TEXT :
15.39 hrs
MR. CHAIRMAN : Now, the House shall take up item Nos. 11 and 12 together. The time allotted for this discussion is four hours.
SHRI VARKALA RADHAKRISHNAN (CHIRAYINKIL): Madam, I have given a notice, questioning the propriety and legality of introducing this Bill. That notice may kindly be taken up now. It is under the Rules and I have specified the Rule also, questioning the legality and the constitutionality.
MR. CHAIRMAN: Let me find out what happened to that notice.
SHRI VARKALA RADHAKRISHNAN : I will make my submission, Madam.
SHRI BASU DEB ACHARIA (BANKURA): Madam, this is a very important and a vital question, challenging the constitutionality and legality of its introduction. We have to dispose it of first.
MR. CHAIRMAN: No. Please take your seat. I will find out what happened to that notice and then you can speak.
Please take your seat. I shall tell you as to what happened to your notice. Meanwhile, we will take up Statutory Resolution. Let me find out about your notice.
SHRI VARKALA RADHAKRISHNAN : Before he speaks, I have the right to speak.
MR. CHAIRMAN : He is from your party.
SHRI VARKALA RADHAKRISHNAN : I wanted to speak at the outset opposing the Statutory Resolution.
MR. CHAIRMAN: Can you not be generous enough to let me take two or three minutes?
Meanwhile, Shri V.V. Raghavan may continue.
SHRI V.V. RAGHAVAN (TRICHUR): Madam, Chairperson, I beg to move:
"That this House disapproves of the Patents (Amendment) Ordinance, 1999 (No.3 of 1999) promulgated by the President on 8th January, 1999."
The second session of the Twelfth Lok Sabha will go down in the history as a session confronted with so many Ordinances. This is the fourth Ordinance that we are discussing in the span of three days. This Ordinance was promulgated for amending our model Patent Act to grant Exclusive Marketing Rights to the foreign companies involved in the production of pharmaceutical, drugs and agricultural chemicals. This amendment involves even the sovereignty of our country. The Executive knows that there exists a strong opposition in this country on this point. Many eminent scientists, economists, parliamentarians and many other organizations have expressed their opposition to the Government before promulgating this Ordinance.
Even among the ruling party, that is the BJP, there are people who do not want that these foreign companies should capture our markets as far as pharmaceutical products are concerned. I know that. Still, they may vote for it because of the whip. There are people in the ruling party itself, including the senior leaders of the BJP, who have expressed publicly their reservations about allowing Exclusive Marketing Rights. All these are not secret. When you promulgate an Ordinance allowing Exclusive Marketing Rights to the foreign companies, are you not bound to discuss that in Parliament? You have granted the EMR without the knowledge of this august House and without the consent of this august House. To put it mildly this amounts to insulting the people who have elected this august House.
This is not an ordinary thing. Under the TRIPS Agreement, we are not bound to grant exclusive marketing rights to foreign companies. The only obligation on us, as per TRIPS, is that we have to allow patent applications through a mail box for patenting pharmaceutical products amd agricultural chemicals. This is the only mandatory provision in the agreement, as far as we are concerned. We have ample time to examine and decide upon these applications. There are five more years to decide all these things. We have to scrutinize and act upon it considering our vital interest.
Madam, I am sorry to say that this Ordinance, granting exclusive marketing right, was promulgated under the pressure of the United States of America. Washington was very particular about this because they knew that they have a vast market here. So, this Ordinance was promulgated under the pressure of America. Without taking the House or the people into confidence the Government has granted them the exclusive marketing right. What right does America has to pressurise us? I do not know how far the Minister of Industry or the hon. Members are concerned about this? How could it happen? Senior Members of BJP are against it. A number of ruling party Members are against it. Known scientists, economists and the powerful trade unions are against it. Under this background, how could this happen?
There is a talk in the Lobby and in the Central Hall that everything originates from PMO. Nowadays, there is a talk that PMO is more powerful than the Prime Minister himself and all the policies originate from PMO. I would not say that they do not have a right but they cannot deny the right of the House to know it and to discuss the implication of such an amendment to the Patent Act. PMO cannot ignore or by-pass the House. We will not allow them to proceed like this.
Sir, as far as clauses of TRIPS are concerned, under the heading, `Nature and Scope of Obligations', article 1 says:
"Members shall be free to determine the appropriate method of implementing the provisions of this agreement within their legal system and practices."
So, it is for us to decide considering how it will affect our country, people, pharmaceutical industry and the workers or how it will affect our existing laws. I would like to once again repeat article 1 of the TRIPS Agreement under the heading, `Nature and Scope of Obligations', which says:
"Members shall be free to determine the appropriate method of implementing the provisions of this agreement within their legal system and practices."
Have you considered this? Are you not interested to consider these TRIPS clauses within this clause. At the end, article 7 says:
"That the protection and the enforcement of intellectual property rights should contribute to the promotion of technological innovation and to transfer and dissemination of technology to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations."
