February 2022

Central Consumer Protection Authority (CCPA) has passed an order against pharmaceutical giant GlaxoSmithKline Consumer Healthcare Ltd directing it to discontinue all advertisements of Sensodyne in India. CCPA took Suo Moto Cognisance of the matter and passed an order on Wednesday. The order has asked GSK to discontinue all advertisements of Sensodyne in seven days from the issuance of order. This is because the advertisements show dentists practising outside India endorsing the products of the said toothpaste line. Under the regulations no dentists in India can endorse any product or drug publically. CCPA said, “GSK cannot be allowed to circumvent the law in force in India and show foreign dentists to exploit consumer apprehension towards tooth sensitivity.” Order further said, “Therefore, advertisement of Sensodyne products in India which show endorsements by dentists practising outside India qualify as ‘misleading advertisement’ in terms of Section 2 (28) of the Consumer Protection Act, 2019.” CCPA has also directed Director General of Investigation to submit a report in 15 days after launching a probe against claims made by Sensodyne. The claims include ‘recommended by dentists worldwide’, ‘clinically prove relief, works in 60 seconds’ and ‘World’s no. 1 sensitivity toothpaste’. One of the company official from GSK said, “We confirm the receipt of the order from the CCPA. While we are looking into it in detail, we would like to clarify that our marketing initiatives are compliant with the applicable laws and industry guidelines. We are a responsible and compliant company which is committed to the welfare of its consumers.” CCPA has also passed an order against Naaptol Online Shopping Ltd. for circulating misleading advertisements and unfair trade practice. It has been caught in suo moto case because of advertisements like ‘set of 2 gold jewellery’, ‘acupressure yoga slippers’ and ‘magnetic knee support’. Naaptol has also faced a penalty of Rs 10 lakh because it has far worse effect on the people. The company has a 24*7 broadcast channel that sells commodities to people in different languages. It has also asked Naaptol to discontinue all practices that create artificial scarcity of a product. Between June 2021 and January 2022, 399 complaints have been filed against Naaptol.

There is an urgent need to ensure citizens are enabled to access quality healthcare, especially medicines in India. In order to improve accessibility and affordability, Government must consider major changes in the pricing policy of medicines in our country. We have observed in the past that the government with stringent price control has denied the citizens access to quality medicines and the choice for medical practitioners to prescribe medicines with better outcomes and value for money. We must innovate and bring global best practices with India. Centric Approach to encourage adoption of the most appropriate pricing mechanism. Trade Margin Rationalization (TMR) is a step in the right direction. TMR in principle could improve access and affordability however, it is imperative to ensure the mechanism of calculating TMR should not impact access to patients. TMR is a mode of price regulation by way of capping trade margins in the supply chain. This is the difference between the price to trade by manufacturers and price to patients i.e., Maximum Retail Price. Therefore, there should be clear objectives for any proposed policy intervention to provide quality and affordability and avoid distrust and disruption in the market. While the primary aim of rationalisation of trade margins should be to help consumers, it should also allow rationalised and reasonable profits for all the players in the supply chain starting from manufacturers, importers, distributors, and wholesalers & retailers, creating an enabling environment for the industry to grow and flourish in the interest of the consumers. As we all know, India today is seen as the pharmacy of the world only because we assure quality along with competitiveness on pricing and availability. A well-balanced policy to implement TMR will bring in affordability and accessibility to the latest innovative drugs and pave way for cutting-edge molecules into the Indian market, undoubtedly with focus on patient safety. It will also act as a catalyst for foreign direct investment in India and help in overcoming challenges in providing access to innovation, quality, and affordable healthcare in the country. Besides, it will create opportunities to increase investment in research and development. TMR is a mode of price regulation by way of capping trade margins in the supply chain. This is the difference between the price to trade by manufacturers and price to patients i.e., Maximum Retail Price. Therefore, there should be clear objectives for any proposed policy intervention to provide quality and affordability and avoid distrust and disruption in the market. While the primary aim of rationalisation of trade margins should be to help consumers, it should also allow rationalised and reasonable profits for all the players in the supply chain starting from manufacturers, importers, distributors, and wholesalers & retailers, creating an enabling environment for the industry to grow and flourish in the interest of the consumers. As we all know, India today is seen as the pharmacy of the