BAHARUL ISLAM & ORS. versus INDIAN MEDICAL ASSOCIATION AND ORS. on 24 January 2023

[2023] 9 S.C.R. 917 : 2023 INSC 81

BAHARUL ISLAM & ORS.

v.

THE INDIAN MEDICAL ASSOCIATION AND ORS.

(Civil Appeal Nos. 502-503 of 2023)

JANUARY 24, 2023

[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]

Assam Rural Health Regulatory Authority Act, 2004 –Constitutionality of – Legislative Competency of the State – AssamState legislature enacted the Assam Rural Health RegulatoryAuthority Act, 2004 – Said Act provides for the establishment of aregulatory authority to register the Diploma holders and to regulatetheir practice – State Act in conflict with Central Act (Indian MedicalCouncil Act, 1956) – Writ Petition challenging the Constitutionalityof the Act – High Court allowed the Writ petition by holding that theAct, 2004 was unconstitutional as the State Act was in conflict withthe Central Act – High Court observed that the power and scope ofthe State to legislate under Entry 25 of List III of the SeventhSchedule is very limited and is only in respect of a field unoccupiedby a Central Act – Held: Prescription of minimum standards formedical education, authority to recognise or de-recognise aninstitution etc., are areas over which exclusive legislative competencelies with the Parliament, under Entry 66 of List I – The StateLegislatures, on the other hand, under Entry 25 of List III, possesslegislative competence to legislate with respect to all other aspectsof education, except determination of minimum standards and co-ordination – In view of the Indian Medical Council Act, 1956 andthe Rules and Regulations made thereunder, the Assam Rural HealthRegulatory Authority Act, 2004, declared to be null and void asState Legislature not having the legislative competence to enact thesaid Law – The State Legislature has no legislative competence toenact a law which is in conflict with the law setting the standards ofmedical education in the context of modern medicine or allopathicmedicine, which has been determined by Parliamentary Legislationas well as the Rules – Constitution of India – Seventh Schedule –List I, Entry 66 and List III, Entry 25.

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AAssam Community Professionals (Registration andCompetency) Act, 2015 – Constitutionality of – Power of Legislature– To overrule a Judicial Decision – High Court vide the impugnedorder allowed Writ petition holding that the Assam Rural HealthRegulatory Authority Act, 2004 enacted by the State legislature wasunconstitutional as the Act was in conflict with the Central ActB(Indian Medical Council Act, 1956) and State Legislature not havingthe legislative competence to enact the said Law – Meanwhile, theState passed the Assam Community Professionals (Registration andCompetency) Act, 2015 – Held: The Legislature cannot directlyoverrule a judicial decision – But when a competent LegislatureCretrospectively removes the substratum or foundation of a judgmentto make the decision ineffective, the said exercise is a validlegislative exercise provided it does not transgress on any otherconstitutional limitation – The power of the sovereign legislature tolegislate within its field, both prospectively and retrospectivelycannot be questioned – It would be permissible for the legislatureDto remove a defect in earlier legislation pointed out by a constitutionalcourt in exercise of its powers by way of judicial review – The AssamCommunity Professionals (Registration and Competency) Act, 2015,enacted pursuant to the judgment of the High Court, is a valid pieceof Legislation as it removed the basis of the impugned judgmentEpassed by the High Court – The 2015 Act is also not in conflict withthe IMC, Act, 1956 – This is because the Central Act namely, IMC,Act, 1956 does not deal with Community Health Professionals whowould practise as allopathic practitioners in the manner as theywere permitted to practise under the Assam Rural Health RegulatoryAuthority Act, 2004, in rural areas of the State of Assam – Hence,Fby a separate legislation the Community Health Professionals havebeen permitted to practise as such professionals – The saidlegislation of 2015 is not in conflict with IMC, Act, 1956 and therules and regulations made thereunder – Hence, the Act of 2015 isnot hit by Entry 66 of List I of the Constitution and is within theGlegislative competence of the State Legislature under the SeventhSchedule of the Constitution.

Constitution of India: Seventh Schedule – Art. 245, 246 &254 – Interplay between Entry 66 of List I and Entry 25 of List III –Held: The question of invasion into another legislative territoryH

has to be determined by substance and not by degree – Where oneEntry is made ‘subject to’ another Entry, all that it means is that outof the scope of the former Entry, a field of legislation covered bythe latter Entry has been reserved to be specially dealt with by theappropriate Legislature – The field of legislation covered underEntry 25 of List III is subject to Entries 63, 64, 65 and 66 of List I –Dual restrictions operate in the legislative competence of a StateLegislature to enact any law under Entry 25 of List III – First is, ifsuch a law is to be made by the State Legislature, it is always subjectto Entries 63, 64, 65 and 66 of List I or the Union List, in respect ofwhich only the Parliament has the power to enact a law – The secondrestriction is with regard to the subject of the Entry as a whole –When any law is made under Entry 25 of List III by a StateLegislature, the same is always subject to Entry 66 of List I – Modernscientific medicine or allopathic medicine is within the scope ofEntry 66 of List I and not under Entry 25 of List III – In the instantcase the law made by the State Legislature is hit by the first of theaforesaid two restrictions – Hence, the State Legislature lacked thelegislative competence to enact such a Law.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The Assam Rural Health Regulatory AuthorityAct, 2004, which is enacted by the State Legislature on thestrength of Entry 25 of List III, not only seeks to introduce anew course in the field of medical education, but also seeks toregulate the profession of the candidates successfully completingthe said course. The Assam Act vests with the RegulatoryAuthority constituted thereunder, the power to prescribe theminimum standards of the course, duration of the course inallopathic medicine the curriculum, the examination etc. Further,it authorises the State Government to grant permission for theopening of a medical institute. Prescription of minimum standardsfor medical education, authority to recognise or de-recognise aninstitution etc., are areas over which exclusive legislativecompetence lies with the Parliament, under Entry 66 of List I.The State Legislatures, on the other hand, under Entry 25 of ListIII, possess legislative competence to legislate with respect toall other aspects of education, except the determination of ABCD

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Aminimum standards and co-ordination. With a view to provide abenchmark quality of medical education, it is essential that uniformstandards be laid down by the Parliament, which are to be adheredto by institutions and medical colleges across the country. Tothis end, Entry 66 of List I has been formulated with the objectiveof maintaining uniform standards of education in fields of research,Bhigher education and technical education. Hence, StateLegislatures lack legislative competence in the areas ofprescription of minimum standards for medical education,authority to recognise or de-recognise an institution, etc. TheAssam Act which seeks to regulate such aspects of medicalCeducation is therefore liable to be set aside on the ground thatthe State Legislature lacks competence to legislate with regardto the aspects enumerated hereinabove. [Para 21][1007-C-G]

2. Although, Entry 25 of List III of the Seventh Schedule ofthe Constitution of India is in the Concurrent List which givesDpowers to both the Union as well as the State Legislatures topass laws on the subject of ‘Education’, it is significant to notethat any such law to be made by the State Legislature is subjectto, inter alia, Entry 66 of List I or the Union List of the SeventhSchedule. Hence, when there is a direct conflict between a State Law and the Union Law in the matter of coordination andEdetermination of standards in higher education (Entry 66 of ListI) such as in medical education, concerning allopathic medicineor modern medicine, as is in the instant case, where the StateLaw is in direct conflict with the Union law, the State Law cannothave any validity as the State Legislature does not possessFlegislative competence. In other words, the Assam Act and Rulesand Regulations made under the said Act, being in conflict withthe Indian Medical Council Act, 1956 (IMC Act, 1956) and theRules and Regulations made thereunder, the doctrine ofrepugnancy as such would not apply within the meaning of Article254 of the Constitution. The finding with regard to theGconstitutionality of the Assam Act of 2015 is limited to holding itnon-repugnant with the Indian Medical Council Act, 1956.However, this Court is not rendering any finding with regard to any potential conflict of the provisions of the Assam Act of 2015with the National Medical Commission Act, 2019. [Para 24][1014-G-H; 1015-A-C]

3.1 Entry 25 of List III of the Seventh Schedule of theConstitution of India deals with the subject education which is inthe Concurrent List under which both the Parliament or the UnionLegislature as well as the State Legislatures have legislativecompetence to legislate. However, Entry 25 of List III is subjectto, inter alia, Entry 66 of List I which is the Union List. Entry 66of List I deals with coordination and determination of standardsin institutions for higher education or research and scientific andtechnical institutions. Thus, when any law is made under Entry25 of List III by a State Legislature, the same is always subject toEntry 66 of List I. In other words, if any law made by the Parliamentcomes within the scope of Entry 66 of List I, then the StateLegislation would have to yield to the Parliamentary law. Thus,where one Entry is made “subject to” another Entry, it wouldimply that, out of the scope of the former Entry, a field of legislationcovered by the latter Entry has been reserved to be specificallydealt with by the appropriate legislature. [Para 25(i)][1016-B-E]

3.2 The IMC Act, 1956 is a legislation made by theParliament for the purpose of coordination and determination ofstandards in medical education throughout the Country. The saidlaw, along with the Rules and Regulations made thereunder arefor the purpose of determination of standards of medical educationthroughout India. Thus, determination of standards in medicaleducation in India is as per the IMC Act, 1956 which is a CentralLaw. This is in respect of modern medicine or allopathic medicinewithin the scope of Entry 66 of List I and not under Entry 25 ofList III of the Seventh Schedule. Therefore, a State Legislaturewhich passes a law in respect of allopathic medicine or modernmedicine would be subject to the provisions of the IMC Act,1956 and the Rules and Regulations made thereunder. This wouldimply that no State Legislature has the legislative competence topass any law which would be contradictory to or would be in directconflict with the IMC Act, 1956 and the Rules and Regulationsmade thereunder. In other words, the standard in medical ABC

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Aeducation insofar as modern medicine or allopathy is concerned,having been set by the IMC Act, 1956 and the Rules andRegulations made thereunder or by any subsequent Act in thatregard, such as the Medical Council of India Act, 2019, the StateLegislature has no legislative competence to enact a law whichis in conflict with the law setting the standards of medicalBeducation in the context of modern medicine or allopathicmedicine, which has been determined by ParliamentaryLegislation as well as the Rules. In other words, a StateLegislature has no legislative competence to enact a law inrespect of modern medicine or allopathic medicine contrary toCthe said standards that have been determined by the Central Law.Hence, in view of the Indian Medical Council Act,1956 and theRules and Regulations made thereunder, the Assam Act, namely,the Assam Rural Health Regulatory Authority Act, 2004, isdeclared to be null and void in view of the Assam Legislature not having the legislative competence to enact the said Law. [ParaD25(ii) & (iii)][1016-F-H; 1017-A-D; 1018-A]

3.3 The Assam Community Professionals (Registration andCompetency) Act, 2015, enacted pursuant to the judgment of theGauhati High Court, is a valid piece of Legislation as it hasEremoved the basis of the impugned judgment passed by theGauhati High Court. The 2015 Act is also not in conflict with theIMC, Act, 1956. This is because the Central Act namely, IMC,Act, 1956 does not deal with Community Health Professionalswho would practise as allopathic practitioners in the manner asthey were permitted to practise under the Assam Act, in ruralFareas of the State of Assam. Hence, by a separate legislation theCommunity Health Professionals have been permitted to practiseas such professionals. The said legislation of 2015 is not in conflictwith IMC, Act, 1956 and the rules and regulations madethereunder. Hence, the Act of 2015 is not hit by Entry 66 of ListI of the Constitution and is within the legislative competence ofGthe State Legislature under the Seventh Schedule of theConstitution. [Para 25(iv)][1018-B-E]

Tamil Nadu Medical Officers Association v. Union ofIndia (2021) 6 SCC 568 : [2020] 8 SCR 583 and Shri H

Prithvi Cotton Mills Ltd. v. Broach Borough MunicipalityAIR 1970 SC 192 : [1970] 1 SCR 388 - followed.

State of Bombay v. F.N. Balsara AIR 1951 SC 318 :[1951] 0 SCR 682; Atiabari Tea Company Ltd. v. Stateof Assam AIR 1961 SC 232 : [1961] 1 SCR 809; RMDCv. Union of India AIR 1957 SC 628 : [1957] 0 SCR930; State of Tamil Nadu v. Adhiyaman Educational andResearch Institute (1995) 4 SCC 104 : [1995] 2SCR 1075; Modern Dental College and ResearchCentre v. State of Madhya Pradesh (2016) 7 SCC 353 :[2016] 3 SCR 579; Chintpurni Medical College andHospital v. State of Punjab and Ors. AIR 2018 SC 3119: [2018] 5 SCR 147; Gujarat University, Ahmedabadv. Shri Krishna Ranganath Mudhoklar AIR 1963 SC703 : [1963] 1 Suppl. SCR 112; Dr. Preeti Srivastavav. State of M.P. (1999) 7 SCC 120 : [1999] 1 Suppl.SCR 249; Indian Aluminium Company Co. v. State ofKerala AIR 1996 SC 1431 : [1985] 2 Suppl. SCR 630;Hindustan Gum and Chemicals Ltd. v. State of Haryana(1985) 4 SCC 124 : [1985] 2 Suppl. SCR 630; M/s.Misrilal Jain v. State of Orissa AIR 1977 SC 1686 :[1977] 3 SCR 714 ; M/s. Tirath Ram Rajindra Nath,Lucknow v. State of U.P. AIR 1973 SC 405; Govt. ofA.P. v. Hindustan Machine Tools Ltd AIR 1975 SC2037; I.N. Saksena v. State of M.P AIR 1976 SC 2250:[1976] 3 SCR 237; Central Coal Fields Ltd. v.Bhubaneswar Singh AIR 1984 SC 1733 : [1985] 1 SCR618; State of Himachal Pradesh v. Narain Singh (2009)13 SCC 165 : [2009] 10 SCR 821 – relied on.

Dr. Mukhtiar Chand v. State of Punjab (1998) 7 SCC579 : [1998] 2 Suppl. SCR 143; Dr. A. K. Sabhapathyv. State of Kerala 1992 Supp. 3 SCC 147 : [1992] 2SCR 653; Gujarat University v. Krishna RanganathMudholkar [1963] Supp. 1 SCR 112; R. Chitralekha v.State of Mysore AIR 1964 SC 1823; Prof. Yashpal v.State of Chhattisgarh (2005) 5 SCC 420 : [2005] 2SCR 23; Thirumuruga Kirupananda Variyar ThavathiruSundara Swamigal Medical Educational and Charitable C

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICALASSOCIATION AND ORS.

[1999] 1 Suppl. SCR 249[1998] 3 SCR 740[1951] SCR 682[1961] 2 SCR 537[2019] 12 SCR 1011[1951] SCR 682[1961] 1 SCR 809[1988] 3 Suppl. SCR 770[1962] 3 Suppl. SCR 1[1957] SCR 930[1983] 3 SCR 130[1963] 1 Suppl. SCR 112[1995] 2 SCR 1075[1999] 1 Suppl. SCR 249[2016] 3 SCR 579[2018] 5 SCR 147[2020] 8 SCR 583[1961] 2 SCR 736[1964] 4 SCR 280[2004] 1 SCR 306[1998] 2 Suppl. SCR 143[2003] 1 SCR 1150[1992] 2 SCR 653[1985] 2 Suppl. SCR 630

relied onreferred toreferred toreferred toreferred torelied onrelied onreferred toreferred torelied onreferred toreferred torelied onreferred torelied onrelied onfollowedreferred toreferred toreferred toreferred toreferred toreferred torelied on

Para 8 (vii)APara 8 (ix)Para 9 (iii)Para 9 (v)BPara 10Para 11.4Para 11.5Para 11.5CPara 11.9Para 11.10Para 11.11DPara 15 (i)Para 15 (ii)Para 15 (iii)Para 15 (iv)EPara 15 (v)Para 15 (vi)Para 16.1 (i)FPara16.1 (ii)Para16.1(iii)Para 21 APara 21 BGPara 21 B (i)Para 22

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.502-503 of 2023.

From the Judgment and Order dated 30.10.2014 and 19.09.2014of the High Court of Gauhati in WPC No.5789 of 2005.

With

TC (C) Nos.25 And 24 of 2018.E

Harin P. Raval, Sanjay R. Hegde, Rana Mukherjee, Sr. Advs.,Oindrila Sen, Md. Sharuk Ali, Raghav Gupta, Ms. Shreya, Ms. ShresthaNarayan, Rajha Chatterjee, Piyush Sachdev, Aditya Pathak, MahabirSingh, Adeel Ahmed, Satish Kumar, Advs. for the Appellants.

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Ms. Aishwarya Bhati, ASG, Vikas Singh, Sr. Adv., Gaurav Sharma,Dhawal Mohan, Prateek Bhatia, Kapish Seth, Ms. Deepika Kalia, Ms.Mitushi Goyal, Mohd. Akhil, Rajesh Ranja, T. S. Sabarish, NakulChengappa K. K., Ms. Akriti A. Manubarwala, Gurmeet Singh Makker,Shivam Singh, Abhinav Singh, Manish Kumar, Gagan Gupta, ShuvodeepGRoy, Kumar Arnav Singhdeo, Advs. for the Respondents.

Ananga Bhattacharyya, V. K. Khanna, Hitesh Kumar Sharma,Akhileshwar Jha, Ms. Niharika Dewivedi, Shweta Sand, Anubhav Gupta,C.M. Jha, Narendra Pal Sharma, Advs, for the Intervenors.

The Judgment of the Court was delivered by A

NAGARATHNA, J.

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Leave granted.

2. In these appeals, the appellants have assailed the legality andcorrectness of the order dated 30.10.2014 passed by the Division Benchof the Gauhati High Court in W.P.(C) No. 5789/2005, whereby the HighCourt by allowing the Writ Petition struck down the Assam Rural HealthRegulatory Authority Act, 2004 (hereinafter referred to as ‘Assam Act’or the ‘State Act’ for the sake of brevity) which was enacted by theAssam State Legislature.

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Brief facts of the case:

3. The facts giving rise to the present appeals and transferredcases, in a nutshell are that on 18.09.2004, the Assam Legislature enactedthe Assam Act. The said Act was enacted to provide for the establishmentof a regulatory authority in the State of Assam to register the Diplomaholders in Medicine and Rural Health Care (“DMRHC”), to regulatetheir practice in medicine in rural areas and to regulate the opening ofGmedical institutions to impart education and training for the course ofDiploma in Medicine and Rural Health Care.

3.1. On 23.06.2005, the Director, Medical Education, State ofAssam, published an advertisement in the Assam Tribune inviting *Pagination in the Index is as per the Original Judgment.

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Aapplications from eligible candidates seeking admissions in the three-year course of Diploma in Medicine and Rural Health Care in the MedicalInstitute, Jorhat, for the session starting in the year 2005.

3.2. The Indian Medical Association, Assam State Branch,Respondent No. 1 herein, filed a Writ Petition being W.P. (C) No. 5789Bof 2005 under Article 226 of the Constitution of India, before the GauhatiHigh Court, assailing the validity of the Assam Act and the aforesaidadvertisement. During the pendency of the Writ Petition before the HighCourt, the appellants herein were admitted in the First year of the three-year Diploma Course in Medicine and Rural Health Care in the MedicalInstitute, Jorhat, (‘Jorhat Medical Institute’ for the sake of convenience)Cfor the sessions 2012-2013, 2013-2014 and 2014-2015 respectively,pursuant to the selection process.

3.3. Having regard to the fact that the Jorhat Medical Institutewas created as envisaged under the State Act, and about four-hundredstudents had been admitted to the diploma course and awardedDcertificates on having passed the Course, State of Assam made a pleafor impleadment of the Regulatory Authority, the Jorhat Medical Instituteand the persons who had obtained diploma certificates and had beenengaged as Rural Health Practitioners on the basis of such qualification.

