Legal opinion regarding use of Allopathy by a qualified practitioners of Ayurveda

To,

Subject : Legal opinion regarding use of Allopathy by a qualified practitioners of Ayurveda.

Dear Madam,

On the basis of documents supplied by you described herein below, I express my opinion based on law for the time being in force :

                              I.            D. O. NO. V.11025/65/2012/MEP.I Dated 29.05.2013 issued by Dr. Vishwas Mehta, Joint Secretary, Government of India. Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi.

                          II.            Gazette No. 27 dated 20.07.1977 issued by Health Department, Government of Bihar.

                      III.            Drugs and Cosmetics Rules, 1945 framed in  exercise of the powers conferred by ¹[sections 6(2), 12, 33 and 33N] of the Drugs and Cosmetics Act, 1940 (XXIII of 1940).

                       IV.            Order dated 06.07.2005 issued by the Hon’ble High Court of Judicature at Patna in the matter of Mohammed Alauddin V/s State of Bihar in the file of CWJC No. 7727 of 2005.

                           V.            Order No. 10A-865/1999/Part –I/ 88 dated 16 09.2011 issued by the Registrar, Government Ayurvedic and Unani Medical Council Bihar.

                       VI.            Order No. 1890/ Purnia dated 16.05.2012 issued by Civil Surgeon cum Chief Medical Officer, Purnia (Bihar).

View of the Parliament:

1.     This information was given by the Minister for Health & Family Welfare, Dr. Anbumani Ramadoss in a written reply to a question in the Rajya Sabha on 20.08.2007.

2.    The matter regarding qualified practitioners of Ayurveda, Unani, Siddha and Homoeopathy systems prescribing allopathic medicines has been examined in depth by the Hon'ble Supreme Court of India in Civil Appeal No.89 of 1987 Dr. Mukhtiar Chand & Others versus State of Punjab & Others reported in AIR 1999 SC 468 = 1998 (7) SCC 579 = JT 1998 (7) SC 78. Representations have been received from time to time on this matter and accordingly Department of AYUSH entrusted the study of the contemporary acts on medical practice in the light of judgement of Hon'ble Supreme Court in 1987 Dr. Mukhtiar Chand & Others versus State of Punjab & Others and other similar judgements. Drugs can be sold and supplied by a Pharmacist or a Druggist only on a prescription of a Registered Medical Practitioner and who can also store them for treatment of patients.

3.    According to Section 2 (ee) of the Drugs and Cosmetics Rules, 1995, 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 practicing the modern scientific system of medicine (excluding the Homoeopathy 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 practicing the modern scientific system of medicine for the purposes of this Act.

Hon'ble Supreme Court upheld the validity of Rule 2 (ee) (iii) as well as the notifications issued by various State Governments thereunder allowing Ayurveda, Siddha, Unani and Homoeopathy practitioners to prescribe allopathic medicines. 

4.    In view of the above judgement, Ayurveda, Siddha, Unani and Homoeopathy practitioners can prescribe allopathic medicines under Rule 2 (ee) (iii) only in those States where they are authorized to do so by a general or special order made by the concerned State Government in that regard. Practitioners of Indian Medicine holding the degrees in integrated courses can also prescribe allopathic medicines if any State act in the State in which they are practicing recognizes their qualification as sufficient for registration in the State Medical Register. 

Supreme Court Judgement :

What is the Supreme Court’s “Dr. Mukhtiar Singh judgment” all about?

ANSWER—

5.    This judgment, cited 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. The account below tries to reproduce the words of the SC as far as possible. The paras below DO NOT correspond to the paras of the judgment.

The basic issue in this case was whether a notification issued under Rule 2(ee) (iii) of the Drugs and Cometics Rules, 1945, was valid.

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;]

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

7.     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”

8.    The court 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.

9.    The controversy in these cases was triggered off by the  issuance of declarations by the state Governments under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 (for short 'the Drugs Rules') which defines "Registered Medical Practitioner".      Under such  declarations,  notified Vaids/Hakims  claim  right  to    prescribe  Allopathic  drugs covered by the Indian Drugs and Cosmetics  Act,  1940      (for short 'the  Drugs Act').  Furthermore, Vaids/Hakims who have obtained degrees  in  integrated  courses  claim  right  to practise allopathic system of medicine.

10.                       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 BK and the Punjab    Ayurvedic and   Unani  Practitioners  Act,  1963  as persons practising modern System of Medicine for purposes of the Drugs Act.            One Dr.    Sarwan Singh  Dardi who was a medical practitioner, registered with the Board of Ayurvedic and  Unani  System  of     Medicines,  Punjab,  and   who     was practising modern  system  of     medicines was served with an order  of  the       District   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 Court in C.W.P.No.  2204 of 1986.     He   claimed  that  he     was  covered  by  the said notification  and  was entitled  to  prescribe   allopathic medicine to  his  patients  and  store such drugs for their treatment (hereinafter referred to  as Dardi's case). A Division Bench of  the  Punjab  &  Haryana  High Court, by judgment dated September  17,      1986,  held  that  the said notification  was  ultra  vires the provisions of sub-clause (iii) of clause (ee) of rule 2 of the Drugs Rules  and        also contrary  on  the  provisions of Indian Medical Council Act, 1956 and accordingly dismissed his writ petition. Writ  petitions was in  the  High     Court  of Punjab and Haryana for a mandamus restraining the authorities concerned from interfering with their  right  to    prescribe  medicines falling  under     the  Drugs  Act  on  the  strength  of        such notifications were also dismissed by the High Court and          the aggrieved  persons  have  filed appeals before us by special leave, claiming  that    they  are  registered  medical practitioners within the meaning of the said notification and are entitled to practise 'modern scientific system of medicine.  

11. On the same subject cases came up before Rajasthan High Court.    The Jodhpur   Branch   of   Indian   Medical Association filed Civil Writ      Petition No.  1777/82 in the Hingh Court.  of Rajasthan seeking a declaration  that rule 2(ee)(iii)   of        the  Drugs        Rules         and   the   Circular No.26(24)M.E.(Group-T)82  issued  by   the   Government    of Rajasthan  on  July  26, 1982, were void and ultra vires the provisions of the Drugs Act and the Indian  Medical  Council Act, 1956.   By judgment dated September 29, 1994 a Division Bench of the Rajasthan High Court held that the said rule was without any legislative competence and consequentially the notification was illegal and void. The correctness of the said judgment has been assailed by the Private Medical Practitioners Association of  India  (which  represents         the beneficiaries of a similar circular issued by the Government of Rajasthan) in  S.L.P.No.   8422 of 1995.  On the Strength of the aforesaid judgemnt of  the  Division  Bench,  another writ petition  filed  by  M/s.   Chandasi Private Medical Practitioners  Sansthan,  a  registered    society,  was      also dismissed.   That judgment was also challenged by filling a special leave Petition.

12.                     The Supreme Court framed the following questions for determining the answers:

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

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

(3)--.Whether   the persons  who  have qualified  the integrated  courses  in Ayurveda  andUnani  from  various universities  are  entitled  to practise  in  and prescribe allopathic medicines.

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

14.                        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"  

15.                        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."

16.                        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.

17.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 anddistribution of     drugs        and  cosmetics, section 33A says that section 33 does not apply to Ayurvedic , Siddha or Unani drugs.

18.                       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.

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

20.                      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).

21.                        The  High  Court  misdirected itself by  looking  to       the  provisions of Sections 6 and 12which 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.

22.                       Now coming to the notifications issued by the  Punjab Government on October 29, 1967 and the Circular issued by the Rajasthan  Government on July 26, 1982, referred to above, it has already been pointed out  that  for    purposes  of  clause (iii) of Rule 2(ee) what is required is not the qualification in  modern scientific system of medicine but a declaration by a  State  Government  that  a  person  is  practising  modern scientific  system  and   that  he  is registered in a medical register of the State (other than a register for registration of Homeopathic practitioner).  A notification can be  faulted with only  if  those  requirements  are          not  satisfied.  The Punjab and Haryana  High  Court          proceeded  with  an  assumed intention  of  the rule-making authority that it could not be within         its   conception   to    bring          Vaids/Hakims,   the practitioners of Ayurveda (Indian System of Medicine), within the  purview  of  the  said expression and that it could have only envisaged registration of medical practitioner of modern scientific system holding qualifications mentioned in clauses (i) and eligible for registration under clause   (ii)  and  on that  basis  held  thesaid 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.

23.                       Points of determination no. 2 and 3 have some over lapping so it  will  be convenient to  discuss        them together.  The right to practice any profession          or  to          carry  on  any     occupation trade  or business  in  no  doubt          a fundamental right guaranteed under Article 19(1)(g) of the Constitution  of  India.    But      that right  is  subject to any law relating to the professional or technical  qualifications   necessary        for   practsing      any profession or carrying on any occupation or trade or business enacted under  clause  6  of  Article  19.    The  regulatory measures on the exercise of this right both  with  regard  to standard  of  professional  qualifications  and          professional conduct have been applied keeping in view not only the          right of  the        medical practitioners but also the right to life and proper health care  of          persons     who  need  medial  care  and treatment.   There  can,  therefore,  be no compromise on the professional standards of medical practitioners.  With regard to  ensuring  professional  standards  required    to  practice 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.

