Delhi HC sets aside government decision to cap condom prices

The Delhi High Court on Friday set aside the government's decision to bring condoms under the Drug Price Control Order (DPCO), which has put a cap on prices of all male contraceptives in the country, terming the order "illegal and unsustainable".

A bench of Chief Justice G. Rohini and Justice Rajiv Sahai Endlaw set aside the November 5, 2013 and July 10, 2014 orders of National Pharmaceutical Pricing Authority (NPPA) placing a ceiling on the prices of condoms, as this was impermissible under law.

The court order came on a plea filed by by pharmaceutical giant Reckitt Benckiser (India) Pvt Ltd and J.K. Ansell Ltd (JKAL) seeking to quash the government notification of November 2013 that put a cap on the price of male contraceptives sold in the country, contending that it would force the manufacturers to sell their product below the actual cost.

The government had in May last year included condoms in the list of essential medicine and fixed its ceiling price.

Reckitt Benckiser, opposing the inclusion of condoms within the scope of DPCO, claimed that condoms came under the category of "devices" and not "medicine".

The manufacturers have also questioned the methodology for fixing the ceiling price, arguing that the low ceiling price will force bigger companies to stop production, which in turn will have a negative effect on population control measures.

However, the central government said that since condoms help to prevent diseases, they came under the classification of "medicines" and, hence, their prices can be controlled by the government.

"In the light of the settled legal position, we are of the view that the policy decision of the government to control the price of the condom which is admittedly an essential commodity having been taken keeping in view various social, economic and commercial factors is not amenable for judicial review by this court," the court said.

"What is the best in the interest of the general public is a matter for decision exclusively within the province of the central government."

"It is no doubt true that before making a control order, it is mandatory for the central government to form an opinion that it is necessary or expedient to make an order for the purpose of maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices," the court said adding, however, it cannot be concluded that the government failed to form such opinion merely on the ground that 55 percent of the condoms are available free or at subsidized prices.

--Indo-Asian News service

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