1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 897 OF 2009
Kerala Ayurveda Paramparya Vaidya Forum .... Appellant(s)
Versus
State of Kerala and Others .... Respondent(s)
WITH
CIVIL APPEAL NO. 898 OF 2009
CIVIL APPEAL NO. 899-900 OF 2009
CIVIL APPEAL NO. 901 OF 2009
CIVIL APPEAL NO. 902 OF 2009
CIVIL APPEAL NO. 903 OF 2009
CIVIL APPEAL NO. 904 OF 2009
CIVIL APPEAL NO. 905 OF 2009
J U D G M E N T
R.K. Agrawal, J.
1) The above appeals have been filed against the judgment
and order dated 08.01.2003 passed by the Division Bench of
the High Court of Kerala at Ernakulam in O.P. No. 24109 of
2
2001 and connected matters whereby the High Court had
dismissed the petitions filed by the appellants herein.
2) Brief facts:
(a) In the State of Kerala, a number of persons are practicing
in Sidha/Unani/Ayurveda system of medicine called as
“Paramparya Vaidyas’ and passing their knowledge and
experience to their descendants by way of training and
practice. Normally, almost all the descendants in the family
get training in the same field and adopt this as a profession
and means of livelihood.
(b) Kerala Ayurveda Paramparya Vaidya Forum (in short ‘the
Forum’) – the appellant herein is an association of
‘Paramparya Vaidyas’ in Travancore-Cochin, registered under
the Travancore-Cochin Literary, Scientific and Charitable
Societies Registration Act, 1955. The main objective of the
Forum is the welfare of its members and to render assistance
for practice in indigenous medicines.
(c) Pursuant to the enactment of the Travancore-Cochin
Medical Practitioners Act, 1953 (in short ‘the Act’), the
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‘Paramparya Vaidyas’ were debarred from practicing
modern/homoeopathic/ayurvedic/siddha/unani-tibbi
medicines unless registered under the Act. Subsequently,
three Central Acts, viz., The Indian Medical Council Act, 1956,
The Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 with regard to
modern medicine, indigenous medicine and homoeopathic
medicine respectively came into force.
(d) Being aggrieved by the enactment of the Act, Akhila
Kerala Parambarya Vaidya Federation as well as the persons
practicing as ‘Paramparya Vaidyas’ filed a number of petitions
before the High Court. Learned single Judge of the High
Court, taking note of an affidavit filed by the State Government
stating that the question of granting registration to practice
medicines to the ‘Paramparya Vaidyas’ can be considered at
the time of enactment of Kerala Medical Practitioners Bill, by
order dated 17.06.1997 in O.P. No. 118 of 1991 and other set
of petitions, disposed of the original petitions while directing
the State Government to have a serious consideration of the
circumstances expeditiously.
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(e) Several petitions were filed before the High Court by the
‘Paramparya Vaidyas’ claiming that the methods had been in
vogue for a considerable long period of time. The Division
Bench of the High Court, vide order dated 08.01.2003
dismissed the petitions filed by the appellants herein.
(f) Aggrieved by the order dated 08.01.2003, the appellants
have preferred these appeals by way of special leave.
3) Heard the arguments advanced by learned senior counsel
for the parties and perused the records. Since a common
question of law and facts arise in these appeals, they are being
disposed of by this common judgment.
Point(s) for consideration:-
4) The sole point for consideration before this Court is as to
whether the persons who do not fulfill the prescribed
qualification and are not duly registered under the relevant
Statute, be permitted to practice as ‘Paramparya Vaidyas’?
Rival Submissions:
5) Learned senior counsel for the appellants contended
before this Court that in the State of Kerala, a large number of
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persons are practicing in Sidha/Unani/Ayurveda system of
medicines known as ‘Paramparya Vaidyas’, which are in vogue
for a long time. They have acquired knowledge and experience
from their gurus and parents and by continued practice over a
long period of time they have acquired the requisite expertise.
After the enactment of the Act, Section 38 empowered the
State Government to regulate the qualifications and to provide
for the registration of practitioners of modern medicine. It
took within its ambit the homeopathic and indigenous systems
of medicine as well. Learned senior counsel further contended
that due to the promulgation of the Act, the appellants, who
were not registered under the Act, were prevented from
practicing as ‘Paramparya Vaidyas’. Learned senior counsel
further contended that unlike modern systems, medicines for
each patient is being prepared after diagnosing the patient
according to his requirement considering his age, place, etc.
and there is no side effect in the treatment by these systems of
medicines. Finally, it was stressed upon by learned senior
counsel for the appellants that it is the custom that was
developed in the community that the ‘Vaidyas’ practicing in
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these systems must pass their knowledge and heredity to
another in the family. So as a custom of the community, the
existing vaidyas have to preserve their old and indigenous
systems to retain their heredity and custom. It was also
contended that so many vaidyas practicing Ayurveda, Siddha,
Unani Tibbi had applied to the government for licence in
compliance of the provisions of the Act but the State
Government did not take any positive steps with regard to the
same instead the police and other authorities have been
harassing them for practicing in respective system of
medicines without obtaining licence or exemption as per the
provision to Section 38 of the Act.
6) He further contended that the High Court, therefore,
erred in approaching the issue on the basis that after the
coming into force of the Act only those persons who were
possessing recognized qualification have the right to practice
medicine. He further contended that it is settled law that any
mandatory prohibition has to be in express or unambiguous
terms and the alleged prohibition under Section 38 is to be
understood in the context of Section 32 of the Act.
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7) Per contra, learned counsel for the State contended that
there are several persons in the State of Kerala practicing
Indian System of Medicine without any qualification or
registration which is in flagrant violation of Section 38 of the
Act and Section 17 of the Indian Medicine Central Council Act,
1970 (in short ‘the IMCC Act’). It was further stressed upon
that this unauthorized practice is a great threat to the health
and life of the people of the State as the practitioners are
producing alcoholic preparations and such preparations are
being misused without any licence or registration in the guise
of prescribing Indian System of Medicines. Learned counsel
further submitted that the IMCC Act does not take into
account the traditional practitioners or paramparya vaidyas.
The concept and practice of medicine by tradition was not
recognized by the Parliament at the time of the enactment of
the IMCC Act. It was further submitted that the Parliament
did not give any option to any person to commence practice
and continue to practice Indian System of Medicines without
proper qualification and registration as provided under the
IMCC Act and the only exemption is under Section 17(3)(c) of
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the said Act which provides that a person who had been
practicing Indian System of Medicine for five (5) years at the
commencement of the IMCC Act could continue to practice
provided there has been no State Register maintained in that
State.
8) Learned counsel further submitted that the modus
operandi of such practitioners in the State is to register an
Association under the Societies Registration Act or the
Travancore-Cochin Literary, Scientific and Charitable Societies
Registration Act, with an object to enroll members and to issue
certificates in order to enable them to practice Indian System
of Medicine in the guise of ‘Paramparya Vaidyas’. Learned
counsel for the State further contended that in most of these
cases, there is no tradition or paramparayam for any of the
members of such registered Association and most of them
continue in the field of practice with bogus certificates, degrees
and diplomas. Learned counsel finally contended that the
bogus practitioners, without having requisite qualification and
registration, should not be allowed to play with the lives of the
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people and to practice the Indian System of Medicine in the
State of Kerala.
