KERALA AYURVEDA PARAMPARYA VAIDYA FORUM versus STATE OF KERALA AND OTHERS on 13 April 2018

566

SUPREME COURT REPORTS

[2018] 5 S.C.R.

AKERALA AYURVEDA PARAMPARYA VAIDYA FORUM

v.

STATE OF KERALA AND OTHERS

(Civil Appeal No. 897 of 2009)

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APRIL 13, 2018

[R. K. AGRAWAL ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Travancore-Cochin Medical Practitioners Act, 1953 – s.38Cand ss.23, 32– Appellant-association consisting of ‘ParamparyaVaidyas’ who have been practicing in Siddha/Unani/Ayurveda systemof medicine and passing their knowledge and experience to theirdescendants by way of training and practice – Under the 1953 Act,Paramparya Vaidyas were debarred from practicing modern/homeopathic/ayurvedic/siddha/unani-tibbi medicines unlessDregistered under the Act – Challenged by appellant, dismissed byHigh Court – Held: Right to practice any profession or to carry onany occupation, trade or business is a fundamental right guaranteedunder the Constitution – But that right is subject to any law relatingto the professional or technical qualification necessary forEpracticing any profession or carrying on any occupation/trade/business – Every practitioner is deemed to be a practitionerregistered under the 1953 Act if at the commencement of the Act, hisname stands entered in the appropriate register and every certificateof registration issued to every such practitioner shall be deemed tobe a certificate of registration issued under the 1953 Act – But inFthe present case, the appellants have failed to show that theypossessed requisite recognized qualification for registration entitlingthem to practice Indian system of medicines or their names havebeen entered in the appropriate registers after the commencementof the 1953 Act – High Court was right in dismissing the petitionsGfiled by the appellants – Constitution of India – VII[th] Schedule, ListIII, Entry 26 – Indian Medicine Central Council Act, 1970 – s.17 –Indian Medical Council Act, 1956 – Homeopathy Central CouncilAct, 1973.

Travancore-Cochin Medical Practitioners Act, 1953 – Objectof – Discussed.H

Indian Medicine Central Council Act, 1970 – s.17(3)(c) –Exemption under, when available – Discussed.

Dismissing the appeals, the Court

HELD: 1.1 The Travancore-Cochin Medical PractitionersAct, 1953 was enacted with an object to regulate the qualificationsand provide for the registration of practitioners of modernmedicine and to enact a law relating to medical practitionersgenerally in the State of Travancore-Cochin. [Para 9] [573-F]

1.2 The Indian Medicine Central Council Act, 1970 doesnot contemplate any exemption from the provisions in the Actregarding qualification or registration of practitioners in thevarious branches of indigenous medicine, viz., ayurveda, siddha,unani etc. However, Section 17(3)(c) of the IMCC Act has aprovision for protecting persons who had been practicing Indiansystem of Medicine for at least five years as on the date ofcommencement of the Act. Such persons could continue theirpractice provided there had been no State Register maintainedin the State on the commencement of the IMCC Act. [Para 11][577-B]

1.3 Section 23 of the 1953 Act provides for eligibilityconditions for registration of medical practitioners. Under sub-Section (1), a holder of a recognized qualification or holdingappointment under the government at the commencement of theAct and every other practitioner who has been in regular practicefor 5 (five) years preceding 1[st] April, 1953, if applies within oneyear, have been made eligible for registration. However, bySection 38 of the 1953 Act, persons not registered under the Acthave been prohibited from practicing various types of medicines.The first proviso empowers the State Government to exemptany person or class of persons from undergoing registration.[Para 12] [581-D-E]

1.4 The capacity to diagnose the disease would dependupon the fact as to whether the practitioner had the necessaryprofessional skill to do so. Acquisition of professional skill is againa regulated subject and the measure thereof is the possession ofa prescribed Diploma or Degree awarded by a recognized A

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AInstitution. Admittedly, the appellants do not possess anyprescribed Diploma or Degree from a recognized institution forthat purpose. Even a person who has acquired the prescribedDiploma or Degree from a recognized institution would not beentitled to practice medicine unless he is so registered underthe provisions of the IMCC Act. [Para 13] [581-G-H; 582-A]B

Conclusion:

1.5 The right to practice any profession or to carry on anyoccupation, trade or business is a fundamental right guaranteedunder the Constitution. But that right is subject to any law relatingCto the professional or technical qualification necessary forpracticing any profession or carrying on any occupation or tradeor business. The regulatory measures on the exercise of thisright both with regard to the standard of professional qualificationsand professional conduct have been applied keeping in view notDonly the right of the medical practitioners but also the right tolife and proper health care of persons who need medical care andtreatment. [Para 18] [585-F-H]

1.6 Every practitioner shall be deemed to be a practitionerregistered under the 1953 Act if at the commencement of thisEAct, his name stands entered in the appropriate registermaintained under the said Act and every certificate of registrationissued to every such practitioner shall be deemed to be acertificate of registration issued under this Act. But in the presentcase, the appellants have failed to show that they possessedFrequisite recognized qualification for registration entitling themto practice Indian system of medicines or their names have beenentered in the appropriate registers after the commencement ofthis Act. [Para 20] [586-E-F]

Dr. A.K. Sabhapathy v. State of Kerala and OthersG(1992) 3 Suppl. SCC 147 : [1992] 2 SCR 653 – heldapplicable.

