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These cases raise questions of general importance
and practical significance questions relating not only to
the right to practise medical profession but also to the
right to life which includes health and well-being of a
person. The controversy in these cases was iriggered off by
the issuance of declarations by the state Governments under
clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules,
1945 (for short 'the Drugs Rules') which defines "Registered
Medical Practitioner". Under such declarations, notified
Vaids/Hakims claim right to prescribe Allopathic drugs
covered by the Indian Drugs and Cosmetics Act, 1940 (for
short 'the Drugs Act'). Furthermore, Vaids/Hakims who have
obtained degrees in integrated courses claim right to
practise allopathic system of medicine.
In exercise of the power under clause (iii) of Rule
2(ee) the State of punjab issued Notification No.
9874-Thbtt-67/34526 dated 29th October, 1967 declaring all
Punjab Ayurvedic and Unani Practitioners Act, 1949 and the
Pepsu Ayurvedic and Unani Practitioners Act, 2008 BK and the Punjab Ayurvedic and Unani Practitioners Act, 1963 as
persons practising modern System of Medicine for purposes of
the Drugs Act.One Dr.Sarwan Singh Dardi who was a
medical practitioner, registered with the Board of Ayurvedic
and Unani System of Medicines, Punjab, and who was
practising modern system of medicines was served with an
order of the District Durgs inspector,Hoshiarpur,prohibiting him from keeping in his possession any allopathic drug for administration to patients and further issuing general direction to the chemists not to issue allopathic drugs to any patient on the prescription of thesaid doctor. That action of the Inspector was questioned byDr.Dardi in the Punjab & Haryana Court in C.W.P.No.2204 of 1986.He claimed that he was covered by the said notification and was entitled to prescribe allopathic
medicine to his patients and store such drugs for their
treatment (hereinafter referred to as Dardi's case). A Division Bench of the Punjab & Haryana High Court, by judgment dated September 17,1986, held that the said notification was ultra vires the provisions of sub-cluse (iii) of clause (ee) of rule 2 of the Drugs Rules and also contrary to the provisions of Indian Medical Council Act, 1956 and accordingly dismissed his writ petition.Writ petitions in the High Court of Punjab and
Haryana for a mandamus restraining the authorities concerned
from interfering with their right to prescribe medicines
falling under the Drugs Act on the strength of such
notifications were also dismissed by the High Court and the
aggrieved persons have filed appeals before us by special
leave.Writ Petitions are filed in this Court by various persons
claiming that they are registered medical practitioners
within the meaning of the said notification and are entitled
to practise 'modern scientific system of medicine. It may
be noticed here that the petitioners in W.P.No.1082/88 and
359.91 were registered by Ayurvedic and Unani Medical
Council in the State of Bihar. The petitioner inW.P.No.423/97 holds degree of B.A.M.S.from the Maharishi Dayanand University, Rohtak.He asserts that on the basis of said degree he is entitled to practise 'modern scientific system of medicine'.
On the same subject cases came up before Rajasthan
High Court. The Jodhpur Branch of Indian Medical
Association filed Civil Writ Petition No.1777/82 in the
Hingh Court. of Rajasthan seeking a declaration that rule
2(ee)(iii) of the Drugs Rules and the Circular No.26(24)M.E. (Group-T)82 issued by the Government of Rajasthan on July 26, 1982, were void and ultra vires the provisions of the Drugs Act and the Indian Medical Council Act,1956. By judgment dated September 29, 1994 a Division Bench of the Rajasthan High Court held that the said rule was without any legislative competence and consequentially the notification was illegal and void. The correctness of the said judgment has been assailed by the Private Medical Practitioners Association of India (which represents the beneficiaries of a similar circular issued by the Government
of Rajasthan) in S.L.P.No. 8422 of 1995. On the Strength
of the aforesaid judgemnt of the Division Bench, another
writ petition filed by M/s.Chandasi Private Medical
Practitioners Sansthan, a registered society, was also
dismissed.That judgment is also challended by filling a
special leave Petition.We heard all the said civil appeals,special leave petitions and writ petitions together as the question
involved in all the cases is common. Mr.D.D.Thakur,learned senior counsel appearing for the appellants-petitioners in the appeals and special leave petitions, has argued that the grounds on which the Punjab & Haryana High Court dismissed Dr.Dardi's writ petition we not applicable to the appellants-petitioners and without
noticing the difference the Division Bench denied relief to
them so the judgments under appeal are unsustainable in law.
The rule in question, submits the learned senior counsel,
was formed under the Drugs Act having regard to the factual
position that the qualified allopathic doctors are not
available in the rural areas and that persons like the
appellants-petitioners have been catering to the medical
needs of the residents of such areas, as such the rule is in
public interest. The rule, it is argued, cannot be said to
be illegal for want of legislative competence as Section 33
of the Drugs Act confers very wide powers on the Central
Government to frame rules.As the class of medical
practitioners postulated by clause (iii) of the rule can
properly be identified by the State Governments they are
empowered to declare, by general or specific order, such
class and the notifications issued by various State
Governments are well within the ambit of the rule. In any
event urged the learned counsel, the High Court ought not to
have dismissed the writ petition in limine and that it ought
to have gone into the merits of the case of the petitioners
on the basis of the qualifications possessed by them and
allowed them to prescribe allopathic medicines as registered
medical practitioner.Mr.K.T.S.Tulsi, learned senior counsel, supported the notification issued by the State Government and
submitted that had the State Government so desired it would
have withdrawn the notification but the very fact that it
had not done so, would show that the registered medical
practitioners have been rendering yeoman service to the
citizens, hence, the notification most be given full effect.