3.4. By the impugned order dated 19.09.2014, the High CourtErejected the State’s plea for impleadment of the Regulatory Authority,the Jorhat Medical Institute and the persons who had obtained diplomacertificates from the said Institute during the pendency of the Writ Petitionbefore the High Court.

3.5. The pertinent findings of the High Court, in the impugnedForder dated 19.09.2014 may be summarized as under:

i)That the State had voluntarily assumed the risk ofproceeding with the admission process under the State Act,even after a challenge was made to the vires of said Actbefore the High Court.

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ii)The fact that there was no stay on the operation of theState Act would not be a valid justification for the State toproceed with the admissions to the course, more so, whenthe legality of the said Act was challenged. That theadmissions, issue of diploma certificates to the persons who H

completed the course, and appointment of such persons asRural Health Practitioners, were all developments that tookplace subsequent to the writ petition being filed.

iii)That no question arose in the writ petition as to theconsideration of individual interests of the parties sought tobe impleaded. The question and issue that would arise wasonly as to the vires of the State Act. Hence, there wouldbe no reason to implead the Regulatory Authority, the JorhatMedical Institute and the persons who had obtained diplomacertificates and had been engaged as Rural HealthPractitioners on the basis of such qualification, as necessaryparties in the writ petition.

3.6. Further, vide the impugned judgment dated 30.10.2014, theHigh Court allowed W.P. (C) No. 5789 of 2005 by holding that the AssamAct, is unconstitutional and accordingly, the said Act was struck down.The relevant findings of the High Court in the impugned judgment dated30.10.2014, have been culled out as follows:

i)That the State Act is in conflict with the Central Act i.e.Indian Medical Council Act, 1956 (hereinafter referred toas ‘IMC Act, 1956’ or ‘Central Act’ for the sake ofconvenience) inasmuch as Section 10A of the Central Actcategorically declares that no medical college shall “open anew or higher course of study or training” which wouldenable a student of such course or training to qualify himselffor the award of any recognised medical qualification.

ii)That the restrictions under Section 10A(b)(i) of the CentralAct envisage injunction against medical colleges to open “anew or higher course.” The words “new or higher course”would definitely take in its sweep the diploma coursecontemplated under the State Act.

iii)That even for commencement of a diploma course, previouspermission of the Central Government is required. But inthe present case, no permission was taken. Therefore, itwas concluded that the State had ventured to introduce anew diploma course in medicine and rural healthcare, withoutthe necessary permission as contemplated under Section10A of the Central Act.

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Aiv)That the power and scope of the State Legislature tolegislate under the field covered under Entry 25 of List IIIof the Seventh Schedule of the Constitution of India is verylimited and is only in respect of a field unoccupied by aCentral Act. In the present case, the Central Act fullycovers the field and places a total restriction on opening aBnew course in medicine without the permission of the CentralGovernment.

v)That it would be bizarre to say that the diploma-holdersshould practice in rural areas and not in urban areas, andthey are entitled to treat only certain diseases and prescribeConly certain medicines. That such restrictions wereunworkable in practice. Such conditions and restrictions werestipulated in Section 24 of the State Act. However, strikingdown that provision alone would not save the situation asSection 24 is the “soul” of the State Act and without theDsaid provision, the rest of the provisions of the Act wouldbe meaningless.

vi)Keeping in view the larger interest of health and welfare ofsociety and the lapses committed by the State Legislaturein enacting a legislation without obtaining necessaryEapprovals from the Central Government, the State Act wasliable to be declared as unconstitutional and accordinglystruck down.

3.7. Aggrieved by the impugned judgment, certain persons whowere admitted in the First year of the three-year Diploma Course inFMedicine and Rural Health Care in the Jorhat Medical Institute, for thesessions 2012-13, 2013-14 and 2014-15, during the pendency of the writpetition before the High Court, have preferred the present appeals.

3.8. At this stage itself, it may be mentioned that consequent uponthe striking down of the Assam Act, the Assam Legislature passed theGAssam Community Professional (Registration and Competency) Act,2015 (“2015 Act”, for short) with a view to remove the basis of thejudgment passed by the Division Bench of the Gauhati High Court in theaforesaid writ petition and in an attempt to restore the position of thediploma holders in medicine and to give them continuity in service. Thesaid Act has been assailed by the diploma holders in Transferred Case H

(C) Nos. 24 and 25 of 2018 before this Court. In the circumstances, wehave heard these cases together and the same are being disposed of bythis common judgment.

Bird’s Eye View of the Controversy:

4. The controversy in these cases revolve around the legislativecompetence of the Assam State Legislature to enact the Assam Actwhich has been assailed by the writ petitioners before the Gauhati HighCourt on the ground of legislative competence as per Article 246 readwith the relevant entries of List I and III of the Seventh Schedule of theConstitution of India. However, the Gauhati High Court has struck downthe Assam Act on the ground of repugnancy as per Article 254 of theConstitution.

Submissions:

5. We have heard learned Senior Counsel Mr. Harin P. Raval andlearned senior counsel Mr. Sanjay Hegde for the appellants-diplomaholders in medicine and learned counsel Sri Shivam Singh, appearing forthe writ petitioner/Respondent No.1 herein namely, Indian MedicalAssociation instructed by Sri Abhinav Singh and learned AdditionalSolicitor General Sri K.M. Natraj, for the Union of India and learnedSenior Counsel Sri Vikas Singh, appearing on behalf of Respondent No.7, Medical Council of India. We have heard Sri Rana Mukherjee learnedSenior Counsel instructed by Ms. Oindrila Sen appearing on behalf ofthe petitioners in Transferred Case (C) Nos. 24 and 25 of 2018 and Mr.Ananga Bhattacharyya learned counsel appearing on behalf of the Stateof Assam. We have perused the material on record.

5.1. Learned Senior Counsel Sri. Harin P. Raval, appearing forthe appellants submitted as under:

i.That the impugned judgment proceeds on a misplacedinterpretation of the Indian Medical Council Act, particularlySection 10 thereof and is in the teeth of a three-judge benchjudgment of this Court in Dr. Mukhtiar Chand vs. State ofPunjab, (1998) 7 SCC 579, (“Dr. Mukhtiar Chand”).That the High Court erred in holding that as per Section10A of the Central Act, any new course including the relevantdiploma course can only be opened after prior permissionof the Central Government. The appellants submitted thatSection 10A of the Central Act only prescribes that a new A

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Acourse which would qualify a person for the award of arecognised medical qualification requires the permission ofthe Central Government. That Diploma in Medicine andRural Healthcare is not a medical qualification as definedin Section 2(h) of the Central Act. Therefore, no permissionof the Central Government was required to start such aBdiploma course.

ii.That the award of a recognised medical qualification givesa person the right to be included in the Indian MedicalRegister under Section 21(1) of the IMC Act. However, asper Section 15 of the said Act for practicing medicine inany State, all that is required is that a person has to beenrolled in a State Medical Register as defined in Section2(k) thereof as a Register maintained under law enforcedin any State regulating the registration of practitioners ofmedicine. That the impugned Assam Act, is such a law andthe State Register of Rural Health Practitioners created byvirtue of Section 17 of the Act is such a State MedicalRegister in terms of even Section 2(k) of the IMC Act,1956.

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iii.That the view taken by the High Court that medicalEpractitioners cannot practice allopathic medicine unless theyhave completed any of the recognised courses under theIMC Act, was a view which was taken by this court in Dr.A. K. Sabhapathy vs. State of Kerala, 1992 Supp. 3 SCC147, (“Dr. A. K. Sabhapathy”). Learned senior counselfor the appellants submitted that the said judgment hasFspecifically been overruled by a three-judge bench in Dr.Mukhtiar Chand. It was thus, submitted that the viewtaken by the High Court is contrary to the decision in Dr.Mukhtiar Chand.

iv.Learned senior counsel for the appellants refuted theGreliance placed by the Respondent-Medical Council of Indiaon Gujarat University vs. Krishna RanganathMudholkar, 1963 Supp. (1) SCR 112, (“GujaratUniversity”) wherein it was held that a State Legislationcan be unconstitutional even if there is no contrary UnionLegislation. It may be declared ultra vires if it effectively H

impinges on the field reserved for the Union under Entry66 and infringes upon the Union field. It was contendedthat it is only where the State Legislation makes it impossibleor difficult for the Parliament to legislate under Entry 66 ofList I, that the State Law can be declared to be bad.

v.The learned senior counsel for the appellants placed relianceon the judgment of a Constitutional Bench of this court inR. Chitralekha vs. State of Mysore, AIR 1964 SC 1823,(“R. Chitralekha”) wherein it was held that it is only whenthe State Legislation makes it impossible or difficult for theParliament to legislate under Entry 66 of List I, and only ifthe impact of the State Law is so heavy or devastating onEntry 66 of List I, so as to wipe out or appreciably abridgethe Central field of legislation, can it be struck down but nototherwise. Learned senior counsel contended that in thepresent case, there is no question of the Assam Act, makingit impossible or difficult for the Parliament to exercise itspower for co-ordination and determination of standards inmedical institutions. If the Parliament wanted, they couldeasily legislate to say that no person who does not holdqualifications recognised by the IMC Act can practiceallopathic medicine. That Parliament has not said so andSection 15 of the IMC Act indicates that the Parliamentrecognises that persons enrolled in State Medical Registersunder State Acts can practice medicine in the State.

vi.Learned senior counsel for the appellants contended thataccepting the argument of the MCI that allopathic medicinecan be practiced only by M.B.B.S. doctors with a MBBSdegree would not only be totally contrary to the scheme ofthe IMC Act but would effectively declare unconstitutionala number of State Acts of various States, which haveprescribed qualifications other than M.B.B.S. to practicemedicine in the State.

vii.That the Medical Council of India (MCI) in the Meeting ofits Board of Governors at New Delhi on 16.07.2012, alongwith the Secretary (Health), Ministry of Health & FamilyWelfare, Government of India in its proposal for a B.Sc.(Community Health) Program sought to draw experience A

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Afrom the Assam and Chhattisgarh models of the DiplomaCourse and sought to affiliate these courses/programs to aUniversity or Regulatory Body. Therefore, the MedicalCouncil of India has itself acknowledged the Assamexperience and sought to create a course on the same linesin the interest of public healthcare.B

viii.That it is a well-known fact that M.B.B.S. doctors prefernot to practice in rural areas and thus, there is an acuteshortage of such doctors in rural areas all over the country.To address such an issue, the Assam Act was brought intoforce by the State Legislature of Assam. Thus, striking itCdown would be counter-productive and contrary to theinterests of the rural population of Assam.

ix.That as per the impugned Assam Act, Rural HealthPractitioners can only practice in rural areas and that too,in a limited manner to treat basic common diseases and toDprescribe basic medicines.

Learned Senior counsel submitted that the impugned judgmentmay be set aside and the Assam Act may be declared to be a valid pieceof legislation.

E5.2 Sri. Sanjay Hedge, learned Senior Counsel, drew our attentionto two judgments of this Court in the case of Dr. Mukhtiar Chand andSubhasis Bakshi to contend that this Court has recognised the practicein Allopathic medicine under various enactments and that the saidjudgments would squarely apply to the facts of this case. The judgmentsrelied upon by Sri Sanjay Hedge shall be discussed later.FArguments on behalf of Respondent No. 1 Indian MedicalAssociation:

6. Learned counsel Sri Shivam Singh appearing for RespondentNo. 1, Indian Medical Association submitted as under:Gi.That the Assam Act is repugnant to the provisions of theIndian Medical Council Act, 1956, (IMC Act, 1956) i.e. theCentral Act.

ii.That the role of the Central Government in grantingpermission for commencement of a “new or higher course”Has prescribed under Section 10A(b)(i) of the Central Act, cannot be diluted nor given a go-by. Section 10(A)(1)(b) ofthe Central Act requires that previous permission of theCentral Government be obtained prior to offering a new orhigher course of study for obtaining a “recognised medicalqualification” at an already established medical college.However, as regards prospective medical colleges,obtainment of previous permission of the CentralGovernment is mandatory regardless of whether the medicalcollege intends to offer a recognised medical qualificationor a non-recognised medical qualification.

iii.That the term “Medical College” is not defined in the IMCAct, 1956, thus, reliance must be placed on the definition of“Medical Institution” as defined in Section 2(e) of the IMCAct, 1956. Thus, the term Medical College must beunderstood in a wide sense to even include those that donot offer a ‘recognised medical qualification’. It wassubmitted that, the term “medical college” used in Section10A(1)(a) of the IMC Act ought not be restricted as only“medical college offering a recognised medical qualification”within the meaning of the IMC Act, 1956.

iv.On the strength of the State Act, the Jorhat Medical Institute,was established to provide a Diploma Course in Medicineand Rural Healthcare, without prior permission of the CentralGovernment which is an incurable defect. Thus, the settingup of the Jorhat Medical Institute and commencement ofthe diploma course is contrary to IMC Act, 1956 and,therefore, unlawful on the ground that it was contrary toSection 10A(1)(a) of the Central Act of 1956.

v.Reliance was placed on the decisions of this Court inChintpurni Medical College & Hospital vs. State ofPunjab, (2018) 15 SCC 1, (“Chintpurni Medical College& Hospital”) and Prof. Yashpal vs. State of Chhattisgarh,(2005) 5 SCC 420, (“Prof. Yashpal”)to contend that theState Government does not have the power to enact theAssam Act and that the States are denuded of the legislativepower to legislate on medical education.

vi.That the Central Act, namely, IMC Act, 1956, in pith andsubstance, falls under Entry 66 of List I and occupies the AB

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Aentire field insofar as establishment of new medical collegesis concerned which deals with coordination anddetermination of standards, inter alia, in medical education.Therefore, the State Legislature is denuded of its powerunder Entry 25 of List III to enact a law providing for theestablishment of a medical college contrary to the provisionsBof the Central Act.

vii.That the provisions of the Central Act hold the field ofmedical education and no medical college or course,including the impugned course can be commenced withoutthe permission of the Central Government as mandatedCunder Section 10A of the said Act. Also, the Doctrine of‘Occupied Field’ would apply in the present case. Learnedcounsel for Respondent No. 1 placed reliance onThirumuruga Kirupananda Variyar ThavathiruSundara Swamigal Medical Educational andDCharitable Trust vs. State of Tamil Nadu, (1996) 3 SCC15, (“Thirumuruga Kirupananda Variyar ThavathiruSundara Swamigal Medical Educational andCharitable Trust”) wherein it was held that under section10A of the Indian Medical Council Act, the Parliament hasevinced an intention to cover the whole field relating to theEestablishment of new medical colleges in the Country andby virtue of Section 10A, the Parliament has made acomplete and exhaustive provision covering the entire fieldgoverning establishment of new medical colleges in theCountry. No further scope is left for the operation of anyFState Legislation in the said field which is fully covered bythe law made by the Parliament.

viii.That the Assam Act is repugnant to the provisions of theCentral Act as no Presidential Assent was obtained asrequired under Article 254 of the Constitution, to overcomeGsuch repugnancy.

ix.Learned counsel for Respondent No. 1 further contendedthat the students who graduate on completion of the diplomacourse would be ill-equipped as doctors and this would poserisk to patients who require quality medical assistance andHtreatment. That it is the fundamental right of the patient to receive quality medical assistance; meeting the standardsAas prescribed by the Indian Medical Council or by theParliament but such quality treatment cannot be providedby those who do not have the requisite qualification as perthe standards set by the Parliament.

x.That one of the restrictions under Section 24 of the AssamAct, being that the practitioners who graduate in the diplomacourse would only be allowed to work in rural areas of theState of Assam, was not only unworkable but also in violationof Article 14 and 21 of the Constitution as equal quality oftreatment should be secured for every citizen of this State.That the Assam Act discriminates between patients livingin rural areas and those living in urban areas, implying thatthe persons who live in urban areas are entitled to standardtreatment and those who live in rural areas are entitled tosub-standard treatment.

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xi.That the argument of the appellants that doctors with MBBSqualification do not wish to practice in rural areas iscompletely incorrect and is without any basis. That theappellants have not brought anything on record to provethe same. There are more than 2244 MBBS doctors workingin the rural areas of Assam; even if there is a shortfall ofdoctors in the rural areas and the Assam Act aims to remedythe shortfall, the solution lies in increasing their coveragevia permissible means and not otherwise.

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xii.That the State of Assam has consciously and rightly chosennot to challenge the judgment passed by the High Courtthat struck down the Assam Act and only private individualsare appellants before this court. That the State of Assamhas enacted a subsequent legislation and has tried toaccommodate the ousted diploma holders in differentcapacities. Merely because the appellants before this courtare aggrieved by their arrangement in a different capacityunder the new legislation, it cannot equip them to sustainthe present challenge.

7. Learned Senior Counsel Sri K.M. Natraj appearing for Unionof India has also been heard which shall be adverted to later.

ASubmissions on behalf of Respondent No. 7 (Medical Councilof India):

8. Learned Senior Counsel Sri Vikas Singh appearing on behalf ofRespondent No. 7, Medical Council of India, submitted as under:

i.Respondent No. 7 submitted that after the impugnedBjudgment dated 30.10.2014 was passed by the High Court,the State of Assam notified the ‘2015 Act’, on 29.05.2015.By virtue of Section 3(2) of the said Act, the DiplomaHolders who have completed or are still undergoing theDiploma course in Medicine and Rural Health in the StateCof Assam under the scheme of Assam Act, have beenrecognised as “Community Health Professionals” and suchCommunity Health Professionals have been engaged aspara-medical professionals assisting the Medical Officersin the State of Assam. Thereafter, the State of Assam hasprotected the livelihood of the Rural Health PractitionersDby absorbing them as Community Health Professionalsunder the ‘2015 Act’. Thus, the future of Rural HealthPractitioners has been protected by the State of Assam asthey have been employed as Community Health Professionalin the State.