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Dr. Sarwan Singh Dardi v. State of Punjab and OthersAIR 1987 P&H 81 ; Ishaq Husain Razvi v. State ofU.P. and Others AIR 1993 All. 283 – approved.

KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v.STATE OF KERALA AND OTHERS

Dr. Mukhtiar Chand and Others v. State of Punjab andOthers (1998) 7 SCC 579 : [1998] 2 Suppl. SCR 143– relied on.

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Delhi Pradesh Registered Medical Practitioners v.Director of Health, Delhi Administration Services andOthers (1997) 11 SCC 687 : [1997] 4 Suppl. SCR 514– referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 897 of2009.

From the Judgment and Order dated 08.01.2003 of the High Courtof Kerala at Ernakulam in O. P. No. 24109 of 2001 (T)

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Civil Appeal Nos. 898, 901, 899-900, 902, 903, 904, 905 of 2009.

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C.S. Rajan, Mathai M. Paikaday, Sr. Advs., T. G. Narayanan Nair,K. N. Madhusoodhanan, Naveen R. Nath, Abhimanyu Verma,Ramesh K., Shishir Pinaki, Sanjay Jain, Advs. for the Appellant.

Dr. M. P. Raju, Ashwani Bhardwaj, James P. Thomas, Ms. SanaZaidi, G. Prakash, Jishnu M.L., Ms. Priyanka Prakash, Ms. BeenaPrakash, Manu Srinath, Nishe Rajen Shonker, Rakesh UttamchandraUpadhyay, Ramesh Babu M. R., Shrish Kumar Misra, Mrs. K. SaradaDevi, Alex Joseph, C.K. Sasi, M.K. Michael, Advs. for theRespondents.

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AThe Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. The above appeals have been filedagainst the judgment and order dated 08.01.2003 passed by the DivisionBench of the High Court of Kerala at Ernakulam in O.P. No. 24109 of2001 and connected matters whereby the High Court had dismissed theBpetitions filed by the appellants herein.

2. Brief facts:

(a) In the State of Kerala, a number of persons are practicing inSidha/Unani/Ayurveda system of medicine called as “ParamparyaVaidyas’ and passing their knowledge and experience to their descendantsCby way of training and practice. Normally, almost all the descendants inthe family get training in the same field and adopt this as a professionand means of livelihood.

(b) Kerala Ayurveda Paramparya Vaidya Forum (in short ‘theForum’) – the appellant herein is an association of ‘Paramparya Vaidyas’Din Travancore-Cochin, registered under the Travancore-Cochin Literary,Scientific and Charitable Societies Registration Act, 1955. The mainobjective of the Forum is the welfare of its members and to renderassistance for practice in indigenous medicines.

(c) Pursuant to the enactment of the Travancore-Cochin MedicalEPractitioners Act, 1953 (in short ‘the Act’), the ‘Paramparya Vaidyas’were debarred from practicing modern/homoeopathic/ayurvedic/siddha/unani-tibbi medicines unless registered under the Act. Subsequently,three Central Acts, viz., The Indian Medical Council Act, 1956, TheIndian Medicine Central Council Act, 1970 and the Homoeopathy CentralCouncil Act, 1973 with regard to modern medicine, indigenous medicineFand homoeopathic medicine respectively came into force.

(d) Being aggrieved by the enactment of the Act, Akhila KeralaParambarya Vaidya Federation as well as the persons practicing as‘Paramparya Vaidyas’ filed a number of petitions before the High Court.Learned single Judge of the High Court, taking note of an affidavit filedGby the State Government stating that the question of granting registrationto practice medicines to the ‘Paramparya Vaidyas’ can be considered atthe time of enactment of Kerala Medical Practitioners Bill, by orderdated 17.06.1997 in O.P. No. 118 of 1991 and other set of petitions,disposed of the original petitions while directing the State Government toHhave a serious consideration of the circumstances expeditiously.

(e) Several petitions were filed before the High Court by the‘Paramparya Vaidyas’ claiming that the methods had been in vogue fora considerable long period of time. The Division Bench of the HighCourt, vide order dated 08.01.2003 dismissed the petitions filed by theappellants herein.

(f) Aggrieved by the order dated 08.01.2003, the appellants havepreferred these appeals by way of special leave.