24.                       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.   

25.                       The 1956 Act provides for the recognition  of       medical  qualifications  granted  by Universities  or  medical  institutions         in and outside India which are specified in the Schedules.  Section     15  which  is relevant,  was in  the following terms when the said Act was passed in 1956 :

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

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

27.                       By Act        24 of 1964, Section 15 of the 1956 Act was modified  as already given above.

28.                      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     under       Section  15(1).   

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

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

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

31.                        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 :

(i)                         "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."

32.                       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.

33.                       If any State law relating to registration of Medical       practitioners          permits     practice  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.

34.                       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 practice 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.

35.                       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.

36.                       To ascertain if any State law confers 'the right to  practice 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.

37.                       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.”

33.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 Mecicine'  and        the  clarifications  issued  by       the  Central Council enable such practitioners of Indian  medicine  is  to make  use  of the modern advances in various sciences such as Radiology Report, (x-ray),  complete  blood  picture  report, lipids        report,       E.C.G.,  etc.       for purposes of practising in their own system. However, if any State        Act recognized the qualification of    integrated           course as   sufficient qualification for registration in the State Medical  Register of  that  State, the prohibition of Section 15(2)(b) will not be attracted.

34.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        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.

35.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 practice 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 practice that system of medicine.  In that sense, the right to prescribe allopathic drug cannot be wholly divorced        from the claim to practice allopathic medicine.

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

Bihar senario

37. The Bihar Development of Ayurvedic and Unani Systems of Medicine Act, 1951 received the assent of the President on 12.09.1951 and the assent was first published in the Bihar Gazette, Extraordinary, dated 17.10.1951. This Act was enacted to provide for the development of the ayurvedic and Unani systems of medicine, to regulate their teaching and practice, and to control the sale of indigenous medicinal herbs and drugs in the State of Bihar. In exercise of powers under Section 3, the State Government shall, by notification, constitute a Council to be called the Bihar State Council of Ayurvedic and Unani Medicines, which shall consist of a President and the Members mentioned in clauses (a) to (n) of Section 3(1). Under Section 17 of this Act, the Council shall establish a State Faculty of Ayurvedic and Unani Medicines for the purposes of the Act which shall consist of a Chairman and the Members enumerated in clauses (a) to (d) of Section 17(1). Under clause (d) of sub-section (2) of Section 17, it shall be the duty of the Faculty to recognize educational or instructional institutions of the Ayurvedic and Unani systems of medicine for purposes of affiliation. Under clause (b) of Section 17(2), the Faculty is authorized to hold examination and grant certificates to, and confer degrees or diplomas on, persons who shall have pursued a course of study in the institutions affiliated to the Faculty. Section 37 of this Act authorizes the Council to establish educational institutions, prescribe courses of study, etc. subject to the rules as may be prescribed by the State Government in this behalf. Section 37 clothes the Council with power to establish its own educational or instructional institutions for the purpose of conducting courses of Ayurvedic and Unani systems of medicine. Under Section 54, the Council is authorized to make regulations subject to the provisions of the Act and the rules made by the State Government. The Council constituted by the State Government under the 1951 Act shall establish a State Faculty under Section 17 which shall have the authority to recognize educational or instructional institutions of Ayurvedic and Unani systems of medicine, to conduct examinations of the persons studying in such affiliated institutions, and to grant certificates and confer degrees or diplomas.

38.                      Under Section 54 of the 1951 Act, the Council has framed regulations called the Bihar Development of Ayurvedic and Unani Systems of Medicines Regulations, 1959. Regulation 16 thereof provides for courses of study for the Degree (Graduate of Ayurvedic Medicine and Surgery) (GAMS). Thus, the Faculty established by the Council under the 1951 Act has been authorized to recognize the educational institutions or instructional institutions of Ayurvedic and Unani Systems of Medicine and affiliate them to the Faculty. The Faculty is also authorized to conduct examinations and confer degree of GAMS.

39.The Indian Medicine Central Council Act, 1970 (Central Act) provides for constitution of a Central Council of Indian Medicine (CCIM) and the maintenance of a Central Register of Indian Medicine and for matters connected therewith. This Act was enacted by the Parliament and came into force on 21.12.1970. Introduction to this Act reads as under:

“To consider problems relating to the Indian system of medicine and Homoeopathy a number of Committees were appointed by the Government of India, which had recommended that a statutory Central Council on the lines of the Medicinal Council of India for modern system of medicine should be established for the proper development of these systems of medicine (Ayurveda, Siddha and Unani). In June, 1966 the Central Council of Health at its 13th meeting, while discussing the policy on Ayurvedic education, recommended the setting up of a Central Council for Indian system of medicine to lay down and regulate standards of education and examinations, qualifications and practice in these systems. On the basis of the above recommendations the Indian Medicine Central Council Bill was introduced in the Parliament”.

40.                      Sections 13A, 13B and 13C with their sub-sections have been substituted by the Indian Medicine Central Council (Amendment) Act, 2003 (No. 58 of 2003) w.e.f. 7.11.2003, which prescribe for the permission for establishment of new medical colleges, new courses of study, etc.; non- recognition of medical qualifications in certain cases; and time for seeking permission of the Central Government for certain existing or new medical colleges. We shall deal with these Sections in detail when we take up the submissions of the counsel of the effect of these Sections on the GAMS degree conferred on the students prior to coming into force of Amending Act 58 of 2003. Section 14 falling in Chapter III of the 1970 Central Act provides for recognition of the medical qualifications granted by any university, board or other medical institution in India which are included in the Second Schedule. The Second Schedule provides for the recognized medical qualifications, i.e. degrees/diplomas, awarded by the States/Boards/Faculties/Universities before the constitution of the Central Council of Indian Medicine. Under the 1970 Act, the CCIM is competent to prescribe the minimum standard of education including curriculam and syllabi as well as other requirements like hospital, library, students hostel, staff for college, staff for hospital, library, herbal garden, requirements of various departments of colleges, etc. The Second Schedule prescribes the institutions/colleges and the medical qualifications which are recognized under the Act for the different States.

41. The 1951 State Act is consistent with the 1970 Central Act in regard to granting of the GAMS degree, as the degree granted under the 1951 State Act is still recognized under the 1970 Central Act. The 1951 State Act and the 1970 Central Act are complementary to each other. The Faculty comes under the definition of `medical institution under Section 2(f) of the 1970 Central Act and GAMS degree awarded by the Faculty is a recognised medical qualification under Section 14 of the 1970 Central Act. The Second Schedule of the 1970 Act grants authority to the Faculty to grant GAMS degree.

42.Whether with the introduction of the Bihar Indigenous Medical Educational Institution (Regulation and Control) Act, 1982, the students who have studied in the colleges which were not recognized under the said 1982 Act could be conferred with GAMS degree by the Faculty, and if such degrees are conferred what shall be the fate of the degrees conferred on such students? the effect of the Indian Medicine Central Council (Amendment) Act, 2003, particularly Sections 13A, 13B and 13C which have been substituted by way of amendment in the 1970 Act and came into force on 7.11.2003, on the degrees conferred on the students who have studied in the colleges which have not sought or have not been given permission as required under Section 13C of the 1970 Act to open the college or continue the college, by the Central Government. the colleges which are affiliated to the Faculty under the 1951 Act do not require any approval from the State Government to start or to continue the educational institution or to run the courses of study in indigenous system of medicine leading to the degree, diploma etc., as included in Second Schedule of the 1970 Act, as the 1951 Act is a self-contained code. Whereas, it is the submission of the learned counsel for the respondents that after the Ordinance of 1981 and the Act of 1982 came into force, all colleges which are affiliated to the Faculty or which have to be opened after the Ordinance of 1981 and the Act of 1982 came into force, require permission of the State Government for opening or continuing the colleges or institution running the colleges, imparting education in indigenous system of medicine. If any college or the educational institution running the college continues the educational facility, imparting education in indigenous system of medicine leading to the degree, diploma etc., as included in the Act of 1982 without permission, would run the risk to their students of not being conferred with a recognized degree and penalties provided under the 1982 Act. after the introduction of 1982 Act the power of the Faculty to grant affiliation is circumscribed by the requirement of the State Government s permission to open the college imparting education in Ayurvedic and Unani systems of medicine.

43.Under the 1951 Act, Section 17 provides for the establishment of the Faculty. Sub-section (2) of Section 17 provides : it shall be the duty of the Faculty to prescribe the course of study and curricula for general instructions, or special refresher courses, in institutions affiliated to the Faculty. By virtue of clause (d) of sub-section (2) of Section 17, the Faculty is to recognize educational or instructional institutions of the Ayurvedic and Unani systems of medicine for purposes of affiliation. The manner in which the affiliation is to be given is provided in Chapter II of the 1959 Regulations whereunder an application for affiliation of an institution shall be made to the Registrar, State Council of Ayurvedic and Unani Medicines, Bihar. After the application is received for affiliation, the Faculty will scrutinize the application and if it is satisfied on the basis of the material supplied in the application or otherwise that the institution proposed to be affiliated has nearly fulfilled or is likely to fulfill all the conditions imposed by the Council established under the Act and is likely to run efficiently, it would depute an Inspector to visit the institution, make inquiry and report back to the Faculty. After the completion of the inquiry and submission of the inspection report, the Faculty shall give recognition to the institution either permanently or provisionally for a limited period or may reject it. The decision of the Faculty shall be communicated to the institution concerned as soon as possible. It is clear from the aforesaid provisions that the Faculty under the 1951 Act has been empowered with the power to affiliate institutions which are imparting education in Ayurvedic and Unani systems of medicine.

