JAIPUR (Rajasthan) -- During his last visit to Washington the finance minister, Mr. Yashwant Sinha, had announced that he would introduce the IRA Bill in the parliament within three days of formation of the new government.  He believes that a huge amount is needed for investment in Indian infrastructure projects.  Since a ‘poor’ country like India can not afford this, immediate foreign participation in insurance sector is required.  In the background of normal working speed of the government, Mr. Sinha’s fulfillment of the promise in toto is truly revealing! It is to be noted here that the BJP had termed the introduction of IRA bill in August 1997 as a sellout to imperialists and even forced the Gujral government to withdraw the bill.  

The major change between then and now is that BJP is now in power. Second difference is that the earlier bill provided for an overall foreign equity of 40 percent including NRIs and OCBs etc., whereas the present bill limits this to 26 per cent.  If this bill becomes law the LIC and GICs of India will face a stiff challenge from private companies.  But an interesting provision in the new bill makes it obligatory for the Indian promoters of such companies to reduce their equity from 74 per cent to 26 per cent after ten years.  This will enable the MNCs to roam freely in the insurance field after this period.  This also exposes the minister’s claim of only mobilizing foreign capital.  Had that been so, the compulsory disinvestment clause by the Indian promoters would not have been necessary.  The way the automobile (especially cars) sector has gone into the hands of MNCs only reinforces this impression.

This is not the first example of Indian government showing deep earnestness in the services of MNCs. The Rao government ensured minimum profit to power companies by way of counter-guarantees.  Private cell phone operators were bailed out by the last Vajpayee government that went to the extent of changing the portfolio of an upright man like Jagmohan.  Inspite of the assurance of the erstwhile minister Mr. Skinner Bath to Parliament, the government has not done away with compulsory iodization of salt despite expert opinion favoring such a step. There were news items about how MNCs manipulate the compensations to their employees to not only evade income tax but also violate FERA provisions.  Barring a few instances of settlements, no prosecution was reported on this account.  On the contrary, the govt tried to discreetly table the FEMA bill in Loksabha on Oct. 29 but failed.

The motivation behind the government’s commitment to the IRA bill ‘99 can be guessed by the fact that the diplomatic corps were present to watch these proceedings in Loksabha.  This innocuous-looking event raises a troubling question.  Will the Parliament have to function before the watchful eyes of the advocates of MNCs?  Be it the case of Union Carbide or the manipulation of workers’ compensations by the MNCs, the experience till now only shows the Indian government’s inability and unwillingness to enforce its laws especially on MNCs. If the government is only to bend on its knees before the businessmen, then why not start with domestic sector? Allow them to invest money in the infrastructure and earn also without asking about the source of the capital invested.  After all, the MNCs or even NRIs do not reveal their source of capital to Indian government.  Why this discrimination?

The way the Patents (amendment) Bill ‘99 was passed by Loksabha during the previous Vajpayee govt. is even more a cause of concern. This bill was passed by Rajya Sabha on Dec. 22, 1998. The Law Commission headed by Justice Jeevan Reddy had taken up suo motu the issue of the legislation in view of its fundamental importance and found serious omissions from the bill. The most important was not availing of certain exemptions provided through Article 27 of the Agreement on Trade Related Aspects of intellectual Property Rights (TRIPs).  The Commission submitted its report to the government on Feb. 22, ‘99.  It suggested that the Bill should include sections to take advantage of TRIPs provision to exclude patentability in certain areas.  These include diagnostic, therapeutic and surgical methods for treatment of humans or animals. Also, inventions of such commercial exploitation should be prevented to uphold public order or morality, and protect human, animal or plant life or health or to avoid serious prejudice to the environment.

The commission felt that the exemption provided for articles based on the Indian medicine system needs to be made more specific.  The definition of “Indian medicine” does not take into account indigenous medicine or practices.  “It is necessary to safeguard our traditional knowledge and practices, still popular among the rural and tribal communities, from being covered by exclusive marketing rights,” it says.

The report, therefore, recommends that a phrase should be added covering” any article, substance or method indigenously used or intended to be used for treatment”.  According to the commission, these provisions are necessary since the existing patents Act 1970 does not provide for them.  There were some other suggestions also. (Source: the Hindu, March 14 and Jansatta, March 12,1999).

What did the government do? Every thing not to do anything. After receiving the report on Feb. 26, the govt. sat over it and let the bill pass in Loksabha on March10. On a matter of such far reaching consequences, most of the senior opposition members were absent during the debate on the bill (Jansatta, March 10,  ’99).

The matter of suppressing the Commission’s report from the Loksabha was raised two days after passage of the bill.  It reflects poorly on the lack of alertness or interest of the opposition not to have known that the Law Commission has submitted such report to the govt. eleven days before the bill was introduced on  March 9.  If it kept quiet willingly and just satisfied its ego by articulating appropriate language and gestures then it is all the more troubling.

Whether the politicians devoted enough time to the subject or not, the newspapers have been covering the issue of patents and TRIPs ever since the eighth round of GATT talks started in Uruguay.  The govt. had two alternatives on TRIPs after the World Trade Organization was duly constituted.  It could either accept the product patent system in place of the existing process patent regime or go for the exclusive marketing rights (EMRs) in the transition period upto December 31, 2004.  Under the later, anyone belonging to a WTO signatory state could ask for EMR in India for any product which already was covered by either EMR or patent in any WTO member country.  The govt. does not have the power even to examine the validity or the authenticity of the claim.  It is almost an automatic process.  Looking to the undesirable aspects of this provision, most of the experts recommended to go straight for product patent system through which the govt. could at least examine the genuineness of the claim and/or desirability for patents. Undeterred, the govt. opted for the EMR approach.