3. Heard the arguments advanced by learned senior counsel forthe parties and perused the records. Since a common question of lawand facts arise in these appeals, they are being disposed of by this commonjudgment.

Point(s) for consideration:-

4. The sole point for consideration before this Court is as towhether the persons who do not fulfill the prescribed qualification andare not duly registered under the relevant Statute, be permitted to practiceas ‘Paramparya Vaidyas’?

Rival Submissions:

5. Learned senior counsel for the appellants contended beforethis Court that in the State of Kerala, a large number of persons arepracticing in Sidha/Unani/Ayurveda system of medicines known as‘Paramparya Vaidyas’, which are in vogue for a long time. They haveacquired knowledge and experience from their gurus and parents andby continued practice over a long period of time they have acquired therequisite expertise. After the enactment of the Act, Section 38empowered the State Government to regulate the qualifications and toprovide for the registration of practitioners of modern medicine. It tookwithin its ambit the homeopathic and indigenous systems of medicine aswell. Learned senior counsel further contended that due to thepromulgation of the Act, the appellants, who were not registered underthe Act, were prevented from practicing as ‘Paramparya Vaidyas’.Learned senior counsel further contended that unlike modern systems,medicines for each patient is being prepared after diagnosing the patientaccording to his requirement considering his age, place, etc. and there isno side effect in the treatment by these systems of medicines. Finally, itwas stressed upon by learned senior counsel for the appellants that it isthe custom that was developed in the community that the ‘Vaidyas’

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Apracticing in these systems must pass their knowledge and heredity toanother in the family. So as a custom of the community, the existingvaidyas have to preserve their old and indigenous systems to retain theirheredity and custom. It was also contended that so many vaidyaspracticing Ayurveda, Siddha, Unani Tibbi had applied to the governmentfor licence in compliance of the provisions of the Act but the StateBGovernment did not take any positive steps with regard to the sameinstead the police and other authorities have been harassing them forpracticing in respective system of medicines without obtaining licenceor exemption as per the provision to Section 38 of the Act.

6. He further contended that the High Court, therefore, erred inCapproaching the issue on the basis that after the coming into force of theAct only those persons who were possessing recognized qualificationhave the right to practice medicine. He further contended that it is settledlaw that any mandatory prohibition has to be in express or unambiguousterms and the alleged prohibition under Section 38 is to be understood inDthe context of Section 32 of the Act.

7. Per contra, learned counsel for the State contended that thereare several persons in the State of Kerala practicing Indian System ofMedicine without any qualification or registration which is in flagrantviolation of Section 38 of the Act and Section 17 of the Indian MedicineECentral Council Act, 1970 (in short ‘the IMCC Act’). It was furtherstressed upon that this unauthorized practice is a great threat to thehealth and life of the people of the State as the practitioners are producingalcoholic preparations and such preparations are being misused withoutany licence or registration in the guise of prescribing Indian System ofMedicines. Learned counsel further submitted that the IMCC Act doesFnot take into account the traditional practitioners or paramparya vaidyas.The concept and practice of medicine by tradition was not recognizedby the Parliament at the time of the enactment of the IMCC Act. It wasfurther submitted that the Parliament did not give any option to any personto commence practice and continue to practice Indian System ofGMedicines without proper qualification and registration as provided underthe IMCC Act and the only exemption is under Section 17(3)(c) of thesaid Act which provides that a person who had been practicing IndianSystem of Medicine for five (5) years at the commencement of theIMCC Act could continue to practice provided there has been no StateRegister maintained in that State.H

8. Learned counsel further submitted that the modus operandiof such practitioners in the State is to register an Association under theSocieties Registration Act or the Travancore-Cochin Literary, Scientificand Charitable Societies Registration Act, with an object to enrollmembers and to issue certificates in order to enable them to practiceIndian System of Medicine in the guise of ‘Paramparya Vaidyas’. Learnedcounsel for the State further contended that in most of these cases,there is no tradition or paramparayam for any of the members of suchregistered Association and most of them continue in the field of practicewith bogus certificates, degrees and diplomas. Learned counsel finallycontended that the bogus practitioners, without having requisitequalification and registration, should not be allowed to play with the livesof the people and to practice the Indian System of Medicine in the Stateof Kerala.

Discussion:

9. Traditional or indigenous systems of medicine like Ayurveda/Sidhha/Unani-Tibbi have largely evolved out of sporadic and randomprocesses of research and discovery attributable to various self styledpractitioners of these systems of medicines. With a view to bring aboutan organized development of these systems and standardize the modeof treatment by the practitioners of these systems, legislations have beenframed by both the State Governments as well as the CentralGovernment. The legislative field for framing legislation on these aspectsis relatable to Entry 26, List III of the Seventh Schedule of the Constitutionof India. On these lines, the Travancore-Cochin Medical PractitionersAct, 1953 was enacted with an object to regulate the qualifications andprovide for the registration of practitioners of modern medicine and toenact a law relating to medical practitioners generally in the State ofTravancore-Cochin.