Ms. Indra Jaising,learned senior counsel, adopted
the arguments of Mr.thakur in general, but focussed on the
plea that since integrated courses in Ayurvedic medical
education comprises of various topics under modern medicine
and when such persons have put in considerable years of
practice covering such topics also, any infraction of their
right to prescribe medicines which may fall under the Drugs
Act would very adversely affect the areas where they are
mostly serving now
.
Mr.P.C.Jain, learned senior counsel appearing for
the petitioners in Writ Petition No. 423 of 1997 while
supporting the contention of Mr.Thakur, highlighted that the
right of practitioners of Indian Medicine to practise modern
scientific system of Medicine (Allopathic Medicine) is
protected under Section 17(3)(b) of Indian Medicine Central
Council Act, 1970.
Mr.Kirit N.Raval, learned Additional Solicitor General
appearing for the Central Government, has submitted that the
Central Governemnt is maintaining equal distance from both
the contenders, namely, the doctors of modern scientific
medicine (allopathic)and the qualified Vaids/Hakims of
Indian medicine; though the Central Government had taken the
plea in the High Courts that practice in allopathic medicine
should not be allowed by non-allopathic doctors and in that
he would support the view taken by the High Courts of
Rajasthan and Punjab & Haryana regarding validity of rule
2(ee)(iii) and the notifications issued thereunder, he would
however, add that as a matter of fact many Ayurvedic Vaids
and Unani Hakims are prescribing allopathic drugs and that
the Central Government will abide by the decision of this
Court. Here we are constrained to observe that the stand
taken by the Central Government shows utter bewilderment
inasmuch as the authority which framed rule is not
interested in supporting the legality and the validity of
the rule not does it want to do away with the Rule whole
heartedly.
Mr.K.S.Bhati, learned counsel appearing for the
State of Rajasthan, in his arguments strongly supported the
judgemnt of the Rajasthan High Court under appeal.
Mr.H.M.Singh appearing for the State of Punjab also
supports the judgment of Punjab and Haryana High Court and
went further and submitted that the rule itself was invalid
-- a strange plea by the State Government indeed.
Mr. Devender Singh appearing for Respondent No. 1 in
Special Leave Petition (c) No.8422 of 1995 also maintained
the arguments of Mr. Bhati.
Mr. Ranjit Kumar who appeared for allopathic
doctors, vehemently contended that a non-allopathic doctor
could not be permitted to prescribe allopathic medicines; he
supported the grounds on which the Rajasthan High Court had
struck down the rule and also the interpretation placed by
the Punjab & Haryana High Court on the said rule. His
alternative submission is that even if Vaids/Hakims are held
to be within the ambit of clause (iii) after the enactment
of Section 15(2)(b) of the Medical Council Acc and the
Indian Medicine Central Council Act, 1970 that clause ceased
to be operative.On the submissions made by the learned counsel for the parties, the questions which fall for determination are
1.Whether Rule 2(ee)(iii) of the Drugs Rule is bad for
want of legislative competence; and are the impugned
notifications issued by the State Governments, under
clause (iii) of the said rule, declaring the categories of persons who were practising modern
system of medicine invalid in law.
2.What is the impact of Indian Medical Council Act,
1956 and Indian Medical Central Council Act, 1970 on
rule 2(ee)(iii) of the Drugs Rules and the
notifications issued thereunder? and
3.Whether the persons who have qualified the
integrated courses in Ayurveda and Unani from vairous
universities are entitled to practise in and prescribe
allopathic medicines.
Before adverting to these questions, it would be
useful to notice various systems of medicine in vogue in
India and the statutes regulating them.
The systems of medicines generally prevalent in
India are Ayurveda, Sidha, Unani Allopathic and Homeopathic.
In Ayurveda, Sidha and Unani systems the treatment is based
on the harmony of the four humors, whereas in allopathic
system of medicine treatment of disease is given by the use
of a drug which produces a reaction that itself neutralizes
the disease. In Homeopathy, treatment is provided by the
likes.
Of the medical systems that in vogue in India,
Ayurveda had its origin in 5000 B.C. and is being practised
throughout India but Sidha is practised in the
Tamil-sepeaking areas of South India. These systems differ
very little both in theory and practice. The Unani system
dates back to 460-370 B.C. but that had come to be practised
in India in the 10th Century A.D. (Park's Textbook of
Preventive and Social Medicine, 15th Edn. pp.1 & 2).
Allopathic medicine is comparatively recent and had its
origin in the 19th century.
Noticing that for practising allopathic system of
medicines the degrees and diplomas were being issued by
private institutions to untrained or insufficiently trained
persons and some of the were colorable imitations of those
issued by recognized Universities and corporations which was
resulting in unqualified persons posing to the public as
possessing qualifications in medicine and surgery which they
did not possess. The Indian Medical Degrees Act, 1916 (for
short '1916 Act') was enacted to ban conferring of degrees
or issuing of certificates, licences etc. to practise
western medical science, by persons or authorities other
than those specified in the Schedule and notified by State
Governments. The western medical science was defined to
mean the western methods to allopathic medicine obstructors
and surgery; the Homoeopathic, Ayurvedic and Unani system of
medicine were excluded from its purview. The next Central
legislation on the subject is Indian Medical Council Act,
1933 (for short '1933 Act'). This 1933 enactment was
introduced to constitute a Medical Council in India in order
to establish a uniform minimum standard of higher
qualifications in medicine for all the erstwhile provinces.