The patent act is a glaring example of how very basic issues become irrelevant in the din of liberalization and globalization.  This also exposed the hypocrisy and the betrayal by the politicians in power.  The eighth round of GATT negotiation started in 1986. Mr. V. P. Singh was then the Commerce Minister.  In the midterm review conference in 1988, Mr. Dinesh Singh replaced him.  Till then, India alongwith other developing countries, opposed the American agenda. All of a sudden, India surrendered in April 1989 and Indian delegation agreed to discuss the same, under the leadership of former Commerce Secretary Mr. Amar Nath Verma.  Ever since it has been a one-way process.  The coordinator of the National Task Force on Patents, Mr. B. K. Kela believes that the reason behind this sudden somersault was the threat of exposure of corruption indulged in by the top Indian politicians (Mr. Rajiv Gandhi, Jansatta 01-31-99). Patents or GATT is a highly technical subject.  Only the experts can judge the fairness or otherwise the conduct of the Indian government in this regard. The purpose of referring to the aforesaid is to emphasize on how even a great democracy like India could be enslaved forever because of misdemeanors of a single man!

There is another aspect of the patent issue.  If a country does not want to provide for patenting of seeds then it should provide an effective sui-generis system of protection. The TRIPs agreement also provides for a combination of the two.  The dictionary meaning of the phrase  Sui-generis is: of his, her, its or their particular kind, unique. Synonym: unmatchable.

What this suggests in this particular context is that Indian Neem (Melia Azadarichta) is a particular kind of its own and, therefore, cannot be patented. To ensure that all such plants etc of India are protected from being patented, some legislative and administrative steps are required to be taken.  It is said that things like a National Plants Register and others should register clearly  the entire bio-diversity wealth of India. There are at least two legislations, pending since the last Loksabha, which also deal with the subject. These are (i) The plant variety and the farmer’s Rights protection Bill, and (2) The Bio-diversity Bill.

The phrase sui-generis is in vogue ever since the Uruguay round, in the concerned circles.  What exactly this means, how such system is to be adopted and implemented also is unclear to the people of this country.  The least that can be said is that the task is gigantic.  Governments of every hue and color have been in power at center in the last decade.  Even Mr. V. P. Singh who, as commerce minister, fought the American agenda in 1986, became the Prime Minister and yet reconciled a completely contradictory situation.  WTO was not in existence till then. India could have rallied the developing world again to protect their interests firmly.  But alas! No govt. did any thing to protect the theft and commercial exploitation of India’s bio-diversity.  They, of course, were prompt in addressing the grievances of MNCs and  protecting fully their interest.  

The indifferent attitude of our bureaucracy is very well reflected through an interview of the former commerce secretary telecast on DD and printed in a book “Dunkel Proposals” (N. K. Chowdhary & J. C. Aggarwal) published in 1993.  According to the secretary, India will provide for a sui-generis protection. “We have a transition period of five years for this and we will ensure that the rights of farmers and researchers are fully protected.”  We are about to enter 2000. Beginning with neem, turmeric and basmati rice even jute has been patented abroad.  But the government is in no hurry to evolve and implement the sui-generis system even now. Its priority is completely misplaced.  Mr. Sinha seemed to be in a hurry to table the bill to allow derivatives trading in India.  This economic jargon simply means gambling in currency. There are many billionaires in the world who invest a huge amount in such gambling and who can sink the currency of any country at their whim. Thailand’s Bhat was a recent example.  May or June 1998 issue of “Time” addressed the problem of NPAs (Non performing assets), because of derivatives trading, another nuke bomb ticking and is about to explode.  But who bothers?

All Union Governments up to 1998 were of Congress character. Even when Jansangh or BJP were part of them, the leadership was that of ex-congressmen, if you exclude a technical thirteen-day pure BJP govt.  While in opposition, the Jansangh and the BJP leaders gave an impression of being staunch guardians of national interest.  But the way their language and behavior have changed, after assuming power, has raised serious questions about Indian polity.

Should we now conclude that irrespective of persons and parties, the languages of the rulers and the ruled will remain unchanged?  Can one talk of  economic basis as a sole criterion for reservations while in opposition and become “practical” by giving reservations on caste basis while in power or striving to retain power?  Can one term the attempt to amend patent laws as anti-national while in opposition and as urgent need in national interest, when that person becomes the prime minister?  Examples and quotes to prove the highly contradictory behavior of the politicians in power can be provided to such an extent that our students can get a textbook on Indian political skill and behavior! Pokaran II seems like a prominent aberration in the overall behavior of the BJP-led governments. Should we accept that survival in power of the leader has become the sole national need of the hour?  Will the electorate of this great country resign themselves to filling old wine in new bottles by way of elections and fool themselves?  And finally, do we really need a Vajpayee to do all that has been done by him and his government? (Courtesy: Rajasthan Patrika. Milap Kothari is an adviser of Rajasthan Patrika )