BLOGS

Introduction  

But who suffers the most when the rivers run dry, the air becomes toxic, or the forest burns? The answer, of course, lies in our deep-rooted inequalities in society. Environmental justice deals with the fair and equitable distribution of environmental benefits and the burden of maintaining the environment across all sections of society. While it is considered a relatively modern ideal for development and sustainability, India's ethos of environmental justice has its footprints since ancient times, scripted in Rigveda and Atharvaveda, demonstrating an inherent understanding of sustainable living. The suffering of oppressed populations, who bear a disproportionate amount of the burden of environmental deterioration while being denied access to resources, representation, and the means to defend themselves, is brought to light by environmental justice.
However, the issue of "who bears the burden" is complicated and important in India today. Even though there are many environmental laws and constitutional protections, environmental devastation seldom impacts everyone equally, from tribal people to slum dwellers. This blog maps out a path to a fair and just future by examining how Indian legislative systems either address or fail to address environmental justice.

Understanding Environmental Justice

Maintaining the fairness of nature requires that everyone be treated fairly and have a meaningful say in environmental decisions, regardless of their background. Its fundamental tenets include the fair distribution of natural resources for the benefit of all and the responsibility for their upkeep falls on all communities. By striking a balance between present development requirements and sustainability, meaningful engagement from marginalized communities in the decision-making process will facilitate the justice process while protecting the environment for future generations.

The air quality in Delhi can used as an illustration of distributive disparity while talking about environmental justice in India. According to research, Delhi had an annual PM2.5 concentration of 104.7 µg/m³ in 2024, which is double the national ambient air quality threshold and leads to major cardiovascular and respiratory illnesses. These issues are made worse by disparities in rural health; access to care is very costly, and almost 90% of the population does not have insurance.

Indian Legal Framework for Environmental Protection

India's Constitution's extensive laws and judicial activism uphold the country's commitment to environmental justice. Article 48A of the Directive Principles of State Policy, which requires the state to preserve, enhance, and protect forests and wildlife, is one example of how the legal framework strikes a balance between development and sustainability. This lays the groundwork for environmental governance and policymaking. Additionally, Article 51A(g) guarantees that each person fulfils their civic obligation by incorporating environmental concerns with appropriate conservation and nature-loving practices.

Several laws have also been passed in response to environmental injustices that frequently affect underprivileged communities. One such law is the Environment (Protection) Act of 1986, which gives the federal government the authority to take action, punish offenders, and establish guidelines for pollution control. The Forest (Conservation) Act of 1980 governs the industrial and other associated uses of forest areas, prioritizing ecological balance over financial benefit. Additionally, air quality monitoring and other measures are used to manage air pollution under the Air (Prevention and Control of Pollution) Act of 1981. These laws and clauses act as stimulants to support and empower people, benefiting everyone while preserving the justice of nature and punishing those who violate its rights.

Challenges to achieving environmental justice

Despite India’s efforts for environmental protection, several systematic challenges hinder the realisation of environmental justice, especially for marginalized communities. At the outset, the effectiveness of enforcement of environmental laws falters due to a lack of resources and personnel to monitor regulatory bodies' compliance. A similar situation occurred when the negligent oversight by the Tamil Nadu Pollution Control Board in the case of the Sterlite Copper Plant, led to the pollution of groundwater, further aggravating the environmental and health consequences. 

India’s governance in the environment is fragmented, with multiple agencies operating individually, overlapping the responsibility of each other which leads to conflicts, inefficiencies, and complicated management. Further, environmental litigation acts as a barrier to access to justice for marginalized communities as the legal fees, lengthy court proceedings, and limited door to legal aid deter these communities from pursuing justice. Also, the rapid development in urbanization and industrialization clashes with the environmental goals resulting in forest displacement, and land acquisition which affects the tribal and rural communities. The environmental violations carry petty penalties, failing to prevent future offences and injustice to nature. In addition to these, climate change exacerbates inequalities and vulnerabilities. Most of the time, the least responsible for emissions and environmental offences suffer the most due to a lack of resources and access to equality and justice. 

Addressing these challenges requires reforms, strong enforcement of penalties and other sanctions, improvement in policymaking, and a shift towards sustainability that prioritizes justice for all. 