10. With this background, it is relevant to reproduce Section 17 ofthe IMCC Act as well as Sections 23 and 38 of the Act which are asunder:- The Indian Medical Central Council Act, 1970

17. Rights of persons possessing qualifications included in–Second, Third and Fourth Schedules to be enrolled. (1) Subject to the other provisions contained in this Act, any medicalqualification included in the Second, Third or Fourth Schedule shallbe sufficient qualification for enrolment on any State Register ofIndian Medicine.

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(2) Save as provided in section 28, no person other than apractitioner of Indian medicine who possesses a recognizedmedical qualification and is enrolled on a State Register or theCentral Register of Indian Medicine,- (a) shall hold office as Vaid, Siddha, Hakim or [physician or Amchior] any other office (by whatever designation called) in Governmentor in any institution maintained by a local or other authority; (b) shall practice Indian medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitnesscertificate or any other certificate required by any law to be signedor authenticated by a duly qualified medical practitioner; (d) shall be entitled to give evidence at any inquest or in any courtof law as an expert under section 45 of the Indian Evidence Act,1872 (1 of 1872), on any matter relating to Indian Medicine.

(3) Nothing contained in sub-section (2) shall affect,- (a) the right of a practitioner of Indian medicine enrolled on aState Register of Indian Medicine to practise Indian medicine inany State merely on the ground that, on the commencement ofthis Act, he does not possess a recognized medical qualification; (b) the privileges (including the right to practice any system ofmedicine) conferred by or under any law relating to registrationof practitioners of Indian medicine for the time being in force inany State on a practitioner of Indian medicine enrolled on a StateRegister of Indian Medicine;

(c) the right of a person to practise Indian medicine in a State inwhich, on the commencement of this Act, a State Register ofIndian Medicine is not maintained if, on such commencement, hehas been practicing Indian medicine for not less than five years; (d) the rights conferred by or under the Indian Medical CouncilAct, 1956 (102 of 1956)[including the right to practice medicineas defined in clause (f) of section 2 of the said Act], on personspossessing any qualifications included in the Schedules to the saidAct.

(4) 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 onethousand rupees, or with both.

Travancore-Cochin Medical Practitioners Act, 1953

23. Eligibility for registration.-

(1) Subject to the provisions of sub-sections(2) and (5).-

(i) every holder of a recognised qualification and everypractitioner holding appointment under the Governmentat the commencement of this Act, and

(ii) every person who, within the period of one year or suchother longer period as may be fixed by the Governmentfrom the date on which this Act come into force, provesto the satisfaction of the appropriate council that he hasbeen in regular practice as a practitioner for a period ofnot less than five years preceding the first day of April,1953.

shall be eligible for registration under this Act:

Provided however that no practitioner shall beregistered under clause (ii) after the expiration of one year,or such other longer period as may be fixed by theGovernment, from the date on which this Act come intoforce.

(2) Applicants for registration under clause (ii) of sub-section (1)shall produce a certificate in Form I as set forth in theschedule. The certificate shall be from an officer of theRevenue Department not below the rank of a Tahsildar orany other person authorized by the Government in this behalf.

(3) The Government may, after consulting the appropriate council,permit the registration of any person who shall furnish to suchcouncil proof that he is possessed of a medication degree,diploma or certificate of any University, medical school orcollege approved by such council other than those mentionedin the Schedule.

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A(4) The Government shall have power to direct the registration ofany practitioner who, at the time of registration under thissection, is employed in a hospital, asylum, infirmary, clinicsurgery, lying in hospital, sanatorium, nursing home, dispensary,vaidyasala or dharmasala managed by any corporate body:

B Provided however that no such practitioner shall beregistered under this sub-section after the expiration of oneyear, or such other longer period as may be fixed by theGovernment, from the date on which this Act comes into force.

(5) No person shall be eligible for registration under sub-sectionC(1), sub-section (3), or sub-section (4) if he is subject to anyof the disqualifications mentioned in clause (a) to (e) of Section7.

38. Persons not registered under this Act, etc., not topractice.- No person other than (i) a registered practitioner orD(ii) a practitioner whose name is entered in the list of practitionerspublished under Section 30 or (iii) a practitioner whose name isentered in the list mentioned in Section 25 shall practice or holdhimself out, whether directly or by implication, as practising modernmedicine, homoeopathic medicine or ayurvedic medicine, siddhamedicine or unani tibbi and no person who is not a registeredEpractitioner of any such medicine shall practise any other medicineunless he is also a registered practitioner of that medicine:

Provided that the Government may, by notification in the Gazette,direct that this section shall not apply to any person or class orpersons or to any specified area in the State where none of theFthree classes of practitioners mentioned above carries on medicalpractice:

Provided further that this section shall not apply to a practitionereligible for registration under this Act who, after having filed theapplication for registration, is awaiting the decision of theGappropriate council or of the Government in case of appeal:

Provided also that this section shall not apply to a practitionereligible for registration under this Act until the period prescribedfor application under Section 23 expires.

