Indian Medical Association

Government by Supreme Court

On February 27, a bench of the Supreme Court upbraided Patanjali Ayurved and its chairman Acharya Balkrishna for continuing to disparage systems of medicine other than Ayurveda (technically, what it calls Ayurveda) and claiming its products offer “permanent relief” from “blood pressure, diabetes, arthritis, asthma and obesity” in its advertisements, despite having assured the court in November 2023 that it won’t do so. The Indian Medical Association had filed the case in August 2022 alleging that Patanjali Ayurved had flouted the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 and its Rules.

It’s a straightforward case with an understandable outcome, but it isn’t unsurprising. That Patanjali Ayurved so openly violated the Act and the Rules – but also good sense, as Pushpa Mitra Bhargava pointed out in an excoriating essay in 2016 – forced the IMA to approach the court, and for some time now the courts have been the last democratic institutions in India interested in upholding the law (and even then it’s iffy). The ‘backstop’ the courts have offered against advertisements in particular running away with bullshit has been particularly useful because the laws are not so much outdated as unable to respond to the new ways in which advertisers are twisting words, taking advantage of grey areas, and, generally, “telling a lie in a way that it appears to be the truth,” in Bhargava’s words.

More importantly, advertisement regulation in India is weak. As Kaushik Moitra and Shreya Sircar wrote in 2022 (emphasis added):

Advertisers must address complaints regarding deviations from the ASCI Code. If such complaints are not remedied, ASCI may take coercive steps to regulate the (allegedly) offending advertisement. Illustratively, ASCI may recommend that broadcasters not air the offending advertisement and may also publish instances of non-compliance by advertisers on its website. ASCI may also report infractions to the Ministry of Information and Broadcasting.

Additionally, – and uniquely for a self-regulatory organisation in India – ASCI has been recognised as a self-regulator under the Cable Television Networks (Amendment) Rules, 2021. ASCI promulgations are advisory and can neither supplant nor supersede the law. Moreover, ASCI cannot compel compliance. However, any action brought against an advertiser for breach of ASCI promulgations will proceed on the basis that ASCIs position has statutory endorsement.

It’s ultimately up to some government agency to take action and to advertisers to check themselves. In 2010, ASCI had flagged more than “50 campaigns by ayurvedic and homeopathic drug makers offering a cure for COVID-19 in April alone” to the government. The charge was grounded not in the 1954 Act but in a Ministry of AYUSH order earlier that month prohibiting the advertisement of AYUSH-related claims about curing COVID-19.

In fact, between April 2014 and July 2024, a portal of the Department of Consumer Affairs said it had logged more than 1,400 misleading advertisements pertaining to AYUSH products and services. Similarly, the Pharmacovigilance Centres for Ayurveda, Siddha, Unani and Homeopathy Drugs reported 18,812 “objectionable advertisements” between 2018 and 2021. In 2022, the ASCI also reported 1,229 misleading AYUSH-related advertisements between 2017 and 2019. Yet the same ministry is unconcerned when Patanjali Ayurved offers unsubstantiated (possibly intentionally ambiguous) “permanent relief” from a variety of conditions. In fact, “unconcerned” is inaccurate. On February 19, 2021, the then Union health minister Harsh Vardhan endorsed a ‘drug’ developed by Patanjali Ayurved, called Coronil, and which the minister, Balkrishna (the chairman), and Baba Ramdev claimed was the “first evidence-based medicine for coronavirus”. It wasn’t; it was an untested quack-remedy backed by spurious claims that the WHO had certified it.

Such circumstances force those who are concerned about the effects of these advertisements to approach the courts for relief, and it is heartening that the courts among all institutions retain some sense. Yet this is also a tragedy: if the regulations that the government has put in place are followed and enforced properly by regulatory agencies, people wouldn’t have to approach courts for every remedy. Courts are already burdened with a large number of cases; equally, judges – while being equipped to examine the propriety of processes and adherence to the law and Constitutional principles – are not subject experts.

In the Patanjali Ayurved case, of course, the company was advancing clearly pseudoscientific claims backed by non-existent data, and its defence was easy to dismiss. What would happen when, say, the government approves a poorly tested vaccine with a known risk of injury in the event of a self-determined emergency; a civil society group files a petition asking for the approval to be rolled back; and the government contends that the group is spreading vaccine hesitancy? The court shouldn’t be expected to be able to examine the results of clinical trials, yet it may have to. In fact, contemporary environmental governance offers a real example of such a problem in action.

