During the contempt case hearing against Patanjali for disseminating deceptive advertisements, the Supreme Court on Tuesday (April 23) inquired of the Union Government the rationale behind issuing a letter to State/UT licensing authorities. This letter restrained them from taking action against advertisements related 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 addressing the letter dated August 29, 2023, issued by the Ministry of Ayush to all State/UT Licensing Authorities and Drug Controllers of AYUSH. This correspondence pertained to the exclusion of Rule 170 (and its related provisions) of the 1945 Rules.

This letter was based on a recommendation from the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board (ASUDTAB) made on May 25, 2023, to remove the provision. It instructed all Licensing Authorities not to initiate or take action under Rule 170 in accordance with this recommendation.

Rule 170 prohibits the advertisement of Ayurvedic, Siddha, or Unani drugs without approval from licensing authorities. Importantly, the letter only included the approved minutes of the ASUDTAB meeting, while the final notification regarding the omission of the Rule was yet 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 pressed the Union to provide insight into the factors that led to the decision to omit Rule 170. Additionally, the judge expressed apprehension that removing Rule 170, which previously imposed restrictions on advertisements before publication, might mean that ads could now only be scrutinized after publication under the Drugs and Magic Remedies Act.

In a stern warning, Justice Amanullah questioned the Union's counsel, asking whether it was within their jurisdiction or authority to instruct not to act on the law until it reaches a logical conclusion. He queried if such action wasn't arbitrary and a colorable exercise of power. Furthermore, he cautioned that if such statements were made, those responsible could be held liable as abettors to the crime.

Addressing Additional Solicitor General KM Nataraj, who appeared later via video conference, Justice Amanullah expressed astonishment that the Union had restrained action under Rule 170 despite the absence of a final notification omitting the provision. He emphasized that such action couldn't be taken until the law was officially removed, cautioning that serious consideration would be given to the matter on the next hearing date.

The bench also highlighted that many parties were able to obtain favorable orders based on the aforementioned letter. It was noted that even Patanjali had mentioned the stay order from the Bombay High Court, attributing it to 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.