ARAVINTH R.A. versus THE SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE & ORS. on 2 May 2022

[2022] 5 S.C.R. 921

ARAVINTH R.A.

v.

THE SECRETARY TO THE GOVERNMENT OF INDIAMINISTRY OF HEALTH AND FAMILY WELFARE & ORS.

(Civil Appeal No. (s) 3585-3586 of 2022)

MAY 02, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

National Medical Commission (Foreign Medical GraduateLicentiate) Regulations 2021 – Regn.4(a)(i), 4(a)(ii), 4(b) & 4(c) –Consitutionality of – The challenge to Regn.4(a)(i) was based uponthe premise that it puts an obligation upon students seeking foreignmedical course to select only that Institution which offer the courseof a duration of 54 months – The challenge to Regn.4(a)(ii) and4(b) was based upon the ground that it was an extra territoriallegislation as it makes mandatory for foreign medical graduate toundergo 12 months internship in the same foreign medical institutionand also to get registered in that country’s professional regulatorybody – The challenge to Regn.4(c) was on the basis that the samecaused undue hardship to foreign medical graduate as it mandates12 month supervised internship in India thus compelling them toundergo two internships, one in the foreign land and another in themother land – Writ petition dismissed by High Court on the groundthat that the said provisions do not violate Arts.14, 19(1)(g) and 21of the Constitution – Correctness of – Held: Correct – Prescriptionof minimum standards would certainly include the prescriptionof the minimum duration for a course and it may be open to themedical institutions of other countries to prescribe a duration ofless than 54 months for the students of their country but it is notnecessary for the National Medical Commission and the CentralGovernment to recognise foreign medical degrees of a lesserduration, if the incumbent wants to have permanent registration inIndia – The prescription of an internship for a minimum durationof 12 months in the same foreign medical institution cannot be saidto be a duplication of internships since the purpose of internshipis to test the ability of the students to apply their academic

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Aknowledge on their subjects, namely the patients – Constitution ofIndia – Arts.14, 19(1)(g) and 21.

National Medical Commission (Compulsory Rotating MedicalInternship) Regulations, 2021 – Schedule -II 2(a) and 2(c)(i) –Schedule II- Para 2(a)(i) requires all foreign medical graduate toBundergo internship at par with Indian Medical Graduate – Thechallenge to Schedule-II Para 2(c)(i) is upon the premise that thesame puts a question mark upon the future of students as it requiresforeign medical gradutes to be first posted in colleges which havebeen newly opened and yet to be recognised – High Court dismissedthe writ petition holding that the none of the provision violate Arts.14,C19(1)(g) and 21 of the Constitution – On appeal, held: Therequirement under Para 2(a) of Schedule-I for foreign medicalgraduates to undergo internships at par with Indian medicalgraduates is to ensure that only those who have acquired similarskills are allowed to practice Medicine and therefore challenge toDthe same is without any substance – The prescription in para 2(c)(i)of Schedule-II that such foreign medical graduates may be postedfirst in colleges which have been newly opened and have yet to berecognised, is a prescription of necessity since all medicalinstitutions of the country are equipped to provide internships onlyto as many students as their permitted intake may allow andEtherefore, the Regulation is intended to ensure that an undue burdenis not cast upon the already recognised institutions.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The appellant challenged the validity of RegulationF4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the LicentiateRegulations on several grounds, one of which is the lack of powerunder the Act. The provisions extracted above would show thatNMC had the power to frame the above Regulations. Prescriptionof minimum standards would certainly include the prescription ofthe minimum duration for a course. It may be open to the medicalGinstitutions of other countries to prescribe a duration of less than54 months for the students of their country. But it is not necessaryfor the NMC and the Central Government to recognise foreignmedical degrees of a lesser duration, if the incumbent wants tohave permanent registration in India. The prescription of anHinternship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplicationof internships. The purpose of internship is to test the ability ofthe students to apply their academic knowledge on their subjects,namely the patients. Medical institutions of other countries maynot insist on rigorous internship for students who may not put totest their skills on the population of their country. Similarly, therequirement under Regulation 4(b) has been necessitated toensure that the students who were imparted medical educationin a foreign country demonstrate their skills first on thepopulation of the country where they studied. The necessity for aMaster Chef to taste the food prepared by him, before it is servedon the guests, cannot be said to be arbitrary. Therefore, thechallenge to the Licentiate Regulations, are wholly without basis.[Paras 51-54][942-C-H; 943-A]

2. The contention that Section 36(4) recognises M.B.B.S.courses of a duration of less than 54 months and that thereforethe Licentiate Regulations being a subordinate legislation is ultravires, is wholly unsustainable. All that sub-section (4) of Section36 saves, are the qualifications already recognised before the dateof commencement of the Act and included in the Second Scheduleand Part-II of the Third Schedule to the 1956 Act. The fact thatpast sins are sought to be washed away, is no ground to hold thatthere cannot be a course correction. As a matter of fact, Section60 which deals with repeal and saving, also saves under clause(b) of sub-section (2), any right, privilege or obligation alreadyacquired. This cannot be stated to be in conflict with what isprescribed for the students of the future. In any case, Section 36deals only with recognition of the foreign medical courses andnot registration as medical practitioner. Registration is coveredby Section 33. Therefore, Section 36(4) cannot help the appellant.[Para 55][943-A-D]

