Supreme Court of India
AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAIversusSTATE OF MAHARASHTRA AND ANR.
- Citation
- 2009 INSC 287
- Decided
- 27 February 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Only persons whose names are entered in the Central Register under the Indian Medicine Central Council Act, 1970 may practice throughout India; inclusion in a State Register alone does not confer that right.
Summary
The petitioners, Ayurvedic practitioners enlisted in the Bihar State Register but lacking recognised qualifications under the Indian Medicine Central Council Act, 1970, claimed a constitutional right to practice throughout India under Article 19(1)(g) and Section 29 of the Central Act, asserting that inclusion in a State Register automatically entitled them to be entered in the Central Register. The Supreme Court examined whether the statutory scheme permits such a right and whether the restriction is a reasonable one under Article 19(6). It held that only persons whose names are entered in the Central Register may practice nationwide; mere inclusion in a State Register does not confer that right, and the petitioners do not possess recognised qualifications to be entered in the Central Register. Consequently, the petitioners cannot claim a pan‑India right to practice, and the prosecution under Section 33 of the Maharashtra Act for past infractions was stayed, though future action remains permissible. The appeals were dismissed.
Issues considered
- The effect of inclusion in a State Register on the right to practice across India under Article 19(1)(g).
- Whether Section 29 of the Indian Medicine Central Council Act, 1970, imposes a reasonable restriction on the right to practice under Article 19(6).
- The applicability of Section 33 of the Maharashtra Medical Practitioners Act to the petitioners.
- The eligibility of persons without recognised qualifications to be entered in the Central Register.
Legislation cited
- Indian Medical Council Act, 1956
- Indian Medicine Central Council Act, 1970s. 17(3A), s. 2(1)(d), s. 2(1)(h), s. 2(1)(j), s. 23, s. 29, s. 33
Subjects
Article 19(1)(g)Article 19(6)Right to practiceCentral RegisterState RegisterReasonable restrictionIndian Medicine Central Council ActMaharashtra Medical Practitioners ActAyurvedic practitioners
Judgment
[2009] 3 S.C.R. 840 ...
4-
A AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAI
v.
STATE OF MAHARASHTRA AND ANR.
(Civil Appeal No. 1337 of 2007)
FEBRUARY 27, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.) •
Constitution of India, 1950: Articles 19(1)(g), 19(6) -
c Right to practice - Registered practitioners - Non-inclusion
of name in Central Register - Name included in the register
of a particular State - Held: Right to practice is restricted in
view of s.29 of 1970 Act - Only if name finds place in the
Central Register, right to practice in any part of the country
D exist - In terms of Article 19(6), reasonable restriction can "'
always be put on the exercise of right under Article 19(1)(g) -
Maharashtra Medical Practitioners Act, 1961 - s.17(3A) -
Indian Medicine Central Council Act, 1970 - s.29.
The writ petitions were filed by degree/diploma
E
holders of Vaidya Visharad/Ayurved Ratna and by those
practising in Ayurved for a long period. Their names were
included in the Bihar State Register. Their claim was that
though they did not hold any degree or diploma or •
certificate of any recognized institution, they possessed
F sufficient knowledge and skill requisite for educational
practice of medicines, surgery and acquired certain
amount of eminence in the medical science and they were
practicising in different places mostly in rural places of
Maharashtra and so as a matter of right entitled to be
G included in the Central Register and entitled to practice
in any part of the country. Writ petitions were dismissed. ...
., .
Hence the appeals.
Dismissing the appeals, the Court
H 840
AYURVEDICENLISTEDOOCTOR'SASSON., MUMBAI v. STATE 841
OF MAHARASHTRA AND ANR.
HELD: 1. The appellant's claim that once the name A
is included in the register of a particular State there is a
right to practice in any part of the country is not tenable
on the face of Section 29 of the Indian Medicine Central
Council Act, 1970. The right to practice is restricted in the
sense that only if the name finds place in the Central B
Register then the question of practising in any part of the
country arise. 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 c
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 Medical Practitioners Act, 1961 refers to 0
Section 23 of the Central Act relating to Central Register.