44.The Bihar Indigenous Medical Educational Institution (Regulation and Control) Ordinance, 1981 which provides for regulation and control of educational institutions of indigenous system of medicine in the State of Bihar was promulgated on 16th November, 1981. Preamble to the Ordinance reads as under :-

“Whereas, the Legislature of the State of Bihar is not in session ;

And, whereas, the Governor of Bihar is satisfied that inspite of repeated warnings from Government through Press Notes and Notices unregulated and indiscriminate opening of Indigenous Medical Educational Institutions in this State by persons or bodies registered under the Societies Registration Act, 1960 or otherwise without providing for adequate teaching facilities is hampering the cause of Indigenous Medical Education and is highly detrimental to the interest of students, admitted to such institutions after charging heavy capitation fee or donation and as such the circumstances exist which render it necessary to prescribe for regulation and control on the opening of College or Institutions of Indigenous System of Medicine in the State of Bihar”;

45.The Ordinance was later replaced by introduction of the Act, viz., the Bihar Indigneous Medical Educational Institution (Regulation and Control) Act, 1981 (Act 20 of 1982) which came into force on 21st January, 1982. Section 3 of the Act requires the Governing Body or Organizing Committee or any body or institution intending to start medical course of study of indigenous system of medicine, along with requisite information regarding the study, to apply to the State Government in the Health Department. Section 5 contemplates that on receipt of an application for permission to open the medical course of study of indigenous system of medicine, the State Government would cause the inspection of the body, agency, college or institution by the Central Council of Indian Medicine (CCIM) or Inspector appointed by the State Government to see whether the conditions laid down by the CCIM constituted under Section 3 of the 1970 Act are fulfilled or not. Section 6 further provides that on completion of the inspection the State Government in the Health Department will seek permission of the Government of India and the CCIM of India for granting permission to the starting of the course of medical studies in indigenous system of medicine by the applicant. Section 7 postulates that to all private medical colleges and medical institutions in indigenous system of medicine, preparing or intending to prepare students for study in indigenous system of medicine leading to degree, diploma, etc. and which have not been permanently affiliated to any University in the State of Bihar, the provisions of the 1982 Act shall apply. The 1982 Act has been made applicable to all private medical colleges and medical institutions which are not permanently affiliated to any University in the State of Bihar. By virtue of Section 9, the institutions which have been functioning without prior permission or approval of the State Government are required to apply for such permission within a period of one month from the date of coming into force of the 1982 Act. This Section prohibits admission of the students in such institutions till the grant of permission by the Government. It also provides that in case the application is not moved within the stipulated period or the State Government refuses permission, they will be deemed to have been established in contravention of the provisions of the Act. Section 10 provides for penalty and a person contravening any of the provisions of the Act is made liable for punishment with a fine which may extend to Rs. 10,000/- and imprisonment for a term which may extend upto three years. In case of continuing contravention, such person shall be liable to pay a further fine which may extend to Rs.1,000/- per day after the date of the first conviction for the period during which he is proved to have persisted in such contravention. The offence is made non- bailable and cognizable. As per Section 11, if the application moved for permission to start medical course of study of indigenous system of medicine either under Section 3 or Section 9 is refused as the institution or college is not found eligible or does not qualify for permission, it is incumbent on the organizer of such institution to close it down within a period of three months of refusal of permission. Section 15 gives authority to the State Government to seize the accounts of an institution contravening the provisions of the Act. From these provisions, it is apparent that after introduction of the 1981 Ordinance and the 1982 Act, the Governing Body or the Organizing Committee or any body or institution intending to start any course of study in indigenous system of medicine is required to seek permission of the State Government to open a private medical college or medical institution for admitting the students to be conferred with a degree, diploma, etc., as included in the Second Schedule of the 1970 Act. It is only the Governing Body or the Organising Committee or any body or institution which has been permanently affiliated to any University in the State of Bihar is exempted from the provisions of the 1981 Ordinance or the 1982 Act. Institutions already imparting education in indigenous system of medicine are required to take permission after coming into force of the 1982 Act.

46.The Act provides for imposition of the fine and imprisonment for any person who contravenes any of the provisions of the 1981 Ordinance or the 1982 Act. If the permission is refused, the institution will be closed down. Section 13 of the Act further authorizes the State Government to authorize any officer to enter into the premises of the institution contravening the provisions of the 1981 Ordinance or the 1982 Act for the purposes of inspection and carrying into effect the provisions of the Ordinance or the Act. Such officer may be empowered to close down the institution and to lock and seal it. The Act also provides provision for seizure of the accounts by the State Government of an institution contravening the provisions of the Ordinance or the Act. The Act arms the State Government with various powers including the penal powers. Although the colleges were opened in the year 1992 without the authority or the permission of the State Government as required under the Act, no steps have been taken by the State of Bihar, and the students admitted in the two institutions which were affiliated with the Faculty were conferred with the GAMS Degree. After reading the provisions of the Act, it is apparent to us that the 1982 Act is supplementary to the 1951 Act. The 1951 Act although provides for the inspection of the institutions which have to be affiliated to the Faculty, does not lay down that the conditions laid down by the CCIM are to be followed and adhered to. That has been provided under the 1982 Act. So the colleges or the institutions which want to impart education in the indigenous system of medicine have not only to follow the conditions laid down by the Faculty or the Council under the 1951 Act, but also under the 1982 Act. The college or the institution after the Act came into force cannot continue without the permission of the State Government as contemplated in the 1982 Act.

47. What shall happen to the degrees given to the students who studied in the colleges which have been affiliated with the Faculty but without permission under the 1982 Act? We do not find any provision in the 1982 Act which takes away the degree already granted to the students conferred by the Faculty, recognized under the 1951 Act, and is being accepted to be a recognized degree under the 1970 Act. Therefore, by virtue of introduction of the 1982 Act, it cannot be said that the degrees conferred on the students who have studied in the colleges which have not been granted permission by the State Government as required under the 1982 Act, will be ipso facto illegal and could not be given effect to. However, any body, agency, college or institution which has not sought permission from the State Government would not be granted affiliation by the Faculty under the 1951 Act and the State Government shall take appropriate steps under the 1982 Act if any body, agency, college or institution is/are functioning without the permission of the State Government as required under the 1982 Act.

48.                      after the coming into force of the Indian Medicine Central Council (Amendment) Act, 2003 (for short “the Amending Act”) on 7th November, 2003, if any medical college established on or before the commencement of the Amending Act does not seek permission of the Central Government within the period of three years from the said commencement, the medical qualification granted to any student of such medical college shall not be deemed to be a recognized medical qualification for the purposes of the 1970 Act. two colleges from where the students were educated having not sought permission from the Central Government under the 1970 Act, the GAMS degree conferred on them shall not be a recognized medical qualification for the purposes of the 1970 Act, as a result whereof they are not eligible for admission for higher course of study or for employment on the basis of the GAMS degree conferred on them which is not a recognized medical qualification. For this proposition, the provisions of Sections 13A, 13B and 13C which have been introduced by Amending Act of 2003. For a better understanding of the contentions, the relevant portions of the Sections are reproduced hereunder:

“13A. Permission for establishment of new medical college, new course of study, etc.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--

                                                             i.      no person shall establish a medical college; or

                                                          ii.      no medical college shall--

open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; orincrease its admission capacity in any cour se of study or training including a post-graduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.--For the purposes of this section, "person" includes any University or a trust, but does not include the Central Government.

Explanation 2.--For the purposes of this section, "admission capacity", in relation to any course of study or training, including post-graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.

xxx xxx xxx 13B. Non-recognition of medical qualifications in certain cases.--(1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training including a post-graduate course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this Act.

13C. Time for seeking permission for certain existing medical colleges.-- (1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of section 13A.

(2) If any person or medical college, as the case may be, fails to seek permission under sub- section (1), the provisions of section 13B shall apply, so far as may be, as if permission of the Central Government under section 13A has been refused”.

