The Geneva-based, United Nations-linked Global Alliance of National Human Rights Institutions (GANHRI) deferred the accreditation of the National Human Rights Commission-India (NHRC) for the second year in a row. This is the first time India’s status has been suspended for two years in a row, in 2023 and in 2024. The decision was taken during the meeting of the Sub Committee on Accreditation (SCA) on May 1, 2024. This decision could now affect India’s ability to vote at the Human Rights Council and some UNGA bodies.

National Human Rights Commission (NHRC)

It is a statutory body established under the Protection of Human Rights Act, 1993.  The Commission is the watchdog of human rights in the country.

Composition of NHRC

It is a multi-member body consisting of a chairperson and five members.

The chairperson should be a retired chief justice of India or a judge of the Supreme Court.

Members should be a serving or retired judge of the Supreme Court, a serving or retired chief justice of a high court and three persons (out of which at least one should be a woman) having knowledge or practical experience with respect to human rights.

Appointment & Tenure

The chairperson and members are appointed by the President on the recommendations of a six-member committee consisting of:

Prime Minister as its head; Speaker of the Lok Sabha; Deputy Chairman of the Rajya Sabha; Leaders of the Opposition in both the Houses of Parliament; Central Home Minister.

The chairperson and members are appointed for the term of 3 years or till the age of 70 years, whichever is earlier.

The chairperson and members are eligible for reappointment.

Global Alliance for National Human Rights Institutions (GANHRI)

It is an organisation affiliated to the UN High Commissioner for Human Rights.

It is a global network of national human rights institutions (NHRIs) that works to promote and protect human rights. 

GANHRI represents 120 NHRIs from around the world.

GANHRI’s mission is to unite, promote, and strengthen NHRIs to operate in line with the UN Paris Principles.

Accreditation by the GANHRI 

Sub-Committee on Accreditation (SCA) reviews NHRIs every five years, and there is an appeal process for NHRIs to ensure greater transparency and due process.

In a unique peer-review-based accreditation process, GANHRI ensures individual NHRIs’ compliance with internationally recognised standards – the Paris Principles – to ensure their independence, pluralism and accountability. 

The Paris Principles set out internationally agreed minimum standards that NHRIs must meet to be considered credible.

The six principles require a country‘s human rights agency to be independent from the government in its structure, composition, decision-making and method of operation.

An NHRI is reviewed by the SCA when – 

It applies for initial accreditation.

It applies for re-accreditation every five years.

The circumstances of the NHRI change in any way that may affect its compliance with the Paris Principles.

NHRIs that are assessed as complying with the Paris Principles are accredited with ‘A status’, while those that partially comply are accredited with ‘B status’. 

This accreditation status affects a country’s ability to vote at the UN Human Rights Council and some UNGA bodies.

India’s accreditation: India’s NHRC got ‘A’ status of accreditation for the first time in 1999, which it retained in 2006, 2011, and in 2017 after it was deferred for a year.

NHRC-India accreditation status review

On May 1, 2024, NHRC’s performance was to be reviewed in order to decide on the accreditation status.

Observations made by SCA 

The committee’s latest report is still awaited. However, its previous report (2023 report) had cited a number of reasons for recommending the deferral.

These included: Composition: lack of Transparency in appointing members to the NHRC,Appointment of Police officers to oversee human rights Investigations,Lack of Gender and Minority representation on the member panel.

The NHRC’s ratings were put on hold in 2023 over these concerns.

India’s stand 

GANHRI wanted India to make some structural changes and incorporate a few suggestions given by them. However, this was not possible at this time due to the ongoing general elections in India.

Context

The issue of Standard Essential Patents (SEPs) and their impact on India’s telecom manufacturing sector has emerged as a pressing policy concern.

However, the way SEPs are wielded by technology companies poses challenges, leading to potential crises in India’s domestic manufacturing industry. Therefore, it is important to examine the complexities of this issue, analysing the role of SEPs, the challenges posed by their regulation, and the need for regulatory intervention.

Standard Essential Patents (SEPs)

SEPs are patents that are essential to the implementation of a technical standard. 

SEPs are important for industries such as telecommunications, where standards like 3G, 4G, and 5G are crucial for enabling communication between different devices and networks. 

These patents are typically owned by companies or individuals and are crucial for ensuring interoperability and compatibility between products and technologies that adhere to a particular standard.

