The National Human Rights Commission (NHRC) is to keep a close watch over the drug price and availability situation during the product patent regime that starts a few weeks from now. The NHRC would not interfere in the process of patent amendment, but would do so in the eventuality of sudden increase in drug prices or unavailability of drugs in the post 2005 era.

Reacting to pharmabiz queries on the sidelines of the National Public Hearing on Right to Healthcare, organised by NHRC and health NGO networks here on December 17, 2004, Justice A S Anand, Chairperson, NHRC said that the commission has taken serious note of the development. He felt that there was no need for an intervention at this stage as there are different views on the effect of the product patent regime on the actual pricing/availability of drugs. It becomes human rights issue only if the changes in the Patent Act affect the supply of low cost essential drugs to the public. NHRC will take up such issues when it is necessary, he felt.

However, the National Public Hearing had considered "Amendment to the Indian Patent Act 1970" as one of the issues that concerns availability of essential medicines. It said that any fundamental changes to the Act need to be carefully examined, so as not to compromise the interests of the country, both in terms of its ability to safeguard the health of the people and its interests in promoting a self-reliant indigenous pharmaceutical industry. The work paper on " to Essential Drugs" circulated at the public hearing pointed out that the draft bill is entirely inadequate in addressing domestic concerns relating both to healthcare and development of the indigenous industry. "The least that Indian government needs to do is to pro-actively use the space created by the Doha Declaration in order to ensure that all newer essential drugs which have public health importance are kept out of the new patent regime. Otherwise in coming years, Indian people will be increasingly denied their right to essential drugs," the paper stated.

It may be noted that Affordable Medicines and Treatment Campaign (AMTC), an NGO, had recently sought NHRC intervention in the matter "as the amendment in the proposed form goes against Indian citizen's fundamental right to life and health".

The AMTC complaint before the NHRC pointed out India as a party to the International Covenant on Economic Social and Cultural Rights (ICESCR) and reminded that the country has an international obligation to protect peoples' right to health. According to Article 12 of ICESCR "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Accessibility to and availability of drugs are recognized as important components of right to health." The introduction of product patent in the current form will further reduce the access to drugs. The Supreme Court of India recognized the enforceability of right to health within the scope of Article 21 of the Indian Constitution (Vincent Panikurlangara v Union of India 1987 (2) SCC 165). Further, Article 15(1)(b) of the ICESCR recognises 'right of everyone to enjoy the benefits of scientific progress and its applications,' the complaint had noted.

Pointing out that the Supreme Court often interpreted fundamental rights in consonance with international treaties, AMTC wanted NHRC to ensure that the implementation of product patent does not result in the denial of rights guaranteed under the Constitution of India and the ICESCR. "According to Section 2 (d) & (f) of Protection of Human Rights Act, 1993 rights under the ICESCR are the rights that the National Human Rights Commission (NHRC) has to protect," the complaint had stated.

The campaigners wanted the NHRC to urgently intervene in the case and safeguard peoples' right to health guaranteed under the Constitution of India and ICESCR by using the mandate under Section 12 (d), (f) and (j) of the Protection of Human Rights Act, 1993. They requested NHRC to seek information from the Centre regarding the steps, which are already taken, or under consideration to safeguard the right to health under the product patent regime.

"NHRC should study and recommend to the Government of India on the steps to be taken to ensure the enjoyment of benefits of scientific progress and its application, an obligation under Article 15(1) (b) of ICESCR. It should recommend to the government on the options available within the TRIPS Agreement to safeguard right to health. It should also hold a national level consultation with concerned individuals and groups on the implications of intellectual property rights on peoples' right to health," AMTC had requested.