Section 2(d) of that Act defines the word "medicine" to mean
"modern scientific medicine" which connotes allopathic
medicine) including surgery and obstetrics, but excluding
veterinary medicine) including surgery and obstetrics, but
excluding veterinary medicine and surgery. Although
Homeopathic, Ayurvedic or Unani system was not expressly
excluded from the definition, yet a perusal of the Schedule
makes it abundantly clear that those system of medicines
were not within the scope of that Act.
It may be noted that since 'level, medical and other
professions' is them 26 of Fist III [Concurrent List] of
Seventh Schedule to our Constitution, both the State
Legislatures and the Parliament have enacted on the subject
of medical profession. Now all these systems of medicines
are governed by Central Acts. The Indian Medical Council
Act , 1956 (which has repealed 1933 Act) regulates modern
system of medicine; the Indian Medicine Central Council Act,
1970 regulates Indian medicine and The Homeopathic Central
Council act, 1973 regulates practice of Homeopathic
medicine. Here we are not concerned with Homeopaths in
regard to practice of allopathic medicine by a homeopath,
this Court concluded thus, in Poonam Verma vs. Ashwin Patel,
(1996) 4 SCC 332:
"A person who does not have knowledge of a
particular system of medicine but practices in that
system is a quack and a mere pretender to medical
knowledge or skill, or to put it differently, a
charlatan."
The erstwhile provinces were and thereafter the
present States are also having their own legislation with
regard to medical practitioners in different systems (Indian
medicine as well as allopathic) and are maintaining
registers of medical practitioners in those systems. They
are too many to enlist them here least this judgment will be
needlessly burdened. However, we shall presently refer to
the relevant Acts of the States to which the appeals relate.
The Drugs Act enacted with a view to regulate the
import, manufacture, distribution and sale of drugs to curb
the evil of adulteration of drugs and production of spurious
and sub-standard drugs which were posing serious threat to
the health of the community. The amended definition of
'Drug' in clause (b) of Section (3) in the Drugs Act is
inclusive and comprehensive but it does not include
'Ayurvedic, Siddha or Unani' drug. Indeed at the time of
its enactment in 1940, it was not intended to apply to such
drugs. It is only by Act 13 of 1964 that those drugs are
also brought within the purview of the Drugs Act by
including their definition in clause (a) of Section 3 and
Chapter IVA in the Act.
Section 33 which falls in Chapter IV of the Drugs
Act, empowers the Central Government to the provi=sione of
Chapter IV which deals with manufacture, said and
distribution of drugs and cosmetics. Sub-section (2) of
Section 33 enumerates many subjects in clauses (a) to (g) in
respect of which rules may be made. Section 33-A says that
Chapter IV shall not except as provided in the Act, apply to
Ayurvedic, Shidda or Unani drugs. On December 21, 1945, in
exercise of the powers conferred under Section 33, the
Central Government framed the Drugs Rules. Rule 2 contains
the definition of the terms and expressions used in the
Rules. Rule 2(ee), which was inserted by SO 1196 dated
April 9, 1960 with effect from May 14, 1960, defines the
expression "registered medical practitioner".
For purposes of the Pharmacy Act, 1948, the
expression medical practitioner is defined by substituting
Section 2(f) therein with effect form 1.5.1960. Section 2(f)
of Pharmacy Act and Rule 2(ee) of the Drug Rules are
identical.
Clause (i) to (iii) of Rule 2(ee) are relevant for
our purpose and they read as under:
"2(ee) Registered medical practitioner means a
person -
i)holding a qualification granted by an
authority specified or notified under Section 3 of
the Indian Medical degrees Act, 1916 (7 of 1916),
or specified in the Schedules to the Indian
Medical Council Act, 1956 (102 of 1956); or
ii) registered or eligible for registration in a
medical register of a State meant for the
registration of persons practising the modern
scientific system of medicine (excluding the
Homeopathic system of medicine); or
iii) registered in a medical register (other than
a register for the registration of Homeopathic
practitioners) of a State, who although not
falling within sub-clause (i) or sub-clause (ii)
is declared by a general or special order made by
the state Government in this behalf as a person
practising the modern scientific system of
medicine for the purposes of this Act.
iv) and (v) *** *** *** ***"
[They are omitted as they are not material for
this batch of cases.]
A plain reading of clauses, extracted above shows
that the ambit of clause (iii) must necessarily exclude those
who would fall under the first two clauses. There is no
controversy that categories (i) and (ii) relate to
practitioners of allelopathic medicines. Hence, the third
category falling under clause (iii) on which vaids/Hakims
(non-Allopathic doctors) base their claim may be analysed
here. (a) It takes in persons who are registered in a
medical register of a State (it may be noticed here that such
a register should not be meant for registration of
Homeopathic practitioners but it need not be a register meant
for registration of persons practising modern system of
medicine); (b) such persons do not fall within category (i)
or category (ii) of clause (ee), as noted above (c) they most
be declared as persons practising modern system of medicine
by general or special order made by the State Government in
that behalf; and (d) such a declaration would operate only
for purposes of the Drugs Act and the Rules made thereunder.
The learned counsel argued at length on the question
whether clause (iii) is also intended for left out qualified
allopathic doctors. But if that interpretation is accepted
the said clause will become redundant as admittedly clauses
(i) and (ii) exhaust all categories of practitioners entitled
to practice in allopathic medicine. It was conceded at the
end of the day and, in out view rightly, that the clause
takes in medical practitioners other than qualified
practitioners entitled to practise allopathic medicine. And
as practitioners of Homeopathic medicine are specifically
excluded, it becomes evident that this category comprises of
practitioners who are enrolled in a medical register of a
State and though not answering the description of clauses (i)
and (ii) are de facto practising modern system of medicine
(allopathic) and those facts are declared by the State
Government concerned. By this sub-clause, a de facto
practitioner of modern scientific medicine (allopathic) is
recognized as a registered medical practitioner and is
enabled to prescribe drugs covered by the Drugs Act.