Balancing development and strengthening environmental justice

In the present era, there is always a tussle between economic growth and environmental sustainability. The industrial projects lead to ecological degradation and displacement of the ethnic groups making them more vulnerable. Maintaining a balance between the nation’s development and the preservation of nature is the need of the hour, critical for achieving justice because of a question of fairness- who bears the cost of development?

Urbanisation often leads to the demolition of homes and livelihoods, pushing the already disadvantaged groups into poverty. For instance, the development of the Sardar Sarovar Dam affected thousands of families due to a failure in proper rehabilitation, undelivered promised amounts, and their farmlands which impacted the vulnerable communities and turned out to impede their access to natural resources. Though such projects and developments are beneficial for economic growth but result in habitat destruction, deforestation, and loss of biodiversity. However, this trade-off between growth and nature is not inevitable; green technologies offer a pathway to minimize environmental harm while fostering growth. Renewable energy sources reduce the dependency on fuels, sustainable agricultural practices will initiate waste-to-energy initiatives, and green building designs will lower the ecological footprint of development activities. India must reform its legislations and policy frameworks and prioritize:

• Explicit recognition of environmental justice to address the unequal distribution of environmental burdens and ensure the protection of marginalized groups and ecosystems at risk.

• Stricter penalties are necessary to hold individuals and corporations accountable for their impact on nature, expanded to tangible environmental justice goals. 

• Incentivizing sustainable practices will encourage entities to integrate environmentally friendly applications of technology, projects for development, and urbanization. 

• Inclusivity in the decision-making process will empower local communities, especially those directly impacted by projects will allow them to voice their concerns and influence decisions.

Conclusion

The journey towards environmental justice in India depends upon the fair distribution of environmental burdens and benefits. Marginalized communities have faced ecological degradation due to industrial pollution, forced displacement, and various other reasons for far too long. It must be equated to addressing inequity rather than simply policy; it calls for collective moral action.

Individuals, governments, and corporations each play a crucial role. Citizens can make environmentally conscious choices in their daily lives, raise awareness, and demand policymakers to do so. Governments need to prioritize laws and policies that explicitly deal with environmental justice while making sure they are implemented robustly. Corporations, being one of the major stakeholders, must adopt sustainability, abide by environmental standards, and invest in green innovations.

The call to action from these efforts toward a future embedded in equity and sustainability is clear: to collaborate for sure, but one has to be convinced that economic development without ecological degradation and social injustice isn't a sure game at all.

Disclaimer: The views expressed are those of the author and do not reflect the opinion of  The Jamia Student Law Review. 

Introduction

“Freedom is not worth having if it does not include the freedom to make mistakes.”

• Mahatma Gandhi

The new age technology has certainly reshaped the dialogue around human rights. India acknowledges Article 19 and safeguards the dignity of speech and expression, which is essential in the fabric of democracy. The right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution is in direct conflict with the right to privacy under Article 21. While the former encourages an individual's freedom to express opinions freely, the latter safeguards personal autonomy and dignity from unwarranted encroachment. With the advent of technology, this tension has been fuelled by unfettered flows of information on social media platforms, algorithmic censorship, and the expansion of data surveillance. This vast influence of online media as a key actors in regulating speech, typically without legal accountability. Consequently, issues regarding arbitrary content moderation, censorship, and unregulated dissemination of intimate data have emerged. 

The Indian judiciary has been leading the way in shaping this discourse. Cases such as Shreya Singhal v. Union of India reaffirm the constitutional right to free speech, and Justice K.S. Puttaswamy v. Union of India enunciates privacy as a fundamental right. While these rights are grappled over in the courts, new challenges emerge in the form of doxxing, cyber harassment, and the ‘right to be forgotten’. 

Evolution of Privacy and Free Speech in India

Since India gained independence, freedom of speech and expression has been regarded as a crucial democratic right. In the landmark case of Romesh Thapar v. State of Madras, the Supreme Court established that this freedom is the cornerstone of all democratic institutions, stressing that any limitations on its exercise must align with Article 19(2) of the Constitution.

Nevertheless, even in those early years, reasonable restrictions were acknowledged to uphold public order, prevent defamation, and protect national security. While free speech was explicitly safeguarded by the Constitution, the right to privacy was not clearly defined as a fundamental right in the original framework. In M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P, the Supreme Court determined that privacy was not protected under the Constitution. The Court asserted that concerns about privacy could not take precedence over state interests, reinforcing a model of constitutional rights focused on negative liberty.

