Protesters see attempt by EU to undermine Indian judiciary in the EU-FTA pact

People living with HIV, cancer patient groups and public health activists came out on the streets on Wednesday demanding that India reject the European Union’s demands in the European Union–India Free Trade Agreement (EU–India FTA) negotiations.

The protests coincide with Prime Minister Manmohan Singh’s visit to Germany to meet Chancellor Angela Merkel with the FTA on top of the agenda. On April 14 and 15, Commerce Minister Anand Sharma will be in Brussels for ministerial-level negotiations to finalise the agreement.

As both sides push for the early conclusion of the FTA, the latest leaks of the negotiating text show that the EU’s demands for harmful intellectual property and investment provisions have not stopped. The provisions require India to go beyond its WTO commitments and will have an adverse impact on access to medicines across the developing world, the activists said.

Y.K. Sapru of Cancer Patients Aid Association said the Supreme Court had kept Section 3(d) alive and intact in a case that had captured global attention and sparked off global debates on the need for developing countries to protect only genuine innovations in medicines .

“Having failed to get their way at the Supreme Court in the Novartis case, we can expect the EU to push its industry’s demands for changes in the Indian law to curb the Indian judiciary,” he said.

Intellectual property enforcement measures that go beyond the WTO’s TRIPS Agreement feature prominently in the leaked text and have been adopted from the Anti-Counterfeit Trade Agreement that was roundly rejected by the European Parliament. “The EU is demanding that its companies have the power to demand the freezing of bank accounts and seizure of properties of generic companies on the mere allegation of patent infringement and to drag third parties like treatment providers into litigation. These wide-ranging provisions aim to curtail the independence and discretionary powers of Indian Courts that have so far balanced patent rights with public interest in court cases,” Mr. Sapru explained.

Subverting the statute

Anand Grover, senior counsel and Director of Lawyers Collective, said the inclusion of these enforcement provisions would undermine the Indian judicial system and deprive people of access to justice. “Such provisions which impede fundamental rights — such as the right to health and access to medicines — threaten to subvert the fundamental tenets of the Constitution of India.”

The EU has also been demanding the inclusion of an investor-state dispute mechanism to allow MNC pharmaceutical companies to sue the Indian government in secret, international arbitration over health policies like drug price control, compulsory licences and even patent challenges.

According to Loon Gangte of Delhi Network of Positive People, with the Indian courts holding the Constitution paramount, this is a despicable attempt by the Europeans to bypass the Indian Constitution and Indian courts and move the litigation into secret tribunals overseas on the pretext of investment protection.

Indian groups are also expressing their apprehensions over the EU’s data exclusivity demands. The Indian government has maintained that it will not accept any provisions beyond the TRIPS Agreement.

“It is not true that all our concerns on access to medicines have been addressed. Enforcement and investment measures will put another nail in the coffin of access to the affordable, quality medicines MSF relies on to treat patients across the world,” Leena Menghaney of the MSF Access Campaign said. India should resist all demands that threaten public health in all their trade negotiations, she added.

The MSF is urging India not to sign the agreement unless all concerns related to access to medicines are fully addressed and have already written to Dr. Singh in this connection.