The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954: A Legal Analysis

An Analysis of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954: Balancing Public Health and Commercial Speech in India

Introduction

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter "the Act" or "DMRA") stands as a significant piece of socio-welfare legislation in India. Enacted with the primary objective of protecting public health, the Act seeks to control advertisements related to drugs and purported magic remedies that make misleading, false, or exaggerated claims. This article delves into a comprehensive analysis of the DMRA, examining its legislative intent, key provisions, constitutional validity as tested by Indian courts, and its contemporary relevance. It draws heavily upon landmark judicial pronouncements and statutory interpretations to provide a scholarly overview of the Act's operation and impact within the Indian legal framework.

The necessity for such legislation arose from concerns over the proliferation of advertisements that could lead to self-medication with potentially harmful substances or induce vulnerable individuals to rely on remedies claiming magical properties for serious ailments, thereby delaying or preventing proper medical treatment. The Supreme Court, in Indian Medical Association v. Union of India (Material 8), reiterated the legislature's concern that "such advertisements drugs/magic remedies can cause great harm to the society and therefore, it is necessary to stop such undesirable advertisements and to save the ignorant and unwary masses."

Historical Context and Legislative Intent

The Statement of Objects and Reasons of the DMRA, 1954, elucidates the core concerns that propelled its enactment. The legislature recognized the detrimental impact of misleading advertisements promoting drugs for self-medication or remedies claiming to possess supernatural or magical curative powers. The Supreme Court, in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi And Another v. Union Of India And Others (AIR 1960 SC 554) (hereinafter Hamdard Dawakhana (1960)), extensively examined the Act's purpose. The Court observed that "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" (Material 4). The preamble of the Act itself states its aim to "control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith" (Material 4).

The Act was thus not merely aimed at advertisements offending decency or morality, but fundamentally at safeguarding public health by preventing the exploitation of individuals through deceptive claims regarding diagnosis, cure, mitigation, treatment, or prevention of diseases and disorders (Material 4; Mahesh Ramnath Sonawane v. Union Of India, Bombay High Court, 2014, Material 11).

Key Provisions of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

The DMRA is structured to define the scope of its application, prohibit specific types of advertisements, and provide for penalties and exemptions. Understanding these provisions is crucial to appreciating its regulatory ambit.

Definitions: 'Advertisement', 'Drug', 'Magic Remedy'

Section 2 of the Act provides crucial definitions.

  • Section 2(a) defines "advertisement" in an inclusive and broad manner: "advertisement includes any notice, circular, label, wrapper or other document, and any announcement made orally or by any means of producing or transmitting light, sound or smoke" (Indian Medical Association v. Union of India, Material 8). This wide definition ensures that various forms of promotional material fall within the Act's purview.
  • Section 2(b) defines "drug" inclusively, covering:
    1. medicines for internal or external use of human beings or animals;
    2. substances intended for use in diagnosis, cure, mitigation, treatment, or prevention of disease;
    3. articles (other than food) intended to affect the structure or any organic function of the body; and
    4. articles intended for use as a component of any such medicine, substance, or article (Zaffar Mohammad Alias Z.M Sarkar v. State Of West Bengal, 1976 SCC 1 428, Material 12; Mahesh Ramnath Sonawane v. Union Of India, Material 11). This definition is intentionally broad to encompass a wide range of substances.
  • Section 2(c) defines "magic remedy" to include "a talisman, mantra, kavacha and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals" (Material 4).

Prohibitions on Advertisements

The core prohibitory provisions are found in Sections 3, 4, and 5 of the Act.

Section 3 prohibits advertisements of drugs for certain purposes. It specifically disallows advertisements referring to any drug in terms suggesting its use for:

  • (a) the procurement of miscarriage in women or prevention of conception in women;
  • (b) the maintenance or improvement of the capacity of human beings for sexual pleasure;
  • (c) the correction of menstrual disorder in women; or
  • (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule to the Act, or any other disease, disorder or condition which may be specified in the rules made under this Act (Hamdard Dawakhana (1960), Material 4; Zaffar Mohammad Alias Z.M Sarkar v. State Of West Bengal, Material 5, 12). For instance, "Disorders of the nervous system" is one such condition listed in the schedule (Item 14, as noted in Zaffar Mohammad, Material 5, 12).
The prosecution in The State Of Karnataka Complainant v. Dr. R.M.K Sivasubramanya Om Accused (Karnataka High Court, 1978, Material 10) was for alleged offences under Sections 3(b) and 3(a) for advertising drugs claiming to increase sexual pleasure and cure Tuberculosis.