This being the content of clause (iii) of Rule 2(ee),
we shall now turn to the question of validity of the said
clause and the circular/notifications issued thereunder by
the State Governments. Letter No.26(24) M.E. (group-1)82
dated July 27, 1982 was issued by the Rajasthan Government,
communicating the approval of recommendations subject to the
conditions specified therein for purposes of issuing the
notification under clause (iii) (herein referred to as
'circular') and the notification No. 9874-IIBII-67/34526
dated October 29, 1967 was issued by the Punjab Government in
exercise of powers conferred under the said clause.
The learned counsel appearing for allopathic doctors
and their association supported the view of the Rajasthan
High Court that the rule is bed for want of legislative
competence. We are afraid we cannot accede to this
contention. Section 33 of the Drugs Act confers wide power
on the Central Government to make rules. Section 33, in so
far as it is relevant, is reproduced hereunder :
"33 Power of Central Government to make rules.
1.The Central Government may after
consultation with or on the recommendation of the
Board and after previous publication by
notification in the Official by notification in
the Official Gazette, make rules for the purpose
of giving effect to the provisions of this Chapter
Provided that consultation with the Board
may be dispensed with if the Central Government is
of opinion that circumstances have arisen which
render it necessary to make rules without such
consultation, but in such a case the Board shall
be consulted within six months of the making of
the rules and the Central Government shall take
into consideration any suggestions which the Board
may make in relation to the amendment of the said
rules.
2.Without prejudice to the generality of the
foregoing power, such rule may
(a) to (d) ****** ***
(e)prescribe the forms of licences for the
manufacture for the sale or for distribution, for
the sale and for the distribution of drugs or any
specified drug or class of drugs or of cosmetics
or any specified cosmetic or class of cosmetics,
the form of application for such licences, the
conditions subject to which such licences may be
issued, the qualifications of such authority and
the fees payable therefor and provide for the
cencelation or suspension of such licences in any
case where any provision of this Chapter or the
rules made thereunder is contravened or any of the
thereunder is contravened or any of the conditions
subject to which they are issued is not complied
with
(f) to (p) *** *** ***
(q)provide for the exemption, conditionally or
otherwise, from all or any of the provisions of
this Chapter or the rules made thereunder, of any
specified drug or class of drugs or cosmetic or
class of cosmetics."
Sub-section (1) of Section 33 of the Drugs Act
empowers the Central Government to make rules for purposes of
giving effect to the provisions of Chapter IV which deal with
manufacture, sale and distribution of drugs and cosmetics.
This is a general power of great amplitude. Withhot
prejudice thothe generality of the power in sub-section (1)
specific topics are itemized in sub-section (2), in clauses
(a) to (q), in respect of which rules may be made by the
Central Government. Among them sub-clause (e) relates to the
power to prescribe the forms of licences for the manufacture
for sale, or for distribution for the sale and for the
distribution of drugs, or any specified drugs or classes of
drugs or of cosmetics or of any specified cosmetics or any
class of cosmetics, the form of application for such
licences, the condition subject to which such licences may be
issued, the authority empowered to issue the same, the
qualification for such authority, etc. Section 18 which
falls in Chapter IV, specifically deals with prohibition for
manufacture and sale of certain drugs and cosmetics. Rule 65
provides conditions of licence to sell, stock or exhibit or
offer for sale or distribute for wholesale, retail etc.
Various sub-urles of the said rule contain as a condition of
licence that the supply of drugs should be on the
prescription of a 'registered medical practioner' (See
Conditions Nos. 2, 3(1), 5(1), 9 and 9(a)].
From the above discussion what emerges is that drugs
can be sold or supplied by pharmacist or druggist only on the
prescription of a 'registered medical practitioner' who can
also store them for treatment of his patients. It has,
therefore, became necessary for the rule-making authority to
define the expression 'registered medical practitioner' for
the purposes of the Act and the Rules. Rule 2(ee) does no
more than defining that expression, which is within the scope
of Section 33(1) as well as 33(2)(e). Therefore it cannot be
said that the rule making authority was lacking legislative
competence to make rule 2(ee). The High Court misdirected
itself by looking to the provisions of Sections 6 and 12
which do not contain the rule-making power. It is only
Section 33 which contains the rule-making power. The High
Court has also erred in searching for a power to frame rules
for the registration of medical practitioners; obviously such
a power is not conferred under the Act. The rule veritably
does not deal with registration of the medical practitioner.
It only defines the expression 'registered medical
practitioners' by specifying the categories of medical
practitioners which fall within the definition for purposes
of the Drugs Act and the Drugs Rules. For the aforementioned
reasons, we are unable to sustain the view taken by the High
Court of Rajasthan that the impugned Rule 2(ee)(iii) suffers
from the vice of lack of legislative competence and is ultra
vires the Drugs Act.
Now coming to the notifications issued by the Punjab
Government on October 29, 1967 and the Circular issued by the
Rajasthan Government on July 26, 1982, referred to above, it
has already been pointed out that for purposes of clause
(iii) of Rule 2(ee) what is required is not the qualification
in modern scientific system of medicine but a declaration by
a State Government that a person is practising modern
scientific system and that he is registered in a medical
register of the State (other than a register for registration
of Homeopathic practitioner). A notification can be faulted
with only if those requirements are not satisfied. The
Punjab and Haryana High Court proceeded with an assumed
intention of the rule-making authority that it could not be
within its conception to bring Vaids/Hakims, the
practitioners of Ayurveda (Indian System of Medicine), within
the purview of the said expression and that it could have
only envisaged registration of medical practitioner of modern
scientific system holding qualifications mentioned in clauses
(i) and eligible for registration under clause (ii) and on
that basis held the said notification was ultra vires the
rules.