Eii.That the Central Act i.e., IMC Act, 1956, is relatable toEntry 66 of List I of Seventh Schedule of the Constitution.It is an exhaustive legislation covering all aspects of openingof new or higher courses of medicine, teaching and training,recognition of medical qualification, registration of medicalFpractitioner, eligibility criteria for registration in State MedicalRegister and practice of modern scientific medicine. Thus,the State Legislature is denuded of the power to make anylaw as the field is already occupied by the Central Act.

iii.That Section 15(1) of the Central Act prescribes minimumGqualification for registration in the State Medical Register.Thus, medical qualification included in the Schedule of theCentral Act is the only recognised medical qualification onthe basis of which a person’s name can be entered in theState Medical Register maintained by the State MedicalCouncil. Further, Section 15(2)(b) of the Central Act makesH

it unequivocally clear that only those persons who areenrolled in the State Medical Register are entitled to practicemedicine in any State.

iv.That Section 2(d) of the State Act read with Section 15thereof, and Schedule to the Assam Medical Council Act,1999, (“AMC Act, 1999”, for the sake of convenience)provide that recognised medical qualification for thepurposes of registration in the State Medical Register shallmean only those medical qualifications which have beenincluded in Schedule I to the Central Act of 1956. Thus, acombined reading of Section 2(d), Section 15 and Section31 of the State Act, read with the Schedule to the AMCAct, 1999, makes it unequivocally clear that even the StateLegislature of Assam intended that only a person possessingrecognised medical qualification under Schedule I of theCentral Act, is entitled in law to be entered in the StateMedical Register and is allowed to practice modern scientificmedicine.

v.That the Assam Act of 2004, was also in direct conflict andinconsistent with the AMC Act, 1999. That Section 31 ofthe AMC Act, 1999, prohibits practice of modern scientificmedicine by any person, except those registered under theState Medical Register maintained by the Assam MedicalCouncil.

vi.Respondent No. 7 next submitted that the provisions ofCentral Act, 1956, will prevail over the Assam Act, 2004,as Article 246(2) of the Constitution provides that law madeby the State Legislature on any subject enumerated in List-III of Seventh Schedule of the Constitution is subject to thelaw made by the Parliament under Article 246(1). Thus,Entry 25 of List III of Seventh Schedule under which theAssam Act, 2004, had been enacted was subject to the lawmade by the Parliament under Entry 66 of List I i.e., IMCAct, 1956 which is a Central Legislation.

vii.Respondent No. 7 placed reliance on Dr. Preeti Srivastavavs. State of M.P., (1999) 7 SCC 120, (“Dr. PreetiSrivastava”) to contend that a State Act cannot lower the ABC

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Astandards fixed under the Central Act. That in the said caseit was held that only the Medical Council of India coulddetermine the lowering of standards or norms and the extentof the same. Therefore, the State of Assam does not havethe legislative competence and authority to enact the AssamAct, which has the effect of lowering down the standards.Bviii.Respondent No.7 contended that the judgment in Dr.Mukhtiar Chand was not applicable in the present case.In the said case, it was held that the registration in the StateMedical Register relating to modern scientific medicine wasa sine qua non to enable persons, who, otherwise did notCpossess recognised medical qualification, to practice modernscientific medicine. It was submitted that even if the nameof a Diploma Holder was included in the State Register ofRural Health Practitioners as provided under the AssamAct, it will not give them the right to practice modernDscientific medicine as per Section 15 of the IMC Act, 1956.

ix.It was further submitted that medical students are requiredto undergo rigorous teaching and training during the MBBScourse which is a five-year course and it is only after theysuccessfully complete the same that they become eligibleto get registered in the Indian Medical Register or the StateEMedical Register and thereafter, they become legallyentitled to practice medicine and treat patients. Reliancewas placed on MCI vs. State of Karnataka, (1998) 6SCC 131, (“MCI”) to submit that Rural Health Practitionerswere nothing but half-baked doctors who do not possessFthe requisite knowledge in the field of medicine and havealso not received proper training. That Rural HealthPractitioners have limited knowledge and experience andhence, cannot be permitted to practice modern scientificmedicine and administer medical treatment. It was furthersubmitted that if such Diploma holders are permitted toGpractice modern scientific medicine, then they would posea great threat to society and would degrade the standard ofhealth care system in the country.

Submissions on behalf of the State of Assam:

9. Learned counsel Sri Ananga Bhattacharyya made the followingHsubmissions on behalf of the State of Assam:

i.That the Preamble to the IMC Act, 1956 discloses that theAsaid Act is enacted to provide for the reconstitution ofMedical Council of India and the maintenance of a MedicalRegister for India and for matters connected therewith.Section 10A of the said Act provides that, notwithstandinganything contained in the Act or any other law for the timeBbeing in force, no person shall establish a medical college;or no medical college shall open a new or higher course ofstudy or training which would enable a student of such courseor training to qualify himself for the award of any recognisedmedical qualification, except with the previous permissionof the Central Government. That the permission asCcontemplated in Section 10A is the permission to open anew or higher course of study or training which would enablea student of such course or training to qualify himself forthe award of any “recognised medical qualification”. Asthe Diploma in DMRHC as defined in Section 2(e) of theDAssam Act is not akin to “recognised medical qualification”referred to in Section 10A of the IMC Act, 1956, the AssamAct can certainly co-exist. The powers and functions ofrural health practitioners as delineated in Section 24 of theAssam Act would go to show that both legislations can co-exist without there being any overlapping.E

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ii.That a perusal of Regulation 11 framed by the StateAuthority under the Regulations of Assam Rural HealthRegulatory Authority, 2005 would reveal that practice ofmedicine under the scheme of the State Act has a verylimited meaning. Similarly, the word “surgery” has also beenassigned a limited scope. Therefore, the underlying purposeis not to encroach upon the field covered by the CentralAct but to provide rural health care to the needy persons.In attainment of the aforesaid objectives, if there is anyincidental encroachment, the same cannot have the potentialof adjudging the Assam Act as ultra vires.

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iii.That in determining whether an enactment is a legislationwith respect to a given power, what is relevant is whether,in its pith and substance, it is a law upon the subject matterin question. Reliance was placed on State of Bombay vs.

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F. N. Balsara, AIR 1951 SC 318, (“F. N. Balsara”)wherein it was held that mere incidental encroachment onmatters which have been assigned to another legislaturedoes not vitiate the legislation. It was contended that in theinstant case, the State Legislature has not made any attemptto encroach upon the field covered by the IMC Act, 1956by offering qualifications envisaged in Section 2(h) readwith First Schedule to the said Act. That the Parliamenteven after enacting the IMC 1956 Act left out certain greyareas, thus, the Assam Act is an attempt to cover the fieldsleft open by the Parliament.

That when one entry is made ‘subject to’ another entry, itmeans that out of the scope of the former entry, a field oflegislation covered by the latter entry has been reserved tobe specifically dealt with by the appropriate legislature. Thatwhat is covered by the Central Act is “recognised medicalqualification” within the meaning of Section 2(h) of the Actread with the qualifications included in the First Scheduleto the said Central Act and not Diploma in Rural HealthCare and Medicine. Therefore, as long as the Parliamentdoes not occupy the field earmarked for it under Entry 66of List I or for that matter by invoking its concurrent powersunder Entry 25 of List III, the question of competence ofthe State Legislature to regulate and register the DiplomaHolders in medicine and rural health care and their practiceof medicine in rural areas cannot be questioned.

That repugnancy arises when two enactments, both withinthe competence of two legislatures collide and when theConstitution expressly or by necessary implication providesthat the enactment of one legislature has superiority overthe other, then to the extent of repugnancy one supersedesthe other. Reliance was placed on Hingir - Rampur CoalCo. Ltd. vs. State of Orissa, AIR 1961 SC 459, (“Hingir

- Rampur Coal Co. Ltd.”) wherein thisCourt observedthat in a case where a declaration is made by the Parliamentthat it is expedient in the public interest to take over thefield, in such a case, the test must be whether legislativedeclaration covers the field or not. It was submitted on behalf of the State of Assam that in the said case a distinctionmust be drawn between the Entries in List I wherein adeclaration by the Parliament to take over the field isexpressed and to other Entries in List I which do not containsuch a declaration. That Entry 66 of List I does not containany such declaration; therefore, it would be appropriate togo by the language of Entry 25 of List III i.e., “subject to”.Thus, the test is to find out the true nature and character ofthe State Legislation. Any incidental encroachment in theprocess would not vitiate the State law. Thus, the AssamAct and the Central Act can co-exist within their respectivespheres and the provisions of Assam Act are not repugnantto the provisions of the Central Act, hence, there is norequirement of complying with the provisions of Article254(2) of the Constitution of India.

10. Sri. Rana Mukherjee, learned Senior Counsel appearing forthe petitioners in Transferred Case Nos.24 and 25 of 2018 drew ourattention to the relief sought for by the petitioners therein and contendedthat the status and position of the petitioners therein, subsequent to theenactment of the ‘2015 Act’ has been adversely altered. Hence, thepetitioners therein have assailed the said Act. He contended that thepetitioners therein were imparted medical education under the AssamAct and have been trained under the said Act and are registered asRural Health Practitioners and have been serving as Rural HealthPractitioners in various States. The State of Assam proceeded to enactthe impugned Legislation, i.e., the ‘2015 Act’, instead of assailing thejudgment of the Gauhati High Court which has struck down the AssamAct thereby, resulting in adverse consequence on the petitioners in thesetransferred cases. That by enactment of the ‘2015 Act’, the petitionersin these cases are redesignated as Community Health Officers andthereby their status and position has been downgraded to that ofParamedics, whereas, under the Assam Act, they were registered asRural Health Practitioners in the State Medical Register. In thesecircumstances, the petitioners in these cases have sought for continuationof their rights, privileges, status and conditions of service as were providedor granted to them under the Assam Act as Rural Health Practitioners.

Learned counsel submitted that the case of the petitioners inTransferred Cases would be resurrected in the event this Court is to set AB

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Aaside the judgment of the High Court and restore the Assam Act byallowing the Special Leave Petition filed by the similarly situated RuralHealth Practitioners in the case of Baharul Islam and others, which isbeing considered. He further submitted that in the event this Court is toaffirm the judgment of the High Court, the vires of ‘2015 Act’ is to beconsidered and the relief sought for by the petitioners in these TransferredBCases may be granted. Learned Senior Counsel also placed reliance onthe judgment of this Court in the case of Association of MedicalSuperspeciality Aspirants and Residents and Others v. Union ofIndia and Others. (2019) 8 SCC 607; paragraphs 25 and 26, toemphasise the importance of rural health which has to be protected byCthe State.

Points for consideration:

Having heard the learned counsel for the respective parties andon perusal of the material on record, the following points would arise forour consideration:D

i)Whether the Assam Act is invalid and null and void on theground that the Assam State Legislature did not possesslegislative competence to enact the said Act?

ii)Whether the ‘2015 Act’ is ultra vires the Constitution?

Eiii)What Order?

Constitutional Scheme

11. Before proceeding, it would be useful to refer to theconstitutional scheme relevant to the issues which arise in these cases.

F11.1. For easy and immediate reference, the relevant provisionsof the Constitution of India are extracted as under:

“246. Subject matter of laws made by Parliament and bythe Legislatures of States - (1) Notwithstanding anything inclauses (2) and (3), Parliament has exclusive power to makeGlaws with respect to any of the matters enumerated in List I inthe Seventh Schedule (in this Constitution referred to as the“Union List”).

(2) Notwithstanding anything in clause (3), Parliament, and,subject to clause (1), the Legislature of any State also, haveHpower to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in thisConstitution referred to as the “Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any Statehas exclusive power to make laws for such State or any partthereof with respect to any of the matters enumerated in ListII in the Seventh Schedule (in this Constitution referred to asthe “State List”).

(4) Parliament has power to make laws with respect to anymatter for any part of the territory of India not included in aState notwithstanding that such matter is a matter enumeratedin the State List.

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254. Inconsistency between laws made by Parliament andlaws made by the Legislatures of States - (1) If any provisionof a law made by the Legislature of a State is repugnant toany provision of a law made by Parliament which Parliamentis competent to enact, or to any provision of an existing lawwith respect to one of the matters enumerated in theConcurrent List, then, subject to the provisions of clause (2),the law made by Parliament, whether passed before or afterthe law made by the Legislature of such State, or, as the casemay be, the existing law, shall prevail and the law made bythe Legislature of the State shall, to the extent of therepugnancy, be void.

(2) Where a law made by the Legislature of a State 1 *** withrespect to one of the matters enumerated in the ConcurrentList contains any provision repugnant to the provisions of anearlier law made by Parliament or an existing law with respectto that matter, then, the law so made by the Legislature ofsuch State shall, if it has been reserved for the considerationof the President and has received his assent, prevail in thatState:

Provided that nothing in this clause shall prevent Parliamentfrom enacting at any time any law with respect to the samematter including a law adding to, amending, varying orrepealing the law so made by the Legislature of the State.”

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A11.2. It is also useful to refer to Entry 66 of List I (Union List)and Entry 25 of List III (Concurrent List) of the Seventh Scheduleof the Constitution of India. The same read as under: - Entry 66 of List I -Union List “66. Co-ordination and determination of standards inBinstitutions for higher education or research and scientificand technical institutions.”

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Entry 25 of List III -Concurrent ListC“25. Education, including technical education, medicaleducation and universities, subject to the provisions of entries63, 64, 65 and 66 of List I; vocational and technical trainingof labour.”

11.3. We shall now dilate on the aspect of interpretation ofDlegislative Entries in the context of List I and List III of the SeventhSchedule of the Constitution of India referred to above. The power tolegislate which is dealt with under Article 246 has to be read in conjunctionwith the Entries in the three Lists which define the respective areas oflegislative competence of the Union and State Legislatures. Whileinterpreting these entries, they should not be viewed in a narrow or myopicEmanner but by giving the widest scope to their meaning, particularly,when the vires of a provision of a statue is assailed. In such circumstances,a liberal construction must be given to the Entry by looking at thesubstance of the legislation and not its mere form. However, whileinterpreting the Entries in the case of an apparent conflict, every attemptFmust be made by the Court to harmonise or reconcile them. Wherethere is an apparent overlapping between two Entries, the doctrine ofpith and substance is applied to find out the true character of theenactment and the entry within which it would fall. The doctrine of pithand substance, in short, means, if an enactment substantially falls withinthe powers expressly conferred by the Constitution upon the legislatureGwhich enacted it, the same cannot be held to be invalid merely becauseit incidentally encroaches on matters assigned to another legislature.Also, in a situation where there is overlapping, the doctrine has to beapplied to determine to which Entry, a piece of legislation could be related.If there is any trenching on the field reserved to another legislature, theHsame would be of no consequence. In order to examine the true character of enactment or a provision thereof, due regard must be had to theenactment as a whole and to its scope and objects. It is said that thequestion of invasion into another legislative territory has to be determinedby substance and not by degree.

11.4. In case of any conflict between Entries in List I and List II,the power of Parliament to legislate under List I will supersede when, onan interpretation, the two powers cannot be reconciled. But if a legislationin pith and substance falls within any of the Entries of List II, the StateLegislature’s competence cannot be questioned on the ground that thefield is covered by Union list or the Concurrent list videPrafulla KumarMukherjee vs. Bank of Commerce, Khulna, AIR 1947 P.C. 60,(“Prafulla Kumar Mukherjee”).According to the pith and substancerule, if a law is in its pith and substance within the competence of theLegislature which has made it, it will not be invalid because it incidentallytouches upon the subject lying within the competence of anotherLegislature vide State of Bombay vs. F.N. Balsara, AIR 1951 SC318.

11.5. In Atiabari Tea Company Ltd. vs. State of Assam, AIR1961 SC 232,(“Atiabari Tea Company Ltd.”) it has been observedby this Court that the test of pith and substance is generally and moreappropriately applied when a dispute arises as to the legislative competenceof the Legislature and it has to be resolved by reference to the Entries towhich the impugned legislation is relatable. When a question of legislativecompetence is raised, the test is to look at the legislation as a whole andif it has a substantial and not merely a remote connection with the Entry,the same may well be taken to be a legislation on the topic videUjagarPrints vs. Union of India, AIR 1989 SC 516, (“Ujagar Prints”).

11.6. The expression used in Article 246 is ‘with respect to’ anyof the matters enumerated in the respective Lists. The said expressionindicates the ambit of the power of the respective Legislature to legislateas regards the subject matters comprised in the various Entries includedin the legislative Lists. For instance, where an Entry describes an objectof tax, all taxable events pertaining to the object are within that field oflegislation unless the event is specifically provided for elsewhere undera different legislative Entry. Thus, the Court has to discover the truecharacter and nature of the Legislation while deciding the validity of alegislation. Applying the doctrine of pith and substance while interpretingthe legislative Lists what needs to be seen is whether an enactment A

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Asubstantially falls within the powers expressly conferred by theConstitution upon the Legislature which enacted it. If it does, it cannotbe held to be invalid merely because it incidentally encroaches on mattersassigned to another Legislature vide FN Balsara.

11.7. In Ujagar Prints, it was observed that the Entries in theBlegislative Lists must receive a liberal construction inspired by a broadand generous spirit and not in a narrow and pedantic manner. This isbecause the Entries are not sources of legislative power but are merelytopics or fields of Legislation. The expression ‘with respect to’ in Article246 brings in the doctrine of pith and substance in the understanding ofthe exertion of the legislative power and wherever the question ofClegislative competence is raised, the test is whether the Legislation, lookedat as a whole, is substantially ‘with respect to’ the particular topic ofLegislation. For applying the principle of pith and substance, regard mustbe had (i) to the enactment as a whole, (ii) to its main object, and (iii) tothe scope and effect of the provision.

D11.8. Once the Legislation is found to be ‘with respect to’ thelegislative Entry in question unless there are other constitutionalprohibitions, the power would be unfettered. It would also extend to allancillary and subsidiary matters which can fairly and reasonably be saidto be comprehended in that topic or category of Legislation vide UnitedEProvinces vs. Atiqa Begum, AIR 1941 FC 16, (“United Provinces”).

11.9. Another important aspect while construing the Entries in therespective Lists is that every attempt should be made to harmonise thecontents of the Entries so that interpretation of one Entry should notrender the entire content of another Entry nugatory vide Calcutta GasFCompany vs. State of West Bengal, AIR 1962 SC 1044, (“CalcuttaGas Company”).This is especially so when some of the Entries in adifferent List or in the same List may overlap or may appear to be indirect conflict with each other, in such a situation, a duty is cast on theCourt to reconcile the Entries and bring about a harmonious construction.Thus, an effort must be made to give effect to both Entries and therebyGarrive at a reconciliation or harmonious construction of the same. Inother words, a construction which would reduce one of the Entriesnugatory or dead letter, is not to be followed.

11.10. The sequitur to the aforesaid discussion is that if theLegislature passes a law which is beyond its legislative competence, it is H

a nullity ab-initio. The Legislation is rendered null and void for want ofjurisdiction or legislative competence vide RMDC vs. Union of India,AIR 1957 SC 628, (“RMDC”).

11.11. Under the Seventh Schedule of the Constitution, Lists I &II are divided essentially into two groups: One, relating to the power tolegislate on specified subjects and the other, relating to the power to tax.In Hoechst Pharmaceuticals Ltd. vs. State of Bihar, AIR 1983 SC1019, (“Hoechst Pharmaceuticals Ltd.”), it has been categoricallyheld that taxation is considered as a distinct matter for purposes oflegislative competence.

11.12. Having regard to the aforesaid discussion, we now answerthe points for consideration. While doing so, the following approach isbeing adopted with regard to the interpretation of the Entries of the Listsof the Seventh Schedule of the Constitution:

i)The Entries in the different Lists should be read togetherwithout giving a narrow meaning to any of them. The powersof the Union and the State Legislatures are expressed inprecise and definite terms. Hence, there can be no broaderinterpretation given to one Entry than to the other. Evenwhere an Entry is worded in wide terms, it cannot be sointerpreted as to negate or override another Entry or makeanother Entry meaningless. In case of an apparent conflictbetween different Entries, it is the duty of the Court toreconcile them in the first instance.

ii)In case of an apparent overlapping between two Entries,the doctrine of pith and substance has to be applied to findout the true nature of a legislation and the Entry withinwhich it would fall.

iii)Where one Entry is made ‘subject to’ another Entry, allthat it means is that out of the scope of the former Entry, afield of legislation covered by the latter Entry has beenreserved to be specially dealt with by the appropriateLegislature.

iv)When one item is general and another specific, the latterwill exclude the former on a subject of legislation. If,however, they cannot be fairly reconciled, the powerenumerated in List II must give way to List I.

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Av)On a close perusal of the Entries in the three Lists of theSeventh Schedule of the Constitution, it is discerned thatthe Constitution has divided the topics of legislation into thefollowing three broad categories: (i) Entries enabling lawsto be made; (ii) Entries enabling taxes to be imposed; and(iii) Entries enabling fees and stamp duties to be collected.BThus, the entries on levy of taxes are specifically mentioned.Therefore, per se, there cannot be a conflict of taxationpower of Union and the State.