3. The contention that the country needs more doctors andthat by restricting the registration of foreign medical graduates,the fundamental right of the professionals under Article 19(1)(g)and the fundamental right of the citizens under Article 21 areimpaired, is to be stated only to be rejected. It is true that thecountry needs more doctors, but it needs really qualified doctorsand not persons trained by institutions abroad, to test their skillsonly in their mother land. [Para 56][943-D-E]

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A4. The argument that these Regulations constitute an extra-territorial law is misconceived. These Regulations do notencroach into the sovereignty of the countries where thoseinstitutions are located, by stipulating minimum standards forthe students who want to practise there. These Regulations merelyprescribe the minimum standards to be fulfilled by those who studyBin those institutions but who want to practise here in India. [Para57][943-F]

5. Insofar as the challenge to the CRMI Regulations areconcerned, the same is without any substance. If there areCinstitutions in some countries which offer primary medicalqualification without mandatory internship, the students aresupposed not to seek admissions in those institutions. The madrush to become qualified medical professionals, cannot drive themto countries where short-cuts to success are offered. Therequirement under Para 2(a) of Schedule-II of these RegulationsDfor foreign medical graduates to undergo internships at par withIndian medical graduates is to ensure that only those who haveacquired similar skills are allowed to practice Medicine. Theprescription in para 2(c)(i) of Schedule-II of these Regulationsthat such foreign medical graduates may be posted first in collegesEwhich have been newly opened and have yet to be recognised, isa prescription of necessity. All medical institutions of the countryare equipped to provide internships only to as many students astheir permitted intake may allow. Therefore, this Regulation isintended to ensure that an undue burden is not cast upon thealready recognised institutions. [Paras 58 and 59][943-G-H]

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Medical Council of India v. Indian Doctors from RussiaWelfare Associations & Ors. (2002) 3 SCC 696; SanjeevGupta v. Union of India (2005) 1 SCC 45 : [2004] 6Suppl. SCR 49; Medical Council of India v. J. SaaiPrasanna & Ors. (2011) 11 SCC 748; Modern DentalGCollege and Research Centre & Ors. v. State of MadhyaPradesh & Ors. (2016) 7 SCC 353 : [2016] 3 SCR 579– referred to.

The Registrar, Travancore- Cochin Medical Council andOrs. 2019 (4) SCT 224 (Kerala); Sadhiya Siyad v. Stateof Kerala and Ors. 2021 (6) KLT 94 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3585-3586 of 2022.

From the Judgment and Order dated 24.02.2022 of the High Courtof Judicature at Madras in WP/3667/2022 & WP/3670/2022.

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Gopal Sankaranarayanan, Sr. Adv., S. Santanam Swaminadhan,Ms. Abhilasha Shrawat, Ms. Himani Thakur, Kartik Malhotra, Mrs. AarthiRajan, Ms. Shivani VIS, Advs. for the Appellant.

The Judgment of the Court was delivered by E

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the dismissal of his two writ petitions prayingrespectively for, (i) a declaration that Regulations 4(a)(i), 4(a)(ii), 4(b)& 4(c) of the National Medical Commission (Foreign Medical GraduateLicentiate) Regulations 2021, hereinafter referred to as ‘the LicentiateRegulations’; and (ii) a declaration that Schedule-II 2(a) and 2(c)(i) ofthe National Medical Commission (Compulsory Rotating MedicalInternship) Regulations, 2021, (hereinafter referred to as “CRMIRegulations”) both published on 18.11.2021, are ultra vires and violativeof Articles 14, 19(1)(g) and 21 of the Constitution, the writ petitionerbefore the Madras High Court has come up with the above appeals.

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2. We have heard Mr. Gopal Sankaranarayanan, learned seniorcounsel appearing for the appellant.

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3. The appellant completed his Higher Secondary education inthe year 2021 under the C.B.S.E. Scheme. According to him, he appearedfor NEET 2021 and obtained 55.443417 percentile score. His All IndiaNEET Rank was 68772. Therefore, he could not get admission to amedical college of his choice in India.

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4. Contending (i) that he wanted to join an Under Graduate MedicalCourse in Anna Medical College, Mauritius; (ii) that due to the restrictionson international travel during the pandemic, he was unable to join thesaid Course during the academic year 2021-22; and (iii) that in themeantime the National Medical Commission of India brought theCLicentiate and CRMI Regulations, imposing heavy and arbitrary burdenupon students who want to pursue medical education abroad, the appellantfiled two writ petitions as aforesaid.

5. Finding that the impugned Regulations were issued with a viewto ensure minimum standards and that they are in no way ultra vires theDAct or the Constitution, a Division Bench of the Madras High Courtdismissed the writ petitions. Holding that the appellant has not even madean application for admission to any institution in a foreign country andthat therefore the writ petitions were nothing but a mis-adventure, theHigh Court also imposed costs of Rs.25,000/- upon the appellant.ETherefore, the appellant has come up with these appeals.

