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Patents during transboundary crisis: An overview

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INTRODUCTION

The discrepancy in access to Covid-19 vaccines between rich and poor countries has become unavoidable; according to UNICEF data, 86% of all doses administered worldwide were administered to those in high-and upper-middle-income countries, while only 1% of jabs were administered to the world’s poorest. Considering this, in an ethically conscious move, India and South Africa in October, proposed a Patent waiver, over inventions related to covid, specifically the vaccines, to increase the global production of supplies to fight Covid-19. The patent waiver by foregoing the intellectual property rights aims to address the issue of availability, by allowing non-patent holding manufacturers to produce Covid-19 related inventions, especially the vaccines. Further, the patent waiver also aims to reduce the price of the vaccines by making them generic pharmaceutical formulations.

Many rich western nations have opposed this waiver vehemently, the belief that such a waiver may act “disincentive” for research and development and may also potentially harm innovation altogether. They argue that if the pharma companies do not regain the billions it has spent on the vaccines it may hurt the public interest in the long run. However, in the face of a public health crisis, it is extremely important to establish a balance between the commercial and public health interest of the state. Accordingly, the proposal has resurrected the age-old debate between the protection of IP rights and accessible medicines. In this article, the authors will examine arguments from those who oppose it and vice-versa.

WHAT IS A PATENT?

According to the World Intellectual Property Organization, a Patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem. Patents are not merely theoretical concepts; they play a vital role in everyday life. They stimulate the development of innovations and new technologies which inherently benefit humanity. In essence, the patent owner has the sole right to block or prohibit anyone from commercializing the patented idea. Thus, without the approval of the patent owner, the patented innovation cannot be commercially manufactured, used, disseminated, imported, or sold by others.

Patent rights are territorial in nature, which means that the exclusive rights granted are according to rules and regulations of the country it was filed and granted in. Further, patents granted in one country are independent of any subsequent patents granted in other countries. This principle has been set forth by Article 4(1) of the Paris Convention for Industrial Property, thus, a patent granted in one country does not affect the territorial boundary of that country and cannot be infringed upon in other countries.

In India, the current Patents Act, 1970, was enacted in 1972, updating and combining the old patent legislation in India. Its scope was expanded in 2005, to include product patents of all disciplines of technology, including food, pharmaceuticals, chemicals, and microorganisms. The amendment abolished the provisions relating to Exclusive Marketing Rights (EMRs) and replaced them with a clause authorizing the award of forced licenses. Additionally, Pre-and post-grant opposition processes were also implemented.

In addition to this, each patent granted in India is valid for twenty years from the date of filing, regardless of whether the application is filed with a provisional or complete specification. However, for applications filed under the Patent Cooperation Treaty (PCT), the twenty-year period begins on the date of international submission.

Further, the Indian government in its law specifies “what cannot be patented”. Accordingly, inventions that are frivolous, obvious, contrary to well established natural laws and contrary to law, morality, are not patentable in India. This includes a mere discovery of any new property or new use for a known substance or process, machine, or apparatus. Likewise, Inventions relating to agriculture or horticulture and inventions relating to atomic energy are not patentable.

PATENTING INVENTIONS RELATED TO COVID-19

Throughout the world, scientists and researchers are working feverishly to create low-cost and rapid diagnostic kits, treatments, and vaccinations for the unique COVID-19 virus. Additionally, low-cost ventilators are in high demand.

Abbott’s diagnostic test, which provides favourable results in less than five minutes, is a significant advancement. Mylab Discovery is the first company in India to have received approval to manufacture Covid-19 test kits. Even non-pharmaceutical companies are making concerted efforts to assist in this time of distress. Mahindra & Mahindra is one such company that is currently developing a low-cost ventilator.

However, it is vital to examine which Indian-based Covid-19 related patents are patentable from the start. As is the case in most jurisdictions, the Indian Patents Act, 1970 (“the Patents Act”) allows for the patenting of a product or technique that satisfies the requirements of novelty, non-obviousness, and usefulness. Conversely, the Patents Act precludes certain ideas from patentability; for example, using a known or currently existing medicine to treat Covid-19 may not be patentable in India. Accordingly, India prohibits patenting of “methods of treatment”, This includes diagnosing a disease. While methods of diagnosing Covid-19 may not be patentable, diagnostic devices are patentable. In and of itself, the software is not patentable in India. A software/hardware hybrid could be patented. Thus, software-enabled diagnostic instruments could be patentable. Further, as mentioned in Section 3(d), new forms of a known substance, such as salts, esters, isomers, etc., are not patentable unless the new form results in an augmentation of the known efficacy of that substance, likewise are not patentable.

However, Local innovators can still use e-filing in India during the lock-down. Because of this, applications must be filed through the Patent Cooperation Treaty or in other countries directly with an Indian filing date as the first-priority date. For existing patents, there should be ample supply accessible for exigencies.

CALL FOR AN INTELLECTUAL PROPERTY WAIVER

In stark contrast to the western countries, wherein covid-vaccination programs and so on, have been underway for a while now. However, countries such as India have been battling the second wave, which has resulted in 20 million active cases and 250,000 deaths amid a serious vaccine and oxygen shortage. The second wave highlighted the huge disparity in access to Covid-19 vaccines between the rich and poor countries, according to UNICEF data, 86% doses administered globally up to March 30th, 2021, have been too high- and upper-middle-income counties, whereas only 1% of vaccines were administered to the world’s poorest. Thus, the hoarding of vaccines by wealthier countries as the pandemic devastates economically disadvantaged countries has reintroduced the debate over vaccine patents. Hence, considering this, India and South Africa submitted a proposal at the World Trade Organization (WTO) to waive certain patents for the vaccine and treatments held by the pharmaceutical corporations under the Intellectual property Rights Treaty. This waiver would permit vaccine manufacturers in developing nations to manufacture vaccines without fear of legal action from firms that own patents on the medicines.

