AYUSH doctors & modern medicine

AYUSH doctors cannot prescribe modern medicine

DR. M.C. GUPTA
Advocate & Medico-legal consultant
Revised, 28-4-2016

                             MBBS [AIIMS], MD, Medicine, [AIIMS], MPH [San Carlos Univ., Guatemala, Central America]
​                             POST-DOCTORAL FELLOW [United Nations Univ.], LL.B. [Delhi Univ.], LL.M. [Kurukshetra University]

                                          Member, Indian Law Institute, Member, Supreme Court Bar Association
​                                          Fellow: National Foundation of Clinical Forensic Medicine

                                      [email protected]                  http://in.groups.yahoo.com/group/medico-legal-queries                [email protected]             

                                                    Formerly:       Professor & Dean, National Institute of Health & Family Welfare,
​                                                                          Additional Professor, All India Institute of Medical Sciences

THE MUKHTIAR CHAND JUDGMENT

http://www.ccimindia.org/downloads/6%20SC%20Judgment%2008.10.pdf

The Supreme Court judgment titled as Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors., (1998) 7 SCC 579, was pronounced on 8-1-1998 by a two judge bench comprising of judges K. T. Thomas and Syed Shah Mohammed Quadri. This is an important judgment that has not received adequate attention in the medical circles. It addresses many issues about which doctors are often concerned. This judgment will be discussed below.

It needs to be noted that the law is all about words. A single change of a word can alter the whole meaning of a statement. In view of this, I will try to retain as far as possible the words used by the Supreme Court while, at the same time, cutting down the size to about one third.

I will first present the judgment in the abridged form and then will present a summary of salient points that are of common and continued interest to the medical profession. Lastly, I will reproduce the summary of this judgment as provided by Delhi HC in Para of its judgment in —“

JUDGMENT (ABRIDGED)

A — The judgment was delivered on an appeal by the appellants Dr. Mukhtiar Chand & Ors. Against the respondents State of Punjab & Ors. This appeal was decided along with several other similar appeals. The basic issue was whether a notification issued under Rule 2(ee) (iii) of the Drugs and Cosmetics Rules, 1945, was valid.

B Rule 2(ee) was inserted in the Act in 1960. It reads as follows:

(ee) “Registered medical practitioner” means a person

(i) holding a qualification granted by an authority specified or notified under section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); or

(ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practising the modern scientific system of medicine excluding the Homoeopathic system of medicine; or

(iii) Registered in a medical register (other than a register for the registration of Homoeopathic practitioners) of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purposes of this Act; or

(iv) registered or eligible for registration in the register of dentists for a State under the Dentists Act, 1948 (16 of 1948); or

(v) who is engaged in the practice of veterinary medicine and who possesses qualifications approved by the State Government;]

The above definition is exactly the same as the definition of “medical practitioner” given in section 2(f) of the Pharmacy Act, 1948.

C — The controversy in these cases was triggered off by the issuance of declarations by many state Governments under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945, (for short 'the Drugs Rules') which defines the term "Registered Medical Practitioner". Under such declarations, notified Vaids/Hakims claim right to prescribe Allopathic drugs covered by the Indian Drugs and Cosmetics Act, 1940 (for short 'the Drugs Act'). Furthermore, Vaids/Hakims who have obtained degrees in integrated courses claim right to practise allopathic system of medicine. In exercise of the power under clause (iii) of Rule 2(ee), the State of Punjab issued Notification No. 9874-Thbtt-67/34526 dated 29th October, 1967, declaring all the Vaids/Hakims who had been registered under the East Punjab Ayurvedic and Unani Practitioners Act, 1949, and the Pepsu Ayurvedic and Unani Practitioners Act, 2008, and the Punjab. Ayurvedic and Unani Practitioners Act, 1963, as persons practising modern System of Medicine for the purposes of the Drugs Act. One Dr. Sarwan Singh Dardi who was a medical practitioner, registered with the Board of Ayurvedic and Unani System of Medicines, Punjab, and who was practising modern system of medicines was served with an order of the District Drugs inspector, Hoshiarpur, prohibiting him from keeping in his possession any allopathic drug for administration to patients and further issuing general direction to the chemists not to issue allopathic drugs to any patient on the prescription of the said doctor. That action of the Inspector was questioned by Dr. Dardi in the Punjab & Haryana High Court in C.W.P.No. 2204 of 1986. He claimed that he was covered by the said notification and was entitled to prescribe allopathic medicines to his patients and store such drugs for their treatment (hereinafter referred to as Dardi's case). A Division Bench of the Punjab & Haryana High Court, by judgment dated September 17, 1986, held that the said notification was ultra vires the provisions of sub-clause (iii) of clause (ee) of rule 2 of the Drugs Rules and also contrary to the provisions of the Indian Medical Council Act, 1956 and accordingly dismissed his writ petition.