A significant turning point occurred in the case of Justice K.S. Puttaswamy v. Union of India, where the Supreme Court unanimously affirmed that privacy is a fundamental right under Article 21. This ruling overturned previous interpretations, highlighting the connection between privacy and free speech as both vital for personal liberty in our digital age. 

The privacy perspective was altered through the seminal rulings of the Hon’ble Supreme Court in cases such as Mr. X v. Hospital Z. With that, privacy was accorded pivotal significance in the age of the internet when it transformed public discourse. Since then, the conflict between free speech and privacy has intensified, necessitating both judicial action and legislative progress. 

Regulatory Framework and Platform Accountability

Evolving concerns regarding data privacy in the digital landscape prompted the introduction of the Digital Personal Data Protection Act, of 2023, which introduced restrictions on how private and public entities collect, store, and process user data in the system. This law is aimed at safeguarding privacy rights, but also sparked debates over whether such regulations could stifle free speech. The Information Technology Rules, 2021, have imposed further content moderation responsibilities on digital platforms, mandating them to address issues like hate speech, misinformation, and privacy breaches. Critics contend that these regulations lead to greater government oversight and may infringe on free speech due to excessive control. Consequently, this raises important questions about the integrity of privacy in an individual's social sphere. 

Digital Media and the Freedom of Speech

The rise of digital media has transformed how people share their views, participate in discussions, and find information. With the growth of social media platforms, online news sites, and discussion forums, the concept of freedom of speech and expression Article 19(1)(a) of the Indian Constitution has significantly changed. Unlike traditional media, which is guided by editorial control to ensure a coherent flow of information, digital platforms provide a more open and often unregulated environment for communication. While this shift has empowered countless individuals, it has also introduced new legal and ethical dilemmas, such as misinformation, hate speech, surveillance, data privacy issues, and increased digital censorship from both governments and private companies. The following are the key concerns as well as the opportunities: 

1. State Regulation and Internet Censorship

One of the most significant rulings that shaped online free speech in India is Shreya Singhal v. Union of India. The case dealt with Section 66A of the Information Technology Act, 2000, which criminalised sending "offensive" messages online. The Supreme Court struck down Section 66A, holding that its vague language led to arbitrary enforcement, stifling dissent and political criticism. The ruling emphasised that any restrictions on digital speech must be clear and justifiable under Article 19(2). Despite this ruling, the government-imposed internet shutdown continues to be a controversial topic. India has frequently ordered internet blackouts in sensitive regions, particularly in Jammu and Kashmir and, in recent times, in Manipur, as a preventive measure against unrest. India stands as the country with the second-highest number of internet shutdowns imposed by the government in charge. According to digital rights organisation Access Now’s report, India saw 84 internet shutdowns owing to reasons ranging from political unrest to prevention of cheating in competitive examinations in 2024.

2. Misinformation, Hate Speech, and Social Media Manipulation

The rise of social media platforms and instant messaging services has significantly contributed to the spread of misinformation, fake news, and hate speech. Unlike traditional media, where journalistic ethics and fact-checking mechanisms were in place, digital platforms allow unverified content to go viral in minutes, often fuelling violence, communal tensions, and electoral interference. The Supreme Court, in Pravasi Bhalai Sangathan v. Union of India, acknowledged the dangerous impact of hate speech, noting that while such speech may not always incite immediate violence, it can foster social disharmony and discrimination. The Court also urged the legislature to create a legal framework to address digital hate speech effectively.

In the recent controversy of the platform, India’s Got Latent run by the comedian Samay Raina, Justice Surya Kant said, “These young and over-smart ones think they know more than this...One of them went to Canada and spoke about all this,” To this, Solicitor General of India Tushar Mehta said, “Yes, he (referring to Raina) went abroad and made fun of this proceeding.” “Possibly, they do not know the jurisdiction which this court enjoys,” Justice Surya Kant added, warning the YouTubers to “behave.” This was a private show where only certain individuals who paid for the online show i.e. a member of the YouTube community could watch the show.

3. The Role of Private Platforms in Regulating Speech

A unique challenge in the digital era is the growing influence of private corporations over public discourse. Platforms such as Twitter, Facebook, YouTube, and Instagram act as gatekeepers of online speech, exercising significant control over content visibility and accessibility.