The purpose of the entire proposal is to meet the universal vaccination goal, as due to the slow rollout of the vaccines, mutant strains which are 50% more contagious have objectively become immune to the current vaccines, as consequence, the vaccines would need to be redesigned, further, a mutant strain-specific vaccine would have to be created to combat the new variants. This would make the entire exercise of the IP waiver redundant, thus a patent waiver may potentially prevent this from happening.

ARGUMENTS AGAINST THE IP WAIVER

While many countries such as the United States, France and so on, have put forward their support for the vaccine waiver, an organization including the World Bank and the European Union, and countries such as Japan, the UK, Switzerland, Brazil and Australia have opposed it. According, to former chancellor Angela Merkel, “waivers are not a solution to the vaccine supply issue”. In addition to this, they have condemned it as a threat to innovation, even after getting reassurance from WHO Chief Tedros, that the innovators will receive a royalty for the manufactured products. According to them, the only solution to such an issue is to increase the export of the vaccines and the ingredients in the finished product.

Pharmaceutical companies on the other hand argue, that the quality and safety of the vaccine depends on maintaining these intellectual property rights. It has been argued that most countries proposing such a wavier do not have the facilities, technology, and manufacturing expertise to produce said vaccines. Further, they have opposed the waiver because of the money and effort that goes into research and development of the vaccine, they believe that granting such a waiver would backpedal their investments and research. Immediately after the announcement by the US, the share price value for four major pharmaceutical companies observed a drop in their share prices. Many of these companies, enjoy a monopoly over the vaccines which bring in Billions in annual sales alone and this waiver could potentially result in a loss for them, further, they also raised the issue of safety and quality control for the manufacturing of these vaccines, which would allow many the chance to exploit the mRNA technology.

WHAT DOES AN INTELLECTUAL PROPERTY WAIVER DO?

The purpose of an intellectual property waiver is to temporarily “remove” the protections provided by the World Trade Organization (WTO), or the respective government. The proposal brought forward by India and South Africa proposes allowing countries a chance to opt-out of implementing patents and other intellectual property protection related to health products and technologies, such as diagnostics, therapeutics, vaccines, equipment and other materials or components, as well as “their methods and means for the prevention, treatment, or containment of COVID-19”. As a result, this would allow countries to work more on research and development while also absolving WTO members of liability for failing to implement the TRIPS Agreement during the pandemic. In addition to this, the IP waiver is a commitment that countries may make at their discretion. The proposal stipulates that the waiver must be effective for at least three years from the decision date.

The waiver does not automatically remove all intellectual property rights associated with vaccines, personal protective equipment, and ventilators; rather, it grants specific governments the choice to do so. As a result, it would merely provide a chance for middle-low-income countries to reserve those rights to raise supply proportionately.

PROCESS TO WAIVE INTELLECTUAL PROPERTY

For the IP rights to be waived, the vote to relinquish said patents, must be unanimous, i.e., the decision rests upon all 164 members of the World Trade Organization and even a single ‘No’ would result in the proposal’s rejection. Further, if the waivers are granted, vaccine developers will be required to disclose their manufacturing expertise. It is to be noted that this particular form of waiver has never been approved. The closest decision to a waiver was two decades ago when a temporary waiver was granted by the members of WTO, allowing poor nations to import low-cost generic medication for HIV, TB, and malaria during a similar public health crisis.

WHAT DOES IT MEAN FOR INDIA?

Amid the second wave of the pandemic, India is struggling to vaccinate its citizens, its main hurdle lies in the “demand and supply”, due to the scarcity in production of the vaccines. For India, to achieve “universal vaccination”, there is a requirement for 1,878 million doses i.e., two doses for 939 million adults, as there are only two manufacturers – Bharat Biotech and Serum Institute of India, with the current capacity to produce around 80-90 million doses, consequently a gap between the supply and demand of the vaccines. It was considering this, that the proposal was filed to the World Trade Organization (WTO). Thus, for India, a patent waiver would mean, access to raw materials and technology which will help speed up the supply process. This is critical because the Indian government is in discussions with numerous multinational vaccine manufacturers, including Pfizer, Moderna, and Johnson & Johnson, about making their vaccines available in India. Additionally, the waiver does not apply simply to vaccines; it also covers treatments, diagnostics, medical technology, and protective equipment, as well as the raw materials required to manufacture them, which India is now short of.

However, the Government of India within India has the authority, under the Patents Act, to issue a Suo moto declaration for a “grant of compulsory license” in times of such an emergency.

Under compulsory licensing, a government may allow someone else to produce a patented product or process without the consent of the patent owner or the plans to use the patent-protected innovation themselves, this is can only be employed during an “extreme urgency” or in the case of “public non-commercial use”.

It is also to be noted that the government partly owns the patent of Covaxin by Bharat Biotech and Serum Institute of India on the other hand possess the license to manufacture Covishield.

Accordingly, any interested party may apply for a grant under compulsory license, although this would be subject to the patent controller’s terms and conditions, this may potentially provide some relief. Some nations have already issued compulsory licensing for existing medications that are currently being studied for Covid-19 treatment. Israel has issued a compulsory license for lopinavir/ritonavir medications, including those used in conjunction with other products.

