IMS UNISON UNIVERSITY 8th NATIONAL MOOT COURT

COMPETITION 2021

IN
THE HONB’LE SUPREME COURT OF INDIANA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION
(UNDER ARTICLE 136 OF CONSTITITION OF INDIANA)
S.L.P.(CIVIL) NO……………… OF 2021

IN THE MATTER BETWEEN

DIZER INC. [PETITIONER]

VERSUS

UNION of INDIANA [RESPONDENT]

MEMORIAL on behalf of the RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................... 02

LIST OF ABBREVIATIONS................................................................................................03

INDEX OF AUTHORITIES .................................................................................................04

STATEMENT OF JURISDICTION ....................................................................................06

STATEMENT OF FACTS ....................................................................................................07

STATEMENT OF ISSUES....................................................................................................10

SUMMARY OF ARGUMENTS ...........................................................................................11

ARGUMENTS ADVANCED ............................................................................................... 13

PRAYER…………………………………………………...………………….32
 LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION
& And
A.I.R. All India Reporter
Art. Article
Cls. Clause
Ed. Edition
Govt. Government
HC HC
Hon’ble Honorable
Ltd. Limited
Ors. Others
S.C. SC
S.C.C. SC Cases
S.C.R. SC Reports
Sec. Section
SLP Special Leave Petition
U.O.I. Union Of India
 INDEX OF AUTHORITIES

ACTS & STATUTES

1. The Constitution of India,1950.
2. The Patents Act, 1970.
3. The Competition Act, 2002.
BOOKS REFERRED
1. J.N. PANDEY, CONSTITUTION OF INDIA, (54th Ed., Central Law Agency2017).
2. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (8th Ed., Lexis Nexis2018).
INTERNATIONAL TREATY REFERRED
1. The General Trade Agreement on Tariffs and Trade (GATT),1947.
2. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994.
3. Doha Declaration on the TRIPS Agreement and Public Health, 2002.
CASES REFERRED
1. Suriyakala v. A. Mohandoss, (2007) 9 SCC 19
2. Shail v. Manoj Kumar, (2004) 4 S.C.C. 785
3. Ganga Kumar Srivastava v. State of Bihar (2005) 6 S.C.C. 211
4. Pritam Singh v. The State, AIR 1950 SC 169
5. A.V. Papayya Sastry v. Govt. of Andhra Pradesh, AIR 2007 SC 1546
6. Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
7. M.C. Mehta v. Union of India, AIR 2004 SC 4618
8. Aero Traders Private Ltd. v. Ravider Kumar Suri, AIR 2005 SC 15
9. Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806
10. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
11. Mathai Joby v. George, (2010) 4 SCC 358
12. Rojer Mathew v. South Indian Bank Ltd. & Ors., 2019 S.C.C. Online S.C. 1456
13. Bengal Chemicals Ltd v. Their Workmen, 1959 AIR 633
14. Union of India v. Swadeshi Cotton Mills, Co. Ltd., A.I.R.1981 S.C. 818
15. P.S.R. Sadhanantam v. Arunachalam, 1980 AIR 856
16. Raghunath G. Pauhale v. Chagan Lal Sundarji & Co.,(1999) 8 SCC 1 (SC
17. UOI v. Rajeshwari & Co., (1986) 161 ITR 60 (SC
18. Gurbakhsh Singh v. State of Punjab, (1955) AIR 320 (SC
19. SBI v. Sundara Money, (1976)1 S.C.C. 822
20. Sir Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., (1962) AIR 1314 (SC
21. Dharmendra Kumar Aggarwal v. Govt. of NCT of Delhi, Through the Secretary and Another,2021 SCC
OnLine Del 1995
22. Chemtura Corporation v. Union of India & Others, 2009 (41) PTC 260 (Del
23. Ashutosh Gupta v. the State of Rajasthan, (2002) 4 SCC 34: AIR 2002 SC 1533
24. M. Nagaraj v. UOI, (2006) 8 SCC 212
25. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SCR 284
26. E P Royappa v. State of Tamil Nadu, AIR 1947 SC 555: (1974) 3 SSC 3
27. AL Kalra v. P&E Corporation of India, Ltd., AIR 1984 SC 1361, 1367
28. D.G. Khan Cement Company Ltd. v. Federation of Pakistan &Ors. PLD, 2013 Lahore 69
29. Cellular Operators Association of India v. TRAI, (2016) 7 SSC 703: AIR 2016 SC 2336
30. Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta, AIR 1998
Cal. 121
31. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118
32. Achutan v. State of Kerala, AIR 1959 SC 490: 1959 Supp (1) SCR 787
33. Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844
34. Shantisar Builders v. Narayanan KhimalalTotamen, AIR 1990 SC 630
35. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480
36. Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal, (1996) 4 SCC 37
37. Maneka Gandhi v. Union of India, AIR 1978 SC 597
38. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021
39. Bachan Singh v. State of Punjab, AIR 1982 SC 1325
40. Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee,
(2005) 9 SCC 779
41. Om Kumar v. Union of India, AIR 2000 SC 3689
42. Arjun Gopal v. UOI, (2017) 1 SCC 412: AIR 2017 SC 173
43. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
44. Parmanand Katra v. Union of India, AIR 1989 SC 2039
45. Vincent v. Union of India: AIR (1987) SC 990
46. State of Punjab & Ors v. Ram Lubhaya Bagga Etc. on 26 February, 198
47. Novartis AG v. Cipla Ltd., 2015 SCC OnLine Del 6430
 STATEMENT OF JURISDICITION

The Respondent has been brought before this Hon’ble SC through a petition filed under Art. 1361
of the Constitution of Indiana by way of Special Leave Petition owing to the gross infringement
of human rights. However, the Respondent seeks permission of this Hon’ble Court to contend the
non-maintainability of this Special Leave Petition.

The present memorandum sets forth the facts, contentions and arguments in the present case.

1
Art. 136- Special leav.e to appeal by the SC
(1) Notwithstanding anything in this Chapter, the SC may, in its discretion, grant special leav.e to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in Cls. (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.
 STATEMENT OF FACTS

1. The State of Indiana is a Sovereign Democratic Republic country where the drafters of the
Constitution of Indiana laid special emphasis on the Fundamental Rights of the citizens. The
Directive Principles of State Policy (“DPSP”), enshrined in Part IV of the Constitution of Indiana
reflect that Indiana is a welfare state where the Govt. of Indiana has launched several programmes
on health, food safety, health insurances, etc.

2. The state of Indiana is one of the member countries of WTO and attended the Muruguay Round
of the General Agreements on Tariffs and Trade and Agreement on Trade-Related Aspects of
Intellectual Property Rights was negotiated with the purpose to establish parity between the
rules/statutes governing intellectual property rights in the member countries of the WTO. In 2001,
the Doha Declaration on the TRIPS Agreement and Public Health was adopted by the WTO
Ministerial Conference of 2001. It provides flexibility to the members of the TRIPS for imposing
certain restrictions on the patent rights to achieve better access to health facilities.