11. As per the statement of objects and reasons of the IMCC Act,the Central Council was to evolve uniform standards of education andregistration of practitioners of the indigenous systems of medicine andfor that purpose a Register was to be maintained under the IMCC Act inorder to ensure that medicine is not to be practiced by those who are notqualified. The IMCC Act does not contemplate any exemption from theprovisions in the Act regarding qualification or registration of practitionersin the various branches of indigenous medicine, viz., ayurveda, siddha,unani etc. However, Section 17(3)(c) of the IMCC Act has a provisionfor protecting persons who had been practicing Indian system of Medicinefor at least five years as on the date of commencement of the Act.Such persons could continue their practice provided there had been noState Register maintained in the State on the commencement of theIMCC Act.

12. In Dr. Mukhtiar Chand and Others vs. State of Punjaband Others (1998) 7 SCC 579, this Court has held as under:- “17. Before adverting to these questions, it would be useful tonotice various systems of medicine in vogue in India and thestatutes regulating them:

The systems of medicines generally prevalent in India areAyurveda, Siddha, Unani, Allopathic and Homoeopathic. In theAyurveda, Siddha and Unani systems, the treatment is basedon the harmony of the four humours, whereas in the Allopathicsystem of medicine, treatment of disease is given by the use ofa drug which produces a reaction that itself neutralizes thedisease. In Homoeopathy, treatment is provided by the like.

18. Of the medical systems that are in vogue in India, Ayurvedahad its origin in 5000 BC and is being practised throughout Indiabut Siddha is practised in the Tamil-speaking areas of South India.These systems differ very little both in theory and practice. TheUnani system dates back to 460-370 BC but that had come to bepractised in India in the 10th century AD (Park: Textbook ofPreventive and Social Medicine, 15th Edn., pp. 1 & 2). Allopathicmedicine is comparatively recent and had its origin in the 19thcentury.

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42. Here it may be necessary to refer to the development of lawwith regard to Indian medicine. In the pre-constitutional era, eachprovince of India was having its own enactment regulating theregistration and practice in Indian medicines like the UnitedProvinces Indian Medicine Act, 1939, the Punjab Ayurvedic andUnani Practitioners Act, 1949, etc. After the coming into force ofthe Constitution, many State legislations were enacted to regulatethe practise of Indian medicine, Ayurvedic and Unani like thePunjab Ayurvedic and Unani Practitioners Act, 1963, etc. However,on the model of the 1956 Act, Parliament enacted the IndianMedicine Central Council Act, 1970 (for short “the 1970 Act”).The schemes and provisions of the 1970 Act and the 1956 Actare analogous. “Indian medicine” is defined in Section 2(e) of theAct to mean the system of Indian medicine commonly known asAshtang Ayurveda, Siddha or Unani Tibb whether supplementedor not by such modern advances as the Central Council maydeclare by notification from time to time. In Section 2(j), theexpression “State Register of Indian Medicine” is defined to meana register or registers maintained under any law for the time beingin force in any State regulating the registration of practitioners ofIndian medicine. The Act contemplates having separatecommittees for Ayurvedic, Siddha and Unani medicines. Section17 enables, inter alia, the persons who possess medicalqualifications mentioned in the Second, Third or Fourth Scheduleto be enrolled on any State Register of Indian Medicine. A perusalof the Second, Third and Fourth Schedules shows that they containboth integrated medicine as well as other qualifications. So a holderof a degree in integrated medicine is entitled to be enrolled underSection 17 of the 1970 Act. Section 22 authorises the CentralCouncil to prescribe the minimum standards of education in Indianmedicine required for granting recognized medical qualificationsby universities, Boards or medical institutions in India. The CentralCouncil is enjoined to maintain the Central Register of IndianMedicine containing the particulars mentioned therein and Section25 lays down the procedure for registration in the Central Registerof Indian Medicine. The counterpart of Section 15 of the 1956Act is Section 17 of the 1970 Act. We shall quote it here:

KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v.STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]

“17. (1) Subject to the other provisions contained in this Act,any medical qualification included in the Second, Third or FourthSchedule shall be sufficient qualification for enrolment on anyState Register of Indian Medicine.

(2) Save as provided in Section 28, no person other than apractitioner of Indian medicine who possesses a recognisedmedical qualification and is enrolled on a State Register or theCentral Register of Indian Medicine,—

(a) shall hold office as vaid, siddha, hakim or physician or anyother office (by whatever designation called) in Governmentor in any institution maintained by a local or other authority; (b) shall practise Indian medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitnesscertificate or any other certificate required by any law to besigned or authenticated by a duly qualified medical practitioner; (d) shall be entitled to give evidence at any inquest or in any courtof law as an expert under Section 45 of the Indian EvidenceAct, 1872, on any matter relating to Indian medicine.

