TUESDAY, MAY 21, 2024
GLADSTONE D’COSTA
The SC proceedings in the Patanjali case must be music to the ears of any activist concerned with the case; a judicial rendition of Beethoven’s “Ode to Joy” no less. When was the last time you heard a CJ of the SC thunder in open court “We will take you apart”? Or of a government official from the Uttarakhand State Licensing Authority (SLA), plead in court with folded hands "Please spare me...I came in June 2023... this happened before me." Probably never.
The court hearings relate to IMA v. UNION OF INDIA; W.P.(C) No. 645/2022. The IMA sought to direct the Centre, Advertising Standards Council of India, and the Central Consumer Protection Authority of India to take action against advertisements promoting the Ayusah system by disparaging the Allopathic system and defaming evidence-based medicine.
During the Covid-19 pandemic, Ramdev’s controversial remarks criticised Covid-19 vaccinations and labelled allopathy as “stupid science”, sparking outrage. Additionally, the IMA petition alleged that they made false claims regarding the cure of serious diseases. For example, Divya Lipidom, was claimed to reduce cholesterol and dyslipidemia, and “helpful in fat metabolism” while Patanjali Nutrela Diabetic Care claimed to reduce blood sugar levels and control body weight. Coronil was touted as a “cure” for Covid-19; without even registering a trial with the Clinical Trials Registry of India, let alone conduct a trial. The court had said the advertisements of Patanjali to cure everything from diabetes, obesity, to liver dysfunction and even Covid 19 were “deliberate and wilful violations” of the Drugs and Magic Remedies (Objectionable Advertisements) Act (DMRA) of 1954 and its rules.
Justice Kohli asked Ramdev whether it was right to point the finger against other fields of medicine like allopathy and claim his company’s medicines were far superior to them. This was “irresponsible behaviour”
The issue has been simmering from 2018, with RTIs filed by Dr K V Babu, an activist from Kerala. The issue was cleverly sidestepped by deliberately confusing the DMRA, and the Drugs and Cosmetics Act (D&CA) Notices went back and forth six times “a deliberate ploy by the SLA to delay acting against the company,” said the complainant. Section 3(d) of the DMRA prohibits directly or indirectly advertising the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified under the Act. The complaint was evaen referred to the PMOs office in view of the inaction.
In June 2022, to protect consumer rights against wider advertising issues, the CCPA notified the Guidelines on Prevention of Misleadaing Advertisements and Endorsements for Misleading Advertisements, 2022 with immediate enforcement. These were intended to curb misleading or false advertising practices; with fines of up to Rs 10 lakh on manufacturers, advertisers and endorsers. Yet, at the same time, the authorities withdrew Rule 170 of the D&CA which gave powers to take action against objectionable advertisements. The court asked additional solicitor general KM Nataraj, appearing for the Centre, to explain the letter issued by the Ayurvedic Siddha and Unani Drugs Technical Advisory Board (ASUBTAB) to States, to omit Rule 170 of the D&CA, a notified amendment from December 2018. This letter has now been withdrawn.
The SLA issued a warning to the company; whereas the 1954 act has no provision for a warning. The bench said that the Supreme Court is being mocked. “You are acting like a post office; shameful of you,” it told the state counsel. “The three officers should be suspended right now,” adding that the licensing authority was "in cahoots with the contemnors". “You were in deep slumber from 2018, when the first complaint came till 2024,” It further directed all the officers who had served as District Ayurvedic and Unani Officers, Haridwar, from the period between 2018 to 2024 to file affidavits explaining their inaction against Patanjali. Such was the arrogance of Balkrishna and Ramdev that an affidavit was filed claiming inability to attend court “because they were travelling abroad”; no tickets for the trip could be produced.
Patanjali's explanation for ignoring the court order was that its media personnel were not “cognizant” of the November order and the undertaking given. The impugned advertisements were meant to contain only general statements but inadvertently included offending sentences. The court doubted that Rs 1100 crore company with a special media and legal department was capable of such a folly, calling it “perfunctory” and “mere lip service.”
“The Court will take any such infraction very seriously, and consider imposing costs to the extent of Rs 1 crore on every product regarding which a false claim is made of curing a particular disease. The yoga guru folded his hands in apology to the Supreme Court, saying he would be prudent in future.
An apology has since been published; but it makes no mention of the offense committed. The court indicated that the apology advertisement should be comparable to the offending advertisements and not “require a microscope to be read”. Meanwhile the Uttarakhand SLA has withdrawn the licenses of 14 products and registered criminal cases against Patanjali.
Interestingly the SC went further to say “We are of the opinion that the petitioner association (IMA) also needs to put its house in order”. Unethical activities of members of the association include “prescribing highly expensive medicines for valuable considerations,” and asked for information from IMA on actions taken against its members, saying “you have not covered yourself in glory”.
The National Medical Commission (NMC) has also been impleaded in the case. The bench told the IMA. “We can’t let the public be taken for a ride.” Hearings are now segregated into the contempt petition against Patanjali, and the broader matter of medical malpractice across the board and including the IMA, with the SC rebuking the IMA president for criticising the SC in an interview on a sub-judice matter.
The final judgment is eagerly awaited.
(The author is a founder member of VHAG and past State President of the IMA)
