April 18, 2021: I believe this is the time to invoke the compulsory licensing provisions in the law, so that a number of companies are able to produce the vaccines under a licence.
Manmohan Singh in a letter to Narendra Modi
April 19, 2021: History shall be kinder to you Dr Manmohan Singh ji if your offer of ‘constructive cooperation’ and valuable advice was followed by your (Congress) leaders as well in such extraordinary times.
Union health minister Harsh Vardhan in a tweet after writing to Singh
April 30, 2021: Has the central government considered exercising its power under Section 92 of the Patents Act, 1970, which enables compulsory licensing of patents in a public health emergency?
The Supreme Court to the Modi government
May 10, 2021: The next date of hearing when the Modi government is expected to come up with an answer.
Prime Minister Modi has yet to extend the courtesy of personally replying to his predecessor who had graciously suggested multiple steps to mitigate the Covid crisis. Instead, Modi deployed his health minister to send Manmohan an acid-dripping and discourteous letter.
Twelve days later and a day after Manmohan went home from hospital after recovering from Covid, the highest court of the land mooted exactly what the former Prime Minister had recommended in his letter but was ignored by his successor.
Section 92 of the Patents Act, cited by the Supreme Court on Friday, empowers the Centre to grant compulsory licences “in respect of any patent in force in circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use”.
Such licences will allow more companies to make the Covid vaccines. Right now, only two companies — the Serum Institute of India and Bharat Biotech — are making the Covid vaccines in India.
A bench headed by Justice D.Y. Chandrachud and including Justices L. Nageswara Rao and S. Ravindra Bhat asked several other questions vexing the country but not yet answered by Modi.
Some of the questions asked and observations made by the court:
⚫ What happens to the marginalised people and SC/ST population living in far flung areas? Should they be left to the mercy of private vaccine manufacturers and hospitals?
⚫ The government must think of providing free vaccination to all citizens.
⚫ Manufacturers are charging you (the Centre) Rs 150 but Rs 300 or Rs 400 from states. Why should we as a nation pay this? The (total) price difference becomes Rs 30,000 crore to Rs 40,000 crore. Even when we have paid for this. We are not directing it but you should look into it.
⚫ It cannot be left to the private manufacturers to decide how much quantity be given to which state. Instead, the Centre should procure all the vaccines and give it to the states as it is done in national immunisation programmes.
⚫ For vaccination, how will the Centre ensure registration of those who are illiterate or don’t have access to the Internet, considering registration on CoWIN app is mandatory?
⚫ How do the Centre and the states intend to vaccinate workers at the cremation and burial grounds?
⚫ Has the finance ministry made any previous grants/ sanctions to Bharat Biotech and the Serum Institute of India (the makers of the Covaxin and Covishield vaccines, respectively) in the past, like the current infusion of Rs 1,500 crore and Rs 3,000 crore, respectively? If yes, what is the exact break-up, as against the total cost of development and production of the two vaccines?
On Friday, former finance minister P. Chidambaram tweeted: “Grateful that the Supreme Court has raised the two issues that the Congress had first raised 15 days ago: vaccine prices and compulsory licensing to manufacture vaccines. The government brushed aside the Congress. The PM did not even acknowledge the letter of the former PM. The health minister was rude in addition to being incompetent. Let us see how the government responds to the Supreme Court’s concerns and questions.”
Pitroda & Ramesh
This sentiment was expressed forcefully during the course of a conversation the Congress arranged with two key functionaries who steered India’s vaccination drives in the eighties and the nineties — Sam Pitroda and Jairam Ramesh.
Ramesh said: “The political atmosphere wasn’t toxic at that time. In spite of brute majority, the then Prime Minister, Rajiv Gandhi, gave a clear instruction to reach out to the Opposition, to make everybody part of the mission. Now the Opposition is talking about constructive cooperation but the government does petty politics.”
“Manmohan Singh wrote a sober letter to the Prime Minister giving specific suggestions and got a vituperative, abusive reply from the health minister (Harsh Vardhan). To Singh’s two-page letter, there was a three-and-a-half page personalised attack on him.”
Specific suggestions
“There is no alternative to compulsory licensing, more companies have to be involved in the production of vaccines. Israel invoked compulsory licensing. We have to commandeer all our national resources and vaccinate the maximum number of people. This is not the time to think of market economics — we are dealing with the question of life and death. Even the US government funded the Moderna vaccine,” Ramesh added.
Pitroda weighed in: “There is a need for consolidation of all production facilities. It is a national emergency. Not a private-government question. We have to run it like a national emergency production line. Allow the private players their profit but fix a national price. Not one price for the Centre, one for the states, another for private.
“Create a national team of domain experts who should brief daily at a fixed time. The government has no credibility; people have no confidence in their talk. Let the talking be done by professionals. You can’t tell the people to wear mask and hold massive rallies.”
Pitroda, who led several technology missions launched during Rajiv’s time, said: “I can’t imagine our country is going through an oxygen shortage. The government had one year to plan but they gave false promises, wrong narrative. We talk of becoming a superpower and we have become a laughing stock in the world.
“The people of India have put up with a lot of nonsense. But they will rise, no other country has the kind of resilience that India has. The government should apologise and start doing the right things.”
Ramesh said during the talk moderated by Congress spokesperson Pawan Khera that BJP chief J.P. Nadda had sought his advice some time ago.
Ramesh said he told Nadda: “You need a credible viewpoint. Put together a group and let them take the nation into confidence. When Dr Anthony Fauci (chief medical adviser to the US government) talks, people listen. Dr Randeep Guleria (the AIIMS director) is a credible voice. Get some outstanding professionals to brief the nation.”
Collapse of State
Ramesh contended that the collapse of the State was the most worrying aspect of the crisis and lamented: “The State machinery is in denial. You can’t respond unless you recognise what is the problem. I hope the international ridicule that this government has been subjected to over the past three-four days may trigger some meaningful action.
“It is awful; I feel ashamed to see how India is being described. I feel diminished, angry. Hope the system will respond to the criticism instead of sending rebuttals.”
Expressing outrage at the claim that nothing had been done in the 70 years before Narendra Modi took charge, Ramesh and Pitroda recalled what a gigantic task had been achieved by India in immunising its children and pregnant women and how it was achieved through a consensual approach, with openness and conversation.
They said the government had reached out to the scientific community, which had been divided on oral vaccination for polio, 70-80 experts had been called for discussion and civil society and NGOs were also involved.
“There was no communication system, no social media. Our team travelled to every state to give briefings to the chief ministers, elected representatives and local media. The Opposition-ruled states were far more cooperative because we didn’t treat them as enemies,” Ramesh said.
“We hear slogans like ‘Make in India’ today but it took lots of planning and efforts to make India the centre of vaccines and pharmaceutical productions. Beginning with the Indian Patents Act, 1970, setting up of the Technology Development Board and the Department of Biotechnology were the triggers for the creation of a slew of Indian companies.”
Recalling that India inoculated 25 million children every year with four vaccines, Ramesh said: “We didn’t have cold chain equipment. There were mishaps and deaths. But we didn’t hush up. We listened to complaints, admitted mistakes and opened the exercise for social and external audit (by Unicef). We didn’t shut doors on critics.”
Additional reporting by our legal correspondent and PTI