THE MORAL IMPERATIVE

Amid the 2nd wave’s rapid spread among nations, the continued emergence of new and deadly variants of the virus, the inability of the current vaccine makers to meet global demand, a Patent waiver has become an urgent practical, as well as a moral imperative. As a principle, Intellectual property rights should not stymie efforts to increase production in response to a public health emergency. In the said case, an increase in the production of vaccines, test kits, and other critical goods is crucial. Delays caused by these debates come at the cost of millions of Covid-19 deaths, viral mutations, which would lead to the current vaccines becoming redundant, infecting people who have already been vaccinated and so on. Nevertheless, in face of a transboundary health crisis, the world continues to debate this, prioritizing commercial and narrow corporates interests of these pharmaceutical companies. Arguments such as “China and Russia must be prevented from gaining the know-how to produce mRNA vaccines” are being given, not only is this a misguided attempt at diverting from the actual issue here, but the patent waiver proposal is also now being turned into a geopolitical issue. Continued resistance to the patent waiver only delays vaccine manufacturing, in countries capable of mass-production such as China and Russia, potentially putting everyone at risk.

Furthermore, an intellectual property right such as a patent requires balancing of costs and benefits. The patents provide an incentive for invention but at the cost of providing the patent holder 20 years of monopoly over the invention. Keeping this in mind, the merits of innovation must be balanced against the cost of monopolistic power, which constrains supply. Thus, in the event of such an emergency, patents rights must be waived to increase the supplies of potentially lifesaving materials.

Further, as recognized by the Trade-Related Aspects of Intellectual Property Rights (Trips) Agreement, government possess the right to override IP rights in the case of a necessity such as a pandemic, by enforcing compulsory licensing. This right is mentioned in S.84(1) of the Patents Act, 1970. Accordingly, this would grant local companies the right to use the patent-protected IP. The Trips agreement in 2001, recognized to use of compulsory licensing to safeguard public health. Thus, it is only logical to move is to take such a step. However, countries with the capacity to mass-produce, such as India, China, Russia and so on, have been reluctant to employ compulsory licensing, for fear of sanctions from organizations and countries such as the European Union and so on. Thus, the proposed waiver may potentially overcome this hindrance. Further, such a waiver may also be beneficial for non-vaccine technologies such as solvents, reagents, vaccine vials, test kits and so on.

Another argument put forward by the pharmaceutical industry is that the IP waiver would deprive them of their rightful profits, and financial incentives for future drug developments. Such statements are grossly overstated and demonstrate the triumph of greed over rationality. It is no secret that the IP held by “Moderna, Pfizer-BioNTech and so on” are not the result of privately funded innovation, the research and development were funded by the US government. Moderna alone received $955 million to accelerate its work, this included clinical trials. Although the companies later brought in private investors to assist with the manufacturing, carry the vaccines to fulfilment, it was done with the help of the US government. Thus, the research is part public and must be treated as such. Further, the WTO chief has reassured the patent holders that they will receive adequate compensation and royalties for the patents. Keeping the aforementioned in mind, the goal to reach universal vaccination is only hindered by growing corporate greed. Therefore, the patents must be made public without any further ado, complete with the know-how of the manufacturing in the spirit of solidarity to curb the pandemic.

Keeping in mind the aforementioned and the current pending status of the proposal, one may argue that the only realistic option left is to ensure that the wealthy nations fully finance and support the global vaccination alliance Covax, which currently is funding and supplying vaccines to the countries which cannot afford it. Further, in an attempt to meet the pharmaceutical companies halfway, it may be suggested voluntary licensing arrangements, such as AstraZeneca’s license to Serum Institute of India, combined with wealthy countries investing money to build up production plants in pandemic-hit countries. In addition to the issue with Intellectual property rights, this may also potentially solve the issue of accessibility for poorer nations.

CONCLUSION

In conclusion, the pandemic has brought forward the pressing issue of Intellectual property and how it affects the world during a transboundary crisis such as Covid-19. Thus, considering the scarcity in vaccines as well as raw materials, a proposal to waive said rights was filed to the World Trade Organization.

The present dispute over vaccination patents demonstrates that the contradiction between intellectual property and public health arises not from conflicting moral claims, but from conflicting institutional interests. As a moral imperative, the right to health much outweighs the right to be compensated for innovation and profit.

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Policy & Politics

All-time high exports of engineering goods in August suggest pandemic may be behind us: EEPC India chairman

Tarun Nangia

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Reflecting strong demand from its key markets, engineering goods exports to 24 out of 25 top nations recorded positive growth in August, 2021 blowing past its previous monthly record of US$ 9.13 billion in July.

Unlike the previous months, exports to China registered the second largest export destination witnessing positive monthly growth in August 2021. Shipments to China rose 15% in August to reach US$ 613.3 million as compared to US$ 531.3 million in the same month last year.

Malaysia was the only country which saw a negative trend in import of engineering goods from India.

The US continued to be on top of the chart with August import of engineering goods from India growing 42% to US$ 1.3 billion as compared to US$ 916.5 million in the same month last year.

All the European countries for India’s top 25 engineering export destinations – Italy, Germany, Turkey, Belgium, UK, Poland, Spain and France recorded high positive growth during August as well as on a cumulative basis this fiscal.

The share of India’s engineering exports to its top 25 nations accounted for 76.8% of India’s total engineering exports in April-August 2021. This significant high share is indicative of the dependence of India’s engineering export on the traditional markets.

India’s engineering exports was at its all-time monthly high for the second straight month in August. The robust performance of the sector resulted in the share of engineering goods in total merchandise exports during the previous month rising significantly.

Share of engineering in total merchandise export was 27.68% in August 2021 as against 25.82% in July, 27.19% in June, 25.44% in May, 24.83% in April 2021 and 25.36 percent in March 2021.

“In the month of August, engineering goods exports recorded more than 40% growth even when compared with the same month in 2019. It now seems that the pandemic is behind us. We are positively hopeful that as a result of a turnaround in global trade and policy support the sector would do better than expected in the full financial year,” said EEPC India Chairman Mr Mahesh Desai.

“The annual target of US$ 107 billion looks very doable even though the achievement till August fell a bit short of the target when calculated on a pro-rata basis,” he said.

