Explain India’s position on the waiver of intellectual property rights on COVID-19 vaccines in WTO. (2021, 10 Marks)
On 2 October 2020 India and South Africa asked the TRIPS Council to suspend key TRIPS obligations for COVID-19 products, invoking the Article IX waiver power for exceptional circumstances. More than sixty members co-sponsored the proposal and over a hundred backed it. India’s position joined public health, law and a fifty-year development interest.
The case India made
- Equity over scarcity. Rich states had pre-booked most early doses. India argued that intellectual property should not decide who is vaccinated first, citing the Doha Declaration (2001): TRIPS must be read to support public health.
- Existing flexibilities are too slow. Compulsory licences work one country, one product and one patent at a time; Article 31(f) ties output mainly to the home market; the Article 31bis export route had been used only once.
- Breadth was necessary. Vaccines depend on know-how, trade secrets, test data and designs as well as patents, so the proposal covered four categories of IP and vaccines, therapeutics and diagnostics.
- Capacity existed. Indian firms such as the Serum Institute and Bharat Biotech (whose Covaxin was developed with the ICMR) could scale up. Under Vaccine Maitri India supplied about 301 million doses to 99 countries.
- Temporary and limited. The May 2021 revision proposed a term of at least three years, reviewed annually.
- Summit diplomacy. At the G7 outreach in June 2021, Narendra Modi called for “One Earth, One Health” and sought G7 support for the waiver.
Opposition and outcome
- The EU, the UK, Switzerland and Japan held that patents were not the constraint. On 5 May 2021 the US backed text talks limited to vaccines.
- At MC12 (17 June 2022) India accepted a Ministerial Decision easing compulsory licensing of vaccine patents for five years. Its push to extend it to therapeutics and diagnostics found no consensus.
Reading India’s position
- Continuity. It follows from the Patents Act, 1970, India’s role at Doha and the Section 3(d) safeguard upheld in Novartis v Union of India (2013): health before patent rent.
- Theory. In Robert W. Cox’s neo-Gramscian terms, TRIPS institutionalises the interests of knowledge-rich states. India contested it through the rules, a liberal-institutionalist method in the service of a structural critique.
- Limits. India halted exports during its second wave in April 2021, weakening its claim to supply the South, and the real bottlenecks were inputs and technology transfer.
Conclusion
India framed the waiver as a temporary, rule-based response to an emergency and as South-South leadership. It shaped the agenda but not the outcome. The principle that public health limits intellectual property remains India’s line, and the same split now stalls the WHO Pandemic Agreement’s benefit-sharing annex.