1. Rhino reintroduction a hit in Assam reserve

Manas National Park rhinos need translocation support, reveals latest census

The one-horned rhinos of western Assam’s Manas National Park, bordering Bhutan, are expected to have high life expectancy and significant growth in population, the 14th Assam rhino estimation census has revealed.

But on the flip side, the 500-sq.-km park does not have “a wider representation of calves and sub-adults” to sustain the population structure unless it is supplemented through conservation translocations.

Manas, a UNESCO World Heritage Site and a tiger reserve, had about 100 resident rhinos prior to 1990, but a prolonged ethno-political conflict thereafter took a heavy toll with extremist groups known to have traded the horns of the herbivores for weapons.

A rhino reintroduction programme under the Indian Rhino Vision 2020 was started in 2006. This entailed the translocation of rhinos from Kaziranga National Park and Pobitora Wildlife Sanctuary besides orphans hand-reared at the Centre for Wildlife Rehabilitation and Conservation at Kaziranga. The current rhino population in the park was estimated at 40 after the census on April 1 and 2.

A detailed census report by Vaibhav C. Mathur, the field director of Manas, said the park’s rhinos have a male-female sex ratio of 1:1, arrived at without considering 10 calves and five sub-adults. But such a population may suffer losses if not supplemented through translocations, the report warned. “A suitable strategy to bring in more rhinos from other rhino-bearing areas is required so as to have a wider representation of calves and sub-adults over time,” the census report said.

Speed limit

Meanwhile, the Kaziranga National Park authorities have restricted the speed of vehicles on the highway adjoining the park to 40 km per hour. This is an annual step taken to prevent vehicles from hitting animals that move out of the park during floods.

Officials said six sensor-based cameras have been installed at nine designated animal corridors of the park to measure the speed of vehicles and impose fines on those who violate the order.

The cameras are equipped with automatic number plate recognising system with radar for determining speed, a divisional forest officer said.

As per the orders of the National Green Tribunal, owners of vehicles that do not adhere to the speed limit will be penalised.

Indian Rhino Vision 2020

• Indian Rhino Vision 2020 (IRV2020) program has come to a close with the recent translocation of two rhinos to Manas National Park in Assam.
• It was the eighth round of rhino translocation under IRV2020.
• Launched in 2005, Indian Rhino Vision 2020 was an ambitious effort to attain a wild population of at least 3,000 greater one-horned rhinos spread over seven protected areas in the Indian state of Assam by the year 2020.
• Seven protected areas are Kaziranga, Pobitora, Orang National Park, Manas National Park, Laokhowa wildlife sanctuary, Burachapori wildlife sanctuary and Dibru Saikhowa wildlife sanctuary.
• Wild-to-wild translocations were an essential part of IRV2020 – moving rhinos from densely populated parks like Kaziranga NP, to ones in need of more rhinos, like Manas NP.
• It is a collaborative effort between various organisations, including the International Rhino Foundation, Assam’s Forest Department, Bodoland Territorial Council, World Wide Fund – India, and the US Fish and Wildlife Service.

Performance of the Program:

• Target of attaining a population of 3,000 rhinos almost achieved but the animal could be reintroduced in only one of the four protected areas planned.
• The plan to spread the Greater one-horned rhino across four protected areas beyond Kaziranga National Park, Orang National Park and Pobitora could not materialise.

• The translocated rhinos helped Manas National Park get back its World Heritage Site status in 2011.
• 2018 and 2019 saw significant decreases in poaching, the results of forestry, local and national government officials coordinating efforts to combat wildlife crime across Assam.

About Greater One-Horned Rhino:

• There are three species of rhino in Asia — Greater one-horned (Rhinoceros unicornis), Javan and Sumatran.
• Poaching for the horns and habitat loss are the two greatest threats to the survival of Asia’s rhinos.
• The five rhino range nations (India, Bhutan, Nepal, Indonesia and Malaysia) have signed a declaration ‘The New Delhi Declaration on Asian Rhinos 2019’ for the conservation and protection of the species.