3. The relevant paragraphs of the Doha Declaration, are being provided hereunder: The TRIPS
Agreement does not and should not prevent Members from taking measures to protect public health.
Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS
Agreement, we recognize that these flexibilities include. In applying the customary rules of
interpretation of public international law, each provision of the TRIPS Agreement shall be read in
the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and
principles. Each Member has the right to grant compulsory licenses and the freedom to determine
the grounds upon which such licenses are granted.

4. Also, recognizes that the WTO Members with insufficient or no manufacturing capacities in the
pharmaceutical sector could face difficulties in making effective use of compulsory licensing under
the TRIPS Agreement, instructed the Counsel for TRIPS to find an expeditious solution to this
problem and to report to the General Counsel before the end of 2002. The Alliance Group, introduced
a proposal for setting up a Vaccine Research and Manufacturing Institute before the Ministry of
Health and Family Welfare, Govt. of Indiana. After several rounds of discussions, it was mutually
agreed that the Alliance Group and the Govt. would set up the institute in partnership,
whereby the Govt. would invest 50% of the total amount. The VERUM INSTITUTE started
manufacturing and supplying vaccines to the Central and State governments at marginal rates.

5. Towards the end of 2019, the news of the spread of a fatal virus MOVID-19 spread from the
province of Goohan in the State of Myna. As per early reports, MOVID-19, declared as a pandemic
by the World Health Organization (“WHO''), as the virus spread throughout the world. In March
2020, the State of Indiana was hit by the wrath of the MOVID-19 pandemic resulting in a
nationwide lockdown of two months. As a result of the MOVID-19, thousands of people died and
many lost their source of livelihood to tackle the same, the State and the Central Govt. of Indiana
launched many schemes and programmes.

6. Various pharmaceutical companies have started conducting intensive research to develop

vaccines and the VERUM INSTITUTE in collaboration with the Boxword University also started
its research. By the end of May 2020, the state of Indiana was able to control the spread of the first
wave of MOVID-19. The VERUM INSTITUTE also started the testing of its vaccine by the name
of MOVISHIELD.

7. In September 2020, DIZER, a pharmaceutical company based in the Joint States of Camaria,
applied for the patent of its vaccine– MOVAXIN. Meanwhile, the VERUM INSTITUTE
completed the trials of the MOVISHIELD VACCINE in 2020. After that, the Govt. of Indiana
launched a state-sponsored vaccination programme for the senior citizens of Indiana.
Subsequently, the programme was extended to persons aged between 45 to 60 years.
MOVISHIELD was priced at INR 450 per dose. Also, MOVAXIN was granted a patent by the
authorities after following the due process of law and was priced at INR 1000 per dose.

8. Towards the end of March 2021, the State of Indiana was hit by the second wave of the MOVID-
19 pandemic, causing numerous deaths and casualties, became the epicenter of the MOVID-19
pandemic and the medical infrastructure of Indiana was on the verge of collapse. The Govt. of
Indiana decided to expand its vaccination programme to all the citizens above the age of 18 years,
however, the only impediment before the Govt. was the availability of adequate numbers of
vaccines. The number of MOVISHIELD vaccines supplied by the VERUM INSTITUTE was Ltd.
and the Govt. was facing backlash from the public at large.

9. Several Public Interest Litigation Petitions (“PIL”) were filed before the Hon'ble SC of Indiana
and various HCs, with the questions about the slow rate of vaccination and the measures to control
the spread of MOVID-19. The Hon'ble SC of Indiana vide its order dated 11.04.2021, directed the
Health Commissioner of the Union of Indiana to take immediate measures to enhance the
availability of the vaccines in Indiana.

10. On 16.04.2021, the Union of Indiana made an amendment in Sec. 100 of the Patents Act,
whereby adding sub-Sec. “1A- Notwithstanding anything contained in this Act, the Central Govt.
or any officer authorized in writing by it shall have the right to use or license the use of any such
patent that has been granted under this Act, subject to the payment of reasonable fee or profit.
Provided that, the Govt. may also share the know-how if the patented product is to be used for
public welfare. Provided further that, the patent may be used or licensed without the prior
permission of the patentee, after giving justification for the same.”

11. On 25.04.2021, the Health Commissioner issued a letter to the management of DIZER,
informing them that the Govt. had decided to use and license MOVAXIN to the local vaccine
manufacturers in India, to enhance vaccine production in India. The letter also clarified that the
license to manufacture MOVAXIN was granted to the VERUM INSTITUTE. It was also stated
that an amount of INR 450 shall be paid to DIZER for every vaccine manufactured by the State or
its agencies¨

12. That aggrieved by the letter dated 25.04.2021, DIZER preferred a representation dated
26.04.2021 before the Ministry of Health and Family Welfare against the use of patent held by it
without its permission. That on 27.04.2021, the Ministry of Health and Family Welfare, responded,
whereby it was categorically mentioned that the letter dated 24.04.2021 had been issued in
compliance with the law in force and that the representation of DIZER had no force in law
whatsoever.

13. On that, DIZER preferred a Writ Petition bearing no. 1120/2021, before the Hon'ble HC of
Delphi, challenging the amendment dated 16.04.2021 and the letter dated 25.04.2021. The Hon'ble
HC of Delhi, vide order dated 10.05.2021, partially dismissed the petition filed by DIZER on the
ground that the Union Govt. was justified in its act of using and licensing the patent held by
DIZER, however, the HC directed the Union Govt. to reconsider the royalty determined for the
use of the patent by the Govt. of Indiana.
 STATEMENT OF ISSUES

ISSUE-1

WHETHER THE SPECIAL LEAVE PETITION FILED BY THE PETITIONER IS

MAINTAINABLE OR NOT?

ISSUE-2

WHETHER THE AMENDMENT DATED 16. 04. 2021 IS VALID IN TERMS

OF THE TRIPS AGREEMENT OR NOT?

ISSUE-3

WHETHER THE LETTER DATED 25.04.2021 IS VIOLATIVE OF THE

PROVISIONS OF PART III OF THE CONSTITUTION OF INDIANA?

SUMMARY OF ARGUMENTS

10
 ISSUE-1: WHETHER THE SPECIAL LEAVE PETITION FILED BY THE
PETITIONER IS MAINTAINABLE OR NOT?

It is humbly submitted to this Hon’ble Court that in the given factual matrix, there is
no necessity or compulsion for the intervention of this Hon’ble Court and invoking its
powers under Article 136 as substantial justice has been done and no exceptional or
special circumstances exist for case to be maintainable. Also in the present case, no
substantial question of law is involved and interference is based on pure question of
fact which is entitled to be dismissed.

ISSUE-2: WHETHER THE AMENDMENT DATED ON 16.04.2021 IS

VALID IN TERMS OF TRIPS AGREEMENT OR NOT?

It is humbly submitted before this Hon'ble Court that the provision of compulsory
licensing is inherently present in the Patents Act and the amendment in the instant case is
being brought for the implementation purpose of the provision already existing. Also,
considering the contemporary situation the amendment was the need of the time. In fact,
the TRIPS Agreement enables the member countries to make use of compulsory licensing
for their public health and welfare during emergency. Hence, the counsel for the
respondent contends that the amendment dated 16.04.2021 is valid in terms of the TRIPS
Agreement.

