In a series of three hard-hitting posts, Prashant Reddy T exposes the alarming lack of transparency surrounding public funds spent on indigenously developed COVID-19 vaccines. He details his ordeal in attempting to obtain crucial information from the government and raises pressing concerns about the absence of accountability in public spending.

Part I highlights the government’s hypocrisy during the pandemic—seeking a global TRIPS waiver before the WTO while simultaneously allowing the patenting of publicly funded COVID-related inventions in India and overseas.

In Part II, he recounts his struggle with the government, including his eventual litigation to access essential public documents related to government funding of COVID-19 vaccines. [Note: Part II includes some sections from Part I and was previously published in Newslaundry here.]

In Part III, he critiques the Delhi High Court’s decision to invite a Bharat Biotech executive—who was actively involved in litigation at the time—as a guest for the 2023 World IP Day, raising important questions about judicial impartiality and the perception of justice.

Prashant Reddy T is one of our most prolific bloggers (his posts can be accessed here). He is also the co-author of three books- “Create, Copy, Disrupt: India’s Intellectual Property Dilemmas” (OUP, 2017), “The Truth Pill: The Myth of Drug Regulation in India” (Simon and Schuster India, 2022), and “Tareekh Pe Justice: Reforms for India’s District Courts” (Simon and Schuster India, 2025). Views expressed are those of the author’s.

India’s Hypocrisy over the TRIPs Waiver During the Pandemic

By Prashant Reddy T.

As the COVID-19 pandemic swept across the world in 2020 and countries around the world were scurrying to develop and manufacture vaccines, India and South Africa launched a high decibel advocacy campaign to waive the requirement for all signatories to the TRIPs Agreement, to enforce certain intellectual property rights. Such a waiver from enforcing national obligations under TRIPs would basically allow countries to suspend their IP laws for the duration of the pandemic.

Those supporting the TRIPs waiver claimed it would facilitate easier access of medicines and vaccines required during the course of the pandemic. In reality, as I have argued elsewhere, along with Yogesh Pai, the TRIPs waiver aimed to solve a non-issue, since there was an abundance of voluntary licenses for vaccine technology during the pandemic. Even if IP was a barrier, there were serious doubts about whether vaccines could be reverse engineered by Indian companies without access to “know-how” or cell lines of the innovator. The real problem during the pandemic was a lack of manufacturing capacity which could be tapped to produce vaccines.  

While much of the above debate is well known, a less discussed issue is the manner in which the Government of India maintained a silence while Indian tax payer funded diagnostics and vaccines were patented domestically and internationally during the pandemic. This was done  by both public research institutes like the Indian Council of Medical Research (ICMR) and private pharmaceutical companies which had received R&D grants from the government.

Take for example, Department of Biotechnology’s “Mission Covid Suraksha” administered by the Biotechnology Industry Research Assistance Council (BIRAC). According to the government’s reply in Parliament, it had earmarked Rs. 900 crores for this program which was to be administered by BIRAC. Astonishingly, the “Expression of Interest” (EoI) published by BIRAC in December 2020, inviting applications for funding under this program, merely two months after India moved the proposal for a TRIPs waiver contained the following clause on page 9:

“IP developed through this grant will be owned by and will be the responsibility of the applicant (unless stated otherwise) subject to pre-existing legal arrangements. The Mission to make affordable products shall be embraced by the Grantees.”

In simple English, BIRAC’s EoI allowed recipients of public money under this scheme to seek patents for inventions developed with public money. There appear to be no significant safeguards in the EoI, save for a faint plea to the recipients to ensure “affordable products”. As I have explained in an accompanying piece not only did some of the recipients file patent applications for the vaccines developed with these funds, they also priced their vaccines at a high per unit cost. Similarly, with Covaxin, which was developed by publicly funded ICMR in partnership with Bharat Biotech, a patent application was initially filed by Bharat Biotech listing only itself as the applicant and its scientists as the inventors. The company subsequently amended its patent application to make ICMR a co-applicant in 2024, after The Hindu broke the story that the Health Minister had previously assured Parliament, that the IP in the vaccine was to be shared jointly by ICMR and Bharat Biotech. On similar lines, the Indian Council of Medical Research (ICMR) went on a patenting spree for COVID related diagnostics, as evidenced from the government’s reply in Parliament during the pandemic.

The question to ask at this stage is why exactly was the Government of India lobbying for a TRIPS waiver on the global stage, while allowing for the patenting of COVID related public funded inventions in India and overseas? Given that much of the government’s decision-making process during the pandemic was shrouded in secrecy we are unlikely to receive an answer from the government, ever. We do not even know who in government came up with the idea for a TRIPs waiver or how exactly the government signed off on this decision. Was it the Commerce- Minister and the Prime Minister who signed off on the decision or was the entire Cabinet involved in the decision-making process? If the entire Cabinet was involved why did the government not implement a similar policy domestically for COVID related inventions being funded by the Indian taxpayer?

I do not have the answers for any of these questions because Indian state is generally opaque about these issues. Even in the past, especially in the early 90s, when the Congress government made the decision to sign TRIPs in 1994, it too was notoriously secretive. The only public record we have of that government’s decision-making process leading up to TRIPS, is a deposition by A.V. Ganesan, the government’s lead negotiator, before a parliamentary committee headed by I.K. Gujral. When the final text of TRIPs was made public it became clear that the government abandoned all the red lines articulated by Ganesan before the parliamentary standing committee. We know precious little of who in the government authorised the change in negotiating stance.  I have discussed this episode in my book, Create, Copy, Disrupt: India’s Intellectual Property Dilemmas with Sumathi.

But returning to the COVID pandemic, the government finally changed its stance on the issue of TRIPs waiver in July, 2022 after better sense appears to have prevailed within the Commerce Ministry. Of course, we know very little about who was behind this change. In the meanwhile, as far as I am aware not one of the academics or activists agitating in India for a TRIPs waiver have objected to the decision of the government to allow for the patenting of public funded vaccines and diagnostics developed during the pandemic with public money.

Regardless of the pandemic, we should all be asking questions about how our taxes are being used by the government to fund innovation. We have no idea about the terms on which the government is handing out this money to the private sector and the steps being taken by the government to protect our interests. This needs to change. There needs to be transparency on what exactly is being funded by the government when it hands out money to private companies and the terms on which they are allowed to seek intellectual property protection for the inventions that result. It is not my case that they should be barred from seeking IP over such inventions but it is certainly my case that the government must reserve certain rights for itself, including the right to allow others to manufacture patented inventions in the event of a public emergency.  

Part II of the post deals with the struggles in getting important information on government funding of COVID-19 vaccines out from the government.