SOVEREIGN POWERS AND “SHADOW LICENSING”: EXECUTIVE RESTRAINT AND JUDICIAL ACTIVISM IN INDIA DURING THE COVID-19 PANDEMIC

AUTHOR – ZAINAB JAVED* & DR. TAPAN KUMAR CHANDOLA**

* STUDENT AT AMITY LAW SCHOOL LUCKNOW, AMITY UNIVERSITY UTTAR PRADESH LUCKNOW CAMPUS

** ASSISTANT PROFESSOR OF LAW AT AMITY LAW SCHOOL LUCKNOW, AMITY UNIVERSITY UTTAR PRADESH LUCKNOW CAMPUS

BEST CITATION – ZAINAB JAVED & DR. TAPAN KUMAR CHANDOLA, SOVEREIGN POWERS AND “SHADOW LICENSING”: EXECUTIVE RESTRAINT AND JUDICIAL ACTIVISM IN INDIA DURING THE COVID-19 PANDEMIC, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (4) OF 2026, PG. 257-269, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

This research paper provides a comprehensive legal analysis of the interplay between the international intellectual property rights (IPR) regime and the sovereign obligation to safeguard public health and ensure access to medicines. The study explores the multilateral framework established by the WTO’s TRIPS Agreement, emphasizing the structural flexibilities under Article 31, the permanent amendment of Article 31bis, the interpretive guidance of the 2001 Doha Declaration, and the polarizing debates surrounding the TRIPS Waiver during the COVID-19 pandemic. Furthermore, the paper systematically examines India’s domestic legal landscape under the Patents Act, 1970, which serves as a global model for balancing proprietary rights with public welfare. It deeply scrutinizes statutory mechanisms such as Compulsory Licensing (Sections 84, 92, and 92A) and sovereign powers of Government Use and Acquisition (Sections 100 and 102). By evaluating the procedural guidelines of the Patent Rules, 2003, and the strategic directives of the National IPR Policy, 2016, the research highlights the practical complexities, judicial activism, and political economy such as the reliance on “shadow compulsory licensing” that influence the execution of these vital legal safeguards during global health emergencies.

Keywords: Compulsory Licensing, TRIPS Agreement, Public Health, Patents Act 1970, Access to Medicines