[Ip-health] access to meds & gay rights: india

Achal Prabhala aprabhala at gmail.com
Mon Dec 30 01:06:17 PST 2013


Here is a short article on the irony of having the Novartis saga end in 
the same court, and in the same year, as the disastrous judgement of 
December 11, 2013, which reversed a 2009 Delhi High Court decision to 
read down Section 377 of the Indian Penal Code--thereby re-criminalizing 
sodomy again, after a brief 4-year holiday in the 153-year-old-life of 
this remarkably enduring provision.

Good wishes for the holidays, and to happier times to come,


    Legislation | The year we said yes to patient rights but no to gay

Both judgements made international headlines. And both were deeply, and 
ironically, connected

Two seemingly unrelated cases were decided in the Supreme Court this 
year. One made life-saving medicines affordable, the other turned 
homosexual people into criminals again. Both made world headlines. One 
was met with jubilation, the other with horror and a kind of stunned 
disbelief. On the face of it, these two cases have nothing to do with 
each other: How could a consensual act of sex between gay adults have 
any connection to an affordable treatment for cancer?

And yet, the cases are deeply and ironically connected.

On 1 April the Supreme Court issued its decision in /Novartis AG v. 
Union of India/, bringing to an end the long saga of imatinib, a miracle 
cure for chronic myeloid leukaemia, on which the validity of the 2005 
amendments to the Indian Patents Act was staked. Novartis' monopoly 
claim was struck down and the law upheld. The consequences were immense: 
Millions of people in India and the world over were assured access to 
affordable medicines. Nine months later, on 11 December, the Supreme 
Court issued its decision in /Koushal v. Naz Foundation/, marking the 
latest instalment in a long struggle for gay rights. At the heart of 
this case was Section 377 of the Indian Penal Code of 1861, a provision 
that criminalizes sodomy, the social effect of which has been to render 
queer people open to mockery, discrimination and abuse. In 2009, the 
Delhi high court issued a judgement that "read down" Section 377 by 
recognizing the Constitutional rights of sexual minorities. The Supreme 
Court reversed this judgement.

The first judgement was celebrated around the world---and even 
replicated. Five months after the Novartis judgement, South Africa's 
department of trade and industry launched a consultation to 
comprehensively update patent law in the country; two months later, the 
lower house of the National Congress of Brazil issued a report on patent 
law reform in support of a formal bill launched by a Workers' Party 
Congressman. Both efforts had Indian law in mind as a model.

The second judgement induced rage, as well as some smugness in the weird 
little museum of pantheological dinosaurs.

That we can proudly serve as a model for patient rights in South Africa 
(where gay rights have been constitutionally protected since 1996, and 
gay marriage has been legal since 2006) or Brazil (where homosexuality 
was decriminalized in 1830, and gay marriage has been legal since the 
middle of this year) and simultaneously ignore their record on gay 
rights is ironic. Patent law affects medicines; medicines save lives; 
and the irony is that we owe our lives to the gay rights movement.

Until the 1990s, access to medicines was facilitated by a booming 
generic drug industry which was the outcome of the Indian Patents Act of 
1970. Since the late 1990s however, and right up to the present day, 
every single development that made the law we now have can be traced 
back to the gay rights movement. Certainly, there are people from all 
traditions involved in public health activism in India, but no single 
movement has played a larger role in making our access to medicines a 


David France's stunning documentary /How to Survive a Plague/ makes the 
connection with force. The film begins in New York City, in the dark 
days of 1987, when being HIV-positive meant certain death. Six years 
into the AIDS epidemic, homophobia is escalating, hospitals are turning 
away dying men, and there are no medicines to treat AIDS: In response, 
hundreds of gay men and women come together to form the AIDS Coalition 
to Unleash Power---ACT UP.

/How to Survive a Plague/ follows members of ACT UP as they set the 
template for public health activism. First, they familiarize themselves 
with the science of pharmaceuticals and the technical aspects of public 
policy. Then they barrage their government into allocating money towards 
AIDS research, and convince the US food and drug administration that 
life-saving medicines deserve a better, faster review. And they win.