world only because we assure quality along with competitiveness on pricing and availability. A well-balanced policy to implement TMR will bring in affordability and accessibility to latest innovative drugs and pave way for cutting edge molecules into the Indian market, undoubtedly with focus on patient safety. It will also act as a catalyst for foreign direct investment in India and help in overcoming challenges in providing access to innovation, quality and affordable healthcare in the country. Besides, it will create opportunities to increase investment in research and development. The government’s recognition of TMR as a fair and balanced approach to ensure reasonable prices to the consumers is greatly appreciated. However, to not asphyxiate the patients in these trying times, a rational and transparent implementation of the approach is paramount. We as consumers have constantly supported innovative and research based interventions in the healthcare delivery system and thus wholeheartedly support the implementation of TMR that “follows ethical and reasonable margin”. We cannot forget the consequences of TMR on 42 oncology drugs notified on February 27, 2019, while implementing the proposed TMR, we only hope our concerns are not lost this time while framing the New TMR for NEW INDIA. We are now entering the AMRIT KAAL for the next 25 years, we should consider a comprehensive TMR for all non-scheduled drugs and not a myopic vision, which will compromise access to quality medicines. We also propose that for computation of ‘Net Sales Realization’, the New TMR should only include such commercial sales which are managed by profit making entities and not include government sales at low tender prices, physician sample, samples for training of healthcare professionals, charity, research supplies, supplies under Patient Assistance Programs (PAPs), etc.. As there is no trade channel involved, no margin can be calculated in case of such distribution. As we all know, Government has already provided several incentives for supplies under PAPs with the goal of improving access to drugs and to ensure initiation and continuation of essential treatments. The objective is to support the patients to comply with the therapy and improve the clinical benefit that patients should have on account of the therapy. Supplies under PAPs are also made after reversal of the Input Tax Credit (ITC) under Section 17(5)(h) of the CGST Act, 2017. Further, no output GST is attracted by the supplies under PAPs as these are considered as ‘Free supplies to unrelated persons’ under section 7(1) of the CGST Act. Inclusion of such non-commercial supplies for calculation will result in unviable pricing for the industry, which in turn may impact patients’ accessibility to quality drugs. Going ahead with this mode of implementation of TMR, will defeat the very objective of bringing in an alternative balanced pricing regime for drugs. Prof. Bejon Kumar Misra, Founder & Director, Patient Safety & Access Initiative of India Foundation. Source: ET Health

NEW DELHI: The Supreme Court bean hearing arguments on Wednesday on the legal question of whether an adult male member, other than an aggrieved woman, has the right to file an application for visitation rights with respect to a child under Section 21 of the Protection of Women from Domestic Violence Act. A bench comprised of the Chief Justice of India, Justice AS Bopanna, and Justice Hima Kohli expressed concern about the multiplicity of proceedings that will result in matrimonial disputes if a man cannot seek visitation rights in a proceeding initiated by a woman under the Domestic Violence Act. The bench stated orally that it is time for the legislature to investigate this matter and determine whether all of the issues can be brought ‘under one umbrella under one court.’ The observations were made in response to Attorney Gerneral of India KK Venugopal’s submissions, whose assistance the Court had sought in 2018 in relation to the current question of law. Referring to Section 21 of the Domestic Violence Act, which allows an aggrieved person to apply for temporary custody of the child, the Attorney General stated that the problem is that an aggrieved person is only a woman. According to him, a man cannot be an aggrieved person under the DV Act. “Section 21 DV Act. Custody orders. – Notwithstanding anything contained in any other law for the time being in force, the magistrate may, at any stage of hearing of the application for protection order or for any other relief under this act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.” The bench asked the AG if a husband is entitled to visitation rights in a pending family dispute. The bench went on to say that if a proceeding under the Domestic Violence Act has been initiated by the woman, the man cannot go to any other court. In response to the AG’s contention that the man could proceed under a separate act, the CJI stated, ‘You are encouraging another litigation.’ The AG argued that the application for visitation rights under section 21 is only for temporary custody any that the aggrieved woman can file it. The CJI however said, “You must understand, already there are enough acts, Maintenance Ac, the Guardians and Wards Act, the Domestic Violence Act, 4 – 5 acts are there. They’ve to move from Court to Court. Now we are adding another Court. It’s time for legislature to look into this.” The AG referred to the doctrine of Parens Patriae and stated that a number of decision have stated that when it comes to child custody, the paramount consideration is the child’s welfare. “The question is, can a husband come directly to HC and invoke parens patriae jurisdiction on basis that otherwise he will have to go under various other acts and the High Court has inherent jurisdiction so it could then decide upon interim custody until wife or husband goes to court and applies for permanent custody. Parens patriae would be the jurisdiction if he doesn’t move under the Guardians and Wards Act, Special Marriage Act or the Hindu Marriage Act, which have separate sections for custody,” AG said. “Sorry to say, the question is compliance things. We want simple solution to problems. Here is a simple case where a husband wants visitation rights, why doesn’t legislature look into this angle?” CJI said. “We are taking about general consequences of these kinds of cases. Husband has no right to approach under domestic violence act for visitation courts, he has to move a separate OP before civil court. Matter is going on before the Domestic Violence Court and wife has to appear. Why don’t you bring all the issues under one umbrella under one court?” CJI said. In terms of the relationship, AG argues that it is comprised of holistic rights in both parties. He went on to say that if a wife approached the Court for any reason, the man has the right to request visits if he has custody of the children. However, if she is self – sufficient and does not want alimony, residence, or other benefits, the man has no recourse unless he violates other laws. “Otherwise, I will suggest parens patriae (moving before concerned court invoking parent patriae jurisdiction)”, AG said. The AG attempted to submit a note in this regard, along with some judgments. The bench then requested that the AG submit a note of his submissions in order to assist the court. The matter will be revisited in two weeks. In the current case, the petitioner’s wife filed a case under the Domestic Violence Act against him. On the husband’s application, the Trial Court granted him visitation rights to his children under Section 21 of the protection of women from domestic violence act. However, the sessions court overturned that order, and the High Court upheld the sessions Court’s decision. Source: soolegal.com

New Delhi, Feb 11 (PTI) Mere delay in intimating an insurance company about theft of an insured vehicle cannot be a ground to deny the claim if an FIR about the incident has been lodged, the Supreme Court said on Friday. The significant verdict came on an appeal of a company whose insured truck was robbed on November 4, 2007 and the police, acting on the FIR which was lodged next day, arrested the accused but could not recover the insured vehicle. Oriental Insurance Company Ltd repudiated the claim on the ground that it was informed about the loss of vehicle belatedly and won the case at the National Consumer Disputes Redressal Commission (NCDRC). The NCDRC, in 2016, had set aside the findings of the District Consumer Forum and the Haryana State Consumer Disputes Commission holding that the insurance firm rightly repudiated the claim on the ground of delayed intimation. A bench comprising Justices Sanjiv Khanna and Bela M Trivedi set aside the NCDRC judgement and held that the mere delay in intimating the insurer was not fatal to the claim when an FIR had been registered promptly. “The precise question that falls for consideration before this Court is – whether the insurance company can repudiate the claim in toto, made by the owner of the vehicle which was duly insured with the insurance company, in case of loss of the vehicle due to theft, merely on the ground that there was a delay in informing the company regarding the theft of vehicle,” the bench said. Justice Trivedi, writing the judgement, referred to an apex court verdict in which it was held that “when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.” Dealing with the facts of the case, the judgement said in the instant matter, the FIR was lodged immediately on the next day of the occurrence of theft by Aina Construction Company and the accused were also arrested and chargesheeted. “However, the vehicle could not be traced out. Of course, it is true that there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company, nonetheless, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine,” it said. The verdict said the claim has been repudiated only on the ground of delay and when the complainant had lodged the FIR immediately and law was set in motion, the insurance firm could not have repudiated the claim merely on the ground that there was a delay in intimating about the theft. PTI SJK SA Source: Theprint.in