6. As indicated at the beginning, what was challenged by theappellant before the High Court were some provisions of two differentsets of Regulations. The 1[st] set of Regulations namely, the LicentiateRegulations were issued by the National Medical Commission in exerciseFof the powers conferred by Section 57 read with sub-section (4) ofSection 15 of the National Medical Commission Act. The 2[nd] set ofRegulations, namely the CRMI Regulations were issued by theCommission in exercise of the powers conferred by Section 57 readwith sub-section (1) of Section 24 of the Act.G

7. For the purpose of easy reference, the Regulations that werechallenged by the appellant before the High Court of Madras arepresented in two tabular columns as follows:- H

NMC (FMGL) Regulations, 2021 (Licentiate Regulations)

NMC (CRMI) Regulations, 2021

8. The challenge of the appellant to some provisions of theLicentiate Regulations, 2021 was on the following grounds:-

(i) Regulations 4(a)(i), 4(a)(ii), 4(b) and 4(c) are violative of theRight to Health, inherent in Article 21, as they tend to impair the right ofthe citizens to obtain quality medical treatment;

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(ii) The impugned Regulations are issued in exercise of the powersconferred by Section 15(4) read with Section 57 of the Act, but theseprovisions do not confer any such power to frame rules and regulationsin respect of such matters;

(iii) The requirement of Regulation 4(a)(i) that the foreign medicalBcourse should be of a duration of 54 months, will limit the choice availableto students to select only those institutions which offer a course of aduration of 54 months. In any case, Under Graduate Medical Course ofa duration of less than 54 months is already recognised in Section 36(4)of the NMC Act.

C(iv) Regulation 4(a)(ii) which makes it mandatory for a foreignmedical graduate to undergo an internship for a minimum duration of 12months in the same foreign medical institution and Regulation 4(b) whichrequires that such a graduate should have registered with the respectiveprofessional regulatory body of the country in which the degree wasawarded, are clear examples of making extra-territorial legislation;D

(v) Regulation 4(c) which requires the foreign medical graduatesto undergo supervised internship in India for a minimum period of 12months, causes undue hardship for the students, as they may have toundergo two internships, one in the foreign land and another in the motherland; E

(vi) Regulation 4(b) encroaches into the immigration policy ofanother country, in as much as it imposes an obligation upon the studentsto get registered with the professional regulatory body competent togrant licence to practice medicine in their respective jurisdiction; F(vii) The impugned Regulations impose unreasonable restrictionsupon the right to practice medicine and they do not even serve publicinterest, as the country needs more doctors;

(viii) Unreasonable restrictions imposed by these Regulations willcause brain-drain from this country; G(ix) The impugned Regulations tend to increase the averageduration of the entire curriculum up to the stage of registration as amedical practitioner, to 8-9 years for a foreign medical graduate, thoughit is just 5½ years for an Indian medical graduate. Since the system ofModern Medicine or Allopathy is the same throughout the world andsince it cannot differ from country to country, the classification of studentsH

into two categories namely those who study in India and those whostudy abroad, is violative of Article 14.

9. The challenge of the appellant to the second set of Regulationsnamely the CRMI Regulations, 2021, is on the following grounds:-

(i) Schedule II-Para 2(a)(i) requires all foreign medical graduatesto undergo internship at par with Indian medical graduates. But theRegulations do not treat foreign medical graduates at par with Indianmedical graduates. Therefore, there is dichotomy. There are severalcountries such as Ukraine, Georgia, Nepal, Bangladesh, Armenia,Philippines and Malaysia, which offer primary medical qualificationwithout mandatory internship. Medical institutions in countries likeMauritius offer to their foreign students, the option to do compulsoryrotating medical internship in the country of their origin. But Schedule-IIof the Regulations deprives the students of these opportunities;

(ii) Schedule-II Para 2(c)(i) allows foreign medical graduates tobe posted first in colleges which have been newly opened and have yetto be recognised. This will dissuade students from pursuing medicaleducation abroad, as their future will be a question mark.

10. But we do not think that any of the above grounds of challengeare sustainable in law. The Regulations impugned by the appellant mayappear superficially to be rigorous or tough. But these Regulations are aproduct of, (i) past experience; and (ii) necessity of times. Experts inthe field of education believe (and justifiably so) that over ambitiousparents, hapless children, exploitative and unscrupulous (and sometimesunlettered) founders of infrastructure-deficient educational institutions,paralysed regulatory bodies and courts with misplaced sympathy, haveall contributed (not necessarily in the same order) to the commercialisationof education and the decline of standards in the field of education, ingeneral and medical education, in particular. We may be able to appreciatethis, if we have a look at the history of evolution of statutory measurestaken to regulate the recognition and registration of foreign medicaldegrees in India.

11. The problem of unrecognised institutions offering diplomas/degrees in medicine and untrained individuals practising medicine, is notnew, but is a century old phenomenon in India. This can be seen fromthe fact that the first attempt to regulate the grant of titles implyingqualifications in western medical science was made under the Indian A

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AMedical Degrees Act, 1916, which is an Imperial Act. Though therewere Acts of the Local Council in the larger provinces of British Indiasuch as Bombay, Bengal and Madras provinces, they were found to betoothless. Therefore, the Statement of Objects and Reasons of the IndianMedical Degrees Act, 1916 recorded:- B“…It has been found that at present, diplomas are issuedby private institutions to untrained or insufficiently trainedpersons, and that many of these diplomas are colourableimitations of those issued by recognised Universities andCorporations. The result is that recipients of such diplomasare able to pose to the public as possessing qualificationsCin medicine and surgery which they do not possess…”

12. Subsequently, an Act to constitute a Medical Council in Indiawas enacted under the title Indian Medical Council Act, 1933. Theobject of creation of a Medical Council in India, as stated in the preambleof this Act, was to establish a uniform minimum standard higherDqualification in Medicine for all the provinces. This Act divided the medicalqualifications into three categories namely, (i) those granted by medicalinstitutions in the States included in the First Schedule; (ii) those grantedby medical institutions in the States not included in the First Schedule;and (iii) those granted by medical institutions outside those States.