D — Similar cases came before other High Courts also. For example, IMA, Jodhpur, filed a writ petition. 1777/82 in the Rajasthan High Court seeking a declaration that rule 2(ee)(iii) of the Drugs Rules and the Circular No.26(24)M.E.(Group-T)82 issued by the Government of Rajasthan on July 26, 1982, were void and ultra vires the provisions of the Drugs Act and the Indian Medical Council Act, 1956. By judgment dated September 29, 1994, a Division Bench of the Rajasthan High Court held that the said rule was without any legislative competence and consequentially the notification was illegal and void. The various appeals against various High Court judgments on similar issues were heard together and disposed of along with the Mukhtiar Chand judgment.

E — The Court held that Rule 2(ee) was not repugnant to section 15 (2) and 15 (3) of the IMC Act, 1956, which were inserted in the Act in 1964. Section 15 is reproduced below:

“RIGHT OF PERSONS POSSESSING QUALIFICATIONS IN THE SCHEDULES TO BE ENROLLED.

(15) (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.

(2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register:-

(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;

(b) shall practice medicine in any State;

(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner:

(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.

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

F — The court further held that irrespective of section 15, Rule 2(ee) was valid, but the benefit thereof and of notifications issued thereunder would be available only where the state law for registration of the practitioners of Indian medicine permits them to practice allopathic medicine. The position of medical practitioners of Indian medicine holding degrees in integrated courses is not different in this regard. (It may be mentioned that the Ministry of Health, Government of India, does not recognise anything like integrated medicine, meaning thereby a system of medicine, integrating modern or allopathic medicine with Ayurvedic system, etc. It is true that for some years certain universities, including the University of Delhi, used to offer a course titled as Bachelor of Integrated Medicine and Surgery, BIMS. But these were discontinued long back).

G — The Supreme Court framed the following issues in determining the answers:

FIRST ISSUE Whether Rule 2(ee)(iii) of the Drugs Rule is bad for want of legislative competence; and are the impugned notifications issued by the State Governments, under clause (iii) of the said rule, declaring the categories of persons who were practising a modern system of medicine invalid in law.

SECOND ISSUE— What is the impact of Indian Medical Council Act, 1956 and Indian Medical Central Council Act, 1970, on rule 2(ee)(iii) of the Drugs Rules and the notifications issued thereunder? And

THIRD ISSUE— Whether the persons who have qualified the integrated courses in Ayurveda and Unani from various universities are entitled to practise in and prescribe allopathic medicines.

H — COURT’S OBSERVATIONS ON THE FIRST ISSUE:

As regards the first issue [regarding the validity of Rule 2(ee)(iii) and the notifications made under it], the SC deliberated on the following lines:

1) — Noticing that for practising allopathic system of medicines the degrees and diplomas were being issued by private institutions to untrained or insufficiently trained persons and some of them were colorable imitations of those issued by recognized Universities and corporations which was resulting in unqualified persons posing to the public as possessing qualifications in medicine and surgery which they did not possess, the Indian Medical Degrees Act, 1916 (for short '1916 Act') was enacted to ban conferring of degrees or issuing of certificates, licences etc. to practise western medical science, by persons or authorities other than those specified in the Schedule and notified by State Governments.

2) — The next Central legislation on the subject is Indian Medical Council Act, 1933, (for short '1933 Act'). This 1933 enactment was introduced to constitute a Medical Council in India in order to establish a uniform minimum standard of higher qualifications in medicine for all the erstwhile provinces. Section 2(d) of that Act defines the word "medicine" to mean "modern scientific medicine".        

3) — The Indian Medical Council Act,1956 (which has repealed 1933 Act) regulates modern system of medicine; the Indian Medicine Central Council Act, 1970, regulates Indian medicine and the Homeopathic Central Council Act, 1973,regulates practice of Homeopathic medicine. Here we are not concerned with Homeopaths. In regard to practice of allopathic medicine by a homeopath, this Court concluded thus, in Poonam Verma vs. Ashwin Patel, (1996) 4 SCC 332:

"A person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan."

4) — Rule 2(ee) was inserted in 1960. At that time the definition of Drug in section 3(b) of the Drugs and Cosmetics Act, 1940, did not include Ayurvedic, Siddha or Unani drugs as defined in Section 3(a) because section 3(a) was inserted only in 1964. This means that the Rule 2(ee) could have pertained to only allopathic drugs.

