Central Information Commission
S P Manchanda vs National Pharmaceuticals Pricing ... on 1 October, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/NPPAT/A/2017/152869-BJ
Mr. S. P. Manchanda
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
National Pharmaceutical Pricing Authority,
YMCA Cultural Center Building
1, Jai Singh Road, New Delhi 110001
... ितवादीगण /Respondent
Date of Hearing : 27.09.2018
Date of Decision : 01.10.2018
Date of RTI application 19.03.2017
CPIO's response 18.04.2017
Date of the First Appeal 29.04.2017
First Appellate Authority's response 08.06.2017
Date of diarised receipt of Appeal by the Commission 31.07.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding whether NPPA was aware that some oncology medicines required for treating cancer had MRP printed which was many times of their ex-factory price or import price with much higher profit margin, if yes, steps taken by the Authority to regulate their prices and action taken against manufacturers, importers, distributors and hospitals/ doctors for looting the hapless patients, whether NPPA received complaints from the public or any other government organization or NGO on the aforementioned issue, details of the complainants who filed complaints during the last 05 years and issues related thereto.
The CPIO vide its letter dated 18.04.2017 provided a point wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 08.06.2017, provided further clarifications in the matter.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. S P Manchanda in person and Mr. S. C. Agrawal through TC; Respondent: Mr. Arun Kumar Diwan, CPIO/ Dy. Director and Mr. Anand Prakash, Dy. Director;
The Appellant reiterated the contents of his RTI application and stated that complete and satisfactory response was not provided to him, till date. Explaining that the information sought by him was in the larger public interest pertaining to the price regulation of oncology medicines required for treating cancer patients, it was submitted that a cogent and clear response ought to have been provided by the Respondent instead of skirting around the issues and taking the plea of disproportionate diversion of resources in answering the application. The intervener Mr. Subhash Chandra Agrawal raised larger public interest issues regarding availability of essential drugs at inflated MRPs detrimental to the interests of the needy patients who suffer the most. It was argued that the M/o Health, D/o Pharmaceuticals and NPPA have not been able to check the perpetual escalation in prices of essential drugs at exaggerated MRPs. While technically in accordance with the provisions of the RTI Act, 2005, the information may have been provided to the Appellant but the greater issue of the mental agony and harassment caused to the suffering patients for abnormally high prices of drugs remained unchecked. In its reply, the Respondent stated that the information held and available with the Public Authority had been provided. While referring to the Drugs (Prices Control) Order, 2013 alongwith the National Pharmaceutical Pricing Policy, 2012, the Respondent submitted that the prices were regulated based on 1) Essentiality of drugs; 2) Control of formulations prices only and 3) Market based Pricing and that the "Essentiality" criteria for drugs under the NPPP- 2012 was to be met by considering the list of medicines specified in the National List of Essential Medicines as revised from time to time and most recently declared by the Ministry of Health and Family Welfare, Government of India. The Respondent nonetheless continued to maintain that they were adhering to the Drugs (Prices Control) Order, 2013. It was further informed that the aspect of revision of ceiling price of the individual drugs or retail price of a pack was a decision to be taken in consultation with the M/o Health and that the efforts were underway to coordinate the same. It was specifically mentioned that a draft policy paper to determine the prices of a large number of essential drugs was under preparation in consultation with M/o Health and that the same would be notified in due course.
The Commission was in receipt of a written submission from the Respondent dated 25.09.2018, wherein a point wise response against the queries raised in the RTI application was provided. As regards point no. 01, it was stated that pursuant to the announcement of the National Pharmaceutical Pricing Policy, 2012 (NPPP, 2012), the Govt. notified Drugs (Price Control) Order, 2013 on 15.05.2013. The medicines specified in the National List of Essential Medicines 2011 (NLEM) were included in the First Schedule of DPCO, 2013 and brought under price control. Further, the National List of Essential Medicines, 2015 was notified by the Ministry of Health and Family Welfare in December, 2015. It was thereafter notified as the First Schedule of DPCO, 2013 in March, 2016 by the D/o Pharmaceuticals. Accordingly, NPPA had fixed and notified ceiling prices of 851 scheduled formulations including 2 coronary stents and 81 cancer medicines under revised Schedule I (NLEM, 2015). It was further stated that the Government Page 2 of 7 was effectively monitoring the prices of scheduled medicines notified by NLEM and appropriate action was taken against companies overcharging for the drugs. The details of the overcharging cases initiated by the NPPA were also available on its website. With regard to point no. 02, it was stated that compiling the information on the subject for the last 05 years from different sources and obtaining the third party consent would take substantial time and resources of their office which would be against the larger public interest. As regards point no. 03, it was stated that the information was never denied to the Appellant as he was informed about the website link to access NPPA recommendations on the issue. Explaining that being an attached office communication was not made directly with other ministers for policy related issues, it was stated that the physical copy of voluminous document was not provided along with the reply as RTI application was lodged online and applicant had never asked for the physical copy specifically. Regarding point no. 04, the status of Appellant's online grievance dated 18.03.2018 was provided. Considering the difficulties associated with the compilation of information, the information about all other public grievances received through PG portal could not be provided. Regarding point no. 05, it was stated that the inspection was not required since the records relating to pricing of formulations and overcharging cases were available on the website of NPPA. Further the records were not static in nature and being updated from time to time. While explaining that the information asked by the Appellant was provided within the stipulated time period, it was stated that the status of complaint disposal was a continuous activity in a regulatory mechanism and the status of overcharged cases was disclosed to the public only when the case reached to conclusion such as issue of demand to company or the matter had been referred to the collector concerned for recovery. Thus, it was prayed not to impose any penalty/ cost.