Section 17(1) relates to the register for the State. It is for
the State to see that there is need for having qualification
in terms of Second and Fourth Schedule. In terms of
Article 19(6) of the Constitution, reasonable restriction E
can always be put on the exercise of right under Article
19(1)(g). [Para 8) [854-E-H; 855-A]
Dr. A.K. Sabhapathy v. State of Kerela and Ors. (1992)
3 SCC 147 and Udai Singh Dagar v. Union of India (2007)
10 SCC 306, referred to F
2. Sub-section (3) of Section 17 of the Central Act,
only envisages that where before the enactment of the
said Central Act, on the basis of requisite qualification
which was then recognised, a person got himself G
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
practicising for five years or intended to be -registered
and was also entitled to be registered, the right of such H
842 SUPREME COURT REPORTS [2009] 3 S.C.R.
-
A 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. [Para
10] (856-E-H; 857-A]
B
Delhi Pradesh Registered Medical Practitioners v.
Director of Health, Delhi Admn. Services and Ors. (1997) 11
sec 687, relied on.
3. The High Court was justified in dismissing the writ
C petitions. However, the prosecution was lodged in terms
of Section 33 for alleged violation of provisions of the
Maharashtra Act. Considering the peculiar facts of the
-
case it is directed, that the prosecution shall not be
continued in respect of the past infractions. However, in
D future, it is open to the authorities to act as provided in .. ,..
the Statute. [Para 11] (858-F-G]
Case Law Reference:
(1992) 3 sec 147 referred to Para 8
E
(2001) 1o sec 306 referred to Para 9
(1997) 11 SCC 687 relied on Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1337 of ~
2007.
F
From the Judgment and Order dated 22.12.2006 of the
High Court of Judicature at Bombay in W.P. No. 452 of 2005.
S.M. Jhadav, Vishwajit Singh, Sunil Kr. Verma, D.K. Gag,
Aparna Jha, Balraj Dewan, M.J. Paul, R.K. Adsure, V.N.
G Raghupathy, Asha Gopalan Nair, Rakesh Uttamchandra
Upadhyay and Niranjana Singh for the Petitioner.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Leave granted.
H
AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAI v. STATE 843
OF MAHARASHTRA AND ANR. [DR. ARIJIT PASAYAT, J.]
2. In these appeals challenge is to the final judgment of the A
Bombay High Court dismissing the writ petitions filed by the
appellants while granting the limited relief to those writ
petitioners who hold degree or diploma in Electropathy or
Homeo-Electropathy. Though their writ petitions were
dismissed it was made clear that so far as those who hold B
degree or diploma in Electropathy or Homeo-Electropathy may
practice in Electropathy or Electrotherapy without registration
as medical practitioners but they would not be entitled to
practice as or claim to be medical practitioners, doctors etc
and they were also not entitled to use any title, like Dr. or any c
abbreviations prefixing or suffixing their names which may
indicate that they are doctors or medical practitioners. Three
categories of persons filed the writ petitioners before the High
Court. They are as follows:
(i) The persons who hold either the degree or diploma of D
Vaidya Visharad or Ayurved Ratna or some other
equivalent degree awarded by Hindi Sahitya Sammelan
Prayag or Hindi Sahitya Sammelan Allahabad and some
other institutions whose degree and diplomas are not
recognised in Schedule II of the Indian Medical Central E
Council Act, 1970
(ii) The persons who claim to be practicising in Ayurved
on the basis of long experience
(iii) The persons who claim to hold degrees or diplomas F
in Electropathy or Homeo-Electropathy.
3. The present appeals relate to the first and second
category. The first category relate to Civil Appeal Nos.1337/
2007, 1338/2007, 1339/2007, 1884/2007, Civil Appeal arising G
out of SLP(C) No.19079/2007, Civil Appeal 2769/2007, 2807/
2007, 4196/2007, 4982/2007 and the second category relates
to Civil Appeal Nos.3543/2008, 4064/2007 and 2810/2007.