During April-August period of 2021-22, India’s engineering exports have fallen short of the target set by about US$ 1.82 billion calculated on a pro-rata basis achieving 40% of the target against 42% of desired level for the full year.

Engineering exports crossed US$ 9 billion mark consecutively for the second time after the month of July, reaching an all-time high of US$ 9.21 billion in August.

Cumulative engineering exports during April-August 2021-22 stood at US$ 42.91 billion registering 66.18% growth over the shipments of April-August 2020-21 at US$ 25.82 billion.

Out of 33 engineering panels or product groups, 29 panels witnessed positive growth in exports and remaining four panels witnessed negative export growth during August 2021 vis-à-vis August 2020.

Exports of iron and steel recorded a continuous growth to the extent of 142% in August 2021 compared to the same period last year. In case of non-ferrous metals, sectors like Zinc and products exhibited negative growth in exports to the extent of 26% during the month of August 2021 vis-a-vis August 2020. All the remaining segments showed positive growth.

All the seven panels under Industrial machinery exhibited positive growth in August 2021 which led the total industrial machinery panel increase by 39% during August 2021.

Electrical Machinery and equipment which is a major engineering exporting sector for India experienced a growth in exports both monthly and on cumulative basis increasing to the extent of 26.8% from US$ 692.9 million in August 2020 to US$ 878.4 million in August 2021.

The automobile sector (combination of Two and Three wheelers and Motor vehicles and Cars) recorded consecutive massive jumps in exports to the extent of 57.5% primarily due to sharp jump in exports of Two and Three Wheelers by 72.4% and Motor Vehicles by 52.5% during August 2021.

Exports of Aircrafts and Spacecraft parts and products recorded 12.8% negative monthly growth while ‘Ship, Boats and Floating Bodies’ exhibited a monthly decline of 21.7%.

“The government has relentlessly supported the industry and we hope that the two key issues of high raw material prices and container shortage would also be looked into. The industry is awaiting proper rates under RoDTEP,” said EEPC India Chairman.

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Policy & Politics

Centre provides a massive relief to the exporters

The government releases Rs 56,027 crore under various Export Promotion Schemes.

Tarun Nangia

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The Government of India has decided to budget Rs 56,027 crore in this Financial Year FY 21-22 itself in order to disburse all pending export incentives due to exporters. This amount includes claims relating to MEIS, SEIS, RoSL, RoSCTL, other scrip based schemes relating to earlier policies and the remission support for RoDTEP and RoSCTL for exports made in the 4th quarter of FY 20-21. Benefits would be disbursed to more than 45,000 exporters, out of which about 98% are small exporters in the MSME category.

The amount of Rs 56,027 crores of arrears is for different export promotion and remission schemes: MEIS (Rs 33,010 crore), SEIS (Rs 10,002 crore), RoSCTL (Rs 5,286 cr), RoSL (Rs 330 crore), RoDTEP(Rs 2,568 crore), other legacy Schemes like Target Plus etc (Rs 4,831 crore). This amount is over and above duty remission amount of Rs 12,454 crore for the RoDTEP scheme and Rs 6,946 crore for RoSCTLscheme already announced for exports made in this year i.e. FY 2021-22.

Exports in India have seen robust growth in recent months. Merchandise exports for April-August, 2021 was nearly $164 billion, which is an increase of 67% over 2020-21 and 23% over 2019-20. This decision to clear all pending export incentives within this financial year, will lead to even more rapid export growth in coming months.

For merchandise exports, all sectors covered under MEIS, such as Pharmaceuticals, Iron and steel, Engineering, Chemicals, Fisheries, Agriculture and allied Sectors, Auto and Auto Components would be able to claim benefits for exports made in earlier years. Benefits would help such sectors to maintain cash flows and meet export demand in international market, which is recovering fast this financial year.

Service sector exporters, including those in the travel, tourism and hospitality segments will be able to claim SEIS benefits for FY 2019-2020, for which Rs 2,061 crore has been provisioned. The SEIS for FY 2019-20 with certain revisions in service categories and rates is being notified. This support would have a multiplier effect and spur employment generation.

The apparel sector, which is a major labour-intensive sector, would get past arrears under ROSCTL and ROSL, and all stakeholders in the interconnected supply chains would be strengthened to meet the festive season demand in international markets.

Export claims relating to earlier years will need to be filed by the exporters by 31st December 2021 beyond which they will become time barred. The Online IT portal will be enabled shortly to accept MEIS and other scrip based applications and would be integrated with a robust mechanism set up by Ministry of Finance to monitor provisioning and disbursement of the export incentives under a budgetary framework.

A decision to clear all pending export incentives within this Financial Year itself despite other budgetary commitments arising out of the pandemic is with the objective of providing timely and crucial support to this vital pillar of Indian economy.

FIEO HAILS GOVERNMENT’S DECISION TO DISBURSE ALL PENDING EXPORT INCENTIVES TO EASE THE LIQUIDITY AT MOST CHALLENGING TIMES: DR SAKTHIVEL

Welcoming the government’s decision of budgeting an amount of Rs 56,027 crores to disburse all pending export incentives due to exporters as claims related to different export promotion and remission schemes including MEIS, SEIS, RoSL, RoSCTL, other scrip-based schemes relating to earlier policies and the remission support for RoDTEP and RoSCTL for exports made in the 4th quarter of FY 20-21, FIEO President, Dr A Sakthivel said that such a move will help the sector in meeting the liquidity concerns and maintaining cash flow of the exports sector thereby further facilitating in addressing the export demand in the international market.

