The most misunderstood and subverted piece of legislation, Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, is again under a sudden spotlight due to the dramatic claim of Patanjali’s ‘Coronil’ on COVID-19. This has kicked up many people’s imagination for and against Patnajali. This piece is intended to create awareness on the said legislation and how often it gets subverted in spite of its laudable intent.
It is reminiscent of Jonathan Swift’s famous quote, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”
Like many other legislations, the constitutional validity of this Act came to be challenged. This issue was first considered by the Supreme Court of India, in Hamdard Dawakhana (WAKF) Lal Kuan, Delhi and another versus Union of India and Others. The petitioners said that the Act violated the fundamental rights guaranteed under Article 19(1)(a), 19(1)(f), 19(1)(g), and Article 14, 21 And 31 of the Constitution.
The Supreme Court, in light of the several other precedents, considered itself trite that whenever the constitutional validity of an Act is challenged on the grounds of violation of Part III of the Constitution, the subject matter is necessarily to be examined in the light of the true intent of the legislation. The true intent of such legislation could be traced only after considering the factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which is intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy. The Supreme Court, thereafter, was of the considered opinion that the Act is constitutionally valid, barring few provisions of the Act.
In terms of the Statement of Objects and Reasons of the Act, it indicates that on account of the increase in the number of objectionable advertisements, the alleged cures and the risk of self-medication — mostly indulged by quacks without any structured knowledge on an important subject such as medicine — driven only by motives of profiteering using fear as the only capital, this Act came to be enacted to curb such menace.
Circumstances leading to the enactment of this Act could be traced back to the year 1927, wherein a resolution came to be adopted calling for the then Central and the Provincial government to take immediate measures for controlling the indiscriminate use of medical drugs and for standardization of preparation and for the sale of such drugs. Pursuant to such resolution, the then government of India in the year 1930, appointed the Drugs Enquiry Committee under the Chairmanship of Sir RN Chopra (called the Chopra Committee) to inquire into such quality and the strength of the drugs so exported.
The Chopra Committee made categorical observations in respect of alluring advertisements and the possibility of gullible masses falling prey to such attractive propagandas of specific cures in utterly hopeless cases. This propaganda might cast a deep impression, especially on the weak minds, which consequently led to self-diagnosis and self-medication, it said.
The government, taking stock of the recommendation, set up a Bhatia Committee in the year 1953, with the primary objective to exercise control over objectionable and unethical advertisements, as practised by the pharma industry.
This combined effect of acting upon the recommendations paved the way to the enactment of the Act in question, the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (Magic Remedies Act).
Thus, it could be deciphered that upon the overall consideration of the aforesaid factors this Act came to be enacted to curtail the evil of questionable medicines with false claims solely with the motive of profiteering.
Section 4 of the Act categorically prohibits the publication of any advertisement of a drug that has a false impression, false claim, or which is otherwise false or misleading of any material in particular.
Section 5 of the Act further prohibits any sort of advertisement of magic remedies for any diseases as provided for. It may be further pointed out that in this regard, that in terms of Section 7 of that Act, any contravention of provisions of the Act shall attract penalty with imprisonment for a period of six months or with both in respect of the first conviction and the further imprisonment up to one year or with fine or both in respect of subsequent convictions. There is, however, a proposal made to amend the Act to enhance the penal provisions, which is pending considerations.
In spite of deterrent provisions, it was usual practice of quacks to continue to hoodwink the gullible masses and as well to circumvent the said penal provisions.
For example, while the law categorically prevented any magic remedies propagated to cure asthma, many quacks continued to advertise in vernacular languages — A-Cough, wherein A stands for asthma, thereby rendering the piece of legislation as a case of “Operation success, but the patient is dead.”
Even in Australia, there is a legislation similar to the Drugs and Magic Remedies (Objectionable Advertisement) Act, called the Therapeutic Goods Act, 1989. This law has one particular provision providing for penalty both imprisonment, as well as monetary penalty in the likely event of any such injury, as harm has been caused to any person who has used those medicines, solely placing reliance upon such advertisements.
In the current state of distress, this legislation could be best regarded as an enigmatic piece of legislation. The lack of enforcement machinery to achieve those objects is the inherent flaw therein. Claims of bold flutters of being a cure for the pandemic is nothing short of capitalizing on the fear factor of the public at large and not minding the risk of unforeseen repercussions including death, due to such deceiving propaganda. As we see many popular television channels themselves air such advertisements on their platform, making people fall prey to such advertisements.
At the same time, if the cure as propagated in the advertisements as aired is only a placebo effect, no harm could happen.
A few decades ago, some quacks claimed a magic cure for asthma and administered their patients with heavy dosage of steroids. It initially provided a sense of relief for the patients, but over a period of time, resulted in Cushing syndrome and moon face syndrome, which is a consequence of prolonged usage of steroids, diminishing people’s immune response and making them susceptible to all kinds of infections.
Another major worry in herbal preparations is, there is no standardization of ingredients. Therefore, every batch of medicine might have a differing potency of plant extracts, making the claimed cure itself questionable. However, any untoward side effect that could plausibly arise which is beyond the comprehension of a human mind, the entire nation would be forced to counter one more challenge or a disaster.
It is expedient that our legislators seriously consider establishing an authority comprising learned experts to review such draft advertisements and accord mandatory approval prior to the actual publication of such advertisements. The examination of formulations, as proposed in the drug, should also be an essential factor for the grant of approval for the publication thereof. This model is prevalent in Canada, wherein a Drug Advisory Board, comprising legal professionals, qualified medical professionals, and advertising professionals, has been established to review such advertisements.
The advent of this novel system by our government could certainly pave the way to curb the menace what the legislation actually intended to cure.
Sudharsan Suresh is an advocate practising at the High Court of Karnataka.