The problem exists is between the constitutional obligation of the state (India) under fundamental rights, ie. Human rights to health, on one hand and international legal and economical obligations under the trade agreements, ie. WTO, TRIPS etc., on other hand. Intellectual property rights of pharmaceuticals are governed by patent law. India being a signatory of the GATT1 is governed by TRIPS apart from having its own national Intellectual Property Law. Members are held responsible under the human rights treaties to protect, promote and fulfilled the basic and minimum requirements of an individual in the state. While on the other side, the trade agreements and treaties does not provide sufficient space to protect those human rights. If the state has signed the trade related agreements they are required to protect the interest of the seller and it would be challenging for the signatory state to maintain balance between the interest of a seller and protection of right health.
This article explores the existing constitutional, legal and international provisions pertaining to right to health and patent laws in India. Theis article analyses judicial decisions passed by the Supreme Court of India on right to health, on TRIPS provisions and its implementations. The article has underlined existing situation and its interplay between human rights and pharma-patents. The article endorse on right to health as human rights and constitutional rights vis a vis patent’s right under the trade agreements in India. The article explored the practice of pharmaceutical industry and its conflict with idea of right to health by analysis of landmark judgment Novartis Ag. v Union of India & Others, decided by the Supreme Court of India on 1 April 2013.The article further deliberates on access to patented medicines under the TRIPS.