Facing Supreme Court's Wrath, Centre Undertakes To 'Forthwith' Withdraw Letter Asking States To Not Act Against Ayurvedic Drugs Ads

The Central government today (May 07) informed the Supreme Court that it will "forthwith" withdraw the letter sent by Ministry of Ayush to all State/UT Licensing Authorities asking them not to take any action against ads pertaining to Ayurvedic and Ayush products under Rule 170 of the Drugs and Cosmetic Rules, 1945.

The development comes in the contempt case pending against Patanjali over the publication of misleading advertisements, after a bench of Justices Hima Kohli and Ahsanuddin Amanullah expressed discontent with the Ministry's stand that the letter was issued in view of a "recommendation" made by the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board.

"Why would you jump the gun? How can the government say that only on recommendation I will direct that? Without taking the decision, why would you say that do not implement the law," the bench remarked.

For context, Rule 170 prohibits advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities' approval.

On August 29, 2023, the Ministry of Ayush sent a letter to all State/UT Licensing Authorities and Drug Controllers of AYUSH, directing that action under Rule 170 not be initiated/taken by them in view of a recommendation of the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board (ASUDTAB) to omit the provision. The final notification towards omission of the Rule remained to be published at the time.

The matter was listed today for consideration of the larger issue of misleading health claims made by Fast-Moving Consumer Goods (FMCGs)/drugs companies through ads, as well as the Union's decision to omit Rule 170 from the 1945 Rules. Previously, the Court had asked the Union to respond on "what weighed" with it when it decided to omit Rule 170. In response, Additional Solicitor General KM Nataraj had submitted that he would take instructions and clarify.

During today's hearing, the ASG referred to an affidavit filed by the Joint Secretary of the Ayush Ministry to point out that at least 8-9 writ petitions challenging the Rule were filed before various High Courts. The bench, however, noted that judgment had not been delivered in any of those cases.

At this stage, the ASG tried impressing that the Delhi High Court had asked for reconsideration of the issue surrounding Rule 170. Taking exception to this, the bench posed that even if the High Court had directed to take a decision on the Rule, how could the government issue the letter restricting implementation of the law when the final decision (regarding omission) was not taken.

“Without taking a decision, why are you on recommendation saying that do not implement. Why would you jump the gun? To say that okay, do not implement but you do not take the decision...You cannot say that the law is there, you do not implement it. The Court had directed to take a decision...Without taking the decision, why would you say that do not implement the law. As of now, the law is there. Why would the government say this?”

Supplementing the observation, Justice Kohli clarified that the High Courts are not powerless; each High Court has its own view. If any High Court feels that a regulation has to be kept in abeyance, it will take a moment for it to pass an order after hearing the parties, the judge added.

Further lamenting as to how the Ministry's letter - an admin order- could be issued on the basis of a recommendation to put fetters on an existing law, Justice Amanullah expressed that after the court's strong observations in earlier order, the Union was expected to withdraw the letter.

“How can you say that do not implement a law till it is a good law? And that too the Government will say that! It is glaring. How do we shut our eyes that till date it was neither withdrawn not taken to its logical conclusion...Is it permissible under the constitution as it holds today.”

Ultimately, the ASG assured that the letter would be withdrawn "forthwith".

Upon being informed that the final notification for omission of the Rule was sent to Ministry of Law and Justice and objections called from the public within 30 days in February, 2024, the court directed that the process be expedited.

Case Title: Indian Medical Association v. Union of India | W.P.(C) No. 645/2022