Discussion:
9) Traditional or indigenous systems of medicine like
Ayurveda/Sidhha/Unani-Tibbi have largely evolved out of
sporadic and random processes of research and discovery
attributable to various self styled practitioners of these
systems of medicines. With a view to bring about an organized
development of these systems and standardize the mode of
treatment by the practitioners of these systems, legislations
have been framed by both the State Governments as well as
the Central Government. The legislative field for framing
legislation on these aspects is relatable to Entry 26, List III of
the Seventh Schedule of the Constitution of India. On these
lines, the Travancore-Cochin Medical Practitioners Act, 1953
was enacted with an object to regulate the qualifications and
provide for the registration of practitioners of modern medicine
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and to enact a law relating to medical practitioners generally
in the State of Travancore-Cochin.
10) With this background, it is relevant to reproduce Section
17 of the IMCC Act as well as Sections 23 and 38 of the Act
which are as under:-
The Indian Medical Central Council Act, 1970
17. Rights of persons possessing qualifications included
in Second, Third and Fourth Schedules to be enrolled. –
(1) Subject to the other provisions contained in this Act, any
medical qualification included in the Second, Third or
Fourth Schedule shall be sufficient qualification for
enrolment on any State Register of Indian Medicine.
(2) Save as provided in section 28, no person other than a
practitioner of Indian medicine who possesses a recognized
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,-
(a) shall hold office as Vaid, Siddha, Hakim or [physician or
Amchi or] any other office (by whatever designation called) in
Government or in any institution maintained by a local or
other authority;
(b) shall practice Indian medicine in any State;
(c) shall be entitled to sign or authenticate a medical or
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 (1 of 1872), on any matter relating to
Indian Medicine.
(3) Nothing contained in sub-section (2) shall affect,-
(a) the right of a practitioner of Indian medicine enrolled on a
State Register of Indian Medicine to practise Indian medicine
in any State merely on the ground that, on the
commencement of this Act, he does not possess a recognized
medical qualification;
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(b) the privileges (including the right to practice any system
of medicine) conferred by or under any law relating to
registration of practitioners of Indian medicine for the time
being in force in any State on a practitioner of Indian
medicine enrolled on a State Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a State
Register of Indian Medicine is not maintained if, on such
commencement, he has been practicing Indian medicine for
not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 (102 of 1956)[including the right to
practice medicine as defined in clause (f) of section 2 of the
said Act], on persons possessing any qualifications included
in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.
Travancore-Cochin Medical Practitioners Act, 1953
23. Eligibility for registration.-
(1) Subject to the provisions of sub-sections(2) and (5).-
(i) every holder of a recognised qualification and
every practitioner holding appointment under
the Government at the commencement of this
Act, and
(ii) every person who, within the period of one year
or such other longer period as may be fixed by
the Government from the date on which this Act
come into force, proves to the satisfaction of the
appropriate council that he has been in regular
practice as a practitioner for a period of not less
than five years preceding the first day of April,
1953.
shall be eligible for registration under this Act:
Provided however that no practitioner
shall be registered under clause (ii) after the
expiration of one year, or such other longer
period as may be fixed by the Government, from
the date on which this Act come into force.
(2) Applicants for registration under clause (ii) of
sub-section (1) shall produce a certificate in Form I as
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set forth in the schedule. The certificate shall be from
an officer of the Revenue Department not below the
rank of a Tahsildar or any other person authorized by
the Government in this behalf.
(3) The Government may, after consulting the appropriate
council, permit the registration of any person who
shall furnish to such council proof that he is
possessed of a medication degree, diploma or
certificate of any University, medical school or college
approved by such council other than those mentioned
in the Schedule.
(4) The Government shall have power to direct the
registration of any practitioner who, at the time of
registration under this section, is employed in a
hospital, asylum, infirmary, clinic surgery, lying in
hospital, sanatorium, nursing home, dispensary,
vaidyasala or dharmasala managed by any corporate
body:
Provided however that no such practitioner shall
be registered under this sub-section after the
expiration of one year, or such other longer period as
may be fixed by the Government, from the date on
which this Act comes into force.
(5) No person shall be eligible for registration under
sub-section (1), sub-section (3), or sub-section (4) if he
is subject to any of the disqualifications mentioned in
clause (a) to (e) of Section 7.
38. Persons not registered under this Act, etc., not to
practice.- No person other than (i) a registered practitioner
or (ii) a practitioner whose name is entered in the list of
practitioners published under Section 30 or (iii) a
practitioner whose name is entered in the list mentioned in
Section 25 shall practice or hold himself out, whether
directly or by implication, as practising modern medicine,
homoeopathic medicine or ayurvedic medicine, siddha
medicine or unani tibbi and no person who is not a
registered practitioner of any such medicine shall practise
any other medicine unless he is also a registered practitioner
of that medicine:
Provided that the Government may, by notification in the
Gazette, direct that this section shall not apply to any person
or class or persons or to any specified area in the State
13
where none of the three classes of practitioners mentioned
above carries on medical practice:
Provided further that this section shall not apply to a
practitioner eligible for registration under this Act who, after
having filed the application for registration, is awaiting the
decision of the appropriate council or of the Government in
case of appeal:
Provided also that this section shall not apply to a
practitioner eligible for registration under this Act until the
period prescribed for application under Section 23 expires.
11) As per the statement of objects and reasons of the IMCC
Act, the Central Council was to evolve uniform standards of
education and registration of practitioners of the indigenous
systems of medicine and for that purpose a Register was to be
maintained under the IMCC Act in order to ensure that
medicine is not to be practiced by those who are not qualified.
The IMCC Act does not contemplate any exemption from the
provisions in the Act regarding qualification or registration of
practitioners in the various branches of indigenous medicine,
viz., ayurveda, siddha, unani etc. However, Section 17(3)(c) of
the IMCC Act has a provision for protecting persons who had
been practicing Indian system of Medicine for at least five
years as on the date of commencement of the Act. Such
persons could continue their practice provided there had been
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no State Register maintained in the State on the
commencement of the IMCC Act.
12) In Dr. Mukhtiar Chand and Others vs. State of
Punjab and Others (1998) 7 SCC 579, this Court has held as
under:-
“17. Before adverting to these questions, it would be useful
to notice various systems of medicine in vogue in India and
the statutes regulating them:
The systems of medicines generally prevalent in India
are Ayurveda, Siddha, Unani, Allopathic and
Homoeopathic. In the Ayurveda, Siddha and Unani
systems, the treatment is based on the harmony of the
four humours, whereas in the Allopathic system of
medicine, treatment of disease is given by the use of a
drug which produces a reaction that itself neutralizes
the disease. In Homoeopathy, treatment is provided by
the like.
18. Of the medical systems that are in vogue in India,
Ayurveda had its origin in 5000 BC and is being practised
throughout India but Siddha is practised in the
Tamil-speaking areas of South India. These systems differ
very little both in theory and practice. The Unani system
dates back to 460-370 BC but that had come to be practised
in India in the 10th century AD (Park: Textbook of Preventive
and Social Medicine, 15th Edn., pp. 1 & 2). Allopathic
medicine is comparatively recent and had its origin in the
19th century.
42. Here it may be necessary to refer to the development of
law with regard to Indian medicine. In the pre-constitutional
era, each province of India was having its own enactment
regulating the registration and practice in Indian medicines
like the United Provinces Indian Medicine Act, 1939, the
Punjab Ayurvedic and Unani Practitioners Act, 1949, etc.