49.For the purposes of the 1970 Act, `Indian medicine is a system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb. Section 2(ea) of the 1970 Act defines `medical college to mean a college of Indian medicine where a person undergoes a course of study or training which will qualify him for the award of a recognized medical qualification. Section 13A(1) prohibits any person to establish a medical college; and a medical college to open a new or higher course of study or training including a post-graduate course of study or training, which would enable the students of that medical college for the award of any recognised medical qualification or to increase its admission capacity except with the previous permission of the Central Government obtained in accordance with the provisions of Section 13A. Sub-sections (2), (3), (4), (5), (6), (7), (8) and (9) of Section 13A lay down the manner in which the Central Government is to be approached for establishment of a new medical college or for opening of a new higher course of study or increasing admission capacity and how it would be dealt with. Section 13B postulates that where any medical college is established or an established medical college opens a new higher course of study or training or where any medical college increases its admission capacity in any course of study or training without the permission of the Central Government, the medical qualification granted to any student of such medical college or the higher course of study or training or admission in the increased capacity in any course of study, would not be a recognized medical qualification for the purposes of the Act. Section 13C, however, provides a breathing time to the medical colleges which have been established on or before the commencement of the Amending Act of 2003 without the permission of the Central Government to get such permission within a period of three years from the commencement of the Act. Therefore, the colleges or the institutions which have not obtained the permission of the Central Government may do so within a period of three years from the commencement of the Act to save the medical qualification conferred on the students of such medical colleges from the rigour of Section 13B of the 1970 Act. However, as per sub-section (2) of Section 13C, if any person or medical college fails to seek permission within three years of commencement of the Act, qualification granted to any student of such medical institution shall not be a recognised medical qualification and it shall be deemed that permission to open or start a new course or increase strength of students was refused by the Central Government. Medical colleges opened on or before the coming into force of the Amending Act of 2003 are necessarily required to take permission within three years to save the recognized medical qualification of the students. On their failure, the medical qualification conferred on the students shall come to naught. Under Section 13A, a person who establishes a medical college or a medical college opens a new higher course of study or increases the admission capacity is required to move an application for permission of the Central Government. For obtaining permission as required under Section 13A, every person or medical college is required to submit a scheme in such form with requisite fee, containing such particulars as provided under sub- section (3) of Section 13A. The Central Government on receipt of such application may require the applicant to submit such other particulars as may be considered necessary. The Central Government after considering the scheme and recommendations of the Central Council and after obtaining such other particulars as felt necessary, may approve the scheme with such conditions which are considered necessary. The Central Government may also disapprove the scheme. Sub-section (6) of Section 13A provides that where within a period of one year from the date of submission of scheme to the Central Government, no order is communicated by the Central Government to a person or medical college, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted. From the aforesaid provisions, it is apparent that an application seeking permission for opening a medical college has to be moved by a person which also includes the university or a trust or a medical college or those which are already running the medical college when the Amending Act came into force. Section 13A nowhere provides that the students who have studied in the medical colleges would be eligible to seek permission of the Central Government under that Section. Section 13A or Section 13B or Section 13C nowhere contemplates moving of an application by the students to take steps under Section 13A. In such a situation, the question arises what shall happen to the degrees conferred on the students who have studied in the medical colleges established prior to the commencement of the Amending Act where the Governing Body or Organising Committee or any body or institution does not take any step for seeking permission of the Central Government and the period prescribed under Section 13C of three years has expired or where the institution has been closed down immediately after the commencement of the Amending Act of 2003 and, therefore, no body is interested in seeking permission of the Central Government.

50.                      The provisions of Sections 13A, 13B and 13C of the 1970 Act as introduced by the Amending Act of 2003, if given retrospective operation, the medical qualification acquired from the study in the medical colleges which have been opened prior to the commencement of the Amending Act of 2003 and conferred medical qualification on the students who studied in such medical colleges, the degrees so conferred in the absence of the permission of the Central Government would be non est though there is no fault on the part of the students who have studied in the institutions which are recognized and affiliated to the Faculty under the 1951 Act.

Our Opinion based on material available made before us

51. Directions issued by the Supreme Court in Civil Appeal No. 5324 of 2007 Rajasthan Pradesh V.S. Sardashahar & anr vs. Union of India & ors and other connected Civil Appeals decided on June 1, 2010. The Supreme Court, after considering various judgments including the judgment in Dr. Mukhtiar Chand & others vs. State of Punjab and others AIR 1999 SC 468, held in paragraphs 40 and 41 as follows:-

"40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor's Assn. Mumbai Vs. State of Maharashtra & Anr. decided on 27.2.2009, this Court considered the issue involved herein at length and came to the conclusion as under:- 
"So far as the claim that once the name is included in the register of a particular State is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act. The right to practice is restricted in the sense that only if the name finds place in the Central Register then the question of practicing in any part of the country arises. The conditions under Section 23 of the Central Act are cumulative. Since the appellants undisputedly do not possess recognized medical qualifications as defined in Section 2(1)(h) their names cannot be included in the Central Register. As a consequence, they cannot practice in any part of India in terms of Section 29 because of non-inclusion of their names in the Central Register. Section 17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating to Central Register. Section 17(1) relates to the register for the State. In any event, it is for the State to see that there is need for having qualification in terms of Second and fourth Schedule. The claim of the appellants is that they have a right to practice in any part of the country. In terms of Article 19(6) of the Constitution, reasonable restriction can always be put on the exercise of right under Article 19(g)." 

41. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II , III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence." 

52.The legal position as explained by the Supreme Court is that nless a person possesses the qualification as prescribed in Schedule II, III and IV of the Indian Medicine Central Council Act, 1970, he cannot claim any right to practice and mere registration is of no consequence. 

53.Central Council of Indian Medicine (CCIM) is a statutory body under Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), Ministry of Health and Family Welfare, Government of India, set up in 1971 under the Indian Medicine Central Council Act, (Act 48) which was passed in 1970. It is one of the Professional councils under University Grants Commission (UGC) to monitor higher education in Indian systems of medicine, including Ayurveda, Siddha and Unani.

54.It is true that in all the aforesaid Systems of Medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous System, the Cardio-Vascular System, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, Emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being. 

55.But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all Systems of Medicines and the students belonging to different Systems of Medicines may be taught physiology and Anatomy together, but so far as the study of drugs is concerned, the pharmacology of all systems is entirely different.

56.An ailment, if it is not surgical, is treated by medicines or drugs. Typhoid Fever, for example, can be treated not only under Allopathic System of medicine, but also under the Ayurvedic, Unani and Homoeopathic Systems of Medicine by drugs prepared and manufactured according to their own formulate and pharmacopoeia . Therefore, a person having studied one particular System of Medicine cannot possibly claim deep and complete knowledge about the drugs of the other System of Medicine.
The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (Doctor) having studied that System of Medicine. 

57. Since the law, under which medical practitioner was registered as a Medical Practitioner, required him to practice in AYRUVEDIC ONLY, She is under a statutory duty not to enter the field of any other System of Medicine as, admittedly, she was not qualified in the other system, Allopathy, to be precise. She trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by the Apex Court in Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole reported in  AIR 1969 SC128. 

58.                      "Similia Similibus Curantur" (Like Cures Like) is the basis of a system of therapeutics known popularly as Homoeopathy. It is based on the premise that most effective way to treat disease is to use drugs or other agents that produce the symptoms of the disease in healthy persons. This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th Cantury that this theory was tested and popularised by German Physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years test study of scores of drugs on himself and others. Ultimately, in 1796, he published his findings in a leading Medical journal under the caption "On a New Principle for Ascertaining the Curative Power of Drugs which set in motion a process of continued research in all directions including its Pharmacology with the result that Homoeopathy is taught today as a positive science in various Medical Colleges all over the country.

59.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. 

60.                      As per the said judgement (Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole reported in  AIR 1969 SC128) right to practice in particular system of medicine is dependent upon registration which is permissible only if qualification is there, and that too, if recognised qualification is possessed by a person in that system. Apex Court further made it clear that merely because the subject of Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. 

61. Thereafter once again before the Apex Court in the case of Dr. Mukhtiar Chand and others Vs. State of Punjab and others reported in (1998) 7 SCC 579, issue was raised as to whether an incumbent who is engaged in medical practice in Indian medicines can he be permitted to practise in modern medicine based on the provisions of Drugs and Cosmetics Rules 1945 vis-a vis the provisions of 1956 Act and 1970 Act. The answer has been in negative as follows: 

"However, the claim of those who have been notified by State Government under clause (iii) of Rule 2(ee) of the Drugs Rues and those who possess degrees in integrated courses to practice allopathic medicine is sought to be supported form the definition of Indian medicine is Sence 2(e) of the 1970 Act, referred to above , meaning the system of Indian medicine commonly known as Ash tang Ayurvedic, Sridhar or USANi Tabb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time. A lot of emphasis is laid on the words italicized to show that they indicate modern scientific medicine have been included in the syllabi. A degree-holder in integrated courses is imparted not only the therorticalknowledge of modern scenic medicine but also training there under, is the claim. We shall examine the notifications issued by the Central Council to ascertain the import of those words. In its resolution dated 11-03-1987. The Central Council elucidated the concept of "modern advances" as follows;
"This meeting of the Central Council hereby unanimously resolved that in clause (e) of sub-section (1) of of Section 2 of the 1970 Act of the IMCC Act, ''the modern advances;, the drug had made advances under the various branches of modern scientific system of medicine, clinical, non-clinical biosciences, also technological innovations made from time to time and declare that the courses and curriculum conducted and recognized by the CCIM are supplemented by such modern advances."
On 30-10-1996, a clarificatiory notification was issued, which reads ads under: 

"As per proven under Section 2(1) of the Indian Medicine Central Council Act, 1970, hereby the Central Council of Indian Medicine notifies that "institutionally qualified practitioners of Indian system of medicine(Ayurvedic, Sridhar and Unani) are eligible to practice Indian system of medicine and modern medicine including surgery, gynecology and obstetrics based on their training and teaching which are included in the syllabi of courses of ISM prescribed by the Central Council of Indian Medicine after approval of the Government of India.
The meaning of the word "modern medicine" (advances) means advances made in various branches of modern scientific medicine, clinical, non-clinical biosciences, also technological innovations made from time to tome and notify that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented by such modern advances"
Based on those clarifications, the arguments proceed that persons who registered under the 1970 Act and have done integrated courses, are entitled to practice 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 id to make use of the modern advances in various sciences such as radiology report, (X-ray), complete blood picture report, lipids report, ECG, etc. for purposes of practicing in their own system. However, it any State 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.