5) — It is further clear that Rule 2(ee) was meant for allopathic drugs because even though section 33 says the Central government may make rules regarding with manufacture, sale and distribution of drugs and cosmetics, section 33A says that section 33 does not apply to Ayurvedic, Siddha or Unani drugs.

6) — Vaids/Hakims (non-allopathic doctors) base their claim upon clause (iii) of Rule 2(ee) and such claim may be analysed here.

(a) It takes in persons who are registered in a medical register of a State (it may be noticed here that such a register should not be meant for registration of Homeopathic practitioners but it need not be a register meant for registration of persons practising modern system of medicine);

(b) such persons do not fall within category (i) or category (ii) of clause (ee), as noted above;

(c) they must be declared as persons practising modern system of medicine by general or special order made by the State Government in that behalf; and

(d) such a declaration would operate only for purposes of the Drugs Act and the Rules made thereunder.

7) — The learned counsel for the respondents argued at length on the question whether clause (iii) is also intended for left out qualified allopathic doctors. But if that interpretation is accepted the said clause will become redundant as admittedly clauses (i) and (ii) exhaust all categories of practitioners entitled to practice in allopathic medicine. It was conceded at the end of the day and, in our view rightly, that the clause takes in medical practitioners other than qualified practitioners entitled to practise allopathic medicine. And as practitioners of Homeopathic medicine are specifically excluded, it becomes evident that this category comprises of practitioners who are enrolled in a medical register of a State and though not answering the description of clauses (i) and (ii), are de facto practising modern system of medicine (allopathic) and those facts are declared by the State Government concerned. By this sub-clause, a de facto practitioner of modern scientific medicine (allopathic) is recognized as a registered medical practitioner and is enabled to prescribe drugs covered by the Drugs Act. This being the content of clause (iii) of Rule 2(ee), we shall now turn to the question of validity of the said clause   and the circular / notifications issued thereunder by the State Governments. Letter No.26 (24) M.E. (group-1) 82 dated July 27, 1982 was issued by the Rajasthan Government, communicating the approval of recommendations subject to the conditions specified therein for purposes of issuing the notification under clause (iii) (herein referred to as 'circular') and the notification No. 9874-IIBII-67/34526 dated October 29, 1967 was issued by the Punjab Government in exercise of powers conferred under the said clause. The learned counsel appearing for allopathic doctors and their association supported the view of the Rajasthan High Court that the rule is bad for want of legislative competence. We are afraid we cannot accede to this contention. Section 33 of the Drugs Act confers wide power on the Central Government to make rules.

8) — From the above discussion what emerges is that drugs can be sold or supplied by pharmacist or druggist only on the prescription of a 'registered medical practitioner' who can also store them for treatment of his patients. It has, therefore, became necessary for the rule-making authority to define the expression 'registered medical practitioner' for the purposes of the Act and the Rules. Rule 2(ee) does no more than defining that expression, which is within the scope of Section 33(1) as well as 33(2)(e). Therefore it cannot be said that the rule making authority was lacking legislative competence to make rule 2(ee).    

9) — The High Court misdirected itself by looking to the provisions of Sections 6 and 12 which do not contain the rule-making power. It is only Section 33 which contains the rule-making power. The High Court has also erred in searching for a power to frame rules for the registration of medical practitioners; obviously such a power is not conferred under the Act. The rule veritably does not deal with registration of the medical practitioner. It only defines the expression 'registered medical practitioners' by specifying the categories of medical practitioners which fall within the definition for purposes of the Drugs Act and the Drugs Rules. For the aforementioned reasons, we are unable to sustain the view taken by the High Court of Rajasthan that the impugned Rule 2(ee) (iii) suffers from the vice of lack of legislative competence and is ultra vires the Drugs Act.

10) — Now coming to the notifications issued by the Punjab Government on October 29, 1967 and the Circular issued by the Rajasthan Government on July 26, 1982, referred to above, it has already been pointed out that for purposes of clause (iii) of Rule 2(ee) what is required is not the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practising modern scientific system and that he is registered in a medical register of the State (other than a register for registration of Homeopathic practitioner). A notification can be faulted with only if those requirements are not satisfied. The Punjab and Haryana High Court proceeded with an assumed intention of the rule-making authority that it could not be within its conception to bring Vaids/Hakims, the practitioners of Ayurveda (Indian System of Medicine), within the purview of the said expression and that it could have only envisaged registration of medical practitioners of modern scientific system holding qualifications mentioned in clauses (i) and eligible for registration under clause (ii) and on that basis held the said notification was ultra vires the rules. From what has been discussed above, we are unable to uphold the view of the Punjab and Haryana High Court. We have perused the above said notifications issued by the State Governments and we find that they are well within the confines of clause (iii) of rule 2(ee). Therefore, we conclude that the said circular and the notification issued by the said State Governments declaring the categories of Vaids/Hakims who were practising modern system of medicine and were registered in the State Medical Registers, are valid in law.

