Exploring the Nexus between Constitutional Law, Trade and Competition Law in Healthcare and Pharmaceutical Industry in India ​

Mahima S
School of Law, Christ (Deemed to be University), Bengaluru, India
Sanjay Reddy
School of Law, Christ (Deemed to be University), Bengaluru, India

Volume III, Issue VI, 2020

The globalised and increasingly inter-dependent markets of today are built on a fundamental premise: “Trade can make everyone better off”. This premise has been codified as Professor Gregory Mankiw’s ‘Fifth Principle of Economics’. The renowned economist while illustrating this principle emphasises on the nature of competition as not merely a consequence of trade but a factor that constantly nurtures trade. Fair Trade that makes everyone better off is, sine quo non of fair competition. Hence “Fair Competition for Greater Good” is the central philosophy of the Indian Competition Act, 2002. By vitalising this philosophy, the Indian State has taken upon itself the duty of enhancing the scope of the Constitutionally recognised Right provided in Article 19(1)(g). This includes the duty to both provide scope for fair competition by removing all obstacles that hinder it and to not impose restrictions that deter such competition. While the duty on the Indian State enhanced by the Competition Law is taking its baby steps of evolution, the duty of providing adequate healthcare has been enshrined in the Constitution for more than seven decades now. The Right to Health is an inherent part of the Fundamental Right of Right to Life and is a key to welfare. This right is both facilitated and marketed for profits by the healthcare and pharmaceutical industries. This paper analyses the role of the Indian State and the Healthcare and Pharmaceutical Industry in the betterment of the society. The plausibility of tweaking the applicability of Competition Law to not just benefit producers but also consumers is discussed herein, under the lens of Constitutional Law. The effect of imposing adequate regulations on the said industries in enabling them to share the State’s onus of providing right to health is discussed as policy suggestions.

Keywords: Competition, trade, healthcare, pharmaceutical, Constitution, consumer welfare, producer welfare.