ISSUE-3: WHETHER THE LETTER DATED ON 25.04.2021 IS VIOLATIVE

OF THE PROVISIONS OF PART III OF THE CONSTITUTION OF
INDIANA?

It is humbly submitted to this Hon’ble Court that the provisions of Part III of the
Constitution of Indiana, are not being violated from the dated letter 25.04.2021, but
enriches the purpose of Art. 14, 19 & 21, i.e. endowing duty on the state for providing
better health facilities. Also considering the present situation, this is the need of the time,
for every country to protect their citizens and the only possible solution is a feasible
vaccination programme. Hence, the counsel for the respondent contends that the dated
letter 25.04.2021 is not violative of Part III of the Constitution of Indiana.

11
ARGUMENTS ADVANCED

12
 ISSUE-1: WHETHER THE SPECIAL LEAVE PETITION FILED BY THE
PETITIONER IS MAINTAINABLE OR NOT?

It is humbly submitted before this Hon’ble SC that the SLP filed by the petitioner is not
maintainable as Special Leave cannot be granted when substantial justice has been done
further no exceptional or special circumstances exist for case to be maintainable. Also in
the present case, no substantial question of law is involved & interference is based on pure
question of fact which is entitled to be dismissed. Even all the remedies are yet not
exhausted as SLP is the end resort to the party.

[1.1] NO SPECIAL CIRCUMSTANCES EXIST IN THIS CASE & SUBSTANTIAL

JUSTICE HAS ALREADY BEEN DONE.

1. Art. 136 does not confer a Right of Appeal, but merely, a discretionary power to the
SC to be exercised for satisfying the demands of justice under exceptional
circumstances2. It is a “discretionary power” vested on the SC and granted only in
“when a question of law of general public importance arises,”3where the impugned
order is ex facie bad or illegal or manifestly wrong, leave is granted,4 or when an
order has been passed on an irrelevant finding which has resulted in manifest
injustice, which is considered as a special circumstance.
2. In Pritam Singh v. The State5 , the SC held that the power under Art. 136 is to be
exercised sparingly and in exceptional cases only. Generally speaking, this court will
not grant Special Leave, unless it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been done and that the case in question
presents features of sufficient gravity to warrant a review of the decision appealed
against.
3. Although the power has been held to be plenary, limitless6 , adjunctive, and
unassailable7 , in M. C. Mehta v. Union of India8 and Aero Traders Private Ltd. v.

2
N. Suriyakala v.. A. Mohandoss, (2007) 9 SCC 196.
3
Ganga Kumar Sriv.astav.a v.. State of Bihar (2005) 6 S.C.C. 211.
4
Shail v.. Manoj Kumar, (2004) 4 S.C.C. 785; BenuBalakrishnalyer v.. Ariya M. Ramaswamilyer, A.I.R.1965
S.C. 195; Sadhu Singh Harnam Singh v.. State of Pepsu, A.I.R. 1954 S.C. 271.
5
Pritam Singh v.. The State, AIR 1950 SC 169.
6
A.V.. Papayya Sastry v.. Gov.ernment of Andhra Pradesh, AIR 2007 SC 1546.
7
Zahira Habibullah Sheikh v.. State of Gujarat, AIR 2004 SC 3467.
8
M.C. Mehta v.. Union of India, AIR 2004 SC 4618.

13
 Ravider Kumar Suri9 , it was held that the powers under Art. 136 should be exercised
with caution and in accordance with law and set legal principles
4. In the cases of Secretary, State of Karnataka v. Umadevi10 and Shivanand
Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills11 , the SC has criticized the
approach of settling private disputes under Art. 136, stating that it would lead to
confusing results and lack of precedents. The Court observed that the Court is not
bound to interfere even if there is error of law in the impugned order12.
5. In Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar13, this Court observed, "It
is an extraordinary jurisdiction vested by the Constitution in the SC with implicit
trust and faith, and extraordinary care and caution has to be observed in the exercise
of this jurisdiction. Art. 136 does not confer a right of appeal on a party but vests a
vast discretion in the SC meant to be exercised on the considerations of justice, call
of duty and eradicating injustice."
6. N.Suriyakala v. A. Mohandoss and Ors14, clarify the scope of Art. 136 of the
constitution according to which Art. 136 is not a regular forum of appeal at all. It's a
kind of a residual provision which permit the SC to interfere with the judgment or
order of any court or judicature in India in its discretion.
7. In the case at hand, no exceptional & special circumstances have been shown by the
petitioner. Furthermore, they prioritizing their business loss in these difficult times
where lakhs and lakhs of people are losing their life doesn’t seem like a special
circumstance to allow their petition. Substantial Justice has already been done by the
HC itself & the petitioner is unable in presenting the flaws in the present case. This
shows that the law is well-settled in this regard & the present case is not an exception.
[1.1.1] NO VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IS
BEING DONE
8. The SLP is granted by the SC only when it finds there is serious breach of some
principle in administration of justice, or breach of certain principles which strike at
the very root of administration of justice as between man and man, 15 where
repercussions are incalculable and the basis of the directions, though interlocutory,

9
Aero Traders Priv.ate Ltd. v.. Rav.ider Kumar Suri, AIR 2005 SC 15.
10
Secretary, State of Karnataka v.. Umadev.i, AIR 2006 SC 1806.
11
Shiv.anand Gaurishankar Baswanti v.. Laxmi V.ishnu Textile Mills, (2008) 13 SCC 323.
12
Mathai Joby v.. George, (2010) 4 SCC 358.
13
AIR 2004 SC 2351.
14
MANU/SC/0873/2007.
15
Rojer Mathew v.. South Indian Bank Ltd &Ors., 2019 S.C.C. Online S.C. 1456.

14
 is obscure, the ends of justice dominate and the SC may interfere if public interest so
dictates.16
9. The Bengal Chemicals Ltd v. Their Workmen17, the court restricted the scope of
SLPs to cases wherever there was a violation of the principles of natural justice,
inflicting substantial and grave injustice to parties. In P.S.R. Sadhanantam v.
Arunachalam18, Justice Krishna Iyer verified the reasoning for limiting the scope of
SLPs. He said, “The wider the discretionary power, the additional thrifty its exercise.
Variety of times this Court as stressed that though' parties promiscuously ‘provoke’
this jurisdiction, the Court invokes the ability. It’s true that the strictest vigilance
over abuse of the method of the court, particularly at the expensively exalted level of
the SC, ought to be maintained and normally a ‘visa’.”
10. It is contended that this court is not bound to go into the merits & even if it were to
do so, & declare the law or point out the error, still it may not interfere if the justice
of the case on facts doesn’t require interference or if it feels that the relief could be
molded in a different fashion.19
11. Hence, it is humbly submitted that the case should be dismissed because the
principles of natural justice are not being harmed in any way & the above grounds
make it clear. Furthermore, the HC was just and maintained a proper balance by
upholding the amendment and directing government to review the royalty of the
company as the situation demands importance to public welfare over business profits.
[1.2] THAT THE APPEAL IS A QUESTION OF FACT & NOT A QUESTION OF
LAW & HENCE IS NOT MAINTAINABLE.