I — COURT’S OBSERVATIONS ON THE SECOND AND THIRD ISSUES:

As regards the second and third issues [regarding the impact of the IMC Act, 1956, on rule 2(ee)(iii); and, the entitlement of persons qualified in integrated courses to practise in and prescribe allopathic medicines], the SC dealt with them together in the following manner:

1) — The right to practise any profession or to carry on any occupation, trade or business is, no doubt a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. But that right is subject to any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business enacted under clause 6 of Article 19. The regulatory measures on the exercise of this right, both with regard to standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment. There can, therefore, be no compromise on the professional standards of medical practitioners. With regard to ensuring professional standards required to practise allopathic medicine, the 1956 Act was passed, which deals also with reconstitution of the Medical Register. Thus, for the first time an Indian Medical Register for the whole of India came to be maintained from 1956. In the 1956 Act, Section 2(f) defines "medicine" to mean 'modern scientific medicine' in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery and the expression recognised medical qualification is defined in Section 2(h) to mean any of the medical qualifications included in the Schedules to the Act.

2) — Three more expressions in the 1956 Act have to be noticed here. But before we do so, it must be noted here that the object and reasons of the 1956 Act took note of the fact that there are local Acts in the States providing for State Medical Council and maintenance of State Medical Registers for registration of qualified practitioners in Western medical science or modern scientific medicine, that is, allopathic medicine.      

The three expressions to be noticed in the 1956 Act are

a — "State Medical Council" defined in Section 2(j) as a medical council constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine;

b — "State Medical Register" defined in Section 2(k) to mean a register maintained under any law for the time being in force in any State regulating the registration of practitioners of Medicine;

c — 'Indian Medical Register' to mean the medical register maintained by the Council.

3) — The 1956 Act provides for the recognition of medical qualifications granted by Universities or medical institutions in and outside India, which are specified in the Schedules. Section15, which is relevant, was in the following terms when the said Act was passed in 1956:

"15.     Subject to the other provisions contained in this Act, the medical qualifications included in the schedules shall be sufficient qualification for enrolment on any State Medical Register."

It laid down that the qualifications included in the Schedules should be sufficient qualification for enrolment on any State Medical Register. It may be pointed out here that in none of the Schedules the qualifications of the integrated courses figure. Consequently, by virtue of this section, persons holding degrees in integrated courses cannot be registered on any State Medical Register.

4) — By Act 24 of 1964, Section 15 of the 1956 Act was modified as already given above. For the present discussion, the germane provision is Section 15(2)(b) of the 1956 Act, which prohibits all persons from practising modern scientific medicine in all its branches in any State except a medical practitioner enrolled on a State Medical Register.         

There are three types of registration:

a—The first is provisional registration under Section 25;

b—The second is registration in the state medical register under Section15(1).      

c—The third is the registration in the Indian Medical Register for which recognised medical qualification is a prerequisite.

5) — The privileges of persons who are enrolled on the Indian Medical Register are mentioned in Section 27 and include right to practise as medical practitioner in any part of India. 

6) — 'State Medical Register', in contra-distinction to 'Indian Medical Register', is maintained by the State Medical Council, which is not constituted under the 1956 Act, but is constituted under any law for the time being in force in any State; so also a State Medical Register is maintained not under 1956 Act but under any law for the time being in force in any State regulating the registration of practitioners of medicine. It is thus possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the 'recognised medical qualification' which is a pre-requisite only for being enrolled on Indian Medical Register but not for registration in a State Medical register. Even under the 1956 Act, ‘recognised medical qualification' is sufficient for that purpose. That does not mean that it is indispensably essential. Persons holding 'recognised medical qualification' cannot be denied registration in any State Medical Register. But the same cannot be insisted upon for registration in a State Medical Register. However, a person registered in a State Medical Register cannot be enrolled on the Indian Medical Register unless he possesses 'recognised medical qualification'. This follows from a combined reading of Sections 15(1), 21(1) and 23. So by virtue of such qualifications as prescribed in a State Act and on being registered in a State Medical Register, a person will be entitled to practise allopathic medicine under Section 15(2)(b) of the 1956 Act.

7) — In the above view of the matter, we are unable to agree with the following observations of this Court in A. K. Sabhapathy vs. State of Kerala, (1992) Supp1. (3) SCC 147:

"These provisions contemplate that a person can practise in allopathic system of medicine in a State or in the country only if he possesses a recognised medical qualification. Permitting a person who does not possess the recognised medical qualification in the allopathic system of medicine would be in direct conflict with the provisions of the Central Act."

