness in the Indian context warrants scrutiny.
    • Restrictions on insurance to the public sector could potentially enhance performance, especially in poorer states, but broader reforms focusing on payment structures and non-price mechanisms are crucial.

Conclusion

  • PMJAY’s effectiveness in achieving universal health coverage hinges on addressing challenges related to hospital capacity, claim processing delays, and disparities among states.
  • Enhancing trust in the public health system, reevaluating the insurance model, and adopting a holistic approach to healthcare delivery are essential for achieving sustainable and comprehensive universal health coverage in India.

The Vishwa Bandhu

Topic: GS2 – Governance – Government policies – Interventions for development in various sectors

 

Context:
  • The article outlines the requirements and pathways for India to achieve the goal of becoming a developed nation, termed as “Viksit Bharat,” within the next 25 years.
  • It discusses the importance of political stability, strategic foreign policy, economic development, education, and international partnerships in realizing this vision.
  • Emphasizing India’s shift towards a “Bharat First” approach, the article underscores the significance of leveraging global opportunities while safeguarding national interests to propel India’s growth trajectory.

What is Vision India@2047 ?:

  • Vision India@2047 is a project initiated by the NITI Aayog, the apex policy think tank of India, to create a blueprint for India’s development in the next 25 years.
  • The project aims to make India a global leader in innovation and technology, a model of human development and social welfare, and a champion of environmental sustainability.

Introduction: The Requirements for Viksit Bharat in the Next 25 Years:

  • Viksit Bharat, or developed India, in the forthcoming quarter-century will necessitate a comprehensive strategy encompassing various domains.
  • This analysis delves into the key requirements and pathways to achieving this goal, focusing on political stability, foreign policy, economic development, national security, education, and international partnerships.

Political Stability: A Prerequisite for Long-Term Vision:

  • Political stability lays the foundation for sustained progress and reform. The Indian electorate’s choices in the coming years will significantly influence the nation’s trajectory.
  • Stability enables the conceptualization and implementation of long-term policy prescriptions crucial for Viksit Bharat’s development.

Foreign Policy: Leveraging International Relations for Development:

  • An effective foreign policy is pivotal for accessing resources, markets, technologies, and best practices.
  • India’s shift towards a “Bharat First” approach since 2014 underscores a focused foreign policy agenda aimed at maximizing partnerships while safeguarding national interests.
  • The concept of Vishwa Bandhu Bharat emphasizes India’s assertiveness on the global stage, necessitating multi-vector diplomacy and deepening international engagements.

Economic Development: Manufacturing and Technology as Pillars:

  • The expansion of manufacturing, especially in critical and emerging technologies, forms the bedrock of India’s economic strength.
  • To leapfrog past previous neglect, India must prioritize strong international collaborations to acquire technological expertise.
  • The “Make in India” initiative assumes significance not only for economic growth but also for national security, particularly in challenging domains like defence.

Education and Skill Development: Harnessing Demographic Dividend:

  • India’s demographic dividend presents immense opportunities, particularly in professions aligned with global demands.
  • Expanding education and training capacities is essential to capitalize on these prospects.
  • However, partnerships must align with Indian values and ensure the security of its citizens, both domestically and internationally.

International Partnerships: Strengthening Connectivity and Security:

  • India’s engagement with international partners is crucial for enhancing connectivity and security.
  • Initiatives like the IMEC corridor and the INSTC facilitate economic integration and security cooperation across regions.
  • India’s active participation in various forums, such as BRICS and East Asia Summit, underscores its commitment to maintaining political balances amidst global transformations.