The Commission was also in receipt of an e-mail from Shri Subhash Chandra Agrawal dated 27.09.2018 wherein it was stated that he was intimated about the matter only in the evening prior to the date of hearing and submitted that since he was pre-occupied he wished to intervene in the matter of larger public interest through e-mail and if required through audio conference.
Explaining that although the Appellant had raised important issue only in reference to cancer medicines but NPPA also ignored price structure and extra ordinary heavy trade margins on medicines especially generic medicines. Even though the matter was repeatedly taken up through various portals, yet NPPA ignored such suggestions. It was further submitted that his intervention application was also not irrelevant since cancer patients also consumed medicines other than the ones exclusively meant for them. Thus, it was submitted that his suggestions could be made part of CIC's verdict for recommendations, under the provisions of the RTI Act, 2005 including Section 25 (5) with a compliance report from NPPA in a time bound manner on the recommendations, if deemed fit by the Commission. Some suggestions were also made for Health Departments in the Central and State Governments from where compliance report was sought in a time bound manner. As regards his suggestions for NPPA, it was submitted that at present NPPA had no price regulation on generic medicines which were considered cheap and that NPPA must fix maximum combined trade margin(for complete trade-chain) above ex- factory price for all types of medicines including branded and generic ones. Furthermore, ex- factory prices of different branded medicines for some basic salt had at times vast difference, further pointing towards heavy profiteering of drug companies. Furthermore, it was stated that there was a regular price increase of many branded medicines like for example Colapsa after every two months or so, with NPPA not having any check on such money minting by drug companies. Rather medicines were put in some categories where NPPA had price check only in a Page 3 of 7 category having very few most essential medicines. Furthermore, in medicines such as Zolfresh- 5, the name of the medicine printed on the side of the cut strip was printed in so tiny letters that he had to use magnifying glasses to confirm the name of the medicine. Thus, it was suggested to make it compulsory to print the name of the medicine on complete strip over every tablet/ capsule. It was also suggested that metric system of packaging be introduced by making it compulsory to pack medicines. With regard to his suggestions to Health Department, it was stated that the Union Health Ministry should restrict the e-pharmacies to execute orders for only above Rs. 1,000/-. Furthermore, it was suggested that the Central Government should establish its own production units for all types of medicines including Allopathic, Unani, Homeopathic and Ayurvedic like once it had the Indian Drugs and Pharmaceuticals Limited (IDPL) to provide cheaper brands of medicines in all fields of medicines so that it would be feasible to impose a total ban on unbranded medicines.
The Commission was in receipt of another written submission from Shri Subhash Chandra Agrawal dated 28.09.2018 wherein it was prayed to direct the Respondent to place the matter before the concerned Hon'ble Ministers and Secretaries of the two concerned ministries for their personal attention apart from seeking the action taken reports and working sheets on the suggestions in a time bound period to achieve a noble public cause.
The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
Page 4 of 76. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Page 5 of 7Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:
"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."
Similarly, the Hon'ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:
"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge."
The Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals published a policy called the National Pharmaceuticals Pricing Policy, 2012 (NPPP, 2012). The rationale behind price control of essential drugs as contained in National List of Essential Medicines was made explicit in the NPPP, 2012. The objective of the policy was to introduce a regulatory framework for pricing of drugs, thereby ensuring availability of the essential medicines at reasonable prices even while providing sufficient opportunity for innovation and competition to support the growth of industry. Moreover, the Hon'ble Supreme Court in its Order dated 10.03.2003 in SLP No. 3668/2003 (Union of India v. K.S. Gopinath and Others) had also emphasized the need to consider and formulate appropriate criteria for ensuring essential and life saving drugs not to fall out of price control.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties it was observed that the larger issue relating to the price structure and extraordinary heavy trade margins on the medicines especially generic medicines was yet to be addressed by the Respondent. The Respondent (NPPA) present at the hearing expressed its inability to intervene Page 6 of 7 in this matter as the subject matter pertained to Union Health Ministry which also had a catalytic role to play in checking the menace of over pricing of essential drugs and excessive trade margins. The Commission therefore recommends to M/o Health and Family Welfare / D/o Pharmaceuticals / NPPA to initiate a coordinated attempt to address the above issue to promote greater transparency for the benefit of a common man within a period of 02 months from the date of receipt of this order under intimation to the Appellant and the Commission.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 01.10.2018
Copy to:-
1. The Secretary, M/o Health and Family Welfare, Room No. 156-A, 7- B Moti Lal Nehru Marg, New Delhi
2. The Secretary, D/o Pharmaceuticals, M/o Chemicals and Fertilizers, Government of India, Shastri Bhawan, New Delhi - 110001
3. The Chairman, National Pharmaceutical Pricing Authority, 3rd/5th Floor, YMCA Cultural Center Building 1, Jai Singh Road, New Delhi, India - 110001 Page 7 of 7