4. Stand of the appellants in essence is that they were
registered as practitioners under the Bihar Development of H
844 SUPREME COURT REPORTS [2009] 3 S.C.R. ~
4o
A Ayurvedic and Unani Systems of Medicine Act, 1951 (in short
the 'Bihar Act') in terms of the Schedule as referred to under
Sections 22, 23, 24, 25 and 26. Their names were entered in
the register as registered practitioners. Though they did not hold
any degree or diploma or certificate of any recognised institution
B they possess sufficient knowledge and skill requisite for
educational practice of medicines, surgery and have acquired
certain amount of eminence in the medical science and also
fulfill the conditions imposed by the regulations made by the
Bihar State Council of Ayurvedic and Unani Medicines (in short
c the 'Council'). They were practicising in different places mostly
in rural places of Maharashtra. Section 21 of the Bihar Act
refers to the maintenance of registers. Section 22 deals with
persons entitled to be registered. Under the said provision
every person possessing any of the qualifications specified in
the Schedule shall subject to the provisioris contained in the
D
Bihar Act and on payment of the prescribed fees be entitled to
have his name entered in the register subject to such conditions
as the Council may impose. Undisputedly, the names of the
appellants have been entered in the registers and they have
been registered. The Indian Medicine Central Council Act,
E 1970 (in short the 'Central Act') was introduced in 1970. Prior
to that the Maharashtra Medical Practitioners Act, 1961 (in
short the 'Maharashtra Act') was enacted and was in force. The
appellants claim that they belong to the third category as >
enumerated in the Schedule. The Presidential assent to the
F Bihar Act was given on 12th September, 1951. Under the
Central Act, the Central registers in terms of Section 2(1 )(d)
has to be maintained. Section 2( 1)(j) refers to the State
Register. It is submitted that Section 17 of the Central Act is of
considerable relevance. Section 17(1) refers to possession of
G medical qualifications included in Second, Third and Fourth
~
Schedules for enrolment in the State Register of Indian •
Medicine. It is pointed out that Section 17(2) refers to
recognised medical qualification. With reference to Section 14
of the Central Act, it is submitted that medical qualifications
H granted by any University, Board or other medical institution
AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAI v. STATE 845
OF MAHARASHTRA AND ANR. [DR ARIJIT PASAYAT, J.]
J
which are included in the Second Schedule shall be recognised A
medical qualifications for the purpose of the Act. Section 23
of the Central Act deals with Central Register and it provides
that Central Council shall cause to be maintained in the
prescribed manner a register of practitioners in separate parts
for each of the system of Indian medicine. It shall contain the B
names of all persons who are for the time being enrolled on
any State Register of Indian Medicine and who possess any
of the recognised medical qualifications. It is pointed out that
merely because the appellant do not possess the requisite
medical qualification that cannot in any way disentitle them from c
practicising as same would be violative of Article 19(1)(g) of
the Constitution of India, 1950 (in short the 'Constitution'). Under
Section 29 of the Central Act, a person whose name is included
in the Central Register is entitled as a matter of right to practice
in any part of India. Since the names of the appellants find
D
place in the Bihar State Registers they are, as a matter of right,
entitled to be included in the Central Register. It is submitted
that the restriction imposed under the Central Act from
practicing, unless names appear in the Central Register will be
violative of Article 14. With reference to Section 33 of the
Maharashtra Act, more particularly, the first proviso thereof, it E
is submitted that the State is empowered to permit any person
to practice on certain criteria being fixed. With reference to
4
Section 37 of the Maharashtra Act which has been deleted it
is submitted that permission was given to those who were
practicising in the rural areas, by deleting the section the F
permission has been taken out and such deletion is not
sustainable in law. Even though Section 37 has been deleted,
under the proviso to Section 33 the State Government can yet
make a provision for giving permission to persons like the
appellants. It is pointed out that the Central Government also G
felt the need for giving protection to persons like the appellants
and recommendations were made.
5. It is also submitted that the Madras High Court had given
certain directions which are equitable and the same procedure
H
846 SUPREME COURT REPORTS [2009] 3 S.C.R.
A can be followed in these cases in case of appellants. In some
of the appeals denial is on the ground that certificates were not
-
found of recognised institutions.
6. Learned counsel for the respondent··State on the other
hand submitted that there was no question of any right to
8 practice. As contended the educational qualifications
prescribed are regulatory measures and they are reasonable
restrictions. It is pointed out that even in the case of Diploma
holders in Veterinary Science, this Court had declined to
interfere. They, according to the respondents, stood on a better
C ·footing than the present appellants. The stand that the
appellants have undergone some process of screening is of
no consequence. The prayer that the appellants can be
considered in the light of proviso to Section 33 is also mis-
conceived.
D
7. It is necessary to take note certain provisions.
BIHAR ACT:
"21. Maintenance of registers- Subject to any general or
E special order, which may from time to time be made by
the Council, the Registrar shall maintain a register or
registers of vaidyas, hakims, surgeons and midwives
practicing the Ayurvedic or Unani System of medicine in
the State of Bihar in the prescribed form and it shall be
the duty of the Registrar to keep the register correct and
F
up-to-date, as far as practicable in accordance with the
provisions made by or under this Act.