Protection Status:

• Javan and Sumatran Rhino are critically endangered and the Greater one-horned (or Indian) rhino is vulnerable under the IUCN Red List.
• All three listed under Appendix I (CITES).
• Greater one-horned rhino is listed under the Schedule I of the Wildlife Protection Act, 1972.

Habitat of Greater One-Horned Rhino:

• The species is restricted to small habitats in Indo-Nepal terai and northern West Bengal and Assam.
• In India, rhinos are mainly found in Kaziranga NP, Pobitora WLS, Orang NP, Manas NP in Assam, Jaldapara NP and Gorumara NP in West Bengal and Dudhwa TR in Uttar Pradesh.

2. The Indian patent regime and its clash with the U.S. norms

The U.S. Trade Representative highlighted IP challenges in India in its annual Special 301 report released last month

India became a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement following its membership to the World Trade Organisation on January 1, 1995. 

The U.S., in its yearly Special 301 report, highlighted a range of issues in the Indian section, ranging from copyright and piracy to trademark counterfeiting and trade secrets.

It stated that India must not compromise on the patentability criteria under Section 3(d) since as a sovereign country it has the “flexibility to stipulate limitations on grants of patents in consistence with its prevailing socio-economic conditions.”

Sruthi Darbhamulla

The story so far: The U.S. Trade Representative (USTR) said in a report released last month that India was one of the most challenging major economies as far as IP protection and enforcement is concerned. It has decided to retain India on its Priority Watch List along with six other countries —Argentina, Chile, China, Indonesia, Russia and Venezuela. Among the issues raised in the report are India’s inconsistencies regarding patent protection, including concerns about what can be patented, waiting time for obtaining patents, burdensome reporting requirements, and doubts about data safety. India had undertaken an intellectual property review exercise last year, where a Parliamentary Standing Committee examined this subject.

The Indian patent regime

A patent is an exclusive set of rights granted for an invention, which may be a product or process that provides a new way of doing something or offers a new technical solution to a problem. Indian patents are governed by the Indian Patent Act of 1970.

India has gradually aligned itself with international regimes pertaining to intellectual property rights. It became a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement following its membership to the World Trade Organisation on January 1, 1995.

India is also a signatory to several IPR related conventions, including the Berne Convention, which governs copyright, the Budapest Treaty, the Paris Convention for the Protection of Industrial Property, and the Patent Cooperation Treaty (PCT), all of which govern various patent-related matters.

An interesting point is that the original Indian Patents Act did not grant patent protection to pharmaceutical products to ensure that medicines were available at a low price. Patent protection of pharmaceuticals were re-introduced after the 2005 amendment to comply with TRIPS.

Last month, the U.S. released its yearly Special 301 report, its annual review highlighting the state of intellectual property rights protection in different countries which are its trading partners around the world.

In its India section, the report highlighted a range of issues in domains ranging from copyright and piracy to trademark counterfeiting and trade secrets, saying that India “remained one of the world’s most challenging major economies with respect to protection and enforcement of IP.”

It said patent issues continued “to be of particular concern in India,” highlighting the threat of patent revocations, lack of presumption of patent validity and narrow patentability criteria as issues which “impact companies across different sectors.”

The USTR had also released a similar report in 2021, addressing much of the same concerns.

These, and general issues regarding IPR were extensively tackled by the Parliamentary Standing Committee which undertook a ‘review of the intellectual property rights regime in India,’. The Committee tabled its findings before the Rajya Sabha and Lok Sabha in July last year.

Article 3(d) of the Indian Patent Act

This offered an insight into the landscape of Indian intellectual property law and where it is reasonably in sync with American patent laws and where it diverges. One of the main points of contention between India and the U.S. has been Article 3(d) of the Indian Patent Act.

Section 3 deals with what does not qualify as an invention under the Act, and Section 3(d) in particular excludes “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant” from being eligible for protection under patent law.

This was addressed by the Parliamentary Standing Committee as well, which pointed out that the section “acts as a safeguard against frivolous inventions in accordance with the flexibility provided in the TRIPS agreement.”

Section 3(d), as mentioned above, prevents the mere discovery of any new property or new use for a known substance from being patented as an invention unless it enhances the efficacy of the substancerepetitive . This prevents, what is known as “evergreening” of patents.