New Delhi: The Supreme Court on Wednesday sought a response from the Future group on Amazon’s plea against the January 5 order of the Delhi High Court staying the ongoing arbitration proceedings before an arbitral tribunal over Future Retail’s ₹ 24,500-crore merger deal with Reliance. A bench comprising Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli issued notices to the Future group firms, Future Coupons Private Ltd (FCPL) and Future Retail Ltd (FRL) and said that it will hear the matter on February 23 “without any adjournment”. The Delhi High Court on January 5 had stayed the Amazon-Future arbitration which is going on before a three-member arbitral tribunal over the latter’s ₹ 24,500-crore deal with Reliance. During the brief hearing, the CJI expressed displeasure over some media reports on his remarks made on Tuesday while declining US-based e-commerce major Amazon’s request to file written submission in another case field by FRL seeking a nod to proceed with the National Company Law Tribunal (NCLT) permission of going ahead with the merger. The bench had observed on Tuesday that it appeared to be a “luxurious litigation”. While issuing the notice on the fresh plea of Amazon on Wednesday, the CJI said, “I am sorry to say that papers are unnecessary highlighting whatever we observed, but this is also the same, the other side (Future), they don’t want matters should go on.” The bench issued notice on the plea of the US firm even before senior advocate Gopal Subramanium, appearing for Amazon, started the submissions on the plea filed against the high court’s January 5 order. Senior advocate Mukul Rohatgi, appearing for Future group, said that let the matter be kept for hearing on February 23 as senior lawyer Harish Salve, who also appears for the Future group firm, was unavailable. Rohatgi said that NCLAT would hear next week the Amazon plea against the Competition Commission of India (CCI) order which had revoked its sanction for the deal with Future Group. He also said that the high court has decided to hear in the third week of March the batch of pleas of FRL and others on the refusal to grant a stay on the final arbitral award which had restrained FRL from going ahead with its merger deal with Reliance Retail. Amazon and the Future Group have been locked in a legal tussle after the US e-commerce giant dragged the latter to arbitration at the Singapore International Arbitration Centre in October 2020. The fresh plea, on which the apex court issued notice, has been filed by the US firm assailing the January 5 order of a division bench of the Delhi High Court staying the Amazon-Future arbitration which is going on before a three-member arbitral tribunal. The division bench of the high court had also stayed a single judge’s January 4 order dismissing the Future Group’s two pleas seeking a direction to the arbitration tribunal to decide on its application for terminating the arbitration proceedings before moving further. The high court had said that there was a prima facie case in favour of FRL and FCPL and if a stay is not granted, it will cause an irreparable loss to them. Amazon argued that FRL violated their contract by entering into a deal for the sale of its assets to billionaire Mukesh Ambani’s Reliance Retail on a slump sale basis for ₹ 24,500 crore. In December last year, the Competition Commission of India suspended its over-two-year-old approval for Amazon’s deal to acquire a 49-per cent stake in FCPL and FRL promoter, and also slapped a penalty of ₹ 202 crore on the e-commerce major. Amazon has been objecting to the sell-off plans, accusing Future Group of breaching its 2019 investment pact. Future Coupons was founded in 2008 and is engaged in the business of marketing and distribution of gift cards, loyalty cards and other reward programmes to corporate customers. In October last year, the high court had declined to stay the arbitral tribunal’s order refusing to interfere with the Emergency Award (EA), which restrained Future Group from going ahead with the deal with Reliance. The apex court on February 3 had reserved its order on a plea of FRL seeking a nod to proceed with the NCLT permission of going ahead with the merger deal with Reliance Retail. Besides this, FRL has filed a separate plea in the apex court against the consortium of 27 banks seeking a direction that no coercive action be taken against it for a certain time period due to non-payment of debt. The consortium of lending banks had told the Supreme Court that the money lent to FRL belonged to the depositors and to safeguard the “public interest”, the entire assets of FRL can be subjected to open bids by Amazon and Reliance with a reserve price of ₹ 17,000 crore. Prior to this, the apex court, in a verdict on February 1, had set aside three Delhi High Court orders including attachment of properties of FRL and its directors and the refusal to grant a stay on the final arbitral award which had restrained FRL from going ahead with the merger deal with Reliance Retail and had ordered fresh adjudication. Source: NDTV.com

The Supreme Court on Tuesday asked the MBBS students seeking extending one-year internship deadline beyond May 31, criteria for aspirants for National Eligibility-cum-Entrance Test (NEET)-PG-22, to make a representation to the Ministry of Health and Family Welfare (MoHFW). A bench of Justices DY Chandrachud, Surya Kant, and Vikram Nath said that looking at the hardship faced by the aspirants, the MoHFW may decide on the representation within one week from the date of its submission. The bench said that it is not expressing any opinion on the issue at this stage. Senior advocate Mukul Rohatgi, appearing for the MBBS Students, said that the examination has been extended but there is one important criterion that needs to be looked into. He said that the criteria are that students appearing for the examination have to complete a one-year mandatory internship by May 31, 2022, to be eligible for the NEET-PG-22 examination. This May 31, the deadline can be extended by a month or two, he said. The bench said that it would be like stepping into the policy decision as there is no uniform date for commencement of the internship. Suppose, even if we extend the May 31, deadline by a month or two, there may be a group of students who still miss out on the one-year deadline. It is more of a policy decision, let the government consider your representation, the bench said. The top court noted that the date of NEET-PG-22, which was earlier scheduled to be held in March, has now been extended. Source: Business Standard