Have you considered all these things? Have you considered these clauses? How can you grant exclusive marketing rights to the foreigners? We must use all these clauses. We should not succumb to the pressure. When America compels us to amend our Acts, what does America do? This is quite interesting to know. America has its own Acts. Considering the TRIPS Agreement, they have the protection in their Acts. The United States enacted a lgislation on 8.2.1994 according to which no WTO clause is binding on them. They are protected within their own Legislation. One of their Legislations says:
"Wherever any conflict arises, the United States law will prevail. No provision of any of the Uruguay Round Agreement nor application of any such provision to any person or circumstances that is inconsistent with any law of the United States shall have any effect."
That is the American Law. Do you know what is going on now? They have their Super 301 after by-passing all these clauses of the TRIPS and WTO. They are in confrontation even with the European Union. You can see it with your naked eyes. All these things are going on. The United States of America is not bound by any of these TRIPS and WTO clauses. They are guided by their own Acts. They are confronting with everybody. But they are imposing their will on other countries. I see no reason as to why should we succumb to this pressure. This is a large country. You can depend upon 99 crore people. You can fight them. Why are you succumbing like this? No other developing country has yielded like this to EMR. There are several developing countries together with us. Out of more than 100 and odd developing countries only Pakistan and two other small countries, have yielded to grant EMR to these multinational companies. That is the fact. Even Malaysia did not succumb to the pressure.
It is our neighbouring country. No other developing country has succumbed to the American pressure. When you allow Exclusive Marketing Rights, what will happen? There are people in Delhi. I know that. They are propagating that the EMR is a small thing; there will not be many drugs; we can face them and we can control them. So, they want us to pass this Ordinance in the House. There is propaganda going around. Even canvassing is going around. Members of Parliament are getting leaflets and letters requesting to pass this Ordinance into a law. They say that EMR is not so dangerous.
I know the people who have participated in the TRIPS discussions, the GATT discussions, the WTO discussions. They are very much interested in getting the legislation passed in the House. I do not want to make an allegation here. But it is a known truth that the retired officials now canvassing for getting this legislation passed here have got their kith and kin in key positions somewhere in the world. Are we to be cheated by them? Are we to be guided by them ?
The amendment promulgated through an Ordinance granting the EMR is unwanted. It is not at all obligatory. We have the right to assess it within our legislation, within our social context, within our social needs and within our requirements. We do not go as far as America has gone. But we have all the right to limit the TRIPS clauses to allow the other countries to patent their products. Let them put in their applications. Let us consider them taking into consideration the interest of our country. That is the only obligation we have under the TRIPS Agreement.
About the Intellectual Property Rights, we are not against it. There are people who say that we have so many prospects in patenting our agro-chemicals and pharmaceuticals. We do not forget for a while with whom we are confronting. We are confronted with the mighty multinational companies, specially the United States of America. By any means, by any way, they are out to capture our market. What will be the result? If the Exclusive Marketing Right goes on like this, the Government will have no means and no mechanism to scrutinise them because the Government says that as per the TRIPS clause, if a company has patented its products/produce in any other country of the WTO, it can get EMR in any other country and import those things here.
16.00 hrs.
How can we scrutinise them which are patented in other countries? They come with the right that it is patented in other countries. According to TRIPS processes, if certain drugs are patented in other countries, we are bound to give them the Exclusive Marketing Rights without any scrutiny, and without any control over them. That is the law. The Exclusive Marketing Rights means any country which have patented any drug in any of the WTO countries, have all the right to import it here and sell it. They decide whatever price they want to sell.
Can a sovereign country allow such things? Ours is a sovereign country and we are allowing foreigners to patent the things of any of the countries of the WTO to bring them here, import here and sell without any control, and without any scrutiny of our own. That is what is the EMR. That is why, other
countries have not granted the EMR. Patenting in India is something different and allowing EMR for drugs patented in other countries is something quite different.
I know, if the Bill was introduced here without the Ordinance, I am sure, those hon. Members in the Treasury Benches would have pondered over it a hundred times before they pass it. That is why, the Government brought the legislation through an Ordinance here fait accompli. It is imposed on us. It is imposed on the House. That is the meaning of the Ordinance. If you give free choice to the hon. Members to vote according to their conscience, I am sure you would not be able to get through this EMR. There are ample provisions; there are ample ways for us to go forward without allowing the EMR.
Madam, I do not want to take much time of the House. There are many experts who wanted to speak on this Patents Bill and the Ordinance. I have to do justice to them also.
My humble request, especially to the Treasury Benches, is that this kind of act by the Executive should not be allowed to go unchecked. They should think of our Nation before enacting such things by Ordinance. Think of us. Think of the House. How will they react? Is it right to allow the EMR without the consent of the House? The Executive has to think of it. Do not take us for granted. Do not take the House for granted. The PMO might be all powerful. But this House is more powerful than the PMO. Show the Executive if it goes in the wrong path. We will resist. We will not allow the Government to carry out such practices which are not at all good for the country. This is not good for the parliamentary democracy.
Considering just that, the Treasury Benches have to check their own Executive acts. Otherwise, I am afraid, they will take us to a very dangerous path.