In Kaushal Kishore v. Union of India, the Supreme Court examined whether fundamental rights, including free speech, could be enforced against private entities. The Court recognised the concept of the “horizontal effect” of rights, meaning that certain fundamental rights may be applicable to private parties in specific contexts. This ruling has significant implications for social media governance, as it raises questions about the accountability of tech companies in regulating speech without violating constitutional freedoms. Another growing concern is the lack of transparency in social media algorithms. Digital platforms prioritise engagement-driven content, often amplifying sensationalist, polarising, or misleading narratives

Conclusion

The legal and regulatory landscape governing digital free speech in India is continuously evolving, influenced by judicial pronouncements, government policies, and global trends in technology regulation. While, digital platforms have provided unprecedented opportunities for communication and activism, they have also introduced new challenges, including online misinformation, surveillance, and private censorship.

The increasing reliance on artificial intelligence and algorithm-driven content moderation raises concerns about bias, lack of transparency, and the potential for automated suppression of speech. With that, the government interventions in digital spaces must be carefully designed to protect public interest without infringing on fundamental freedoms. Striking the right balance will require a clear legal framework that safeguards open discourse while addressing legitimate concerns related to harmful content and data security. By fostering open dialogue, responsible governance, and democratic principles, societies can ensure that the digital age remains a space for free expression rather than a battleground for control and suppression.

Disclaimer: The views expressed are those of the author and do not reflect the opinion of  The Jamia Student Law Review. 

INTRODUCTION

Urban Local Bodies or municipalities, in India are self-sustaining autonomous bodies responsible for the administration of urban cities, towns, and transitional areas of a state or Union Territory. The 74th Constitutional Amendment Act of 1992 provided constitutional status to these bodies by enacting Part IXA into the Constitution, which detailed the establishment of three kinds of municipalities on the basis of size of area and population: Nagar Panchayat for the rural-urban transitional areas, Municipal Council for small urban areas, and Municipal Corporation for bigger urban areas. 

The debate shall hereafter particularly deal with Municipal Corporations. Construing Article 12 of the Indian Constitution, municipalities come within the definition of “state,” thereby allowing citizens to make recourse to their fundamental rights against them. Therefore, Municipal Corporations have frequently been litigated. Courts have repeatedly held that Municipal Corporations can be subject to actions by writ and liability for non fulfilment of statutory duties. In light of all that, whether or not a Municipal Corporation can be held responsible for an occurrence arising out of the action or inaction of a private property owner is left to question. This question has gained particular relevance due to the ongoing case of Smt. Durgawati Mishra v. The Commissioner, MCD and Ors. [W.P.(C) 12284/2022], currently pending before the High Court of Delhi, which served as the inspiration for this piece.

UNDERSTANDING MUNICIPAL LIABILITY

A practical understanding of municipal corporation liability can be gained by examining the case of the Municipal Corporation of Delhi (referred to as ‘MCD’ hereafter). MCD is regulated through The Delhi Municipal Act, 1957 (referred to as ‘the DMC Act’ hereafter). Part III of the DMC Act addresses the corporation’s responsibilities, along with certain undertakings even for private property in some instances.

Section 42 of the DMC Act lists the obligatory functions of the MCD. Sub-section (m) explicitly assigns the responsibility of securing and removing dangerous buildings to the corporation. Further, Section 348 grants the Commissioner the authority to take immediate action in cases of imminent danger posed by such structures. This includes repairing the structure, demolishing it, or installing protective fencing. The law gives the corporation the authority to take independent action if the property owner disregards the Commissioner’s orders. The costs of such actions may be recouped from the owner in the form of tax arrears. These clauses highlight how municipalities are required by law to address the risks posed by private properties.

Municipal corporations typically have the responsibility for a wider list of urban-related activities. Civic amenities such as water, electricity, parking lots, sewerage system, service lanes, streetlights, and other public utilities are normally given by them. Monitoring, upgradation, and development of these amenities at an efficient level are essential in order to provide a secure and functional environment to the citizens. With their far-reaching responsibilities, any omission or action by private property owners causing damage to the public interest can become a question of municipal accountability. The question here is whether municipalities are to be held responsible in such a situation for their failure to carry out their role of supervision and regulation?