1. It is contended by the Respondent that the appeal doesn’t involve any substantial
question of law rather it involves pure question of fact & hence, is not maintainable.
Questions of fact cannot be permitted to be raised unless there is material evidence
which has been ignored by the HC or the finding reached by the court is perverse.20
The SC cannot consistently with its practice convert itself into a court of facts.21

16
Union of India v.. Swadeshi Cotton Mills Co. Ltd., A.I.R.1981 S.C. 818.
17
Bengal Chemicals Ltd v.. Their Workmen, 1959 AIR 63.
18
P.S.R. Sadhanantam v.. Arunachalam, 1980 AIR 856.
19
Raghunath G. Pauhale v. Chagan Lal Sundarji & Co.,(1999) 8 SCC 1 (SC).
20
UOI v. Rajeshwari & Co., (1986) 161 ITR 60 (SC).
21
Gurbakhsh Singh v. State of Punjab, (1955) AIR 320 (SC).

15
 2. In State Bank of India v. Sundara Money22 the court stated, “A substantial question
of law of general importance is a sine qua non to certify fitness for hearing by the
SC. Moreover, the question howsoever important and substantial must be of such
pervasive importance and deep significance that in the HC’s Judgement it
imperatively needs to be settled at the national level by the highest Bench.”
3. In Sir Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd 23, this
Court had laid down the following tests to determine whether a substantial question
of law is involved. The tests are: (1) whether directly or indirectly it affects
substantial rights of the parties, or (2) the question is of general-public importance,
or (3) whether it is an open question in the sense that there is no scope for
interference by the HC with a finding recorded when such finding could be treated
to be a finding of fact.
4. Compulsory licensing can be the actual vaccine in the arm we desperately need in
this emergency situation. Compulsory licensing, in case of “national
emergency”, “public heath crises” or “extreme urgency”, is a weapon in the hands
of the governments to supply its citizens with generic versions of patented drugs.
Sec. 92 of the Indian Patents Act,1970 empowers the Central Govt., on its
satisfaction, to make a declaration in the Official Gazette.24
5. The issue of public health was addressed at the fourth World Trade Organisation
(WTO) ministerial conference in Doha in 2001. The Doha Declaration confirmed
the absolute right of governments to take measures to protect public health.
Paragraph 4 of the Doha Declaration prioritizes public health over IP rights and
clarifies that this extends not just to medicines, but also to vaccines, diagnostics and
other health tools as required.
6. Further, no substantive question of law involved and appeal is completely based on
the question of fact. The law stands clear as the words used by the legislature in the
act are open to direct interpretation. There exist no ambiguity in Sec. 92,100 and
102 of the Indian Patents Act,1970 which gives complete right to Central Govt. to
invoke it under extreme and public emergency.25The intention behind vesting such

22
State Bank of India v.. Sundara Money, (1976)1 S.C.C. 822).
23
(1962) AIR 1314 (SC).
24
Ansh Singh Luthra, “Politics, pharma, patent, profit or the people of India? A case for compulsory licensing,
Bar and Bench (May.01.2021,1:11pm).
25
Dharmendra Kumar Aggarwal v.. Gov.t. of NCT of Delhi, Through the Secretary and Another,2021 SCC
OnLine Del 1995.

16
 power on the Govt. was to safeguard public life and that was the simple
interpretation done by the HC.
7. Further Special leave petition cannot be granted until all other remedies available
to the aggrieved party has not been exhausted. Similarly, in the present case the
petitioners directly went to the HC and on been unsatisfied by its decision went
knocking the doors of SC, they completely ignored the jurisdiction of Appellate
Board under sec. 116 of The Patents Act,1970.
8. It is equally important for the innovators to remember that at the core of the patent
process are unmet medical needs which require medical solution. Therefore,
counsel for the Respondents would like to submit to this Hon’ble Court that there
is no pressing matter or question of law, for which, the intervention of this Court
would be necessary, i.e.there is no necessity to invoke the jurisdiction conferred
upon this Hon’ble Court under Art. 136.

ISSUE- 2: WHETHER THE AMENDMENT DATED 16. 04. 2021 IS VALID IN

TERMS OF THE TRIPS AGREEMENT OR NOT?

It is humbly submitted before this Hon’ble SC that the amendment dated 16. 04. 2021,
where the Govt. of Indiana added sub-section 1A to Sec. 100 of Patents Act is in full
compliance with the TRIPS agreement as: The provision of compulsory license is

17
 inherently present in the Act; The amendment was the need of the time, and The
amendment is valid in terms of TRIPS agreement.

[2.1] THE PROVISION OF COMPULSORY LICENSE IS INHERENTLY

PRESENT IN THE ACT

1. It is submitted that the compulsory licensing provision concerns the grant of a

compulsory license for a patented drug based on its lack of availability or affordability
to the general public. It allows production of affordable drugs and increases availability
and supply for the larger public good. In simple words, if the patented drug costs
thousands of rupees, its generic version can be made at a fraction. This would increase
production and help the nation stockpile critical drugs and vaccines. A time limited or
production quantity limited license would help us tide over the crisis and save tens of
thousands of lives.
2. Further, Indiana is not the only country which has compulsory licensing provisions:
countries such as Malaysia, Thailand Ghana and almost every country have them. The
Constitution of Indiana also provides assurance regarding the right to health as a part
of the right to life under Art. 21. Further, Art. 47 affirms the state obligation to improve
public health26. It is believed that ultimately, the responsibility to develop and sustain
public needs and demands, including public health and safety, lies with the Govt. The
idea behind compulsory licensing is to impose limitations on the exploitation of a
patent, and this was supported in the Ayyangar Committee’s recommendations27.
3. Furthermore, various statutory provisions in the Patents Act, 1970 deal with
governmental use of patented inventions. To comprehend these provisions better and
appreciate different factual situations, it is important to understand the scope of the
rights conferred on grant of a patent. Sec. 47 provides that the grant of patents is subject
to certain conditions. This section inter alia, states that the government may import or
make or have made on its behalf any patented product or product made by a patented
process for purposes ‘merely of its own use’. Therefore, it may be concluded that Sec.
47 requires no royalties to be paid to the patentee28.

26
India CONST. art 21 &47.
27
REPORT ON THE REV.ISION OF THE PATENTS LAW by Shri Justice N. Rajagopala Ayyangar, Ayyangar
Committee, PART 1- SOME GENERAL CONSIDERATIONS, September 1956.
28
Ranjan Mathew, Gov.ernment use of patented inv.entions, Lakshmikumaran & Sridharan attorneys, (Dec, 18,
2012).