Gregg Gonsalves, one of the activists featured in the film, embodies the 
global impact of the gay rights movement. After ACT UP, he founded the 
Treatment Action Group with Mark Harrington, and later moved to the Gay 
Men's Health Crisis, both US-based organizations; he also worked in 
South Africa, where he ran a regional advocacy organization (and where 
another ACT UP spin-off, Health GAP, which plays a crucial role in 
global treatment access, has been active). "At first, it was not about 
access because there was no access to be had. We needed drugs," he said, 
in a recent conversation. "And then, in 1996, all that changed. We had a 
way to treat HIV infection now and our thinking shifted." His connection 
to South Africa was formed in early 2000, when a young South African 
called Zackie Achmat came calling in New York City. Achmat had formed an 
organization called the Treatment Action Campaign (TAC) in Cape Town, 
and was interested in replicating what his American counterparts had 

Later that year, Gonsalves and Achmat met again at the International 
AIDS Conference in Durban. It was a historic gathering. Nelson Mandela 
gave the closing speech. Hundreds of people from around the world 
listened to an impassioned appeal from Justice Edwin Cameron---who 
founded the advocacy group AIDS Law Project and would go on to join the 
constitutional court of South Africa---on the need for access to AIDS 
medicines in developing countries. Like many leaders of the AIDS 
movement---including Achmat and Gonsalves---Cameron is gay and 
HIV-positive, which gave his public appeal a personal force. "His speech 
was absolutely gripping," Gonsalves said.

Among the people gripped by Cameron's speech in Durban were members of 
the Lawyers Collective, a pioneering Indian public-interest initiative. 
Anand Grover, one of its founders, would serve as the link between the 
two Supreme Court cases---as the lawyer for both the Cancer Patients Aid 
Association (CPAA) in the Novartis case, as well as for the Naz 
Foundation in the 377 case. Vivek Divan, who was on the staff of the 
Lawyers Collective, recalls Grover returning from Durban with renewed 
energy. After having spent time with TAC in South Africa, he knew his 
organization would have to take the lead at home: Four years on, 
India---"the pharmacy of the developing world"---was bound by the World 
Trade Organization (WTO) to bring its patent law into line. Many of 
these transcontinental currents are captured in Dylan Mohan Gray's 
powerful new film, /Fire in the Blood/.

"This was an area of work that was completely mystifying to people," 
Divan says. "We needed to break it down. We needed to make people aware 
of the implications of 2005 (the looming patent law amendments). We 
needed to create a groundswell of support." He had several reasons to be 
excited. For one, there seemed to be a way to create an original, bold 
and WTO-compliant patent law that safeguarded access and boosted 
innovation. For another, working on AIDS gave him an opportunity to 
combine his interests in sexuality and the law: He had come out to his 
family and friends, and was glad for the encouraging environment. Divan 
co-ordinated the Lawyers Collective HIV/AIDS unit for several years, 
launching initiatives that would dramatically improve the state of 
treatment access across the board.

Among those initiatives is one he remembers particularly well. At the 
World Social Forum in 2004 in Mumbai, he met a group of South Koreans 
who were questioning Novartis' claims on imatinib in their country. 
Divan followed up. He was interested in looking beyond AIDS treatment, 
and sought a meeting with the CPAA. "They were reluctant to engage with 
us at first," he says. "We had HIV/AIDS in our name and it was confusing 
to them. But it was a superb dynamic that evolved." That dynamic endured 
as Novartis upped the ante into the most serious threat posed to Indian 
patent law since it was masterfully amended in 2005, a threat that was 
eventually overcome with the Supreme Court judgement in April.


The contemporary access-to-medicines movement was built on the back of 
the gay rights movement. It began with AIDS in the US, and its victory 
was getting a marginalized community heard. It moved into achieving 
access to the medicines it had forced into creation, and at the cusp of 
the 20th century---as the epicentre of AIDS moved---the movement matched 
the geography of the virus. If a large group of predominantly gay men 
and women had not spent a decade working on access to medicines in the 
US, the South African movement might not have got off the ground as well 
as it did. And if a core group of committed gay rights activists had not 
turned their attention to treatment access in South Africa, it is likely 
their Indian counterparts would not have had a compelling reason to work 
as clearly and urgently as they did.

Yes: Our medicines are totally gay.

If none of the events described here unfolded as they did, imatinib 
might have remained unaffordable to leukaemia patients; pegylated 
interferon might have remained out of reach for people with hepatitis; 
sorafenib might have stayed unavailable to people with renal and liver 
cancer; and trastuzumab might not have become affordable to women with 
breast cancer. Ten million people with HIV/AIDS in the developing world 
might not have lived at all. But this chain of events is real. All of it 
happened. As did the Supreme Court judgement on Section 377 this 
December, which repaid the debt we owe queerness by kicking it out of 
our polity.

/Achal Prabhala is a writer and researcher in Bangalore. /

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