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Access Over Exclusivity: India’s Patent Law And The Juridical Mendicancy Of Global Health Equity




Mohd. Saifullah Khan, LLM, Aligarh Muslim University

Fardeen Khan, Research Scholar, Aligarh Muslim University


ABSTRACT


Post-TRIPS (Trade-Related Aspects of Intellectual Property Rights, 1995), the moral and legal tension between intellectual property rights and the human right to health has become the most crucial challenge, especially for developing countries. India has evolved into an important site of judicial decision-making on patent law not just in the service of trade law but, constitutional obligations toting social justice, the Article 21 right to live and public health equity. Summary of The Paper This paper examines the trajectory of Indian patent jurisprudence as a counter narrative to a global dominant paradigm that resounds with market exclusivity over fair accessibility to medicines. The article discusses important statutory provisions, including Section 3(d) of the Indian Patents Act, 1970, and the important judgments including Novartis AG v. Union of India (2013) which cumulatively indicate the Indian judiciary's willingness to defy pharmaceutical patenting evergreening and to protect public interest. These decisions provide rights-based reading of TRIPS flexibilities and constructs India as placing itself not as a TRIPS infringer but as a norm entrepreneur in the realm of international pharmaceutical law. The research finds that a stark gap exists in the current academic literature: while the compliance debate prevails, little attention has been paid to the principled legal reasoning engaged in by Indian courts that seeks to mainstream constitutional imperatives with global health commitments. The inquiry concludes, then, that access to essential medicines should not be socially accepted as a policy option, but jurisprudentially required, because it is constitutionally based and framed by international human rights law.


Keywords: Patents, Pharmaceutical Law, Global Health Justice, Constitutional Right to Health, TRIPS Flexibility.



Indian Journal of Law and Legal Research

Abbreviation: IJLLR

ISSN: 2582-8878

Website: www.ijllr.com

Accessibility: Open Access

License: Creative Commons 4.0

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All research articles published in The Indian Journal of Law and Legal Research are fully open access. i.e. immediately freely available to read, download and share. Articles are published under the terms of a Creative Commons license which permits use, distribution and reproduction in any medium, provided the original work is properly cited.

 

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The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the IJLLR or its members. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the IJLLR.

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