Contentions on behalf of the Union of India:

Contentions on behalf of the Union of India:

C12. In this context, learned ASG appearing for Union of India SriNatraj submitted that there is a two-fold restriction on the field in whichthe Assam State Legislature can enact a law as far as medical educationis concerned: the first is that any State law dealing with medical educationmust be subject to Entry 66 of List I which deals with coordination anddetermination of standards. That any law to be made by the AssamDState Legislature or for that matter any State Legislature in the contextof education, particularly, medical education would be subjected to Entry66 of List I. The second restriction on a law to be made by a StateLegislature is in exercise of its concurrent power with Parliament underEntry 25 of List III which must not be a law which is repugnant to aECentral Legislation and that the parameters of Article 254 would applyaccordingly. He contended that even before testing the validity of alegislation made under Entry 25 of List III, it is necessary to, in the firstinstance, consider as to whether the State Legislation impinges uponany Central law which is in the realm of coordination and determinationof standards as envisaged in Entry 66 of List I. According to him, if thatFis so, then the law made by the Parliament is the Central law which inpith and substance is within the four corners of Entry 66 of List I andwould supersede any law made by a State legislature as per Entry 25 ofList III. But if an enactment does not trench upon the subject mentionedin Entry 66 of List I and a State Legislature enacts such a law within theGlegislative competence of Entry 25 of List III in such a case the only testto be applied is whether such a State Legislation is repugnant to anyCentral Legislation which has also been made relatable to Entry 25 ofList III. If that is so, then the State Legislation being repugnant to theCentral law would be null and void unless it has received presidentialassent as envisaged under sub-clause (2) of Article 254 of the Constitution.H

13. Sri Natraj contended that, in the instant case, the IMC Act,1956 is an enactment, which in pith and substance is, within the fourcorners of Entry 66 of List I and is a Central Legislation in the mater ofcoordination and determination of standards in medical educationapplicable throughout the Country and hence, the State Law which is indirect conflict with the Central Law cannot muster constitutionality.Hence, it must fail and be declared null and void. This is because a Statelaw within the parameters of Entry 25 of List III is subject to Entry 66 ofList I and therefore, the State law must yield to the Central law. LearnedASG contended that such an arrangement under the Constitution pointstowards federal supremacy having regard to Article 246 of theConstitution.

14. Therefore, according to Sri Nataraj, learned ASG, the Statelaw is null and void and has been rightly struck down by the DivisionBench of the Gauhati High Court. He, however, contended that the HighCourt has applied the doctrine of repugnancy to strike down the Stateenactment which was wholly unnecessary. Though the reasoning maynot be appropriate, the conclusion is correct. Bearing in mind the aforesaidsubmissions of the learned ASG, we may proceed to consider the matterfurther.

Interplay between Entry 66 of List I and Entry 25 of List III:

15. Since these appeals concern interpretation, inter alia, of Entry66 of List I and Entry 25 of List III, it would be useful to refer to thefollowing decisions of this Court, which examine the interplay of theaforesaid Entries:

i)In Gujarat University, Ahmedabad vs. Shri KrishnaRanganath Mudhoklar, AIR 1963 SC 703, (“GujaratUniversity, Ahmedabad”) the contest before a ConstitutionBench of this Court pertained to the fixation of an exclusivemedium of instruction in University Education and theLegislative competence of the State Legislature to do so.This Court considered, inter alia, the question as to whetherthe Gujarat University Act, 1949, which authorized theUniversity to prescribe Gujarati or Hindi or both as anexclusive medium of instruction and examination in theaffiliated colleges, would infringe Entry 66 of List I. One ofthe arguments raised in that case was that under Entry 66

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of List I of the Seventh Schedule the power of co-ordinationand determination of standards in institutions for highereducation or research in scientific and technical institutionswas conferred upon Parliament and that these matters mustbe regarded as having been excluded from Entry 11 of ListII (as it then stood), which read thus: “Education, includinguniversities, subject to the provisions of Entries 63, 64,65 and 66 of List I and Entry 25 of List III.”

Addressing such a contention, J.C. Shah, J., speakingfor the majority (Subba Rao J. dissenting) observed thatthe power of the State Legislature to legislate with respectto higher scientific and technical education and vocationaland technical training of labour, is controlled by the fiveitems in List I and List III mentioned in Entry 11 of List II.Items 63 to 66 of List I are carved out of the subject ofeducation and in respect of these items the power to legislateis vested exclusively in the Parliament. That power of theState to legislate in respect of education includingUniversities must, to the extent to which it is entrusted tothe Parliament, be deemed to be restricted. It was furtherobserved that if a subject of legislation is covered by Entries63 to 66 even if it otherwise falls within the larger field of “education including universities,” as covered under Entry11 of List II, the power to legislate on that subject must lieonly with the Parliament. Acknowledging that Entry 11 ofList II and Entry 66 of List I undoubtedly overlap, it washeld that the said entries must be harmoniously construedand to the extent of overlapping, the power conferred byEntry 66 of List I must prevail over the power of the Stateunder Entry 11 of List II. The Majority on the Benchconcluded that the power, having regard to the width ofthose items, must be deemed to vest with the Union. Powerto legislate in respect to medium of instruction, in so far ithas a direct bearing and impact upon the legislative head ofco-ordination and determination of standards in institutionsof higher education or research and scientific and technicalinstitutions, must also be deemed by virtue of Entry 66 ofList I, to be vested with the Union. This Court rejected theargument that prescribing the medium of instruction is not a matter falling within determination and coordination ofstandards of higher education in Entry 66 of List I. It heldexpressly that it is within the purview of the said Entry.Accordingly, it was held that the State Legislature was notcompetent to legislate in that behalf.

ii)In State of Tamil Nadu vs. Adhiyaman Educational andResearch Institute, (1995) 4 SCC 104,(“AdhiyamanEducational and Research Institute”) this Courtconsidered the question, whether, even after the cominginto force of the All-India Council for Technical EducationAct, 1987, which is a Parliamentary enactment, the StateGovernment had the power to grant and withdrawpermission to start a technical institution, acting under theTamil Nadu Private College (Regulation) Act, 1976, andthe statutes and ordinances framed thereunder. The factsleading to the controversy were that the RespondentInstitution applied to the Government of Tamil Nadu forpermission to start a new self-financing private EngineeringCollege in terms of a Government Memorandum dated 17[th]April 1984, which permitted private managements to startnew Engineering Colleges under the self-financing schemewithout any financial commitment to the Government, butsubject to the fulfilment of certain conditions. The StateGovernment by its order of 9th June, 1987, grantedpermission to the Trust to start a private Engineering Collegeunder the name and style of Adhiyaman College ofEngineering at Hosur in Dharmapuri district, beginning withthe academic year 1987-88. One of the conditions imposedby the Government was that the institution could admitcandidates of its choice upto 50 per cent of the approvedintake under the management quota, and the remaining 50per cent of the seats would be allotted by the Director ofTechnical Education from among the candidates of theapproved list prepared for admission to Government andGovernment-aided Engineering Colleges. The Governmenthad also stipulated that if any of the conditions imposed bythem was not fulfilled, the permission granted to start theCollege would be withdrawn. In July, 1989, the Universitysent a communication to the Respondent institution informing A

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them that the Syndicate had accepted the report of the HighPower Committee appointed by the Government and itresolved to reject the request of the institution for provisionalaffiliation for 1989-90 for the first year and also the requestfor provisional affiliation for second and third year coursesfor 1989-90. By way of the said communication, theRespondent was also informed that they should makealternative arrangement to distribute the students alreadyadmitted to the academic year 1987-88 and 1988-89 amongother institutions with adequate facilities. A challenge tothe communication and the resolution passed by theSyndicate of the University accepting the report of the HighPower Committee appointed by the Government, wascarried before the High Court, and ultimately became thesubject of challenge before this Court. The larger questionbefore this Court in the said case was as regards the conflictbetween the All-India Council for Technical Education Act,1987 and the Tamil Nadu Private College [Regulation] Act,1976, in so far as the State Act provided significantlydifferent and more stringent yardsticks to be complied withby technical universities seeking recognition, as comparedto the Central enactment.

In that background, this Court undertook analysis of thescope of Entry 66 of List I and Entry 25 of List III andculled out the following principles:

“[i] The expression “coordination” used in Entry 66 ofthe Union List of the Seventh Schedule to the Constitutiondoes not merely mean evaluation. It means harmonisationwith a view to forge a uniform pattern for a concertedaction according to a certain design, scheme or plan ofdevelopment. It, therefore, includes action not only forremoval of disparities in standards but also for preventingthe occurrence of such disparities. It would, therefore,also include power to do all things which are necessaryto prevent what would make “coordination” eitherimpossible or difficult. This power is absolute andunconditional and in the absence of any valid compellingreasons, it must be given its full effect according to itsplain and express intention.

[ii] To the extent that the State legislation is in conflictwith the Central legislation though the former is purportedto have been made under Entry 25 of the ConcurrentList but in effect encroaches upon legislation includingsubordinate legislation made by the centre under Entry25 of the Concurrent List or to give effect to Entry 66of the Union List, it would be void and inoperative.

[iii] If there is a conflict between the two legislations,unless the State legislation is saved by the provisions ofthe main part of Clause [2] of Article 254, the Statelegislation being repugnant to the Central legislation, thesame would be inoperative.

[iv] Whether the State law encroaches upon Entry 66of the Union List or is repugnant to the law made by thecentre under Entry 25 of the Concurrent List, will haveto be determined by the examination of the two lawsand will depend upon the facts of each case.

[v] When there are more applicants than the availablesituations/seats, the State authority is not prevented fromlaying down higher standards or qualifications than thoselaid down by the centre or the Central authority to short-list the applicants. When the State authority does so, itdoes not encroach upon Entry 66 of the Union List ormake a law which is repugnant to the Central law.

[vi] However, when the situations/ seats are availableand the State authorities deny an applicant the same onthe ground that the applicant is not qualified accordingto its standards or qualifications, as the case may be,although the applicant satisfies the standards orqualifications laid down by the Central law, they actunconstitutionally. So also when the State authoritiesderecognise or disaffiliate an institution for not satisfyingthe standards or requirement laid down by them, althoughit satisfied the norms and requirements laid down by thecentral authority, the State authorities act illegally.”

Adverting to the facts of the said case, this Court ruledthat the provisions of the Central statute on the one hand AB

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and of the State statutes on the other, being inconsistentand therefore, repugnant to each other, the Central statutewill prevail and the derecognition by the State Governmentor the disaffiliation by the State University on grounds whichare inconsistent with those enumerated in the Central statutewere declared to be inoperative. It was observed that therewas no material on record which would demonstrate thatthe standards laid down by the Central Act are inadequateto ensure that the colleges eligible for recognition as perthe Central Act are able to successfully conduct the relevantcourses. Hence, it was held that the State Government didnot have the discretion to reject permission granted to anytechnical institution, or derecognise the institution becausesuch institution has failed to satisfy the conditions laid downby the State, which were inconsistent with those enumeratedin the Central statute.

In Preeti Srivastava vs. State of Madhya Pradesh, AIR1999 SC 2894, (“Preeti Srivastava”) this Courtconsidered the question, whether, it was open to the Stateto prescribe different admission criteria, in the sense ofprescribing different minimum qualifying marks, for specialcategory candidates seeking admission to the post-graduatemedical courses under the reserved seats category ascompared to the general category candidates. This Courtobserved that both the Union as well as the States have thepower to legislate on education including medical education,subject, inter alia, to Entry 66 of List I which deals withlaying down standards in institutions for higher educationor research and scientific and technical institutions as alsocoordination of such standards. A State has, therefore, theright to control education including medical education solong as the field is not occupied by any Union Legislation.It was further observed that the State cannot, whilecontrolling education in the State, impinge on standards ininstitutions for higher education because that is exclusivelywithin the purview of the Union Government. Therefore,while prescribing the criteria for admission to the institutionsfor higher education including higher medical education, theState cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. That sincenorms for admission can have a direct impact on thestandards of education, only such norms or rules may beprescribed which are consistent with or do not affectadversely the standards of education prescribed by the Unionin exercise of powers under Entry 66 of List I. By way ofillustration, it was stated that a State may, for admission tothe postgraduate medical courses, lay down qualificationsin addition to those prescribed under Entry 66 of List I.That such a rule would be consistent with promoting higherstandards for admission to the higher educational courses;but any lowering of the norms laid down can and does havean adverse effect on the standards of education in theinstitutes of higher education. It was declared that it is withinthe legislative competence of the State Legislature, inexercise of power under Entry 25 of the Concurrent List toprescribe higher educational qualifications and higher marksfor admission in addition to the one fixed by the IndianMedical Council in order to bring out the higher qualitativeoutput from the students who pursue medical course. Thefollowing factors were listed, which are non-exhaustive,which determine the standard of education in an institution:

“(1) The calibre of the teaching staff;

(2) A proper syllabus designed to achieve a high level ofeducation in the given span of time;

(3) The student-teacher ratio;

(4) The ratio between the students and the hospital bedsavailable to each student;

(5) The calibre of the students admitted to the institution;

(6) Equipment and laboratory facilities, or hospitalfacilities for training in the case of medical colleges;

(7) Adequate accommodation for the college and theattached hospital; and

(8) The standard of examinations held including themanner in which the papers are set and examined andthe clinical performance is judged.”

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SUPREME COURT REPORTS

It was concluded in the said case that whether lowerminimum qualifying marks for the reserved categorycandidates can be prescribed at the post-graduate level ofmedical education was a question which must be decidedby the Medical Council of India since it affects standardsof post-graduate medical education. That even if minimumqualifying marks can be lowered for the reserved categorycandidates, there cannot be a wide disparity between theminimum qualifying marks for the reserved categorycandidates and the minimum qualifying marks for the generalcategory candidates at the level of post-graduation.

In Modern Dental College and Research Centre vs. Stateof Madhya Pradesh, (2016) 7 SCC 353, (“ModernDental College and Research Centre”) this Court wascalled upon to adjudicate upon a challenge to the vires ofthe Niji Vyavasayik Shikshan Sanstha (Pravesh KaViniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007,read with the Madhya Pradesh Private Medical and DentalPost Graduate Courses Entrance Examination Rules, 2009.The said Act and Rules were framed primarily to regulatethe admission of students in post graduate courses in privateprofessional educational institutions and also containedprovisions for fixation of fee and reservation of seats insuch colleges. A challenge was laid by the Appellants therein,which were unaided private medical and dental colleges, tothose provisions of the Act and Rules, which sought toregulate admission, fixation of fee, reservation and eligibilitycriteria. The arguments raised by the Appellants thereinbefore this Court were founded, inter alia, on power of theState to enact such a legislation. It was argued that thematter of admission in higher educational institutional fallswithin the purview of Entry 66 of List I to the SeventhSchedule of the Constitution and is not covered under Entry25 of List III of Seventh Schedule. In that background, thisCourt undertook an analysis of the scope and ambit of Entry66 of List I, relative to Entry 25 of List III.

This Court held that Entry 66 of List I is a specific Entryhaving a very specific and limited scope. It deals with co-ordination and determination of standards in institution of higher education or research as well as scientific andtechnical institutions. Thus, when it comes to prescribingthe standards for such institutions of higher learning,exclusive domain is given to the Union. That such co-ordination and determination of standards, insofar as medicaleducation is concerned, is achieved by Parliamentarylegislation in the form of Medical Council of India Act, 1956and by creating the statutory body like Medical Council ofIndia.

With reference to Entry 25 of List III, it was observedthat regulating ‘education’ as such, which includes medicaleducation as well as universities, is a matter under theconcurrent list. That earlier, education, including universityeducation, was the subject matter of Entry 11 of List II.Thus, power to this extent was given to the StateLegislatures. However, this Entry was omitted by theConstitution (Forty-Second Amendment) Act, 1976 witheffect from 03 July, 1977 and at the same time Entry 25 ofList II was amended. Education, including universityeducation, was thus transferred to Concurrent List and inthe process technical and medical education was also addedwithin the scope of Entry 25 of List II.

With that preface, it was observed in the said case thaton a harmonious reading of Entry 66 of List I and Entry 25of List III, it would become manifest. That in mattersconcerning co-ordination and laying down of standards inhigher education or research and scientific and technicalinstitutions, power rests with the Union/Parliament to theexclusion of the State Legislatures. However, in so far asother facets of education, including technical and medicaleducation, as well as governance of universities areconcerned, even State Legislatures are vested with powerby virtue of Entry 25 of List III of the Seventh Schedule ofthe Constitution. That the field covered by Entry 25 of ListIII is wide enough and as circumscribed to the limited extentof it being subject to Entries 63, 64, 65 and 66 of List I.

It was observed that most educational activities,including admissions, have two aspects: the first of such AB

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aspects being the adoption and setting of the minimumstandards of education. That it was essential to lay down auniform minimum standard for the nation, with a view toprovide a benchmark quality of education being impartedby various educational institutions across the country. Tothis end, Entry 66 of List I was formulated with the objectiveof maintaining uniform standards of education in fields ofresearch, higher education and technical education.

The Court went on to observe that the second aspect ofregulation of education is with regard to the implementationof the standards of education determined by Parliament,and the regulation of the complete activity of education.This activity necessarily entails the application of thestandards determined by Parliament in all educationalinstitutions in accordance with the local and regional needs.Therefore, it was held that while Entry 66 of List I dealtwith determination and co-ordination of standards, on theother hand, the original Entry 11 of List II granted the Statesthe exclusive power to legislate with respect to all otheraspects of education, except the determination of minimumstandards and co-ordination which was in national interest.Subsequently, vide the Constitution (Forty-secondAmendment) Act, 1976, the exclusive legislative field ofthe State Legislature with regard to education was removedand deleted, and the same was replaced by amending Entry25 of List III granting concurrent powers to both Parliamentand State Legislature the power to legislate with respect toall other aspects of education, except that which wasspecifically covered by Entries 63 to 66 of List I.

In a concurring judgment, Bhanumati J. in paragraphs131 to 134 and 147 to 149, has held as under:

“131. In order to answer the concern of other ConstitutionFramers, Dr Ambedkar went on to clarify the limitedscope of List I Entry 66 (as in the present form), asproposed by him in the following words: (CAD Vol. 9, p.796)

Entry 57-A merely deals with the maintenance ofcertain standards in certain classes of institutions, namely, institutions imparting higher education,scientific and technical institutions, institutions forresearch, etc. You may ask, “why this entry?” I shallshow why it is necessary. Take for instance, the BADegree examination which is conducted by thedifferent universities in India. Now, most provincesand the Centre, when advertising for candidates,merely say that the candidate should be a graduateof a university. Now, suppose the Madras Universitysays that a candidate at the BA Examination, if heobtained 15% of the total marks shall be deemed tohave passed that examination; and suppose the BiharUniversity says that a candidate who has obtained20% of marks shall be deemed to have passed theBA degree examination; and some other universityfixes some other standard, then it would be quite achaotic condition, and the expression that is usuallyused, that the candidate should be a graduate, I think,would be meaningless. Similarly, there are certainresearch institutes, on the results of which so manyactivities of the Central and Provincial Governmentsdepend. Obviously, you cannot permit the results ofthese technical and scientific institutes to deterioratefrom the normal standard and yet allow them to berecognised either for the Central purposes, for all-India purposes or the purposes of the State.

132. The intent of our Constitution Framers whileintroducing Entry 66 of the Union List was thus limitedonly to empowering the Union to lay down a uniformstandard of higher education throughout the country andnot to bereft the State Legislature of its entire power tolegislate in relation to “education” and organising its owncommon entrance examination.

133. If we consider the ambit of the present Entry 66 ofthe Union List; no doubt the field of legislation is of verywide import and determination of standards in institutionsfor higher education. In the federal structure of India,as there are many States, it is for the Union to coordinate A

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between the States to cause them to work in the field ofhigher education in their respective States as per thestandards determined by the Union. Entry 25 in theConcurrent List is available both to the Centre and theStates. However, power of the State is subject to theprovisions of Entries 63, 64, 65, and 66 of the UnionList; while the State is competent to legislate on theeducation including technical education, medicaleducation and universities, it should be as per thestandards set by the Union.