22. Persons. entitled to be registered- (1) Every person
possessing any of the qualifications specified in the
G Schedule shall subject to the provisions contained in this
Act, and on payment of the prescribed fees be entitled to •
have his name entered in the register subject to such
conditions as the council may impose:
Provided that an application for entry of the name in
H
AYURVEDIC ENLISTED DOCTOR'SASSON., MUMBAI v. STATE 847
OF MAHARASHTRA AND ANR. [DR ARIJIT PASAYAT, J.]
> )
the register of a person whose case is not clearly governed A
by the provisions of this Act or by the rules and regulations
made thereunder shall be referred to the Council for such
decisions as it may deem fit.
(2) Any person aggrieved by the decision of the Register
regarding the registration of any person or the making of B
any entry in the register may within ninety days of such
registration or entry appeal to the Council.
(3) Such appeal shall be heard and decided by the Council
in the prescribed manner. c
(4) The Council may, on its own motion or on the
application of any person cancel or alter any entry in the
register if, in the opinion of the Council, such entry was
)'
incorrect or was made on account of mis-representation.
D
SCHEDULE:
3. Every vaidya or hakim who in the opinion of the Council
possesses sufficient knowledge and skill requisite for the
efficient practice of medicine, surgery or midwifery and
enjoys a certain amount of eminence in the medical E
science and who fulfils the conditions imposed by
regulations made by the Council as to length of practice.
__.
Maharashtra Act
- "2(n)- 'Registered Practitioner' means a practitioner
whose name is for the time being entered in the register.
F
17. REGISTRATION OF PRACTITIONERS.
17 (1) As soon as may be after the appointed day, the
Registrar shall prepare and maintain thereafter a register G
• of practitioners of Indian Medicine for the State, in
accordance with the provisions of this Act.
(2) The register shall be divided into three parts, namely :
H
848 SUPREME COURT REPORTS (2009] 3 S.C.R.
....
A (i) Part I containing the names of practitioners who
possess any of the qualifications specified in the Schedule;
[(ii) Part II containing the names of practitioners,
whose names were included in that part immediately
before the 1st day of October 1976;
B
(iii) Part Ill containing the names of practitioners, who
on the 30th day of September 1976 were enlisted
practitioners and who are on that day deemed to have
become registered practitioners under section 18.
c Each part shall consist of one or more sections as
the State Government may specify in this behalf.
(3) Every person who possesses any of the qualifications
specified in the Schedule shall, at any time on an
application made in the form prescribed by rules, to the
..
D
Registrar and on payment of a fee of five hundred rupees
be entitled to have his name entered in the register.
(3A) Notwithstanding anything contained in any law for the
time being in force, every person enrolled on the register
E maintained under the Indian Medicim:i Central Council Act,
1970, but not enrolled on the register maintained under this
Act, shall, on an application and on payment of the fee as
provided in sub-section (3), be entitled to have his name •
entered-in the register maintained under this Act.
F
(4) The name of every person who on the day immediately
preceding the appointed day stood registered in any
-
register kept under-
(a) the Bombay Medical Practitioner's Act, 1938, as
G in force in the Bombay area of the State ; or
(b) the Central Provinces and Berar Ayurvedic and •
Unani Practitioner's Act, 1947, as in force in the Vidarbha
regon of the State; or
H (c) the Medical Act, as in fore in the Hyderabad area
AYURVEDIC ENLISTED DOCTOR'SASSON., MUMBAI v. STATE 849
OF MAHARASHTRA AND ANR. [DR ARIJIT PASAYAT, J.]
.. A
of the State;
shall be entered in the register prepared under this Act
without such permission being required to make an
application or to pay any fee.
(5) Any person, not being a person qualified for B
registration under sub-section (3) or (4), who proves to the
satisfaction of the Committee appointed under sub-section
(6) -
(i) that he had been regularly practising the Ayurvedic
or the Unani system of medicine in the Vidarbha region
c
or the Hyderabad area of the State, for a period of not less
than ten years immediately before the 23rd day of
November 1960 ; or
A
1
(ii) that he was on the 4th day of November 1941 D
regularly practising the Ayurvedic or the Unani system of
medicine in the Bombay area of the State, but his name
was not entered in the register maintained under the
Bombay Medical Practitioner's Act, 1938; or
(iii) that his name had been entered in the list kept E
under section 18 of the Bombay Medical Practitioner's Act,
1938, by virtue of paragraph (ii) or (iii) of sub-section (1)
-~ of section 31 C inserted in that Act by the Bombay Medical
Practitioner's (Amendment)Act, 1949, and stood included,
on the day immediately preceding the date of the F
commencement of the Maharashtra Medical Practitioner's
(Amendment) Act, 1964, in the list maintained under this
Act, by virtue of clause (a) of sub-section (2) of section 18,
shall, on an application made in the form prescribed by G
rules, accompanied by a fee of ten rupees and such
~
documents as may be prescribed by rules, on or before
the 31st day of March 1965, be entitled to have his name
entered in the register.