62.         A harmonious reading of Section 15 of the 1956 Act and Section 17 of the 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or the 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 1956 Act.

62.The provisions of Indian Medicine Central Council Act, 1970 under the scheme of things provided for show that a person holding a qualification recognised by the aforesaid Act in the system of Indian medicine commonly known as Ashtang. Ayurveda, Siddha or Unani Tibb is entitled to practise only in the discipline in which he has acquired the qualification. The Act does not authorise him to practice in Allopathy system of medicine. The right to practice modern scientific medicine or Indian system of Medicine can not be based on the provisions of Drug Rules and for practising modern medicine, one has to have the qualifications provided for under 1956 Act, alongwith enrolment on State Medical Register. 

63.    Judgment of the Apex Court, in the case, State of Haryana vs. Phool Singh, 1998-Laws (SC)-7-81, decided on 20.07.1998 wherein Apex Court has held as follows: 

"(1) For the last few days we have heard a batch of Civil matters in which sub-clause (iii), clause (ee) of Rule 2 of the The Drug and Cosmetics Rules 1945 has been the subject matter of debate in its widest spectrum. Prima facie conclusions drawn therefrom make us feel that the judgment of the High Court cannot be faulted with. The respondent does come within the definition of a registered medical practitioner entitled to keep allopathic medicines by virtue of his degree and registration in the state of Bihar. We thus find nothing to interfere in this appeal. The appeal is therefore dismissed." 

63.As lines were repeatedly being crossed by incumbents, who were not authorised to practice allopathic branch of medicine, on 25.04.2000 the Apex Court in the case of D.K. Joshi Vs. State of U.P. reported in 2000 (5) SCC 80 came heavily by issuing following directions: 

(i) All district Magistrates and the Chief Medical officers of the State shall be directed to identify, within a time limit to be fixed by the Secretary, all unqualified/ unregistered medical practitioners and to initiate legal actions against these persons immediately;

(ii) Direct all District Magistrates and the Chief Medical Officers to monitor all legal proceedings initiated against such persons; 

(iii) The Secretary, Health and Family Welfare Department shall give due publicity of the names of such unqualified/ unregistered medical practitioners so that people do not approach such persons for medical treatment. 

(iv) The Secretary, Health and Family Welfare Department Shall monitor the action taken by all District Magistrates and all Chief Medical Officers of the State and issue necessary directions from time to time to these officers so that such unauthorized persons cannot pursue their medical profession in the State 

64.    The Apex Court also had an occasion to consider whether the persons holding degrees in Indian Medicines such as Ashang, Ayurved, Siddha, Unani Tibb are authorized to practice Allopathic system of medicines in the case of Dr. Mehboob Alam vs. State of U.P. and Ors. (06.09.2001) W.P.(Cr.) 5896 of 2000 reported in [(2001) 2 JIC 774 (All)] and after analysis of provisions of Indian Medical Council Act, 1956 took the view that the medicine means modern scientific medicine for all its branches and includes surgery, and same is entirely different from the Indian Medicine and only a person who possess the qualification enumerated in the first schedule of this order which have been recognized and entitled to be enrolled on any State register, can only practice. A person holding qualification recognised under 1970 Act, does not authorise him to practice Allopathy system of medicine.

64.    The field of practice thus stands demarcated i.e. the doctors enrolled in their branch of medicine should not be allowed to practice in any other branch of medicine of which he has not acquired knowledge or has little knowledge. Under the scheme of things provided for, there is mutual exclusion i.e. one is not allowed to practice in any other branch of medicine of which he has not acquired knowledge. 

64.Recently, the Apex Court in the case of Bhanwar Kanwar Vs. R.K. Gupta and another reported in (2013) 4 SCC 252 has taken the view that wherein unauthorized medical treatment is administered, same is unfair trade practice and administering allopathic medicine by person who is qualified in Ayurvedic medicine cannot be approved of. Apex Court in the facts of case, enhanced the compensation amount from Rs.5 lacs to Rs. 15 lacs. In the said judgment benefit has been sought to be taken of the Government Order dated 24.02.2003. Qua the same, Apex Court has mentioned that in connection with some cases, the High Court Allahabad has issued direction to take action against the quacks who are practising Allopathic medicine but not registered with Medical Council. In order to put restrain from practising modern medicine two further Government Orders have been issued by the State Government on 04.03.2008 and 08.06.2012 wherein State Government has clearly proceeded to issue guidelines mentioning therein that any incumbent who is authorized to practice under Indian Medicine Central Council Act, 1970 is not at all entitled and authorized to prescribe medicines under the Indian Medical Council Act, 1956. Said Government Orders still hold the field and same are in consonance with the repeated view taken by this Court and by the Apex Court that an incumbent who has obtained degree under 1970 Act cannot be permitted to prescribe modern medicine as provided for under 1956 Act.
Under the scheme of things provided for it is clear and categorical that the definition as has been provided for under Rule 2(ee) of the Drugs and Cosmetics Rules 1945 will not at all come to the rescue and reprieve of the petitioner. Said definition has been used in different context and same does not authorize incumbent having qualification under the Indian Medicine Central Council Act, 1970 to start prescribing medicine which the incumbents registered under Indian Medical Council Act, 1956 only can administer. 

Final conclusion

65.medical practitioner  cannot be permitted to prescribe allopathic/modern medicine as is provided for under Indian Medical Council Act, 1956, by any means, as a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine, and specially when right to health and medical care is fundamental right under Article 21 read with Articles 39(c), 41 and 43 of Constitution, as expressed by Apex Court, in the case of Consumer Education and Research Centre Vs. Union of India, AIR 1995 SC 922, and by further providing that right to life includes protection of health and strength and the minimum requirement to enable the persons to live with dignity. She will have to practice in his own branch, and it would be a extremely grave situation, to allow her to treat and prescribe a sick incumbent with allopathic medicine. The transgression into other branches of medicine as has been prayed for is not permissible, as same would tantamount to quackery and exposing her to cancellation of registration and prosecution. She cannot take any advantage of any of the circular/ notifications issued by the Government of Bihar in view of the Judgment of Apex Court in the case of Bhanwar Kanwar Vs. R.K. Gupta and another reported in (2013) 4 SCC 252.

This legal opinion is purely based on the law laid down by appropriate Courts from time to time and may not be used before any Court of Law.

हिमाद्रि तुंग शृंग से प्रबुद्ध शुद्ध भारती स्वयंप्रभा समुज्ज्वला, स्वतंत्रता पुकारती अमर्त्य वीर पुत्र हो, दृढ़ प्रतिज्ञ सोच लो प्रशस्त पुण्य पंथ है, बढ़े चलो-बढ़े चलो...

हिमाद्रि तुंग शृंग से प्रबुद्ध शुद्ध भारती
स्वयंप्रभा समुज्ज्वला, स्वतंत्रता पुकारती
अमर्त्य वीर पुत्र हो, दृढ़ प्रतिज्ञ सोच लो
प्रशस्त पुण्य पंथ है, बढ़े चलो-बढ़े चलो...

जश्न ए चरागा के मुक़द्दस मौके पर शमीम ए क़ल्ब के साथ दिली मुबारक़बाद कबूल फ़रमाए। झिलमिलाते हुए चराग-इ-मुतबर्रिक़ की तज़ल्ली से आपके दौलतखाने का गोशा गोशा ज़ियाबार हो। दिपावाली की पहली मौज ए नसीम के साथ आपका दामन मुहब्बत की खुशबू के अहसास से मालामाल हो। तमाम मुबारका

जश्न ए चरागा के मुक़द्दस मौके पर शमीम ए क़ल्ब के साथ दिली मुबारक़बाद कबूल फ़रमाए। झिलमिलाते हुए चराग-इ-मुतबर्रिक़ की तज़ल्ली से आपके दौलतखाने का गोशा गोशा ज़ियाबार हो। दिपावाली की पहली मौज ए नसीम के साथ आपका दामन मुहब्बत की खुशबू के अहसास से मालामाल हो। तमाम मुबारका