Conclusion:

  • The concept of Vishwa Bandhu, encapsulated in Modi Ki Guarantee, encapsulates India’s resolve to navigate the complexities of the evolving global landscape.
  • By prioritizing political stability, strategic foreign policy, economic development, education, and international partnerships, India aims to realize the vision of Viksit Bharat in the next 25 years.
What are the other Aspects of Viksit Bharat?
  • Structural transformation: This refers to the shift of resources from low-productivity sectors (such as agriculture) to high-productivity sectors (such as manufacturing and services). This can boost economic growth, create jobs, and reduce poverty.
  • Organising labour markets: This involves improving the quality and quantity of labour supply, enhancing the skills and employability of workers, and ensuring fair and efficient labour regulations. This can increase labour productivity, reduce informality, and promote social protection.
  • Increasing competitiveness: This entails enhancing the efficiency and innovation of firms, improving the quality and diversity of products and services, and expanding the domestic and international markets. This can foster economic dynamism, increase exports, and attract investments.
  • Improving financial and social inclusion: This implies expanding the access and affordability of financial services and social welfare schemes for the poor and marginalised groups. This can improve their income, savings, and consumption, as well as their health, education, and empowerment.
  • Governance reforms: This involves strengthening the institutions and processes of governance, such as the rule of law, accountability, transparency, and participation. This can improve the delivery of public goods and services, reduce corruption, and enhance trust and legitimacy.
  • Seizing opportunities in the Green Revolution: This refers to adopting and promoting green technologies and practices, such as renewable energy, energy efficiency, and climate resilience. This can reduce greenhouse gas emissions, mitigate environmental degradation, and create new opportunities for growth and development.

How Diplomatic Passports, Visa Regimes Work

Why in News?

  • After allegations of sexual abuse by Janata Dal (Secular) MP (Prajwal Revanna) came to light, the politician fled to Germany on a diplomatic passport.
  • According to the Ministry of External Affairs (MEA), no visa note was issued to him and to travel to Germany, he did not need one. 

What’s in Today’s Article?

  • What is a Diplomatic Passport?
  • Who can Revoke a Diplomatic Passport?
  • Whether the JD(S) MP Need a Visa to Travel to Germany?

What is a Diplomatic Passport?

  • Unlike normal passports, which have dark blue covers and are valid for 10 years (for adults), diplomatic passports have maroon covers, and are valid for five years or less.
  • Holders of such passports are entitled to certain privileges and immunities as per the international law, including immunity from arrest, detention, and certain legal proceedings in the host country.
  • The MEA’s Consular, Passport & Visa Division issues diplomatic passports (‘Type D’ passports) to people falling in broadly five categories:
    • Those with diplomatic status;
    • Government-appointed individuals travelling abroad for official business;
    • Officers working under the branches A and B of the Indian Foreign Service (IFS),
    • Normally at the rank of Joint Secretary and above; and
    • Relatives and immediate family of officers employed in IFS and MEA.
  • Lastly, diplomatic passports are also issued to select individuals who are authorised to undertake official travel on behalf of the government.
    • This includes union ministers and MPs who often travel abroad representing the government.
    • The validity of these passports is concurrent with the term of the MP.
    • For instance, Congress leader Rahul Gandhi surrendered his diplomatic passport after he was disqualified as an MP last March.

Who can Revoke a Diplomatic Passport?

  • According to the Passport Act 1967, the government can revoke a diplomatic passport only after a court order to that effect.
  • As per the Act, the passport authority may impound or revoke a passport –
    • If the holder is in wrongful possession, or
    • If it was obtained by the suppression of material information; or
    • If the passport authority deems it necessary to do so in the interests of the sovereignty and integrity of India, or friendly relations of India with any foreign country.
  • It can also be revoked if the holder has, after the issue of the passport, been convicted by a court in India, and sentenced to imprisonment for not less than two years.
  • Finally, a diplomatic passport can be revoked upon orders from a court during proceedings with respect to an offence allegedly carried out by the passport holder before a criminal court.

Whether the JD(S) MP Need a Visa to Travel to Germany?