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13. The First Schedule to the 1933 Act included Indian Universitiesand the Second Schedule included institutions in countries like UnitedKingdom, Australia, Burma, Canada etc. It may be of interest to notethat Osmania University of Hyderabad was included in the SecondSchedule, as Hyderabad was not, at that point of time, a part of BritishFIndia. Section 12 of the 1933 Act granted automatic recognition to themedical qualifications obtained from the universities of the countriesincluded in the Second Schedule.

14. After India attained independence, the Indian Medical CouncilAct, 1956 was passed and it came into force on 01.11.1958. This ActGrepealed the Indian Medical Council Act, 1933. This Act was intendedto provide for the reconstitution of the Medical Council of India and themaintenance of a Medical Register for India and such other mattersconnected therewith.

15. The Statement of Objects and Reasons shows that the Actwas intended, (i) to provide for the registration of the names of citizensH

of India who have obtained foreign medical qualifications, which werenot recognised at that time; and (ii) to provide for the temporaryrecognition of medical qualifications granted by medical institutions inthe countries outside India with which no scheme of reciprocity existed.

16. Section 11 of the 1956 Act contained provisions for therecognition of medical qualifications granted by universities or medicalinstitutions in India. The First Schedule to the Act contained the list ofuniversities and medical institutions in India, the medical qualificationsgranted by which, were required to be recognised by Section 11(1).Section 11(2) dealt with universities and medical institutions in India notincluded in the First Schedule.

17. Section 12 contained provisions for the recognition of medicalqualifications granted by medical institutions in countries with which therewas a scheme of reciprocity. Such medical institutions were included inthe Second Schedule.

18. Section 13 provided for recognition of medical qualificationsgranted by medical institutions, which are not included in the First Scheduleor Second Schedule but included in the Third Schedule. The ThirdSchedule itself comprised of two parts. It is Part-II of the Third Schedulewhich contained a list of recognised medical qualifications granted bymedical institutions outside India, not included in the Second Schedule.

19. Sub-section (3) of Section 13 of the Indian Medical CouncilAct, 1956 provided for the recognition of medical qualifications grantedby medical institutions outside India, which are included in Part-II of theThird Schedule, subject to the condition that the enrolment of a personpossessing such qualifications, in the Medical Register, would beconditional upon his being a citizen of India and his having undergonesuch practical training as may be required by the Rules and Regulationsin the country granting the qualification. If he has not undergone anypractical training in that country, he must undergo practical training asmay be prescribed under the Act.

20. The 1956 Act, as it was originally enacted, enabled the CentralGovernment under Section 13(4), to amend Part-II of the Third Schedule,after consulting the Medical Council of India, so as to include thereinany qualification granted by a medical institution outside India which isnot included in the Second Schedule.

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A21. But the real headache for the 1956 Act started, when theGovernment of India requested the MCI in the year 1981 to consider thegrant of recognition for medical courses in medical institutions in theerstwhile U.S.S.R. The Medical Council examined the request andsubmitted a report, after which certain institutions in the erstwhileU.S.S.R. were recognised and included in the Second Schedule of theBAct.

22. After the disintegration of U.S.S.R., institutions with dubiousreputations mushroomed (perhaps showing the way forward for manyback home), forcing MCI to recommend in the year 1994, the de-recognition of all the medical degrees of the erstwhile U.S.S.R. ThoughCthe students were sufficiently warned by MCI through advertisementissued in August, 1997 and the Executive Committee took certaindecisions, those decisions were diluted by a high level committee in ameeting held in November, 1998. Eventually, it was decided to undertakea process of post-screening, for those coming back to India and a systemDof pre-screening was recommended for those desirous of takingadmission in medical institutions of those countries.

23. Challenging those decisions, writ petitions were filed in differentHigh Courts by persons who had undergone courses in Medicine inmedical colleges in the erstwhile U.S.S.R. The Delhi High Court tookEthe lead and was the first to grant relief to the candidates. When thematter reached this Court, certain suggestions were made and the GeneralBody of MCI met on 31.03.2000 and passed certain Resolutions.

24. In order to give effect to the Executive decisions, theGovernment of India introduced a bill in March 2001 for the amendmentFof the 1956 Act. After the bill was passed, Section 13 of the Act gotamended. By this Amendment Act 34 of 2001, two provisos and anExplanation were inserted under sub-section (4) of Section 13. Inaddition, sub-sections (4A), (4B) & (4C) were also inserted under Section13(4).

G25. Sub-section (4A), (4B) and (4C) of Section 13 inserted byAct 34 of 2001 read as follows:- (4A) A person who is a citizen of India and obtains medicalqualification granted by any medical institution in any country outsideIndia recognized for enrolment as medical practitioner in thatcountry after such date as may be specified by the CentralH

Government under sub-section (3),shall not be entitled to beenrolled on any Medical Register maintained by a State MedicalCouncil or to have his name entered in the Indian Medical Registerunless he qualifies the screening test in India prescribed for suchpurpose and such foreign medical qualification after such personqualifies the said screening test shall be deemed to be therecognised medical qualification for the purposes of this Act forthat person.

