Fundamental Right To Health Includes Customer's Right To Be Made Aware Of Quality Of Products : Supreme Court

The Supreme Court has declared that the the fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.

To protect this right, the Court directed that henceforth, before an advertisement is printed/aired/displayed, a Self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994.

The direction was passed by a bench comprising Justices Hima Kohli and Ahsanuddin Amanullah in the Patanjali case (Indian Medical Assocaition v. Union of India and others) on May 7. In the copy of the order uploaded today, the Court made certain pertinent observations regarding the customers' rights.

It may be recalled that the case was filed by the IMA seeking regulation of the misleading medical advertisements published by Patanjali Ayurved Ltd. During the course of the case, the Court initiated contempt proceedings against Patanjali Ayurved, its founders Baba Ramdev and Acharya Balkrishna.

Advertisers and endorsers are equally responsible for issuing false and misleading advertisements

In the order dated May 7, the Court commented on the responsibility of celebrities and influences who endorse products in advertisements.

"We are of the firm view that advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. Such endorsemehat are routinely made by public figures, influencers, celebrities etc. go a long way in promoting a product. It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same, as reflected in Guideline No.8 of the Guidelines, 2022 that relates to advertisements that address/target or use children for various purposes and Guideline No.12 that lays down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience. Guideline No.13 requires a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive."

The Court also noted that there is no robust mechanism available for the customer to lodge complaints for violation of Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022 framed by the Ministry of Consumer Affairs.

"In view of the above and in the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere to stipulations in the Guidelines, 2022 in letter and spirit, it is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.

To fill up this vacuum, it is directed that henceforth, before an advertisement is printed/aired/displayed, a Self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994 which is as follows :

“7. Advertising Code. - (1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.

(2) No advertisement shall be permitted which-

(i) derides any race, caste, colour, creed and nationality;

(ii) is against any provision of the Constitution of India;

(iii) tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way;

(iv) presents criminality as desirable;

(v) exploits the national emblem,oranypartoftheConstitution or the person or personality of a national leader or a State dignitary;

(vi) in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency;

(vii) exploits social evils like dowry, child marriage.

(viii) promotes directly or indirectly production, sale or consumption of-

(A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;

(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super- natural property or quality, which is difficult of being proved.”

The Court directed that the Self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting. As for the advertisements in the Press/Print Media/Internet, the Ministry is directed to create a dedicated portal within four weeks from May 7.

Immediately on the portal being activated, the advertisers shall upload a Self-declaration before any advertisement is issued in the Press/Print Media/Internet. Proof of uploading the Self-declaration shall be made available by the advertisers to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media, as the case may be, for the records.

No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self- declaration as directed above. The above directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India.

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

Citation : 2024 LiveLaw (SC) 381

Click here to read the order