Judicial precedents serve as a crucial reference for understanding this issue. In the case of Municipal Corporation of Delhi v. Subhagwanti and Ors. [1966 SCR (3) 649], the Hon’ble Supreme Court held MCD responsible for the collapse of a clock tower maintained by it, which caused loss of lives. The court held that the municipal corporation is duty-bound to see that public buildings are kept in good condition, even if defects are not visible. Equally, in the case of Ram Kishore v. Municipal Corporation of Delhi [2007 SCC ONLINE DEL 992], the Hon’ble High Court of Delhi held MCD liable for strict liability for a collapse of a lavatory wall leading to the death of a child. The court emphasized the corporation’s public duty to ensure facilities under its jurisdiction are safe and awarded compensation on such lines.

While these cases primarily involved structures maintained by the MCD, they seem to illustrate the principle that municipal corporations can be held liable for negligence in performing their statutory duties. 

In Jaipur Golden Gas Victims Association v. Union of India and Ors. [2009 SCC ONLINE DEL 3357], the liability had extended beyond municipal property. The court found the MCD negligent alongside the private godown owner for a gas leakage incident that infringed citizens’ rights to health and a pollution-free environment. The municipal corporation’s failure to enforce regulations and perform its statutory functions was considered a contributing factor to the harm caused.

These cases showed that municipal corporations can be held accountable for failing to regulate private property when required by law, in addition to their negligence in maintaining public buildings. Although it is not always the case, liability for private property owners’ actions or inactions occur when municipal negligence causes or tolerates the harm.

Understanding these ratios, it becomes evident that municipal liability in such situations depends on specific conditions which can include the existence of a statutory duty, evidence of negligence, and the impact of municipal inaction on public safety The next section will take a closer look at these conditions to understand the extent and limits of municipal liability in cases involving private property.

WHEN DO MUNICIPAL CORPORATIONS SHARE LIABILITY?

Certain circumstances make Municipal Corporations liable for the acts or inactions of private property owners. Liability normally exists where municipalities violate their statutory obligations or act in a negligent manner, putting the safety or well-being of members of the public at risk. A crucial prerequisite is neglect by the municipality in relation to dangerous buildings on private property. One critical condition is the municipality’s failure to address dangerous structures on private properties. Municipal Corporations are required by statutes, like Section 348 of the DMC Act, to take action against dangerous structures. The municipality may be held liable for its negligence if accidents happen as a result of such structures being neglected in spite of obvious dangers.

An area of municipal liability pertains to the regulation of private activities, that pose risks to the public. Neglecting the dangers of hazardous storage or ignoring known safety risks on private property can have serious consequences. Union Carbide Corporation bore primary responsibility for the 1984 Bhopal Gas Tragedy, however, the Bhopal Municipal Corporation was also criticised for its failure to provide proper oversight, reflecting how municipal negligence can contribute to such disasters.

Liability also arises from municipal negligence in enforcing building codes and safety regulations to prevent disasters. If harm results from poorly constructed private structures due to inadequate monitoring or inspections, municipalities may share the blame. In 1995, South Korea witnessed one of its most devastating man-made disasters when the Sampoong Department Store collapsed, claiming over 500 lives. Unauthorised modifications and overloading were blamed for this tragedy. The incident highlighted the failure of local authorities to adequately regulate and inspect, demonstrating how municipal lapses can compound private negligence. 

Neglect by municipal corporations that infringes on citizens’ fundamental rights further establishes liability. Under Article 21 of the Indian Constitution, the right to life incorporate access to a safe and healthy environment. When municipal negligence enables private activities to jeopardise public welfare, it constitutes a violation of this right. A pertinent example, as discussed earlier, was the Jaipur Golden Gas Victim case. There, the municipal corporation was held liable alongside the private godown owner for failing to fulfill its statutory duties, thereby endangering public health and safety.

CONCLUSION

The rise in litigation over this issue made it important to effectively analyse the situation. It can be firmly concluded that yes, municipal corporations can indeed be liable for acts and omissions of private property owner but that should totally depend on case-to-case basis and a rigid, blanket rule imposing liability would neither be practical nor just. Municipal corporations are, after all, statutory bodies established to serve the public good. Albeit, it depends on the facts of the case but if the corporations are found to be liable for the act, the courts must not hesitate to order them to compensate for the loss, whatever be the kind and provide relief to the sufferers. 

By addressing their failures and upholding their obligations, municipal corporations can better serve public interests and maintain trust in their governance.