From what has been discussed above, we are unable to
uphold the view of the Punjab and Haryana High Court.
We have perused the above said notifications issued
by the State Governments and we find that they are well
within the confines of clause (iii) of rule 2(ee). Therefore,
we conclude that the said circular and the notification
issued by the said State Governments declaring the categories
of Vaids/Hakims who were practising modern system of medicine
and were registered in the State Medical Registers, are valid
in law.
Points 2 and 3 have some over lapping so it will be
convenient to discuss them together. The right to practise
any profession or to carry on any occupation trade or
business in no doubt a fundamental right guaranteed under
Article 19(1)(g) of the Constitution of India. But that
right is subject to any law relating to the professional or
technical qualifications necessary for practsing any
profession or carrying on any occupation or trade or business
enacted under clause 6 of Article 19. The regulatory
measures on the exercise of this right both with regard to
standard of professional qualifications and professional
conduct have been applied keeping in view not only the right
of the medical practitioners but also the right to life and
proper health care of persons who need medial care and
treatment. There can, therefore, be no compromise on the
professional standards of medical practitioners. With regard
to ensuring professional standards required to practise
allopathic medicine the 1956 Act. was passed which deals
also with reconstitution of the Medical Register. Thus, for
the first time an Indian Medical Register for the whole of
India came to be maintained from 1956. In the 1956 Act.
Section 2(f) defines "medicine" to mean 'modern scientific
medicine' in all its branches and includes surgery and
obstetrics, but does not include veterinary medicine and
surgery and the expression recognised medical qualification
is defined in Section 2(h) to mean any of the medical
qualifications included in the Schedules to the Act.
There more expressions in the 1956 Act have to be
noticed here. But before we do so, it must be noted here
that the object and reasons of the 1956 Act took note of the
fact that there are local Acts in the States providing for
State Medical Council and maintenance of State Medical
Registers for registration of qualified practitioners in
western medical science or modern scientific medicine, that
is allopathic medicine. Now, reverting to the expressions in
1956 Act, they are : "State Medical Council" defined in
Section 2(j) as a medical council constituted under any law
for the time being in force in any State regulating the
registration of practitioners of medicine; "State Medical
Register" defined in Section 2(k) to mean a register
maintained under any law for the time being in force in any
State regulating the registration of practitioners of
medicine and 'Indian Medical Register' to mean the medical
register maintained by the Council. The 1956 Act provides
for the recognition of medical qualifications granted by
Universities or medical institutions in and outside India
which are specified in the Schedules. Section 15 which is
relevant, was in the following terms when the said Act was
passed in 1956 :
"15. Subject to the other provisions contained in
this Act, the medical qualifications included in
the schedules shall be sufficient qualification
for enrolment on any State Medical Register."
It laid down that the qualifications included in the
Schedules should be sufficient qualification for enrolment on
any State Medical Register. It may be pointed out here that
in none of the Schedules the qualifications of integrated
courses figure consequently by virtue of this section persons
holding degrees in integrated courses cannot be registered on
any State Medical Register.
By Act 24 of 1964, Section 15 of the 1956 Act was
modified by keeping the existing section as sub-section (1)
and by adding two more, sub-sections (2) and (3), which read
thus :
"(2)Save as provide in Section 25, no person
other than a medical practitioner enrolled on a
State Medical Register -
(a)shall hold office as physician or surgeon or
any other office (by whatever designation called)
in Government or in any institution maintained by
a local or other authority.
(b)shall practices medicine in any State
(c)shall be entitled to sign or authenticate a
medical or fitness certificate or any other
certificate required by any other certificate
required by any law to be signed or authenticated
by a duly qualified medical practitioner.
(d)shall be entitled to give evidence at any
inquest or in any Court of Law as an expert under
Section 45 of the Evidence Act, 1872 or on any
matter relating to medicine.
(3)Any person who acts in contravention of any
provision of sub-section (2) shall be punished
with imprisonment for a term which may extend to
one year, or with fine which may extend to one
thousand rupees, or with both."
For the present discussion, the germane provision is
Section 15(2)(b)of the 1956 Act which prohibits all persons
from practising modern scientific medicine in all its
branches in any State except a medical practitioner enrolled
on a State Medical Register. There are two types of
registration as for the State Medical Register is concerned.
The first is under Section 25, provisional registration for
the purposes of training in the approved institution and the
second is registration under Section 15(1). The third
category of registration is in the Indian Medical Register'
which the Council is enjoined to maintain under Section 21
for which recognised medical qualification is a prerequisite.
The privileges of persons who are enrolled on the Indian
Medical Register are mentioned in Section 27 and include
right to practise as medical practitioner in any part of
India. 'State Medical Register' in contra-distinction to
'Indian Medical Register', is maintained by the State Medical
Council which is not constituted under 1956 Act but is
constituted under any law for the time being in force in any
State; so also a State Medical Register is maintained not
under 1956 Act but under any law for the time being in force
in any State regulating the registration of practitioners of
medicine. It is thus possible that in any State, the law
relating to registration of practitioners of modern
scientific medicine may enable a person to be enrolled on the
basis of the qualifications other than the 'recognised
medical qualification' which is a pre-requisite only for
being enrolled on Indian Medical Register but not for
registration in a State Medical register. Even under the
1956 Act, 'recognised medical qualification' is sufficient
for that purpose. That does not mean that it is
indispensably essential. Persons holding 'recognised medical
qualification' cannot be denied registration in any State
Medical Register. But the same cannot be insisted upon for
registration on a State Medical Register. However, a person
registered in a State Medical Register cannot be enrolled on
Indian Medical Register unless he possesses 'recognised
medical qualification'. This follows from a combined reading
of Sections 15(1), 21(1) and 23. So by virtue of such
qualifications as prescribed in a State Act and on being
registered in a State Medical Register, a person will be
entitled to practise allopathic medicine under Section
15(2)(b) of the 1956 Act.
