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The Delhi High Court in a judgment held that though condoms fall within the definition of “drugs” under the Drugs and Cosmetics Act and are “essential medicines”, the government cannot fix ceiling prices as there is no specified strength or dosage for the formulation.

“Ceiling price can be fixed only for scheduled formulations of specified strengths and dosages as specified under the First Schedule. Therefore, according to us, the provisions of Para 4 cannot be made applicable to condoms, the dosage and strength of which have admittedly not been specified under the First Schedule,” held the court of Chief Justice G Rohini and Justice R S Endlaw.

The bench, in a 67-page judgment, noted that condoms are “rightly considered as Essential Medicines and are included in the National List of Essential Medicians to ensure affordable healthcare to a majority of the population and also to improve accessibility of drugs for anti-HIV etc through special assistance scheme.”

"We are of the view that NPPA exceeded the powers conferred by DPCO-2013 while fixing the ceiling price for condoms. The language of para 4 (of DPCO 2013) is unambiguous and makes clear the legislative intent that the ceiling price can be fixed only for scheduled formulations of specified strengths and dosages as specified under the First Schedule," it said.

By Premji