According to the Committee’s report, Section 3(d) allows for “generic competition by patenting only novel and genuine inventions.”

TRIPS and the Doha Declaration

The Doha Declaration on the TRIPS Agreement and Public Health was adopted on November 14, 2021, by the WTO member states. This declaration recognises the “gravity of public health problems affecting developing and least developed nations” and stresses the need for TRIPS to be part of the wider national and international action to address these problems.

It recognises that “intellectual property protection is important for the development of new medicines,” and acknowledges concerns about its effects on prices. Saying that the TRIPS agreement “does not and should not prevent members from taking measures to protect public health,” the declaration points out that the agreement “can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.”

Compulsory licences can be invoked by a state in public interest, allowing companies apart from the patent owner to produce a patented product without consent.

It concluded that India must not compromise on the patentability criteria under Section 3(d) since as a sovereign country it has the “flexibility to stipulate limitations on grants of patents in consistence with its prevailing socio-economic conditions.” It said that this ensures the growth of generic drug makers and the public’s access to affordable medicines.

It indicated that India should resolve its differences with the U.S. regarding the disqualification of incremental inventions through bilateral dialogue.

Positive steps

The report highlighted some positive steps taken by India in the recent past, such as the accession to the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty and WIPO Copyright Treaty, collectively known as the WIPO Internet Treaties, in 2018 and the Nice Agreement in 2019.

The Parliamentary Standing Committee too noted amendments pertaining to Form 27, under the Patents (Amendment) Rules, 2020. Some notable changes include allowing a single Form 27 to be filed for multiple related patents, filing of joint forms if there are more patentees and allowing authorised agents to submit forms.

India and the U.S. will continue to engage on IP matters, the report says, especially through the Trade Policy Forum’s Intellectual Property Working Group.

3. Editorial-1: Messy battle

The tug of war between the L-G and the CM is a barrier to Delhi’s development ambitions

The turf battle between the Lieutenant-Governor (L-G) appointed by the Centre and the elected government of Delhi has a long and noisy history. The recently appointed L-G, Vinai Kumar Saxena, has, through his disruptive enthusiasm to meddle in the day-to-day governance in Delhi, set the cat among the pigeons. Unlike his predecessors, Najeeb Jung and Anil Baijal, who too were at loggerheads with the elected government of the Aam Aadmi Party (AAP), Mr. Saxena is a politician close to the BJP top brass. AAP has accused the L-G of undermining “constitutional sanctity” by having called a meeting of Delhi Jal Board officials on May 30 and issuing directions bypassing the Council of Ministers and the Chief Minister. The constitutional design of governance in Delhi itself is a consuming dispute that is being litigated in the Supreme Court. The Constitution gives the Centre control over three subjects — land, public order, and police. However, over the years, the Narendra Modi government has expanded the L-G’s powers, including through an amendment to the Government of National Capital Territory of Delhi Act that the AAP government challenged in court last year. Through these amendments, the Centre reorganised the powers and responsibilities of the Delhi Legislative Assembly and the L-G, in favour of the latter. In the new law, “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (L-G), curtailing the powers of the elected government.

AAP has emerged as a thorn in the side of the BJP that is the dominant pole of the country’s politics, barely challenged in many regions. The tussle between the Delhi government and the L-G has to be understood from this perspective. The Centre has been persistent in its attempts to rein in AAP that has been trying to propagate its governance model in the Capital as a propellant of its national ambitions. While the BJP appears to be willing to go to any length to clip the wings of AAP, the latter’s loud protests are less on questions of principle than its own political calculations. AAP had cheered the Centre’s unilateral move that robbed Jammu and Kashmir of its statehood and special status in 2019. Delhi Chief Minister Arvind Kejriwal’s grievances against the L-G are not unfounded, but he himself contributes to the stand-off as his politics compels him to be in constant combat with the BJP. Despite pronouncements by the L-G and the CM to work in tandem, their relationship has nosedived to new lows. Their long-drawn tug of war is a needless barrier to the capital city’s development ambitions. Until the Court brings clarity on all issues of division of powers between the L-G and the CM, both would be well advised to work with mutual respect and accommodation.