After the coming into force of the Constitution, many State
legislations were enacted to regulate the practise of Indian
medicine, Ayurvedic and Unani like the Punjab Ayurvedic
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and Unani Practitioners Act, 1963, etc. However, on the
model of the 1956 Act, Parliament enacted the Indian
Medicine Central Council Act, 1970 (for short “the 1970
Act”). The schemes and provisions of the 1970 Act and the
1956 Act are analogous. “Indian medicine” is defined in
Section 2(e) of the Act to mean 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. In Section 2(j), the expression “State Register of
Indian Medicine” is defined to mean a register or registers
maintained under any law for the time being in force in any
State regulating the registration of practitioners of Indian
medicine. The Act contemplates having separate committees
for Ayurvedic, Siddha and Unani medicines. Section 17
enables, inter alia, the persons who possess medical
qualifications mentioned in the Second, Third or Fourth
Schedule to be enrolled on any State Register of Indian
Medicine. A perusal of the Second, Third and Fourth
Schedules shows that they contain both integrated medicine
as well as other qualifications. So a holder of a degree in
integrated medicine is entitled to be enrolled under Section
17 of the 1970 Act. Section 22 authorises the Central
Council to prescribe the minimum standards of education in
Indian medicine required for granting recognized medical
qualifications by universities, Boards or medical institutions
in India. The Central Council is enjoined to maintain the
Central Register of Indian Medicine containing the
particulars mentioned therein and Section 25 lays down the
procedure for registration in the Central Register of Indian
Medicine. The counterpart of Section 15 of the 1956 Act is
Section 17 of the 1970 Act. We shall quote it here:
“17. (1) Subject to the other provisions contained in
this Act, any medical qualification included in the
Second, Third or Fourth Schedule shall be sufficient
qualification for enrolment on any State Register of
Indian Medicine.
(2) Save as provided in Section 28, no person other than a
practitioner of Indian medicine who possesses a recognised
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,—
(a) shall hold office as vaid, siddha, hakim or physician or
any other office (by whatever designation called) in
Government or in any institution maintained by a local
or other authority;
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(b) shall practise Indian 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
Indian medicine.
(3) Nothing contained in sub-section (2) shall affect,—
(a) the right of a practitioner of Indian medicine enrolled
on a State Register of Indian Medicine to practise
Indian medicine in any State merely on the ground
that on the commencement of this Act, he does not
possess a recognised medical qualification;
(b) the privileges (including the right to practise any
system of medicine) conferred by or under any law
relating to registration of practitioners of Indian
medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State
Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a
State Register of Indian Medicine is not maintained if,
on such commencement, he has been practising
Indian medicine for not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 [including the right to practise
medicine as defined in clause (f) of Section 2 of the
said Act], on persons possessing any qualifications
included in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.”
A perusal of the provisions extracted above shows that
sub-section (1) prescribes qualifications considered sufficient
for enrolment on any State Register of Indian Medicine.
Sub-section (2) ordains that all persons except those who
possess a recognised medical qualification and are enrolled
on a State Register or the Central Register of Indian
Medicine, are prohibited from doing any of the acts
mentioned in clauses (a) to (d) of that sub-section.
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Sub-section (3), however, carves out an exception to the
prohibition contained in sub-section (2). Clause (a) thereof
saves the right to practice of any medical practitioner of
Indian medicine who was not having recognised medical
qualification on the date of the commencement of the 1970
Act but who was enrolled on a State Register to practise that
system of medicine; clause (b) protects the privileges which
include the right to practise any system of medicine which
was conferred by or under any law relating to registration of
practitioners of Indian medicine for the time being in force in
any State on a practitioner of Indian medicine who was
enrolled on a State Register of Indian Medicine; clause (c)
saves the right of a person to practise Indian medicine in a
State in which no State Register of Indian Medicine was
maintained at the commencement of that Act provided he
has been practising in Indian medicine for not less than five
years before the commencement of the Act and clause (d)
protects the rights conferred by or under the 1956 Act
including the right to practise modern medicine possessing
any qualification included in that Act. In other words, under
clause (d) 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 the
1956 Act. In view of this conclusion, it matters little if the
practitioners registered under the 1970 Act are being
involved in various programmes or given postings in
hospitals of allopathic medicine and the like.
43. It will be appropriate to notice that the 1970 Act also
maintains a similar distinction between a State Register of
Indian Medicine and the Central Register of Indian Medicine.
Whereas the State Register of Indian Medicine is maintained
under any law for the time being in force in any State
regulating the registration of practitioners of Indian
medicine, the Central Register of Indian Medicine has to be
maintained by the Central Council under Section 23 of that
Act. For a person to be registered in the Central Register,
Section 25 enjoins that the Registrar should be satisfied that
the person concerned was eligible under that Act for such
registration. Keeping this position in mind, if we read Section
17(3)(b), it becomes clear that the privileges which include
the right to practise any system of medicine conferred by or
under any law relating to registration of practitioners of
Indian medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State Register
18
of Indian Medicine, are not affected by the prohibition
contained in sub-section (2) of Section 17.”
Section 23 of the Act provides for eligibility conditions for
registration of medical practitioners. Under sub-Section (1), a
holder of a recognized qualification or holding appointment
under the government at the commencement of the Act and
every other practitioner who has been in regular practice for 5
(five) years preceding 1st April, 1953, if applies within one year
have been made eligible for registration. However, by Section
38 of the Act, persons not registered under the Act have been
prohibited from practicing various types of medicines. The
first proviso empowers the State Government to exempt any
person or class of persons from undergoing registration. It is
also evident that the Government of Kerala had granted
exemption to some traditional practitioners like those who
belonged to the renowned Ashtavaidya families.
13) The capacity to diagnose the disease would depend upon
the fact as to whether the practitioner had the necessary
professional skill to do so. Acquisition of professional skill is
again a regulated subject and the measure thereof is the
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possession of a prescribed Diploma or Degree awarded by a
recognized Institution. What one might enquire with regard to
the right to practice medicine in the light of the above is as to
whether the appellants are equipped with such a professional
qualification. The answer is, obviously, in the negative, as
admittedly, the appellants do not possess any prescribed
Diploma or Degree from a recognized institution for that
purpose. Even a person who has acquired the prescribed
Diploma or Degree from a recognized institution would not be
entitled to practice medicine unless he is so registered under
the provisions of the IMCC Act.
14) In Dr. A.K. Sabhapathy vs. State of Kerala and
Others 1992 Supp (3) SCC 147, the provisions of Section 38 of
the Act and Sections 15 and 21 of the Indian Medical Council
Act, 1956 came up for consideration before this Court wherein
it was held as under:-
“16. We are, therefore, unable to agree with the view of the
High Court that the Central Act does not lay down the
qualifications for registration of a medical practitioner. We
may in this context refer to sub-section (1) of Section 15
which postulates the holding of a recognised medical
qualification by a person for being registered in the State
Medical Register so as to entitle to practise modern scientific
medicine in the State and sub-section (1) of Section 21
20
which provides that the Indian Medical Register that is
required to be maintained by the Medical Council of India
shall contain the name of persons who are for the time being
enrolled in the State Medical Register and who possess any
of the recognised medical qualifications. 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. We are, therefore, of the
view that the first proviso to Section 38 of the State Act
insofar as it empowers the State Government to permit a
person to practise allopathic system of medicine even though
he does not possess the recognised medical qualifications for
that system of medicine is inconsistent with the provisions of
Sections 15 and 21 read with Sections 11 to 14 of the
Central Act. The said proviso suffers from the vice of
repugnancy insofar as it covers persons who want to practise
the allopathic system of medicine and is void to the extent of
such repugnancy. Practitioners in allopathic system of
medicine must, therefore, be excluded from the scope of the
first proviso and it must be confined in its application to
systems of medicines other than the allopathic system of
medicine. We, however, wish to make it clear that we have
not considered the impact of the provisions contained in the
Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 on the provisions of
the said proviso to Section 38 of the State Act.”