134. The words “coordination” and “determination ofthe standards in higher education” are the preserve ofParliament and are exclusively covered by Entry 66 ofthe Union List. The word “coordination” meansharmonisation with a view to forge a uniform patternfor concerted action. The term “fixing of standards ofinstitutions for higher education” is for the purpose ofharmonising coordination of the various institutions forhigher education across the country. Looking at thepresent distribution of legislative powers between theUnion and the States with regard to the field of“education”, that State’s power to legislate in relation to“education, including technical education, medicaleducation and universities” is analogous to that of theUnion. However, such power is subject to Entries 63,64, 65 and 66 of the Union List, as laid down in Entry 25of the Concurrent List. It is the responsibility of theCentral Government to determine the standards of highereducation and the same should not be lowered at thehands of any particular State.

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147. Another argument that has been put forth is thatthe power to enact laws laying down process of admissionin universities, etc. vests in both Central and StateGovernments under Entry 25 of the Concurrent List only.Under Entry 25 of the Concurrent List and erstwhileEntry 11 of the State List, the State Government hasenacted various legislations that inter alia regulate admission process in various institutions. For instance,Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam,Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam,Rashtriya Vidhi Sansathan Vishwavidyalaya Adhiniyam,etc. were established by the State Government inexercise of power under Entry 25 of the ConcurrentList. Similarly, the Central Government has also enactedvarious legislations relating to higher education underEntry 25 of the Concurrent List pertaining to Centrallyfunded universities such as the Babasaheb BhimraoAmbedkar University Act, 1994, the Maulana AzadNational Urdu University Act, 1996, the Indira GandhiNational Tribal University Act, 2007, etc. The CentralGovernment may have the power to regulate theadmission process for Centrally funded institutions likeIITs, NIT, JIPMER, etc. but not in respect of otherinstitutions running in the State.

148. In view of the above discussion, it can be clearlylaid down that power of the Union under Entry 66 of theUnion List is limited to prescribing standards of highereducation to bring about uniformity in the level ofeducation imparted throughout the country. Thus, thescope of Entry 66 must be construed limited to its actualsense of “determining the standards of higher education”and not of laying down admission process. In no case isthe State denuded of its power to legislate under List IIIEntry 25. More so, pertaining to the admission processin universities imparting higher education.

149. I have no hesitation in upholding the vires of theimpugned legislation which empowers the StateGovernment to regulate admission process in institutionsimparting higher education within the State. In fact, theState being responsible for welfare and development ofthe people of the State, ought to take necessary stepsfor welfare of its student community. The field of “highereducation” being one such field which directly affectsthe growth and development of the State, it becomesprerogative of the State to take such steps which further AB

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the welfare of the people and in particular pursuing highereducation. In fact, the State Government should be thesole entity to lay down the procedure for admission andfee, etc. governing the institutions running in thatparticular State except the Centrally funded institutionslike IIT, NIT, etc. because no one can be a better judgeof the requirements and inequalities-in-opportunity of thepeople of a particular State than that State itself. Onlythe State legislation can create equal level playing fieldfor the students who are coming out from the State Boardand other streams.”

In Chintpurni Medical College and Hospital vs. State ofPunjab and Ors., AIR 2018 SC 3119, (“ChintpurniMedical College and Hospital”)this Court considered thequestion, whether, a State Government can withdraw anEssentiality Certificate once granted to a medical collegeand whether such power is ultra vires the Central Act. Anessentiality certificate is required to be issued by the StateGovernment within the territory of which the medical collegeis proposed to be established, certifying the need in thesubject state, of a medical college. The concerned StateGovernment is required to certify that it has decided to issuean essentiality certificate for the establishment of a medicalcollege with a specified number of seats in public interest,and further that such establishment is feasible. In examiningwhether such certificate, which is required to be securedby a college before seeking permission under Section 10Aof the IMC Act, 1956, could be subsequently cancelled bythe State, this Court held that the only purpose of theessentiality certificate is to enable the Central Governmentacting under Section 10A to take an informed decision forpermitting the opening or establishment of a new medicalcollege. Once the college is established, its functioning andperformance and even the de-recognition of its courses iscontrolled only by the provisions of the Central Act and notany other law. That it would therefore be impermissible toallow any authority including a State Government whichmerely issues an essentiality certificate, to exercise anypower which could have the effect of terminating the

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existence of a medical college permitted to be establishedby the Central Government.

As regards the power of the Parliament under Entry 66of List I, as juxtaposed with the power with the StateLegislatures under Entry 25 of List III, this Court made thefollowing observations:

“The IMC Act, which is a Legislation under Entry 66 ofList I of Seventh Schedule of the Constitution of India is acomplete code which governs the establishment, functioning,including maintenance of standards of education and evende-recognition of Medical Colleges vide Section 19 of theAct. The States are denuded of the Legislative Power tolegislate on medical education under Entry 25 of theConcurrent List since Parliament has exercised its powerunder Entry 66 and enacted the IMC Act”

In Tamil Nadu Medical Officers Association vs. Unionof India, (2021) 6 SCC 568,(“Tamil Nadu MedicalOfficers Association”) a Constitution Bench of this Court,considered the question, whether, under the scheme of theConstitution of India and the provisions of the IMC Act,1956, read with the Medical Council of India PostgraduateMedical Education Regulations, 2000, a State has thelegislative competence to enact legislation to provide forreservation of seats for admission in postgraduate medicalcourses, in favour of medical professionals working ingovernment organisations within the State. In other words,the question before the Court pertained to the legislativecompetence of the states to make reservation for in-servicedoctors in the State quota in post graduate degree/diplomamedical courses.

The primary contention of the Petitioners therein wasthat while co-ordination and determination of standards ininstitutions for higher education falls within the exclusivedomain of the Union, under Entry 66 of List I, medicaleducation is a subject in the Concurrent list, i.e., under Entry25 of List III. That though Entry 25 of List III is subject toEntry 66 of List I, the State is not denuded of its power tolegislate on the manner and method of making admissions AB

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to post-graduate medical courses. The case of thePetitioners therein was that the competence of the StateGovernment to make reservation for post-graduate seatsin medical colleges, in favour of in-service candidates, istraceable to Entry 25 of List III, videModern DentalCollege. That since there was no plenary law by the Centreto provide for any reservation for in-service candidates, itwould be competent for the State Governments to providefor a reservation for in-service candidates. That in theabsence of a Central law governing the field, it would beopen to the State Government to enact a legal instrumentto provide reservation for in-service candidates.

This Court deliberated on the scope and ambit of Entry66 of List I, and also on the question as to whether, in viewof the said Entry, the State Legislature is denuded of itspower to legislate on the manner and method of admissionsinto post-graduate medical courses. Referring to the dictumof this Court in Modern Dental College wherein it washeld that Entry 66 of List I is specific and limited in scope,this Court observed that the said Entry pertains specificallyand exclusively to the prescription of standards for highereducation and research institutions and the scope of suchEntry would not extend to matters such as conduct ofexamination, prescribing course fee or admission of students.It was therefore declared that in exercise of powers underEntry 66 of List I, the Union cannot provide for anythingwith respect to reservation/ percentage of reservation and/or mode of admission within the State quota, which powersare conferred upon the States under Entry 25 of List III.

Further, referring to the provisions of the IMC Act, 1956and more particularly, Section 33 thereof, which providesfor the power of the Council to make regulations, this Courtheld that the said provision does not confer any authority orpower to frame regulations with respect to reservation inmedical courses. Therefore, in the absence of a CentralLaw governing the field, it would be open to the StateGovernment to make provision for reservation by legislatingon the strength of Entry 25 of List III. This Court, therefore, concluded that that Entry 66 of List I is a very specificEntry having limited scope and that the no provision forreservation for in service candidates could be made underthe said Entry; that power to legislate on such matter istraceable to Entry 25 of List III of the Seventh Schedule ofthe Constitution.

Aniruddha Bose J. in a separate but concurring judgmentobserved that although the students who would gainadmission into the post-graduate courses as a part of thein-service quota, may not have been admitted purely basedon a uniform order of merit, and this might, to some degreehave an effect on the overall standard of medical education,the term “standards” in Entry 66 of List I must not beconstrued in such a manner. That the phrase “coordinationand determination of standards” as appearing in Entry 66of List I should be construed as the standard of educationand other institutional standards which are to be compliedwith. Therefore, it was held that reservation in favour ofin-service candidates, would in no way be regulated underEntry 66 of List I.

16. Bearing in mind the aforesaid discussion, we shall proceed toconsider the scheme of the legislations relevant to these appeals.

16.1. The field of legislation covered under Entry 25 of List III issubject to Entries 63, 64, 65 and 66 of List I. It is, therefore, necessaryto dilate on the effect of providing that one Entry or provision is ‘subjectto’ another. As per Black’s Law Dictionary, 5th Edition, Pg. 1278,“subject to” means “liable, subordinate, subservient, inferior, obedientto, governed or affected by.” The following decisions would illustratethe above meanings of the phrase ‘subject to’:

i)In K.R.C.S. Balakrishna Chetty & Sons & Co. vs. TheState of Madras, AIR 1961 SC 1152, (“K.R.C.S.Balakrishna Chetty & Sons & Co.”) this Court observedthat the expression “subject to” has reference to effectuatingthe intention of the law and the correct meaning, of thephrase is, “conditional upon”.

ii)Similarly, in The South India Corporation (P) Ltd. vs.The Secretary, Board of Revenue Trivandrum and Ors., A

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AAIR 1964 SC 207, (“The South India Corporation (P)Ltd.”) this court observed that the expression “subject to”conveys the idea of a provision yielding place to anotherprovision or other provisions to which it is made subject.This understanding of the phrase “subject to” has beenaffirmed in K.T. Plantation (P) Ltd. vs. State ofBKarnataka, (2011) 9 SCC 1, (“K.T. Plantation (P)Ltd.”).

iii)In Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr.,(2004) 3 SCC 1, (“Ashok Leyland Ltd.”) this Court heldthat, “‘Subject to’ is an expression whereby limitation isexpressed.”

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16.2. In the facts of the present case, the Assam Act would besubject to the provisions of the Central Act. This is because the AssamAct is stated to be enacted on the strength of Entry 25 of List III, andthe power of the State Legislature under the said Entry is circumscribedDto the limited extent of it being subject to Entries 63, 64, 65 and 66 ofList I.

16.3. Where one Entry is made ‘subject to’ another Entry, it meansthat out of the scope of the former Entry, a field of legislation covered bythe latter Entry has been reserved to be specially dealt with by theEappropriate Legislature. In the present context, the field of legislationcovered under Entry 25 of List III is subject to Entry 66 of List I. Thiswould imply that out of the scope of Entry 25 of List III, a field oflegislation covered by Entry 66 of List I is reserved to be dealt with bythe Parliament. Hence, the field covered by the Central Act, enactedunder Entry 66 of List I, is carved out of the scope of Entry 25 of List IIIFand is reserved to be dealt with by the Parliament. What is that field oflegislation has to be identified. We shall proceed to undertake the saidexercise by considering both the Central as well as the State enactments.

Indian Medical Council Act, 1956 (IMC Act, 1956)

(Central law)G

17. The relevant provisions of the Indian Medical Council Act,1956 (‘IMC Act, 1956’), read as under:

Preamble – An Act to provide for the reconstitution of the MedicalCouncil of India, and the maintenance of a Medical Register forIndia and for matters connected therewith.

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x x x

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“2. Definitions.- In this Act, unless the context otherwiserequires,- (a) “approved institution” means a hospital, health centre orother such institution recognised by a University as aninstitution in which a person may undergo the training, ifBany, required by his course of study before the award ofanymedical qualification to him; x x x (d)“Indian Medical Register” means the medical registermaintained by the Council;C

(e) “medical institution” means any institution, within or withoutIndia, which grants degrees, diplomas or licences inmedicine; (f) “medicine” means modern scientific medicine in all itsbranches and includes surgery and obstetrics, but does notDinclude veterinary medicine and surgery; x x x (h)“recognised medical qualification” means any of the medicalqualifications included in the Schedules; x x x E

(k) “State Medical Register” means a register maintained underany law for the time being in force in any State regulatingthe registration of practitioners of medicine; x x x F

10A. Permission for establishment of new medical college,new course of study.—

(1) Notwithstanding anything contained in this Act or any otherlaw for the time being in force,—

(a) no person shall establish a medical college; or G

(b) no medical college shall—

(i) open a new or higher course of study or training (includinga post-graduate course of study or training) which wouldenable a student of such course or training to qualifyhimself for the award of any recognised medicalqualification; or H

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(ii) increase its admission capacity in any course of studyor training (including a post-graduate course of study ortraining), except with the previous permission of the Central Governmentobtained in accordance with the provisions of this section.

Explanation 1.—For the purposes of this section, “person” includesany University or a trust but does not include the CentralGovernment.

Explanation 2.—For the purposes of this section, “admissioncapacity”, in relation to any course of study or training (includingpost-graduate course of study or training) in a medical college,means the maximum number of students that may be fixed by theCouncil from time to time for being admitted to such course ortraining.

x x x

10B. Non-recognition of medical qualifications in certaincases.—

(1) Where any medical college is established except with theprevious permission of the Central Government in accordancewith the provisions of section 10A, no medical qualification grantedto any student of such medical college shall be a recognisedmedical qualification for the purposes of this Act.

(2) Where any medical college opens a new or higher course ofstudy or training (including a post-graduate course of study ortraining) except with the previous permission of the CentralGovernment in accordance with the provisions of section 10A, nomedical qualification granted to any student of such medicalcollege on the basis of such study or training shall be a recognisedmedical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacityin any course of study or training except with the previouspermission of the Central Government in accordance with theprovisions of section 10A, no medical qualification granted to anystudent of such medical college on the basis of the increase in itsadmission capacity shall be a recognised medical qualification forthe purposes of this Act.

Explanation.—For the purposes of this section, the criteria foridentifying a student who has been granted a medical qualificationon the basis of such increase in the admission capacity shall besuch as may be prescribed.

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11. Recognition of medical qualifications granted byUniversities or medical institutions in India.—

(1) The medical qualifications granted by any University or medicalinstitution in India which are included in the First Schedule shallbe recognised medical qualifications for the purposes of this Act.

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(2) Any University or medical institution in India which grants amedical qualification not included in the First Schedule may applyto the Central Government to have such qualification recognised,and the Central Government, after consulting the Council, may,by notification in the Official Gazette, amend the First Scheduleso as to include such qualification therein, and any such notificationmay also direct that an entry shall be made in the last column ofthe First Schedule against such medical qualification declaringthat it shall be a recognised medical qualification only when grantedafter a specified date.

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13. Recognition of medical qualifications granted by certainmedical institutions whose qualifications are not includedin the First or Second Schedule.—

(1) The medical qualifications granted by medical institutions inIndia which are not included in the First Schedule and which areincluded in Part I of the Third Schedule shall also be recognisedmedical qualifications for the purposes of this Act.

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(2) The medical qualifications granted to a citizen of India—

(a) before the 15th day of August, 1947, by medical institutionsGin the territories now forming part of Pakistan, and (b) before the Ist day of April, 1937, by medical institutions inthe territories now forming part of Burma, which are included in Part I of the Third Schedule shall also berecognised medical qualifications for the purposes of this Act.

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A(3)The medical qualifications granted by medical institutionsoutside India before such date as the Central Government may,by notification in the Official Gazette, specify which are includedin Part II of the Third Schedule shall also be recognised medicalqualifications for the purposes of this Act, but no person possessingany such qualification shall be entitled to enrolment on any StateBMedical Register unless he is a citizen of India and has undergonesuch practical training after obtaining that qualification as may berequired by the rules or regulations in force in the country grantingthe qualification, or if he has not undergone any practical trainingin that country he has undergone such practical training as mayCbe prescribed.

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x x x

15. Right of persons possessing qualifications in theSchedules to be enrolled.—

D(1) Subject to the other provisions contained in this Act, the medicalqualifications included in the Schedules shall be sufficientqualification for enrolment on any State Medical Register.

(2) Save as provided in section 25, no person other than a medicalpractitioner enrolled on a State Medical Register,—

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(a) shall hold office as physician or surgeon or any other office(by whatever designation called) in Government or in anyinstitution maintained by a local or other authority; (b) shall practise medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitnesscertificate or any other certificate required by any law tobe signed or authenticated by a duly qualified medicalpractitioner; F

(d) shall be entitled to give evidence at any inquest or in anycourt of law as an expert under section 45 of the IndianGEvidence Act, 1872 (1 of 1872) on any matter relating tomedicine.

(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term whichmay extend to one year, or with fine which may extend to oneHthousand rupees, or with both.

x x x

19A. Minimum standards of medical education.—

(1) The Council may prescribe the minimum standards of medicaleducation required for granting recognised medical qualifications(other than post-graduate medical qualifications) by Universitiesor medical institutions in India.

(2) Copies of the draft regulations and of all subsequentamendments thereof shall be furnished by the Council to all StateGovernments and the Council shall, before submitting theregulations or any amendment thereof, as the case may be, to theCentral Government for sanction, take into consideration thecomments of any State Government received within three monthsfrom the furnishing of the copies as aforesaid.

(3) The Committee shall from time to time report to the Councilon the efficacy of the regulations and may recommend to theCouncil such amendments thereof as it may think fit.

x x x

—21. The Indian Medical Register.

(1) The Council shall cause to be maintained in the prescribedmanner a register of medical practitioners to be known as theIndian Medical Register, which shall contain the names of allpersons who are for the time being enrolled on any State MedicalRegister and who possess any of the recognised medicalqualifications.

(2) It shall be the duty of the Registrar of the Council to keep theIndian Medical Register in accordance with the provisions of thisAct and of any orders made by the Council, and from time to timeto revise the register and publish it in the Gazette of India and insuch other manner as may be prescribed.

(3) Such register shall be deemed to be a public document withinthe meaning of the India Evidence Act, 1872 (1 of 1872) and maybe proved by a copy published in the Gazette of India.

22. Supply of copies of the State Medical Registers.—

Each State Medical Council shall supply to the Council six printedcopies of the State Medical Register as soon as may be after the A

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Acommencement of this Act and subsequently after the first day ofApril of each year, and each Registrar of a State Medical Councilshall inform the Council without delay of all additions to and otheramendments in the State Medical Register made from time totime.

B23. Registration in the Indian Medical Register.—

The Registrar of the Council may, on receipt of the report ofregistration of a person in a State Medical Register or onapplication made in the prescribed manner by any such person,enter his name in the Indian Medical Register:

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Provided that the Registrar is satisfied that the person concernedpossesses a recognised medical qualification.”

17.1. On a conjoint reading of the aforesaid provisions, it is notedthat the IMC Act, 1956, is an Act which repealed the erstwhile Act of1933 with the object of providing for the reconstitution of the MedicalDCouncil of India and for the maintenance of a Medical Register for Indiaand for matters connected therewith. There are two significant provisionswhich require consideration under this Act in the instant case: first isSection 10A and the second is Section 15. However, while consideringthe aforesaid Sections in detail, it would be worthwhile to refer to otherErelevant provisions of the IMC Act, 1956.

17.2. From the point of view of opening of a new medical institutionas defined under Section 2(e), Section 10A becomes relevant. It beginswith a non-obstante clause and states that notwithstanding anythingcontained in the IMC Act, 1956 or any other law for the time being inFforce, a) no person shall establish a medical college; or b) no medicalcollege shall –

i)open a new or higher course of study or training (includinga post-graduate course of study or training) which wouldenable a student of such course or training to qualify himselffor the award of any recognised medical qualification; orG

ii)increase its admission capacity in any course of study ortraining (including a post-graduate course of study ortraining), except with the previous permission of the CentralGovernment obtained in accordance with the provisions ofthis Section.

