What is the seven-decade-old drugs and magical remedies law that got Patanjali in trouble with SC?

Acharya Balakrishna and Baba Ramdev

On May 14, the Supreme Court reserved its judgment on a contempt notice against FMCG and pharma company Patanjali Ayurved’s promoter Ramdev and managing director Balakrishna.

The court had summoned the duo to court over allegations that the company went ahead with publishing misleading advertisements regarding their medicines despite giving an undertaking in November 2023 to not do so. Over a period of two months, Balakrishna and Ramdev were grilled by the apex court for their actions. The duo were made to publish over 300 unconditional apologies in popular newspapers; despite all this, the threat of punishment of contempt still hangs over them.

However, at the heart of the dispute is the violation of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The 70-year-old law prohibits advertisements for remedies that claim to have magical properties. A violation of the law can land a person in jail for about a year in addition to paying a penalty.

The act bans advertising for 54 diseases including typhoid, venereal diseases, tuberculosis, impotence and pregnancy-related illnesses, among others. The short 16-section law also empowers the authorities to penalise company executives for issuing and publishing misleading ads.

Section 9 of the act says, “If the person contravening any of the provisions of this Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against, and punished.”

The act grants authorities under it to enter, search and seize offending advertisements.

 Moneycontrol explains the history of this law, why the apex court upheld its validity and some important judgments from the law.

The Supreme Court in a 1959 judgment called Hamdard Dawakhana vs Union of India traced the history of the act.  The case had in fact challenged the constitutional validity of the act on the ground that it restricted freedom of speech.

In 1927 a resolution was adopted by the then ·Council of States recommending to the central and provincial governments to take immediate measures to control the indiscriminate use of medical drugs and for standardisation of the preparation and for the sale of such drugs. In response to this, the British government in India appointed the Drugs Enquiry Committee with Sir R.N. Chopra as its chairman to look into quality control of drugs manufactured, imported or sold in India and to recommend steps for controlling such imports in public interest.

The committee also recommended strict control over proprietary medicines. The proposals made by this committee led to the introduction of the Drugs and Cosmetics Act, 1940, to regulate the manufacture, import or sale of medicines. It also resulted in the passage of the 1948 Pharmacy Act, which was passed to regulate the provisions of pharmacy.

After independence, the government set up the Bhatia committee in 1953 which examined a large number of witnesses in different towns, some of whom represented chemists and druggists and some who were leading medical practitioners, among other stakeholders.  A press committee was also set up.

The Indian Medical Association had suggested a ban on advertisements of medicines that claimed to cure or alleviate any of the following diseases: cancer, Bright's disease, cataract, diabetes, epilepsy, glaucoma, locomotor ataxia, paralysis and tuberculosis.

The recommendations of these committees led to the enactment of the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954.

The court in the 1959 case  held that the object of the law was the prevention of self-medication and self-treatment by prohibiting ads promoting an exaggerated view of the medicine.  The judgment said, “Its object was not merely the stopping of advertisements offending against morality and decency.”

Furthermore, the court held that while advertisement is a form of speech, its true character is reflected by the object for the promotion of which it is employed. According to the judgment, “It is only when an advertisement is concerned with the expression or propagation of ideas that it can be said to relate to freedom of speech. But it cannot be said that the right to publish and distribute commercial   advertisements of an individual's personal business is a part of the freedom of speech guaranteed by the Constitution.”

However, the court struck down sections 3 and 8 of the act for being unconstitutional, but the government amended the same subsequently.

In 2022, the Madras High Court passed an order asking its chief justice to take suo motu cognisance of the lack of regulation of online advertisements of medicines for certain diseases specifically prevented under the act.

The order further urged the CJ to create a mechanism for regulation of objectionable online advertisements that are in contravention of the act.

In 2013, the Supreme Court penalised an doctor of ayurveda named R.K. Gupta who had advertised ‘a total cure for fits’ at a charge of Rs 2,150 back in the mid-1990s. A woman brought her son and purchased the medicine, but instead of curing the boy, it made his condition worse. On enquiry, it was found that the respondent was not only passing off allopathic medicines as ayurvedic but that the small white tablets prescribed by Gupta were allopathic drugs not meant for children. Gupta was not competent to prescribe no-ayurvedic medicines.

The boy's mother thus sued Gupta for negligence and false representation. The consumer forum ruled in favour of the mother and the case reached the apex court. The court held the doctor guilty of medical negligence, criminal negligence and false advertisement. He was directed to pay a fine of Rs 5 lakh.