Even though the impact of the provisions of the IMCC Act was
not considered but the provision of Section 17 of the IMCC Act
also provides for recognition of medical qualification included
in Second, Third and Fourth Schedules to be sufficient
qualification for enrolment on any State Register of Indian
Medicine. Thus the same principles as had been laid down in
21
Dr. A.K. Sabhapathy (supra), as reproduced above, will also
apply.
15) In the case of Delhi Pradesh Registered Medical
Practitioners vs. Director of Health, Delhi Administration
Services and Others (1997) 11 SCC 687, this Court has held
as under:-
“5. We are, however, unable to accept such contention of Mr
Mehta. Sub-section (3) of Section 17 of the Indian Medicine
Central Council Act, 1970, in our view, only envisages that
where before the enactment of the said Indian Medicine
Central Council Act, 1970 on the basis of requisite
qualification which was then recognised, a person got
himself registered as medical practitioner in the disciplines
contemplated under the said Act or in the absence of any
requirement for registration such person had been practising
for five years or intended to be registered and was also
entitled to be registered, the right of such person to practise
in the discipline concerned including the privileges of a
registered medical practitioner stood protected even though
such practitioner did not possess requisite qualification
under the said Act of 1970. It may be indicated that such
view of ours is reflected from the Objects and Reasons
indicated for introducing sub-section (3) of Section 17 in the
Act. In the Objects and Reasons, it was mentioned:
“[T]he Committee are of the opinion that the existing
rights and privileges of practitioners of Indian
Medicine should be given adequate safeguards. The
Committee, in order to achieve this object, have added
three new paragraphs to sub-section (3) of the clause
protecting (i) the rights to practise of those
practitioners of Indian Medicine who may not, under
the proposed legislation, possess a recognised
qualification subject to the condition that they are
already enrolled on a State Register of Indian Medicine
on the date of commencement of this Act, (ii) the
privileges conferred on the practitioners of Indian
22
Medicine enrolled on a State Register, under any law
in force in that State, and (iii) the right to practise in a
State of those practitioners who have been practising
Indian Medicine in that State for not less than five
years where no register of Indian Medicine was
maintained earlier.”
As it is not the case of any of the writ petitioners that they
had acquired the degree in between 1957 (sic 1967) and
1970 or on the date of enforcement of provisions of Section
17(2) of the said Act and got themselves registered or
acquired right to be registered, there is no question of getting
the protection under sub-section (3) of Section 17 of the said
Act. It is to be stated here that there is also no challenge as
to the validity of the said Central Act, 1970. The decision of
the Delhi High Court therefore cannot be assailed by the
appellants. We may indicate here that it has been submitted
by Mr Mehta and also by Ms Sona Khan appearing in the
appeal arising out of Special Leave Petition No. 6167 of 1993
that proper consideration had not been given to the standard
of education imparted by the said Hindi Sahitya Sammelan,
Prayag and expertise acquired by the holders of the aforesaid
degrees awarded by the said institution. In any event, when
proper medical facilities have not been made available to a
large number of poorer sections of the society, the ban
imposed on the practitioners like the writ petitioners
rendering useful service to the needy and poor people was
wholly unjustified. It is not necessary for this Court to
consider such submissions because the same remains in the
realm of policy decision of other constitutional functionaries.
We may also indicate here that what constitutes proper
education and requisite expertise for a practitioner in Indian
Medicine, must be left to the proper authority having
requisite knowledge in the subject. As the decision of the
Delhi High Court is justified on the face of legal position
flowing from the said Central Act of 1970, we do not think
that any interference by this Court is called for. These
appeals therefore are dismissed without any order as to
costs.”
16) It would be relevant to quote the following decision in Dr.
Sarwan Singh Dardi vs. State of Punjab and Others AIR
1987 P&H 81 wherein it was held as under:-
23
“12. In view of the clear provision in the two Central Acts,
namely, S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec.
(2)(b) of 1970 Act, no person who is not qualified in the
system of Modern Medicine and is not registered as such,
either in the State Register or the Central Register, is entitled
to practice modern system of medicine. Same is the case
regarding right to practice the system of Indian medicine
namely, that no person who is not possessed of requisite
qualification envisaged in the 1970 Act or a like legislation
by a State Legislature and is registered as such is entitled to
practice the system of Indian medicine.”
17) Similarly, in Ishaq Husain Razvi vs. State of U.P. and
Others AIR 1993 All. 283 it was held as under:-
“10….No doubt the Indian Medicines Central Council may
further include degrees and diplomas of other recognized
Universities and Institutions in the schedule of the Act, for
registration as Ayurvedic/Unani Tibbi medical practitioners.
The petitioner has failed to show that he possessed requisite
recognized qualification for registration entitling him for
practicing in Ayurvedic system of medicines….”
18) In our country, the qualified practitioners are much less
than the required number. Earlier, there were very few
Institutions imparting teaching and training to the Doctors,
Vaidyas and Hakimis but the situation has changed and there
are quite a good number of Institutions imparting education in
indigenous medicines. Even after 70 years of independence,
the persons having little knowledge or having no recognized or
approved qualification are practicing medicine and playing
24
with the lives of thousands and millions of people. The right
to practice any profession or to carry on any occupation, trade
or business is no doubt a fundamental right guaranteed under
the Constitution. But that right is subject to any law relating
to the professional or technical qualification necessary for
practicing any profession or carrying on any occupation or
trade or business. The regulatory measures on the exercise of
this right both with regard to the standard of professional
qualifications and professional conduct have been applied
keeping in view not only the right of the medical practitioners
but also the right to life and proper health care of persons who
need medical care and treatment.
Conclusion:
19) In our country, the numbers of qualified medical
practitioners have been much less than the required number
of such persons. The scarcity of qualified medical practitioner
was previously quite large since there were very few
institutions imparting teaching and training to Doctors,
Vaidyas, Hakims etc. The position has now changed and there
are quite a good number of medical colleges imparting
25
education in various streams of medicine. No doubt, now
there are a good numbers of such institutions training
qualified medical practitioners at number of places. The
persons having no recognized and approved qualifications,
having little knowledge about the indigenous medicines, are
becoming medical practitioners and playing with the lives of
thousands and millions of people. Some time such quacks
commit blunders and precious lives are lost.
20) The government had been vigilant all along to stop such
quackery. A number of unqualified, untrained quacks are
posing a great risk to the entire society and playing with the
lives of people without having the requisite training and
education in the science from approved institutions. The
Travancore-Cochin Medical Practitioners Act, 1953 as well as
the Indian Medicine Central Council Act, 1970 were also
enacted on the similar lines. Every practitioner shall be
deemed to be a practitioner registered under the Act if at the
commencement of this Act, his name stands entered in the
appropriate register maintained under the said Act and every
certificate of registration issued to every such practitioner
26
shall be deemed to be a certificate of registration issued under
this Act. But in the present case, the appellants herein have
failed to show that they possessed requisite recognized
qualification for registration entitling them to practice Indian
system of medicines or their names have been entered in the
appropriate registers after the commencement of this Act.
21) In view of the above discussion, we are of the considered
opinion that the High Court was right in dismissing the
petitions filed by the appellants herein. Consequently, the
appeals fail and are accordingly dismissed. Interlocutory
applications, if any, are disposed of accordingly. However, the
parties are left to bear their own costs.
…...…………….………………………J.