(4B) A person who is a citizen of India shall not, after such dateas may be specified by the Central Government under sub-section(3), be eligible to get admission to obtain medical qualificationgranted by any medical institution in any foreign country withoutobtaining an eligibility certificate issued to him by the Council andin case any such person obtains such qualification without obtainingsuch eligibility certificate, he shall not be eligible to appear in thescreening test referred to in sub-section (4A):

Provided that an Indian citizen who has acquired the medicalqualification from foreign medical institution or has obtainedadmission in foreign medical institution before the commencementof the Indian Medical Council (Amendment) Act, 2001 shall notbe required to obtain eligibility certificate under this sub-sectionbut, if he is qualified for admission to any medical course forrecognized medical qualification in any medical institution in India,he shall be required to qualify only the screening test prescribedfor enrolment on any State Medical Register or for entering hisname in the Indian Medical Register.

(4C) Nothing contained in sub-sections (4A) and (4B) shall applyto the medical qualifications referred to in section 14 for thepurposes of that section.

26. As seen from the aforesaid provisions, sub-sections (4A)&(4B) of Section 13 operated in two different time zones, namely pre-admission to the course and post-completion of the course. While Sub-section (4B) spoke about an eligibility certificate to be obtained by acandidate before seeking admission to any medical institution in anyforeign country, sub-section (4A) spoke about a screening test in India,the passing of which was necessary, to get enrolled on any MedicalRegister.

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27. After the insertion of sub-sections (4A) and (4B), two sets ofRegulations were put in place. One was the “Eligibility Requirement fortaking admission in an undergraduate medical course in a Foreign MedicalInstitution Regulations, 2002”, and another was “Screening TestRegulations, 2002”.

B28. Regulations 3 and 4 of the Screening Test Regulations, 2002read as follows:- “3. An Indian citizen or a person who has been granted OverseasCitizenship of India possessing a primary medical qualificationawarded by any medical institution outside India who is desirousCof getting provisional or permanent registration with the MedicalCouncil of India or any State Medical Council on or after15.03.2002 shall have to qualify a screening test conducted by theprescribed authority for that purpose as per the provisions ofsection 13 of theAct:

Provided that a person seeking permanent registration shall notDhave to qualify the screening test if he/ she had already qualifiedthe same before getting his/ her provisional registration.

4. Eligibility Criteria: No person shall be allowed to appear in thescreening test unless:

(1) No persons shall be allowed to appear in screening test unless:he/she is a Citizen of India or has been granted Overseas Citizenshipof India and possess any primary medical qualification, which isconfirmed by the Indian Embassy concerned, to be a recognizedqualification for enrolment as medical practitioner in the countryin which the institution awarding the said qualification is situated E

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(2) he/ she had obtained ‘Eligibility Certificate’ from the MedicalCouncil of India as per the ‘Eligibility Requirement for takingadmission in an undergraduate medical course in a ForeignMedical Institution Regulations, 2002’. This requirement shall not be necessary in respect of Indian citizens or Overseas Citizens ofGIndia who have acquired the medical qualifications from foreignmedical institutions or have obtained admission in foreign medicalinstitution before 15[th]March, 2002.

(3) He/She has studied for the medical course at the same institutelocated abroad for the entire duration of the course from whereHhe/she has obtained the degree.

Provided in cases where Central Government is informed ofcondition of war, civil unrest, rebellion, internal war or any suchsituation wherein life of Indian citizen is in distress and suchinformation has been received through the IndianEmbassy in thatcountry then the Council shall relax the requirement of obtainingmedical education: from the same institute located abroad inrespect of which communication has been received from the IndianEmbassy in that country.

(4) Provided further that a person seeking provisional or permanentregistration shall not have to qualify the Screening Test if he/sheholds an Undergraduate medical qualification from Australia/Canada/New Zealand/United Kingdom/United States of Americaand the holder thereof also been awarded a Post Graduate medicalqualification in Australia/Canada/NewZealand/United Kingdom/United States of America and has been recognized for enrolmentas medical practitioner in that country.”

29. Both the above sets of Regulations were notified by the MCIon 18.02.2002. The date from which the provisions of the Regulationswould take effect was prescribed as 15.03.2002. As a result, the appealsarising out the decisions of the Delhi High Court and the Allahabad HighCourt were disposed of by this Court by an order reported in MedicalCouncil of India vs. Indian Doctors from Russia WelfareAssociations &Ors.[1].

30. However, another round of litigation started, with the filing ofa batch of writ petitions on the file of this Court under Article 32 of theConstitution, at the instance of students who joined the Course in 1994or 1995 or 1996 or 1999 or 2000. The challenge of these petitioners wasto the Screening Test Regulations, 2002. But by a judgment in SanjeevGupta vs. Union of India[2], this Court rejected the challenge.

31. In April 2010, the MCI was rocked by a shameful scam ofepic proportions, which led to the promulgation of the Indian MedicalCouncil (Amendment) Ordinance, 2010 on 15.05.2010 superseding theIndian Medical Council and appointing a Board of Governors. TheOrdinance was soon replaced by the 2010 Amendment Act. Subsequently,extension of the supersession from time to time was made under the 1 (2002) 3 SCC 696

2 (2005) 1 SCC 45

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AIndian Medical Council (Amendment) Act, 2011, the Indian MedicalCouncil (Amendment) Act, 2012 and by two subsequent ordinances.

