'What About People Who Consumed These Medicines?' : Supreme Court Slams Uttarakhand Authorities Over Inaction Against Patanjali

While hearing contempt proceedings against Patanjali Ayurveda over its continuing publication of misleading advertisements in breach of a Court undertaking, the Supreme Court today came down heavily on the Uttarakhand State Licensing Authority (SLA) for its inaction in the matter.

It may be recalled that on April 4, the Court had issued notice to the Uttarakhand authority seeking its affidavit regarding the action taken against Divya Pharmacy (which belongs to Patanjali Yogpeeth Trust) regarding its advertisements.

Today, the Bench of Justices Hima Kohli and Ahsanuddin Amanullah, while rejecting the second affidavit of apology filed by Patanjali Ayurveda, its Managing Director Acharya Balkrishna, and co-founder Baba Ramdev, questioned the SLA as to why it must not think that the State authority was in cahoots with the alleged contemnors.

"[We] are appalled to note that except for pushing the file, the competent authorities within the State Licensing Authority have done nothing. The correspondence...between the Union of India and State Licensing Authority [shows] clear attempt on the part of State authorities to pass on the buck and somehow delay the matter, despite the fact that the first time that the State Licensing Authority was informed about the misleading advertisements was sometime in the year 2018. For these 4/5 years, the State Licensing Authority has remained in deep slumber", dictated Kohli, J as part of the order.

Sr Adv Dhruv Mehta, appearing for SLA, attempted to persuade the court that the State officers were acting on the basis of an interim order passed by the Bombay High Court in 2019 whereby the application of Rule 170 of Drugs and Cosmetic Rules, 1945, prohibiting advertisements of Ayurvedic drugs, was stayed. However, the Bench rejected the argument at the outset as "absolutely rubbish".

While emphasizing that the alleged contemnors' conduct was in the teeth of Drugs and Other Magic Remedies (Objectionable Advertisements) Act, 1954, yet no action was taken solely because Bombay High Court passed an order with respect to the 1945 Rules, Kohli, J questioned: "Is a Regulation above the Act?"

After hearing the parties, as well as Joint Director of SLA who was personally present in Court, the Bench directed the predecessor of the present Joint Director of SLA to file an affidavit in 2 weeks explaining inaction on his part for the entire tenure of his posting as a Licensing Authority. In addition, all District Ayurvedic and Unani officers holding post from 2018 till date were also directed to file similar affidavits in the same period.

Besides the proposed contemnors, the Bench was inclined to issue notices of contempt to the deponent of the apology affidavit (present Joint Director of SLA) as also his predecessor. However, it refrained from doing so for the present. The matter was listed for further orders (so far as proposed contemnors are concerned) on April 16.

Courtroom Exchange

After conveying to Sr Adv Mukul Rohatgi (for Patanjali and its MD) that it was not inclined to accept the apology affidavit freshly tendered by Patanjali, the court turned to Dhruv Mehta (appearing for SLA) to flag concerns about the State's conduct in the matter.

"You think you had a protective umbrella under the garb of an order passed by the High Court? Why did you not point out the provision of law?", asked Kohli, J from Dhruv Mehta.

Mehta replied, "We did issue show cause notices..."

Justice Kohli countered, "why did you not point out that there is a statute above the regulation which had not been stayed by the court of law?"

Dhruv Mehta: I agree...

Amanullah, J: Let us be very clear that there are 2 Acts. The stay was with regard to another Act. This is just the tip of the iceberg. Kindly tell your instructing counsel to note down whatever we are saying, I have got 20 flags. You have to give specific reply. If you are not able to reply, you see the order

Kohli, J: We have gone through your letter with a tooth comb

Dhruv Mehta: Your Lordships are right...but they did undertake, they had stopped publishing...after the Bombay High Court interim order

Amanullah, J: After that for 2 years, [....] somebody has to bring it to your notice? Oh, very good

Kohli, J: When they(Patanjali) violated this so-called...because they seem to be pretty much used to violating things, as far we can see...they violate orders of courts, they violate undertakings to the court...they treat you in the same manner, what do you do?

Dhruv Mehta: We have to take action in accordance with law...

Kohli, J: Now? In future? After we take action against you

Dhruv Mehta: Your Lordship is right...the statute gives us that power to take action

Kohli, J: Why did you not exercise it? According to the central government, they can only direct you...the execution is to be done by you - the State. What did you wait for, for us to prod you?

Amanullah, J: We are not going to let you free. Broadly, we are just indicating. First thing is, letter comes from the Union Ministry. It is very clear the ball is in your court. They say you kindly stop it or if it is not done, register FIR. Clear-cut instructions in the year 2020. Then, all these [...] are forwarded to you. You - the Licensing Authority - forward it to the District Ayush Officer. The Licensing Authority writes to the District Ayush Officer saying that kindly conduct enquiry and give a report. What the District Ayush Officer does, he forwards the reply...he says it is forwarded to you for action. You demit it back to the Union. Union says it is not in my domain. This has happened 6 times! Back and forth, back and forth

Kohli, J: You need to explain your conduct

Amanullah, J: Now the crux. The person who was the Licensing Inspector, he remains quiet. He does not take action against his officer. There is no report submitted by that officer, only forwarding. He is a post office. No report. A person who is appointed subsequently, he also does the same. Why not all those 3 officers should be placed under suspension right here? We are going to suspend them right here

Kohli, J: Dereliction of duty...What is the job of a Drug Officer and a Licensing Officer? Pushing files?