(R.K. AGRAWAL)
……..…....…………………………………J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
APRIL 13, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 897 OF 2009
Kerala Ayurveda Paramparya Vaidya Forum .... Appellant(s)
Versus
State of Kerala and Others .... Respondent(s)
WITH
CIVIL APPEAL NO. 898 OF 2009
CIVIL APPEAL NO. 899-900 OF 2009
CIVIL APPEAL NO. 901 OF 2009
CIVIL APPEAL NO. 902 OF 2009
CIVIL APPEAL NO. 903 OF 2009
CIVIL APPEAL NO. 904 OF 2009
CIVIL APPEAL NO. 905 OF 2009
J U D G M E N T
R.K. Agrawal, J.
1) The above appeals have been filed against the judgment
and order dated 08.01.2003 passed by the Division Bench of
the High Court of Kerala at Ernakulam in O.P. No. 24109 of
2
2001 and connected matters whereby the High Court had
dismissed the petitions filed by the appellants herein.
2) Brief facts:
(a) In the State of Kerala, a number of persons are practicing
in Sidha/Unani/Ayurveda system of medicine called as
“Paramparya Vaidyas’ and passing their knowledge and
experience to their descendants by way of training and
practice. Normally, almost all the descendants in the family
get training in the same field and adopt this as a profession
and means of livelihood.
(b) Kerala Ayurveda Paramparya Vaidya Forum (in short ‘the
Forum’) – the appellant herein is an association of
‘Paramparya Vaidyas’ in Travancore-Cochin, registered under
the Travancore-Cochin Literary, Scientific and Charitable
Societies Registration Act, 1955. The main objective of the
Forum is the welfare of its members and to render assistance
for practice in indigenous medicines.
(c) Pursuant to the enactment of the Travancore-Cochin
Medical Practitioners Act, 1953 (in short ‘the Act’), the
3
‘Paramparya Vaidyas’ were debarred from practicing
modern/homoeopathic/ayurvedic/siddha/unani-tibbi
medicines unless registered under the Act. Subsequently,
three Central Acts, viz., The Indian Medical Council Act, 1956,
The Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 with regard to
modern medicine, indigenous medicine and homoeopathic
medicine respectively came into force.
(d) Being aggrieved by the enactment of the Act, Akhila
Kerala Parambarya Vaidya Federation as well as the persons
practicing as ‘Paramparya Vaidyas’ filed a number of petitions
before the High Court. Learned single Judge of the High
Court, taking note of an affidavit filed by the State Government
stating that the question of granting registration to practice
medicines to the ‘Paramparya Vaidyas’ can be considered at
the time of enactment of Kerala Medical Practitioners Bill, by
order dated 17.06.1997 in O.P. No. 118 of 1991 and other set
of petitions, disposed of the original petitions while directing
the State Government to have a serious consideration of the
circumstances expeditiously.
4
(e) Several petitions were filed before the High Court by the
‘Paramparya Vaidyas’ claiming that the methods had been in
vogue for a considerable long period of time. The Division
Bench of the High Court, vide order dated 08.01.2003
dismissed the petitions filed by the appellants herein.
(f) Aggrieved by the order dated 08.01.2003, the appellants
have preferred these appeals by way of special leave.
3) Heard the arguments advanced by learned senior counsel
for the parties and perused the records. Since a common
question of law and facts arise in these appeals, they are being
disposed of by this common judgment.
Point(s) for consideration:-
4) The sole point for consideration before this Court is as to
whether the persons who do not fulfill the prescribed
qualification and are not duly registered under the relevant
Statute, be permitted to practice as ‘Paramparya Vaidyas’?
Rival Submissions:
5) Learned senior counsel for the appellants contended
before this Court that in the State of Kerala, a large number of
5
persons are practicing in Sidha/Unani/Ayurveda system of
medicines known as ‘Paramparya Vaidyas’, which are in vogue
for a long time. They have acquired knowledge and experience
from their gurus and parents and by continued practice over a
long period of time they have acquired the requisite expertise.
After the enactment of the Act, Section 38 empowered the
State Government to regulate the qualifications and to provide
for the registration of practitioners of modern medicine. It
took within its ambit the homeopathic and indigenous systems
of medicine as well. Learned senior counsel further contended
that due to the promulgation of the Act, the appellants, who
were not registered under the Act, were prevented from
practicing as ‘Paramparya Vaidyas’. Learned senior counsel
further contended that unlike modern systems, medicines for
each patient is being prepared after diagnosing the patient
according to his requirement considering his age, place, etc.
and there is no side effect in the treatment by these systems of
medicines. Finally, it was stressed upon by learned senior
counsel for the appellants that it is the custom that was
developed in the community that the ‘Vaidyas’ practicing in
6
these systems must pass their knowledge and heredity to
another in the family. So as a custom of the community, the
existing vaidyas have to preserve their old and indigenous
systems to retain their heredity and custom. It was also
contended that so many vaidyas practicing Ayurveda, Siddha,
Unani Tibbi had applied to the government for licence in
compliance of the provisions of the Act but the State
Government did not take any positive steps with regard to the
same instead the police and other authorities have been
harassing them for practicing in respective system of
medicines without obtaining licence or exemption as per the
provision to Section 38 of the Act.
6) He further contended that the High Court, therefore,
erred in approaching the issue on the basis that after the
coming into force of the Act only those persons who were
possessing recognized qualification have the right to practice
medicine. He further contended that it is settled law that any
mandatory prohibition has to be in express or unambiguous
terms and the alleged prohibition under Section 38 is to be
understood in the context of Section 32 of the Act.
7
7) Per contra, learned counsel for the State contended that
there are several persons in the State of Kerala practicing
Indian System of Medicine without any qualification or
registration which is in flagrant violation of Section 38 of the
Act and Section 17 of the Indian Medicine Central Council Act,
1970 (in short ‘the IMCC Act’). It was further stressed upon
that this unauthorized practice is a great threat to the health
and life of the people of the State as the practitioners are
producing alcoholic preparations and such preparations are
being misused without any licence or registration in the guise
of prescribing Indian System of Medicines. Learned counsel
further submitted that the IMCC Act does not take into
account the traditional practitioners or paramparya vaidyas.
The concept and practice of medicine by tradition was not
recognized by the Parliament at the time of the enactment of
the IMCC Act. It was further submitted that the Parliament
did not give any option to any person to commence practice
and continue to practice Indian System of Medicines without
proper qualification and registration as provided under the
IMCC Act and the only exemption is under Section 17(3)(c) of
8
the said Act which provides that a person who had been
practicing Indian System of Medicine for five (5) years at the
commencement of the IMCC Act could continue to practice
provided there has been no State Register maintained in that
State.
8) Learned counsel further submitted that the modus
operandi of such practitioners in the State is to register an
Association under the Societies Registration Act or the
Travancore-Cochin Literary, Scientific and Charitable Societies
Registration Act, with an object to enroll members and to issue
certificates in order to enable them to practice Indian System
of Medicine in the guise of ‘Paramparya Vaidyas’. Learned
counsel for the State further contended that in most of these
cases, there is no tradition or paramparayam for any of the
members of such registered Association and most of them
continue in the field of practice with bogus certificates, degrees
and diplomas. Learned counsel finally contended that the
bogus practitioners, without having requisite qualification and
registration, should not be allowed to play with the lives of the
9
people and to practice the Indian System of Medicine in the
State of Kerala.
Discussion:
9) Traditional or indigenous systems of medicine like
Ayurveda/Sidhha/Unani-Tibbi have largely evolved out of
sporadic and random processes of research and discovery
attributable to various self styled practitioners of these
systems of medicines. With a view to bring about an organized
development of these systems and standardize the mode of
treatment by the practitioners of these systems, legislations
have been framed by both the State Governments as well as
the Central Government. The legislative field for framing
legislation on these aspects is relatable to Entry 26, List III of
the Seventh Schedule of the Constitution of India. On these
lines, the Travancore-Cochin Medical Practitioners Act, 1953
was enacted with an object to regulate the qualifications and
provide for the registration of practitioners of modern medicine
10
and to enact a law relating to medical practitioners generally
in the State of Travancore-Cochin.