8) — We have perused the Bombay Medical Act, 1912, Bihar and Orissa Medical Act, 1916, Punjab Medical Registration Act 1916, Rajasthan Medical Act 1952 and Maharashtra Medical Council Act, 1965 which regulate maintenance of registers of medical practitioners and the entitlement to practice allopathic medicine. Under those Acts State Medical Registers are maintained. Section 7(3) of the Bombay Act of 1912, enabled the Provincial Government, after consulting the State medical council, to permit the registration of any person who was actually practising medicine in Bombay Presidency before 25th June, 1912, this seems to be the only case of registration without requisite qualification. Further, persons possessing Ayurvidya Visharad of the Tilak Maharashtra Vidyapeeth of Poona, obtained during the years 1921-1935 (which was included in the Schedule to that Act on 31st. September,1939 pursuant to Notification No. 3020/33 dated 12.9.1939), were entitled to be registered in the State Medical Register; this is the only Ayurvedic qualification on the basis of which persons were eligible to be registered on the State Medical Register in Maharashtra; further with regard to rural areas, the prohibition to practice allopathic medicine under that Act did not apply provided a person had commenced practice in any village in the rural area prior to 1912.

9) — If any State law relating to registration of Medical practitioners permits practise of allopathic medicine on the basis of degree in integrated medicines, the bar in Section 15(2)(b) of the 1956 Act will not apply.

10) — Rule 2(ee), as noted above, has been inserted in the Drugs Rules with effect from May 14, 1960. Section 15 of the 1956 Act, as it then stood, only provided that the medical qualifications in the Schedule shall be sufficient qualification for enrolment on any State medical register and so there was no inconsistency between the section and the Rule when it was brought into force. But after Sub-section (2) of Section 15 was inserted in the 1956 Act, with effect from 15.09.1964, which inter alia, provides that no person other than a medical practitioner enrolled on a 'State Medical Register' shall practise modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said drugs Rules, by implication, got obliterated. However, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments.

J — Under clause (d) of sub-section (3) of section 17 of the Indian Medicine Central Council Act, 1970, the right to practise modern scientific medicine in all its branches is confined to only such persons who possess any qualification included in the Schedules to 1956 Act. In view of this conclusion, it matters little if the practitioners registered under 1970 Act are being involved in various programmes or given postings in hospitals of allopathic medicine and the like.

K— To ascertain if any State law confers 'the right to practise any system' we have perused Bombay Medical Practitioners Act, 1938, Rajasthan Indian Medicine Act, 1953 and Maharashtra Medical Practitioners Act, 1961 which deal with registration of practitioners of Indian Medicine in those States, as also some related Acts. But we could not lay our hands on any provision in the said State Acts under which the right to precise any system of medicine is conferred on practitioners of Indian medicine registered under those Acts.

L— However, the claim of those who have been notified by State Governments under clause (iii) of rule 2(ee) of the Drugs Rules and those who possess degrees in integrated courses to practice allopathic medicine is sought to be supported from the definition of the Indian Medicine in Section 2(e) of 1970, reproduced below:

“(e) "Indian Medicine" means the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.”

M — Lot of emphasis is sought to be laid on the words “whether supplemented or not by such modern advances” to show that they indicate modern scientific medicine as under integrated systems various branches of modern scientific medicine have been included in the syllabi. Based on those clarifications, the arguments proceed that persons who registered under the 1970 Act and have done integrated courses, are entitled to practise allopathic medicine. In our view, all that the definition of 'Indian Medicine' and the clarifications issued by the Central Council enable such practitioners of Indian medicine is to make use of the modern advances in various sciences such as Radiology Report, (x-ray), complete blood picture report, lipids report, E.C.G., etc. for purposes of practising in their own system. However, if any State Act recognized the qualification of integrated course as sufficient qualification for registration in the State Medical Register of that State, the prohibition of Section 15(2)(b) will not be attracted.

N— A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act. The right to practise modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments.

O — Indeed, Ms. Indira Jaising has also submitted that the right to practise a system of medicine is derived from the Act under which a medical practitioner is registered. But she has strenuously argued that the right which the holders of degree in integrated courses of Indian medicine are claiming is to have their prescription of allopathic medicine, honored by a pharmacist or the chemist under the Pharmacy Act and the Drugs Act. This argument is too technical to be acceded to because prescribing a drug is a concomitant of the right to practise a system of medicine. Therefore, in a broader sense the right to prescribe drugs of a system of medicine would be synonymous with the right to practise that system of medicine. In that sense, the right to prescribe allopathic drug cannot be wholly divorced from the claim to practice allopathic medicine.