हम देखेंगे लाज़िम है कि हम भी देखेंगे वो दिन कि जिसका वादा है जो लोह-ए-अज़ल में लिखा है जब ज़ुल्म-ओ-सितम के कोह-ए-गरां रुई की तरह उड़ जाएँगे हम महक़ूमों के पाँव तले ये धरती धड़-धड़ धड़केगी और अहल-ए-हक़म के सर ऊपर जब बिजली कड़-कड़ कड़केगी जब अर्ज-ए-ख़ुदा के काबे से सब बुत उठवाए जाएँगे हम अहल-ए-सफ़ा, मरदूद-ए-हरम मसनद पे बिठाए जाएँगे सब ताज उछाले जाएँगे सब तख़्त गिराए जाएँगे बस नाम रहेगा अल्लाह का जो ग़ायब भी है हाज़िर भी जो मंज़र भी है नाज़िर भी उट्ठेगा अन-अल-हक़ का नारा जो मैं भी हूँ और तुम भी हो और राज़ करेगी खुल्क-ए-ख़ुदा जो मैं भी हूँ और तुम भी हो Faiz Ahmed Faiz

हम देखेंगे लाज़िम है के हम भी देखेंगे वो दिन कि जिसका वादा है जो लौहे-अज़ल पे लिखा है जब ज़ुल्मों-सितम के कोहे-गरां रूई की तरह उड़ जाएंगे हम महकूमों के पांव तले ये धरती धड़-धड़ धड़केगी और अहले-हिकम के सर ऊपर जब बिजली कड़-कड़ कड़केगी जब अर्ज़े-खुदा के काबे से सब बुत उठवाए जाएंगे हम अहले-सफा मर्दूदे-हरम मसनद पे बिठाए जाएंगे सब ताज उछाले जाएंगे सब तख्त गिराए जाएंगे बस नाम रहेगा अल्लाह का जो गायब भी है, हाज़िर भी जो मंज़र भी है, नाज़िर भी उठ्ठेगा अनलहक़(*) का नारा जो मैं भी हूं और तुम भी हो और राज़ करेगी खल्क़े-खुदा जो मैं भी हूं और तुम भी हो .

We shall Witness It is certain that we too, shall witness the day that has been promised of which has been written on the slate of eternity When the enormous mountains of tyranny will blow away like cotton. Under our feet- the feet of the oppressed- when the earth will pulsate deafeningly and on the heads of our rulers when lightning will strike. From the abode of God When icons of falsehood will be taken out, When we, the righteous ones, the heretics will be seated on high cushions When the crowns will be tossed, When the thrones will be brought down. Only The name will survive Who is invisible but is also present Who is both the spectacle and the beholder 'I am the Truth'- the cry will rise, Which is I, as well as you And then God’s creation(people) will rule Which is I, as well as you

अनलहक़ - 'मैं सत्य हूँ' , 'मैं ईश्वर हूँ'; ऐसा कहने पर इरानी सूफ़ी संत मंसूर को सरे आम सज़ा-ए-मौत दी गयी थी.

"ज़िन्दान नामा (कारावास का ब्यौरा)" फ़ैज़ अहमद फ़ैज़

बोल कि लब आज़ाद हैं तेरे

बोल, ज़बाँ अब तक तेरी है

तेरा सुतवाँ जिस्म है तेरा

बोल कि जाँ अब तक तेरी है

आईए हाथ उठाएँ हम भी

हम जिन्हें रस्म-ए-दुआ याद नहीं

हम जिन्हें सोज़-ए-मुहब्बत के सिवा

कोई बुत कोई ख़ुदा याद नहीं

लाओ, सुलगाओ कोई जोश-ए-ग़ज़ब का अंगार

तैश की आतिश-ए-ज़र्रार कहाँ है लाओ

वो दहकता हुआ गुलज़ार कहाँ है लाओ

जिस में गर्मी भी है, हरकत भी, तवानाई भी

हो न हो अपने क़बीले का भी कोई लश्कर

मुन्तज़िर होगा अंधेरों के फ़ासिलों के उधर

उनको शोलों के रजाज़ अपना पता तो देंगे

ख़ैर हम तक वो न पहुंचे भी सदा तो देंगे

दूर कितनी है अभी सुबह बता तो देंगे

(क़ैद में अकेलेपन में लिखी हुई)

निसार मैं तेरी गलियों के ऐ वतन

के जहाँ चली है रस्म के कोई न सर उठा के चले

गर कोई चाहने वाला तवाफ़ को निकले

नज़र चुरा के चले, जिस्म-ओ-जाँ बचा के चले

चंद रोज़ और मेरी जाँ, फ़क़त चंद ही रोज़

ज़ुल्म की छाँव में दम लेने पर मजबूर है हम

और कुछ देर सितम सह लें, तड़प लें, रो लें

अपने अजदाद की मीरास हैं, माज़ूर हैं हम

आज बाज़ार में पा-बेजौला चलो

दस्त अफशां चलों, मस्त-ओ-रक़सां चलो

ख़ाक़-बर-सर चलो, खूँ ब दामां चलो

राह तकता है सब, शहर ए जानां चलो

बोल कि होठ स्वतंत्र हैं तेरे

बोल, जीभ अब तक तेरी है

तेरा कसा हुआ शरीर है तेरा

बोल कि प्राण अब तक तेरे है

आईए हाथ उठाएँ हम भी

हम जिन्हें पूजा करने का तरीक़ा याद नहीं

हम जिन्हें प्रेम की भावनाओं (जज़बात) के सिवा

कोई बुत कोई भगवान याद नहीं

लाओ, सुलगाओ कोई ग़ज़ब के उत्साह की ज्वाला

दीवानेपन की आग लाओ

दहकता हुआ गुलज़ार (फूलों से भरपूर) लाओ

जिस में गर्मी भी है, चलन भी, ऊर्जा भी

अवश्य अपने जैसे लोगों का कोई गुट

इस अन्धकार में दूरी पर मेरी प्रतीक्षा कर रहा होगा

मेरी जलाई ज्वाला के शोले बेकार नहीं - वे उन्हें मेरी मौजूदगी के बारे में बताएँगे

वो मुझे बचाने मुझ तक न भी पहुँच पाए, तो मुझे पुकारेंगे ज़रूर

इस रात की प्रभात कितनी देर में होनी है, मुझे ख़बर दे देंगे

(क़ैद में अकेलेपन में लिखी हुई)

न्यौछावर हूँ मैं तेरी गलियों पर ऐ राष्ट्र

कि जहाँ चली है प्रथा के कोई न सिर उठा के चले

अगर कोई चाहने वाला सैर को निकले

नज़र चुरा के चले, तन और प्राण बचा के चले

कुछ दिन और मेरी प्रिय, केवल कुछ ही दिवस

ज़ुल्म की छाँव में दम लेने पर मजबूर है हम

और कुछ देर अत्याचार सह लें, तड़प लें, रो लें

अपने पूर्वजों की देन (करनी का नतीजा) हैं, हम निर्दोष हैं

आज बाज़ार में ज़ंजीरों में जकड़े पाँव के साथ चलो

हाथ हिलाते हुए चलो, मस्त हुए नाचते हुए चलो

धूल से भरा हुआ सिर लेकर चलो, ख़ून से लथपथ दामन लेकर चलो

रास्ता देख रहा है वो, प्रियतमा के शहर चलो

THE LEGAL BASIS OF CONSENT

1.     The element of consent is one of the critical issues in medical treatment. The patient has a legal right to autonomy and self determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment except in an emergency situation where the doctor need not get consent for treatment. The consent obtained should be legally valid. A doctor who treats without valid consent will be liable under the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information.

2.    The element of consent is one of the critical issues in the area of medical treatment today. It is well known that the patient must give valid consent to medical treatment; and it is his prerogative to refuse treatment even if the said treatment will save his or her life. No doubt this raises many ethical debates and falls at the heart of medical law today. The earliest expression of this fundamental principle, based on autonomy, is found in the Nuremberg Code of 1947. The Nuremberg Code was adopted immediately after World War II in response to medical and experimental atrocities committed by the German Nazi regime [1947. Neurenberg Code]. The code makes it mandatory to obtain voluntary and informed consent of human subjects. Similarly, the Declaration of Helsinki adopted by the World Medical Association in 1964 emphasizes the importance of obtaining freely given informed consent for medical research by adequately informing the subjects of the aims, methods, anticipated benefits, potential hazards, and discomforts that the study may entail [1964. Declaration of Helsinki]. Several international conventions and declarations have similarly ratified the importance of obtaining consent from patients before testing and treatment. The present paper examines the entire gamut of issues pertaining to consent from the point of view of the legal environment as it exists in India today. The circle of legal development in the area (i.e., consent) appears to be almost complete when the apex court in India recently ruled that, it is not just the ‘consent’ or ‘informed consent’ (as it is known worldwide) but it shall also be ‘prior informed consent’ generally barring some specific cases of emergency. This places a medical professional in a tremendous dilemma. Hence, it is time to revisit the area of ‘consent and medical treatment’ to understand the sensitive and underpinning elements.

