Why India did not Invoke Section 92: A Post-Covid-19 Institutional Analysis of Compulsory Licensing Underutilization

The Indian Patents Act, 1970 has one of the strongest emergency compulsory licensing provisions in the WTO a provision that allows the Central Government to grant use of a patented invention within three years of its initiation of a “national emergency” notification, but without the requirement for a public interest hearing. In spite of the high public health impact of the COVID-19 pandemic, no formal notification was issued by the Government of India under Section 92, even though there was a strong call for a TRIPS waiver from the international community. This paper offers an institutional analysis that goes beyond doctrinal explanations of the compulsory licensing regime and explores the administrative, bureaucratic and geopolitical structure which shaped this result. The paper seeks to understand why Section 92 was not used in India during COVID-19 based on the “implementation paradox” literature, and argues that the reasons are threefold: definitional ambiguity regarding statutory trigger conditions, lack of an inter-ministerial fast-track mechanism, and a chilling effect from international trade pressure. The paper ends with recommendations for legislative and administrative changes, such as procedural changes to Sections 92 and 87 and the establishment of a permanent inter-ministerial emergency-licensing body.