P — The upshot of the above discussion is that Rule 2(ee)(iii) as effected from May 14, 1960 is valid and does not suffer from the vice of want of the legislative competence and the notifications issued by the State Governments thereunder are not ultra vires the said rule and are legal. However, after sub-section (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from June 16, 1964, the benefit of the said rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is conferred by the State Law under which practitioners of Indian Medicine are registered in the State, which is for the time being in force. The position with    regard to Medical practitioners of Indian medicine holding degrees in integrated courses is on the same plain in as much as if any State Act recognizes their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply.

[NOTE — The fact is that no state law for registration of the practitioners of Indian medicine permits them to practice allopathic medicine. Hence, in view of the Poonam Verma case, practitioners of Indian medicine practicing allopathy are quacks.]

IMPORTANT POINTS FLOWING FROM THE JUDGMENT:

1— This judgment makes it clear that the term “Registered Medical Practitioner” must be interpreted carefully. It can mean two very different things depending upon under what is the legal basis of the so called registration, labelling a person as a “Registered Medical Practitioner”. There are the following possibilities:

i)—A person’s name may appear in the state medical register. He is competent to practice modern allopathic medicine and to prescribe allopathic drugs.

ii)— A person’s name may not appear in the state medical register, but the state government, in the exercise of the power under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945, may issue a notification declaring Vaids/Hakims, etc., as persons practising Modern System of Medicine for the purposes of the Drugs Act. (For example, the State of Punjab issued a Notification dated 29th October, 1967 declaring all the Vaids/Hakims, who had been registered under various Ayurvedic and Unani Practitioners Acts as persons practising Modern System of Medicine for the purposes of the Drugs Act). It is to be noted that the purpose of the Drugs and Cosmetics Act, 1945, is to control the storage, sale and supply, etc., of drugs and not to control the practice of medicine. Thus the effect of such notification declaring the Vaids/Hakims as persons practising modern System of Medicine for purposes of the Drugs Act were that such Vaids/Hakims could store, sell and supply allopathic drugs. However, on the basis of such (unnecessary, ill-advised and mischievous) notification, vaids and hakims started practicing modern medicine and prescribing allopathic drugs without any legal bar. However, such legal bar came into effect on 16-6-1964 when section 15(2) of the IMC Act, 1956, was inserted, which prohibited the practice of modern medicine by any person whose name is not entered in the state medical register. The present legal position is that a person who is a vaid or hakim is competent to practice modern allopathic medicine and to prescribe allopathic drugs under the cover of a notification issued under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945.

2— The SC observed that the state laws for the registration of the practitioners of Indian medicine do not permit them to practice allopathic medicine and that the position of medical practitioners of Indian medicine holding degrees in integrated courses is not different in this regard. (It may be mentioned that the Ministry of Health, Government of India, does not recognise anything like integrated medicine, meaning thereby a system of medicine, integrating modern or allopathic medicine with Ayurvedic system, etc. It is true that for some years certain universities, including the University of Delhi, used to offer a course titled as Bachelor of Integrated Medicine and Surgery, BIMS. But these were discontinued long back).

3 — The SC observed that under clause (d) of sub-section (3) of section 17 of the Indian Medicine Central Council Act, 1970, the right to practise modern scientific medicine in all its branches is confined to only such persons who possess any qualification included in the Schedules to 1956 Act. The SC made it clear that In view of this conclusion, it matters little if the practitioners, registered under the1970 Act are given postings in hospitals of allopathic medicine or are involved in various national health programmes.

4 — The SC clarified that the words 'the right to practise any system' included in the privileges conferred under section 17(3)(b) of the Indian Medicine Central Council Act, 1970, upon persons registered under the Act did not mean or include the right to practice the modern or allopathic system of medicine. The court observed—“To ascertain if any State law confers 'the right to practise any system' we have perused Bombay Medical practitioners Act, 1938, Rajasthan Indian Medicine Act, 1953 and Maharashtra Medical Practitioners Act, 1961 which deal with registration of practitioners of Indian Medicine in those States, as also some related Acts. But we could not lay our hands on any provision in the said State Acts under which the right to precise any system of medicine is conferred on practitioners of Indian Medicine registered under those Acts”.

5 — The practitioners of Ayurvedic and Unani systems often claim the right to practice modern medicine taking the plea that they are also taught modern advances in medicine. The hollowness of such plea is obvious from the following observations of the SC—

“However, the claim of those who have been notified by the State Governments under clause (iii) of rule 2(ee) of the Drugs Rules and those who possess degrees in integrated courses to practice allopathic medicine is sought to be supported from the definition of the Indian Medicine in Section 2(e) of 1970, reproduced below:

“(e) "Indian Medicine" means the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.”

