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advertisements in particular running away with bullshit has been particularly useful because the laws are not so much outdated as unable to respond to the new ways in which advertisers are twisting words, taking advantage of grey areas, and, generally, “telling a lie in a way that it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.