  • Typically, the MEA issues visa notes to government officials going abroad for an official assignment or visit.
  • But in Prajwal’s case, no such note was issued.
    • According to a MEA spokesperson, no political clearance was either sought from or issued by MEA in respect of the travel of the said MP to Germany.
    • Obviously, no visa note was issued either.
  • This is because Germany is among the 34 countries with whom India has operational visa exemption agreements for holders of diplomatic passports.
  • According to a reciprocal deal signed in 2011, holders of Indian diplomatic passports do not require a visa to visit Germany, provided their stay does not exceed 90 days.
  • Despite that, Prajwal should still have applied for a prior political clearance for a private visit.
  • According to the latest Rajya Sabha Secretariat bulletin, members, when using a diplomatic passport, are required to apply for prior political clearance directly to MEA.
    • The members must ensure that before proceeding abroad the requisite political clearance has been obtained.

Why Are Indian Spices Facing the Heat?

What’s in Today’s Article?

  • Background (Context of the Article)
  • Safety Standards of Indian Spices (Countries that have flagged the issues, Reasons, Health Effects, Challenges, etc.)

Background:

  • More than five countries — including Singapore, Hong Kong and the U.S. — have announced an investigation into possible contamination of spice mixes sold by top Indian brands, MDH and Everest.
  • The complaints cite the presence of ethylene oxide, a toxic chemical used as a food stabilizer, beyond permissible limits.
  • The Spices Board of India in response has initiated mandatory testing of products shipped abroad and is reportedly working with exporters to identify the root cause of contamination.
  • The international scrutiny has also stirred a demand for the Food Safety and Standards Authority of India (FSSAI) to ensure stringent quality checks on spices and curry powders sold in domestic markets.
  • The incident isn’t isolated. Controversies have engulfed protein drinks, fruit juices, health drinks and imported Nestle baby products, drawing attention to regulatory lapses and heightening health concerns.
  • The spice mixes flagged in question are manufactured by Everest and MDH, major players in India’s spice export industry.
  • The top three importers of India’s curry powders and mixtures, in the fiscal year 2022-23, include the U.S. (₹196.2 crore)U.A.E (₹170.6 crore) and U.K. (₹124.9 crore); followed by Saudi Arabia, Australia, Bangladesh, Oman, Canada, Qatar and Nigeria.

What Are the Health Concerns?

  • Use of ethylene oxide (ETO)
    • MDH and Everest’s spice mixes allegedly contain high levels of a prohibited pesticide called ethylene oxide (ETO).
    • ETO is a colorless, flammable, and in many ways, a remarkable gas that was originally intended for sterilizing medical devices.
    • It is used as a chemical in industrial settings, agriculture, and as a sterilizing agent in food products, including spices, dried vegetables and other commodities.
    • The chemical lends life to the spice industry: it reduces microbial contamination, and in turn, extends products’ shelf life and makes their storage safe.
  • ETO and its carcinogenic nature
    • The improper and excessive use of ETO may leave behind residues, causing toxic and even carcinogenic compounds to form, thus contaminating the product.
    • One such compound is ethylene glycol, an ingredient found in Indian-made cough syrups which were linked to the deaths of more than 300 children in Cameroon, Gambia, Indonesia and Uzbekistan.
    • Long-term exposure to ethylene oxide is associated with cancers including lymphoma and leukemia, some evidence shows.
  • Possible reasons behind the finding of ETO traces
    • Possible reasons for ETO traces found in excess included the use of non-approved pesticides and processing techniques aimed to reduce microbiological contamination.
    • They were found to lead to not approved residues unsanitary processing techniques (e.g. ethylene oxide in guar gum and curry powder from India).
  • MDH’s Response:
    • MDH has called allegations over ETO contamination baseless and unsubstantiated.
    • It added that neither the Spices Board nor the FSSAI have received communication or test reports from Singapore or Hong Kong authorities.

How Has India Responded?

