Fundamental Rights Act, Case Study

Drug and Magic Remedies Act (Objectionable Advertisement), 1954 came into play in the Hamdard Dawakhana v. Union of India case. This is when Supreme Court was faced with the question as to whether the act, that puts restrictions on advertising drugs in certain cases would prohibit advertisements of drugs having magical qualities for curing diseases. The company challenged the court on the basis of one of the Fundamental Rights i.e. freedom of speech and expression.

Ultimately, the court reached a decision that advertising is no doubt a form of freedom of speech and expression but every advertisement cannot fall under this category of Article 19(1) (a) as it is of a commercial nature of profit-making. I couldn’t agree more.

Although, this Fundamental Right gives us the basic right to express our thoughts and ideas through any communication medium of visual representation or publication, we should not abuse or take advantage of it. India being a democratic country has its fare share of liberties but at the same time there are reasonable restrictions. Such as press restrictions, that is in favor of public interest so that there is a sense of decency and morality maintained in the society.

Advertising of items such as cigarettes, alcohol and most over the counter drugs is prohibited in India. So when the case of a drug that has “magical remedies to cure diseases” comes to play, it is bound to be questioned. Fooling the oblivious, impressionable and in some instances desperate public with such promises is unfair and can be easily termed as cheating. Even promoting these products is a threat to people’s health and lifestyle.

What if the drug doesn’t deliver what it promised? Ultimately the buyer feels violated and loses its money but advertisers have done their job which is restricted to luring prospective buyers and making them pay a price of the product. Whether the product performs well on the patient or not is not their concern, it’s the company’s. They stick to doing what they are paid for and that is pure advertising. In most cases it includes propagating false scenarios to entice the public to buy the product.

Freedom of speech and expression is a tool that one uses in instances such as motivating people for a social cause in a gathering, painting a picture that depicts different views, or making a documentary on an unknown issue. Not on something that runs simply on profit motive such as advertising. Yes, to an extend it is a form of expression but is restricted to selling a product with empty promises and no guarantee of results.  Unethical advertising cannot hide behind walls of Fundamental Rights while propagating commercially benefiting strategies.

This case took place decades ago, which should indicate that times have changed and people are more aware of their surroundings. Unfortunately, that is not the case. If advertisers are not deceiving them with fake promises, then they are doing so with computerized and bizarre ads. There are some people who still fall in their trap and pay for it too. And then there is an experienced/indifferent lot that ignores and moves on to another absurd advertisement.