The HINDU Notes – 28th April 2018 - VISION

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Saturday, April 28, 2018

The HINDU Notes – 28th April 2018

📰 Archaeologists find child sacrifice site in Peru

Ancient pre-Columbian people said to have carried out the ritual on top of a cliff facing the ocean

•Archaeologists in Peru have found evidence of the biggest-ever sacrifice of children, uncovering the remains of more than 140 youngsters who were slain alongside 200 llamas as part of a ritual offering some 550 years ago, National Geographic announced in a study.

•The site was located on top of a cliff facing the Pacific Ocean in La Libertad, a northern region where the Chimu civilization arose, an ancient pre-Columbian people who worshipped the moon.

•The cliff is located just outside the northwestern coastal city of Trujillo, Peru’s third largest city which today has 8,00,000 inhabitants.

•“While incidents of human sacrifice among the Aztec, Maya and Inca have been recorded in colonial-era Spanish chronicles and documented in modern scientific excavations, the discovery of a large-scale child sacrifice event in the little-known pre-Columbian Chimu civilisation is unprecedented in the Americas — if not in the entire world,” National Geographic said.

•The investigations were carried out by an international team led by NationalGeographic ’s Peruvian explorer Gabriel Prieto, of the National University of Trujillo, and John Verano, a physical anthropologist from Tulane University in New Orleans.

•The team uncovered evidence of “the largest single incident of mass child sacrifice in the Americas — and likely in world history.” “I, for one, never expected it,” Mr. Verano told the magazine of the sacrifice site, known to the researchers as “Las Llamas”.

•“And I don’t think anyone else would have, either,” he added. The excavations began in 2011 when the team uncovered the remains of 42 children and 76 llamas (camel-like animals) at a 3,500-year-old temple nearby.

•By the time the excavations had finished five years later, they had uncovered more than 140 sets of child remains and 200 juvenile llamas, as well as rope and textiles dating to between 1400 and 1450.

•Located about 300 metres above sea level, the site is in the middle of a cluster of residential compounds in Huanchaco, a neighbourhood bordering Trujillo.

•“The skeletal remains of both children and animals show evidence of cuts to the sternum as well as rib dislocations, which suggest that the victims’ chests were cut open and pulled apart, perhaps to facilitate the removal of the heart,” the magazine said.

•Researchers determined that the children were between the ages of five and 14, with their bodies buried facing west — out to sea.

📰 ‘India should get sanctions waiver’

Mattis seeks changes in anti-Russia law

•The Secretary of State should be allowed to grant waiver to countries such as India that will otherwise come under American sanctions under a new law that intends to target Russia, Secretary of Defense James Mattis told lawmakers on Thursday.

•The Countering America’s Adversaries Through Sanctions Act (CAATSA) mandates the U.S. President to impose sanctions on entities that have transactions with Russian defence and intelligence sectors. India being a close defence partner of Russia is a potential target of such sanctions, along with some other key American allies such as Vietnam and Turkey. The law allows the President to issue waivers under national security considerations. Typically, American punitive laws comes with waiver authority vested in the Secretary of State.

•Testifying before a Senate panel, Mr. Mattis asked lawmakers to change CAATSA and empower the Secretary of State.

•“There are nations in the world which are trying to turn away from formerly Russian-sourced weapons and systems like this. We only need to look at India, Vietnam and some others to recognise that, eventually, we’re going to paralyse ourselves,” Mr. Mattis said about the law.

•“So what we ask for is that the Senate and the House pass a national security waiver in the hand of the Secretary of State — I’m not asking for myself. Foreign policy is driven from Foggy Bottom (where the U.S. State Department is located). So, if he has the waiver authority and I can go to him and show it’s in our best interest, then we get an internal management of this process, but it keeps us from being boxed in by the Russians,” Mr. Mattis said.

•Pressing Mr. Mattis to elaborate further, Senator Tom Cotton asked: “You mentioned two specific countries, India and Vietnam, that have legacy Russian systems. They might face real challenges going cold turkey, so to speak, under CAATSA…So, you’re suggesting the national security waiver as a way that this Congress can empower Secretary (Mike) Pompeo to address the concerns that you have with those two countries, is that right?.”

•“That’s correct. And there are other countries. Indonesia, for example is in the same situation, trying to shift to more of our airplanes, our systems. But they’ve got to do something to keep their legacy military going,” Mr. Mattis replied.

Political instrument

•“I think that his point regarding the waiver was that a Presidential waiver is inherently a political instrument and that typically the Secretary of State is granted waiver authority to make a judgement on national security grounds, but not in the case of CAATSA,” said Benjamin Schwartz, who leads U.S.-India Business Council’s Defense and Aerospace programme.

•“More broadly, the Secretary of Defence is correctly highlighting the importance of Congress taking action to ensure CAATSA doesn’t undermine defence relations with a number of important foreign partners of the U.S., including India,” added Mr. Schwartz.

