New Delhi: Uttarakhand government has come under severe criticism from the Supreme Court for being in a “deep slumber” and not acting according to the law against Divya Pharmacy for issuing advertisements in breach of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. Divya Pharmacy is a unit of Patanjali that manufactures ayurvedic products.
A bench of Justices Hima Kohli and Ahsanuddin Amanullah Wednesday grilled the officer heading the drugs licensing authority in the region and asked him for an action taken report against Divya Pharmacy. The officer, Mithilesh Kumar, was personally present in court.
The bench took note of the affidavit filed by the Uttarakhand state licensing authority (SLA), which, for the court, was a revelation of how Divya Pharmacy had “hedged” the department’s notices that asked the company to stop issuing advertisements claiming cure for certain diseases, as barred under the 1954 law.
However, the department, instead of penalising Divya Pharmacy, simply issued a warning, and that too only after the top court took note of the contravention of the law by Patanjali in November last year. This was after the Indian Medical Association (IMA) filed a petition against Patanjali and co-founder Ramdev for issuing misleading advertisements.
The court Wednesday directed Mithilesh Kumar and his predecessor Girish Chandra Pangi to file affidavits in personal capacity to explain the inaction on their part in the matter. According to the bench, the officers did not act despite the Centre’s assertion that Patanjali’s advertisements were not in conformity with the 1954 law.
The bench also directed all the officers who have held the post of District Ayush Officer in Haridwar since 2018 to file their affidavits underlining why they failed to act against Patanjali for its blatant contravention of the law. The court has given three weeks’ deadline to the officials to submit their affidavits and said it would hear the matter on the extent of their roles in the case on 23 April.
Meanwhile, the bench expressed its reservations about accepting the “unqualified and unconditional apology” which Ramdev and his close associate and Patanjali co-founder Acharya Balkrishna, filed on 6 April. The second apology was filed in supersession to the earlier one that was given to the court on 2 April. On that day, the top court had slammed the two for filing a “perfunctory” apology and rejected it at the outset.
The two had apologised for holding a press conference shortly after the top court had cautioned Patanjali against publishing misleading ads in November last year. Both Ramdev and Balkrishna are facing contempt proceedings for “willful disobedience” of the court order as well as of their undertaking not to advertise the ayurvedic products as per the 1954 law.
On Wednesday, though, the bench verbally criticised the two for showing their “disdain” towards court orders (it did not include the observations in its written order). Orally, the judges even told their advocates that they were not inclined to accept the apology filed on 6 April, superseding the earlier one.
“Having regard to the entire history of the matter and the past conduct of the respondents, we have expressed our reservations about accepting the latest affidavit filed by them (sic),” it noted in the order.
Verbally, the judges told their counsel, senior advocate Mukul Rohatgi, “The apologies are on record because they (Ramdev and Balkrishna) have been caught on the wrong foot and have their backs against the wall. We do not accept this affidavit; we decline to accept it or condone it. We consider your act to be a willful disobedience. Do not think your tendering apology will satisfy the court.”
Rohatgi was one of the many senior advocates who appeared for the three parties.
Justice Amanullah said the court could have been magnanimous had the two shown remorse in their first affidavit. “Only when the writing is very very clear (sic) on the wall that they apologise. Is this heartfelt?” the judge said.
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‘Want to send a message to all FMCGs…’
Ramdev and Balakrishna were also upbraided for misleading the bench over the order issued to them to make a personal appearance in the court following contempt notice issued against them. The judges pointed out that after they were sent show cause notices and they were directed to remain present in the court, the two had attempted to “wriggle out” of the personal appearance on the ground that they had plans to travel abroad.
To demonstrate the same, the two filed an application referring the tickets their travel agency had purchased. Strangely, the court said, the tickets were issued the day after the two had sworn their respective affidavits seeking exemption from appearing.
Their apology affidavits filed on 6 April admitted their “mistake” over the tickets. Noting this, the court mentioned in its order: “Fact remains when the affidavit was sworn there were no such tickets. Assumption is, they were attempting to wriggle out of their personal presence, which is unacceptable.”
When Rohatgi attempted to explain that his clients had accepted their mistake, the bench retorted that, in that case, “they must suffer the consequences”.
“We do not want to be so generous in this case. All we are saying is that why should we not treat your apologies with the same disdain that you showed the undertakings given to the court,” the bench added.
The judges turned down Rohatgi’s request to adjourn the matter for another 10 days. “We want to send a message to all the FMCGs that they cannot take any customer for a ride by claiming to cure a disease that is incurable,” Justice Kohli said.
The judges then drew Rohatgi’s attention to the affidavit of Uttarakhand SLA and told him that Divya Pharmacy has been “violating all rules” even though multiple notices were sent to it since July 2020. They flagged Divya Pharmacy’s reply to SLA sent in response to the department’s notice.
Divya Pharmacy claimed protection under a Bombay High Court order that had stayed Rule 170 of the Drugs and Cosmetic Rules 1945, which was inserted through an amendment passed in December 2018. The rule prohibited the advertisement of ayurvedic drugs without it being cleared by the competent licensing authority.
But the SC judges were not convinced and observed that the HC order did not tie down the SLA from initiating action against Divya Pharmacy since the main Act was not stayed. It wondered why the state authority remained silent and asked the licensing officer present in the court whether he had taken legal opinion on the issue.
Senior advocates Dhruv Mehta and Vanshaja Shukla, appearing for Uttarakhand government, submitted that a warning was issued to Divya Pharmacy for not complying with the law. However, neither the counsel nor the state government officer present in the court could give a satisfactory reply to why no action was taken against the company.
“So, what did you do, sit and twiddle your thumbs? Why did you not exercise your powers under the law? You waited for us to prod you,” Justice Kohli said. Both the judges observed the officials in the licensing department only pushed files.
“We will rip the state government apart, come down on your officers like a ton of bricks. If this is not dereliction of duty then what is, you simply pushed files and played back and forth with the Union of India that kept writing to you that the jurisdiction to take action was yours,” the judges said.
Mehta and Shukla told the court that there was a bona-fide impression about the Bombay HC order and that the clarification on law not being stayed came in February last year when the central government wrote to the state.
At this, the bench remarked: “So the Centre had to tell you that there is a law under which you can take action. Your affidavit speaks for itself that except for pushing the files your officers have done nothing. They wanted to sit pretty and wait for some other authority to act.”
The bench also took strong exception to one of Divya Pharmacy’s responses given to Uttarakhand SLA in July 2023, where the company clarified that its medicines were based on ayurvedic literature and the advertisements about them are “suggestive in nature”. The advertisements, it had said, are to keep people connected with Ayurveda medicines and do not violate any law.
“This is in teeth of the Act. They waved their thumb under your nose,” the bench told Mehta and Shukla. The judges were irked to see the officers had taken no steps to deter Patanjali from issuing its advertisements, even after the top court’s intervention.
“Supreme Court has become a mockery now. They think they sit in ivory towers, see how lightly our orders are being taken, orders were being issued only on paper and no action was taken,” the bench said.
(Edited by Zinnia Ray Chaudhuri)
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