(3) Nothing contained in sub-section (2) shall affect,—

(a) the right of a practitioner of Indian medicine enrolled on aState Register of Indian Medicine to practise Indian medicinein any State merely on the ground that on the commencementof this Act, he does not possess a recognised medicalqualification; (b) the privileges (including the right to practise any system ofmedicine) conferred by or under any law relating to registrationof practitioners of Indian medicine for the time being in forcein any State on a practitioner of Indian medicine enrolled on aState Register of Indian Medicine;

(c) the right of a person to practise Indian medicine in a State inwhich, on the commencement of this Act, a State Register ofIndian Medicine is not maintained if, on such commencement,he has been practising Indian medicine for not less than fiveyears; A

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(d) the rights conferred by or under the Indian Medical CouncilAct, 1956 [including the right to practise medicine as definedin clause (f) of Section 2 of the said Act], on persons possessingany qualifications included in the Schedules to the said Act.

(4) 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 onethousand rupees, or with both.”

A perusal of the provisions extracted above shows that sub-section(1) prescribes qualifications considered sufficient for enrolmenton any State Register of Indian Medicine. Sub-section (2) ordainsthat all persons except those who possess a recognised medicalqualification and are enrolled on a State Register or the CentralRegister of Indian Medicine, are prohibited from doing any of theacts mentioned in clauses (a) to (d) of that sub-section. Sub-section(3), however, carves out an exception to the prohibition containedin sub-section (2). Clause (a) thereof saves the right to practiceof any medical practitioner of Indian medicine who was not havingrecognised medical qualification on the date of the commencementof the 1970 Act but who was enrolled on a State Register topractise that system of medicine; clause (b) protects the privilegeswhich include the right to practise any system of medicine whichwas conferred by or under any law relating to registration ofpractitioners of Indian medicine for the time being in force inany State on a practitioner of Indian medicine who was enrolledon a State Register of Indian Medicine; clause (c) saves the rightof a person to practise Indian medicine in a State in which noState Register of Indian Medicine was maintained at thecommencement of that Act provided he has been practising inIndian medicine for not less than five years before thecommencement of the Act and clause (d) protects the rightsconferred by or under the 1956 Act including the right to practisemodern medicine possessing any qualification included in that Act.In other words, under clause (d) the right to practise modernscientific medicine in all its branches is confined to only suchpersons who possess any qualification included in the Schedulesto the 1956 Act. In view of this conclusion, it matters little if thepractitioners registered under the 1970 Act are being involved invarious programmes or given postings in hospitals of allopathicmedicine and the like.

43. It will be appropriate to notice that the 1970 Act also maintainsa similar distinction between a State Register of Indian Medicineand the Central Register of Indian Medicine. Whereas the StateRegister of Indian Medicine is maintained under any law for thetime being in force in any State regulating the registration ofpractitioners of Indian medicine, the Central Register of IndianMedicine has to be maintained by the Central Council under Section23 of that Act. For a person to be registered in the Central Register,Section 25 enjoins that the Registrar should be satisfied that theperson concerned was eligible under that Act for such registration.Keeping this position in mind, if we read Section 17(3)(b), itbecomes clear that the privileges which include the right to practiseany system of medicine conferred by or under any law relating toregistration of practitioners of Indian medicine for the time beingin force in any State on a practitioner of Indian medicine enrolledon a State Register of Indian Medicine, are not affected by theprohibition contained in sub-section (2) of Section 17.”

Section 23 of the Act provides for eligibility conditions forregistration of medical practitioners. Under sub-Section (1), a holder ofa recognized qualification or holding appointment under the governmentat the commencement of the Act and every other practitioner who hasbeen in regular practice for 5 (five) years preceding 1[st] April, 1953, ifapplies within one year have been made eligible for registration. However,by Section 38 of the Act, persons not registered under the Act havebeen prohibited from practicing various types of medicines. The firstproviso empowers the State Government to exempt any person or classof persons from undergoing registration. It is also evident that theGovernment of Kerala had granted exemption to some traditionalpractitioners like those who belonged to the renowned Ashtavaidyafamilies.

13. The capacity to diagnose the disease would depend upon thefact as to whether the practitioner had the necessary professional skillto do so. Acquisition of professional skill is again a regulated subject andthe measure thereof is the possession of a prescribed Diploma or Degreeawarded by a recognized Institution. What one might enquire with regardto the right to practice medicine in the light of the above is as to whetherthe appellants are equipped with such a professional qualification. Theanswer is, obviously, in the negative, as admittedly, the appellants do not ABC

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Apossess any prescribed Diploma or Degree from a recognized institutionfor that purpose. Even a person who has acquired the prescribed Diplomaor Degree from a recognized institution would not be entitled to practicemedicine unless he is so registered under the provisions of the IMCCAct.