In the above view of the matter, we are unable to
agree with the following observations of this Court in
A.K.Sabhapathy vs. State of kerala, (1992) Supp1. (3) SCC 147
:
"These provisions contemplate that a person can
practise in allopathic system of medicine in a
State or in the country only if he possesses a
recognised medical qualification. Permitting a
person who does not possess the recognised medical
qualification in the allopathic system of medicine
would be in direct conflict with the provisions of
the Central Act."
We have perused the Bombay Medical Act, 1912, Bihar
and Orissa Medical Act, 1916, Punjab Medical Registration Act
1916, Rajasthan Medical Act 1952 and Maharashtra Medical
Council Act, 1965 which regulate maintenance of registers of
medical practitioners and the entitlement to practice
allopathic medicine. Under those Acts State Medical
Registers are maintained. Section 7(3) of the Bombay Act of
1912, enabled the Provincial Government, after consulting the
State medical council, to permit the registration of any
person who was actually practising medicine in Bombay
Presidency before 25th June, 1912, this seems to be the only
case of registration without requisite qualification.
Further persons possessing Ayurvidya Visharad of the Tilak
Maharashtra Vidyapeeth of Poona, obtained during the years
1921-1935 (which was included in the Schedule to that Act on
31st. September, 2939 pursuant to Notification No. 3020/33
dated 12.9.1939) were entitled to be registered in the State
Medical Register; this is the only Ayurvedic qualification on
the basis of which persons were eligible to be registered on
the State Medical Register in Maharashtra; further with
regard to rural areas, the prohibition to practice allopathic
medicine under that Act did not apply provided a person had
commenced practice in any village in the rural area prior to
1912. None of the petitioners has claimed benefit of these
exceptions. We could not find any other provision which
enables a person, other than those possessing qualification
prescribed in the Schedules to the Acts, to be registered on
the State Medical Register to practise allopathic medicine.
So it can be observed that if any State law relating to
registration of Medical practitioners permits practise of
allopathic medicine on the basis of degree in integrated
medicines, the bar in Section 15(2)(b) of the 1956 Act will
not apply.
Rule 2(ee), as noted above, has been inserted in the Drugs
Rules with effect from May 14, 1960. Section 15 of the 1956
Act, as it then stood, only provided that the medical
qualifications in the Schedule shall be sufficient
qualification for enrolment on any State medical register and
so there was no inconsistency between the section and the
Rule when it was brought into force. But after Sub-section
(2) of Section 15 was inserted in the 1956 Act, with effect
from 15.09.1964, which inter alia, provides that on person
other than a medical practitioner enrolled on a 'State
Medical Register' shall practise modern scientific medicine
in any State, the right of non-allopathic doctors to
prescribe drugs by virtue of the declaration issued under the
said drugs Rules, by implication, got obliterated. However,
this does not behar them from prescribing or administering
allopathic drugs hold across the counter for common ailments.
Here it may be necessary to refer to the development
of law with regard to Indian medicine. In pre-constitutional
era each province of India was having its own enactment
regulating the registration and practice in Indian medicines
like -- Uttar Pradesh Indian Medicine Act, 1939. The Punjab
Ayurvedic and Unani Practitioners Act, 1949 etc. After
coming into force of the Constitution, many State
legislations were enacted to regulate the practise of Indian
medicine, Ayurvedic and Unani like Punjab Ayurvedic and Unani
Practitioners Act, 1963 etc. However, on the model of 1956
Act, the Parliament enacted The Indian Medicine Central
Council Act, 1970 (for short '1979 Act'). The schemes and
provisions of 1970 Act and 1956 Act are analogous. 'Indian
Medicine' is defined in Section 2(e) of the Act to mean the
system of Indian medicine commonly known as Ashtang Ayurveda,
Siddha or Unani Tibb whether supplemented or not by such
modern advances as the Central Council may declare by
notification from time to time. In Section 2(j) the
expression "State Register of Indian Medicine" is defined to
mean a register or registers maintained under any law for the
time being in force in any State regulating the registration
of practitioners of Indian medicine. The Act contemplates
having separate Committees for Ayurvedic, Siddha and Unani
medicines. Section 17 enables, inter alia, the persons who
possess medical qualifications mentioned in the Second, Third
or Fourth Schedule to be enrolled on any state Register of
Indian Medicine. A perusal of the Second, Third and Fourth
Schedules shows that they contain both integrated medicine as
well as other qualifications. So a holder of degree in
integrated medicine is entitled to be enrolled under Section
17 of 1970 Act. Section 22 authorises the Central Council to
prescribe the minimum standards of education in Indian
medicine required for granting recognized medical
qualifications by Universities, Boards or medical
institutions in India. The Central Council is enjoined to
maintain Central Register of Indian medicine containing the
particulars mentioned therein and Section 25 lays down
procedure for registration in the Central Register of Indian
medicine. The counterpart of Section 15 of 1956 Act is
Section 17 of 1970 Act. We shall quote it here :
"17.(1) Subject to the other provisions contained
in this Act, any medical qualification included in
the Second, Third or Fourth Schedule shall be
sufficient qualification for enrolment on any
State Register of Indian Medicine.