Benefits to be disbursed to over 45,000 exporters, specially those from the MSME sector has come as a booster dose for them as it would help them to be able to complete their booked order more efficiently, said Dr Sakthivel. Thanking the Hon’ble Prime Minister, the Union Commerce & Industry and Textiles Minister and the Union Finance Minister, President, FIEO added that the decision will lead to an even more rapid growth in exports in coming months.

FIEO Chief said that support to Service sector exporters, including those in the travel, tourism and hospitality segments, with certain revisions in service categories and rates being notified will not only have a multiplier effect but will also help in employment generation. Incentivising major labour-intensive sectors and all the stakeholders including those from the supply chain will help in strengthening their endeavours to meet the festive season demand in the international market.

Such support and handholding to the sector during these challenging times, when the whole exporting community is showing their commitment and resilience to perform impressively has definitely given a boost to the government vision of achieving USD 400 billion exports for the fiscal. Dr Sakthivel said that these announcements has further infused confidence in exporters that the Government is working hand in hand with exporters as promised by our Hon’ble Prime Minister.

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Policy & Politics

Analysing a bill passed by Rajasthan Assembly that allows registration of child marriages

Surya Pratap

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“Unity is meaningless without the accompaniment of women. Education is fruitless without educated women and agitation is incomplete without the strength of women.”

— Dr BR Ambedkar

The opposition Bharatiya Janata Party (BJP) charged on September 17 that the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, which was passed by voice vote in the state Assembly to amend a 2009 Act on mandatory marriage registration within 30 days of the union, will legitimise child marriages.

Despite parliamentary affairs minister Shanti Kumar Dhariwaldefended the Bill by claiming that registering child marriage does not make it legitimate, the opposition staged a walkout. He also promised that anyone who organise child weddings, even after they have been registered, will face consequences.

JUDGMENT OF THE SC IN 2006

The minister further informed the House that the Supreme Court had ordered that all forms of weddings be registered in its 2006 decision in Seema vs Ashwini Kumar.

He claimed that registering child weddings does not legitimisethem, and that if a kid gets married, he or she will have the ability to dissolve the marriage once they reach adulthood.

WHAT DOES THE BILL STATE?

On 17 September, the Rajasthan Assembly passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, which changes the Rajasthan Compulsory Registration of Marriages Act, 2009, and requires parents or guardians to provide information on child marriages within 30 days after the wedding.

The Bharatiya Janata Party (BJP) questioned the need for child marriage registration and asked that the law be withdrawn. “How can they include child marriage in this Bill if child marriage is prohibited? All of this is done by Congress in order to create a vote bank.” If this measure passes, the assembly will have a bad day. Is it possible for the assembly to agree to legalise child marriages? We shall approve child weddings by a show of hands. The bill would write a dark chapter in the assembly’s history. Ashok, a BJP MLA.

WHAT DOES THE GOVERNMENT SAY?

Shanti Kumar Dhariwal, the Parliamentary Affairs Minister, defended the legislation, saying, “The bill makes no mention of the legality of child marriage. According to the bill, only registration is required after marriage. This is not to say that child marriage is legal. The district collector can still take action against underage marriages if he or she so desires.”

Dhariwal further stated that the legislation now allows for registration at the District Marriage Registration Officer, Additional District Marriage Registration Officer, and Block Marriage Registration Officer levels. These officers will be able to monitor and review the work of registration. This will make it easier for the general public to register. This will bring simplicity and transparency to the work. He further said that the marriage registration certificate was a legal document without which widows would be unable to benefit from numerous government programmes. According to him, any or both parties in a marriage will be entitled to file for marriage registration and get a certificate as a result of the mandatory registration.

MARRIAGES IN INDIA

Although no comprehensive data is available, estimates show that at least 1.5 million girls under the age of 18 marry each year in India, making it the country with the most child brides in the world, accounting for a third of the global total. While the percentage of females marrying before the age of 18 has decreased from 47% to 27% between 2005-2006 and 2015-2016, it is still too high.

Multiple reasons, including greater maternal literacy, improved access to education for girls, robust laws, and migration from rural to urban regions, may be contributing to the reduction. Among the reasons for the shift include increased rates of girls’ education, aggressive government investments in teenage girls, and strong public messaging about the illegality of child marriage and the harm it causes.

At the global level, child marriage is included in Goal 5 “Achieve gender equality and empower all women and girls” Under Target 5.3 “Eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation”.

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Policy & Politics

Will we hand over a ruined world to our posterity?

The world engaged in the race for power has waged a relentless war against nature. If nature does not survive, we will not survive either.

Vijay Darda

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I was performing ‘Pratikraman’ (introspection) on the occasion of Paryushan Parva and felt that this festival embraces the entire environment. I was seeking forgiveness from all the creatures of water, land and sky. I was asking for forgiveness from human beings, I was asking for forgiveness from trees, birds, insects and moths and also from animals. While doing so, a question came up in my mind that while we worship the five elements, do we practise it meaningfully in day-to-day life? Why has man deliberately waged a war against the nature? Every loss of nature is our loss, then why are we hoisting with our own petard?

I am always in a state of contemplation about the environment and it worries me that the craving of the present generation of human beings is causing huge damage to the environment and we are not only suffering because of it, our children are suffering too. I don’t understand how much of a ruined world we will leave for the generations to come. Environment is the most important subject for me. There are many people like me who care about the environment but there is a large section that doesn’t care! This world is heading for destruction. We do not even think about how much carbon dioxide we are emitting even personally. When I look around myself, I am amazed. In my institution, my offices are visited by so many people. Some come by car and some by motorcycle. How much carbon is being emitted! This emission can be reduced if public modes of transport are available. If many people ride in a bus or train, the emissions per person will be less, but if one person is going by car then it is unfair.