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Explanation 1 and Explanation 2 define the expression “person”and expression “admission capacity” respectively. Although, theexpression “medical institution” has been defined in Section 2(e) to meanany institution, which grants degrees, diplomas or licences in medicinewithin or outside India, the expression “medical college” has not beendefined. But in our view, the said expressions could be readinterchangeably. Section 10A was inserted by the Act of 1993 with effectfrom 27.08.1992.

17.3. Thus, a condition precedent has been incorporated by anamendment to the IMC Act, 1956, with regard to opening of any medicalinstitution/college in India which is, the seeking of previous permissionof the Central Government in accordance with the procedure prescribedunder Section 10A. In fact, this position is highlighted on a reading ofSection 10B which states that if a medical qualification is granted to anystudent of a medical college which has been established de hors theprovisions of Section 10A, no such qualification shall be recognised underthe said Act. The phrase “recognised medical qualification” is defined inSection 2(h) to mean any of the medical qualifications included in theSchedules. There are three Schedules to the IMC Act, 1956. The FirstSchedule deals with recognised medical qualifications granted by theUniversities or Medical Institutions in India. The Second Schedulespeaks of recognised medical qualifications granted by Medical Institutionsoutside India while the Third Schedule deals with recognised medicalqualifications granted by Medical Institutions not included in the FirstSchedule.

17.4. In this context, Sections 11 and 13 are also relevant. Sub-section (1) of Section 11 states that the medical qualifications granted byany University or Medical Institution in India which is included in theFirst Schedule, shall be recognised medical qualification for the purposesof the said Act. Sub-section (2) of Section 11 is significant as it statesthat any University or medical institution in India which grants a medicalqualification not included in the First Schedule, may apply to the CentralGovernment to have such qualification recognised, and the CentralGovernment, after consulting the Council, may, by notification in theOfficial Gazette, amend the First Schedule so as to include suchqualification therein, and any such notification may also direct that anentry shall be made in the last column of the First Schedule against suchmedical qualification declaring that it shall be a recognised medical AB

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Aqualification only when granted after a specified date. On the other hand,Section 13(1) states that the medical qualifications granted by MedicalInstitutions in India which are not included in the First Schedule andwhich are included in Part I of the Third Schedule shall also be recognisedmedical qualifications for the purposes of the said Act. These are medicalqualifications such as LMP (Licenced Medical Practitioners) in variousBStates of India and erstwhile provinces of India. The Third Schedule isin respect of courses in medicine which were recognised prior to theenforcement of the IMC Act, 1956, while the courses conducted by theinstitutions mentioned in the First Schedule have recognition under thesaid Act.C

Facts

17.5. Sections 11 and 13 have a bearing on Section 15 of the Act.Section 15 states that, subject to the other provisions contained in theAct, the medical qualifications included in the Schedules shall be sufficientqualification for enrolment on any State Medical Register. Further, exceptas provided in Section 25, no person other than a medical practitionerDenrolled on a State Medical Register shall, inter alia, practice medicinein any State or shall be entitled to sign or authenticate a medical orfitness certificate or any other certificate required by any law to besigned or authenticated by a duly qualified medical practitioner. Theexpression “State Medical Register” as per Section 2(k) means a registermaintained under any law for the time being in force in any State,Eregulating the registration of practitioners of medicine. The word‘medicine’ is defined in Section 2(f) of the said Act to mean modernscientific medicine in all its branches and includes surgery and obstetrics,but does not include veterinary medicine and surgery.Therefore, unlessa person has sufficient qualification recognised under the Schedules to Fthe Act, he or she cannot be enrolled on any State Medical Register. Inthe absence of any such enrolment, such a person is barred from practicingmedicine in any State.

17.6. Further, all persons who are enrolled in any State MedicalRegister and who possess any of the recognised medical qualificationsGare enabled to be enrolled after registration as medical practitioners underthe Indian Medical Register. As per sub-Section (2) of Section 21, it isthe duty of the Registrar of the Indian Medical Council, to keep theIndian Medical Register in accordance with the provisions of the IMCAct, 1956, and to from time to time revise the register and publish it inthe Gazette of India and in such other manner as may be prescribed. InH

fact, under Section 22 of the Act, each State Medical Council has tosupply to the Indian Medical Council, six printed copies of the StateMedical Register on the first day of April of each year. On the receipt ofreport of the registration of a person in a State Medical Register or onapplication made in the prescribed manner by such person, enter hisname in the Indian Medical Register vide Section 23 of the Act. Removalof the names from the Indian Medical Register is dealt with in Section24, while provisional registration is dealt with in Section 25 of the Actand registration of additional qualifications in Section 26 of the Act. Everyperson whose name is for the first time being borne in the Indian MedicalRegister shall be entitled, according to his qualifications, to practice as amedical practitioner in any part of India and to recover in due course oflaw, in respect of such practice, any expenses, charges in respect ofmedicaments or other appliances, or any fees to which he may be entitledto.

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18. It may be appropriate at this juncture to dilate on the AssamAct, 2004.

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Assam Rural Health Regulatory Authority Act, 2004 (Assam Act):

The relevant provisions of the said Act are as extracted as under:

“2. Definitions.- In this Act unless the context otherwise requires:

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(a) ‘Act’ means the Assam Rural Health Regulatory AuthorityAct, 2004; (b)‘Authority’ means the Assam Rural Health RegulatoryAuthority established under Section 3; F

(c) ‘Certificate’ means a certificate issued by the Authorityunder Section 17; (d)‘Course’ means the prescribed course of education andtraining for the Diploma in Medicine and Rural Health Care; (e)‘Diploma in Medicine and Rural Health Care’ means theGdiploma awarded by the Authority on successful completionof the course of Diploma in Medicine and Rural HealthCare under the provisions of the Act; x x x H

A(g)‘Medicine’ means allopathic medicine but does not includeveterinary medicine; (h)‘Medicine and Rural Health Care’ means practice ofallopathic medicine and health care system in rural areas inthe State of Assam; B

(i) ‘Medical institute’ means institute established under this Actfor imparting medical education both theoretical and practicalfor the course of Diploma in Medicine and Rural HealthCare; x x x C

(l) ‘Rural areas’ means areas not included in a MunicipalCorporation, a Municipal Board or a Town Committee orany other area notified as urban area; x x x D(n)‘Rural Health Practitioners’ means a holder of the diplomain Medicine and Rural Health Care who has registeredhimself as such with the Authority and obtained a certificateand a registration number.

(o) ‘State Register of Rural Health Practitioners’ means theEregister maintained under Section 17 and the expressions“Registered’ and ‘Registration’ shall be construedaccordingly; x x x

7. Minimum Standard. - The Authority may prescribe theFminimum standards of the course, the curriculum, the examinationetc. in respect of the course and prescribe by regulation the termsconditions and norms to be fulfilled, facilities to be provided by aMedical Institute for imparting education and training for the courseof Diploma in Medicine and Rural Health Care.

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8. Permission to open a Medical Institute.- (1)Notwithstanding anything contained in this Act or any other lawfor the time being in force no person or organization other thanthe State Government of Assam shall establish a Medical Institutewithout (a) the recommendation of the Authority and (b) priorHand expressed permission of the State Government.

(2) Every person or organization or trust wanting to start a MedicalInstitute shall for the purpose of obtaining permission under sub-section (1) submit to the State Government a proposal inaccordance with the provisions of the Act and the rules framedthereunder and the State Government shall refer the proposal tothe Authority for its scrutiny and recommendations.

(3) On receipt of the proposal, the Authority may obtain suchother particulars and information as may be considered necessaryfrom the person or the organization concerned and thereafter ifmay, if the proposal is defective and does not contain any necessaryparticular, give a reasonable opportunity to the person ororganization concerned for making a written representation and itshall be open to such person or organization to rectify the defects,if any, specified by the Authority.

(4) The State Government may after considering the proposaland the recommendations or observations of the Authority andafter obtaining where necessary, such other particulars as maybe considered necessary by it from the person or the organizationconcerned either approve (with such conditions, if any, as may beconsidered necessary) or disapprove the proposal.

(5) The authority while making its recommendations and the StateGovernment while passing an order, either approving ordisapproving the proposal shall have due regard to the followingfactors, namely, - (a)whether the proposed person or organization seeking to opena Medical Institute would be in a position to offer theminimum standards of education as prescribed by theAuthority; (b)whether the person seeking to establish a Medical Institutehas adequate financial resources;

(c) whether necessary· facilities in respect of staff; equipment,accommodation, training and other facilities to ensure properfunctioning of the Medical institute; (d) whether adequate hospital facilities having regard ·to thenumber of students likely to attend the Medical Institutewould be available; AB

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A(e)whether adequate qualified teaching and non-teaching staffwould be available in the Medical Institute.,

(f) any other condition as may be prescribed.

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17. State Register of Rural Health Practitioners.- (1) TheBAuthority shall cause to be maintained in the prescribed mannerand form a Register of Diploma Holders in Medicine and RuralHealth Care to be known as the State Register of Rural healthPractitioners.

(2) It shall be the duty of Secretary to keep and maintain the StateCRegister of Rural Health Practitioners in accordance with theprovisions of this Act and the rules made thereunder.

(3) The State Register of Rural Health practitioners shall bedeemed to be a public document within the meaning of the IndianEvidence Act, 1872.

(4) Every person on successful completion of the course shall beeligible for enrollment in the State Register of Rural HealthPractitioners on furnishing to the Secretary the proof of suchqualification and on payment of such fees as may be prescribed.

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(5) Every person whose name has been enrolled in the StateRegister of Rural Health Practitioners shall be entitle to have aEcertificate issued by the Authority under the hand and seal of thePresident and the Secretary and bearing a Registration Numberand shall be eligible to practise medicine and Rural Health Care inrural areas of the State of Assam.

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24. Powers and Functions.- The Rural Health Practitioners shallbe eligible to practise Medicine and Rural Health Care subject tothe following conditions namely.

(a) they shall treat only those diseases and carry out thoseprocedures which shall be outlined in the rules; G

(b) they shall prescribe only those drugs, which shall be outlinedin rules;

(c) they shall not carry out any surgical procedure, invasion,investigation or treatment, ‘Medical Termination or;Pregnancy etc. but shall confine themselves to such H

medicinal treatment and perform such minor surgery as mayAbe prescribed.

(d) they shall practice only in rural areas as defined in the Act; (e)they may issue illness certificates and death certificates.

(f) they shall maintain name, address, age, sex, diagnosis andtreatment records of all patients treated by them; and B

(g) they shall not be eligible for employment in Hospitals,Nursing Homes and Health establishments located in urbanareas as General Duty Physicians involved in patient carein OPD, Emergency and Indoor Services.

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18.1. The Assam Act is an Act to provide for the establishment ofa regulatory authority in the State of Assam to regulate and register theDiploma holders in Medicine & Rural Health Care (DMRHC) and theirpractice of medicine in rural areas and also to regulate opening of MedicalInstitutes for imparting education and training for the course of Diplomain Medicine and Rural Health Care (DMRHC).

18.2. Section 3 of the said Act deals with the establishment of theAssam Rural Health Regulatory Authority (in short “the Authority”).The powers and functions of the authority are enumerated in Section 6,inter alia, to include; E

(a) to hold, conduct and regulate the examination for the coursethat is Diploma in Medicine and Rural Health Care includingentrance test for admission into the Medical Institute; (b)to maintain State Register of Rural Health Practitioners; F

(c) to lay down the norms and standards for the course,curriculum facilities for instruction, training assessments andexaminations for students undergoing the course forDiploma in Medicine and Rural Health Care and of theMedical Institute; G

(d) to provide guidelines for admission of the students to thecourse.

(e) to inspect physical facilities, staff position, Hospital andacademic infrastructure of a Medical Institute impartingeducation and training for Diploma in Medicine and RuralHealth Care at the time of starting of such an Institute and H

Ato give no objection certificate after the said Institute hascompleted all formalities and norms and to make periodicalinspection to judge compliance of shortcomings pointed out,and to maintain standard of the Institute; 18.3. Section 8 deals with opening of a medical institute. SubBsection (1) of Section 8 begins with a non-obstante clause and statesthat, notwithstanding anything contained in the Assam Act or any otherlaw for the time in force, no person or organisation other than the StateGovernment of Assam shall establish a Medical Institute without (a) therecommendation of the Authority and (b) prior and expressed permissionof the State Government. Sub-section (2) of Section 8 states that anyCperson or organisation or trust wanting to start a Medical Institute mustobtain permission from the State Government by submitting a proposalto the State Government. The State Government shall refer the proposalto the Authority for its scrutiny and recommendations. The Authoritycan prescribe the minimum standards of the course, the curriculum, theDexamination etc. in respect of the course and prescribe the regulation,the terms and conditions and norms to be fulfilled, facilities to be providedby a medical institute for imparting education and training for the courseof Diploma in Medicine and Rural Heal Care. The Authority has thepower to withdraw recognition, when an Institute does not conform tothe standards prescribed by the authority, by making a reference to that Eeffect to the State Government and the State Government may, onconsideration of an explanation from the concerned Medical Instituteand on making further enquiry, de-recognise an Institute.

18.4. Section 17 of the Assam Act speaks of State Register ofRural Health Practitioners. That the Authority shall cause to beFmaintained in the prescribed manner and form a register of DiplomaHolders in Medicine and Rural Health Care to be known as the StateRegister of Rural Health Practitioners. Every person on successfulcompletion of the course that is, the course of education and training forthe Diploma in Medicine and Rural Healthcare, shall be eligible forGenrolment in the State Register of Rural Health Practitioners on furnishingthe proof of such qualification and on payment of such fees as may beprescribed. Every person whose name has been enrolled in the StateRegister of Rural Health Practitioners shall be entitled to have a certificateto be issued by the Authority bearing a Registration Number and shall beeligible to practise Medicine and Rural Health Care in rural areas. TheH

Rural Health Practitioners cannot use the word “Doctor” or “Dr.” beforeand after their names. However, they can identify themselves as RuralHealth Practitioners or RHP.

18.5. Section 21 of the Assam Act states that no person whosename is not enrolled or has been cancelled or removed from the StateRegister of Rural Health Practitioner shall practise Medicine and RuralHealth Care at any place whether urban or rural in the State of Assam.The powers and functions of Rural Health Practitioners are delineatedin Section 24 which clearly states that they can practice subject to thefollowing conditions namely:

(a) to treat only those diseases and carry out only thoseprocedures which are outlined in the rules; (b)to prescribe only those drugs, which are outlined in the rules;

(c) not to carry out any surgical procedure, invasion,investigation or treatment, Medical Termination ofPregnancy etc. but confine themselves to such medicinaltreatment and perform such minor surgery as may beprescribed.

(d) to practise only in rural areas as defined in the Assam Act; (e)to issue only illness certificates and death certificates; (f)they shall maintain name, address, age, sex, diagnosis andtreatment records of all patients treated by them; (g)not to be employed in Hospitals, Nursing Homes and Healthestablishments located in urban areas as General DutyPhysicians involved in patient care in OPD, Emergency andIndoor Services.

18.6. Section 22 of the Assam Act empowers the State Governmentto make rules, while Regulations could be made by the Authority withthe previous approval of the State Government, as per Section 23 of theAct.

18.7. The Regulations of Assam Rural Health Regulatory Authority,2005, regarding admission into Diploma in Medical and Rural HealthCare course in Medical Institutes of the State were framed under whichminimum standards for Medical Institutes offering Diploma in Medicineand Rural Health Care were prescribed under which the subjects to betaught were as under:

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“3. SUBJECTS TO BE TAUGHT:

(a) Anatomy

(b) Physiology & Biochemistry

(c) Community Medicine

(d) Pathology & Microbiology

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(e) Pharmacology

(f) Medicine and Paediatrics

(g) Surgery and Orthopaedics

(h) Obstetrics and Gynaecology

(i) Eye & ENT

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(j) Basics of Radiology and Imaging

(k) Basics of Forensic and State Medicine

(l) Basics of Human Genetics

(m) Basics of Dentistry.”

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18.8. Regulation 3 of the 2005 Regulations prescribes thecurriculum for the course of Diploma in Medicine and Rural HealthCare in the subjects referred to above. Annexure I to the regulationsdeals with the lists of diseases that can be treated by a Diploma holder inMedicine and Rural Health Care including the procedures that can beEcarried out, whereas, Annexure II lists the drugs that can be prescribedby such a diploma holder. The same read as under:

“ANNEXURE-1

DISEASES THAT CAN BE TREATED BY A DIPLOMATEOF MEDICINE AND RURAL HEALTH CARE

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FAcute bacterial infections febrile illnesses, diarrhoea, dysentery,viral infections, malaria, amoebiasis, giardiasis, worm infestations,gastroenteritis, cholera, typhoid fever, vitamin deficiencies, irondeficiency anaemia, malnutrition, upper respiratory infections,actuate bronchitis, bronchial asthma, hypertension, heart failure,in ischemic heart disease, peptic ulcer, acute gastritis, viral hepatitis,Gurinary tract infection, common skin infections, scabies, leprosy,first aid in poisoning and trauma, snake bite and animal bite. Inchildren fever, respiratory infections, diarrhoeal diseases, nutritionaldeficiencies, anaemia, jaundice, convulsion, measles, chicken pox,asthma, scabies and other common skin infections. Care in pregnancy, child birth and post-natal period, family welfareactivities.

PROCEDURES THAT CAN BE CARRIED OUT BY ADIPLOMATE IN MEDICINE AND RURAL HEALTH CARE:- Venupuncture, venesection, application of bandages and dressings,nasogastric intubation, catheterization, peritoneal tap, normaldelivery.

OPERATIVE PROCEDURES PERMITTED TO BE CARRIEDOUT BY A DIPLOMATE IN MEDICINE AND RURALHEALTH CARE

Repair of small wounds by stitching, drainage of abscess; burndressing, application of splints in fracture cases, application oftourniquet in case of severe bleeding wound in a limb injury.

Conduction of delivery, episiotomy, stitching of vaginal tear duringlabour.

ANNEXURE-II

DRUGS THAT CAN BE PRESCRIBED BY DIPLOMATEIN MEDINE AND RURAL HEALTH CARE: - Antacids, H2 receptor blockers, proton pump inhibitors, sucralfate.

Antihistaminic.

Antibiotics-cotrimoxazole, trimethoprim, norfloxacin, quinolones,tetracycline, chloramphenicol, streptomycin gentamycin, penicillin,cephalosporin, erythromycin, nitrofurantoin, metronidazole,tinidazole; Antitubercular-INH, rifampicin, ethambutol, pyrazinamide,streptomycin, Anthelminthics-mebendazole, albendazole,piperazine.

Antimalerials-chioroquine, quinine, primaquine, sulfadoxine-pyrimethamide.

Antileprosy-dapsone, rifampicin, clofazimine.

Topical antifungal.

Antiviral-acyclovir. Antiamoebic-metronidazole, tinidazole,doloxanide furoate, chloroquine.

Antiscabies-benzyle-benzoate, gamma benzene hexachloride,Anticholinergic-atropine.

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AAntiemetics

Antipyretics and analgesics

Laxatives

Oral rehydration solutions.

Haematinics and vitamins.BDiuretics and antihypertensives Nitroglycerine Sedatives and antiepilectics-phenobarbitone, diazepam, phenytoin.Bronchodilators-salbutamol, theophyiline, aminophylline,corticosteroids.CExpectorants Uterine stimulants and relaxants, oral contraceptic pills.”

19. A comparative table and analysis of the provisions of theIMC Act, 1956 and the Assam Act is as under:

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[2023] 9 S.C.R.