Lot of  emphasis is sought to be laid on the words “whether supplemented or not by such modern advances” to show that they indicate modern scientific medicine as under integrated systems various branches of modern scientific medicine have been included in the syllabi. Based on those clarifications, the arguments proceed that persons who registered under the 1970 Act and have done integrated courses, are entitled to practise allopathic medicine. In our view, all that the definition of 'Indian Medicine' and the clarifications issued by the Central Council enable such practitioners of Indian medicine is to make use of the modern advances in various sciences such as Radiology Report, (x-ray), complete blood picture report, lipids report, E.C.G., etc. for purposes of practising in their own system. However, if any State Act recognized the qualification of integrated course as sufficient qualification for registration in the State Medical Register of that State, the prohibition of Section 15(2)(b) will not be attracted”.

SUMMARY OF THE MUKHTIAR CHAND JUDGMENT AS GIVEN BY DELHI HIGH COURT [In para 27 in DELHI MEDICAL ASSOCIATION versus PRINCIPAL SECRETARY (HEALTH) & ORS., W.P.(C) No.7865/2010, decided on 8th April, 2016

http://lobis.nic.in/ddir/dhc/RSE/judgement/09-04-2016/RSE08042016CW78652010.pdf

“27. The counsel for the petitioner as well as the counsel for the respondent No.9 DBCP as aforesaid relied on Dr. Mukhtiar Chand supra. The Supreme Court therein was concerned with (i) declarations made by the State Governments under Clause (iii) of Rule 2(ee) of the Drugs Rules defining "Registered medical practitioners" and under which declaration the Vaids/Hakims were claiming right to prescribe Allopathic drugs covered by the Drugs Act; and, (ii) the claims of Vaids/Hakims who had obtained degrees in integrated courses to practice Allopathic system of medicine. Supreme Court observed that the said questions were of general importance and practical significance because they not only relate to the right to practice medical profession but also the right to life which includes health and well being of a person. We, on a reading of said judgment, cull out the following propositions therefrom.

A. That the MCI Act (which repealed the Indian Medical Council Act, 1933) regulates modern system of medicine; the Indian Medicine Act regulates Indian medicine and the Homoeopathic Act regulates practice of Homoeopathic medicine.

B. That a person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender.

C. The Drugs Act was enacted to regulate import, manufacture, distribution, sale of drugs to curb the evil of adulteration and production of substandard drugs posing a serious threat to the health of the community; at the time of its enactment in 1940 it was not intended to apply to Ayurvedic, Siddha or Unani drugs which were brought into its purview only by Act 13 of 1964. Section 33 which falls in Chapter-IV of Drugs Act empowers Central Government to make Rules for the purpose of giving effect to the provisions of Chapter-IV which deals with manufacture, sale and distribution of drugs. Section 33A says that Chapter-IV shall not, except as provided in the Act, apply to Ayurvedic, Siddha or Unani drugs.

D. That Rule 2(ee) of the Drugs Rules defines a registered medical practitioner as a person (i) holding a qualification granted by an Authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916 or specified in the schedules to the MCI Act; or (ii) registered or eligible for registration in a Medical Register of a State meant for the registration of persons practising the modern scientific system of medicine excluding the Homoeopathic system of medicine; or (iii) registered in a Medical Register other than a Register for registration of Homoeopathic practitioners of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purpose of the Drugs Act or (iv) ..............; or (v) ............ (not relevant).

E. That there is no dispute that categories (i) and (ii) of Rule 2 (ee) of the Drugs Rules relate to practitioner of Allopathic medicine; however the Vaids/Hakims (non-Allopathic doctors) were basing their claim under clause (iii).

F. That vide sub-clause (iii) of Rule 2(ee), a de facto practitioner of modern scientific medicine (Allopathic) and declared so by the State Government is recognised as a registered medical practitioner and is enabled to prescribe drugs covered by the Drugs Act; for the purposes of Clause (iii) of Rule 2(ee) what is required is not the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practising modern scientific system and that he is registered in a medical register of a State (other than a register for registration of Homoeopathic practitioners); the State Governments under Clause (iii) of Rule 2(ee) were entitled to declare the categories of Vaids/Hakims practising modern system of medicine and registered in the State Medical Register to be "Registered medical practitioners" within the meaning of Rule 2(ee) of the Drugs Rules.

G. Drugs can be sold or supplied by a pharmacist or druggist only on the prescription of a "registered medical practitioner" who can also store them for treatment of his patients.