Dhruv Mehta: On 10.02.2023, Ministry of Ayush writes to me - the Licensing Authority - that the interim order passed by Delhi and Bombay High Court pertains to rule 170 of...

Amanullah, J: But you have...

Dhruv Mehta: It was bona-fide impression...

Amanullah, J: We have strong objection to the use of word 'bona-fide' for officers. Please do not. We are not going to take it lightly. We will rip you apart on bona-fide!

Kohli, J: Your officers just sit pretty and wait for some other authority to give instructions to them to act in accordance with law. It looks like you were not aware of the enactment till Central government told you about it. Why should we not think that you are in cahoots with the contemnor-respondents? You are keeping your eyes shut deliberately

To highlight violation of the Drugs and Other Magic Remedies Act, the Bench referred to a letter addressed by Divya Pharmacy to the SLA, where it was stated by the company that, "content of the advertisement is suggestive in nature and it is the choice of treatment in the management of diseases".

Kohli, J: They thump under your nose and tell you it is an advertisement which is suggestive in nature, and you accept it? They say purpose of the ad published is to keep people connected with Ayurvedic medicines, as if they are the first ones in the world to come up with Ayurvedic medicines? There are other companies in the market selling the very same medicines. It is not like the public is unaware. The Indian public is as cognizant about alternate medication as it is about the treatment through allopathy

Dhruv Mehta: We have not accepted

Kohli, J: Then what did you do in reply? Nothing. Except perhaps writing some more letters

At this stage, Dhruv Mehta sought to urge that the Joint Director, SLA had only joined in June, 2023. The said officer was present in Court and interacted with the bench:

On his coming forth, Amanullah J questioned the officer, "You have the guts to do what you are doing? Are you aware of your position as a bureaucrat, as an officer of the State?" before exclaiming, "Shameful of you!"

"Did you take any legal assistance from the legal department?", added Justice Kohli. The judge went on to ask, "Kis buniyad pe aapne ye order pass kiya ki unko warn kara jaega...aapne Centre ko ye likha ki unko warn kiya jaega aur Bombay High Court ka ek aadesh hai jiske binah pe aapko lagta tha ki Drugs and Magic Remedies Act ko bhi Bombay High Court ne alag kar diya, stay kar diya. Aapko kisne ye impression diya?" (On what basis did you pass the order that they would be warned...You wrote to the Centre that they will be warned and Bombay High Court has passed a direction based on which you thought Drugs and Magic Remedies Act had also been separated/stayed by the Bombay High Court Who gave you this impression?)

Amanullah, J: Kyun nahi hum ye maan lein ki aapki mili bhagat hai? (Why should we not believe that you were hand in gloves?)

Officer: Ye sab mere join karne se pehle ka hai (All this happened before I joined)

Kohli, J: Ye sab aapki chitthiyan hain. Usse to aap nahi nikal sakte. Aapne hastakshar kiye hain inpe. Usse pehle jo hua, hua. Aapne bhi apna mind apply nahi kiya? Warning ka bhi koi anushthaan tha Act mein...public ko agar nuksaan bhi hua, koi mar bhi gaya toh warning se chalega? (These are your letters. You can't escape from this. You have signed these. Whatever happened before that, happened. You also didn't apply your mind? Was there provision for warning also in the Act...if public was harmed, someone died, warning would have sufficed?)

Officer: Act mei sirf [...] dwara case darj kiya jaana chahiye (Under Act [...] should register case)

Bench: Toh aapne June, 2023 se ab tak kab case darj kiya? (so when did you register case since June, 2023?)

Officer: Karenge, Sir (Will do, Sir)

Kohli, J: When? You are dealing with public health

Amanullah, J: We will make you abettor in that crime. Abhi toh shuruaat hai, dekhiye kya hota hai (this is the beginning, see what happens)

It was observed by the court that SLA's current Joint Director, even though posted in June, 2023, had sufficient time to discharge his duty. But he did not. When Dhruv Mehta prayed for last opportunity on behalf of the Joint Director, Justice Kohli said,

"What is at stake, Mr Mehta? One man who wants mercy and what about all those faceless people who have been consuming this medicine on good faith? Which has been sold and touted as the remedy? And a cure for diseases which are incurable under the Act? Several letters have been written to him, people are making complaints".

While closing, Dhruv Mehta sought to add that the SLA was not a party to the proceedings initially, but Amanatullah, J shot back, "What a fantastic argument! you were not a party, so you are absolved of doing your duty under the Act?"

Lastly, it was commented by the Bench that the case did not exemplify a lapse, rather, it was a deliberate folly. It was further conveyed that if the delay was of a few months, perhaps some indulgence could have been shown.

"We are not spelling it out, but we know how these follies are committed", Justice Kohli could be heard remarking.

On the previous date of hearing, the Court had slammed the Union Government by saying that it had shut its eyes when Patanjali was advertising fake cures for COVID-19 during the height of the pandemic.

Also from today's hearing : Supreme Court Says Patanjali MD, Baba Ramdev Cited Non-Existing Flight Tickets To Avoid Personal Appearance; Rejects Second Apology

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

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