10) With this background, it is relevant to reproduce Section
17 of the IMCC Act as well as Sections 23 and 38 of the Act
which are as under:-
The Indian Medical Central Council Act, 1970
17. Rights of persons possessing qualifications included
in Second, Third and Fourth Schedules to be enrolled. –
(1) Subject to the other provisions contained in this Act, any
medical qualification included in the Second, Third or
Fourth Schedule shall be sufficient qualification for
enrolment on any State Register of Indian Medicine.
(2) Save as provided in section 28, no person other than a
practitioner of Indian medicine who possesses a recognized
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,-
(a) shall hold office as Vaid, Siddha, Hakim or [physician or
Amchi or] any other office (by whatever designation called) in
Government or in any institution maintained by a local or
other authority;
(b) shall practice Indian medicine in any State;
(c) shall be entitled to sign or authenticate a medical or
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 (1 of 1872), on any matter relating to
Indian Medicine.
(3) Nothing contained in sub-section (2) shall affect,-
(a) the right of a practitioner of Indian medicine enrolled on a
State Register of Indian Medicine to practise Indian medicine
in any State merely on the ground that, on the
commencement of this Act, he does not possess a recognized
medical qualification;
11
(b) the privileges (including the right to practice any system
of medicine) conferred by or under any law relating to
registration of practitioners of Indian medicine for the time
being in force in any State on a practitioner of Indian
medicine enrolled on a State Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a State
Register of Indian Medicine is not maintained if, on such
commencement, he has been practicing Indian medicine for
not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 (102 of 1956)[including the right to
practice medicine as defined in clause (f) of section 2 of the
said Act], on persons possessing any qualifications included
in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.
Travancore-Cochin Medical Practitioners Act, 1953
23. Eligibility for registration.-
(1) Subject to the provisions of sub-sections(2) and (5).-
(i) every holder of a recognised qualification and
every practitioner holding appointment under
the Government at the commencement of this
Act, and
(ii) every person who, within the period of one year
or such other longer period as may be fixed by
the Government from the date on which this Act
come into force, proves to the satisfaction of the
appropriate council that he has been in regular
practice as a practitioner for a period of not less
than five years preceding the first day of April,
1953.
shall be eligible for registration under this Act:
Provided however that no practitioner
shall be registered under clause (ii) after the
expiration of one year, or such other longer
period as may be fixed by the Government, from
the date on which this Act come into force.
(2) Applicants for registration under clause (ii) of
sub-section (1) shall produce a certificate in Form I as
12
set forth in the schedule. The certificate shall be from
an officer of the Revenue Department not below the
rank of a Tahsildar or any other person authorized by
the Government in this behalf.
(3) The Government may, after consulting the appropriate
council, permit the registration of any person who
shall furnish to such council proof that he is
possessed of a medication degree, diploma or
certificate of any University, medical school or college
approved by such council other than those mentioned
in the Schedule.
(4) The Government shall have power to direct the
registration of any practitioner who, at the time of
registration under this section, is employed in a
hospital, asylum, infirmary, clinic surgery, lying in
hospital, sanatorium, nursing home, dispensary,
vaidyasala or dharmasala managed by any corporate
body:
Provided however that no such practitioner shall
be registered under this sub-section after the
expiration of one year, or such other longer period as
may be fixed by the Government, from the date on
which this Act comes into force.
(5) No person shall be eligible for registration under
sub-section (1), sub-section (3), or sub-section (4) if he
is subject to any of the disqualifications mentioned in
clause (a) to (e) of Section 7.
38. Persons not registered under this Act, etc., not to
practice.- No person other than (i) a registered practitioner
or (ii) a practitioner whose name is entered in the list of
practitioners published under Section 30 or (iii) a
practitioner whose name is entered in the list mentioned in
Section 25 shall practice or hold himself out, whether
directly or by implication, as practising modern medicine,
homoeopathic medicine or ayurvedic medicine, siddha
medicine or unani tibbi and no person who is not a
registered practitioner of any such medicine shall practise
any other medicine unless he is also a registered practitioner
of that medicine:
Provided that the Government may, by notification in the
Gazette, direct that this section shall not apply to any person
or class or persons or to any specified area in the State
13
where none of the three classes of practitioners mentioned
above carries on medical practice:
Provided further that this section shall not apply to a
practitioner eligible for registration under this Act who, after
having filed the application for registration, is awaiting the
decision of the appropriate council or of the Government in
case of appeal:
Provided also that this section shall not apply to a
practitioner eligible for registration under this Act until the
period prescribed for application under Section 23 expires.
11) As per the statement of objects and reasons of the IMCC
Act, the Central Council was to evolve uniform standards of
education and registration of practitioners of the indigenous
systems of medicine and for that purpose a Register was to be
maintained under the IMCC Act in order to ensure that
medicine is not to be practiced by those who are not qualified.
The IMCC Act does not contemplate any exemption from the
provisions in the Act regarding qualification or registration of
practitioners in the various branches of indigenous medicine,
viz., ayurveda, siddha, unani etc. However, Section 17(3)(c) of
the IMCC Act has a provision for protecting persons who had
been practicing Indian system of Medicine for at least five
years as on the date of commencement of the Act. Such
persons could continue their practice provided there had been
14
no State Register maintained in the State on the
commencement of the IMCC Act.
12) In Dr. Mukhtiar Chand and Others vs. State of
Punjab and Others (1998) 7 SCC 579, this Court has held as
under:-
“17. Before adverting to these questions, it would be useful
to notice various systems of medicine in vogue in India and
the statutes regulating them:
The systems of medicines generally prevalent in India
are Ayurveda, Siddha, Unani, Allopathic and
Homoeopathic. In the Ayurveda, Siddha and Unani
systems, the treatment is based on the harmony of the
four humours, whereas in the Allopathic system of
medicine, treatment of disease is given by the use of a
drug which produces a reaction that itself neutralizes
the disease. In Homoeopathy, treatment is provided by
the like.
18. Of the medical systems that are in vogue in India,
Ayurveda had its origin in 5000 BC and is being practised
throughout India but Siddha is practised in the
Tamil-speaking areas of South India. These systems differ
very little both in theory and practice. The Unani system
dates back to 460-370 BC but that had come to be practised
in India in the 10th century AD (Park: Textbook of Preventive
and Social Medicine, 15th Edn., pp. 1 & 2). Allopathic
medicine is comparatively recent and had its origin in the
19th century.
42. Here it may be necessary to refer to the development of
law with regard to Indian medicine. In the pre-constitutional
era, each province of India was having its own enactment
regulating the registration and practice in Indian medicines
like the United Provinces Indian Medicine Act, 1939, the
Punjab Ayurvedic and Unani Practitioners Act, 1949, etc.