📰 ‘Collegium allotting cases will cause chaos’

‘Collegium allotting cases will cause chaos’
It will mean judges deciding for themselves which cases they should hear, Attorney-General tells Supreme Court

•Attorney-General K.K. Venugopal on Friday differed with a plea by former Law Minister Shanti Bhushan to have a collegium of Supreme Court judges collectively allocate cases in the court rather than leave the entire power in the hands of the Chief Justice of India in his administrative capacity as “master of roster”.

•Mr. Venugopal said having a collegium to allocate cases among judges would invite chaos.

•Unlike a collegium to recommend new judges, a collegium to allocate cases would mean judges deciding for themselves which cases they should hear. Better have the CJI decide for all as master of roster, Mr. Venugopal said in his submissions.

•Justice Sikri said the allocation of cases was not always done on the initiative of the Chief Justice. At times, the judges themselves “express anguish as to why ‘I was not given this or that matter.’”

Karnan issue

•Mr. Venugopal, at this point, recalled how one of the major grievances of the controversial former Calcutta High Court judge, C.S. Karnan, was that he was not given bail matters.

•Justice Ashok Bhushan said there may be difficulties in having a collegium to allocate cases, but the Supreme Court’s primary concern would be whether the Constitution intended it.

•The court said the plea should be tested on the touchstone of Article 145 (Rules of the court governing its practices and procedures) of the Constitution. “Difficulties can always be resolved. We have to see what the Constitution has in mind,” Justice Ashok Bhushan said.

•The court reserved Mr. Shanti Bhushan’s plea for final orders.

•The Supreme Court had earlier agreed to examine a petition filed by Mr. Shanti Bhushan to declare that the authority of the Chief Justice of India as ‘master of roster’ should not be reduced to an absolute, singular and arbitrary power.

•A Bench of Justices A.K. Sikri and Ashok Bhushan had asked the Attorney-General to assist the court.

•The Bench had decided to hear the petition despite two separate judgments by the Supreme Court in November 2017 and April 9, 2018 upholding the Chief Justice of India’s complete administrative authority to allocate cases and constitute Benches. Both judgments were pronounced by Benches led by Chief Justice of India Dipak Misra.

•The April 9 verdict called the CJI an “institution in himself”.

‘Absolute discretion’

•In his petition, Mr. Bhushan has said such “absolute discretion” cannot be confined in just one man, the Chief Justice of India. Senior advocate Dushyant Dave, for Mr. Bhushan, referred to the judges case of 1998 to argue that the Supreme Court itself had interpreted the term ‘Chief Justice of India’ to collectively mean the CJI and his four senior-most judges.

📰 ‘Primacy of collegium violated’

‘Primacy of collegium violated’
Segregation of files without consulting CJI not done, says former CJI R.M. Lodha

•As Justice Indu Malhotra took oath as Supreme Court judge and the fate of Justice K.M. Joseph’s elevation remains uncertain, former Chief Justice of India R.M. Lodha on Friday said the segregation of their names by the government was a challenge to the primacy of the Supreme Court Collegium in judicial appointments.

•Earlier in 2014, Justice Lodha had written to the government a scathing one-page latter against unilaterally segregating names jointly recommended by the Supreme Court Collegium without consulting the Chief Justice of India.

•The letter came in the aftermath of the failed elevation of senior advocate Gopal Subramanium to the Supreme Court. Justice Lodha was the Chief Justice of India then.

Repeat after 4 years

•Justice Lodha acknowledges that four years later, the government has repeated the act by de-linking Justice Malhotra’s file from Justice Joseph’s without first informing Chief Justice of India Dipak Misra. His letter had spelt out the norm and should have been followed by the government as a “matter of course”.

•“What has happened to Justice Joseph goes against the very concept of the primacy of the collegium. The collegium is the final arbiter of judicial appointments. This [segregation of Justice Joseph’s file without consulting the CJI] is something not permissible,” Justice Lodha told The Hindu . He added that such segregation amounted to “tinkering”.

•“When we send the names of judges, and when it is more than one, the collegium takes many factors into consideration. One of which includes who all the collegium feels fit to become CJI in due course of time. So when the list is prepared, serial numbers of 1, 2, 3, 4 are given to the names recommended to the government. These serial numbers are given to indicate who is to remain senior to whom, who is to become CJI, etc. So if the government is segregating names, it is tinkering with the list the collegium sent,” Justice Lodha said.

•“It is very easy to withhold a person’s name for three months and let the other go through. So a person whom the collegium wanted to be senior, is made to become junior ... I presume Justice Joseph’s name was above that of Justice Indu Malhotra. Now if the collegium reiterates Justice Joseph, he becomes junior to Justice Malhotra. So this [is] tinkering...” Justice Lodha said.