(6) All applications for registration under sub-section (5) H
850 SUPREME COURT REPORTS [2009) 3 S.C.R.
...
A shall be considered by a Committee of th1ree members of
the Council appointed by the State Government. The
Committee shall make enquiry in such mainner as may be
prescribed by rules. The Committee shall not entertain any
further application from a person, if an application made
B by him under clauses (i) or (ii) of sub-section (5) has
already been decided by it.
(7)(a) Any person aggrieved by the decision of the
Committee appointed under sub-section (6) may, within a
period of one month from the date of which such decision
c is communicated to him, on payment of a fee of five "'."'
rupees, appeal to the appellate authority constituted by the
State Government in this behalf. The appellate authority
shall consist of a Chairman who has for at least seven
years held judicial office not lower in rank than that of a 1
D District Judge, one member elected by the Council, and
the Director of Ayurved shall be the ex-officio member. The
decision of the appellate authority shall be final.
(b) Notwithstanding anything contained in clause {a) any
person aggrieved by such decision of the Committee, who
E
has not already appealed to the appellate authority
aforesaid before the date of the commencement of the
Maharashtra Medical Practitioners' (Amendment) Act,
1964, may on or before the 31 st day of March 1965, on •
payment of a like fee of five rupees, appeal to the
F appellate authority.
(7A) If on an application for registration made under clause
(iii) of sub-section (5) or on appeal under sub-section (7),
a person is found eligible for registration, then on his name
G being included in the register the entry of his name in the
list shall be cancelled. •
(8) The register shall include the following particulars,
namely:
H (a) the full name and residential address of the registered
AYURVEDIC ENLISTEDDOCTOR'SASSON., MUMBAI v. STATE 851
OF MAHARASHTRA AND ANR. [DR. ARIJIT PASAYAT, J.]
,.
practitioner; A
(b) the date of his admission to the register maintained
under this Act; and if he, be a person who was registered
on the day immediately preceding the appointed day, in a
register kept under any of the Acts referred to in sub-
section (4), the date of his admission to that register; B
(c} the qualification specified in the Schedule possessed
by him, if any, and the date on which he obtained the
qualification and the authority which conferred or granted
it; and c
(d) such further particulars as may be prescribed by rules.
(9) When the register is prepared in accordance with the
foregoing provisions the Registrar shall publish a notice
in the Official Gazette and such newspapers as the Council D
may select, about the register having been prepared, and
the register shall come into force from the date of the
publication of such notice in the Official Gazette.
(1 O)(a) Every registered practitioner shall be given a
certificate of registration in the form prescribed by rules. E
The registered practitioner shall display the certificate of
registration in a conspicuous place in his dispensary, clinic
-<I
or place of practice.
(b} Such certificate shall be valid until it is duly cancellecf
F
and the name of the practitioner is removed from the
register under the provisions of this Act; and every
certificate of registration given before the commencement
of the Maharashtra Medical Practitioners (Amendment)
Act, 1972 which is valid on such commencement shall\,
subject to the provisions of section 23A, be valid likewise, G
.._ and shall continue accordingly .
/ .i
(c) Where it is shown to the satisfaction of the Registrar
that a certificate of registration has been defaced, lost or
destroyed, the Registrar may, on payment of the H
852 SUPREME COURT REPORTS [2009] 3 S.C.R.
prescribed fee, issue a duplicate certificate in such form •
A
as may be prescribed.
Section 33: Prohibition of medical practice by
persons not registered-(1) Notwithstanding anything
contained in any law for the time being in force or in any
B judgment, decree or order of any Cou1rt, no person other
than a medical practitioner whose name is entered in-
(i) the register maintained under this Act; or
(ii) the register or the list prepared and maintained under
c the Bombay Homoeopathic and Biochemic Practitioners
Act, 1959 (Born. XII of 1960) or under any other law for
the time being in force in relation to the qualifications and
registration of Homoeopathic or Biochemic Practitioners
in any part of the State; or
D
(iii) the register prepared and maintained under the
Maharashtra Medical Council Act, 19165 ; (Mah XLVI of
1965), or
(iv) the Indian Medical Register prepared and maintained
E under the Indian Medical Council Act, 1956 (Cll of 1956).