THE LEGAL BASIS OF CONSENT

3.    Consent is perhaps the only principle that runs through all aspects of health care provisions today. It also represents the legal and ethical expression of the basic right to have one's autonomy and self-determination. If a medical practitioner attempts to treat a person without valid consent, then he will be liable under both tort and criminal law. Tort is a civil wrong for which the aggrieved party may seek compensation from the wrong doer. The consequences would be payment of compensation (in civil) and imprisonment (in criminal). To commence, the patient may sue the medical practitioner in tort for trespass to person. Alternatively, the health professional may be sued for negligence. In certain extreme cases, there is a theoretical possibility of criminal prosecution for assault or battery. The traditional definition of battery is an act that directly and either intentionally or negligently causes some physical contact with another person without that person's consent. If a person has consented to contact expressedly or by implication, then there is no battery. It is a rare case in which a doctor would be held liable for criminal breach, unless there is gross disrespect to the patient's bodily autonomy, for instance, if a patient's organs are taken without his consent.

4.    In tort law, usage of force against any human body, without proper justification, is actionable irrespective of the quantum of force. If the medical practitioner attempts to treat a patient without obtaining proper consent, he will be held guilty under tort law. Consent for treatment may be expressed or implied. The patient entering the consultation chambers by his own volition may be considered to have given consent for a clinical diagnosis to be carried out. Consent may be inferred from the general submission by a patient to orders given by a doctor during clinical diagnosis. This is an excellent example of implied consent. During the clinical examination, there might arise the need for an intimate examination of the patient, such as a vaginal examination. For such an examination, the medical practitioner must ideally obtain another consent by asking the patient's permission orally. Furthermore, if there is a need to undergo an invasive examination, such as an incision or drawing of samples of body fluids, a written consent of the patient is ideally required.

5.    Often medical practitioners ask for precise prescriptions for the situations when written consent is needed. It is interesting to note that what law demands is mere consent and not written consent and does not prescribe such requirement on a mandatory basis. In fact, the medical practice itself determines the need for written consent. Ideally, where the patient is subjected to anesthesia (either local or general) or where the patient is subjected to severe pain during administration of the treatment, a written consent would be helpful. There is no mandate that a doctor should always obtain written consent and failure of which would hold him liable. However, if there is written consent, the medical practitioner would have greater ease in proving consent in case of litigation. To standardize the practice, the Medical Council of India (MCI) has laid down guidelines that are issued as regulations in which consent is required to be taken in writing before performing an operation [ Regulation 7.16, of Medical Council of India (Professional Conduct, Etiquette and Ethics) Regulations.2002.]. The MCI guidelines are applicable to operations and do not cover other treatments. For other treatments, the following may be noted as general guidelines:

a.     For routine types of treatment, implied consent would suffice

b.    For detailed types of treatment, ideally express oral consent may be needed

c.     For complex types of treatment, written express consent is required

CAPACITY AND INFORMATION WHILE SEEKING CONSENT

6.    There are two more additional aspects to be borne in mind: first, valid consent can be obtained only from a patient who is competent to consent and secondly, such consent must also be informed consent. To be competent to give a legally effective consent, the patient must be endowed with the ability to weigh the risks and benefits of the treatment that is being proposed to him. The law presumes that such an ability is generally acquired with the attainment of the age of maturity. A person who has attained the competent age and who has sound mind can give valid consent to the medical practitioner for any treatment. Persons who have attained the age of 18 are generally considered to have attained the age of maturity and are competent to give consent. The law thus presumes capacity, rationality, autonomy, and freedom if the person has attained the age of so called maturity. On the other hand, where there is reason to believe that a patient is unable to understand the nature of the treatment and its benefits or side effects before making the decision, it is necessary to consider whether an adult presumption of capacity is rebutted in that particular case. If the patient is incompetent to give consent, then the consent may be obtained from the attendant of the patient [ Law Commission. Mental Capacity, Law. Com. 1995;231]. In the UK, there are several ethical issues raised regarding the proxy consent on behalf of such persons. Even the Law Commission Report (Mental Incapacity, 1995) suggests few reforms. Irrespective of the age, for a person who is incompetent due to unsoundness of mind, consent will be obtained from the guardian of the patient. In India, the court has not come across borderline cases of an adult refusing treatment leading to emergency and leaving the doctor in a dilemma, unlike in the west [ Re C (Adult: Refusal of Treatment) [1944] 1 All ER 819, Re T (Adult: Refusal of Treatment), [1992] 4 All ER 649, F v West Berkshire Health Authority, [1989] 2 All ER 545, and Gillick v West Norfolk and Wisbech AHA, [1985] 3 All ER 402.].

7.     The law also presumes that the medical practitioner is in a dominating position vis-à-vis the patient; hence, it is his duty to obtain proper consent by providing all the necessary information. Consent without necessary information is no consent at all. Unfortunately, the expression ‘informed consent’ is often used without precision. The “informed consent” doctrine is American in origin and relates to the amount of information that a patient should be provided with to avoid any probable action in negligence. Rarely, a medical practitioner or a hospital administrator can rely upon the consent form signed by the patient, when the contention is that he was made to sign on the dotted lines of such format without proving necessary information. This practice is also developed by the practice of treating the consent form as a one of standard forms of contracts and eliminating all such unfair and sweeping clauses, which will only benefit the medical practitioner. It is rather necessary as the pro-forma is prepared by the medical practitioner/hospital administration, and the patient is left with the choice of either accepting it as whole or rejecting it. Therefore, it is absolute imperative that a medical practitioner provide all relevant information relating to the proposed treatment to the patient in a language understandable to him, while obtaining the much needed consent for the treatment.

8.    However, the nature of the information that a patient must have in order to give informed consent is a debatable question, as the American and English viewpoints differ to some extent. Informed consent from the American sense is often described from the viewpoint of a prudent patient, popularly know as the prudent patient test. In this approach, the highest respect for the patient's right of self-determination about a particular therapy is recognized. This will lead to a so-called objective test of disclosure wherein the doctor will keep in mind the patient and disclose all such information which is required to be given. In other words, there is a presumption that some standard information is required to be disclosed to every patient, and the extent of such disclosure is neither left to the discretion of the doctor (of course leaving out special circumstances where the doctor might have strong reasons for concealing) nor he can rely upon the defense of disclosure like a reasonable medical practice or practitioner [ Canterbury v Spence. 1972. 464 F 2d 772]. In contrast to this, the English approach is doctor centric, which is also popularly narrated as the prudent doctor test of disclosure. Here, the doctor is taken as a professional-man endowed with greater prudence to protect the right interest of the patient and bestowed with the final right to decide what information shall be divulged to the patient considering the circumstances and how much information is to be divulged. Lord Templeman in ‘Sidway’ encapsulated this as follows:

“When the doctor himself is considering the possibility of a major operation, the doctor is able with his medical training, with his knowledge of the patient's medical history, and with his objective position to make a balanced judgment as to whether the operation should be performed or not. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment”. [ Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others [1985] 1 AC 871, HL]

9.    Finally, whatever might be the difference of approach it is evident that a medical practitioner is obligated to provide the necessary information before obtaining consent from a patient. To account for the Indian position, although we do not have much litigation, unlike in the West, it may be concluded that the courts have assigned immense significance to the requirement of informed consent. A medical practitioner in India has a duty to provide all the necessary information to the patient in a language that is understandable to him. Regarding the quantum of information, there are no clear parameters laid down by the courts. Therefore, it is reasonable information which a doctor deems fit considering best practices. Considering the knowledge gap in this regard, the professional regulatory body for medicine can play an important role in establishing standards.

INDIAN LAW ON CONSENT

10.                       The principle of autonomy is enshrined within Art. 21 of the Indian Constitution, which deals with the right to life and personal liberty. The expression personal liberty under Art. 21 is of the widest amplitude and covers a wide variety of rights, including the right to live with human dignity and all that goes along with it, and any act which damages, injures, or interferes with the use of any limb or faculty of a person, either permanently or temporarily [ Maneka Gandhi v Union of India. AIR 1978 SC 597]. However, the common law application of consent is not fully developed in India, although the Indian courts have often referred to these principles. In such situations, obviously one has to refer to the principles of the Indian Contract Act and the Indian Penal Code. The relationship between a medical professional and his patient is a contract by parties competent to contract giving rise to contractual obligations. Parties are generally competent (in accordance with the Indian Majority Act) (i) if they have attained the age of 18, (ii) are of sound mind, and (iii) are not disqualified by any law to which they are subject to. Furthermore, there is a stipulation in the contract law stating that consent of any party (in our case it is the patient) that is obtained by coercion, undue-influence, mistake, misrepresentation or fraud, will render the agreement invalid. However, in England, the General Medical Council guidelines state that the consenting age is 16 years old. A young person can be treated as an adult and can be presumed to have the capacity to decide. If the child is under the age of 16 he or she may have the capacity to decide, depending on his/her ability to understand what is involved. Where a competent child refuses treatment, a person with parental responsibility or the court may authorize investigation or treatment which is in the child's best interests. Interestingly, the position is different in Scotland where those with parental responsibility cannot authorize procedures a competent child has refused.