H. The right to practice any profession is no doubt a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India but that right is subject to any law relating to the professional qualifications necessary for practising any profession enacted under Article 19(6); the regulatory measures on the exercise of this right, both with regard to standard of professional qualification and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment; there can be no compromise on professional standards of medical practitioners. I. To ensure professional standards required to practice Allopathic medicine, the MCI Act had been enacted which also deals with re-constitution of the MCI and maintenance of an Indian Medical Register for whole of India.

J. Section 2(f) of the MCI Act defines "medicine" to mean modern scientific medicine in all its branches including surgery and obstetrics but not including veterinary medicine and surgery andSection 2(h) thereof defines "recognised medical qualification" as a medical qualification included in the Schedules to the MCI Act.

K. That Section 15 of the MCI Act lays down that qualifications in the Schedules to the Act are sufficient qualification for enrolment on any State Medical Register. Section 15(2)(b) of the MCI Act prohibits all persons from practicing modern scientific medicine in all its branches in any State except a medical practitioner enrolled on a "State Medical Register". "State Medical Register" is defined in Section 2(k) of the MCI Act to mean a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine.

L. That the State Medical Register under the MCI Act, in contra-distinction to the Indian Medical Register, is maintained by the State Medical Council which is not constituted under the MCI Act but is constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine.

M. That it is thus possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the recognized medical qualification which is a pre- requisite only for being enrolled on the Indian Medical Register but not for registration in a State Medical Register.

N. That holding a recognized medical qualification under the MCI Act cannot be insisted upon for registration in a State Medical Register; however a person registered in a State Medical Register cannot be enrolled on the Indian Medical Register unless possesses recognized medical qualification.

O. So by virtue of such qualifications as prescribed in a State Act and on being registered in a State Medical Register, a person will be entitled to practice allopathic medicine under Section 15(2)(b) of the MCI Act.

P. Section 15(2) of the MCI Act (inserted w.e.f. 16th June, 1964) providing that no person other than a medical practitioner enrolled on a "State Medical Register" shall practice modern scientific medicine in any State obliterates the right of non- allopathic doctors to prescribe drugs by virtue of the declaration issued under the Drugs Rules; however, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments.

Q. The Indian Medicine Act also provides for maintenance of a "State Register of Indian Medicine" and enables all persons who possess qualifications mentioned in Schedules to theIndian Medicine Act to be enrolled in the State Register of Indian Medicine.

R. That a perusal of the Second, Third and Fourth Schedules of the Indian Medicine Act shows that they contain both integrated medicine as well as other qualification; so a holder of degree inintegrated medicine is entitled to be enrolled under Section 17 of the Indian Medicine Act.

S. That by virtue of Section 17(3)(d) of the Indian Medicine Act, the right to practice modern scientific medicine in all its branches is confined to only such persons who possess any qualification included in the Schedules to MCI Act.

T. That all that the definition of Indian Medicine in the Indian Medicine Act, particularly the words "whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time" and the notifications / clarifications of the CCIM thereunder and the imparting of theoretical knowledge of modern scientific medicine and training thereunder to holders of degrees in integrated medicine within the schedules to the Indian Medicine Act do is to enable such practitioners of Indian Medicine to make use of the modern advances in various sciences such as Radiology Report, X- Ray, Complete Blood Picture Report, Lipids report, E.C.G., etc. for purposes of practicing in their own system.

U. That however if any State Act (within the meaning of MCI Act) recognizes the qualification of integrated course as sufficient qualification for registration in the State Medical Register of that State, the prohibition of Section 15(2)(b) will not be attracted.

V. That a harmonious reading of Section 15 of MCI Act and Section 17 of the Indian Medicine Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of the MCI Act. W. That the right to practice modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments.

X. That right to prescribe a drug of a system of medicine is a concomitant of the right to practice that system of medicine; therefore in a broader sense, the right to prescribe drugs of a system of medicine would be synonymous with the right to practice that system of medicine; in that sense, the right to prescribe an allopathic drug cannot be wholly divorced from the claim to practice allopathic medicine.

Y. That thus the benefit of Rule 2(ee)(iii) of the Drugs Rule and of the notifications issued thereunder would be available only in those States where the privilege of such right to practice any system of medicine is conferred by the State law under which practitioners of Indian Medicine are registered in the State. Z. That the position with regard to Medical practitioners of Indian medicine holding degrees in integrated courses is on the same plain inasmuch as if any State Act recognizes their qualification as sufficient for registration in the State Medical register, the prohibition contained in Section 15(2)(b) of the MCI Act will not apply.”

—   M C Gupta

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