Patanjali Case : Supreme Court Questions Ayush Ministry Letter Asking States To Not Act Against Ads Of Ayurvedic, Unani, Siddha Drugs

During the hearing of the contempt case against Patanjali over the publication of misleading advertisements, the Supreme Court on Tuesday (April 23) asked the Union Government why a letter was issued to State/UT licensing authorities, restraining action against ads pertaining to Ayurvedic and Ayush products under Rule 170 of the Drugs and Cosmetic Rules, 1945 ("1945 Rules").

The bench of Justices Hima Kohli and Ahsanuddin Amanullah was referring to the letter dated August 29, 2023 issued by Ministry of Ayush to all State/UT Licensing Authorities and Drug Controllers of AYUSH regarding omission of Rule 170 (and related provisions) of the 1945 Rules. On the basis of a recommendation of the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board (ASUDTAB) given on May 25, 2023 to omit the provision, this letter directed all Licensing Authorities to not initiate/take action under Rule 170.

Rule 170 prohibits advertisements of Ayurvedic, Siddha or Unani drugs without licensing authorities' approval. Notably, only the approved minutes of the ASUDTAB meeting were attached with the aforesaid letter, while the final notification towards omission of the Rule remained to be published.

Justice Kohli flagged concerns about this aspect to Union's counsel saying "now in one breath, you are making statements, through not less than the Hon'ble Minister of State in the Parliament, saying that there is ample ground to protect the consumers and initiatives have been taken to tackle advertisements which are misleading in Ayush Drugs and you mention the Drugs and Magic Remedies Act...and you also mention the other Act saying that there is enough provisions that empower the government to act under the Act. And then you amend the Rules."

Justice Kohli asked the Union to respond on "what weighed with" it to omit Rule 170. Further, the judge voiced concern that since Rule 170 imposed a prohibition/check on advertisements prior to publication, its withdrawal implied the ads could only be checked after publication under the Drugs and Magic Remedies Act.

Warning of consequences, Justice Amanullah asked Union's counsel, "Is it within your jurisdiction or power to say that the law is there but don't act...till the time it is taken to its logical conclusion? Can you do that? Is it not arbitrary and colorable exercise? Then you are also liable to be proceeded against as abettor to the crime, whoever has made that statement".

Turning to Additional Solicitor General KM Nataraj, who later appeared through VC, Amanullah J expressed surprise at the Union restraining action under Rule 170 even though a final notification omitting the provision is yet to be published. "You can't do that till the law is there, be prepared for an answer on the next date because we are going to take serious cognizance of that letter", the judge commented.

The bench also pointed out that on the strength of the aforesaid letter, many parties were able to get favorable orders. It was remarked that Patanjali as well came to rave about the Bombay High Court stay order as a result of the letter.

In response, Nataraj assured that the Union will not take any adversarial stand in the matter. "I will get instructions and clarify", the ASG said.

The matter has been posted to May 7 for consideration of the larger issue. Justice Amanullah has cautioned the Union to come prepared on the next date, saying that the Union and Ministry of Ayush would be the "focus" on that day.

Also from the hearing - 'Is Your Apology As Big As Your Advertisements?' : Supreme Court Asks Patanjali Ayurved

'IMA Also Needs To Put Its House In Order' : Supreme Court Flags Complaints Of Unethical Conduct By Allopathic Doctors

Case Title: INDIAN MEDICAL ASSOCIATION v. UNION OF INDIA | W.P.(C) No. 645/2022