B14. In Dr. A.K. Sabhapathy vs. State of Kerala and Others1992 Supp (3) SCC 147, the provisions of Section 38 of the Act andSections 15 and 21 of the Indian Medical Council Act, 1956 came up forconsideration before this Court wherein it was held as under:- “16. We are, therefore, unable to agree with the view of the HighCCourt that the Central Act does not lay down the qualificationsfor registration of a medical practitioner. We may in this contextrefer to sub-section (1) of Section 15 which postulates the holdingof a recognised medical qualification by a person for beingregistered in the State Medical Register so as to entitle to practisemodern scientific medicine in the State and sub-section (1) ofDSection 21 which provides that the Indian Medical Register that isrequired to be maintained by the Medical Council of India shallcontain the name of persons who are for the time being enrolledin the State Medical Register and who possess any of therecognised medical qualifications. These provisions contemplateEthat a person can practise in allopathic system of medicine in aState or in the country only if he possesses a recognised medicalqualification. Permitting a person who does not possess therecognised medical qualification in the allopathic system ofmedicine would be in direct conflict with the provisions of theCentral Act. We are, therefore, of the view that the first provisoFto Section 38 of the State Act insofar as it empowers the StateGovernment to permit a person to practise allopathic system ofmedicine even though he does not possess the recognised medicalqualifications for that system of medicine is inconsistent with theprovisions of Sections 15 and 21 read with Sections 11 to 14 ofGthe Central Act. The said proviso suffers from the vice ofrepugnancy insofar as it covers persons who want to practise theallopathic system of medicine and is void to the extent of suchrepugnancy. Practitioners in allopathic system of medicine must,therefore, be excluded from the scope of the first proviso and itmust be confined in its application to systems of medicines otherH

than the allopathic system of medicine. We, however, wish tomake it clear that we have not considered the impact of theprovisions contained in the Indian Medicine Central Council Act,1970 and the Homoeopathy Central Council Act, 1973 on theprovisions of the said proviso to Section 38 of the State Act.”

Even though the impact of the provisions of the IMCC Act wasnot considered but the provision of Section 17 of the IMCC Act alsoprovides for recognition of medical qualification included in Second, Thirdand Fourth Schedules to be sufficient qualification for enrolment on anyState Register of Indian Medicine. Thus the same principles as hadbeen laid down in Dr. A.K. Sabhapathy (supra), as reproduced above,will also apply.

15. In the case of Delhi Pradesh Registered MedicalPractitioners vs. Director of Health, Delhi Administration Servicesand Others (1997) 11 SCC 687, this Court has held as under:- “5. We are, however, unable to accept such contention of MrMehta. Sub-section (3) of Section 17 of the Indian Medicine CentralCouncil Act, 1970, in our view, only envisages that where beforethe enactment of the said Indian Medicine Central Council Act,1970 on the basis of requisite qualification which was thenrecognised, a person got himself registered as medical practitionerin the disciplines contemplated under the said Act or in the absenceof any requirement for registration such person had been practisingfor five years or intended to be registered and was also entitled tobe registered, the right of such person to practise in the disciplineconcerned including the privileges of a registered medicalpractitioner stood protected even though such practitioner did notpossess requisite qualification under the said Act of 1970. It maybe indicated that such view of ours is reflected from the Objectsand Reasons indicated for introducing sub-section (3) of Section17 in the Act. In the Objects and Reasons, it was mentioned:

“[T]he Committee are of the opinion that the existing rightsand privileges of practitioners of Indian Medicine should begiven adequate safeguards. The Committee, in order to achievethis object, have added three new paragraphs to sub-section(3) of the clause protecting (i) the rights to practise of thosepractitioners of Indian Medicine who may not, under the ABC

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proposed legislation, possess a recognised qualification subjectto the condition that they are already enrolled on a StateRegister of Indian Medicine on the date of commencement ofthis Act, (ii) the privileges conferred on the practitioners ofIndian Medicine enrolled on a State Register, under any law inforce in that State, and (iii) the right to practise in a State ofthose practitioners who have been practising Indian Medicinein that State for not less than five years where no register ofIndian Medicine was maintained earlier.”