18
 4. It is submitted that in the Chemtura Corporation case29 the Delhi HC was of the view
that the Ministry of Railways (in this case one of the defendants using the patented
invention) qualified as the ‘Government’ under Sec. 47, and therefore could freely use
the patented invention without the risk of infringement thereof. Thus, as per the Delhi
HC order the Ministry of Railways has not infringed any patented invention as it
qualified ‘Government’ under Sec. 47.
5. It is averred that the Sec. 82 to 95 of the act contain various provisions related to
compulsory licensing, but Sec. 84, 92 and 92A are of particular significance. Sec. 84
states that an interested party can apply for a compulsory license at any time after three
years from the date of grant of the patent based on-a failure to meet reasonable public
requirements; the inaccessibility of the patented invention at a reasonably affordable
price to the public; or the non-working of the patented invention in India30.
6. Further, Sec. 92 authorizes the Central Govt. through a gazette notification to issue a
compulsory license at any time after the grant of the patent in the case of a national
emergency circumstances of extreme urgency; or Public non-commercial use. The
compulsory licensing provisions under Sec. 92A (1) are unique as they authorize the
Central government to issue a compulsory license for the manufacture and export of
patented pharmaceutical products to any country with an inadequate or non-existent
manufacturing capacity to meet public demand31.
7. Furthermore, that Sec. 99 defines what constitutes “use of an invention for the purposes
of Govt.” according to which, an invention is said to be used for the purposes of Govt.
if it is made, used, exercised or sold for the purposes of the Central Govt., State Govt.
or a Govt. undertaking32. This definition under Sec.99 applies only to the provisions
contained in Sec. 99 to 103 of the Act.
8. It is further contended that considering the present situation of crisis, compulsory
licensing has become the hope for financially challenged patients in underdeveloped
countries. Indiana needs this provision owing to the economic condition of the majority
population. Compulsory licensing and voluntary licensing can be the actual vaccine in
the arm we desperately need. Compulsory licensing is neither novel nor radical, but is
prudent in the current scenario. Hence, the counsel of the respondent contends that the

29
Chemtura Corporation v.. Union of India & Others, 2009 (41) PTC 260 (Del).
30
The Patents Act1970, §84.
31
The Patents Act1970, §92.
32
The Patents Act1970, §99.

19
 concept of compulsory licensing was always present in the Patents Act, 1970 as a
necessary provision which cannot be get ridden off. Hence, it is not new legislation
which is made in the statute.

[2.2] THE AMENDMENT WAS THE NEED OF THE TIME

1. It is submitted that in the month of March, 2020, the State of Indiana was hit by the
wrath of the MOVID-19 pandemic resulting into a nationwide lockdown for a period
of two months. As a result of the MOVID-19, thousands of people died and many lost
their source of livelihood, in order to tackle the same, the State and the Central Govt. of
Indiana launched many schemes and programs to mitigate the disastrous impact of the
MOVID-19 pandemic33.
2. Indiana became the epicenter of the MOVID-19 pandemic and the medical
infrastructure of Indiana was on the verge of collapse34. Meanwhile, the Govt. of
Indiana decided to expand its vaccination program, however, the only impediment
before the Govt. was the availability of adequate number of vaccines. The number of
MOVISHIELD vaccines supplied by the VERUM INSTITUTE were limited and the
Govt. was facing backlash from the public at large35.
3. It is submitted that compulsory licensing, in case of “national emergency”, “public
heath crises” or “extreme urgency”, is a weapon in the hands of the Govt. to supply its
citizens with generic versions of patented drugs. The patent rights, on the one hand,
provide economic incentives to innovate, but on the other hand, the exclusive rights
they confer result into monopoly and unaffordable pharmaceutical products. The
legislative intent of the provisions laid down in the Patents Act & Rules is to raise the
threshold of obtaining pharmaceutical patents to maintain public order & morality.
4. It must be considered that, in the present situation, when the world is fighting a
pandemic, many foreign countries have also resorted to compulsory licensing. On
March 24, 2020, Israel issued a compulsory license to import generic versions of
Ritonavir. The Israeli Ministry of Health had realized that the antiretroviral drug could
be a possible treatment for MOVID-19 patients. The interesting part is that this was
done not because of high price of the drug, but in order to increase its availability.
Canada, a wealthy nation, amended its Patent Act in March 2020 to allow quick issue

33
Factsheet para no. 11.
34
Factsheet para no. 16.
35
Factsheet para no. 17.

20
 of compulsory licenses. The amendment allows it to swiftly issue a compulsory license
and negotiate a remuneration at a later stage36. Similarly, on 16.04.2021, the Union of
Indiana made an amendment in Sec. 100 of the Patents Act, whereby adding sub-section
1A.37
5. It is submitted that the amplification of the requirements under Sec. 92 will not serve
any purpose unless the compulsory license granted under Sec. 92 of the Patent Act,
1970 is kept out of the blanket coverage of other provisions mentioned under Sec. 92(2)
dealing with the grant of compulsory license. As per Sec. 92(2), for the grant of
compulsory license (in case of national emergency, extreme urgency or public non-
commercial use), one is obliged to follow a very cumbersome procedure which involves
serving upon of application to the patentee followed by complete opposition
procedure38.
6. Furthermore, the present amendment is brought into effect as the power vested with the
Govt. under Sec. 100 is wider and can be employed under any conditions for any
disease, whereas the power under Sec. 92 can only be exercised under conditions of
extreme urgency or national emergency as, there is a fundamental difference in the
approach of the two provisions. Further, the license granted under Sec. 100 would only
enable sale of the generic version of the drug through Govt. channels, whereas license
under Sec. 92 would enable sale of the product in the open market.
7. The counsel on the behalf of respondent submit that the Competition Act and the
Patents Act have no direct link with each other i.e., cross-referencing provisions.
However, certain commercial transactions could be scanned by the watchful eyes of the
Competition Commission and could be called in question. In a case where the patent
holder charges higher prices, it may be argued as an abuse of dominant position. Hence,
the counsel states that the present Amendment was the need of the time as it a necessary
provision specifically considering the contemporary situation in the country.

36
Supra 5.
37
Factsheet para no. 20.
38
FICCI’s POSITION ON COMPULSORY LICENSING, Schedule XVII.

21
 [2.3] THE AMENDMENT IS VALID IN TERMS OF TRIPS AGREEMENT

1. It is submitted that pri in 2001, the Inter-Ministerial Conference of the World Trade
Organization (WTO) officially initiated the Doha Agenda with a declaration that
acknowledged the need to recognize a sovereign nation's right to protect public health
of its people, even at the expense of not honoring intellectual property right39. Pursuant
to this, many national systems incorporated additional provisions enabling compulsory
licensing40.
2. It is submitted that the Compulsory licenses were granted in the past under some
national laws, but they failed to deliver the essential medicines to the ailing populations
in those countries. According to the World Health Organization (WHO) estimates,
about one third of the world’s population lacks access to essential medicines.
Recognizing the shortcoming, the WTO in 2003 at the Fifth Ministerial Conference in
Cancun adopted a decision on a ‘temporary solution’ in the form of an interim waiver
to the Art. 31(f) restriction thereby extending compulsory licensing provisions by
temporarily removing limitations on exports of drugs under a compulsory license to
countries that could not manufacture drugs themselves41.
3. Further, it is submitted that, In 2001, the WTO signed the Doha Declaration, which
clarified that in a public health emergency, Govts could compel companies to license
their patents to manufacturers, even if they did not think the offered price was
acceptable. This provision, commonly referred to as “compulsory licensing”, was
already built into the TRIPS Agreement and the Doha declaration only clarified its
usage and recognizes the need to address public health problems afflicting many
developing countries. Similarly, the concept of compulsory licensing was always there
in Patents Act but the Amendment dated 16.04.2021 brought it out in an enhanced
manner for execution. The TRIPS Agreement should be interpreted and implemented

39
WTO Ministerial Conference, Declaration on the TRIPS Agreement & Public Health, WT/MIN (O1)/DEC/2,
Para. 4 (Nov., 14, 2001).
40
PATENTS ACT,1970, Chapter XVI.
41
Harshita Mehta, Compulsory Licensing under Section 92A: Issues & Concerns, Journal of Intellectual
Property Rights Vol 13 ,2008, 464-472, (May, 08, 2008).

