Regulating Health-Related Advertisements: A Legal Analysis of India's Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

Introduction

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter "the DMRA" or "the Act") stands as a pivotal piece of public health legislation in the Indian legal landscape. Enacted to combat the pernicious effects of misleading and unsubstantiated claims in the advertisement of medicines and purported remedies, its primary objective is twofold: first, to control the advertisement of drugs for certain diseases and disorders to discourage self-medication, and second, to prohibit advertisements for "magic remedies" that prey on the vulnerable by promising miraculous cures. The Act operates within a broader statutory framework governing pharmaceuticals, most notably the Drugs and Cosmetics Act, 1940, and seeks to protect the public from exploitation and the dangers of unguided medical treatment. This article provides a comprehensive analysis of the DMRA's legislative intent, its constitutional journey, its key operative provisions, and the evolving jurisprudence surrounding its enforcement, drawing upon landmark precedents and contemporary judicial interpretations.

Legislative Intent and Historical Context

The impetus for the DMRA can be traced to concerns articulated in the Chopra Committee Report, which heavily influenced the enactment of the Drugs Act in 1940. The Supreme Court of India, in its seminal judgment in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi And Another v. Union Of India And Others (1959), extensively quoted this report, highlighting the societal problem the legislation sought to address. The report noted that the popularity of many patent and proprietary medicines was not due to their efficacy but to "ingenious propaganda, clever and attractive dissemination of their supposed virtues and wide and alluring advertisements." It pointed to the "credulity and gullibility of the masses," who were often duped by advertisements promising "certain cures" for hopeless cases, leading to dangerous self-diagnosis and self-medication (Hamdard Dawakhana (Wakf) Lal Kuan, Delhi And Another v. Union Of India And Others, Supreme Court Of India, 1959).

The Supreme Court, therefore, ascertained that the "true character of the legislation" was not merely to curb advertisements offending decency or morality. Instead, "the object truly and properly understood is to prevent self-medication or treatment by prohibiting instruments which may be used to advocate the same or which tend to spread the evil" (Hamdard Dawakhana, 1959). This places the DMRA squarely in the domain of public health regulation, complementing other statutes like the Drugs and Cosmetics Act, 1940, which regulates the import, manufacture, and sale of drugs (STATE OF RAJASTHAN & ORS. v. VATAN MEDICAL & GENERAL STORE & ORS., 2001).

Constitutional Scrutiny: The Hamdard Dawakhana Doctrine

The constitutional validity of the DMRA was decisively tested in the Hamdard Dawakhana case of 1959 (reported at 1960 AIR SC 554). The petitioners challenged the Act as an unreasonable restriction on their fundamental rights, particularly the freedom of speech and expression under Article 19(1)(a) and the right to practice a profession and carry on trade under Article 19(1)(g).

Freedom of Speech v. Commercial Advertisement

The most significant outcome of the Hamdard Dawakhana judgment was the distinction drawn between freedom of speech and commercial advertisement. The Supreme Court held that advertisements prohibited by the DMRA, which are an integral part of business, do not fall within the concept of freedom of speech. The Court reasoned that such advertisements relate to commerce or trade and not the propagation of ideas. This principle has been consistently followed, as affirmed by the Punjab & Haryana High Court, which noted that "advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of Article 19(1)(a)" (Aarti v. State of Punjab through Principal Secretary and others, 2009).

Pith and Substance and Legislative Competence

Employing the doctrine of "pith and substance," the Court examined the true nature and character of the DMRA to ascertain its legislative competence. It concluded that the Act's core purpose was the regulation of public health, a legitimate legislative field. The Court dismissed the argument that the Act was solely aimed at matters of indecency, observing that while some prohibited advertisements related to sexual ailments, the overall objective was the comprehensive prevention of self-medication for a range of serious conditions (Hamdard Dawakhana, 1960).

Unconstitutional Delegation and Severability

While upholding the general constitutionality of the Act, the Supreme Court struck down specific provisions. Section 3(d), which empowered the Central Government to add any disease or condition to the Schedule by notification, was declared unconstitutional on the grounds of excessive and unguided delegation of legislative power. Furthermore, Section 8, which granted Gazetted Officers wide powers to seize articles without adequate safeguards, was held to be an unreasonable restriction and violative of Articles 21 and 31 of the Constitution. Importantly, the Court applied the doctrine of severability, allowing the valid provisions of the Act to remain in force, thereby preserving the core of the legislation (Hamdard Dawakhana (Wakf) Lal Kuan, Delhi And Another v. Union Of India And Others, Summary, 1959).