Consultative process

•The judicial appointments’ process is a consultative one, Justice Lodha said. “The first thing required of the government is to write to the CJI, saying, ‘Look, in the list of two you sent us, we have a problem with this person. So if you want the other name to go ahead, we can proceed’. This is how the primacy of the collegium is maintained. The government cannot do indirectly what it cannot do directly,” the former CJI said.

•Though not mentioned in the Memorandum of Procedure (MoP) or in any judgments, Justice Lodha said prior consultation with the CJI before segregation is “the integral component of the primacy of the collegium”. The former CJI said the only way to resolve the crisis was a new Memorandum of Procedure wherein it was stated that segregation would be done by the government only after consulting the CJI.

📰 The elephant in the Patent Office

Patents for trivial improvements on drugs, though statutorily barred, are routinely granted

•Over the last few years the Indian Patent Office (IPO) has been focussing on granting patents expeditiously and reducing the backlog of pending applications. Newly recruited examiners have been sending in examination reports rapidly in a race to reduce the examination timeline and increase the grant rate. There needs to be some caution here as the IPO has set an example of having one of the toughest standards in the world to distinguish real innovation from trivial tweaks — a change brought about by the introduction of the anti-evergreening provisions in the Patents Act.

•India hit the headlines when it incorporated certain anti-evergreening provisions such as Sections 3(d), 3(e) and 3(i) into the Patents Act to restrict patentability of a host of secondary patents — essentially alternative forms of already existing patented drugs aimed at further extending their term of protection. These provisions together with the decision of the Supreme Court in the Novartis case have shown us a way forward to have access to affordable medicines. Through these provisions, India is leading by example for other developing countries such as Brazil, the Philippines, Argentina and South Africa.

•But despite such high standards for granting patents, our recent study reveals that there is an elephant in the patent office: of the IPO granting patents for things that should never have been granted. Our analysis of pharmaceutical patent applications suggests that the IPO is operating at an error rate as high as 72%, which corresponds to all secondary patents granted by the IPO. In short, seven out of 10 patents granted by the IPO are likely granted in error.

Combine and confuse

•In the last two decades, the IPO has granted 1,654 secondary patents, of which 91% were directed to formulations, compositions and combinations. Much of these would come under the purview of Section 3(d), which covers “combinations and other derivatives of known substance”, as well as under Section 3(e), which covers “substance obtained by a mere admixture resulting only in the aggregation of the properties of the components or a process for producing such substance”. Whenever an objection is raised under these sections, the law requires the applicant to submit efficacy data for the former and demonstrate synergism for the later. However, the applicants bypass the stringent requirements under Section 3(d) by presenting their inventions as a composition or combination of known substances and steering away the objection from Section 3(d) to Section 3(e). The possible explanations are: demonstrating synergy under Section 3(e) is a relatively easier exercise compared to the requirements of efficacy data under Section 3(d), as mandated by the Supreme Court in the Novartis case. Second, Section 3(d) is being interpreted narrowly by the courts and the IPO to apply only to a new form of a known substance, and not to combinations and compositions involving known substances.

•To remove the applicability of Section 3(d) in cases where combinations are involved, patent applicants rely on the decision of the Intellectual Property Appellate Board (IPAB) in Ajanta Pharma Ltd v. Allergan Inc , which also finds mention in the 2014 IPO guidelines for examination of pharmaceutical patent applications. However, in this case, the issue of applicability of Section 3(e) was not considered as the patent was rejected on other grounds. Moreover, a mere passing observation made by the IPAB cannot be considered as a binding authority as such a narrow interpretation of Section 3(d) would defeat the objective of the section. Keeping in mind the widespread practice in the pharmaceutical industry of creating new compositions/combinations, it should be given an expansive meaning to cover combinations with other substances.

Method of treatment

•Another disturbing finding pertained to patents for methods of treatment, a category that is statutorily barred. A total of 63 patents were granted for methods of treating an individual for a disease, specifying a particular dosage regimen or a mode of administering a drug. Section 3(i) of the Act categorically excludes methods of treatments from the purview of patent protection. However, though statutorily barred, such patents were granted by clever drafting and legal argument. For instance, in application No. 267/KOLNP/2007 filed for “compositions and methods for treating neurological disorders”, the applicants had initially claimed for “a method of treating a neurological disease or disorder in a mammal, which method comprises administering to said mammal in need of such treatment a therapeutically effective amount of a proteosome-based composition”. However, when an objection was raised under Section 3(i), the applicant later amended it to “a composition in the form of a medicament for a neurological disease or disorder comprising a proteosome based composition”. It is evident that the applicants by clever tweaking of the language have managed to get over the initial objection; in the case mentioned, by merely removing the words “method of treating”. The grant of patents to method of treatment claims shows the focus on form over substance.

Call for action

•Given the IPO’s unacceptable error rate, we have recommended a standardised mechanism for examination of patent applications. As the grant of patents create property-like rights in intangibles, the IPO should steer its focus towards grant of quality patents than on the quantity.