"We Will Rip You Apart": Supreme Court Tells Uttarakhand State Licensing Authority For Not Taking Action Against Patanjali Ayurved And Divya Pharmacy

The Bench of Justice Hima Kohli and Justice Ahsanuddin Amanullah was dealing with a Writ Petition filed under Article 32 by the Indian Medical Association (IMA), wherein, by an Order dated February 27, 2024, Patanjali was restrained from advertising or branding some of the products manufactured and marketed by it that are meant to address the ailments/diseases/conditions mentioned under the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 and the Rules. The Court had issued notice to Balakrishna and Ramdev to show cause as to why action should not be taken against him for contempt of court.

During the hearing, Justice Kohli said, "After seeing the Affidavit filed by the State authority, we have several other things to ask the State Authority.. which shows that you have been violating the Order and look at the way the blatant reply you (Patanjali) gave to the State Authority when they called upon you to withdraw all the medications which were prohibited. Look at the reply."

While referring to a letter dated March 20, 2023, written by Divya Pharmacy founded by Acharya Balkrishna to District Unani and Ayurvedic officer, the Court said, "Why did you not point the provision of law, is a regulation above the Act? Why did you not? ....Do you think you have a protective umbrella under the garb of an Order passed by the High Court (Bombay High Court)...What did you do after this reply? Next question, why did you not point out that there is a statute above the regulation which has not been stayed by any Court of law."

Justice Amanullah said, "Mr. Mehta, let us be very clear that two Acts, the stay was in regard to another Act, and that regulation was not even...Kindly tell your instructing Counsel to note down what we are saying, we have got 20 flags....you have to give a specific reply. Then if you are not able to reply, you see the Order which we give today."

Senior Advocate Mehta then submitted, "At pages 50 and 51, they (Patanjali) did undertake, My Lords! They will stop publication. Just have a look at the last para of that document..."

Justice Amanullah then said, "And after that for 2 years, under your nose, full page advertisements and you keep quiet. Somebody has to bring it to your notice. Oh! Very good." 

Justice Kohli asked, "Mr. Mehta when they (Patanjali) violated because they seem to be pretty much violating things as for what we can see. Right? They violate Orders of Court, they violate undertakings to Court. Well, they treat you in the same manner. They violate the statement made to you. What do you do?"

"We have to take action in accordance with law," the Senior Counsel responded. 

Justice Kohli said, "How? Future?... After we catch it..What did you do?" "Too late, too late," Justice Amanullah added.

Mehta answered, "My Lord! We issued show cause notice."

Justice Kohli inquired, "After that what? What did you do? The Act can only direct you, the execution is to be done by you, the State. What did you do, State Licensing Authority?" 

"My Lordships is right, the Statute gives me the power," Mehta contended. 

"Why did you not exercise it?" Justice Kohli asked.

Mehta submitted, "We will definitely exercise it."

Justice Kohli said, "Now? In future. What did you wait for?...

Justice Amanullah stated that the letter that came from the Union Ministry was very clear that the ball is in the State authority's court. "Clear-cut instructions were given in the year 2020. Ok. Then all these complaints come they are forwarded to you. You the Licensing authority followed it to the District, AYUSH officer....You write to the officer, kindly conduct an inquiry give a report. What the District officer does, he forwards the reply to you for action. You are quiet, you are satisfied with the action. You remit it back to the Union. Union says it is not in my domain. Six times this has happened, back and forth. We can understand what has happened....now the crux, the person who was the Licensing Inspector, he remains quiet, he doesn't take action against his officer, there is no report submitted by the officer. A person who is appointed subsequently also does the same. Why not all those three officers be placed under suspension right here ," he said. 

Justice Kohli added, "What is the job of the Drug officer and a licensing officer?"

"No, no, your Lordships is right," the Senior Counsel submitted. 

Justice Amanullah said, "We are going to pass an order of suspension of those officers, right here."

Justice Kohli asked the Senior Counsel, "Why is it that we should not come down on your officers as a ton of bricks? They have been filibustering...Your officers, what did they do, except pushing files?"

The Senior Counsel submitted, "May I respectfully submit, I am not at all suggesting...there is a bona fide impression my Lord! On the basis of the Interim Order passed by the Bombay High Court. On 10th Feb 2023, the Ministry of AYUSH writes to me, the Licensing Authority, that the interim order passed by Delhi and Bombay High Court pertains to Rule.."

"We have strong objection to use of bona fide impression. Please do not....don't use those words. We are not going to take it lightly, Mr. Mehta. Be very careful. Bona fide is a...we will rip you apart on bona fide. We will rip you apart," Justice Amanullah remarked. 

Justice Kohli said, "The Affidavit speaks for itself; nobody needs to say anything except look at where the correspondence has progressed in this matter. Except for pushing the file, your officers have done nothing. They just sit pretty and wait for some other authority to give instructions to them to act how? This is what your officers have done."

"Probably, you were never aware of the enactment; the Central government told you about it. It looks like that to us. You didn't know there was a Drugs and Magic Remedies Act...You are keeping your eyes shut deliberately," Justice Kohli said.

After a lengthy discussion, the Court noted, "A detailed Affidavit running into 27-pages, trying to explain the action taken by the authority on the Central government corresponding with the authority regarding objectionable advertisements of AYUSH products manufactured by Divya Pharmacy."

"Except for pushing the file the competent authorities within the State Licensing Authority have done nothing..The intent of the State Licensing Authorities was to "pass on the buck" and somehow delay the matter," the Bench observed. The Court said that in all these four-five years, the State Licensing authority has remained in slumber. 

Consequently, the Court ordered, "Besides the proposed contemnors, we are inclined to issue notices of Contempt to the deponent of the Affidavit as also his predecessor. However, we are refraining from doing so for the present. Directions issued to the predecessor of the present, Dr. Mithilesh Kumar, State Licensing Authority, to file an Affidavit explaining in the inaction on his part for a period, for entire tenure of his posting, as a licensing authority."

"All the officers holding the post of District Ayurvedic and Unani officer, Haridwar for the period between 2018 till date shall also file their Affidavits explaining the inaction on their part. Needful shall be done in four weeks," the Court further directed.

The Court today also refused to accept second Affidavit tendering unconditional apology filed by Baba Ramdev and Patanjali Managing Director (MD) Acharya Balakrishna over Patanjali Ayurved's alleged "misleading advertisements."

Accordingly, the Court scheduled the matter for further hearing on April 16. 

Cause Title: Indian Medical Association v. Union Of India [W.P.(C) No. 645/2022]