22
 in a manner supportive of countries’ right to protect public health and to promote access
to medicines for all.
4. Furthermore, it is submitted by the counsel that article 27 of TRIPS provides that
patents shall be available for any inventions, whether products or processes, in all fields
of technology. However, article 27(2) allows members to exclude inventions from
patentability to protect public order or morality,including to protect health. TRIPS
attempts to strike a balance between the short term objective of providing access to life
saving medicines amd the long term objective of providing incentives to the
pharmaceuticsl industry for the development of new medicines. Article 8 of TRIPS
allows member countries to adopt measures,consistent with the TRIPS agreement ,
necessary to protect public health and nutrition.
5. It also allows states to take measures to prevent the abuse of intellectual property rights
or resort to practices which unreasonably restrain trade or adversely affect the
international transfer of technology. Art. 30 of TRIPS is a broad provision which allows
the member countries to provide limited exceptions to patent rights42. This, along with
a set of other tools known as the “TRIPS flexibilities”, allow Govt. to waive IP rights
in the interest of public health43. Hence, the counsel states that the Amendment passed
in the instance case is in consonance with the TRIPS Agreement as it was in consistence
with the Art. 8, 27 and 30.
6. The counsel on the behalf of respondent, submitted that it should also be noted that
whenever royalty is fixed under compulsory license provisions, such royalty is not to
make good the losses that the patentee would suffer; it is only a small amount to be
given to the patentee in recognition of the fact that he had made the invention, opposed
to the category of general licenses, wherein the rate of royalty is to allow the patentee
to earn and make profit from his invention. Also, the royalty has to be fixed by the
Controller/Government; not to be demanded by the Patentee. As a thumb rule, the
royalty all over the world does not exceed 5% to 8%.
7. It must be considered that the Govt. of Indiana issued a compulsory license for use in
public health services. The Amendment further facilitates the use of the TRIPS
flexibility of compulsory licensing by minimizing the restrictions. Hence, owing to the

42
Raadhika Gupta, Compulsory Licensing Under TRIPS: How Far it Addressess Public Health Concerns in
Dev.eloping Nations, Journal of Intellectual Property Rights Vol 15 ,2010, 357- 363, (Aug, 11, 2010).
43
Shiv.angi Mittal & V.arun Ramdas, Why the TRIPS waiv.er is unlikely to solv.e India’s Cov.id-19 v.accine
shortage, ThePrint, (May, 07, 2021).

23
 above submission, the counsel for respondent most humbly submits before this Hon’ble
court that the Amendment dated 16. 04. 2021 is valid in terms of the TRIPS Agreement.

ISSUE- 3: WHETHER THE LETTER DATED 25.04.2021 IS VIOLATIVE OF THE

PROVISIONS OF PART III OF THE CONSTITUTION OF INDIANA?

It is most humbly submitted that by challenging the letter dated 25.04.2020 the petitioners
have grossly erred in the interpretation of the amendment done. The counsel beseeches most
learned lordships to interpret the dated letter 25.04.2021 keeping in mind the bona-fides
intentions of the State, and the current situation of the State of Indiana.
The counsel submits that the letter dated 25.04.2021 is constitutional and is in line with the
fundamental rights. To corroborate this assertion, the counsel will be presenting a three-fold
argument as: The dated letter 25.04.2021 is in consonance with Art. 14 ;That the dated letter
25.04.2021 serves the purpose of Art. 19; That the purpose of Art. 21 is being served by the
letter dated on 25.04.2021.

[3.1] THE LETTER DATED 25.04.2021 DOES NOT VIOLATE ARTICLE 14

1. It is humbly submitted before this Hon’ble court that equality before the law and equal
protection of the law has been granted u/a 14 of the Constitution. This fundamental
right impliedly casts a duty upon the state to be fair while taking actions in regard to
public welfare. In cases of exercise of arbitrary powers on behalf of the state
authorities, the judiciary has played a strict role in disallowing the arbitrary sanction.
The differentiation made by the state should be based on ‘intelligible differentia’ and
such differentiation should have a reasonable nexus with the object sought to be
achieved by the state action.
2. The amendment dated 16.04.2021 and the letter dated 25.04.2021, in consonance with
the Right to Equality, as it is an obligation on the Govt. of Indiana to ensure that every
citizen of the State has access to the vaccination programme. It impliedly casts a duty
upon the state to be fair while taking actions. Also, the doctrine of equality before the
law is a necessary corollary of rule of law which pervades the Indian Constitution.44

44
Ashutosh Gupta v.. the State of Rajasthan, (2002) 4 SCC 34: AIR 2002 SC 1533; National Human Rights
Commission v.. State of Arunachal Pradesh, AIR 1996 SC 1234.

24
 The right to equality has been declared by the SC as the basic feature of the
constitution.45 It is justifying the govt. actions to ensure availability of vaccine to all
irrespective of their status, thus prioritizing public health over profit of any business.
3. Art. 14 has gone through a significant shift towards the classical test of the equality ,
that the differentiation made by the state should be based on ‘intelligible differentia’
and such differentiation should have a reasonable nexus with the object sought to be
achieved by the state action.46The State aimed to expand its vaccination programme
to all the citizens above the age of 18 years and therefore the amendment brought by
them was the need of the hour to deal with the ongoing crisis.
4. The letter was completely based on the amendment which was through a proper due
process of law and therefore was in no way infringing the fundamental rights of
anyone. To enhance vaccine production in Indiana, amendment in Sec. 100 of the
Patents Act i.e.,1A was done, which the HC justified it being the need and being on
reasonable grounds and the letter being the mean to execute the amendment suffice
the reasonable nexus with the object of the law or state action. Along with the aforesaid
shift towards classical test, there has been a significant shift towards the doctrine of
reasonableness47 equating arbitrariness as the yardstick by which administrative as
well as legislative actions are to be judged48 the SC observed in the case of Kalra49.
5. It is pertinent to mention that these are unprecedented times; the Central Govt. is
grappling with nationwide vaccinations, along with sanitation, nose-diving economy,
migrant crisis, and protests at various sites of the nations. The State is doing the best
in its capacity, but accommodation is the essence of Democracy. Laws could restrict
human rights, but only in order to make conflicting rights compatible or to protect
the rights of other persons or important community interests.50
6. With this overly encompassing reasonable grounds, while keeping the welfare of the
public at large in mind51, along with the constant positive endeavors of the State in

45
M. Nagaraj v.. UOI, (2006) 8 SCC 212; M. G. Badappanabar v.. State of Karnataka, (2000) Supp 5 SCR. 302;
R. K. Garg v. Union of India, AIR 1981 SC 2138: (1981) 4 SCC 675; Jagjit Singh v.. State, AIR 1954 Hyd. 28.
46
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SCR 284.
47
E P Royappa v. State of Tamil Nadu, AIR 1947 SC 555: (1974) 3 SSC 3.
48
Union of India v. International Trading Corporation, AIR 2003 SC 3983; Sunil Batra v. Delhi Administration,
(1978) 4 SCC 494.
49
AL Kalra v. P&E Corporation of India, Ltd, AIR 1984 SC 1361, 1367.
50
D.G. Khan Cement Company Ltd. v. Federation of Pakistan & Ors. PLD 2013 Lahore 693 Followed in Faiz
Ahmad Cheema v. Federation of Pakistan & Ors., LEX/HIPK/0158/2016.
51
India Const. art.32.