After the coming into force of the Constitution, many State
legislations were enacted to regulate the practise of Indian
medicine, Ayurvedic and Unani like the Punjab Ayurvedic
15
and Unani Practitioners Act, 1963, etc. However, on the
model of the 1956 Act, Parliament enacted the Indian
Medicine Central Council Act, 1970 (for short “the 1970
Act”). The schemes and provisions of the 1970 Act and the
1956 Act are analogous. “Indian medicine” is defined in
Section 2(e) of the Act to mean 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. In Section 2(j), the expression “State Register of
Indian Medicine” is defined to mean a register or registers
maintained under any law for the time being in force in any
State regulating the registration of practitioners of Indian
medicine. The Act contemplates having separate committees
for Ayurvedic, Siddha and Unani medicines. Section 17
enables, inter alia, the persons who possess medical
qualifications mentioned in the Second, Third or Fourth
Schedule to be enrolled on any State Register of Indian
Medicine. A perusal of the Second, Third and Fourth
Schedules shows that they contain both integrated medicine
as well as other qualifications. So a holder of a degree in
integrated medicine is entitled to be enrolled under Section
17 of the 1970 Act. Section 22 authorises the Central
Council to prescribe the minimum standards of education in
Indian medicine required for granting recognized medical
qualifications by universities, Boards or medical institutions
in India. The Central Council is enjoined to maintain the
Central Register of Indian Medicine containing the
particulars mentioned therein and Section 25 lays down the
procedure for registration in the Central Register of Indian
Medicine. The counterpart of Section 15 of the 1956 Act is
Section 17 of the 1970 Act. We shall quote it here:
“17. (1) Subject to the other provisions contained in
this Act, any medical qualification included in the
Second, Third or Fourth Schedule shall be sufficient
qualification for enrolment on any State Register of
Indian Medicine.
(2) Save as provided in Section 28, no person other than a
practitioner of Indian medicine who possesses a recognised
medical qualification and is enrolled on a State Register or
the Central Register of Indian Medicine,—
(a) shall hold office as vaid, siddha, hakim or physician or
any other office (by whatever designation called) in
Government or in any institution maintained by a local
or other authority;
16
(b) shall practise Indian 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
Indian medicine.
(3) Nothing contained in sub-section (2) shall affect,—
(a) the right of a practitioner of Indian medicine enrolled
on a State Register of Indian Medicine to practise
Indian medicine in any State merely on the ground
that on the commencement of this Act, he does not
possess a recognised medical qualification;
(b) the privileges (including the right to practise any
system of medicine) conferred by or under any law
relating to registration of practitioners of Indian
medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State
Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a
State in which, on the commencement of this Act, a
State Register of Indian Medicine is not maintained if,
on such commencement, he has been practising
Indian medicine for not less than five years;
(d) the rights conferred by or under the Indian Medical
Council Act, 1956 [including the right to practise
medicine as defined in clause (f) of Section 2 of the
said Act], on persons possessing any qualifications
included in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a
term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both.”
A perusal of the provisions extracted above shows that
sub-section (1) prescribes qualifications considered sufficient
for enrolment on any State Register of Indian Medicine.
Sub-section (2) ordains that all persons except those who
possess a recognised medical qualification and are enrolled
on a State Register or the Central Register of Indian
Medicine, are prohibited from doing any of the acts
mentioned in clauses (a) to (d) of that sub-section.
17
Sub-section (3), however, carves out an exception to the
prohibition contained in sub-section (2). Clause (a) thereof
saves the right to practice of any medical practitioner of
Indian medicine who was not having recognised medical
qualification on the date of the commencement of the 1970
Act but who was enrolled on a State Register to practise that
system of medicine; clause (b) protects the privileges which
include the right to practise any system of medicine which
was conferred by or under any law relating to registration of
practitioners of Indian medicine for the time being in force in
any State on a practitioner of Indian medicine who was
enrolled on a State Register of Indian Medicine; clause (c)
saves the right of a person to practise Indian medicine in a
State in which no State Register of Indian Medicine was
maintained at the commencement of that Act provided he
has been practising in Indian medicine for not less than five
years before the commencement of the Act and clause (d)
protects the rights conferred by or under the 1956 Act
including the right to practise modern medicine possessing
any qualification included in that Act. In other words, under
clause (d) 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 the
1956 Act. In view of this conclusion, it matters little if the
practitioners registered under the 1970 Act are being
involved in various programmes or given postings in
hospitals of allopathic medicine and the like.
43. It will be appropriate to notice that the 1970 Act also
maintains a similar distinction between a State Register of
Indian Medicine and the Central Register of Indian Medicine.
Whereas the State Register of Indian Medicine is maintained
under any law for the time being in force in any State
regulating the registration of practitioners of Indian
medicine, the Central Register of Indian Medicine has to be
maintained by the Central Council under Section 23 of that
Act. For a person to be registered in the Central Register,
Section 25 enjoins that the Registrar should be satisfied that
the person concerned was eligible under that Act for such
registration. Keeping this position in mind, if we read Section
17(3)(b), it becomes clear that the privileges which include
the right to practise any system of medicine conferred by or
under any law relating to registration of practitioners of
Indian medicine for the time being in force in any State on a
practitioner of Indian medicine enrolled on a State Register
18
of Indian Medicine, are not affected by the prohibition
contained in sub-section (2) of Section 17.”
Section 23 of the Act provides for eligibility conditions for
registration of medical practitioners. Under sub-Section (1), a
holder of a recognized qualification or holding appointment
under the government at the commencement of the Act and
every other practitioner who has been in regular practice for 5
(five) years preceding 1st April, 1953, if applies within one year
have been made eligible for registration. However, by Section
38 of the Act, persons not registered under the Act have been
prohibited from practicing various types of medicines. The
first proviso empowers the State Government to exempt any
person or class of persons from undergoing registration. It is
also evident that the Government of Kerala had granted
exemption to some traditional practitioners like those who
belonged to the renowned Ashtavaidya families.
13) The capacity to diagnose the disease would depend upon
the fact as to whether the practitioner had the necessary
professional skill to do so. Acquisition of professional skill is
again a regulated subject and the measure thereof is the
19
possession of a prescribed Diploma or Degree awarded by a
recognized Institution. What one might enquire with regard to
the right to practice medicine in the light of the above is as to
whether the appellants are equipped with such a professional
qualification. The answer is, obviously, in the negative, as
admittedly, the appellants do not possess any prescribed
Diploma or Degree from a recognized institution for that
purpose. Even a person who has acquired the prescribed
Diploma or Degree from a recognized institution would not be
entitled to practice medicine unless he is so registered under
the provisions of the IMCC Act.
14) In Dr. A.K. Sabhapathy vs. State of Kerala and
Others 1992 Supp (3) SCC 147, the provisions of Section 38 of
the Act and Sections 15 and 21 of the Indian Medical Council
Act, 1956 came up for consideration before this Court wherein
it was held as under:-
“16. We are, therefore, unable to agree with the view of the
High Court that the Central Act does not lay down the
qualifications for registration of a medical practitioner. We
may in this context refer to sub-section (1) of Section 15
which postulates the holding of a recognised medical
qualification by a person for being registered in the State
Medical Register so as to entitle to practise modern scientific
medicine in the State and sub-section (1) of Section 21
20
which provides that the Indian Medical Register that is
required to be maintained by the Medical Council of India
shall contain the name of persons who are for the time being
enrolled in the State Medical Register and who possess any
of the recognised medical qualifications. 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. We are, therefore, of the
view that the first proviso to Section 38 of the State Act
insofar as it empowers the State Government to permit a
person to practise allopathic system of medicine even though
he does not possess the recognised medical qualifications for
that system of medicine is inconsistent with the provisions of
Sections 15 and 21 read with Sections 11 to 14 of the
Central Act. The said proviso suffers from the vice of
repugnancy insofar as it covers persons who want to practise
the allopathic system of medicine and is void to the extent of
such repugnancy. Practitioners in allopathic system of
medicine must, therefore, be excluded from the scope of the
first proviso and it must be confined in its application to
systems of medicines other than the allopathic system of
medicine. We, however, wish to make it clear that we have
not considered the impact of the provisions contained in the
Indian Medicine Central Council Act, 1970 and the
Homoeopathy Central Council Act, 1973 on the provisions of
the said proviso to Section 38 of the State Act.”