Unlike a specialised expert tribunal, Constitutional courts don’t possess the necessary skill and expertise to examine the technical and scientific correctness of any project. Judges are trained to examine and adjudicate on the legality and propriety of the decision-making process.

Environmental lawyer Ritwick Dutta wrote this in The Hindu following the Joshimath disaster, when the Union government halted work on the Helang-Marwari bypass. This work had received a green signal from the Supreme Court in 2022 to proceed, raising “questions about the validity of the apex court’s decision” (not that the Union government was opposed to the project).

The separation of powers is a division of labour, rendered more critical than other such divisions by the need to keep the greatest powers of the land in check. Yet it has often been flouted, such as the Supreme Court’s decision to set up the Central Empowered Committee, which stands in between the Standing Committee of the National Board for Wildlife and the Union Cabinet when approvals for non-forest use of sanctuaries and national parks are at stake. If this committee disagrees with a decision of the Standing Committee, the committee can forward it to the Supreme Court with its own opinion for the apex court to take the final call – a clear violation of the separation of powers.

However, not everyone would have thought so at the time many such measures were instituted. The environment ministry created the committee in 2002 following a Supreme Court direction in T.N. Godavarman, “for the purposes of monitoring and ensuring compliance of the orders of the … Supreme Court covering the subject matter of environment, forest and wildlife, and related issues arising out of the said orders and to suggest measures and recommendations generally to the State, as well as Central Government, for more effective implementation of the [Environment (Protection)] Act and other orders of the Court” (source).

Since then, however, and in keeping with Dutta’s assessment, the Supreme Court has adjudicated on the “technical and scientific correct” of various projects. That the environment ministry has parallelly and persistently weakened safeguards to protect the country’s natural resources to favour ‘ease of business’ has only allowed the court to intervene further. But at the same time, because the politically instituted mechanisms to protect the lives and livelihoods of people and the well-being of flora and fauna living near sites of resource extraction exist more and more only in theory, researchers, activists, and others have also welcomed the court’s interventions to nix deleterious project proposals. (In September 2023, in fact, the environment minister replaced the Supreme Court’s committee with a new one of the same name, populated fully with members that report to the ministry.)

Simplistically, those in charge are making bad decisions and those not supposed to be in charge are making good decisions.

The political theatre of Vardhan v. Ramdev

Last week, Baba Ramdev made offensive remarks against allopathic medicine and against people desperately looking for oxygen for their loved ones hospitalised with COVID-19. On Sunday, Union health minister Harsh Vardhan sent a letter to Ramdev asking him to withdraw his comments. On Monday morning, news reports suggested Ramdev had done so.

However, it wasn’t clear why the Indian government – so trigger-happy against any small, even nonexistent, slights against “India’s reputation” – didn’t book Ramdev under the Epidemic Diseases Act 1897 or any other law. Or is this not the right question to ask?

Compare Vardhan’s letter on Sunday to Ramdev to his letter on April 20 to former prime minister Manmohan Singh. A day earlier, Singh had written to Modi suggesting that the Centre give the states more flexibility to locally adapt the vaccination programme and share the Centre-company vaccine orders with the people.

In response, Vardhan lashed out, accusing Singh’s Congress party of “fuelling vaccine hesitancy”, spreading fake news and the states in which it was in power of being the biggest contributors to India’s second wave. It was a madman’s diatribe with no basis in fact or sense, designed to curry favour with his own party, and his Supreme Leader, instead of taking the opportunity to respond directly to Singh’s suggestions.

In contrast, Vardhan’s letter to Ramdev – whose remarks were as destructive as Singh’s were constructive – is cajoling. Here’s a translation by NDTV (the original is in Hindi):

The people of the country are very hurt with your remark on allopathic medicines. I have already told you about this feeling over phone. Doctors and health workers are like gods for the people of the country for whom they are fighting against the coronavirus risking their lives.
You have not only insulted Corona warriors, but have hurt the feelings of the people of the country. Your clarification yesterday is not enough to make up for it… I hope you will think hard on it and withdraw your statements completely.

A former prime minister and one of India’s greatest economists is met with blockheaded whataboutery whereas an unscrupulous businessman in cahoots with the national party and with no regard for the morals of public healthcare is coaxed gently into withdrawing his remarks, as if the minister is wary of tripping the wrong wire. This is political theatre pure and simple.

