Almost two years after Patanjali published a series of advertisements in English language newspapers for its ayurvedic products – claiming to treat a variety of disorders such as hypertension, diabetes, cholesterol and liver disorders – the Supreme Court has finally cracked the whip on the company.

While the spectacle playing out before the court has provided sufficient fodder for social media and journalists, it is important to widen the discussion to fix accountability on all those who directly and indirectly enabled Patanjali’s endeavour. There is plenty of blame to go around and it is important to acknowledge this, lest we think that the responsibility of this fiasco lies solely with Patanjali or the Uttarakhand Drug Controller.  

First on the list are the newspapers that eagerly published Patanjali’s advertisements, many on the front page. 

Some of these English language newspapers like The Hindu and The Indian Express have now published editorials in support of the Supreme Court’s action against Patanjali. (The Times of India also published these advertisements but appears to have maintained an editorial silence on the issue thus far.) 

While we understand that the editorial and marketing teams in both these newspapers are separate, surely there has to be some acknowledgment from the editorial rooms regarding the role played by their colleagues in knowingly publishing advertisements in blatant violation of the law. Under the Drugs & Magic Remedies (Objectionable Advertisement) Act, 1954, it is not just Patanjali but also the press which is liable for publishing misleading advertisements for drugs purporting to treat conditions mentioned in that law. 

From a legal standpoint, all the newspapers and media outlets that published and/or aired these advertisements are as liable as Patanjali for violating the law. At the very least, will these newspapers make a public commitment to not repeat this folly?

Second on the list are the regulators. 

So far, most attention has been focussed on the Uttarakhand Drug Controller which issued the licence to manufacture these “drugs” in question. But this regulator does not have any jurisdiction over advertisements published in other states by Patanjali. Most of Patanjali’s advertisements were published in newspapers in New Delhi, Kerala, Telangana, Tamil Nadu and many others. Drug controllers in each of these states had the jurisdiction to initiate prosecutions under the Drugs & Magic Remedies (Objectionable Advertisement) Act when these were published. Many of these states are governed by political parties other than the BJP. 

So, why then did not a single state take action? This includes Kerala, where the CPIM is in power – a political party that has repeatedly locked horns with Baba Ramdev. Why has it failed to initiate legal action against Patanjali for violating the law when it mattered the most?

Third on the list is the judiciary, which stayed a new rule brought in by the government to regulate advertising by the Ayush industry. 

This rule had been brought in by the Ministry of Ayush after relentless pressure from the Parliamentary Standing Committee on Health to do something about misleading advertisements being published by the ayurvedic industry. In response, the ministry had proposed Rule 170 which created a pre-publication vetting mechanism for all Ayush-related advertisements. Despite immense pushback from the industry, Rule 170 became law in late 2018 after the Parliamentary Standing Committee repeatedly hauled up the Ministry of Ayush. 

In early 2019, the industry challenged the constitutionality of the rule before the Bombay High Court and the Delhi High Court on the grounds that it was impinging on their fundamental right to free speech. The companies who challenged the rule were FMCG companies like Reckitt Benckiser, Perfetti Van Melle India and Mankind Pharma as well as industry groups such as the Ayurvedic Drug Manufacturers Association). 

Despite the public health ramifications, the Bombay High Court granted a stay of the rule, pending final adjudication. After four years of adjournments before the Delhi High Court and Bombay High Court, the government informed the courts in September 2023 that it was contemplating withdrawing the rule in question. 

If either of the two high courts had ruled on the issue swiftly, perhaps Patanjali’s advertisements would have been nixed before their publication.    

Fourth on the list is the bureaucracy of the Ministry of Health and Family Welfare and subsequently the Ministry of Ayush, which was created by the Modi government in its first term. They have failed completely in creating a regulatory framework that requires the Ayush industry to generate data on safety and efficacy post rigorous double-blinded clinical trials like most other “medicines” are required to do. 

In 2010, the government introduced Rule 158B which imposed on the Ayush industry, a requirement to demonstrate evidence of safety and effectiveness for new drugs that they were introducing. But there was no clarity on the manner in which such evidence was to be generated. For example, was the evidence to be generated through double-blinded randomised clinical trials or could companies devise their own criteria to generate such evidence? After a series of flip-flops, the Ministry of Ayush in 2018 clarified that Rule 158B did not require the industry to conduct any clinical trials. Instead, the ministry concluded that it would suffice if the Ayush industry conducted “pilot studies”, which is a phrase that finds mention in Rule 158B. 

Till date, we have no clue on what the ministry means by “pilot studies”. So technically, as long as Patanjali meets this vague criterion, whatever it may be, it can continue to sell its products at the centre of this controversy, even if it cannot advertise them as “drugs”.  

In short, Patanjali has thrived until today because of a complete failure of systems where the media, the judiciary and the bureaucracy failed to do the basic minimum expected of them. The kind of advertisements sponsored by Patanjali are routinely also published by the Ayush industry; the only reason that the advertisements published in 2022 attracted this much attention was because they were published in English language newspapers. 

Cracking down on Patanjali and Ramdev is not going to fix the daily onslaught of misleading advertisements by the rest of the Ayush industry, especially in local vernacular language media. The judiciary cannot fix this problem by itself. India needs a political party to take on this cause because the Ayush industry is a behemoth that is backed by a very powerful bureaucratic lobby within the government – the Ministry of Ayush.  Until such time, despite the occasional tongue-lashing from the courts, this anathema will sadly continue. 

The writers are co-authors of The Truth Pill: The Myth of Drug Regulation in India.

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