Analysis of Key Provisions and Prohibitions

Scope of "Drug" and "Advertisement"

The DMRA's prohibitions apply to advertisements concerning "drugs" and "magic remedies." The term "drug" is not defined in the DMRA but draws its meaning from the Drugs and Cosmetics Act, 1940, which provides an inclusive definition covering all medicines for internal or external use for humans or animals and substances for the diagnosis, treatment, mitigation, or prevention of disease (Bharat Biotech International Limited, Hyderabad And Another v. A.P Health And Medical Housing And Infrastructure Development Corporation, Hyderabad And Others, 2002). The definition of "advertisement" under the DMRA is exceptionally broad, including "any notice, circular, label, wrapper or other documents and any announcement made orally or by any means of producing or transmitting light, sound or smoke" (Suresh Kumarji Sharma & Anr.… v. State Of A.P…., 2005). This expansive definition ensures that claims made even on product packaging fall within the Act's purview.

Prohibition on Drug Advertisements (Section 3)

Section 3 is the cornerstone of the Act. It prohibits any person from taking part in the publication of any advertisement referring to a drug in terms which suggest its use for a list of specified purposes. These include, inter alia, the procurement of miscarriage in women, the maintenance or improvement of sexual capacity, or the diagnosis and cure of diseases and conditions listed in the Schedule to the Act. Prosecutions are frequently initiated under this section for advertisements related to sexual pleasure (The State Of Karnataka Complainant v. Dr. R.M.K Sivasubramanya Om Accused ., 1978) or for conditions like rheumatism listed in the Schedule (Suresh Kumarji Sharma, 2005).

Prohibition on Misleading Advertisements (Section 4) and "Magic Remedies" (Section 5)

Section 4 prohibits misleading advertisements relating to drugs, which gives a false impression or makes a false claim for the drug. Section 5 targets superstition by prohibiting advertisements for "magic remedies," defined as any talisman, mantra, kavacha (amulet), or any other charm which is alleged to possess miraculous powers. These provisions are frequently invoked in Public Interest Litigations (PILs) seeking to curb the promotion of superstition and unscientific cures through mass media (Paras Gupta Petitioner v. Union Of India And Ors. S, 2015; G.JAYAPRAKASH v. STATE OF KERALA, 2021).

Enforcement and Adjudication

Penalties and Prosecution

Contravention of the Act's provisions is a cognizable offence punishable under Section 7 with imprisonment, fine, or both. The enforcement machinery, typically Drug Inspectors, initiates prosecution based on evidence such as published advertisements or offending labels seized from premises (The State Of Karnataka, 1978). However, securing a conviction is contingent on robust evidence. In several instances, accused persons have been acquitted due to failure of the prosecution to prove its case beyond a reasonable doubt, such as proving that the accused was responsible for the publication of the advertisement (ISMAIL SHAH SULEMAN SHAH... v. THE STATE OF MAH.THR. PSO NAGPUR, 2019).

Corporate Liability (Section 9)

Section 9 of the DMRA introduces vicarious liability for offences committed by companies. It stipulates that where an offence is committed by a company, every person who, at the time of the offence, was in charge of, and responsible to, the company for the conduct of its business, shall be deemed guilty. The Andhra Pradesh High Court, in Suresh Kumarji Sharma (2005), conducted a detailed analysis of this provision. It held that a director who is part of the policy-making body of a company can be prosecuted, and the question of whether they were actually in charge of day-to-day affairs is a matter for trial. The court rejected a hyper-technical reading of the complaint, stating that if the substance of the allegations implicates the directors, the prosecution must proceed. A plea for discharge can be made at the trial stage by producing evidence to the contrary. This robust interpretation prevents corporate officials from easily evading responsibility for illegal advertisements.

The Role of Public Interest Litigation (PIL)

In recent years, the judiciary has seen a rise in PILs aimed at enforcing the DMRA, reflecting public concern over the proliferation of misleading advertisements, especially on television and digital platforms. Courts have been called upon to direct authorities to take action against offending advertisements and to curb the promotion of self-medication (Mahesh Ramnath Sonawane v. Union Of India, 2014). These PILs have been instrumental in compelling regulatory bodies to act against violations of the DMRA and associated codes, such as the Cable Television Network (Regulations) Act, 1995 (Paras Gupta, 2015), ensuring the Act's continued relevance in the modern media landscape.

Conclusion

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, remains a crucial instrument of public health policy in India. Born from the need to protect citizens from dangerous self-medication and fraudulent health claims, its legislative framework has been overwhelmingly validated by the judiciary. The landmark decision in Hamdard Dawakhana established a vital constitutional doctrine: that the state's power to regulate harmful commercial speech for the public good is a legitimate exercise of its authority and does not infringe upon the fundamental right to freedom of speech. While enforcement continues to face challenges, particularly in proving culpability in complex corporate structures and adapting to new forms of media, the Act's broad definitions and the judiciary's purposive interpretation have maintained its efficacy. Supported by active enforcement and vigilant public interest litigation, the DMRA endures as a vital safeguard for consumer welfare and public health in India.