SEPs, which cover technologies adopted as industry standards, play a crucial role in ensuring interoperability and competitiveness in the cellular phone market. However, disputes over SEP licensing and infringement are not uncommon, leading to legal battles and negotiations between companies and patent holders to determine fair licensing terms. 

Importance of SEPs and Regulatory Challenges

SEPs, such as CDMA, GSM, and LTE, form the backbone of technological standards in the telecom sector, ensuring compatibility among different cellular phone brands. However, the process of setting standards, largely controlled by private Standard Setting Organisations (SSOs), limits India’s influence. 

Consequently, companies owning SEPs can demand exorbitant royalties, leading to the “patent holdup” problem. While SSOs aim for fair, reasonable, and non-discriminatory (FRAND) licensing, opacity and anti-competitive practices persist, as evidenced by significant fines imposed on companies like Qualcomm by various countries.

Judicial Response to Issues Surrounding SEPs

Lethargy in Competition Law Enforcement 

The Competition Commission of India (CCI) initiated an investigation in 2013 following a complaint by Micromax against Ericsson, alleging abusive practices regarding SEP licensing. However, Ericsson challenged the CCI’s authority to investigate, leading to prolonged legal battles. 

Despite a favourable ruling for the CCI in 2016, Ericsson’s appeals and subsequent delays resulted in the case lingering for seven years until a final judgment in 2023. This extended litigation period has left India as the only major economy yet to scrutinize potentially anti-competitive SEP licensing practices.

Judicial Activism in Patent Infringement Cases 

While competition law issues remain unresolved, the Delhi High Court has actively engaged in hearing lawsuits filed by SEP owners against cellular phone manufacturers accused of infringing on their patents. These lawsuits typically involve complex trials to determine patent validity, infringement, and damages. However, instead of staying such proceedings until the resolution of competition law matters, the court has issued interim remedies favouring SEP owners. These remedies often require manufacturers, many of whom are Indian companies, to deposit significant sums of money with the court to continue production during trial periods.

Unprecedented “Deposit” Orders 

The practice of issuing “deposit” orders, where manufacturers are compelled to deposit substantial funds with the court before trial, is unprecedented in commercial law. These orders, lasting for the duration of lengthy trials, place a severe financial burden on defendants, depriving them of essential working capital. Such orders lack legal basis and fairness, yet the Delhi High Court justifies them under its “inherent powers to do justice.” This judicial activism, though aimed at expediting legal proceedings, raises questions about procedural fairness and equitable treatment of litigants.

Impact of Judicial Interventions and Prolonged Legal Battles on India’s Manufacturing Dreams

Erosion of Investor Confidence and Market Stability 

The uncertainties created by prolonged litigation and judicial interventions erode investor confidence in India’s manufacturing sector. 

Foreign investors may view the unpredictable legal landscape as a deterrent to establishing or expanding operations in the country. 

The lack of clarity on SEP licensing practices and the potential for adverse court rulings contribute to market instability, hindering long-term investment planning and strategic decision-making by both domestic and international firms.

Inhibiting Growth and Innovation 

The focus on SEP-related disputes detracts from efforts to foster innovation and technological advancement in the telecom manufacturing sector. 

Instead of channelling resources towards research and development (R&D) or adopting new technologies, companies may find themselves embroiled in legal battles, diverting attention and funds away from productive endeavours.

This diversion of resources stifles innovation, hampers product development, and undermines India’s ability to compete on a global scale.

Job Creation and Economic Impact 

The manufacturing sector plays a pivotal role in job creation and economic growth, particularly in emerging economies like India. 

However, the uncertainties surrounding SEP-related litigation pose a threat to job stability and employment prospects, especially for workers in the telecom manufacturing industry. 

Delays in legal proceedings, coupled with the financial burdens imposed on manufacturers, may force companies to scale back operations, lay off employees, or reconsider future investments in domestic manufacturing facilities. 

This, in turn, undermines the government’s efforts to address unemployment and promote inclusive economic growth.

Contradictions in Policy Objectives 

The disconnect between judicial interventions favouring SEP owners and government initiatives to incentivise domestic manufacturing creates contradictions in policy objectives. 

While the government seeks to attract investment and promote indigenous production through schemes like “production linked incentives,” the adverse effects of SEP-related disputes undermine these efforts. 