(2)Save as provided in section 28, no person
other than a practitioner of Indian Medicine who
possesses a recognised medical qualification and
is enrolled on a State Register or the Central
Register of Indian Medicine -
i)shall hold office as Vaid Siddha, Hakim or
Physician or any other office (by whatever
designation called) in Govt. or in any institution
maintained by a local or other authority;
ii)shall practice Indian medicine in any State;
iii)shall be entitled to sign or authenticate a
medical or fitness certificate or any other
certificate required by any law to be signed or
authenticated by a duly qualified medical
practitioner;
iv)shall be entitled to give evidence at any
inquest or in any court of law as an expert under
Section 45 of the Indian Evidence Act, 1872, on
any matter relating to Indian medicine.
3)Nothing contained in sub-section (2) shall
affect -
i)the right of a practitioner of Indian
medicine enrolled on a State Register of Indian
Medicine to practice Indian medicine in any State
merely on the ground that, on the commencement of
this Act, he does not possess a recognised medical
qualification;
ii)the privileges (including the right to
practice any system of medicine) conferred by or
under any law relating to registration of
practitioners of Indian medicine for the time
being in force in any State on a practitioner of
Indian medicine enrolled on a State Register of
Indian Medicine;
iii)the right of a person to practice Indian
medicine in a State in which, on the commencement
of this Act, a State register of Indian Medicine
is not maintained if, on such commencement, he has
been practising Indian Medicine for not less than
five years;
iv)the rights conferred by or under the Indian
Medical Council act, 1956 (including the right to
practice medicine as defined in clause (f) of
Section 2 of the said Act, on persons possessing
any qualifications included in the Schedules to
the said Act.
4.Any person who acts in contravention of nay
provision of sub-section (2) shall be punished
with imprisonment for a term which may extend to
one year, or with fine which may extend to one
thousand rupees, or with both."
A perusal of the provisions extracted above, shows that
sub-section (1) prescribes qualifications considered
sufficient for enrolment on any State Register of Indian
Medicine. Sub-section (2) ordains that all persons except
those who possess a recognised medical qualification and are
enrolled on a State Register or the Central Register of
Indian medicine, are prohibited from doing any of the acts
mentioned in Clause (a) to (d) of that sub-section.
Sub-section (3), however, carves out an exception to the
prohibition contained in sub-section (2). Clause (a) thereof
saves the right to practise of any medical practitioner of
Indian Medicine who was not having recognised medical
qualification on the date of the commencement of 1970 Act but
who was enrolled on a State Register to practise that system
of medicine; clause (b) protects the privileges which include
the right to practise any system of medicine which was
conferred by or under any law relating to registration of
practitioners of Indian medicine for the time being in force
in any State on a practitioner of Indian medicine who was
enrolled on a State Register of Indian medicine; Clause (c)
saves the right of a person to practise Indian medicine was
maintained at the commencement of that Act provided he has
been practising in the Indian Medicine for not less than five
years before the commencement of the Act and Clause (d)
protects the rights conferred by or under the 1956 Act
including the right to practise modern medicine possessing
any qualification included in that Act. In other words,
under clause (d) the right to practise modern scientific
medicine in all its branches is confined to only such persons
who possess any qualification included in the Schedules to
1956 Act. In view of this conclusion it matters little if
the practitioners registered under 1970 Act are being
involved in various programmes or given postings in hospitals
of allopathic medicine and the like.
It will be appropriate to notice that 1970 Act also
maintains similar distinction between State register of
Indian medicine and Central register of Indian medicine.
Whereas the State register of Indian medicine is maintained
under any law for the time being in force in any State
regulating the registration of practitioners of Indian
medicine, the Central register of Indian medicine has to be
maintained by the Central Council under Section 23 of that
Act. For a person to be registered on the Central register,
Section 25 enjoins that registrar should be satisfied that
the persons concerned was eligible under that Act for such
registration. Keeping this position in mind, if we read
Section 17(3)(b), it becomes clear that the privileges which
include the right to practise any relating to registration of
practitioners of Indian medicine for the time being in force
in any State on a practitioner of Indian medicine enrolled on
a State register of Indian medicine, is not affected by the
prohibition contained in sub-section (2) of Section 17.
To ascertain if any State law confers 'the right to practise
any system' we have perused Bombay Medical practitioners Act,
1938, Rajasthan Indian Medicine Act, 1953 and Maharashtra
Medical Practitioners Act, 1961 which deal with registration
of practitioners of Indian Medicine in those States. The
requirement as to registration was also contemplated under
Pepsu Ayurvedic & Unani Practitioners Act, 2008 R.K. (No.
XII of 2008 B.K.) and East Punjab Ayurvedic & Unani
practitioners Act. 1949 as well as under Punjab Ayurvedic
and Unani Practitioners Act 1963, which repeated the said two
Acts. This 1963 prescribes qualifications as specified in
the Schedule for the purpose of registration as a registered
practitioner. In the said Act of 1963 also, there is an
express provision prohibiting a person other than registered
practitioners, as defined therein, to practise or hold out
whether directly or by implication as practising or being
prepared to practise Ayurvedic system or Unani system.
Section 16(3) of the Pepsu Ayurvedic and Unani Practitioners
Act, 2008 B.K. enjoins that no Vaids/Hakims shall be
registered under the Act if the Registrar is satisfied that
such a person is found to practise any other system of
medicine for which he did not hold any certificate or
diploma. But we could not lay our hands on any provision in
the said State Acts under which the right to precise any
system of medicine is conferred on practitioners of Indian
medicine registered under those Acts.