Section 4 prohibits misleading advertisements relating to drugs. It states that no person shall take part in the publication of any advertisement relating to a drug if the advertisement contains any matter which directly or indirectly gives a false impression regarding the true character of the drug, or makes a false claim for the drug, or is otherwise false or misleading in any material particular (Hamdard Dawakhana (1960), Material 4).

Section 5 prohibits advertisements of magic remedies for the treatment of diseases and disorders specified in Section 3. It states that no person shall take part in the publication of any advertisement referring to any magic remedy which directly or indirectly claims to be efficacious for any of the purposes specified in Section 3 (Hamdard Dawakhana (1960), Material 4).

Section 6 prohibits the import into and export from India of certain advertisements which contravene the Act's provisions (Hamdard Dawakhana (1960), Material 4).

Exemptions and Savings

The Act provides certain exemptions under Sections 14 and 15.

Section 14 is a saving clause. It excludes from the Act's purview:

  • Advertisements sent confidentially in the prescribed manner to registered medical practitioners.
  • Advertisements circulated among wholesale or retail chemists for distribution among registered medical practitioners or to hospitals or laboratories.
  • Treatises or books dealing with diseases from a bona fide scientific or social standpoint.
  • Advertisements printed or published by the Government or with the previous sanction of the Government (Hamdard Dawakhana (1960), Material 4).

Section 15 empowers the Central Government to grant exemptions from the application of Sections 3, 4, 5, and 6 in respect of any specified drug or class of drugs, or magic remedy, if it is satisfied that such advertisement is required in the public interest (Hamdard Dawakhana (1960), Material 4).

Penalties and Enforcement

Section 7 of the Act makes contravention of any of the provisions of the Act or the rules made thereunder punishable with imprisonment which may extend to six months, or with fine, or with both, on first conviction. For a subsequent conviction, the punishment may extend to imprisonment for one year, or with fine, or with both (Zaffar Mohammad Alias Z.M Sarkar v. State Of West Bengal, Material 5, 12).

Section 8, which originally empowered authorities to seize contravening advertisements, was struck down by the Supreme Court in Hamdard Dawakhana (1960) for violating Articles 21 and 31 of the Constitution due to lack of adequate safeguards (as summarized in Material 3).

Constitutional Scrutiny and Judicial Interpretation

The DMRA, particularly its restrictions on advertisements, has been subjected to constitutional scrutiny, primarily concerning the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

Freedom of Speech and Commercial Advertisements

The seminal case in this regard is Hamdard Dawakhana (1960). The petitioners challenged the Act as violative of Article 19(1)(a). The Supreme Court held that the advertisements prohibited by the DMRA were not protected under Article 19(1)(a). The Court reasoned:

"An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed... When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas - social political or economic or furtherance of literature or human thought, but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines." (Citizen Consumer And Civil Action Group v. The State Of Tamil Nadu, Madras High Court, 2001, Material 7, quoting Hamdard Dawakhana (1960)).
The Court distinguished such commercial advertisements, aimed at promoting trade in commodities deemed harmful to public interest, from speech that propagates ideas (Hamdard Dawakhana (1960), Material 3, 9, 15). It was held 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 freedom of speech" (Aarti v. State of Punjab, Punjab & Haryana High Court, 2009, Material 9, quoting Hamdard Dawakhana (1960)).

However, the understanding of "commercial speech" evolved. In Tata Press Ltd. v. Mahanagar Telephone Nigam Limited And Others (1995 SCC 5 139) (Material 2), the Supreme Court, while dealing with advertisements in yellow pages, affirmed that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)(a). It can be restricted only in accordance with law enacted under Article 19(2). The Court in Tata Press Ltd. distinguished Hamdard Dawakhana (1960), noting that the latter dealt with advertisements for drugs and magic remedies which were considered objectionable and harmful. The Tata Press Ltd. judgment clarified that while all commercial speech is protected, the state can impose reasonable restrictions, particularly to prevent misleading or harmful advertisements. The earlier view in Hamdard Dawakhana (1960), that commercial advertisements do not fall under Article 19(1)(a) at all, was thus nuanced by later judgments like Indian Express Newspapers (Bombay) Private Ltd. And Others v. Union Of India And Others (1985 SCC 1 641) (Material 15) and Tata Press Ltd. (Material 2), which recognized commercial speech as protected but subject to greater regulation if it is misleading or pertains to harmful products/services.

