57 hearings, no verdict: the constitutional battle over affordable cancer treatment

Fifty-seven listings. Forty adjournments. One petitioner dead. The Kerala High Court has finally sought expert opinion on whether Palbociclib, a cheaper drug no longer under patent can be used as an alternative for patented Ribociclib for treating breast cancer, in the 58th time, a hearing that has outlived the woman who filed it. What began as an individual plea for affordable treatment has evolved into a constitutional test of whether judicial delay can itself undermine the right to life under Article 21.

The litigation centres around Ribociclib, a patented CDK4/6 inhibitor used to treat HR+/HER2− breast cancer. In 2022, the petitioner approached the High Court after the Union government declined to invoke Section 100 of the Patents Act, 1970—a provision permitting government use of a patented invention in the public interest—to facilitate affordable access. The center argued, ‘breast cancer was not a national emergency’ and did not constitute a circumstance warranting such intervention.

The affordability gap however remains stark. Ribociclib costs approximately ₹78,468.75 per month, while an alternative, Abemaciclib, ranges between ₹47,752 and ₹95,504 monthly—placing treatment beyond the reach of many patients. Public health advocates argue that government authorisation of generic production could reduce prices by 90–95%, significantly expanding access.

Despite completion of pleadings, the matter has remained in procedural limbo. Court records show it has been listed 57 times and adjourned on 40 occasions, with delays attributed to roster changes, requests for time by parties and repeated non-final hearings. The petitioner died during the pendency of the proceedings, but the High Court continued the case suo motu, recognising that its implications extended far beyond an individual grievance and life.

India recorded over 1.9 lakh new breast cancer cases and nearly 98,337 deaths in 2022, while the Union government has projected around 2.4 lakh cases by 2026. Against this backdrop, a working group on access to medicines has written to the Chief Justice of the Kerala High Court, the Chief Justice of India and the President, seeking expedited adjudication.

The unresolved question now extends beyond one drug or one patient. It is whether prolonged judicial inaction in cases concerning access to essential medicines effectively transforms procedural delay into denial, where constitutional guarantees exist on paper, but remain inaccessible in practice.