This article has been written by Ashutosh Singh, a student of BA.LLB(H) at Amity Law School, Kolkata. This article is an effort to explain the provisions of the Objectionable Advertisements Act, 1954.

Introduction

India is a vast country with rich cultural heritage and stories about wonder treatments, medicines and remedies using magic potions and powders. Earlier, it used to be a word of mouth that people heard of these magic remedies, sometimes using talisman, mantra, kavacha, etc. which was alleged to possess miraculous powers for treatment, cure, etc.

However, for the past few years, we have seen a shift in the way these products are openly marketed. Their advertisements have occupied space in every kind of media which people are exposed to. They are objectionable advertisements relating to diseases, treatments, cure advertised on television and newspapers which misleads the general public. Due to these kinds of advertisements, innocent people get trapped into the false belief which results in a huge loss of their money, time and causes them immense harm. The ignorance and superstitious beliefs of people are being exploited. We even have big companies selling such products and pumping in a lot of money in their advertisements.

One is flooded with advertisements claiming to provide immunity, make the users fairer, increase the height of children miraculously, reduce weight and cure some diseases like diabetes and cancer etc. These products are brought into the market without much research and data-based credibility. However, their advertisements claim success stories and even have testimonials from people to vouch for them.

But in reality, the picture is very different. These drug industries not only cheat the users of their product but also mislead them by claiming that the drug has magical power. They make these false claims to obviously dupe innocent and gullible people and make huge profits from such businesses.

To protect the interest of the people and protect them from being exploited, an Act was legislated to control the advertisements of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities to provide for matters connected therewith. In India, this has been done through the Act- Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. Henceforth, mentioned as the Act in this article. 

Overview of the Act

The citation of the Act is Act No. 21 of 1954. The present territorial extent is the whole of India (along with Jammu and Kashmir which was included after the removal of Article 370 in the year 2019). The bill was passed on 30th April 1954 and became and commenced on 1st April 1955. The Act has 19 sections and a proposal for its amendment has been presented on 3rd February 2020. 

Salient features and objectives

Objectives

Unawareness about the actual benefits and dangers in using the so-called ‘magic remedies and drugs’ just by self-medication has resulted in many unfortunate incidents. Generally, the claim in these advertisements is convincing but lacks actual proof or research to back it. It is a way of exploiting the innocent and gullible. So, with an objective to control the tall claims of drugs in certain cases and to prohibit the advertisement for remedies alleged to possess magic qualities and to provide for matters connected therewith, this Act was enacted in 1954. 

Salient features

Some of the salient features and provisions of this Act are as follows:

• Section1 of the Act deals with the Title, Extent and Commencement.
• Section 2 deals with the definitions of some words used in the Act such as Advertisement
• Drug and what all it includes
• What is the so-called ‘magic remedy’ and what it includes
• Who is a registered medical practitioner, who is entitled to be registered as a medical practitioner under a law
• What does ‘taking part’ in any particular advertisement mean?
• Sections 3 to 6 describe the prohibitions under this Act, about which you will read in another section of this article in detail.
• Section 7 provides for the penalty whenever a person contravenes any of the provisions of this Act.

• First conviction: Imprisonment which may extend up to six months or fine or with both.
• Subsequent conviction: Imprisonment may extend up to 1 year or fine or with both.

• Section 8 has provision for powers of entry or search and seize.

1. It has powers of entry or searches by any gazetted officer authorized by the State Government within the local limits of the area for which he has authority.
2. The section empowers the gazetted officer and his team of assistance to search any area, at any time, any place in which he has reason to believe that an offence under this Act has been or is being committed and which falls under his jurisdiction.
3. The gazetted officer has the power to seize only those documents, articles or things which contain any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by virtue of it being embossed or stuck on the object. without affecting the integrity, utility or saleable value thereof.
4. The officer also has authority to examine any record, register, document or any other material object found in any place mentioned in clause(a) and seize the same if he has reason to believe that it may contain evidence that an offence has been committed and it is punishable under this Act. 
5. For any search or seizure under this Act, the provisions of the code of Criminal Procedure,1898(5 of 1898) shall apply as they would apply to any search or seizure made under the authority of a warrant under the provision.
6. When the authorized gazetted officer seizes anything under clause (b) of clause © of subsection (1), he has to immediately inform a Magistrate and take his orders as to the custody thereof.