4. Editorial-2: Ties reset

India and Iran need to rebuild their ties affected adversely by recent global events

Iranian Foreign Minister Hossein Amir Abdollahian’s first visit to India this week has many implications for bilateral relations, but it is the multilateral context and timing that stand out. This is the first visit by a member of the 57-member Organisation for Islamic Cooperation, which took offence to comments made in India on the Prophet. The controversy has overshadowed India’s other diplomatic engagements. As a result, his visit was an opportunity for New Delhi to project that it has successfully assuaged the Islamic world with the actions of the ruling BJP against its spokespersons. For New Delhi, which always seeks to run a balance in ties between the two rivals, the Iranian visit comes a week after that of Israeli Defence Minister Benny Gantz. It also coincides with the meeting of the Board of Governors of the IAEA in Vienna, which has passed strictures against Iran for its nuclear programme. For Mr. Abollahaian, the visit would be portrayed as a show of support from a powerful country. In addition, Iran and India discussed the situation in Afghanistan under the Taliban, just days after an Indian envoy made the first outreach to Kabul. To this end, India and Iran have discussed further operationalising the Chabahar port, where goods to Afghanistan were sent before the government in Kabul fell last year. Finally, against the backdrop of the Russian war in Ukraine, and western sanctions, Iran has also been keen to convince New Delhi to restore its crude oil purchases, which it cancelled in 2019, after threats of U.S. sanctions. While there was no public statement on the matter during the official part of the visit, External Affairs Minister S. Jaishankar’s statement was significant — he called for the U.S. and Europe to allow Iranian and Venezuelan oil back into the international market if they want India to lower Russian oil imports, accusing the West of “squeezing” all alternative sources for India.

On the bilateral front too, India and Iran have catching up to do, with many promises of the last summit in Delhi left unrealised. Instead of increasing Indian oil imports, investments in developing reserves, building up the Chabahar rail project and scaling up trade, India has drastically cut its Iranian engagement due to sanctions, while Iran has looked to China for more infrastructure investment. Bilateral trade dropped to just over $2 billion (2020-21) from $17 billion (2017-18). Ties also appeared to have been hit by New Delhi’s surprise decision to join the Israel-India-UAE-U.S. group, portrayed as an “anti-Iran” coalition, and by perceptions of Iranian support to Yemeni Houthis behind the drone attack on a UAE oil facility where an Indian was among those killed. Mr. Abdullohaian’s visit, and a possible visit by Iranian President Ebrahim Raisi, may be the start of a reset of traditionally strong ties even if it is one that is buffeted by developments in other parts of the world.

5. Editorial-3: An enduring agreement bridging India-Pakistan ties

Despite differences, the Indus Waters Treaty is one of most effective examples of water management in the world

The Indus Waters Treaty (IWT) is an established water-distribution treaty between India and Pakistan to use water in the Indus and its tributaries. In the words of former U.S. President Dwight Eisenhower, the treaty has since its existence in 1960, served as “one bright spot … in a very depressing world picture that we see so often”, resolving the long-standing differences between India and Pakistan since Partition.

Following the 118th meeting of the Permanent Indus Commission (PIC) comprising the Indus Commissioners of India and Pakistan held on May 30-31, 2022 in New Delhi, it is important to reflect on the struggles and the high stakes that the two countries have experienced to ensure a long-lasting treaty on the one hand and the lessons that can be drawn to address multiple concerns pending in the region on the other.

Struggles and stakes

After years of arduous negotiations, the Indus Waters Treaty was signed in Karachi on September 19, 1960, by then Indian Prime Minister Jawaharlal Nehru and then Pakistani President Ayub Khan, negotiated by the World Bank. The treaty establishes a cooperative mechanism for exchanging information between the two countries regarding the use of the western rivers (Indus, Jhelum, Chenab) allocated to Pakistan and the eastern rivers (Ravi, Beas, Sutlej) allocated to India. However, the treaty also underlines provisions allowing each country to use the rivers allocated to the other for certain purposes such as irrigation and hydroelectricity. The Permanent Indus Commission, which has a commissioner from each country, oversees the cooperative mechanism and ensures that the two countries meet annually (alternately in India and Pakistan) to discuss myriad issues emerging from the treaty. This year, the commission met twice, in March in Islamabad, Pakistan, and then in New Delhi, in May.

