Justice B.V. Nagarathna, Justice K. V. Viswanathan, Supreme Court
How Will Stay On Omission Of Rule Revive Rule?: Supreme Court Expresses Surprise While Vacating Its Interim Order In IMA's Plea
|The Court also questioned the Amicus Curiae on why the Rule that was omitted singled out Ayurveda when no such restriction existed on Allopathy.
The Supreme Court today expressed surprise at the interim order passed a two judge bench in the plea filed by the Indian Medical Association against Patanjali Ayurved of Baba Ramdev, while vacating the said interim order. The Court also questioned the Amicus Curiae on why the Rule that was omitted singled out Ayurveda when no such restriction existed on Allopathy.
The Supreme Court vacated the interim stay granted on August 27, 2024, on the omission of Rule 170 of the Drugs and Cosmetics Rules, 1945, while disposing of the Indian Medical Association’s petition concerning alleged misleading advertisements of Ayurvedic, Siddha, and Unani drugs.
The Bench of Justice B.V. Nagarathna and Justice K.V. Viswanathan today vacated the interim order passed by the Bench of Justice Hima Kohli and Justice Sandeep Mehta while closing the petition. Additional Solicitor General Archana Pathak Dave, appearing for the Ayush Ministry, said that the Ministry has filed an application to vacate the interim order.
During the hearing, Justice Viswanathan asked, "What is the stay? Stay on omission? How will it revive the old rule?"
"It has and the Court has passed half a dozen orders in the beginning of this year, implementing the rule", replied Amicus Curiae Shadan Farasat, supporting the interim order.
"Suppose a statute is repealed and the repeal is stayed, will it revive the statute?", Justice Viswanathan asked.
Amicus Curiae Shadan Farasat drew the Court’s attention to the Ministry of Ayush’s Notification dated July 1, 2024, which had omitted Rule 170. He read out the Rule in full, noting that sub-rule (1) imposed a prohibition on advertising such drugs for “diagnosis, cure, mitigation, treatment or prevention of any disease,” while sub-rule (2) allowed limited exceptions after allotment of a Unique Identification Number.
Farasat submitted, “Clause one is a prohibition. Clause two is the exception… now the Ayurvedic Siddha unit shall be advertised for the purpose other than specified in sub-rule one after the allotment of the unique identification number.”
Is there a rule like this prohibiting advertisement for Allopathy, the Court asked the Amicus Curiae.
The Counsel for an intervenor then submitted that in Allopathy, approval is given for drugs after testing, but there is no such mechanism for Ayurveda. He submitted, “The drugs are tested and approvals are given. Here, there is no approval. And you say, this will cure Covid, this will cure diabetes. There are millions of people who are illiterate, but look at the misuse. That is why the Court says this is contrary to our directions. This repeal, if you repeal, it will cause havoc. So therefore, the repeal is stayed.”
Justice Nagarathna posed the question, “If omission is stayed, will it (rule) revive?” She then answered, “Once it is omitted, it goes out of the statute by a legislative device.” Justice Viswanathan added the key remark, “A repeal of a repeal will not revive (the rule).”
That may be a question, conceded the Amicus Curiae.
Closing the IMA’s petition, the Bench today said, “By various orders, the prayers of the Writ Petition have been achieved and do not survive for further consideration. Hence, the writ petition stands disposed… Liberty is allowed to the parties to approach the High Court if they have any problems with the omission of Rule 170. Consequently, the interim order dated August 27, 2024 stands vacated.”
The omission of Rule 170 had been stayed by a Bench of Justice Hima Kohli and Justice Sandeep Mehta in an order dated August 27, 2024, after the Court found the Ministry’s move in breach of its earlier directions. The Bench observed, “Instead of withdrawing the letter dated August 29, 2023, for reasons best known to the Ministry, the Notification dated July 1, 2024 has been issued to omit Rule 170 from the Rules, 1945 which runs contrary to the very directions issued by this Court.”
Following this, the Court held, “Till further orders, the effect of the Notification dated July 1, 2024, omitting Rule 170 shall stand stayed. In other words, till further orders are passed, Rule 170 shall remain on the statute book and in force.”
It was in this matter was the Court had ordered Swami Baba Ramdev to personally appear before the Court for issuing advertisements and statements to media in violation of a previous interim order of the Court.
The August 27, 2024, order also recorded that the notification omitting Rule 170 had been issued despite the Court’s May 7, 2024, observation that an administrative letter could not put the Rule on hold while it remained enforceable in law, and after the Additional Solicitor General had assured that the August 29, 2023 letter would be withdrawn.
Cause Title: Indian Medical Association v. Union Of India [W.P.(C) No. 645/2022]