The discrepancy between supporting manufacturers investing in India and overlooking the financial burdens imposed by SEP owners raises questions about the coherence and effectiveness of policy measures aimed at fostering industrial growth.

Long-term Implications for India’s Industrial Landscape 

The unresolved tensions surrounding SEP licensing practices and the judiciary’s handling of related disputes have long-term implications for India’s industrial landscape. 

Failure to address these issues may deter both domestic and foreign investors, jeopardise job creation prospects, and impede the country’s transition towards a knowledge-based economy. 

Without regulatory intervention to streamline legal processes, ensure procedural fairness, and uphold the principles of competition law, India risks falling behind its global counterparts in the race for manufacturing excellence.

Way Forward: Lessons from Europe

The European Parliament has taken proactive measures to regulate SEPs, setting a precedent for international intervention in this domain.

India, with its limited influence over standard-setting processes and obligations to enforce patents of foreign technology companies, has a compelling case for similar regulatory intervention. 

Strengthening regulatory frameworks to ensure transparency, fairness, and non-discrimination in SEP licensing is imperative to safeguard India’s economic interests and promote domestic manufacturing.

Conclusion

It is incumbent upon the Indian government to address the regulatory gaps and uncertainties surrounding SEPs to safeguard the interests of domestic manufacturers and promote industrial growth. 

Regulatory measures should aim to balance the interests of technology companies with the broader imperatives of economic development, innovation, and consumer welfare. 

By intervening decisively in this arena, India can assert its sovereignty, promote a level playing field, and foster a conducive environment for investment and innovation.

As wealth distribution dominates news headlines in India, a nine-judge bench of the Supreme Court commenced the process for interpretation of Article 39(b) of the Indian Constitution.

This to determine whether this directive principle of state policy (DPSP) provision allows the govt to treat and redistribute privately owned properties under the garb of “material resources of the community” for greater common good.

Article 39(b) of the Constitution

It falls under Part IV of the Constitution titled “Directive Principles of State Policy” (DPSP). 

It places an obligation on the state to create policy towards securing the ownership and control of the material resources of the community that are so distributed as best to subserve the common good.

DPSP are meant to be guiding principles for the enactment of laws, but are not directly enforceable in any court of law.

Need of Apex Court Interpreting Article 39(b) Now..?

Since 1977, the apex court has weighed in on the interpretation of Article 39(b) on multiple occasions – most notably, in State of Karnataka v Shri Ranganatha Reddy (1977).The interpretation by a (9-judges) bench comprising Chief Justice D Y Chandrachud stems from Justice V R Krishna Iyer’s dissenting view in Ranganatha Reddy case of 1977. According to Justice V R Krishna Iyer, community resources included private properties.

After subsequent judgements, confusion over this interpretation led to the matter being referred to a nine-judge bench in 2002.

Though the question is old, it is reverberating in the current politically-surcharged atmosphere.

39(b) Needs a 9-Judge Bench Interpretation..?

CJI explained why Article 39(b) needed to be interpreted by a nine-judge bench. The majority in the Ranganatha Reddy case in 1977 clarified that material resources of the community do not include private property.

However, a five-judge bench in Sanjeev Coke in 1983 relied on Justice Iyer ignoring that it was a minority view.

In the meantime, SC in Mafatlal Industries case in 1997 opined that Article 39(b) needed interpretation by a nine-judge bench.

Deducing Article 39(b)

Community resources could never include privately owned properties. 

Solicitor general Tushar Mehta said the sole question before the court was interpretation of Article 39(b) and not Article 31C. Article 31C provides safe harbour to laws enacted in pursuance of the directive principles similar to Schedule-9 of constitution.

Its validity as it existed prior to the 25th constitutional amendment in 1971 has been upheld by a 13-judge bench in Kesavananda Bharti case.

The bench asked how excess agricultural land was distributed among poor peasants in the 1960s. Replying to this, a senior advocate said – No one questioned the state’s power to acquire land for public purposes after paying a fair compensation to the owner of the land.

Land ceiling laws were passed by states to determine excess land accumulated by zamindars and such excess land was then redistributed.

But if the government wants to take away my property and distribute it to the poor, then I would be left with no money as my fees would be taken away and paid to poor people.