Abstract
This paper is an evaluation of the decision in Novartis AG v. Union of India, where the Madras High Court decided on both, the constitutionality of s. 3(d) of the Indian Patents Act, 1970 and its compatibility with the TRIPS regime. The authors agree with the Court insofar as the court upheld the constitutionality of the section. They are, however, critical of the Court's decision to 'duck' out of deciding TRIPS compatibility on jurisdictional grounds. The authors disagree with the reasoning and contractual framework within which the Court found it had no jurisdiction, and posit that principles of constitutional law ought to have been used instead. It is argued that although the Madras High Court had the jurisdiction to adjudicate the present dispute, given the dualist approach of the Indian legal system in the enforcement of treaty obligations, it could not have in any event enforced TRIPS obligations.
Recommended Citation
Basheer, Shamnad and Reddy, Prashant
(2008)
"Ducking TRIPS in India: A Saga Involving Novartis and the Legality of Section 3(D),"
National Law School of India Review: Vol. 20:
Iss.
2, Article 2.
Available at:
https://repository.nls.ac.in/nlsir/vol20/iss2/2