Bank employees hold the position of trust where honesty and integrity are essential conditions and any irregularity on their part should not be dealt with leniently, the Supreme Court said on Friday. A bench of Justices Ajay Rastogi and Abhay S Oka made the observation while upholding an order of dismissal against a bank clerk for serious irregularities in discharge of his duties. Merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. The Bank employee always holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently, the bench said. The apex court said that looking into seriousness of the nature of allegations levelled against the employee, the punishment of dismissal inflicted upon him in no manner could be said to be shockingly disproportionate. The employee joined service as a Clerk-cum-Typist in 1973 and while in service committed serious irregularities in discharge of his duties and was placed under suspension by an Order dated August 7, 1995. He was later served with the charge sheet along with the statement of allegation on March 2, 1996. After the disciplinary inquiry was conducted in accordance with the disciplinary rules of the bank, the inquiry officer found the charges proved. He was dismissed from service by an order dated December 6, 2000 and the appellate authority also rejected the appeal by the employee. The Tribunal, after taking into consideration the record of the domestic inquiry, finally arrived at the conclusion that inquiry was fair and proper and the charges stood proved. It, however, observed that the punishment awarded to the employee of dismissal is not commensurate with the charge levelled against him and substituted the punishment of dismissal with an order of reinstatement after lowering down of two stages in his basic salary. The order was upheld by the Patna High Court which was challenged by the bank before the apex court.  Source: Business Standard

The Supreme Court on Friday asked whether parties connected with cases involving quota in private sector – based on domicile – can be heard together. A bench of Justices L. Nageswara Rao and B.R, Gavai said: “If the matters are pending before other high courts, we can hear the larger issue after calling for the papers from high courts…” The top court was hearing an appeal by the Haryana government challenging the Punjab and Haryana High Court interim stay, on its law to give 75 per cent reservation to the youths belonging to the state in the private sector. The bench said Jharkhand and Andhra Pradesh government policies granting reservation on the basis of domicile have been challenged in the high courts. It further queried the parties in the Haryana matter, whether matters of other states could be brought to the top court for adjudication along with Haryana government’s policy. The top court asked parties, including the Haryana government, to find out the pending cases in high courts and inform it on Monday whether they are agreeable on hearing matters together. Solicitor General Tushar Mehta, representing the Haryana government, submitted at the beginning of the hearing that only a handful of people are opposed to the state’s policy. Senior advocate Mukul Rohatgi said he will consult with his clients. Senior advocate Dushyant Dave, representing one of the parties, emphasised that the matter requires examination by the top court. In a special leave petition, the Haryana government contended that the interim order was passed in the teeth of law laid down by the top court in Bhavesh D. Parish vs Union of India (2000), and also in violation of the principles of natural justice. “It is submitted that the hearing granted by the High Court was mere empty formality, whereby, the High Court with a predetermined conclusion opened the hearing by saying that they Act is liable to be stayed and thereafter did not afford any opportunity to the law officer appearing on behalf of the state of Haryana,” said the plea. “Violation of principles of natural justice is manifest from the fact the entire hearing in the matter concluded within one minute,” it added. On February 3, in a setback to the BJP-JJP government in Haryana, the Punjab and Haryana High Court stayed the state government law to give 75 per cent reservation to the youths belonging to the state in the private sector. The law under the Haryana State Employment of Local Candidates Act, 2020 is applicable in industries having more than 10 employees. In a petition, the Faridabad Industrial Association said the impugned Act was against the provisions of Constitution and also against the basic principle of meritocracy that acted as the foundation for businesses to grow and remain competitive. Source: Business Standard