Nevertheless, Ms. Indira Jaising asserted that the
prohibition contained in Section 15(2) and the punishment
provided in Section 15(3) of the 1956 Act would apply only to
persons practising allopathic system of medicine without
obtaining the registration but does not apply to
practitioners of Indian medicine. This submission is too
broad to merit acceptance. It may be pointed out first that
the Act regulates practice of allopathic medicine, so Section
15(2)(b) requires that only those who are registered on State
Medical Register alone can practise allopathic medicine and
secondly, the prohibition is directed against every person
who is not registered on any State Medical Register and all
such persons are precluded from practising allopathic
medicine. The punishment under Section 15(3) is in respect
of contravention of any provision of sub-section (2).
However, the claim of those who have been notified by State
Governments under clause (iii) of rule 2(ee) of the Drugs
Rules and those who possess degrees in integrated courses to
practice allopathic medicine is sought to be supported from
the definition of the Indian Medicine in Section 2(e) of 1970
Act, referred to above, meaning the system of Indian medicine
commonly known as Ashtang Ayurveda, Siddha or Unani Tibb
whether supplemented or not by such modern advances as the
Central Council may declare by notification from time to
time. Lot of emphasis is laid on the words underlined to
show that they indicate modern scientific medicine as under
integrated systems various branches of modern scientific
medicine have been included in the syllabi. A degree holder
in integrated courses is imparted not only the theoretical
knowledge of modern scientific medicine but also training
thereunder, is the claim. We shall examine the notifications
issued by the Central Council to ascertain the import of
those words. In its resolution dated March 11, 1987, the
Central Council elucidated the concept of "modern advances"
as follows :
"This meeting of the Central Council hereby
unanimously resolved that in Clause (e) of
Sub-section 2(1) of 1970 Act of the IMCC Act, 'the
modern advances', the drug has advanced made under
the various branches of modern scientific system
of medicine, clinical, non-clinical, biosciences,
also technological innovations made from time to
time and declare that the courses and curriculum
conducted and recognised by the CCIM are
supplemented by such modern advances."
On October 30, 1996 a clarificatory notification was issued,
which reads as under :
"As per provision under Section 2(1) of the Indian
Medicine Central Council Act, 1970, hereby Central
Council of Indian Medicine notifies that
'institutionally qualified practitioners of Indian
system of medicine (Ayurveda, Siddha and Unani)
are eligible to practise Indian system of medicine
and modern medicine including Surgery, Gynecology
and Obstetrics based on their training and
teaching which are included in the syllabi of
courses of ISM prescribed by Central Council of
Indian Medicine after approval of the Government
of India.
The meaning of the work 'modern
medicine'(Advances) means advances made in various
branches of Modern scientific medicine, clinical,
non-clinical bio-sciences also technological
innovations made from time to time and notify that
the courses and curriculum conducted and
recognised by the Central Council of Indian
Medicine are supplemented by such modern
advances."
Based on those clarifications, the arguments proceed that
persons who registered under the 1970 Act and have done
integrated courses, are entitled to practise allopathic
medicine. In our view, all that the definition of 'Indian
Mecicine' and the clarifications issued by the Central
Council enable such practitioners of Indian medicine is to
make use of the modern advances in various sciences such as
Radiology Report, (x-ray), complete blood picture report,
lipids report, E.C.G., etc. for purposes of practising in
their own system. However, if any State Act recognized the
qualification of integrated course as sufficient
qualification for registration in the State Medical Register
of that State, the prohibition of Section 15(2)(b) will not
be attracted.
A harmonious reading of Section 15 of 1956 Act and
Section 17 of 1970 Act leads to the conclusion that there is
no scope for a person enrolled on the State Register of
Indian medicine or Central Register of Indian Medicine to
practise modern scientific medicine in any of its branches
unless that person is also enrolled on a State Medical
Register within the meaning of 1956 Act.
The right to practise modern scientific medicine or Indian
system of medicine cannot be based on the provisions of the
Drugs Rules and declaration made thereunder by State
Governments. Indeed, Ms. Indira Jaising has also submitted
that the right to practise a system of medicine is derived
from the Act under which a medical practitioner is
registered. But she has strenuously argued that the right
which the holders of degree in integrated courses of Indian
medicine are claiming is to have their prescription of
allopathic medicine, honored by a pharmacist or the chemist
under the Pharmacy Act and the Drugs Act. This argument is
too technical to be acceded to because prescribing a drug is
a concomitant of the right to practise a system of medicine.
Therefore, in a broader sense the right to prescribe drugs of
a system of medicine would be synonymous with the right to
practise that system of medicine. In that sense, the right
to prescribe allopathic drug cannot be wholly divorced from
the claim to practice allopathic medicine.
The upshot of the above discussion is that Rule
2(ee)(iii) as effected from May 14, 1960 is valid and does
not suffer from the vice of want of the legislative
competence and the notifications issued by the State
Governments thereunder are not ultra vires the said rule and
are legal. However, after sub-section (2) in Section 15 of
the 1956 Act occupied the field vide Central Act 24 of 1964
with effect from June 16, 1964, the benefit of the said rule
and the notifications issued thereunder would be available
only in those States where the privilege of such right to
practise any system of medicine is conferred by the State Law
under which practitioners of Indian Medicine are registered
in the State, which is for the time being in force. The
position with regard to Medical practitioners of Indian
medicine holding degrees in integrated courses is on the same
plain inasmuch as if any State Act recognizes their
qualification as sufficient for registration in the State
Medical register, the prohibition contained in Section
15(2)(b) of the 1956 Act will not apply.
In the result, civil appeals, special leave petitions
and writ petitions are accordingly disposed of. There shall
be no order as to costs.
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