Disclaimer: The views expressed are those of the author and do not reflect the opinion of  The Jamia Student Law Review. 

Introduction: 

The issue of Intellectual Property Rights (IPRs) and access to essential medicines has drawn substantial attention, especially in poor nations where expensive prescription drugs and a lack of access to necessary medicines are major obstacles to accessing healthcare. IPRs are essential to the pharmaceutical sector because they protect inventions and aid in recouping development expenditures. However, the pharmaceutical industry's exclusive rights may restrict access to necessary medications, especially for people who cannot afford the expensive patented medications. In order to guarantee equal access to necessary medications, it is crucial to analyse the socio-legal implications of IPRs in the pharmaceutical business. In the current socio-legal environment, the issue of IPRs and access to necessary medications is of utmost importance, especially in the backdrop  of the COVID-19 pandemic, which has further underlined the need for affordable and accessible healthcare. 

Understanding Intellectual Property Rights (IPRs):

Individuals or organisations are granted intellectual property rights (IPRs) in exchange for their creative and innovative works. IPRs safeguard these works by allowing the creators the sole right to make use of, sell, and distribute their works for a pre- determined period of time. IPRs are essential in the pharmaceutical sector because they safeguard innovations, such as new medications, and they allow pharmaceutical companies to recoup their R&D expenses. Patents, trademarks, copyrights, trade secrets, and industrial designs are amongst some of the commonly known IPRs. Patents are particularly important in the pharmaceutical sector since they give creators the sole right to produce and market their discoveries. The normal length of a patent for a new drug is 20 years, following which time generic versions of the drug may be produced and sold by other businesses.

In India, the legal framework for IPRs is provided by the Patent Act, 1970, which governs the grant of patents in the country. The Act lays down the conditions for the grant of patents, including the novelty, inventiveness, and industrial application of the invention. India's patent laws are aimed at promoting innovation and creativity while balancing the interests of inventors with those of the general public. The legal framework for IPRs in India also includes the Trademark Act, 1999, and the Copyright Act, 1957, among others.

Access to Essential Medicines:

Essential medicines refer to medications that are necessary to meet the health needs of the population, based on their safety, efficacy, and cost-effectiveness. Access to essential medicines is essential to ensure quality healthcare, particularly in developing countries where affordable and life-saving drugs are scarce.

The significance of essential medicines lies in their potential to address a wide range of health problems, including infectious diseases, chronic illnesses, and maternal and child health. Moreover, access to essential medicines is a basic human right enshrined in the Universal Declaration of Human Rights, ensuring the right to the highest attainable standard of health. However, access to essential medicines remains a major challenge, particularly in developing countries, due to factors such as high medication costs, weak healthcare infrastructure, poor supply chain systems, and regulatory barriers. Additionally, exclusive rights granted to pharmaceutical companies under intellectual property rights can restrict access to essential medicines, particularly for those who cannot afford the high prices of patented drugs.

The limited availability of essential medicines in developing countries can have far-reaching implications, including increased morbidity and mortality rates, reduced productivity, and increased healthcare costs. Therefore, addressing challenges in accessing essential medicines is crucial to ensuring equitable access to healthcare and promoting the overall health and well-being of the population.

The Role of IPRs in Creating Barriers to Access to Essential Medicines

Intellectual property rights (IPRs) play a significant role in the pharmaceutical industry, as they grant exclusive rights to the patent holder to manufacture, use, and sell the patented drug. However, the monopoly created by IPRs often leads to high drug prices, which can be a barrier to access to essential medicines, particularly in developing countries. The lack of competition in the market limits the availability of affordable generic medicines, making it difficult for patients to access life-saving drugs.

TRIPS Agreement and Its Impact on Access to Essential Medicines

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1995 is an international agreement that sets out the minimum standards for the  protection and enforcement of the various IPRs. The agreement obliges member countries to provide patent protection for pharmaceutical products and processes, including those used in the production of essential medicines. This has led to concerns about the impact of TRIPS on access to essential medicines, particularly in developing countries.

The high cost of patented drugs, coupled with the lack of competition in the market, has resulted in limited access to essential medicines in developing countries. The World Health Organization (WHO) estimates that about two billion people worldwide lack access to essential medicines, with a disproportionate impact on low- and middle-income countries. The TRIPS agreement has also been criticized for impeding the production and export of generic medicines, which are often more affordable and accessible to developing countries.