• Section 9 covers the offences by Companies. This provision covers the action of companies which contravenes any provisions of this Act, be it the company itself, every person who, at the time the offence was committed, was in charge or responsible to the company for the conduct of the business of the company. Under this Act, they will be deemed to be guilty of the contravention and will be liable to be proceeded against and punished accordingly. If a person proves that the offence was committed without his knowledge or he made an attempt to prevent the commission of the offence, he may be exempted from liability under this Act.

This section holds that when an offence is committed by a company and it is proved that the offence was committed with the consent or connivance or any neglect on the part of, any director/manager/secretary or the officer of the company then such director/manager/secretary or other officers of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

• Section 10 gives the jurisdiction to try offences punishable under this Act to a presidency magistrate or a magistrate of the first class.
• Section 11 provides that the officers are to be deemed to be public servants.
• Section 15 contains powers to exempt from the application of this Act and Section 16 has provisions to make rules under the Act.

What it does not allow to be advertised? 

Sections 3 to 6 describe the prohibitions under this Act. The Act clearly prohibits the following: 

The advertisement or publication of any advertisement is not permitted under Sec 3 of the Act where using a particular advertised drug leads to-

1. Miscarriage/prevention of conception in women
2. Enhancement of sexual improvement and pleasure
3. Correction of menstrual disorder in women
4. The diagnosis, treatment, remedy, prevention of any disease/condition/ disorder specified in the schedule or in the rules of the Act: 

Except when:

1. If there is any disease, disorder or condition which requires immediate treatment and consultation with a registered medical practitioner and also for those health conditions which do not have any accepted remedies.
2. If a case of any disease, disorder or condition which requires immediate treatment and consultation with a registered medical practitioner and also for those health conditions which do not have any accepted remedies.
3. Central Government considers necessary after consultation with the Drugs technical Advisory Board which is constituted under the Drugs and Cosmetics Act, 1940(23 of 1940) or with some other qualified persons having special knowledge or practical experience in respect of Ayurveda or Unani systems of medicines.

Two sub-clauses of Sec 3 are of serious nature with respect to women’s health. And more often than not women are gullible to such advertisements and magic remedies out of their shyness and societal pressures. Especially these magic remedies which are advertised about abortion.

Misleading advertisement relating to drugs is not permitted under Section 4 of the Act where no person can take part in the publication of any advertisement relating to drugs if it contains any matter which gives a false impression of the true nature of the drug directly or indirectly. It makes false claims of drugs or any particular material about the drug is misleading.

There are 54 diseases/disorders or conditions specified in the “schedule under the Act and it is apparent from the list that all these health conditions and ailments are of serious nature. Section 4(d) prohibits any advertisement which suggests the use of any drug for cure, diagnosis, treatment, mitigation or prevention of any disease, disorder or condition specified in the Schedule.

Advertisements of magic remedies for the treatment of certain diseases and disorders are prohibited under Section 5 of the Act. No person involved in the administration of magic remedies shall take part in any publication of an advertisement referring to a magic remedy which claims to be effective for any purpose specified in Section 3.

Section 6 prohibits the import into and export from India of certain Advertisements. Any advertisement of any product which has been prohibited by the Government of India can not be imported or exported from the territories to which the Act extends, containing any document which advertises to nature referred in Sections 3,4,5 of this Act and any document containing such advertisements that are deemed to be goods of which import and export is prohibited under anSection 19 of the Sea Customs Act, 1878 d all provisions of the Act shall have effect accordingly.

Classes of Exempted Advertisements

• If any advertisements of drugs, any book or treatise, a journal or printed composition, dealing with any matter relating to the diseases, disorders or conditions which are otherwise prohibited, provided published from a bonafide scientific or social point of view, is sent to any registered Medical Practitioner in confidence it is exempted under this Act.
• The advertisements of the following classes are exempted from the prohibition under this Act. If there is any advertisement published by the government or if it is done so by prior permission from the government it is exempted under the Act.
• If a Registered Medical Practitioner displays signboard or notices on his premises denoting those treatments for some of the diseases/conditions specified in the schedule of this Act are undertaken, then that is exempted under this Act.
• The Act also exempts advertisements of drugs in medical, pharmaceutical, scientific and technical journals. However, the distribution of such literature can be done only to hospitals, medical and research institutions, chemists and Registered Medical Practitioners.
• There are certain conditions if fulfilled then advertisements relating to the drugs in the form of printed pamphlets in the packages of the drugs are exempted under this Act.