25
 mind, the counsel on respondent concludes there exists equality in the States actions
which are a reflection of the bona-fides of the impugned letter, and thus the
submissions made by the petitioners are purely frivolous in nature. The letter dated
25.04.2021 further does not violates art 14 as firstly no distinction has been made by
the government in the law amended as any company whose product has been patented
under this act and is useful for increasing the production of the vaccines and
controlling the price range can be used.
7. Further the amount decided to be given as royalty stands in par with that of the Indiana
produced vaccine Movidshield, not doing any partiality to their countries production.
Further, understanding the need of the time the Govt. steps are in consonance with Art.
14 as it is a reasonable step to take measures to protect public health, and, in particular,
to promote access to medicines for all, in the situation of public health crises. Provided
further that, the patent may be used or licensed without the prior permission of the
patentee, after giving justification for the same which the Govt. provided through the
letter.

[3.2] THE LETTER DATED 25.04.2021 DOES NOT VIOLATE ARTICLE 19

1. It is averred that the dated letter 25.04.2021 has been passed in order to mitigate the
disastrous impact of the MOVID-19 pandemic as the vaccination of all the citizens is
the only way possible today. Art. 19(1) (g) guarantees to all citizens the right to practice
any profession or to carry on occupation, trade, or business. Under Article 19(6),
however, the state is not prevented from making a law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the above right.
2. The Hon'ble SC, in the case of Cellular Operators Association of India v. TRAI52,
recognized that law restricting right under Art. 19(1)(g) has to satisfy two distinctive
tests, (1) being in the interest of the general public, and (2) being a reasonable
restriction. The regulation must pass the Test of "manifest arbitrariness" and must be a
result of intelligent care and deliberation. The fundamental right of all citizens to
practice any profession, or carry on any occupation, trade or business is subject to
restrictions imposed in the interest of the general public under Art. 19(6)53. Hence, does

52
Cellular Operators Association of India v. TRAI, (2016) 7 SSC 703: AIR 2016 SC 2336.
53
Burrabazar Fire Works Dealers Association & Others v.. Commissioner of Police, Calcutta
AIR 1998 Cal. 121.

26
 not guarantee any freedom which is at the cost of the community’s safety, health and
peace.
3. Further, the doctrine of proportionality54 is not foreign to the Indian Constitution,
considering the use of the word ‘reasonable’ under Art. 19 of the Constitution. The
Govt. actions were reasonable as it kept public interest above everything else and in
accordance with law. India as a sovereign nation has the flexibility to stipulate
limitations on grants of patents in consistence with its prevailing socio-economic
conditions. Generic production in large quantities without any obligation of patents
would help in removal of supply constraints in availability of affordable drugs,
medicines and vaccines at times of high case load and death toll due to Covid-19.
4. The Court has held “reasonable restrictions” are indispensable for the realization of
freedoms enshrined under Art. 19, as they are what ensure that enjoyment of rights is
not arbitrary or excessive, so as to affect the public interest. This Court, while sitting in
a Constitution Bench in one of its earliest judgments Chintaman Rao case55 interpreted
limitations on personal liberty, and the balancing thereof, as follows:
“…The word “reasonable” implies intelligent care and deliberation, that is, the choice
of a course which reason dictates. Legislation which arbitrarily or excessively invades
the right cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed in Art. 19(1)(g) and the social control
permitted by Cls. (6) of Art. 19, it must be held to be wanting in that quality.”
5. It was submitted that the dated letter 25.04.2021 aligns with the amendment dated
16.04.2021 in Sec.-100 of the Patent Act, concord with the Doha Declaration to take
reasonable measures to protect the health of the general public. Furthermore, a contract
between an individual and a Govt. is not protected by Art. 19(1)(g). If the Govt.
infringes the contract, the individual may sue for damages or specific performance, but
he cannot argue that he has been deprived of his Fundamental Right to carry on trade
and commerce guaranteed by Art. 19(1)(g).56Art. 19 (1) (g) does not guarantee any
freedom which is at the cost of the community’s safety, health and peace.57
6. It is submitted that under the Patent Act of India, it is provided that Compulsory license
for the export of patented pharmaceutical products in certain exceptional

54
A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002), p 66.
55
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
56
Achutan v. State of Kerala, AIR 1959 SC 490: 1959 Supp (1) SCR 787.
57
Supra 65.

27
 circumstances. (1) Compulsory license shall be available for manufacture and export of
patented pharmaceutical products to any country having insufficient or no
manufacturing capacity in the pharmaceutical sector for the concerned product to
address public health problems, provided compulsory license has been granted by such
country or such country has, by notification or otherwise, allowed the importation of
the patented pharmaceutical products from India.58
7. Further, this restriction will last only till the need subsides for the public interest.
Besides that, the counsel submits that the lockdowns have been harsh on everyone in
different proportions. The lower rungs of the society are always at the receiving ends
in times of catastrophe of this sort, if the citizens are not vaccinated under this
programme, there exists a huge possibility that due to the disastrous impact of the
MOVID- 19, there may be an increased number of death and casualties which may be
hazardous to the health and the future of the State of Indiana.

[3.3] THAT THE DATED LETTER 25.04.2021 IS NOT VIOLATIVE OF

ARTICLE 21.

1. Art. 21 of the Constitution envisages the right to life and personal liberty of a person.
The word “Life” under Art. 21 means a quality of life59, which includes the right of
food, and reasonable accommodation to live in60 and the right to a wholesome
environment.61 Also ICCPR62, UDHR63 and ICESCR64 recognizes the right to life, right
to health65 and an adequate standard of living.66
2. Further, in order to establish a violation of Art. 21, the act should be subjected to the
equality test of Art. 14 and the test of reasonableness under Art. 19.67Art. 14 strikes at
arbitrariness because it negates equality68 and permeates the entire fabric of Rule of

58
Justin Culbertson & Jason J Jardine, Compulsory patent licensing in the era of pandemic, International Bar
Association.
59
Francis Coralie v. Union Territory of Delhi, AIR 1994 SC 1844.
60
Shantisar Builders v. Narayanan Khimalal Totamen, AIR 1990 SC 630.
61
Charan Lal Sahu v.Union of India, AIR 1990 SC 1480.
62
Article 6, ICCPR.
63
Article 3, UDHR.
64
Article 11, ICESCR.
65
Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal, (1996) 4 SCC 37.
66
Aart Hendriks, The Right to Health in National & International Jurisprudence, European Journal of Health Law
5 (1998).
67
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
68
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021.