In a government apparatus that has never, in the last half-decade of its rule, done anything without the express permission of its prime minister, it’s not likely that Vardhan or Ramdev have violated this rule now. The big flip side of totally centralised power is that the buck never moves past the same person.

Ramdev was set up to say something offensive and Vardhan was set up push back in a display of understated authority, but authority nonetheless – to signal to the party’s followers that the government, despite so many expressions in India, the US and Europe to the contrary, is in charge and is looking out for the interests of healthcare workers, who show up in Vardhan’s letter as “Corona warriors”. Now that the project has accomplished its goals, the Supreme Leader and his office has allowed Ramdev to withdraw without consequence into his corporate offices and for Vardhan to bask in his ‘victory’.

But numerous healthcare workers have been offended by Ramdev’s remarks, many of them on Twitter, and so has the Indian Medical Association. Is the minister really looking out for anyone here apart from the party followers? This is the right question to ask.

Featured image: Harsh Vardhan and Baba Ramdev. Credits: MST/PIB and Kumari Anu/PIB, Wikimedia Commons.

The government’s enblightenment

The GMO debate is a fascinating object, even though participating in it often amounts to nothing but pain, frustration and lost time – especially if you’re pro-GMO foods. It’s fascinating because it’s one of a kind: one party has science on its side but little else, including good science outreach, and the other has sociology but also lots of overreaching rhetoric. There is also an unseen foe, the agrochemical company Monsanto, whose decades of indulgence in unethical practices and corporate recalcitrance to promote the sales of its fertilisers and genetically modified seeds have blighted the soil – both literally and figuratively – rendering hundreds of thousands of people around the world forever suspicious of genetic engineering vis-à-vis agriculture. One prominent outcome of this ‘enblightenment’ is that scientifically robust data no longer suffices to qualify GM products for regulatory approval, and any such approval, once granted, becomes automatically subsumed by doubts about corruption and subversion. Another outcome is the pall of cynicism that hangs over any public deliberations of GM products, especially regarding business practices – cynicism that effectively holds a gap open for unscientific, even pseudoscientific, arguments to slip into the debate and for untenable rhetorical methods, especially whataboutery, to find more purchase than might be warranted. Taken together, I think these are some reasons why the GMO debate has lasted for so long and why settling it to the effect of everyone being more accepting of GM seeds is going to be very hard.

It would seem some of these features are also visible, or are becoming apparent, on a different front. Baba Ramdev’s (I suspect) pseudo-Ayurvedic company Patanjali Ayurved has come under fire for falsely claiming an antiviral drug it has minted, called Coronil, was approved by the WHO for use against COVID-19. The WHO hasn’t granted any such approval – and the study backing up Coronil’s efficacy doesn’t seem to hold up to deeper scrutiny either. However, Patanjali Ayurved has stood its ground, most recently lashing out against the Indian Medical Association (IMA) for calling Coronil’s public launch on February 19, with Union health minister Harsh Vardhan in attendance as an honoured guest, despite its dubious credentials was “a slap and insult to the people of the country”. A spokesperson for Patanjali, S.K. Tijarawala, tweeted the company’s rebuttal on February 25, asking the IMA to focus on availing the people of India more affordable healthcare first and to abolish the practice of “commissions in the medical profession”. This is plain whataboutery – responding to one argument with another while also changing the topic. However, this counterargument is also likely to stick because access to affordable and good quality healthcare and over-charging in private clinics and hospitals are both big and rampant problems in India, thanks to the oversight of successive governments and the privatising tendencies of the current one. And even though Patanjali is resorting to whataboutery to advance this accusation, the issues’ shared relevance is likely to be able to hold the door open for someone – a minister, a political leader, a prominent doctor, anyone – to legitimise the contention, in much the same way Monsanto mass-poisoned the public impression of GMOs, thus allowing otherwise untenable anti-GMO arguments to survive for longer in conversation. Humming quietly in the background is of course the government’s profitable hypocrisy: of doing nothing to ensure the problems Patanjali is using to hide from the IMA’s complaint go away, dispatching two of its senior ministers to endorse Patanjali’s products despite the near-complete absence of reason in its ‘approval’ by the government, and allowing Patanjali to justify Coronil’s existence by offering it – in vague and therefore irrefutable terms – as a potential solution for India’s ‘access to healthcare’ problems.