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993ABCDEFGH

ABCDA comparative study between MBBS, DMRHC is made is under:EFG

ABCDEFGH

20. The following aspects of the matter emerge when theprovisions of the Assam Act are considered in juxtaposition with thecorresponding provisions of the Central Act:

i)The Central Act operates in the area of modern scientificmedicine, in all its branches, vide Section 2(f). The AssamAct seeks to regulate the practice of allopathic medicine, inrural areas, vide Section 2(g). Essentially, modern scientificmedicine, includes allopathy. In other words, modernscientific medicine is the genus and allopathic medicine is aspecies of modern scientific medicine. This view has beenadopted by this Court in A.K. Sabhapathy and Dr.Mukhtiar Chand. Therefore, the practice in modernscientific medicine including allopathic medicine, is governedby the Central Act. Hence, in order to be recognised as apractitioner in any branch of modern scientific medicine,including allopathic medicine, the qualifications that mustmandatorily be obtained are those listed in the Schedules tothe Central Act.

ii)Further, Section 17 of the Assam Act provides that personsholding a Diploma in Medicine and Rural Health Care aftersuccessful completion of the course instituted under the Act,would be registered as Rural Health Practitioners and wouldbe eligible to practise ‘medicine’ and Health Care in ruralareas of Assam. The Assam Act permits Diploma holdersto practise ‘medicine’, i.e., allopathic medicine, in rural areasof Assam. We are unable to accept that allopathic medicine,which is governed by the Central Act, may be practised bypersons who do not possess the qualifications contemplatedunder the Schedules to the Central Act.

iii)Practise in modern scientific medicine, including allopathicmedicine, must be permitted only after having successfullyundergone the academic rigor, as prescribed under theCentral Act. The Central Act, in Section 33 authorizes theCouncil to prescribe inter alia, the courses and period ofstudy, practical training to be undertaken, subjects,examination and standards of proficiency required to beachieved. Therefore, it is problematic to hold that withouthaving successfully gone through meticulous training as A

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Acontemplated under the Central Act, a person may practisemedicine.

iv)On a close reading of Section 15 of the Central Act, inconjunction with Section 24 of the Assam Act, we find thatRural Health Practitioners possessing a Diploma under theBAssam Act have been authorised to perform certainfunctions identical to those performed by medicalpractitioners who possess qualifications prescribed underthe Central Act. Such functions include treatment ofcommon illnesses, prescription of certain categories ofdrugs, performance of minor surgeries, issuance of illnessCand death certificates. Performance of such functions bypersons who do not possess the qualifications prescribedunder the Central Act, could, in our view, have dangerousconsequences.

It is to be noted that insofar as Entry 25 of List III is concerned,Dthere are dual restrictions which would operate on the legislativecompetence of a State Legislature to enact any law under the said Entry:first is, if such a law is to be made by the State Legislature, it is alwayssubject to Entries 63, 64, 65 and 66 of List I or the Union List, in respectof which only the Parliament has the power to enact a law. The secondErestriction is with regard to the subject of the Entry as a whole. If theParliament has made any law which is outside the scope of Entries 63,64, 65 and 66 of List I but within the scope of Entry 25 of List III, in sucha case Article 254 and the principles of repugnancy would apply if aState Law is in conflict with such Parliamentary Law.

FIn the instant case the law made by the State Legislature, namely,the Assam Act is hit by the first of the aforesaid two restrictions; hence,it is null and void as the Assam Legislature lacked the legislativecompetence to enact such a Law.

In light of the aforesaid discussion, we are of the considered viewGthat Rural Health Practitioners enlisted under the Assam Act, areunderqualified to perform functions similar to those performed by medicalpractitioners registered in accordance with the Central Act. In order tobe recognised as a practitioner in any branch of modern scientific medicine,including allopathic medicine, the qualifications that must mandatorily beobtained are those listed in the Schedules to the Central Act.H

Triology of Cases

21. We next consider the three decisions relied upon by learnedsenior counsel for the appellants.

(A) Dr. Mukhtiar Chand vs. State of Punjab, (1998) 7 SCC

579, (“Dr. Mukhtiar Chand”):

(i) In this case the controversy was with regard to the issuanceof declarations by the State of Punjab under clause (iii) ofRule 2(ee) of the Drugs and Cosmetics Rules, 1945 (forshort, ‘Drugs Rules’) which defines “registered medicalpractitioner”. The State of Punjab issued a notification dated29.10.1967 declaring all the vaids/hakims who had beenregistered under the East Punjab Ayurvedic and UnaniPractitioners Act, 1949, and the PEPSU Ayurvedic andUnani Practitioners Act, 2008, and the Punjab Ayurvedicand Unani Practitioners Act, 1963, as persons practisingmodern system of medicine for the purposes of the DrugsAct.

(ii) Before this Court, it was contended that the right ofpractitioners of Indian medicine to practice modern scientificsystem of medicine (allopathic medicine) is protected underSection 17(3)(b) of the Indian Medicine Central CouncilAct, 1970 (‘IMCC Act, 1970’ for short).

(iii) While dealing with the IMC Act, 1956, this Court observedthat in order to ensure professional standards required topractice allopathic medicine, the IMC Act, 1956 was passed,and the said Act also deals with the reconstitution of theMedical Council of India and maintenance of an IndianMedical Register. Section 2(f) of the IMC Act, 1956, defines“medicine” to mean “modern scientific medicine” in all itsbranches and includes surgery and obstetrics, but does notinclude veterinary medicine and surgery and the expression“recognised medical qualification” is defined in Section 2(h)of the said Act to mean any of the medical qualificationsincluded in the Schedules to the Act. Further, referring toSection 15 of the IMC Act, 1956, it was observed thatqualifications included in the Schedules shall be sufficientqualification for enrolment in any State Medical Register; A

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SUPREME COURT REPORTS

but in none of the Schedules, the qualifications of integratedcourses figure. Consequently, by virtue of this section,persons holding degrees in integrated courses cannot beregistered in any State Medical Register. Hence, by Act 24of 1964, Section 15 of the IMC Act, 1956, was modified byadding two more sub-sections. Section 15(2)(b) thereofprohibits all persons from practicing modern scientificmedicine in all its branches in any State except a medicalpractitioner enrolled in a State Medical Register. There aretwo types of registration as far as the State Medical Registeris concerned: the first is under Section 25 and the second isunder Section 15(1) of the said Act. The third category ofregistration is in the “Indian Medical register” which theIndian Medical Council is enjoined to maintain under Section21 of the said Act for which recognised medical qualificationis a prerequisite.

(iv) The privileges of persons who are enrolled in the IndianMedical Register are mentioned in Section 27 of the IMCAct, 1956, and include the right to practice as a medicalpractitioner in any part of India. On the other hand, StateMedical Registers are maintained by the State MedicalCouncil of respective States which are not constituted underthe IMC Act, 1956, but are constituted under any law forthe time being in force, in any State regulating the registrationof practitioners of medicine. It is, thus, possible that in anyState, the law relating to registration of practitioners ofmodern scientific medicine may enable a person to beenrolled on the basis of the qualifications other than the“recognised medical qualification” which is a prerequisite,only for being enrolled in the Indian Medical Register andnot for the purposes of registration in a State MedicalRegister. A person holding “recognised medical qualification”cannot be denied registration in any State Medical Register,but a person registered in a State Medical Register cannotbe enrolled in the Indian Medical Register unless hepossesses “recognised medical qualification”. This followsfrom a combined reading of Sections 15(1), 21(1) and 23 ofthe IMC Act, 1956. So, by virtue of such qualifications asprescribed in a State Act and on being registered in a State Medical Register, a person will be entitled to practiceallopathic medicine under Section 15(2)(b) of the IMC Act,1956.

(v) In this context, it would be relevant to mention what are therecognised medical qualifications in the context of the Firstand Third Schedules to the IMC Act, 1956. While the FirstSchedule deals with recognised medical qualificationssecured by persons from recognised Universities in India,on the other hand, the Third Schedule deals with medicalqualification attained under the Pre-Independencerecognised medical enactments such as Bombay MedicalAct, 1912, the Bihar and Orissa Medical Act, 1916, thePunjab Medical Registration Act, 1916, etc.

(vi) It was further observed in the said Judgment that Rule 2(ee)of the Drugs Rules was inserted with effect from14.05.1960, while Section 15 of the IMC Act, 1956, as itthen stood, only provided that the medical qualifications inthe Schedules shall be sufficient qualification for enrolmentin any State Medical Register. Therefore, there was noinconsistency between the Section and the Rule when itwas brought into force. However, after sub-section (2) ofSection 15 was inserted into the said Act, a medicalpractitioner enrolled in a “State Medical Register” couldpractice modern scientific medicine in any State but therights of non-allopathic doctors to prescribe drugs by virtueof the declaration issued under the said Drugs Rules, byimplication, got obliterated. However, this Court observedthat it did not debar them from prescribing or administeringallopathic drugs sold across the counter for commonailments.

(vii) On a harmonious reading of Section 15 of the IMC Act,1956 and Section 17 of the IMCC Act, 1970, it was observedthat there is no scope for a person enrolled in the StateRegister of Indian Medicine or the Central Register of IndianMedicine to practice modern scientific medicine in any ofits branches unless that person is also enrolled in a StateMedical Register within the meaning of the IMC Act, 1956.Right to practice modern scientific medicine or Indian A

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system of medicine cannot be based on the provisions ofthe Drugs Rules and declaration made thereunder by StateGovernments.

(viii) In the above context, it was held that Rule 2(ee)(iii) aseffected from 14.05.1960 was valid and did not suffer fromthe vice of want of legislative competence and thenotifications issued by the State Governments thereunderwere not ultra vires the said Rule and were legal. Thatafter sub-section (2) in Section 15 of the IMC Act, 1956,occupied the field vide Central Act 24 of 1964 with effectfrom 16.06.1964, the benefit of the said Rule and thenotifications issued thereunder would be available only inthose States where the privilege of such right to practiceany system of medicine is conferred by the State law underwhich practitioners of Indian medicine are registered in theState, which is for the time being in force. That the positionwith regard to medical practitioners of Indian medicineholding degrees in integrated courses is on the same planeinasmuch as if any State Act recognises their qualificationas sufficient for registration in the State Medical Register,the prohibition contained in Section 15(2)(b) of the IMCAct, 1956 will not apply. Thus, as far as modern medicineor allopathic medicine is concerned, the provisions of Section15 of the IMC Act, 1956, would again become relevantinasmuch as Section 15(1) of the IMC Act, 1956, wouldhave to be fulfilled before a person can be enrolled in anyState Medical Register insofar as modern scientific medicineis concerned. If such a person does not fulfil the requirementof sub-section (1) of Section 15, then he would not have arecognised medical qualification in modern scientificmedicine, in which event he cannot be registered in thesaid Medical Register under the IMC Act, 1956. Eveninsofar as those medical practitioners holding degrees inintegrated courses are concerned, the State has to recognisetheir qualifications as sufficient for registration in the StateMedical Register, otherwise, the prohibition under Section15(2)(b) would apply, qua practice of modern scientificmedicine. In such an event, they would not be empowered to prescribe allopathic drugs covered by the Indian Drugsand Cosmetics Act, 1940 (Drugs Act) and they can onlyprescribe allopathic drugs sold across the counter forcommon ailments.

(B) Subhasis Bakshi vs. W.B. Medical Council, (2003) 9 SCC269, (“Subhasis Bakshi”):

(i) In this case the appellants therein, who had completed thediploma course of Community Medical Service from dulyrecognised institutions in the State of West Bengal and wereposted in different parts of the State, had assailed theNotification dated 15.10.1980, issued by the Governmentof West Bengal by which amendments were made to thestatute of the State Medical Faculty by introducing Article6-F under Part B. Thereafter, a Corrigendum was issuedand the diploma course that was earlier known as “Diplomain Medicine for Community Physicians” was rechristenedas “Diploma in Community Medical Service”.

The grievance of the appellants therein was that althoughthey could treat certain common diseases but they had noright to issue certificates of sickness or death, prescriptionsetc. as the same was taken away by a Notification dated21-11-1990. Subsequently, challenging the denial of“consequential right to treat” such as the right to issueprescription or certificates of sickness or death, the second-round of litigation began. A Writ Petition was filed beforethe Calcutta High Court which was allowed in favour ofthe appellants, subject to the condition that they would notbe allowed to pursue private practice and it was made clearthat their only right was to prescribe medicines and issuecertificates and this part of the order became final.

However, the Bengal Medical Council preferred anappeal before the Division Bench of the Calcutta High Court.Relying on Dr. A.K. Sabhapathy vs. State of Kerala andothers, AIR 1992 SC 1310, (“Dr. A.K. Sabhapathy”)whereinit was found that “a person can practise in allopathicsystem of medicine in a State or in the country only if hepossesses a recognised medical qualification” and since the A

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appellants therein did not possess the required qualification,it was held that their names could not be included in theMedical Register. On this basis, the appellants approachedthis Court.

This Court considered the question as to whether theright to issue prescription or certificates could be treated asa part of right to treat. This Court observed that once theright to treat is recognised, then the right to prescribemedicine or issue necessary certificate flows from it, orelse the right to treat cannot be completely protected. Itwas further observed that appellants therein had the rightto prescribe medicine. Consequently, the order of theDivision Bench was set aside and the order of the learnedSingle Judge was restored.

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A direction was issued to include the names of all thediploma-holders concerned in the State Medical RegisterDfor the limited purpose indicated therein.

(C) Dr. A.K.Sabhapathy vs. State of Kerala, AIR 1992 SC1310,(“Dr. A.K.Sabhapathy”):

(i) In this case, the validity of the first proviso to Section 38 ofthe Travancore Cochin Medical Practitioners’ Act, 1953(for short, “the State Act”) and the order dated 20.09.1978and a notification dated 13.04.1981 issued by theGovernment of Kerala, were assailed. This Court consideredthe aforesaid State Law in light of the IMC Act, 1956 (“theCentral Act”) and observed that the expression ‘modernscientific medicine’ in Section 2(f) of the Central Act refersto the Allopathic system of medicine and that the provisionsof the Central Act have been made in relation to medicalpractitioners practising the said system. This view foundsupport from the fact that after the enactment of the CentralAct, the Parliament had enacted the IMCC Act, 1970 inrelation to the system of Indian medicine commonly knownas Ayurveda, Siddha and Unani and the HomoeopathyCentral Council Act, 1973 in relation to Homoeopathicsystem of medicine wherein provisions similar to thosecontained in the Central Act had been made in relation to E

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the said systems of medicine. This Court was of the viewthat from the provisions of the State Act, noticed earlier, itwas evident that the field of operation of the State Actcovered all the systems of medicine, namely, Allopathic,Ayurvedic, Siddha, Unani and Homoeopathic systems ofmedicine. Moreover, the State Act dealt with recognitionof qualifications required for registration of a person as amedical practitioner in these systems, conditions forregistration of medical practitioners and maintenance ofregister of practitioners for each system and the constitutionof separate councils for modern medicine, homoeopathicmedicine and indigenous medicine.

It was observed that as compared to the State Act, thefield of operation of the Central Act is restricted and it isconfined in its application to modern scientific medicine,namely, the Allopathic system of medicine only, wherein italso deals with recognition of medical qualifications whichmay entitle a person to be registered as a medicalpractitioner; constitution of the Medical Council of India toadvise the Central Government in the matter of recognitionor withdrawal of recognition of medical qualifications, toprescribe the minimum standards of medical educationrequired for granting recognised medical qualifications byUniversities or Medical Institutions in India and to appointinspectors and visitors for inspection of any medicalinstitution, college or hospital. It also provides for maintainingthe Indian Medical Register and for enrolment of a personpossessing recognised medical qualification in the saidregister and for removal of a person from the said register.That the Central Act does not deal with the registration ofmedical practitioners in the States and it proceeds on thebasis that the said registration and the maintenance of StateMedical Register is to be governed by the law made by theState. This Court was of the view that, it cannot, therefore,be said that the Central Act lays down an exhaustive codein respect of the subject matter dealt with by the State Act.It can, however, be said that the Central Act and the StateAct, to a limited extent occupy the same field, viz.,recognition of medical qualifications which are required for ABC

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a person to be registered as a medical practitioner in theallopathic system of medicine. Both the enactments makeprovision for recognition of such qualifications granted bythe universities or medical institutions.

In this context, sub-section (1) of Section 15 of theCentral Act, i.e. IMC Act, 1956 as well as sub-section (1)of Section 21 of the said Act were referred to and it wasobserved that the aforesaid provisions contemplated that aperson can practise in Allopathic system of medicine in aState or in the country only if he possesses a recognisedmedical qualification. Permitting a person who does notpossess the recognised medical qualification in theAllopathic system of medicine would be in direct conflictwith the provisions of the Central Act. That the first provisoto Section 38 of the State Act in so far as it empowers theState Government to permit a person to practise Allopathicsystem of medicine even though he does not possess therecognised medical qualifications for that system ofmedicine, is inconsistent with the provisions of Sections 15and 21 read with Sections 11 and 14 of the IMC Act, 1956i.e., the Central Act. That the said proviso suffered fromthe vice of repugnancy in so far as it covered persons whowanted to practice the Allopathic system of medicine andthat the same was void to the extent of such repugnancy.That practitioners in the Allopathic system of medicine must,therefore, be excluded from the scope of the first provisoand it must be confined in its application to systems ofmedicines other than the Allopathic system of medicine.

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Consequently, this Court allowed the appeal in part.

On a close consideration of the case law discussed above, it isevident that the following broad areas, would be covered within thelegislative field of “Coordination and determination of standards”under Entry 66 of List I:G

i)Prescription of medium of instruction, videGujaratUniversity, Ahmedabad vs. Shri Krishna RanganathMudhoklar;

ii)Recognition/de-recognition of an Institution impartingmedical education by laying down standards for medical H

education vide State of Tamil Nadu vs. AdhiyamanEducational and Research Institute; Modern DentalCollege and Research Centre vs. State of MadhyaPradesh; Chintpurni Medical College and Hospital vs.State of Punjab.

iii)Calibre of teaching staff, syllabus to be taught, student-teacher ratio, ratio between the students and the hospitalbeds available to each student, laboratory facilities, standardof examination, vide Preeti Srivastava vs. State ofMadhya Pradesh.

The Assam Act, which is enacted by the State Legislature on thestrength of Entry 25 of List III, not only seeks to introduce a new coursein the field of medical education, but also seeks to regulate the professionof the candidates successfully completing the said course. The AssamAct vests with the Regulatory Authority constituted thereunder, the powerto prescribe the minimum standards of the course, duration of the coursein allopathic medicine the curriculum, the examination etc. Further, itauthorises the State Government to grant permission for the opening ofamedical institute.Prescription of minimum standards for medicaleducation, authority to recognise or de-recognise an institution etc., areareas over which exclusive legislative competence lies with theParliament, under Entry 66 of List I.The State Legislatures, on the otherhand, under Entry 25 of List III, possess legislative competence to legislatewith respect to all other aspects of education, except the determinationof minimum standards and co-ordination.With a view to provide abenchmark quality of medical education, it is essential that uniformstandards be laid down by the Parliament, which are to be adhered to byinstitutions and medical colleges across the country. To this end, Entry66 of List I has been formulated with the objective of maintaining uniformstandards of education in fields of research, higher education andtechnical education. Hence, State Legislatures lack legislative competencein the areas of prescription of minimum standards for medical education,authority to recognise or de-recognise an institution, etc. The AssamAct which seeks to regulate such aspects of medical education is thereforeliable to be set aside on the ground that the State Legislature lackscompetence to legislate with regard to the aspects enumeratedhereinabove.

22. Another aspect of the matter that remains to be considered iswith regard to the vires of the Assam Community Professional A

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A(Registration and Competency) Act, 2015 (hereinafter referred to as‘Assam Act of 2015’ for the sake of convenience), which was enactedby the State of Assam with a view to remove the basis of the impugnedjudgment and in an attempt to restore the position of the diploma holdersin medicine and to give them continuity in service. The relevant provisionof the said Act read as under:B

“An Act to provide for registration norms and competency of theCommunity Health, Professionals, after passing B.Sc. (CommunityHealth) Course and to give same status to the students who havecompleted or have been undergoing the Diploma in Medicine andRural Health Care (DMRHC) course in Medical Institute, JorhatCwith that of B.Sc (Community Health) course, to enable them toserve as Paramedical personnel in the State of Assam.