11. The consent obtained, of course, after getting the relevant information will have its own parameter of operation to render protection to the medical practitioner. If the doctor goes beyond these parameters, he would be treating the patient at his risk, as it is deemed that there is no consent for such treatment at all. A doctor who went ahead in treating a patient, to protect the patient's own interest, was held liable as he was operating without consent [ Ram Bihari Lal v Dr. J. N. Srivastava. AIR 1985 MP 150]. The patient was suspected to have appendicitis. After obtaining due consent, she was subjected to an operation. However, upon incision, it was found that her appendix was normal and not inflamed. To protect the interest of the patient, the doctor removed her gangrenous gall bladder. Later, it was discovered that the kidney of the patient was affected. The doctor was held liable as he was operating without consent. This case law also signifies the traditional notion of paternalism prevalent among the members of the medical fraternity. It is a notion where the doctor takes-up the role of a parent of the patient and starts deciding on behalf of the patient himself. Unfortunately, the law does not accept this notion. The first priority of law is always the right of autonomy of the patient provided he is endowed with necessary capacity. A medical practitioner who believes that a medical procedure is appropriate and necessary for a patient's well being can perhaps be forgiven for believing that the principle of autonomy should be sacrificed in the best interest of the patient. In the present case, had the doctor stopped after realizing that the patient's appendix was normal, he would have been protected as he was working under the valid consent of the patient, and more importantly, mere error of judgment is not culpable. When he proceeded in removing her gall bladder, he was acting sans valid consent, which was an extreme case of professional paternalism and gross disobedience to the right of the patient's autonomy. Hence, some commentators like Mill, et al. have advocated for minimal level of paternalism in the interest of the medical profession and the overall inability of humans in taking rational decisions, during the time of crises [ Mill, J.S., ‘On Liberty’ Harmondsworth: Penguin; 1982. p. 68].

12.                        Regarding proxy consent, when the patient is unable to give consent himself, there are no clear regulations or principles developed in India. If such a situation exists, the medical practitioner may proceed with treatment by taking the consent of any relative of the patient or even an attendant. In one case, the wife of a patient informed the hospital authorities in unambiguous terms that she had no objection to her husband undergoing bypass surgery, her consent was deemed sufficient for the purpose of any formalities with which the hospital was required to comply [ C A Muthu Krishnan v M. Rajyalakshmi. AIR 1999 AP 311].

13.                        Interestingly, in another case the relationship between the patient and his wife were strained. A patient was operated on for sterilization. While giving consent he deposed that he is married and has two baby girls. In fact, he was undergoing an operation only for getting the money as incentive. After the operation, his father contended that the patient was of unstable mind and was not competent to give consent. The court held that if there are no circumstances for a doctor to sense foul play or doubtabout the capacity of the patient, he is protected [ Chandra Shukla v Union of India. AIR 1987 ACJ 628]. These two cases demonstrate that a doctor acting reasonably under normal circumstances is always protected and he is never expected to play the role of an investigative agency.

14.                        Recently, the apex court gave an impacting judgment in the area. Wherein the court observed that “where a surgeon is consulted by a patient and consent of the patient is taken for diagnostic procedure/surgery, such consent can't be considered as authorization or permission to perform therapeutic surgery either conservative or radical (except in a life-threatening emergent situation)” [ Samera Kohli v Dr. Prabha Manchanda and Another. (2008) 2 SCC 1 = AIR 2008 SC 1385 = 2008 (1) SCALE 442]. For the first time in India, the court ruled that however broad consent might be for diagnostic procedure, it can not be used for therapeutic surgery. Furthermore, the court observed that “where the consent by the patient is for a particular operative surgery it can't be treated as consent for an unauthorized additional procedure involving removal of an organ only on the ground that it is beneficial to the patient or is likely to prevent some danger developing in the future, where there is no imminent danger to the life or health of the patient”. This proposition puts fetter upon the role of a “paternal doctor” in the Indian scenario. In one case, a 44-year-old unmarried female consulted her doctor and was advised to undergo a laparoscopy. A few consent forms were taken from her of which one was for admission and another one was for the surgery. The relevant one among such consent forms gave the doctor an allowance to carry out a “diagnostic and operative laparoscopy” and there was an additional endorsement that a “laparotomy may be needed”. When the patient was in the operation theater (and was unconscious), another proxy consent was taken from her attending mother for a hysterectomy. Her uterus, ovaries, and fallopian tubes were removed. Subsequently, when an action was brought, it was held that the operation was conducted without real consent and the doctors were held liable.

15.                        This decision is of very far reaching consequences, pushing the development of consent law to new heights. It is contended that it is not only informed consent which is imperative now, but the same shall be “prior informed consent” unless there is imminent threat to the patient's life. In addition, this decision curtails the scope of proxy consent from the person having parental authority or an attendant.

EMERGENCY SITUATION AND CONSENT

16.                        Interestingly, in India, the entire gamut of laws on consent turns into complex propositions if an emergency medical situation arises. In a few of the milestone decisions, the apex court ruled that a medical practitioner has a duty to treat a patient in an emergency. Emphasizing the paramount duty of any “welfare state“, the Supreme Court stated that Art. 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the state are bound by duty to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in the violation of his right to life guaranteed under Art. 21 [ Paschim Banga Khet Mazdoor Samity and Ors v State of West Bengal and Another. 1996. 4 SCC 37]. Proceeding in the same direction, the court emphasized further that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or state action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation of a doctor is total, absolute, and paramount. Laws of procedure whether in statutes or otherwise that would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way [ Pt. Parmanand Katara v Union of India. AIR 1989 SC 2039]. In one case, the apex court laid down some important guidelines such as (i) The doctor when approached by an injured person, shall render all such help which is possible for him at that time, including referring him to the proper experts, (ii) the doctor treating such persons shall be protected by law, as they are not contravening any procedural laws of the land (regarding jurisdictions etc.), and (iii) all legal bars (either real or perceived by the doctors) are deemed to have been eliminated by the verdict. This is in consonance with the hypocratic oath, which a doctor takes when entering the profession. Hence, a doctor is duty-bound to treat a patient in the case of an emergency, without waiting for any formalities. There are several statutes (like medical institutions regulation acts in various states) imposing this duty upon medical establishments to treat emergency patients, especially accident victims.

17.The initial proposition (and the attempt of the Supreme Court) is quiet understandable as the doctor has to do his best to save life in emergency situations. This is irrespective of complying with any of the formalities, including consent. Hypothetically, if a patient in an emergency resists taking treatment, what shall be the way out? Indian courts are not very clear on that. The above decisions are delivered keeping in mind the accident victims who were denied medical treatment by doctors, terming them as medico-legal cases. Moreover, in the above instances, the patient would go himself, or be taken by someone (due to an unconscious state) to the doctor to seek medical treatment.

18.                       In Dr. T.T. Thomas vs. Elisa, (  TT Thomas (Dr.) vs Elisa. AIR 1987 Ker. 52) the patient was admitted into the hospital on March 11, 1974. Upon admission, the patient was diagnosed as a case of perforated appendix with peritonitis requiring an operation. But, unfortunately no operation was done until his death on March 13, 1974. The contention of the doctor was that no surgery could be adhered to, albeit the suggestion, because the patient did not consent for the surgery. Therefore, other measures were taken to ameliorate the condition of the patient, which grew worse by the next day. Although the patient was then willing to undergo the operation, his condition did not permit it. On the other hand, the version of the respondent (i.e., the Plaintiff) was that the doctor demanded money for performing the surgery. Furthermore, the doctor was attending to some chores in an outside private nursing home to conduct operations on the other patients and that the appellant doctor came back only after the death of the patient. The two versions before the court were: 1) the plaintiff (the deceased patient's wife) said that the doctors concerned demanded a bribe, hence the operation was delayed until it proved fatal and 2) the version of denial for consent. Finally, the court delivered a verdict in favor of the plaintiffs stating that consent under such an emergent situation is not mandatory[  TT Thomas (Dr.) vs Elisa. AIR 1987 Ker. 52]. It is interesting to note the following observations:

“The consent factor may be important very often in cases of selective operations, which may not be imminently necessary to save the patient's life. But there can be instances where a surgeon is not expected to say that ‘I did not operate on him because, I did not get his consent’. Such cases very often include emergency operations where a doctor cannot wait for the consent of his patient or where the patient is not in a fit state of mind to give or not to give a conscious answer regarding consent. Even if he is in a fit condition to give a voluntary answer, the surgeon has a duty to inform him of the dangers ahead of the risks involved by going without an operation at the earliest time possible”.

“When a surgeon or medical man advances a plea that the patient did not give his consent for the surgery or the course of treatment advised by him, the burden is on him to prove that the non-performance of the surgery or the non-administration of the treatment was on account of the refusal of the patient to give consent thereto. This is especially so in a case where the patient is not alive to give evidence. Consent is implicit in the case of a patient who submits to the doctor and the absence of consent must be made out by the patient alleging it”.

19.                        Finally, as stated above, before holding the doctor liable, the court said that “we also hold that the failure to perform an emergency operation on the deceased on 11-3-1974 amounts to negligence and the death of the deceased was on account of that failure”. This decision makes the entire discussion of consent law more complex. Although this case law can't be given more accent (because it is a High Court decision), the viewpoint is an interesting one to note. In light of all these developments, it may be concluded that there are many grey areas in this field of consent law in India, which can be eliminated by pro-active intervention by the concerned professional regulatory body.

20.                      This legal opinion shall not be used in Court of Law, as same is confidential document u/s 129 of the Indian Evidence Act. It be also taken note of that legal opinion is only a guiding factor but shall not be used as a document in the Court of Law.