The Indian Patents Act and Its Provisions for Access to Essential Medicines

The Indian Patents Act of 1970 was amended  in 2005 to meet the requirements of the TRIPS agreement, but it also includes clauses aimed at promoting access to essential medicines. The updated law provides for the grant of compulsory licenses under certain circumstances, allowing a third party to produce and sell a patented drug without the consent of the patent holder. The law also permits government use licences, allowing the government to use a patented drug for public health reasons without the patent holder's permission. 

Additionally, pre-grant opposition is included; enabling interested parties to challenge the grant of a patent before it is issued, preventing the granting of frivolous patents that might obstruct the availability of affordable generic drugs. Despite these provisions, concerted efforts are required to guarantee equal access to essential medicines, including the promotion of generic medicine production, the strengthening of healthcare systems, and the removal of regulatory obstacles that impede access to essential medicines, particularly in developing countries where access to life-saving medications is critical.

Case Study: Novartis AG v. Union of India

The Novartis case is a landmark case in the realm of Intellectual Property Rights and access to essential medicines. The case revolves around Novartis' patent application for Glivec, a drug used to treat chronic myeloid leukemia. The Indian Patent Office rejected the patent application on the grounds that the drug did not demonstrate any increased efficacy over existing treatments and lacked novelty. The legal and social implications of the Novartis case are significant. The case highlights the tension between the protection of intellectual property rights and the public interest in ensuring access to essential medicines. The decision by the Indian Patent Office to reject the patent application was a victory for public health advocates who argue that access to life-saving drugs should not be restricted by exorbitant prices set by pharmaceutical companies. However, the case also underscores the challenges faced by pharmaceutical companies in investing in research and development of new drugs if they are unable to recoup their costs through patent protection. The Novartis case had sparked debates about the need for a balanced approach to Intellectual Property Rights that protects innovation while ensuring access to essential medicines for all.

Conclusion 

The intersection of intellectual property rights (IPRs) and access to essential medicines is a critical socio-legal issue that requires urgent attention. Current legal frameworks create significant barriers for patients in developing countries who rely on affordable generic drugs. The Novartis case highlights the complexities of balancing IPRs and public health interests. Policymakers should explore innovative policy solutions that balance the interests of pharmaceutical companies and public health, such as compulsory licensing and patent pooling arrangements. 

Additionally, increased investment in research and development of essential medicines can improve access and affordability. Future research and advocacy should focus on the impact of international trade agreements and the role of multinational corporations in shaping the legal and policy landscape. There is a need for more empirical studies to explore the social and economic implications of IPRs on access to essential medicines in developing countries. Addressing this issue requires a multi-faceted approach that considers the legal, economic, and social dimensions. It is crucial to ensure that intellectual property laws do not hinder access to life-saving medicines for vulnerable populations.

Disclaimer: The views expressed are those of the author and do not reflect the opinion of  The Jamia Student Law Review. 

Introduction

During the initial years of the Indian Penal Code, the age of consent was initially 10 years, applicable only to girls. Subsequently, this was raised to 12 years in 1891, 14 years in 1925, 16 years in 1940, and finally raised to 18 years in 2013 applicable to all genders. POCSO Bill drafted by the National Commission for Protection of Child Rights had clarified especially that the definition of the child, given in Section 2 (d) of the POCSO act, and the age of consent for sexual activity are two different issues but still the age of consent in India was fixed at 18 years.

The age of consent for sexual relations in India is governed by various laws like IPC, Prohibition of Child Marriage Act, 2006, and POCSO. Fixing the age of consent to 18 years and criminalizing any sort of sexual activity performed before that age has raised several questions on the concept of consent in society. So let’s understand the dilemma here.

Problem With Current Laws: Pyschological Viewpoint

“Children go through a process of maturation, and in this process learn continuously. This continuous process then eventually leads them to acquire competencies that help them in the future when they turn into adults.” UNCRC here recognizes that the transformation of the child doesn’t happen overnight when he or she crosses 18 years of age but is gradual, starting early in the adolescent stage. But the Consent Law in India completely ignores that principle assuming the boundary of 18 years as watertight for the determination of one’s criminal indictment.

In a report by the National Crime Records Bureau on the type of offenses committed by children, it was found that out of the 21 rape cases reported, 11 cases were either of consensual sex or false accusation by the parents of the girls who did not consent to such a relationship. 