When I used to look at the operation of machines in the printing press of my institution and the consumption of electricity in the offices, I used to think that this electricity is made from coal and how much carbon is being emitted from it. This concern turned us towards solar energy and we are using solar energy to print newspapers. Yes, we have to invest heavily for this, but we take comfort from the fact that we have taken steps towards environmental protection.

Actually every person will have to be concerned and many options will have to be adopted at the personal level. We can’t rely only on the government. Even our small efforts can be effective. Take, for example, the need to prevent food wastage. Statistics show that about 70 per cent of food grains and fruits are wasted. During the production of cereals and fruits, the electricity used in irrigation or the production of pesticides causes a lot of damage to the environment. What a benefit it would be if we could save grains and fruits from being wasted!

There have been many conferences on the environment under the banner of the United Nations. When the conference was held in Geneva, more than a hundred countries had agreed to save the environment. This resolution was also repeated in Rio de Janeiro and Paris. In 1994, it was decided that by the year 2000, carbon emissions in the world would be brought down to 1990 levels. In this task, developed countries will help developing countries financially and technologically. But what happened? The agreement was left in abeyance! Even in 2019, the then US President Trump broke the Paris Agreement on global warming. On the other hand, it blamed India, Russia and China that these countries are not doing anything and American money is being wasted. But the fact is that America is not even allowing the appointment of an inspector who audits carbon emissions in the world. Surely America has inflicted the maximum damage to the environment, so it should pay for it too. The compulsions of developing countries also have to be taken into account. If you work, a lot will go wrong but that doesn’t mean you should point your finger at it. Five, ten, fifteen or twenty per cent errors will occur but 80 per cent of good things will happen!

As of now, the situation is extremely worrisome. Forests are being annihilated. Rivers are drying up, the atmosphere is getting polluted, the ozone layer is getting thinner and mountains are getting washed away. Many animals have become extinct. Diseases are on the rise. It goes without saying that the destruction of the environment means the destruction of the human species! Can any of our government units today say that they are not harming the environment? We all have to find a way to get better because we have done this destruction! You will remember the period of lockdown when people were locked in their homes, the nature started becoming so wonderful. We may not impose a lockdown but change the behaviour! Just think, what kind of world will we leave for our posterity?

At present I am in Switzerland. There is no air pollution here. Rivers are flowing smooth and clear. The lakes are absolutely clean. There is an excellent system of disposal of medical waste. Trash is nowhere to be seen. I talked to the local people. They say this is our responsibility. If only this kind of thinking developed all over the world! Everyone should be concerned about the environment and think about how to make this world a beautiful place to live in!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha. vijaydarda@lokmat.com

We are all engaged in the struggle of life. But on the issue of the environment, due to which we are enjoying our life, we do not see the same vigour. Man seems to be hell-bent on destroying the environment. Keep in mind that if the environment is not preserved and protected, human beings will not survive on the earth too!

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Policy & Politics

Making it happen: ZIIEI initiative of Aurobindo Society

Anil Swarup

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It was March 17th 2018. In my capacity as Secretary, School Education, Government of India I visited Agra to launch Innovative Pathshaala- a series of booklets for the teachers comprising experiential and activity-based lesson plans mapped with the State Board. The event was organized by Sri Aurobindo Society and HDFC Bank’s initiative, ‘Zero-Investment Innovations for Education Initiatives’ (ZIIEI). There were education officers and teachers from many districts of Uttar Pradesh and I could sense a lot of positive energy and the collective zeal to bring about a transformation in school education. ‘Rupantar’, a nation-wide education transformation programme of Sri Aurobindo Society was on show.

What I saw was just a glimpse of a bigger change that was being attempted through the power of zero-investment innovations in education. These were innovations developed and contributed by the teachers from length and breadth of the country as a part of the ‘Zero-Investment Innovations for Education Initiatives’ (ZIIEI) under inspired leadership of Sambhrant Sharma.

ZIIEI started its journey from Uttar Pradesh in the year 2015-16. The aim was to bring the best practices and zero-investment innovative ideas of the teachers to the forefront. Since then, ZIIEI has travelled a long distance. With more than 20 lakh teachers oriented towards zero-investment innovation ecosystem, accessing experiential-activity based teaching content digitally and impacting around 2 crore students with innovative and best teaching practices, ZIIEI has moved beyond the peripheries of an initiative, it has become a mass movement in education.

The movement has been acknowledged and appreciated by the President of India. The Vice President of India too went on to state, “Teachers lead students on the path of becoming self-reliant. I am glad to know that Sri Aurobindo Society’s education initiative ZIIEI is giving the confidence to the teachers to experiment with new ideas.”

In early 2016 when the teacher started attending the one-day training session in all the 75 districts of Uttar Pradesh, they assumed that another long-drawn lecture would be delivered to them. However, to their surprise, instead of telling the teachers what to do, ZIIEI team members asked for inputs and zero-investment innovations from them to improve the quality of education. When there’s no cost involved there is no barter, no favours, only free flow of optimism and collective efforts takes place. As mentioned in the Process Monitoring Report on ZIIEI submitted by Tata Institute of Social Sciences (TISS), ZIIEI reflects an approach where engagement with all stakeholders in planning, strategizing and implementation process, has resulted in better outcomes

ZIIEI aims to develop joyful, engaging and experiential teaching- learning environment in classrooms. Teacher training sessions ZIIEI programme provided the much need platform and support for innovation in education but there still remained a gap in regular practice of zero-investment innovations. To bridge this gap and make everyday teaching – learning a joyful process, ZIIEI programme developed “Innovative Pathshaala”- the teaching tool for teachers. Each subject specific book, mapped with the respective State board, is a repository of innovative teaching methods based on zero-investment ideas published in the state specific Innovations Handbook/Navachar Pustika. These books give teacher the choice to deliver any topic using different types of activities. Innovative Pathshaala booklets have been distributed in more than 5,000 schools, and more than 20 lakh users access experiential teaching content in Innovative Pathshaala App.