Whereas it is expedient to provide for registration norms andcompetency of the Community Health Professionals, after passingB.Sc (Community Health) course and to give same status to theDstudents who have completed or have been undergoing theDiploma in Medicine and Rural Health Care (DMRHC) coursein Medical Institute, Jorhat with that of B.Sc (Community Health)course, to enable them to serve as Paramedical personnel in theState of Assam and the matters connected therewith or incidentalEthereto; xxx

2. In this Act, unless the context otherwise requires,-

xxx

2. In this Act, unless the context otherwise requires,- (a) “Act” means the Assam Community Health Professionals’

F(Registration and Competency) Act, 2015; (b) “Certificate” means a Certificate of Registration issued bythe Director of Medical Education, Research and Training, Assamunder section 3 of this Act;

(c) “Community Health Professionals” means the persons whoGhave been registered as such by the Director and issued aCertificate of Registration in accordance with the provisions ofsection 3 of this Act; (d) “Course” means the prescribed Paramedical Course of B.Sc(Community Health) or in short B.Sc (CH) as approved by the H

Union Cabinet, conveyed vide Govt. of India’s letter No. DO No.V 11025/40/2009/MEP-1 Dated 31/12/2013; xxx

3. (1) Every student who successfully completes the Course fromany institution permitted by the Government of Assam to run theCourse, shall be registered by the Director at Directorate ofMedical Education, Assam, Guwahati and shall be issued with aCertificate of Registration as Community Health Professional.

(2) The students who have already completed or have beenundergoing the Diploma in Medicine and Rural Health Care(DMRHC) course in the Medical Institute, Jorhat, on the date ofcommencement of this Act, shall be deemed to have completedor have been undergoing as the case may be, the ParamedicalCourse of B.Sc (CH) for the purposes of this Act and shall acquirethe same status to that of B.Sc (Community Health) graduatesand they shall also be registered by the Director and issued withCertificate of Registration as Community Health Professionals:

Provided that the Certificate of Registration issued by theDirector under this sub-section to the students who have alreadycompleted Diploma in Medicine and Rural Health Care (DMRHC)course from the Medical Institute, Jorhat, shall be deemed to havebeen issued by the Director with effect from the date of issue oftheir respective Diplomas from the said Institute:

Provided further that the students who have been undergoingthe Diploma in Medicine and Rural Health Care (DMRHC) coursein the Medical Institute, Jorhat on the commencement of this Act,shall be deemed to have been undergoing the Course as definedunder this Act and they shall be issued Certificate of Registrationunder this Act by the Director on completion of their Course.”

It would be useful to refer to a decision of this Court in the caseof Indian Aluminium Company Co. vs. State of Kerala, AIR 1996SC 1431, wherein the principles regarding the abrogation of a judgmentof a court of law by a subsequent legislation could be culled out in thefollowing manner: —

“56. From a resume of the above decisions the following salientprinciples would emerge:

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(1) The adjudication of the rights of the parties is the essentialjudicial function. Legislature has to lay down the norms of conductor rules which will govern the parties and the transaction andrequire the court to give effect to them;

(2) The Constitution has delineated delicate balance in the exerciseof the sovereign power by the Legislature, Executive andJudiciary; B

(3) In a democracy governed by rule of law, the Legislatureexercises the power under Articles 245 and 246 and othercompanion Articles read with the entries in the respective Lists inthe Seventh Schedule to make the law which includes power toamend the law.

C

(4) The Court, therefore, need to carefully scan the law to findout: (a) whether the vice pointed out by the Court and invaliditysuffered by previous law is cured complying with the legal andconstitutional requirements; (b) whether the Legislature hascompetence to validate the law; (c) whether such validation isconsistent with the rights guaranteed in Part III of the Constitution.

D

Conclusion

(5) The Court does not have the power to validate an invalid lawor to legalise impost of tax illegally made and collected or to removeEthe norm of invalidation or provide a remedy. These are not judicialfunctions but the exclusive province of the Legislature. Therefore,they are not the encroachment on judicial power.

(6) In exercising legislative power, the Legislature by meredeclaration, without anything more, cannot directly overrule, reviseFor override a judicial decision. It can render judicial decisionineffective by enacting valid law on the topic within its legislativefield fundamentally altering or changing its characterretrospectively. The changed or altered conditions are such thatthe previous decision would not have been rendered by the Court,if those conditions had existed at the time of declaring the law asGinvalid. It is also empowered to give effect to retrospectivelegislation with a deeming date or with effect from a particulardate.

(7) The consistent thread that runs through all the decisions ofthis Court is that the legislature cannot directly overrule the decisionor make a direction as not binding on it but has power to make the H

decision ineffective by removing the base on which the decisionwas rendered, consistent with the law of the Constitution and theLegislature must have competence to do the same.”

In the aforesaid case, Section 11 of the Kerala ElectricitySurcharge (Levy and Collection) Act, 1989 arose for consideration andit was held that it was a valid piece of legislation and not an incursion onjudicial power as the effect of Section 11 was to validate illegal collectionof tax under an invalid law.

In Hindustan Gum and Chemicals Ltd. vs. State of Haryana,(1985) 4 SCC 124, this Court held that it is permissible for a competentlegislature to overcome the effect of a decision of a court, setting asidethe imposition of a tax by passing a suitable Legislation, amending therelevant provisions of the statute concerned with retrospective effect,thus taking away the basis on which the decision of the court has beenrendered and by inactive and appropriate provision validating the levyand collection of tax made before the decision in question was rendered.In that decision, reliance was placed on Shri Prithvi Cotton Mills Ltd.vs. Broach Borough Municipality, AIR 1970 SC 192, a ConstitutionBench decision of this Court, which has laid down the requirementswhich a validating law should satisfy in order to validate the levy andcollection of a tax which has been declared earlier by a court as illegal,the relevant portion of the said judgments read as under:—

“When a Legislature sets out to validate a tax declared by a courtto be illegally collected under an ineffective or an invalid law, thecause for ineffectiveness or invalidity must be removed beforevalidation can be said to take place effectively. The most importantcondition, of course, is that the Legislature must possess the powerto impose the tax, for, if it does not, the action must ever remainineffective and illegal. Granted legislative competence, it is notsufficient to declare merely that the decision of the court shall notbind for that is tantamount to reversing the decision in exercise ofjudicial power which the Legislature does not possess or exercise.A court’s decision must always bind unless the conditions on whichit is based are so fundamentally altered that the decision could nothave been given in the altered circumstances. Ordinarily, a courtholds a tax to be invalidly imposed because the power to tax iswanting or the statute or the rules or both are invalid or do notsufficiently create the jurisdiction. Validation of a tax so declared AB

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Aillegal may be done only if the grounds of illegality or invalidity arecapable of being removed and are in fact removed and the taxthus made legal. Sometimes this is done by providing for jurisdictionwhere jurisdiction had not been properly invested before.Sometimes this is done by re-enacting retrospectively a valid andlegal taxing provision and then by fiction making the tax alreadyBcollected to stand under the re-enacted law. Sometimes theLegislature gives its own meaning and interpretation of the lawunder which the tax was collected and by legislative fiat makesthe new meaning binding upon courts. The Legislature may followany one method or all of them and while it does so it may neutralizeCthe effect of the earlier decision of the court which becomesineffective after the change of the law. Whichever method isadopted it must be within the competence of the Legislature andlegal and adequate to attain the object of validation. If theLegislature has the power over the subject-matter and competenceto make a valid law, it can at any time make such a valid law andDmake it retrospectively so as to bind even past transactions. Thevalidity of a validating law, therefore, depends upon whether theLegislature possesses the competence which it claims over thesubject-matter and whether in making the validation it removesthe defect which the courts had found in the existing law andEmakes adequate provisions in the validating law for a validimposition of the tax.”

Further, in the following decisions, this Court has held that theamendments made to the respective Acts subsequent to the decision ofthe court were valid and therefore, were upheld:—F

a)In State of Orissa vs. Oriental Paper Mills Ltd., AIR1961 SC 1438, the insertion of Section 14A by way of anamendment to Orissa Sales Tax Act subsequent to thedecision of this Court in State of Bombay vs. United MotorsIndia Ltd., AIR 1953 SC 252, was upheld.

Gb)In M/s. Misrilal Jain vs. State of Orissa, AIR 1977 SC1686, this Court declared Orissa Taxation (on GoodsCarried by Roads or Inland Waterways] Act, 1962 asinvalid, since it did not cover the defect from which theOrissa Taxation (on Goods Carried by Roads or InlandHWaterways] Act 7 of 1959 had suffered. It was further held that the State was not entitled to recover any tax. Thesubsequent Act 8 of 1968 was upheld as the vice from whichthe earlier enactment suffered was cured by due compliancewith the legal or constitutional requirements.

c)In M/s. Tirath Ram Rajindra Nath, Lucknow vs. Stateof U.P., AIR 1973 SC 405, this Court held that there is adistinction between encroachment on the judicial power andnullification of the effect of a judicial decision by changingthe law retrospectively. The former is outside thecompetence of the legislature but the latter is within itspermissible limits. In that case, the U.P. Sales Tax Act(Amendment and Validation) Act, 1970 was upheld by thisCourt.

d)In Govt. of A.P. vs. Hindustan Machine Tools Ltd., AIR1975 SC 2037, I.N. Saksena vs. State of M.P., AIR 1976SC 2250, Central Coal Fields Ltd., vs. BhubaneswarSingh, AIR 1984 SC 1733 and several other decisionsthis Court has upheld the amendments made to therespective Acts subsequent to the decision of a court oflaw thereby removing the basis of the judgment.

(e) In State of Himachal Pradesh vs. Narain Singh, (2009)13 SCC 165, this Court has held that Himachal PradeshLand Revenue (Amendment and Valuation) Act, 1996 wassound as it removed the defect of the previous law. Hence,the amendment was not invalid just because, it nullified someprovisions of the earlier Act. It was also held that theamendment was necessitated in the interest of land revenue,land settlement and for the purpose of updating the same.

The Legislature cannot directly overrule a judicial decision. Butwhen a competent Legislature retrospectively removes the substratumor foundation of a judgment to make the decision ineffective, the saidexercise is a valid legislative exercise provided it does not transgress onany other constitutional limitation. Such legislative device which removesthe vice in previous legislation which has been declared unconstitutionalis not considered an encroachment on judicial power but an instance ofabrogation. The power of the sovereign legislature to legislate within itsfield, both prospectively and retrospectively cannot be questioned. It A

B

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Awould be permissible for the legislature to remove a defect in earlierlegislation pointed out by a constitutional court in exercise of its powersby way of judicial review. This defect can be removed both retrospectivelyand prospectively by a legislative process and the previous actions canalso be validated. But where there is a mere validation without the defectbeing legislatively removed, the legislative action will amount to overrulingBthe judgment by a legislative fiat which is invalid.

In light of the aforesaid discussion, the petitions challenging thevires of the Assam Community Professional (Registration andCompetency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of2018 are liable to be dismissed, and are accordingly dismissed. The saidCAct has been enacted with a view to restore the position of the diplomaholders in medicine and to give them continuity in service. The said Acthas been enacted by a valid legislative exercise, and does not transgressany other constitutional limitation and in accordance with Entry 25 ofList III of the Seventh Schedule and is not in conflict with the IMC Act,D1956 and the rules and regulations made thereunder as per Entry 66 ofList I of the Seventh Schedule.

23. Before parting with this case, it is necessary to advert to thereasoning of the Division Bench of the High Court which has held inparagraph 15 of its judgment dated 30.10.2014 that the Central Legislation,Enamely, the IMC Act, 1956, fully covers the field and therefore, theimpugned legislation passed by the Assam State Legislature concerningthe Diploma Course in Allopathic Medicine was null and void. In thiscontext, Article 254 of the Constitution has been adverted to and it hasbeen observed that, on account of repugnancy and there being noPresidential assent as required under Article 254, the Assam Act is nullFand void.

24. We do not think the doctrine of repugnancy governing Article254 of the Constitution of India, would apply in the instant case. Although,Entry 25 of List III of the Seventh Schedule of the Constitution of Indiais in the Concurrent List which gives powers to both the Union as wellGas the State Legislatures to pass laws on the subject of ‘Education’, it issignificant to note that any such law to be made by the State Legislatureis subject to, inter alia, Entry 66 of List I or the Union List of theSeventh Schedule. Hence, when there is a direct conflict between aState Law and the Union Law in the matter of coordination anddetermination of standards in higher education (Entry 66 of List I) suchH

as in medical education, concerning allopathic medicine or modernmedicine, as is in the instant case, where the State Law is in directconflict with the Union law, the State Law cannot have any validity asthe State Legislature does not possess legislative competence. In otherwords, the Assam Act and Rules and Regulations made under the saidAct, being in conflict with the Indian Medical Council Act, 1956 (IMCAct, 1956) and the Rules and Regulations made thereunder, the doctrineof repugnancy as such would not apply within the meaning of Article254 of the Constitution.

The finding with regard to the constitutionality of the Assam Actof 2015 is limited to holding it non-repugnant with the Indian MedicalCouncil Act, 1956. However, this Court is not rendering any finding withregard to any potential conflict of the provisions of the Assam Act of2015 with the National Medical Commission Act, 2019.

We also wish to refer to the Directive Principle of State Policy.The framers of the Constitution, in Article 47 have directed the Unionand State Governments to regard the ‘improvement of public health’, asits primary duty. It follows from this directive that the State shall makeall possible efforts to ensure equitable access to healthcare services.These efforts must be made to progressively realize the right of everyoneto the enjoyment of the highest attainable standard of physical and mentalhealth, as acknowledged in international conventions and agreements.While the State has every right to devise policies for public health andmedical education, with due regard to peculiar social and financialconsiderations, these policies ought not to cause unfair disadvantage toany class of citizens. The citizens residing in rural areas have an equalright to access healthcare services, by duly qualified staff. Policies forenhancing access to rural healthcare must not shortchange the citizensresiding in rural areas or subject them to direct or indirect forms ofunfair discrimination on the basis of their place of birth or residence.

Any variation between the standards of qualification required formedical practitioners who render services in rural areas qua the medicalpractitioners rendering services in urban or metropolitan areas mustprescribe to constitutional values of substantive equality and non-discrimination. We may hasten to add that deciding the particularqualifications for medical practitioners practising in disparate areas andin disparate fields, providing different levels of primary, secondary ortertiary medical services, is within the mandate of expert and statutoryauthorities entrusted with the said mandate by the Parliament.

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A

The above ought to be considered in the spirit of constitutionalgoals and statesmanship subserving, as it does, the common good of thecitizenry of our Country.

Conclusion:

25. In the result, we arrive at the following conclusions:

B

(i) Entry 25 of List III of the Seventh Schedule of theConstitution of India deals with the subject education whichis in the Concurrent List under which both the Parliamentor the Union Legislature as well as the State Legislatureshave legislative competence to legislate. However, Entry25 of List III is subject to, inter alia, Entry 66 of List Iwhich is the Union List. Entry 66 of List I deals withcoordination and determination of standards in institutionsfor higher education or research and scientific and technicalinstitutions. Thus, when any law is made under Entry 25 ofList III by a State Legislature, the same is always subjectto Entry 66 of List I. In other words, if any law made by theParliament comes within the scope of Entry 66 of List I,then the State Legislation would have to yield to theParliamentary law.

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Thus, where one Entry is made “subject to” anotherEntry, it would imply that, out of the scope of the formerEntry, a field of legislation covered by the latter Entry hasbeen reserved to be specifically dealt with by the appropriatelegislature.

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(ii) F

In the instant case, it is held that the IMC Act, 1956 is alegislation made by the Parliament for the purpose ofcoordination and determination of standards in medicaleducation throughout the Country. The said law, along withthe Rules and Regulations made thereunder are for thepurpose of determination of standards of medical educationthroughout India. Thus, determination of standards inmedical education in India is as per the IMC Act, 1956which is a Central Law. This is in respect of modernmedicine or allopathic medicine within the scope of Entry66 of List I and not under Entry 25 of List III of the SeventhSchedule. Therefore, a State Legislature which passes a G

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law in respect of allopathic medicine or modern medicinewould be subject to the provisions of the IMC Act, 1956and the Rules and Regulations made thereunder. This wouldimply that no State Legislature has the legislativecompetence to pass any law which would be contradictoryto or would be in direct conflict with the IMC Act, 1956and the Rules and Regulations made thereunder. In otherwords, the standard in medical education insofar as modernmedicine or allopathy is concerned, having been set by theIMC Act, 1956 and the Rules and Regulations madethereunder or by any subsequent Act in that regard, suchas the Medical Council of India Act, 2019, the StateLegislature has no legislative competence to enact a lawwhich is in conflict with the law setting the standards ofmedical education in the context of modern medicine orallopathic medicine, which has been determined byParliamentary Legislation as well as the Rules. In otherwords, a State Legislature has no legislative competenceto enact a law in respect of modern medicine or allopathicmedicine contrary to the said standards that have beendetermined by the Central Law.

In view of the above conclusion, we hold that decisionof the Gauhati High Court holding that the Assam Act to benull and void, is just and proper.

However, the Gauhati High Court has held that the Statehad no legislative competence to enact the Assam Act inview of Article 254 of the Constitution on the premise thatthe IMC Act and the Rules and Regulations madethereunder were holding the field and hence, on the basisof the doctrine of occupied field, the Assam Act was struckdown as being repugnant to the Central Law. In view ofthe aforesaid conclusion, we are of the view that the saidreasoning is incorrect. It is reiterated that the IMC Act andthe Rules and Regulations made thereunder, which are allCentral legislations, have been enacted having regard toEntry 66 of List I and would prevail over any State Lawmade by virtue of Entry 25 of List III of the Constitution.

(iii) Hence, in view of the Indian Medical Council Act, 1956and the Rules and Regulations made thereunder, the Assam AB

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Act, namely, the Assam Rural Health Regulatory AuthorityAct, 2004, is declared to be null and void, in view of theAssam Legislature not having the legislative competenceto enact the said Law.

(iv) Consequently, the subsequent legislation, namely, the AssamBAct of 2015 i.e., the Assam Community Professionals(Registration and Competency) Act, 2015, enacted pursuantto the judgment of the Gauhati High Court, is a valid pieceof Legislation as it has removed the basis of the impugnedjudgment passed by the Gauhati High Court. The 2015 Actis also not in conflict with the IMC, Act, 1956. This isCbecause the Central Act namely, IMC, Act, 1956 does notdeal with Community Health Professionals who wouldpractise as allopathic practitioners in the manner as theywere permitted to practise under the Assam Act, in ruralareas of the State of Assam. Hence, by a separate legislationDthe Community Health Professionals have been permittedto practise as such professionals. The said legislation of2015 is not in conflict with IMC, Act, 1956 and the rulesand regulations made thereunder. Hence, the Act of 2015is not hit by Entry 66 of List I of the Constitution and iswithin the legislative competence of the State LegislatureEunder the Seventh Schedule of the Constitution.

D

26. In the result, the Civil Appeals arising out of SLP(C) Nos.32592-32593 of 2015 as well as TC (C) No. 24 of 2018 and TC (C) No.25 of 2018 stand dismissed. Pending application(s), if any, shall standdisposed of.

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27. Parties to bear their respective costs.

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Bibhuti Bhushan Bose(Assisted by : Mrigank Pathak andRahul Rathi, LCRA)

Appeals and Transferred cases dismissed.

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