32. At about the same time when the MCI was embroiled in acontroversy, an amendment was made to Regulation 4 of the ScreeningTest Regulations, 2002 with effect from 16.04.2010. The AmendmentBwas to the effect that a foreign medical graduate should have completedhis entire medical course from the same institution located abroad, inorder to be eligible to appear for the Screening Test. On account of thisAmendment, students who pursued Under Graduate medical educationpartly in one foreign country and partly in another foreign country weredisqualified to take the Screening Test.C

33. Therefore, some of the students affected by the amendmentto the Screening Test Regulations filed a batch of writ petitions on thefile of the Delhi High Court assailing Regulation 4(3) of the ScreeningTest Regulations 2002, as amended with effect from 16.04.2010, as ultravires the provisions of the Act. The Division Bench of the Delhi HighDCourt, by a judgement dated 27.09.2013 passed in Rohit Naresh Agarwalvs. Union of India[3]declared Regulation 4(3) as amended by the 2010Regulations to be ultra vires the Act, in view of the purported legislativepolicy reflected in sub-sections (4A) and (4B) of Section 13 and theextent of power available in Clause (ma) of Section 33.

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34. The Medical Council of India filed Special Leave Petitionsagainst the said judgement of the Delhi High Court. After granting leave,those petitions were dismissed on the ground that the decision of theHigh Court in declaring Regulation 4(3) of the Screening Test Regulations2002 as ultra vires, did not suffer from any error.F

35. Immediately after the 2010 Amendment to the Screening TestRegulations, but before the decision of the Delhi High Court in RohitNaresh Agarwal (supra), this court had an occasion to deal with thecase of students who completed the first two terms of an undergraduatemedical course in an unrecognised medical college in India, but completedthe last term in a medical institution in Tanzania. The batch of studentsGcomprised of (1) some, who were declined provisional registration andwho could not do internship in India, (2) some, who were grantedprovisional registration, completed internship, but declined permanentregistration and (3) some, whose permanent registration was H3 (2013) 204 DLT 401 (DB)

subsequently cancelled. The High Court granted relief to all of them andthe judgement of the High Court was under challenge before this Court.By a judgement reported in Medical Council of India vs. J. SaaiPrasanna & Ors.[4], this court affirmed the judgement of the AndhraPradesh High Court. While doing so, this court held that “so long as themedical institution in a country outside India has granted a medicalqualification and that medical qualification is recognized forenrolment as medical practitioner in that country, all that is requiredfor the purpose of enrolment in the medical Register in India isqualifying in the Screening Test in India”.

36. More importantly, this Court held in paragraph 12 as follows:

36. More importantly, this Court held in paragraph 12 as follows:

“12. In the case of persons who obtained a medicalqualification in a medical institution outside India, the questionas to where the course of study was undergone is not relevant.The course of study could be in that country or if the normsof the Medical Council of that country so permitted, the courseof study could be partly in that country and partly in anothercountry including India.Once that country recognises amedical qualification granted by the institution in that countryfor the purpose of enrolment as a medical practitioner in thatcountry, and such medical degree-holder passes the screeningtest in India, the Medical Council of India cannot refuse torecognise such degree on the ground that the student did apart of his study in an institution in India as a part of hismedical study programme for the foreign institution.”

37. Thus, every time when the Regulatory body attempted to plugthe loopholes and reform the system, which was exploited by a few,there was a challenge to the same and the irresistible temptation toundertake an irresponsible research in the nuances of law, set them atnaught many times. Courts, sometimes, were swayed by sympathy tothe plight of a few students, little realising that the plight of the patientswho would go to them will hardly come to light and the impact suchdecisions would have on the population would never be known.

38. Be that as it may, the above developments shocked theconscience of a few (at least a few), which led, in the year 2014, to theconstitution of a Group of Experts chaired by Dr. Ranjit Roy Chaudhury 4 (2011) 11 SCC 748.

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Ato study the Indian Medical Council Act, 1956 and makerecommendations to the Government to make the Medical Council ofIndia (MCI), modern and suited to the prevailing conditions.

39. The report of the said Group of Experts was subsequentlyexamined by the Parliamentary Standing Committee on Health & FamilyBWelfare and they submitted a report known as 92nd Report. Further, afour-member committee headed by the Vice Chairman, NITI Aayogwas constituted to examine all options for reforms in MCI and to suggesta way forward. The Committee framed a draft “National MedicalCommission (NMC) Bill”.

C40. In Modern Dental College and Research Centre & Ors.vs. State of Madhya Pradesh & Ors.[5], this Court directed the CentralGovernment to take action on the above recommendations. It was in thelight of such developments that the National Medical Commission Act,2019 (hereinafter referred to as ‘NMC Act’) was passed.

D41. The NMC Act provided for the constitution of a NationalMedical Commission and the constitution of four autonomous boards,each with a different mandate. The Act provided for the recognition ofmedical qualifications granted by universities and institutions in Indiaunder Section 35 and recognition of medical qualifications granted bymedical institutions outside India, under Section 36. Section 36 of theEAct reads as follows:-

36. Recognition of medical qualifications granted by medicalinstitutions outside India.-

(1) Where an authority in any country outside India, which by theFlaw of that country is entrusted with the recognition of medicalqualifications in that country, makes an application to theCommission for granting recognition to such medical qualificationin India, the Commission may, subject to such verification as itmay deem necessary, either grant or refuse to grant recognitionto that medical qualification:

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Provided that the Commission shall give a reasonableopportunity of being heard to such authority before refusing togrant such recognition.