As it is not the case of any of the writ petitioners that they hadacquired the degree in between 1957 (sic 1967) and 1970 or onthe date of enforcement of provisions of Section 17(2) of the said

Act and got themselves registered or acquired right to beregistered, there is no question of getting the protection undersub-section (3) of Section 17 of the said Act. It is to be statedhere that there is also no challenge as to the validity of the saidCentral Act, 1970. The decision of the Delhi High Court thereforecannot be assailed by the appellants. We may indicate here that ithas been submitted by Mr Mehta and also by Ms Sona Khanappearing in the appeal arising out of Special Leave Petition No.6167 of 1993 that proper consideration had not been given to thestandard of education imparted by the said Hindi SahityaSammelan, Prayag and expertise acquired by the holders of theaforesaid degrees awarded by the said institution. In any event,when proper medical facilities have not been made available to alarge number of poorer sections of the society, the ban imposedon the practitioners like the writ petitioners rendering useful serviceto the needy and poor people was wholly unjustified. It is notnecessary for this Court to consider such submissions becausethe same remains in the realm of policy decision of otherconstitutional functionaries. We may also indicate here that whatconstitutes proper education and requisite expertise for apractitioner in Indian Medicine, must be left to the proper authorityhaving requisite knowledge in the subject. As the decision of theDelhi High Court is justified on the face of legal position flowingfrom the said Central Act of 1970, we do not think that anyinterference by this Court is called for. These appeals thereforeare dismissed without any order as to costs.”

KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v.STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]

16. It would be relevant to quote the following decision in Dr.Sarwan Singh Dardi vs. State of Punjab and Others AIR 1987 P&H81 wherein it was held as under:- “12. In view of the clear provision in the two Central Acts, namely,S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec. (2)(b) of1970 Act, no person who is not qualified in the system of ModernMedicine and is not registered as such, either in the State Registeror the Central Register, is entitled to practice modern system ofmedicine. Same is the case regarding right to practice the systemof Indian medicine namely, that no person who is not possessedof requisite qualification envisaged in the 1970 Act or a likelegislation by a State Legislature and is registered as such is entitledto practice the system of Indian medicine.”

17. Similarly, in Ishaq Husain Razvi vs. State of U.P. and Others AIR 1993 All. 283 it was held as under:- “10….No doubt the Indian Medicines Central Council may furtherinclude degrees and diplomas of other recognized Universitiesand Institutions in the schedule of the Act, for registration asAyurvedic/Unani Tibbi medical practitioners. The petitioner hasfailed to show that he possessed requisite recognized qualificationfor registration entitling him for practicing in Ayurvedic system ofmedicines….”

18. In our country, the qualified practitioners are much less thanthe required number. Earlier, there were very few Institutions impartingteaching and training to the Doctors, Vaidyas and Hakimis but the situationhas changed and there are quite a good number of Institutions impartingeducation in indigenous medicines. Even after 70 years of independence,the persons having little knowledge or having no recognized or approvedqualification are practicing medicine and playing with the lives ofthousands and millions of people. The right to practice any profession orto carry on any occupation, trade or business is no doubt a fundamentalright guaranteed under the Constitution. But that right is subject to anylaw relating to the professional or technical qualification necessary forpracticing any profession or carrying on any occupation or trade orbusiness. The regulatory measures on the exercise of this right bothwith regard to the standard of professional qualifications and professionalconduct have been applied keeping in view not only the right of themedical practitioners but also the right to life and proper health care ofpersons who need medical care and treatment.

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AConclusion:

19. In our country, the numbers of qualified medical practitionershave been much less than the required number of such persons. Thescarcity of qualified medical practitioner was previously quite large sincethere were very few institutions imparting teaching and training toBDoctors, Vaidyas, Hakims etc. The position has now changed and thereare quite a good number of medical colleges imparting education in variousstreams of medicine. No doubt, now there are a good numbers of suchinstitutions training qualified medical practitioners at number of places.The persons having no recognized and approved qualifications, havinglittle knowledge about the indigenous medicines, are becoming medicalCpractitioners and playing with the lives of thousands and millions of people.Some time such quacks commit blunders and precious lives are lost.

20. The government had been vigilant all along to stop suchquackery. A number of unqualified, untrained quacks are posing a greatrisk to the entire society and playing with the lives of people withoutDhaving the requisite training and education in the science from approvedinstitutions. The Travancore-Cochin Medical Practitioners Act, 1953 aswell as the Indian Medicine Central Council Act, 1970 were also enactedon the similar lines. Every practitioner shall be deemed to be a practitionerregistered under the Act if at the commencement of this Act, his nameEstands entered in the appropriate register maintained under the said Actand every certificate of registration issued to every such practitionershall be deemed to be a certificate of registration issued under this Act.But in the present case, the appellants herein have failed to show thatthey possessed requisite recognized qualification for registration entitlingthem to practice Indian system of medicines or their names have beenFentered in the appropriate registers after the commencement of thisAct.

21. In view of the above discussion, we are of the consideredopinion that the High Court was right in dismissing the petitions filed bythe appellants herein. Consequently, the appeals fail and are accordinglyGdismissed. Interlocutory applications, if any, are disposed of accordingly.However, the parties are left to bear their own costs.

H

Divya Pandey

Appeals dismissed.