Problem With Current Laws: Judicial & Legal Viewpoint

The judiciary has also recognized the unjust gaps in the consent law in multiple cases. In the case of Vijaylakshmi & Anr. V. State, (2021), Madras HC stated that on a profound consideration of ground realities, the definition of child under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. If so, then it would be possible to treat any sexual activity done with consent after the age of 16 in liberal light. In the case of Arhant Janhardan V. State of Maharashtra, (2021) consensual sex between minors has been in a legal grey since the consent given by the minor isn’t valid in the eyes of law.

 But perhaps the biggest problem was highlighted in the case of Sabri V. Inspector of Police, (2019) where a 19-year-old man stood accused of kidnapping and assaulting a 17-year-old girl in 2014. The Madras HC revealed that the majority of the case registered under POCSO happens to be a case of elopement which make it difficult to prioritize the real case of minor rape. Moreover, even in the case both boy and girl are below 18 years of age, the only boy is punished, which is detrimental to the concept of natural justice.

The only legal ground provided by the 84th law commission report to raise the age of consent from 16 to 18 was to bring it in conformity with the age of marriage and the fact that it is backed by no other claim raises questions as to the legislative intent of the Parliament in approving this. Furthermore, when the POCSO bill was introduced in Parliament, this agenda was put in arbitrarily and passed without any due consultation. Moreover, according to UNICEF estimates, 10 to 12 percent of adolescents in low and middle-income countries have had sexual intercourse before the age of 15. 

In recent years, the incidence of rural and tribal boys being convicted for having consensual sexual activity with a girl in the age group of 16-17 years has only shot up. Raising the age of consent, without paying any due regard to the guidelines and scientific data while having no measure to spread awareness about the legal reforms to much of rural India speaks volumes of the laxity in the consent law in India.

It must be understood that sexual activity is unrelated to marriage, so if by allowing a marriage to give legal legitimacy to sexual activity, a space is created for disturbing events best illustrated in the research paper by Amita Pitre and Lakshmi Lingam titled ‘Age of Consent Challenges and Contradictions of sexual violence laws in India’ which argues rightfully as to how this practice of marriage granting socio-legal permissibility to sexual relations reinforces parental control and caste and religious purity taboos.

Possible Reforms That Can Be Implemented 

First of all, the notion of marriage being the cornerstone for determining the age for sexual relations should be rejected. In a progressive world that India aims to be an important part of, where women empowerment, girl education, and gender equality are valued, one must stick to egalitarian principles rather than outdated notions of the past.

Secondly, as it was originally stated in the draft bill of the POCSO act, the age of consent must be viewed in psychological terms and based on a factual matrix rather than the uniformization of marriage and age of consent. In 2015, the sexual offense law in South Africa was amended to decriminalize consensual sexual activity between adolescents aged between 12 year-16 years with the clause that the difference between ages shouldn’t be more than 2 years. 

Similar laws have been passed in recent years across several countries in light of the fact that the maturation process of an adolescent is gradual and doesn’t automatically allow an immature person to mature adult by crossing the threshold of 18 years old. 

Thirdly, even leaving these necessary reforms aside, the government must take necessary steps in ensuring measures against parents who wrongfully file complaints against children selectively on basis of caste and religious taboos. Right now, there are no safeguards against that, as evidenced by DCPCR Report, 2015 on ‘Why children commit offenses. 

Finally, since the legislative reforms are bound to take time, the government should meanwhile collaborate with the judiciary and must refrain from taking blind steps as stipulated in the act and allow liberal interpretation by the judges in such cases when deemed fit.

Conclusion

The issue of consent has always sparked debates in the legal, political, and social arena for centuries and has evolved according to the changing norms but it must be ensured that the legal reforms must also actually bring a positive change in society as a whole and mustn’t remain a blind weapon to be hurled at the ignorant and innocents. The gravity of sexual offenses against minors can’t be undervalued but it must also be understood that their maturity can’t be conveniently fit in a framework of a certain biological age and must be viewed in phases recognized and determined psychologically, scientifically, and based on the real ground incidences. POCSO Act has helped India to take a big step towards ensuring a safe space for children but still, the legal lacunas must not be allowed to form a bulwark against the constitutionally guaranteed and recognized fundamental right to privacy which also includes the right to one’s sexual autonomy.