28
 Law69. Therefore, every action of the State must be guided by reason for the public
good and not by whim, caprice, and abuse of power.70Art. 19 provides that a restriction
can be characterized to be reasonable if it strikes a balance between the fundamental
right and restriction imposed thereon.71
3. It is submitted that the Right to live with human dignity enshrined in Art. 21 derives its
life breath from the Directive Principles of State Policy and particularly Cls. (e) and (f)
of Art. 39 and Arts. 41, 42 and at the least, therefore, it must include protection of the
health and strength of workers, men, and women, and of the tender age of children
against abuse, opportunities and facilities for children to develop in a healthy manner
and conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity leave.
4. The Hon'ble SC, in the case of Arjun Gopal v UOI72, held that the court is
constitutionally bound to address such concerns. Balancing the vital interests of the vast
majority of citizens against the commercial interests of a few, the balance must heavily
tilt in favor of citizens in general. These are the minimum requirements that must exist
in order to enable a person to live with human dignity and no Govt. has the right to take
any action which will deprive a person of the enjoyment of these basic essentials.73 The
right to health or healthcare under the Constitution, the SC of India in Bandhua Mukti
Morcha v Union of India &Ors74 interpreted the right to health under Art. 21 which
guarantees the right to life.75
5. Further, the Court in the case of Paschim Banga Khet Mazdoor Samity76 has ruled that
the Constitution envisages the establishment of a welfare state, and in a welfare state,
the primary duty of the government is to provide adequate medical facilities for the
people. The Govt. discharges this obligation by running hospitals and health centers to
provide medical care to those who need them. "Art. 21 imposes an obligation on the
State to safeguard the right to life of every person. Preservation of human life is thus of
paramount importance77. The scope of Art. 21 was further widened, as the court held

69
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
70
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514; Dolly Chandra v. Chairman Jee, (2005)
9 SCC 779.
71
Om Kumar v. Union of India, AIR 2000 SC 3689.
72
Arjun Gopal v. UOI, (2017) 1 SCC 412: AIR 2017 SC 173.
73
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
74
Id.
75
Nishant Sirohi, Declaring the right to health a fundamental right, (July.14.2020).
76
Supra 79.
77
Id..

29
 that it is the responsibility of the Govt. to provide adequate medical aid to every person
and to strive for the welfare of the public at large.78
6. The Hon’ble SC of India in the case of Parmanand Katra79 held that those who are
indulged into the profession of medical are in charge of public health and have an
inherent obligation to protect the same so that those who are innocent can be protected
and the guilty be punished. In yet another case of Spring Meadow Hospital80, the court
held that there is need for sensitization of relevant law pertaining to the content of the
right to health. An act to deal with legal prohibition of commercialized transplantation
has further animated the right to health.
7. It was held in the case of Vincent vs. Union of India81:
“In a welfare State, therefore, it is the obligation of the State to ensure the creation and
the sustaining of conditions congenial to good health. In a series of pronouncements
during the recent years, this court has culled out from the provisions of Part- IV of the
Constitution, the several obligations of the State and called upon it to effectuate them
in order that the resultant picture by the constitution fathers may become a reality."

8. It is submitted that the dated letter 25.04.2021 is not violating Art 21 of the Constitution
of Indiana, passes both the test, i.e.equality test of Art 14 and as well as reasonability
of Art 19. It is the responsibility endorsed on the State by the Hon'ble SC of Indiana,
through a series of judicial precedents, logically extended its interpretation of the right
to life to maintain health services.82 It is the duty of the State to care for the health of
the public at large, and the Central Govt. and various State governments have, rightfully
and proactively, taken various measures to contain the entry and spread of the COVID-
19 pandemic.
9. It is further submitted that the dated letter 25.04.2021 is strengthening the purpose of
Directive Principles of State Policy, enshrined in Part IV of the Constitution of Indiana,
specifically Art 38, Cls. (e) & (f) of Art 39, Art 41, and Art 47, which deals which the
socio-economic rights of the citizens and imposes a duty upon the state not only to

78
Right to Health as a Fundamental Right Guaranteed by the Constitution of India, JSA, (Mar.22,2020).
79
Parmanand Katra v. Union of India, AIR 1989 SC 2039.
80Spring Meadow Hospital v. Harijol Ahluwaliya, AIR 1998 SC 180.
81
Vincent v. Union of India: AIR (1987) SC 990.
82
State of Punjab & Ors v. Ram Lubhaya Bagga Etc. on 26 February, 198.

30
 protect and acknowledge the Fundamental right of the individual but also to achieve
Social-economic goals as it focuses on the welfare of the society.83
10. In the case of Novartis AG v. Cipla Ltd,84 the Hon'ble SC contented that-
“...If patent is not worked and is being misused only by the patentee in order to enjoy
the monopoly on importation and the exercise of patents rights 'impedes promotion of
public health and nutrition and are abused and if the exercise of patent rights 'prohibits
the Central Govt. from taking measures to protect public health'. If the product is not
made available at a reasonably affordable price to the public, then no prima facie case
is made out.”

11. Lastly, the counsel on behalf of the respondent concludes that the Govt. of Indiana has
taken proactive steps and is continuing to make positive endeavors to fulfill Art 21 of
the Constitution, dismantling the order given the Hon'ble HC of Delphi, by dismissing
the petition filed by Petitioner, on the ground that the Union Govt. was justified in its
act of using and licensing the patent held by the Petitioner. A constructive interpretation
must be done of the letter dated 25.2021 and the amendment dated 16.04.2021 on Sec
100 of Patents Act. If the Govt. of Indiana does not take measures to enhance the
availability of the vaccines there would be a high probability of increasing deaths rates
and casualties in the State of Indiana.

Therefore, the counsel pleads that there has been no violation of Art. 14,19 and 21 by the
letter dated 25.04.202 of the petitioner’s right. Further the actions of the Govt. were must
in order to ensure availability of vaccines to all the strata of society and in consonance with
Right to health under Art.21 and were an essential action.

83
Ayush Pandey, Relationship between Fundamental Rights, Directiv.e Principles & Fundamental Duties, Law
Times Journal, (Aug.29,2020).
84
Novartis AG v. Cipla Ltd., 2015 SCC OnLine Del 6430.

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 PRAYER

Wherefore, in the light of the issues raised hereinabove, arguments advanced and
authorities relied upon, the counsel for the Respondent humbly prays before this Hon’ble
SC of Indiana to kindly adjudge and be pleased to declare and/or issue:

1. That the Special Leave Petition may kindly be rejected with cost and order of
the Hon’ble HC be upheld as valid.
2. That the Amendment dated on 16.04.2021be upheld as valid in terms of trips
agreement;
3. That the letter dated 25.04,2021 is not violative of the provisions of Part III of
the Constitution of Indiana.
4. Any other order/directions/writ that this Hon’ble Court may deem fit in the
interest of equity, justice, environment and good conscience.

For this act of kindness, the Respondent, as in duty bound, shall ever humbly pray.

DRAWN ON:

FILED ON:

Sd/-

Counsels for the Respondent

32