Recent amendments

The constitutionality of the Act was challenged in the Supreme Court and the Supreme Court struck down a part of clause(d) of Section 3 and the whole of Section 8 as invalid. This was done on the ground that the power to specify diseases by rules, and the power of seizure to a gazetted officer conferred by the section, are too wide. The Act was therefore amended to eliminate the defects pointed out by the Supreme Court in the case Hamdard Dawakhana v Union of India.

A proposal for amendment of the Act has been presented by the Union Health Ministry on 3rd February 2020. It will be then called ‘The Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill, 2020’. 

The Bill seeks amendment of the following sections:

• Section 2 whereby the definition of ‘Advertisement’ has been revised. 
• Section 3 has also been amended to include subclause (iii) which includes consultation with ayurvedic, Sidha and Unani Drugs Technical Advisory Board constituted under Section 33C of the Drugs and Cosmetics Act, 1940 in respect of Ayurvedic, Sidha and Unani system of authorities that conducted valid and proper tests under expert guidance. The Supreme court said in this case that an advertisement was definitely a form of speech but the true character was reflected by the object of its promotion medicines. 
• The Penalty in Section 7 has been amended. In the case of first conviction, it is jail up to 2 years and a fine up to 10 lakh rupees. In the subsequent conviction, the punishment is imprisonment up to 5 years and fine up to 50 lakhs.
• In Section 8 of the proposed bill, “Code of Criminal Procedure, 1858(5 of 1898) has been substituted by ‘the code of Criminal Procedure, 1973(2 of 1974)’.
• The number of diseases and health conditions in the schedule of the Act have also been increased.

Various cases and judgements

The Constitutionality of the Act was challenged in the landmark case of:

• Hamdard Dawakhana v Union of India

In this case, the constitutionality of the Act was challenged on the ground that it infringed on the right to freedom of speech guaranteed by Article 19(1)(a) and under 19(1)(f) and (g) which is the right to carry on trade and business. Articles 14, 21 and 31 were also considered to be infringed. It was argued that self-medication in case of the list of serious diseases in the schedule of the Act has a damaging effect on the health of the people. A complete check was put on the advertisements as it was felt that the medicines had a tendency to induce people to self medicate because of elated advertisements. The manufactures were told to route their products now through authorities that conducted valid and proper tests under expert guidance. 

The Supreme Court said in this case that an advertisement was definitely a form of speech but its true character was reflected by the object of its promotion. The object here was not the propagation of ideas-social, political and economic or furtherance of literature or human thought. As regards freedom of trade and business, the court gave an opinion that in this case, it was not under the guise of protecting the public interest, the Act arbitrarily interferes with private business or imposes unreasonable restrictions.

However, the case was a landmark as the Supreme court accepted that Section 8 of the Act was unconstitutional and a portion of clause (d) of Section 3 was also amended.

• Sablok Clinic v The State of Delhi 27(1985)DLT171, 1984 RLR 661

This case was filed by the Drug Inspector Delhi Administration against Sablok Clinic and 3 of its doctors under Section 3/7a of the Act. The clinic advertised on the front pages of two issues of Hindustan Times which it was alleged had a tendency to represent that the medicines prescribed by the clinic and its doctors could result in improving the sexual capacity of the user. 

The counsel for the petitioner (Sablok Clinic) pointed out that the complaint was filed after the period of limitation prescribed by Sec 468 of the Code of Criminal Procedure and the case should be thrown out on this ground. The court could not have taken cognizance of the offence under Sec 468 Of Code of Criminal Procedure after the expiry of one year of its commission.

A notice (asking why legal action should not be taken against one of the doctors within 15 days of the complaint) was directed by the trial court in pursuance of the complaint to Sablok Clinic. Notices of this kind were not given to the other doctors. Since none of the doctors replied to the notice and the complaint was not followed for more than a year, the complaint would still be barred by time. The petition was therefore allowed and the proceeding against the respondents cancelled.

Conclusion

The laws regarding objectionable advertisements require amendment and it is definitely in process. The laws are mostly pertaining to advertisements in the print media and do not cover objectionable advertisements that appear on the television or internet. Also, one needs to have laws to punish the people who make such false claims of magic treatment and remedies and swindle gullible and innocent people who get lured by them through these advertisements. Awareness about such quacks will lead people to stop doing self-medication after seeing such advertisements. Once, the punishment of violations under the Act is strict and there is mandatory jail and fine, people will think twice about indulging in making such advertisements and manufacturing and selling such alleged magic products. There are many things that can be done as remedial procedures to prohibit Drug and magic remedies misleading Advertisements if we seriously ensure that the existing laws are enacted.

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