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(2) A medical qualification which is granted recognition bythe Commission under sub-section (1) shall be a recognisedmedical qualification for the purposes of this Act, and suchqualification shall be listed and maintained by the Commission insuch manner as may be specified by the regulations.

(3) Where the Commission refuses to grant recognition tothe medical qualification under sub-section (1), the authorityconcerned may prefer an appeal to the Central Government againstsuch decision within thirty days of communication thereof.

(4) All medical qualifications which have been recognisedbefore the date of commencement of this Act and are included inthe Second Schedule and Part II of the Third Schedule to theIndian Medical Council Act, 1956 (102 of 1956), shall also berecognised medical qualifications for the purposes of this Act,and shall be listed and maintained by the Commission in suchmanner as may be specified by the regulations.

42. Similarly, the Act also provided for withdrawal of recognitiongranted to a medical qualification, granted by medical institutions in Indiaunder Section 38 and the de-recognition of medical qualifications grantedby medical institutions outside India. There was also a special provisionin Section 40 for the grant of recognition to any medical qualificationgranted by a medical institution in a country outside India, provided thatmedical practice by a person possessing such qualification would dependupon his qualifying in the National Exit Test.

43. While Section 56 of the Act confers powers upon the CentralGovernment to make rules, Section 57 confers power upon the NationalMedical Commission to make regulations. In order to ensure that thepower of the Commission to frame regulations is very wide, sub-section(2) of Section 57 lists out about 46 matters, in respect of which NMCmay make regulations.

44. It is in exercise of the power conferred by Section 57 readwith sub-section (4) of Section 15 that the Licentiate Regulations 2021were issued. Section 15 provided for the conduct of the National ExitTest. Sub-section (4) of Section 15 mandated that any person with aforeign medical qualification shall have to qualify National Exit Test forthe purpose of obtaining licence to practice Medicine. Section 15(4)reads as follows:- A

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A“15. National Exit Test.- xxx xxxxxx

(4) Any person with a foreign medical qualification shall have toqualify National Exit Test for the purpose of obtaining licence topractice medicine as medical practitioner and for enrolment in theState Register or the National Register, as the case may be, inBsuch manner as may be specified by regulations.

xxx xxx xxx”

45. Clause (k) of sub-section (2) of Section 57 indicates that theRegulations framed by NMC may deal with “the manner in which aperson with foreign medical qualification shall qualify National ExitCTest under sub-section (4) of Section 15”.

46. At this stage we may take a small detour to point out that theKerala State Medical Council, without waiting for the CentralGovernment to clean up the MCI, took the lead and passed a Resolutiondated 20.10.2017, making it compulsory for all foreign medical graduatesDto complete one year internship in any institution within India approvedby MCI, for the grant of permanent registration in the State of Keralaunder the Travancore-Cochin Medical Practitioners Act, 1953. On thebasis of the said Resolution, the application for permanent registration ofsome foreign medical graduates were rejected and the rejection becameEthe subject matter of challenge in Dr. Amala Girijan and Ors. vs. Theegistrar, Travancore-Cochin Medical Council and Ors.[6]Thechallenge was on the ground that the Resolution of the State MedicalCouncil was in violation of Section 37 of the State Act. However, thechallenge was rejected by a learned Judge of the Kerala High Court.

F47. But subsequently, the same Resolution came to be challengedby another foreign medical graduate in Sadhiya Siyad vs. State of Keralaand Ors.[7]Another learned Judge of the Kerala High Court before whomthe writ petitions came up, framed the following four questions as arisingfor consideration:- “(i) Whether a person who has not undergone internship asGpart of the medical course undertaken by him/her abroad is eligibleto appear in the Screening Test provided for under Section 13(4A)of the IMC Act?

6 2019 (4) SCT 224 (Kerala)H7 2021 (6) KLT 94

(ii) Whether a person who obtains Eligibility Certificate interms of Section 13(4B) of the IMC Act after taking admission ina medical institution abroad, be denied enrolment on a StateMedical Register, if he/she satisfies all other eligibility criteria forthe same?

(iii) Whether a person who obtains a medical qualificationfrom a medical institution abroad and undertakes one yearinternship thereafter in the country of education and satisfies allother eligibility criteria for enrolment on a State Medical Registerbe insisted to undergo CRRI for the said purpose?

(iv) Whether the State Medical Council functioning underthe TCMP Act is empowered to take decisions in the nature ofExt. P21?”

48. The Kerala High Court held, (i) that the stand of the StateMedical Council that only students who have completed internship aspart of the medical course undertaken by them in the medical institutionsabroad, are entitled to appear for the Screening Test, is unsustainable;(ii) that if a candidate satisfied all the requirements for enrolling as amedical practitioner on a State Medical Register in accordance with theprovisions of the 1956 Act and the Regulations made there under, hecannot be denied registration by a State Medical Council; (iii) that if acandidate satisfied all the requirements for enrolling as a medicalpractitioner on a State Medical Register in accordance with the provisionsof the 1956 Act and the regulations made there under, the State MedicalCouncil cannot deny enrolment on the ground that the candidate hadobtained Eligibility Certificate after taking admission to the medicalinstitution abroad and was consequently not eligible to appear forScreening Test; (iv) the requirement stipulated by the Kerala StateMedical Council that such foreign medical graduates should undergoCRRI for claiming permanent registration, is inconsistent with therequirements of the 1956 Act and the Regulations; and (v) that since the1956 Act is relatable to Entry 66 of List-I of the Seventh Schedule of theConstitution, it would prevail over the Kerala enactment relatable toEntry 25/26 of List-III.