  • Steps taken by Spices Board
    • The Spices Board, tasked with developing, promoting and regulating the export of spices and spice products, operates under the Ministry of Commerce and Industry.
    • It has announced a slew of corrective measures:
      • Initiating mandatory testing of consignments shipped to Singapore and Hong Kong and gathering technical details and analytical reports from the relevant food and drug agencies.
      • Also reportedly working with exporters whose consignments have been recalled getting to the root of the issue and “propose corrective measures”.
    • It also issued circular containing guidelines to exporters on preventing ETO contamination.
    • It also plans to carry out a nationwide surveillance in 2024-25for fruit and vegetables, salmonella in fish products, spice and culinary herbs, fortified rice and milk and milk products.

Challenges Associated with Food Safety in India:

  • Primary challenge is operational:
    • India’s diverse food landscape, the lack of standardized recordkeeping and intentional food fraud may prevent manufacturers from efficiently tracing ingredients and assessing potential risks.
    • Traceability is particularly challenging for small and medium sized businesses with limited resources.
  • Logistical barriers:
    • At least 10 States/Union Territories lack government or private notified food testing labs, as mandated under the FSS Act.
    • These labs are distributed unevenly across regions; have insufficient number of food safety officers; and were found to operate ineffectively due to resource constraints, showed the FSSAI Annual Report of 2021-22.
    • The absent accountability and consequences often mean enforcement agencies fail to penalize unscrupulous food operators, which fuels the issue.
  • Lack of Transparency:
    • FSSAI’s operations often lack transparency.
    • The regulator conducted another pan-India testing of spices two years ago, results of which were never put out in the public domain.

Way forward

  • Experts have called for stringent safety checks of curry powders and spices; to detect and control the use of ETO in food products; and ensure proper implementation of regulatory norms.
  • A recent CUTS report also recommended regularly updating food safety standards to align with global practices, and improving information flow to food industries to that they better comply with regulations.

Article 361 – Immunity shield until Governor in office

Why in news?

  • An employee at the Raj Bhavan in Kolkata has alleged that she was sexually harassed by West Bengal Governor C.V. Ananda Bose. The woman also lodged a complaint at the Hare Street police station in Kolkata.
  • Article 361 of the Constitution grants immunity to the Governor against any criminal proceedings.

What’s in today’s article?

  • Article 361 of the Constitution
  • Supreme Court on the immunities enjoyed by the Governor

Article 361 of the Constitution

  • About
    • Article 361 of the Constitution that deals with immunity to the President and the Governors.
    • It states that they shall not be answerable:
      • to any court for the exercise and performance of the powers and duties of his office; or
      • for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
  • Two crucial sub-clauses
    • Article 361 also has two crucial sub-clauses:
      • that no criminal proceedings whatsoever shall be initiated or continued against the President, or the Governor of a State, in any court during the term of his office.
      • No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
  • Article 361 – summary
    • Article 361 grants the Governor of a State immunity from legal liability for their official acts and personal acts during their term of office.
    • This means that the Governor cannot be held accountable to any court for their official duties, and no criminal proceedings can be initiated against them.
    • However, civil proceedings can be brought against them for their personal acts after two months’ notice.
    • The Governor also cannot be arrested or imprisoned while in office.
    • Additionally, if Governor commits any criminal offense during their term of office, they can be prosecuted once their term ends.
      • This ensures that they are not above the law and can be held responsible for any unlawful actions.

Supreme Court on the immunities enjoyed by the Governor

  • Rameshwar Prasad v Union of India
    • In this case, SC outlined the immunity enjoyed by the Governor even on allegation of personal malafides. It held that the Governor enjoys complete immunity.
      • Governor is not answerable to any Court for the exercise of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
      • This ruling is indeed not for criminal complaints but for exercising discretionary constitutional powers.
  • Precedents where criminal action was halted till a Governor completed his term in office
    • In 2017, the Supreme Court allowed fresh charges of criminal conspiracy against various leaders in the 1992 demolition of the Babri Masjid.
    • However, the trial did not take place for former UP Chief Minister Kalyan Singh since he was then the Governor of Rajasthan.

 


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