ZIIEI has emerged as the largest programme in terms of the number of teachers receiving support and the number of States in India in which the programme directly operates.

The assessment report submitted by KPMG (India) on ZIIEI programme states that ZIIEI has successfully instilled high motivation in teachers, empowered them to become torch-bearers of transformation in education and enabled them to change their roles from ‘passive’ followers to ‘active’ contributors.

Boosted with high motivation and realization of their true potentials, lakhs of teachers share their innovative ideas with ZIIEI team members. All the ideas are evaluated by following a stringent, transparent and rigorous process. The potential ones are short-listed, and compiled in State specific Innovation Handbook/Navachar Pustika. The ideas in Navachar Pustika aim at creating a holistic environment for students, with equal emphasis on New-Age Teaching Techniques, Community Participation, Simplified Language Learning to Nation Building, and Health-Sanitation-Nutrition of the Students.

In 2016, the first Innovation Handbook/Navachar Pustika was launched. The growth, acceptance and significance of the programme is evident from the fact that 53 Innovations Handbooks/Navachar Pustika have been launched so far. Thus, for most of the States/UT’s at least two editions have been released.

The teachers look up to Navachar Pustika as the testimony of their efforts and significant contribution in making education better. Teachers whose ideas are selected in Navachar Pustika are recognized and felicitated at the National Conference & Workshop organised by Sri Aurobindo Society and HDFC Bank. Around 1,500 innovative teachers from all the States/UT’s and numerous education officers have received award from top leadership at the Central government. These annual events have become an integral part of bringing all the stakeholders in education and policy-makers at a common platform

The Covid-19 global pandemic has changed the way we used to perceive teaching and learning. The world is swiftly moving to digital platforms and our teachers need to acquire the skills to make their online classes as engaging and experiential as their physical classrooms. Aligning with the new needs, Innovative Pathshaala has developed teaching material for the teachers which can be used online and offline in classrooms. With the focus on learning outcomes, online training sessions are being organized for the teachers of 300 districts. These 300 districts will soon have Role-Model Schools which will be center of excellence and inspiration for others.

The efforts under ZIIEI and Innovative Pathshaala are in alignment with the vision of National Education Policy -2020. Through ZIIEI, Rupanatar is playing contributing role as a catalyst in bringing a positive change in education.

Aurobindo Society has demonstrated that even in the complex terrain of school education, impact can be created and that impact can be scaled through public-private partnership. They have made-it-happen and the impact what they have managed through Rupantar is clearly visible.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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Policy & Politics

The scepticism about ‘electronic evidence’ in India

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Technology has always been a double-edged sword which can be used for both good and bad, this equivocal nature of technology has been rightly expressed in the fitting words of Christian Lous Lange, “Technology is a useful servant but a dangerous master”. The leakage of WhatsApp chats in recent times has shed some light on the concept of electronic evidence and its admissibility both in a civil and criminal trial in India. Legal provisions dealing with the admissibility of electronic evidence in India should be critically examined as the leakage of WhatsApp chats at the investment stage even before the commencement of trial has been an issue. Section 65B of the Indian Evidence Act, 1872, talks about a specific legal framework governing the admissibility of electronic evidence in India, in regards to various judicial instances, Indian courts have exemplified perceptiveness towards electronic evidence in India which further apprehend its admissibility.

In the modern era, the usage of electronic devices such as smartphones, laptops, computers, etc. is prolific. Moreover, these devices generate data to a great extent, originating a call for digital evidence in any investigation. Electronic evidence can turn out to be very significant if the evidence is analysed appropriately via forensics after being identified.

The admissibility of electronic evidence is not a present-day theory, it goes back with time but the evolution and innovation in the prevention of the production of evidence have changed for good concerning the fact that usage of electronic evidence is at surge. The introduction of the Information Technology Act 2000 concerning technology laws, led to various amendments to

the specific legal frameworks namely Indian Evidence Act 1872, Indian Penal code 1860, etc. which made electronic evidence admissible in India.

THE SIGNIFICANCE OF ELECTRONIC EVIDENCE

Electronic or digital evidence is the data stored within electronic devices such as smartphones, laptops, etc., and can be extracted by forensic experts to use it as a piece of admissible evidence in the courtroom. Section 3 of the Indian Evidence defines evidence as “All the statements which are allowed in the court to be presented before it by the witnesses and have a connection with the matter of fact for further inquiry” Digital evidence plays a significant role in the modern world, keeping in mind the prolific usage of electronic devices. With the surge in the amount of data generated by digital devices, there is a high prospect of the discovery of electronic evidence. Accumulation of important data on a digital platform which can be presented as significant evidence in the court comes with a lot of security concerns. The major concern of the investigators is the preservation of digital evidence in a secure state with an assurance that that data is authentic, untouched, unaltered, and stored in a hard drive.

EVOLUTION AND INNOVATION OF ELECTRONIC EVIDENCE IN INDIA

The first half of the 20th century pretty much relied on paper but with time people shifted from paper to bits, due to the increase in the usage of digital communication methods over time the amount of data stored in digital form adequately increased. The shift from paper to digital data gave rise to an essential use of this information by bringing it to the court, but there was an expository question to the integrity of the digital evidence as alteration, malicious modification, destruction of the electronic evidence was at ease in the latter half of 20thcentury. The evolution of technology and information security prompted some methods for scrutinizing digital evidence, namely Checksum, One-way hash algorithm, Digital signature, etc, bearing some advantages and disadvantages. On Oct 17th, 2000 the Information Technology Act was enacted by the Indian government roused from the United Nations Commission on International Trade Law(UNICITRAL) which resulted in various amendments to some specific legal statutes concerning digital evidence. In a recent case of Anvar P.K. v. P.K.Basheer and ors., the Supreme Court of India overruled the judgment of another notable case, State v. Navjot Sandhu by redefining the application of sections 63, 65 & 65B of the Indian Evidence Act which further enlightened the evidentiary value of electronic evidence in India.