49. Though the High Court of Kerala allowed the writ petitionfiled by Sadhiya Siyad, it was made clear in the said Judgment that thesame would not preclude the State Medical Council from bringing to the

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Anotice of the NMC, the requirement if any, for the foreign medicalgraduates to undergo internship afresh to get acclimatised with thediseases and requirements of treatment peculiar to the State in order tobring in force, the appropriate statutory amendments.

50. Thus, a stage was set for the NMC to issue appropriateBregulations in exercise of the power conferred by Section 57 of the Act.Accordingly, the Licentiate Regulations were issued in exercise of thepower conferred by Section 15(4) read with Section 57 and the CRMIRegulations were issued in exercise of the power conferred by Section24(1) read with Section 57 of the Act. Keeping these developments inmind, let us now test the validity of the grounds of challenge to theseCRegulations.

51. As we have seen earlier, the appellant challenged the validityof Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of theLicentiate Regulations on several grounds, one of which is the lack ofpower under the Act. But the provisions extracted above would showDthat NMC had the power to frame the above Regulations.

52. Prescription of minimum standards would certainly includethe prescription of the minimum duration for a course. It may be open tothe medical institutions of other countries to prescribe a duration of lessthan 54 months for the students of their country. But it is not necessaryEfor the NMC and the Central Government to recognise foreign medicaldegrees of a lesser duration, if the incumbent wants to have permanentregistration in India.

53. The prescription of an internship for a minimum duration of 12months in the same foreign medical institution cannot also be said to beFa duplication of internships. The purpose of internship is to test the abilityof the students to apply their academic knowledge on their subjects,namely the patients. Medical institutions of other countries may not insiston rigorous internship for students who may not put to test their skills onthe population of their country. But it is not necessary for us to followsuit.G

54. Similarly, the requirement under Regulation 4(b) has beennecessitated to ensure that the students who were imparted medicaleducation in a foreign country demonstrate their skills first on thepopulation of the country where they studied. The necessity for a MasterChef to taste the food prepared by him, before it is served on the guests,H

cannot be said to be arbitrary. Therefore, the challenge to the LicentiateRegulations, are wholly without basis.

55. The contention that Section 36(4) recognises M.B.B.S. coursesof a duration of less than 54 months and that therefore the LicentiateRegulations being a subordinate legislation is ultra vires, is whollyunsustainable. All that sub-section (4) of Section 36 saves, are thequalifications already recognised before the date of commencement ofthe Act and included in the Second Schedule and Part-II of the ThirdSchedule to the 1956 Act. The fact that past sins are sought to be washedaway, is no ground to hold that there cannot be a course correction. Asa matter of fact, Section 60 which deals with repeal and saving, alsosaves under clause (b) of sub-section (2), any right, privilege or obligationalready acquired. This cannot be stated to be in conflict with what isprescribed for the students of the future. In any case, Section 36 dealsonly with recognition of the foreign medical courses and not registrationas medical practitioner. Registration is covered by Section 33. Therefore,Section 36(4) cannot help the appellant.

56. The contention that the country needs more doctors and thatby restricting the registration of foreign medical graduates, thefundamental right of the professionals under Article 19(1)(g) and thefundamental right of the citizens under Article 21 are impaired, is to bestated only to be rejected. It is true that the country needs more doctors,but it needs really qualified doctors and not persons trained by institutionsabroad, to test their skills only in their mother land.

57. The argument that these Regulations constitute an extra-territorial law is misconceived. These Regulations do not encroach intothe sovereignty of the countries where those institutions are located, bystipulating minimum standards for the students who want to practisethere. These Regulations merely prescribe the minimum standards to befulfilled by those who study in those institutions but who want to practisehere in India.

58. Insofar as the challenge to the CRMI Regulations areconcerned, the same is without any substance. If there are institutions insome countries which offer primary medical qualification withoutmandatory internship, the students are supposed not to seek admissionsin those institutions. The mad rush to become qualified medicalprofessionals, cannot drive them to countries where short-cuts to success A

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Aare offered. The requirement under Para 2(a) of Schedule-II of theseRegulations for foreign medical graduates to undergo internships at parwith Indian medical graduates is to ensure that only those who haveacquired similar skills are allowed to practice Medicine.

59. The prescription in para 2(c)(i) of Schedule-II of theseBRegulations that such foreign medical graduates may be posted first incolleges which have been newly opened and have yet to be recognised,is a prescription of necessity. All medical institutions of the country areequipped to provide internships only to as many students as their permittedintake may allow. Therefore, this Regulation is intended to ensure thatan undue burden is not cast upon the already recognised institutions.

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60. Therefore, we find that the dismissal of the writ petitions filedby the appellant before the Madras High Court was fully justified. Wecould have dismissed the SLPs in limine, but we thought fit to take painsto bring on record the historical facts so that the challenge to theseRegulations are nipped in the bud and they do not surface in a differentDform or avatar.

61. In view of the above, the appeals are dismissed. However,the costs imposed by the High Court of Madras upon the appellant iswaived off, taking into account of the fact that he is a student and alsofor the purpose of showing the only extent to which, a court can showEsympathy in such matters.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeals dismissed.

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