I admit that our hon. Congress Members have a commitment. But things have changed very vastly. If you are true to Panchmarhi resolution, and if you are guided by the Panchmarhi resolution, you have to change the course of such things.
When the Congress Party was in power, they had promulgated Ordinances, but they had not issued Ordinances for giving Exclusive Marketing Rights. They had issued Ordinances only for allowing pharmaceutical and Agriculture Chemicals patentable. Our Patent Act did not allow pharmaceutical produce and agro-chemicals to be patented. The Congress Government made them patentable. That is all. They did not allow Exclusive Marketing Rights. Now, is the Congress Party in favour of allowing this Government to give Exclusive Marketing Rights. That is the crucial question before the Congress Party.
We have signed TRIPS and also the WTO Agreement. But it is not an obligation on us to grant Exclusive Marketing Rights. That is my point Exclusive Marketing Right is quite different. I think the House can reject this Ordinance and ask the Executive to come in the right way, bring the legislation and then let us think it over whether it is good or not. But this way of putting the legislation as a fait accompli is not to be encouraged. It has to be checked. So, I appeal to the House to disapprove this Ordinance.
MR. CHAIRMAN : Now, I would like to give a ruling with regard to Shri Varkala Radhakrishnan's notice.
SHRI S. JAIPAL REDDY (MAHABUBNAGAR): Madam, I would like to make a submission, if you permit me.
MR. CHAIRMAN: No; the ruling has already come.
SHRI S. JAIPAL REDDY : Madam, please hear me.
MR. CHAIRMAN: In that case, Shri Radhakrishnan would also like to speak.
SHRI SHARAD PAWAR (BARAMATI): Madam, please give him an opportunity and then give the ruling.
SHRI S. JAIPAL REDDY : Madam, Shri Radhakrishnan has objected to the consideration of the Bill on constitutional grounds. Therefore, he must be heard before the ruling is given and before the ruling is given, you may also like to listen to other Members on the constitutional validity of the Bill.
MR. CHAIRMAN: No; we cannot have a discussion on that.
SHRI S. JAIPAL REDDY : Why not? when it is an objection to the Bill on constitutional grounds, you should hear us before giving the ruling.
MR. CHAIRMAN: Shri Radhakrishnan does not need your help. He is quite competent himself to make his point.
SHRI S. JAIPAL REDDY: No; it is not a matter between the Member and the Chair. It is the matter of the House; it is the property of the House. Therefore, my humble submission is, kindly permit the Member to raise his objection, hear some of us and then give the ruling.
MR. CHAIRMAN: No; I will not hear others. You have not given a notice. So, you do not have a chance to speak.
SHRI RUPCHAND PAL (HOOGLY): Madam, this is an objection on the constitutional validity of the Bill. So, other Members should also be allowed to speak on this point.
MR. CHAIRMAN: No; there is no provision for that.
SHRI BASU DEB ACHARIA (BANKURA): Madam, we have certain points to make on the constitutional validity of the Bill.
MR. CHAIRMAN: No; Shri Basu Deb Acharia, you have always been very reasonable. It is only Shri Radhakrishnan who has given a notice.
SHRI BASU DEB ACHARIA : After you hear Shri Radhakrishnan, we should also be allowed to speak.
MR. CHAIRMAN: No.
SHRI BASU DEB ACHARIA : Why? Why are you always saying `no' `no'?
MR. CHAIRMAN: There is no provision to allow other Members. You have not given a notice. That is why you do not have a chance to speak.
... (Interruptions)
SHRI S. JAIPAL REDDY : Madam, we would like to see you in a more pleasant mood of saying `yes'.
MR. CHAIRMAN: Shri Radhakrishnan, there is a ruling with regard to your notice.
SHRI VARKALA RADHAKRISHNAN : Madam, I have not yet made my submission. How can you give the ruling without hearing me?
MR. CHAIRMAN: You have already written to the Chair.
SHRI VARKALA RADHAKRISHNAN : You can give the ruling after I make my submission.
MR. CHAIRMAN: In that case, please make a very brief submission.
... (Interruptions)
SHRI VARKALA RADHAKRISHNAN : Let me make my submission first. How can you give the ruling without hearing me? ....(Interruptions)
MR. CHAIRMAN: I am sure Shri Radhakrishnan is very competent. He does not need your support. Let him make his submission.
SHRI VARKALA RADHAKRISHNAN : Let me have my say. Then you can give the ruling.
MR. CHAIRMAN: First you listen to the ruling.
SHRI VARKALA RADHAKRISHNAN : How can you give the ruling before hearing me?
MR. CHAIRMAN: All right. In that case, you first hear me and then make your submission.
SHRI SHARAD PAWAR : Madam, please hear him.
MR. CHAIRMAN: He has already written to the Chair.
SHRI SHARAD PAWAR : He has written, but he has not elaborated his point.
SHRI VARKALA RADHAKRISHNAN : No, I have not explained it. I have given it to you in writing. ... (Interruptions)
SHRI S. JAIPAL REDDY : Madam, I am on a point of order.