Delegated Legislation and Vagueness

Another significant aspect of the Hamdard Dawakhana (1960) judgment was its ruling on delegated legislation. Section 3(d) of the DMRA empowered the Central Government to add to the list of diseases/conditions for which advertisement of drugs was prohibited. The Supreme Court struck down this clause as an instance of excessive delegation, finding that it conferred uncanalised and uncontrolled power on the executive without sufficient legislative guidance or policy (Hamdard Dawakhana (1960), Material 3, 16; Confederation Of Indian Alcoholic Beverage Companies v. State Of Bihar, Patna High Court, 2016, Material 17). The Court distinguished this from permissible conditional legislation, emphasizing that the legislature must lay down the policy and principles for the guidance of the delegate (Mohmedalli And Others v. Union Of India And Others, AIR 1964 SC 980, Material 16, which discussed and distinguished Hamdard Dawakhana (1960) on this point in a different statutory context).

Procedural Aspects: Limitation for Prosecution

The issue of limitation for initiating prosecution under the DMRA has also been adjudicated. In Bharat Damodar Kale v. State of A.P ((2003) 8 SCC 559) (Material 13, 14), the Supreme Court clarified that the crucial date for computing the period of limitation under Section 468 of the Code of Criminal Procedure, 1973, is the date of filing of the complaint or initiation of prosecution, not the date on which the Magistrate takes cognizance of the offence. In that case, a complaint under the DMRA was filed within the one-year limitation period, although cognizance was taken later. The Court held the prosecution to be within time. This principle was reiterated in Sarah Mathew v. Institute Of Cardio Vascular Diseases (2014 SCC 2 62) (Material 14).

Contemporary Relevance and Challenges

The DMRA continues to be highly relevant in an era of burgeoning healthcare markets and pervasive advertising across various media, including digital platforms. The Act's objective to protect consumers from misleading health claims remains paramount.

The broad definition of "advertisement" under Section 2(a) (Material 8) is particularly pertinent in the digital age, encompassing online promotions and social media endorsements. However, challenges in enforcement persist, especially concerning the vast and often unregulated online space. The Supreme Court's observations in Indian Medical Association v. Union of India (Material 8) about the need for effective implementation of the Act highlight ongoing concerns.

The DMRA also interacts with other regulatory frameworks. For instance, Rule 7(5) of the Advertising Code under the Cable Television Networks Rules, 1994, prohibits advertisements that are likely to lead the public to infer that a product has "some special or miraculous or super-natural property or quality, which is difficult of being proved" (Rajendra v. Union Of India, Bombay High Court, 2021, Material 6). This aligns with the DMRA's objectives. The Consumer Protection Act also provides an avenue for consumers aggrieved by misleading advertisements.

The Act's focus on preventing self-medication and discouraging reliance on unproven remedies is crucial for public health outcomes. As observed in Mahesh Ramnath Sonawane v. Union Of India (Material 11), the Act covers all advertisements which are objectionable or unethical and are used to promote self-medication and self-treatment, and its definition of 'drug' has a very wide sweep.

Despite its intent, challenges remain, such as the need for continuous vigilance by regulatory authorities, adapting enforcement mechanisms to new advertising media, and ensuring that exemptions are not misused. The lack of complaints from the public, as noted in one instance by the Senior Superintendent of Police, Chandigarh, regarding advertisements for magic remedies (Aarti v. State of Punjab, Material 9), might also indicate a need for greater public awareness about the Act's provisions and remedies.

Conclusion

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, represents a critical legislative effort in India to safeguard public health against the perils of misleading and unsubstantiated claims in advertisements for drugs and supposed magic remedies. The judiciary, particularly through the landmark decision in Hamdard Dawakhana (1960), has largely upheld the Act's constitutionality while ensuring that legislative powers are exercised within constitutional bounds, particularly concerning delegated legislation and procedural fairness.

While the Act's core principles remain robust, its effective implementation in the face of evolving advertising techniques and media landscapes poses continuous challenges. The balance between protecting consumers from harmful advertisements and respecting the freedom of commercial speech, as clarified by subsequent judicial pronouncements, continues to be a delicate one. The DMRA, therefore, remains an essential tool in the regulatory arsenal, underscoring the State's commitment to public welfare and rational healthcare choices in India.

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