Even though the impact of the provisions of the IMCC Act was
not considered but the provision of Section 17 of the IMCC Act
also provides for recognition of medical qualification included
in Second, Third and Fourth Schedules to be sufficient
qualification for enrolment on any State Register of Indian
Medicine. Thus the same principles as had been laid down in
21
Dr. A.K. Sabhapathy (supra), as reproduced above, will also
apply.
15) In the case of Delhi Pradesh Registered Medical
Practitioners vs. Director of Health, Delhi Administration
Services and Others (1997) 11 SCC 687, this Court has held
as under:-
“5. We are, however, unable to accept such contention of Mr
Mehta. Sub-section (3) of Section 17 of the Indian Medicine
Central Council Act, 1970, in our view, only envisages that
where before the enactment of the said Indian Medicine
Central Council Act, 1970 on the basis of requisite
qualification which was then recognised, a person got
himself registered as medical practitioner in the disciplines
contemplated under the said Act or in the absence of any
requirement for registration such person had been practising
for five years or intended to be registered and was also
entitled to be registered, the right of such person to practise
in the discipline concerned including the privileges of a
registered medical practitioner stood protected even though
such practitioner did not possess requisite qualification
under the said Act of 1970. It may be indicated that such
view of ours is reflected from the Objects and Reasons
indicated for introducing sub-section (3) of Section 17 in the
Act. In the Objects and Reasons, it was mentioned:
“[T]he Committee are of the opinion that the existing
rights and privileges of practitioners of Indian
Medicine should be given adequate safeguards. The
Committee, in order to achieve this object, have added
three new paragraphs to sub-section (3) of the clause
protecting (i) the rights to practise of those
practitioners of Indian Medicine who may not, under
the proposed legislation, possess a recognised
qualification subject to the condition that they are
already enrolled on a State Register of Indian Medicine
on the date of commencement of this Act, (ii) the
privileges conferred on the practitioners of Indian
22
Medicine enrolled on a State Register, under any law
in force in that State, and (iii) the right to practise in a
State of those practitioners who have been practising
Indian Medicine in that State for not less than five
years where no register of Indian Medicine was
maintained earlier.”
As it is not the case of any of the writ petitioners that they
had acquired the degree in between 1957 (sic 1967) and
1970 or on the date of enforcement of provisions of Section
17(2) of the said Act and got themselves registered or
acquired right to be registered, there is no question of getting
the protection under sub-section (3) of Section 17 of the said
Act. It is to be stated here that there is also no challenge as
to the validity of the said Central Act, 1970. The decision of
the Delhi High Court therefore cannot be assailed by the
appellants. We may indicate here that it has been submitted
by Mr Mehta and also by Ms Sona Khan appearing in the
appeal arising out of Special Leave Petition No. 6167 of 1993
that proper consideration had not been given to the standard
of education imparted by the said Hindi Sahitya Sammelan,
Prayag and expertise acquired by the holders of the aforesaid
degrees awarded by the said institution. In any event, when
proper medical facilities have not been made available to a
large number of poorer sections of the society, the ban
imposed on the practitioners like the writ petitioners
rendering useful service to the needy and poor people was
wholly unjustified. It is not necessary for this Court to
consider such submissions because the same remains in the
realm of policy decision of other constitutional functionaries.
We may also indicate here that what constitutes proper
education and requisite expertise for a practitioner in Indian
Medicine, must be left to the proper authority having
requisite knowledge in the subject. As the decision of the
Delhi High Court is justified on the face of legal position
flowing from the said Central Act of 1970, we do not think
that any interference by this Court is called for. These
appeals therefore are dismissed without any order as to
costs.”
16) It would be relevant to quote the following decision in Dr.
Sarwan Singh Dardi vs. State of Punjab and Others AIR
1987 P&H 81 wherein it was held as under:-
23
“12. In view of the clear provision in the two Central Acts,
namely, S. 15, sub-sec. (2)(b) of 1956 Act and S. 17 sub-sec.
(2)(b) of 1970 Act, no person who is not qualified in the
system of Modern Medicine and is not registered as such,
either in the State Register or the Central Register, is entitled
to practice modern system of medicine. Same is the case
regarding right to practice the system of Indian medicine
namely, that no person who is not possessed of requisite
qualification envisaged in the 1970 Act or a like legislation
by a State Legislature and is registered as such is entitled to
practice the system of Indian medicine.”
17) Similarly, in Ishaq Husain Razvi vs. State of U.P. and
Others AIR 1993 All. 283 it was held as under:-
“10….No doubt the Indian Medicines Central Council may
further include degrees and diplomas of other recognized
Universities and Institutions in the schedule of the Act, for
registration as Ayurvedic/Unani Tibbi medical practitioners.
The petitioner has failed to show that he possessed requisite
recognized qualification for registration entitling him for
practicing in Ayurvedic system of medicines….”
18) In our country, the qualified practitioners are much less
than the required number. Earlier, there were very few
Institutions imparting teaching and training to the Doctors,
Vaidyas and Hakimis but the situation has changed and there
are quite a good number of Institutions imparting education in
indigenous medicines. Even after 70 years of independence,
the persons having little knowledge or having no recognized or
approved qualification are practicing medicine and playing
24
with the lives of thousands and millions of people. The right
to practice any profession or to carry on any occupation, trade
or business is no doubt a fundamental right guaranteed under
the Constitution. But that right is subject to any law relating
to the professional or technical qualification necessary for
practicing any profession or carrying on any occupation or
trade or business. The regulatory measures on the exercise of
this right both with regard to the standard of professional
qualifications and professional conduct have been applied
keeping in view not only the right of the medical practitioners
but also the right to life and proper health care of persons who
need medical care and treatment.
Conclusion:
19) In our country, the numbers of qualified medical
practitioners have been much less than the required number
of such persons. The scarcity of qualified medical practitioner
was previously quite large since there were very few
institutions imparting teaching and training to Doctors,
Vaidyas, Hakims etc. The position has now changed and there
are quite a good number of medical colleges imparting
25
education in various streams of medicine. No doubt, now
there are a good numbers of such institutions training
qualified medical practitioners at number of places. The
persons having no recognized and approved qualifications,
having little knowledge about the indigenous medicines, are
becoming medical practitioners and playing with the lives of
thousands and millions of people. Some time such quacks
commit blunders and precious lives are lost.
20) The government had been vigilant all along to stop such
quackery. A number of unqualified, untrained quacks are
posing a great risk to the entire society and playing with the
lives of people without having the requisite training and
education in the science from approved institutions. The
Travancore-Cochin Medical Practitioners Act, 1953 as well as
the Indian Medicine Central Council Act, 1970 were also
enacted on the similar lines. Every practitioner shall be
deemed to be a practitioner registered under the Act if at the
commencement of this Act, his name stands entered in the
appropriate register maintained under the said Act and every
certificate of registration issued to every such practitioner
26
shall be deemed to be a certificate of registration issued under
this Act. But in the present case, the appellants herein have
failed to show that they possessed requisite recognized
qualification for registration entitling them to practice Indian
system of medicines or their names have been entered in the
appropriate registers after the commencement of this Act.
21) In view of the above discussion, we are of the considered
opinion that the High Court was right in dismissing the
petitions filed by the appellants herein. Consequently, the
appeals fail and are accordingly dismissed. Interlocutory
applications, if any, are disposed of accordingly. However, the
parties are left to bear their own costs.
…...…………….………………………J.
(R.K. AGRAWAL)
……..…....…………………………………J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI;
APRIL 13, 2018.
