The Supreme Court on Friday said it would examine the broader issue of access to affordable life-saving cancer drugs and judicial delays in cases related to the right to health, expressing concern that a breast cancer patient’s petition is still pending before the Kerala High Court despite being listed 57 times before her death.
Issuing notice in the suo motu case, a bench led by Chief Justice of India Surya Kant said repeated listings without effective hearing prompted the apex court to intervene.
“Initially, we were reluctant to take up the matter suo motu, but then we noticed reports that it had been listed 57 times but no decision had been taken…and that raised our concern,” the bench, which also included Justice Joymalia Bagchi and Justice V Mohana, said.
The Supreme Court initiated proceedings on a letter petition seeking affordable breast cancer drugs.
Lawyer Alju Joseph, representing the Kerala government, said the patient died and the state eventually provided the medicine.
Senior advocate Anand Grover, seeking the court’s assistance, said he was representing the patient’s deceased husband before the Kerala High Court, but urged the apex court to expand the scope of the proceedings nationwide.
“I have appeared on behalf of the deceased’s husband before the Supreme Court but the case there is limited. I would urge this court to take up the matter and look at the case from a pan-India perspective,” Grover said.
Highlighting the affordability crisis surrounding patented cancer drugs, Grover said the issue extends beyond an individual case.
“This is a big problem. Most new cancer drugs are patented. They are unaffordable… The government has the power under the patent law to compulsorily license them… but only one has been licensed since 2005. That too is in private dispute,” Grover said.
However, Joseph said the Supreme Court had already converted the matter into a public interest litigation (PIL) and was monitoring the case on a regular basis.
The Chief Justice of India said the Supreme Court’s concern was not about the jurisdiction of the Supreme Court, but about the delay in deciding the original petition.
When Joseph added that the medicines had been made available after a new government took power in the state, the council signaled its intention to address broader systemic concerns.
“We will take up the larger issue,” the bench said, before issuing a notice and asking the Chief Justice of the Kerala High Court to ensure that the proceedings before the apex court are decided expeditiously.
The suo motu proceedings stem from an ongoing case before the Kerala High Court over access to Ribociclib, a patented drug used in the treatment of HR+/HER2- breast cancer.
The original petition was submitted in June 2022 by a breast cancer patient seeking the drug, which then costs approx. $58,000 per month. The petition was listed for final hearing 57 times between January 2023 and this year, but could not be heard before the petitioner’s death, court records show.
After her death, the Supreme Court turned the matter into a PIL suo motu, recognizing the public importance of access to affordable cancer treatment. It is currently studying whether Ribociclib and the relatively cheaper drug Palbociclib could be considered alternatives.
The Supreme Court sought reports from the National Cancer Institute in Jhajjar; Chittaranjan National Cancer Institute, Kolkata; Regional Cancer Centre, Thiruvananthapuram; The Narcotics Controller General of India.
The case also raises questions about the use of compulsory licensing provisions under the Patents Act of 1970 to improve access to expensive patented medicines. While the petitioners urged the government to activate these powers or intervene to reduce prices, pharmaceutical companies maintain that compulsory licensing is not justified and that alternative treatments are already available.