LEGAL FRAMEWORKS REGULATING DIGITAL EVIDENCE IN INDIA

The introduction of the Information Technology Act, 2000 elucidated the electronic form of evidence stating it as an electronic record, section 2(1)(t) of the IT Act defines “Electronic Record” as the data generated or stored, an image or sound stored that is sent from one end and received on another in an electronic or digital form. The term ‘electronic record’ was included in the term ‘evidence’ under the Indian Evidence Act followed by the amendment in Section 92 of the Information Technology Act. Steering court proceedings to utilize electronic evidence as an essential piece of information requires specific provisions, the Indian Evidence Act, 1872, regulates digital evidence in India.

• Section 45A of the evidence act talks about the opinion of the investigator who examines the electronic evidence as a relevant fact referred to under section 79A of IT Act 2000.

• Section 47A of the Indian Evidence Act states that the opinion of the certifying authority that issued the digital signature certificate will be a relevant fact when comes to the relevancy of an electronic signature.

• Electronic evidence must comply with the criteria stated under Section 65B to be deemed as an admissible piece of evidence in the courtroom. The paper on which the information of electronic record in printed or a form of media containing the information of such record will be admissible in any legal proceeding if the conditionsmentioned under section 65B(2) are fulfilled.

According to Section 65B of the Evidence Act, “The Data stored in an electronic record, whether it be the contents of a document or a conversation printed on paper, or stored, recorded, or copied in optical or magnetic media generated by a computer will be considered as a document and will be admissible as evidence without any further proof of the document.”

ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIA VIS-À-VIS THE JUDICIAL INSTANCES

In the case of Anvar P.K. v. P.K. Basheer & Ors, as per the court, the certificate specified in Section (65)(B)(4), is required and does not come with an alternative. It is a unique clause that takes priority over the general requirements of Sections 63 and 65. The case of State (NCT of Delhi) v. Navjot Sandhu was overturned to the extent that the certificate was now deemed necessary. In the same matter, it was stated that an oral admission on the substance of electronic evidence is irrelevant unless the electronic evidence’s authenticity is in dispute, as stated in Section 22 of the Evidence Act.

Further in the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr., “As the voice recorder is not submitted to inspection, there is no sense in emphasizing the translated version,” the court said, referring to the decision in Anvar PV’s case. The translation is questionable since it lacks a source. The two most important aspects of electronic evidence are the source and authenticity.” In Tomaso Bruno and Anr. v. State of Uttar Pradesh, the relevance of electronic evidence and scientific procedures in the evidence-gathering process was demonstrated in this case. Procedural and electronic evidence under Sections 65A and 65B are admissible, as per the court.

In the recent case, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others, a three-judge bench led by J. RF Nariman resolved the uncertainty surrounding multiple interpretations of Section 65(B)(4) and rejected Shafhi Mohammad’s decision, supporting the position that a certificate issued under this section is not an option among several, but a necessity.

Various other judgments have also addressed the requirement of the severe criteria stated in section 65B of the Evidence Act. The Delhi High Court supported the necessity of section 65B in Dharambir v. CBI, noting that they are for the development of the law.

In a recent Supreme Court decision, the conflicting viewpoints on section 65B of the Evidence Act were ultimately resolved. In 2014, the Supreme Court, in the case of Anvar P.K. v. P.K Basheer and Ors., took a positivist approach and concluded that, under the existing legal frameworks, section 65B is indeed required, and courts must implement the criteria outlined in the Section. If any modifications are anticipated, the Legislature must take the lead rather than the courts, which just obey the procedures declared by the law.

THE FUTURE OUTLOOK OF COURTS TRANSITIONING INTOTECHNOLOGICAL COMMUNISM AFTER THE PANDEMIC

The Covid-19 crisis has come to a head concern that has sparked debate for ages. Even though the concept of e-courts has been debated for some time, the Indian judicial system has not been able to keep up with it on a digital platform. Linked with a cycle of re-designing and simplifying court tactics, the Indian judiciary, both in its physical and virtual structures, is looking forward to a bright future in terms of the development and resolution of some of its long-standing concerns. While our nation is struggling with a national health and financial emergency, it is essential to think outside the box and reform the perspective of work culture and a high time now for the courts to accept the prevailing innovation. On the contrary technology will have a significant impact on future of Indian judiciary and legislature, since the technology that is yet to be discovered will evolve and restructure the way of living our lives.

CONCLUSION

The major point of contention in regards of electronic evidence is to ensure its authenticity, veracity, genuineness, and dependability for it to be accepted in court. Following the Supreme Court’s judgment in Anvar’s case, which established the standards for admission of electronic evidence, Indian courts have been expected to use a uniform approach and implement all available precautions for admitting and valuing electronic evidence.

It is now a well-established fact that any electronic evidence, even if it is a secondary evidence, must adhere to the provisions of Section 65B of the Indian Evidence Act; it is typically inadmissible in a court of law without a certificate. Electronic gadgets can turn out to be extremely useful in investigations, but their usefulness is contingent on their compliance with the regulations of the Indian Evidence Act.

The laws regulating digital evidence in India made it clear that just including e-evidence in the legislation would not assist the case, the procedural issues that arose as a result of the usage of e-evidence should be addressed as soon as possible. Law, along with everything else, must evolve to keep up with the technological advancements. While nations like England have recognized this issue and implemented certain adjustments to their laws which resulted in electronic evidence being more effective. Although the courts have addressed the issues occasionally, it is the Legislature that should intercede for good.

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