A Bengaluru Civil Court’s ex-parte injunction order against Dr Cyriac Abby Philips aka ‘The Liver Doc’, suspending his X (formerly Twitter) account in India based on a defamation suit by the Himalaya Wellness Company, has sparked widespread outrage. Legal experts took to X to call the order “disproportionate”, with many alleging that a “one-sided” ex-parte injunction over an alleged defamatory tweet was against the principles of natural justice and freedom of expression. “Whether the alleged speech is defamatory or justifiable is, more often than not, a question of fact that is to be determined at trial,” Bharat Chugh, a lawyer, pointed out.
A Kerala-based hepatologist and clinician scientist, Dr Abby is a popular voice known for his critical comments on alternative health remedies and efforts to call out pseudo-scientific practices. After his account became inaccessible in India following the injunction order granted by the court on Thursday, September 28, the hashtags ‘Bring Back The Liver Dr’ and ‘Boycott Himalaya’ have been trending on X.
The Himalaya Wellness Company had contended in court that its business substantially reduced after Dr Abby posted “derogatory statements and materials against the products of the company,” based on which the court has restrained Dr Abby from tweeting or publishing “defamatory remarks” against the company or its products. The pharmaceutical company said that an ex-parte injunction was necessary to “minimise the damage caused to the company” including money and loss of reputation, adding that the doctor’s statements were a “disservice” to those who benefit from Himalaya products such as Liv-52, which the company promotes as a “supportive treatment” for various liver diseases.
A series of strong-arm tactics
The defamation complaint by Himalaya Wellness is only the latest in a long list of strong-arm tactics and legal intimidation used against Dr Cyriac Abby Philips aka ‘The Liver Doc’, by proponents of alternative medicines.
It was around 2018 that Dr Abby started to publish a series of peer reviewed scientific literature in medical journals, arguably the first in world medical literature to showcase liver injuries due to ayurvedic herbs, that would go on to gain him notoriety among ‘experts’ in alternative medicines. Dr Abby’s team was also among the first to show how homoeopathic formulations can cause severe liver injury, liver failure, and death, besides publishing a series of studies on adverse events related to the immune boosting methods of Ayush (Ayurveda, Yoga and Naturopathy, Unani, Siddha, and Homeopathy).
Based on his work and clinical experience, Dr Abby began educating people via social media, initially on science channels on YouTube, on the dangers of herbal ‘medicine’. One such video was an interview featured in a science channel called LUCY Malayalam. In the video, the doctor had spoken about liver injuries that are specifically caused by consuming unsafe or toxic herbs promoted as ‘treatment’. He specifically mentioned the ill-effects of ingesting a widely used herb Giloy (Tinospora cordifolia). As the video went viral and triggered discussions across Kerala, it eventually led to the first battle Dr Abby had to face.
After several ayurveda practitioners sent a complaint to the Prime Minister’s Office alleging that he was defaming the alternative practice, the Kerala State Medical Council for Modern Medicine (KSMC-MM) initiated an investigation against the doctor in February 2022. Dr Abby told TNM at the time that he explained to the KSMC that all his statements were backed by scientific studies, following which the council recommended dropping the charges against him in October that year.
In the meantime, a Kerala-based lawyer filed another complaint against the doctor, alleging that he was not a registered hepatologist, that his credentials as a specialist were speculative, and that he was practising without the required training — all because he was not registered with the KSMC. The Council then launched another probe against him. It may be noted, however, that the requirement for doctors to register with the KSMC to practise in Kerala has remained controversial, with doctors previously challenging the order stating that it is against the Indian Medical Council Act of 1956.
Dr Abby subsequently submitted to KSMC the details of his course completion and university certification in MD (general medicine) and DM (hepatology) training from institutes in Kolkata and New Delhi, after which he was given time to register with the Council, the process of which is still underway. The charges against him were again eventually dropped.
Later, during the pandemic, the doctor appeared in a viral video describing the unscientific use of ‘homoeopathic arsenicum album 30C’ as a Covid-19 preventive in children. This was the time when the Kerala State Homeopathy Department had started promoting diluted arsenic trioxide as an “immune booster” for Covid prevention among children and adults.
Soon enough, the Kerala Government Homeopathy Medical Officers Association (KGHMOA) filed a complaint to the KSMC-MM, alleging that Dr Abby had defamed homoeopathy and directly contradicted government-approved “preventive” treatment for Covid. After the ethics committee of the KSMC-MM started another investigation, the doctor sought details on which code of ethics or professional conduct he is accused of violating. As he wasn’t provided with any more details, he later sent a reply explaining his stance. A few months later, he was summoned to the Council’s headquarters in Thiruvananthapuram, where he was asked to describe his written response again, in person.
Even as the legal proceedings went on, with the doctor eventually approaching the Kerala High Court alleging “investigative harassment”, more studies showed that arsenicum album 30C was not useful for preventing Covid. Also, as people had started consuming Giloy — which was extensively promoted by the Ministry of Ayush — as a Covid preventive across India, research revealed that it neither prevented nor alleviated Covid, but many patients were developing severe liver injury due to the herb.
Citing this study, Dr Abby sent a complaint to the PMO suggesting that the Union government issue an official statement advising at-risk people to not consume Giloy. The PMO forwarded his letter to the Ayush - Homeopathy division, though his grievance concerned an ayurvedic practice, after which a senior homoeopathy official sent him a reply that “Giloy has been used since centuries and hence is safe.”
Meanwhile, another complaint was filed against Dr Abby and his co-authors by the Pankajakasthuri ayurveda company, alleging that a research paper published by him was a conspiracy to defame their company and ayurveda. A First Information Report (FIR) was registered against Dr Abby, which claims that the peer-reviewed publication was “fraudulent” and part of a conspiracy against Pankajakasthuri, though several other companies and products were also analysed in the study.
Speaking to TNM after receiving the Bengaluru civil court’s injunction order on Thursday, Dr Abby said, “Every post that I have made on Himalaya or Himalaya products showcases the lack of scientific evidence, regulation, standardisation, and the presence of adulteration and contamination in the products which have harmed many patients.”
What has caused more anger in the current situation is that the Bengaluru court gave an ex-parte injunction.
What is an ex-parte injunction?
When an injunction order is granted without issuing a notice or allowing a hearing to the party affected by the order, it is called an ex-parte injunction. It is to be noted that rule 3 in Order 39 of the Code of Civil Procedure (CPC), which specifically deals with temporary injunctions, requires that the applicant (in this case, Himalaya) issue a notice to the opposite party (Dr Abby) before an injunction is granted. Courts do have the power to grant ex-parte injunctions, but this power is only to be exercised sparingly and under exceptional circumstances.
In 1994, the Supreme Court had listed out a few factors that should weigh with the court while granting ex-parte injunctions. The SC said that such an order can be granted either if issuing a notice to the defendant would ensure “irreparable or serious mischief” to the plaintiff, or if the refusal of an ex-parte injunction is a “greater injustice” than the grant of it. Legal experts have questioned if an alleged defamatory tweet can be categorised under “irreparable or serious mischief,” especially since a direct correlation has not yet been established between the said tweet and the claimed dip in Himalaya’s sales.
Besides, the apex court had also said that even if granted, the ex-parte injunction can only be enforced for a limited period of time. The Bengaluru court has said the order against Dr Abby will be effective until the date of next hearing. The case has been posted for hearing on January 5, 2024, which means his account will remain suspended for more than three months.
In addition to the allegation that the injunction is an attack on freedom of speech, many social media users were of the view that the order comes at the cost of citizens’ health, as it would enable manufacturers of unscientific and alternative medicines to avoid accountability and cause irreparable damage.