Some differences

India-Pakistan relations have most often been embroiled in the high politics of the region’s history resulting in a political stalemate between the two countries. It is a rare feat that despite the many lows in India-Pakistan relations, talks under the treaty have been held on a regular basis.

Nonetheless, throughout its existence, there have been many occasions during which differences between the two countries were discernible. For instance, both countries held different positions when Pakistan raised objections regarding the technical design features of the Kishanganga (330 megawatts) and Ratle (850 megawatts) hydroelectric power plants located on the tributaries of the Jhelum and the Chenab, respectively, designated as “Western Rivers”. However, under Articles III and VII of the treaty, India is permitted to construct hydroelectric power facilities on these rivers (subject to constraints specified in Annexures to the Treaty).

Differences were also discernible when Pakistan approached the World Bank to facilitate the setting up of a court of arbitration to address the concerns related to these two projects referred to in Article IX Clause 5 of the treaty, and when India requested the appointment of a Neutral Expert referent to Clause 2.1 of Article IX on the settlement of differences and dispute of the treaty, respectively. Disagreements continued on the issue with many meetings brokered by the World Bank to resolve their disagreements. But it was without any success.

Eventually, on March 31, 2022, the World Bank, in view of the differences, decided to resume two separate processes by appointing a neutral expert and a chairman for the court of arbitration. However, the two parties have not been able to find an acceptable solution. The appointment of a neutral expert will find precedence to address the differences since under Article IX Clause 6 of the treaty provisions, Arbitration ‘shall not apply to any difference while it is being dealt with by a Neutral Expert’. Therefore, the two separate processes are more likely to generate technical and legal repercussions.

Similarly, Pakistan, invoking Article VII Clause 2 on future cooperation, raised objections on the construction and technical designs of the Pakal Dul and Lower Kalnai hydropower plants located on Marusudar river, a tributary of the Chenab, in Kishtwar district of Jammu and Kashmir. The 117th and the 118th meetings of the Permanent Indus Commission held this year deliberated this issue. Here, India has assured Pakistan that all the concerned projects are treaty compliant.

Similarly, India has raised concerns on issues such as Pakistan’s blockade of the Fazilka drain, which resulted in water contamination in the border areas, referent to Article II Clause 3 and Article IV Clause 4 and 6 of the treaty. During the 117th bilateral meeting in March, Pakistan assured India of all possible actions to ensure the free flow of the Fazilka drain into the Sutlej.

Notwithstanding the differences, both countries have so far endeavoured to amicably address all such issues with both sides assuring to implement the treaty in letter and spirit.

Lessons from the treaty

Although there are many outstanding issues, the treaty is important and many lessons can be drawn. The treaty is an illustration of a long-standing engagement between the conflicting nations that has stood the vagaries of time. It has withstood tensions, including conflict, providing a framework for cooperation. The treaty, therefore, is considered one of the oldest and the most effective examples of water management cooperation in the region and the world. The 118th bilateral meeting corroborates its effectiveness.

With the exception of differences on a few pending issues, both countries have avoided any actions resulting in the aggravation of the conflict or acted in a manner causing conflict to resurface. The recent bilateral meeting points to mutual respect, communication and a sharing of information, despite differences.

Potential for cooperation

The treaty can serve as an edifice to address the challenges of climate change. Recognising common interests and mutual benefits, India and Pakistan can undertake joint research on the rivers to study the impact of climate change for ‘future cooperation’ (underlined in Article VII).

The Indus Waters Treaty also offers great potential for cooperation and development in the subcontinent which can go a long way in ensuring peace and stability. Given that both India and Pakistan have been committed to manage the rivers in a responsible manner, the Treaty can be a reference point to resolve other water-related issues in the region through regular dialogue and interaction.

Mukesh Kumar Srivastava is Senior Consultant, Indian Council for Cultural Relations (ICCR), New Delhi. The views expressed are personal