Shall practice any of medicine in the State:
Provided that the State Government may, by
i'
Notification in the Official Gazette, direct that subject to
such conditions as it may deem fit to impose and the
F
payment of such fees as may be prescribed by Rules, the
provisions of this Section shall not apply to any class of
persons, or to area, as may be specified in such
Notification.
G (2) Any person, who acts in contravention of any of the
provisions of sub-section ( 1) shall, on conviction be
punished-
'
(a) for the first offence, with rigorous imprisonment for a
. ' -
term which shall not be less than twu years but which may
H
AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAI v. STATE 853
OF MAHARASHTRA AND ANR. [DR. ARIJIT PASAYAT, J.]
extend to five years and with fine which shall not be less A
than two thousand rupees but which may extend to ten
thousand rupees; and
(b) for a second or subsequent offence, with rigorous
imprisonment for a term which may extend to ten years and
B
with the fine which may extend to twenty-five thousand
rupees:
Provided that, when the contravention continued after
the order of conviction a further fine which may extend to
five hundred rupees, for each day of continuation of such c
contravention, may be imposed.
Section 37- Liberty to practice in rural areas-
Notwithstanding anything contained in this Chapter, a
• person may practice medicine in any rural area
D
(i) if he has commenced practice in any village in the said
area prior to a date on which a practitioner registered
under the Bombay Medical Act, 1912 (Born. VI of 1912)
or under the Bombay Medical Practitioners' Act, 1938
(Born. XXVI of 1938), (or any law corresponding thereto) E
or under the Bombay Homoeopathic Act, 1951 (Born.
XLVlll of 1951), (or other law in relation to the qualifications
and registration of Homoeopathic or Biochemic
.. Practitioners) for the time being in force, has commenced,
and is in regular practice of medicine in that village, and F
(ii) so long as he continues to practice in that village as
his principal place of practice.
Explanation- For the purposes of this Sectioh, "rural area'
means- G
~
(i) any local area in the Bombay are of the State, which
was not within the limits of a municipal corporation,
municipality, cantonment or notified area Committee on the
1st day of March 1939; and
H
854 SUPREME COURT REPORTS [2009) 3 S.C.R.
A (ii) any local area in the rest of the State, which is not within
the limits of a municipal corporation, municipality, municipal
committee, town committee, cantonment or notified area
committee on the date of passing of this Act.
irrespective of any change in the designation or description
B of such local area at subsequent date."
CENTRAL ACT:
2(1)(d)- 'Central Register of Indian Medicine' means the
register maintained by the Central Council under this Act.
c
2(1)(h)- 'recognised medical qualification' means any of
the medical qualifications, including post-graduate medical
qualification, of Indian Medicine included in the Second,
Third or Fourth Schedule.
D 2(1)(j)- 'State Register of Indian Medicine' means 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."
E 8. So far as the claim that once the name is included in
the register of .a particular State there 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
F the question ofpracticising in any part of the country arise. The
conditions under Section 23 of the Central Act are cumulative.
Since the appellants undisputedly do not possess recognised
medical qualifications as defined in Section 2(1)(h) their names
cannot be included in the Central Register. As a consequence,
G 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
H State to see that there is need for having qualification in terms
AYURVEDIC ENLISTED DOCTOR'SASSON., MUMBAI v. STATE 855
OF MAHARASHTRA AND ANR. [DR ARIJIT PASAYAT, J.]
of Second and Fourth Schedule. The claim of the appellants is A
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(1 )(g).
In Dr. A.K. Sabhapathy v. State of Kerela and Ors. (1992 (3)
SCC 147) the case related to Section 38 of the Travancore- B
Cochin Medical Practitioners Act, 1953. The Statute is almost
in pari materia with provision to Section 33 of the Maharashtra
Act. Though in that case the State Government had granted
exemption, this Court observed that same cannot be granted.
The State Act in that sense was repugnant to the Central Act c
in the background of Medical Council Act, 1956.
9. In Veterinary Science, this Court in Udai Singh Dagar
v. Union of India (2007 (10) SCC 306) inter-alia observed as
follows:
D
"41. We, therefore, are of the opinion that even in the matter
of laying down of qualification by a statute, the restriction
imposed as envisaged under second part of Clause (6)
of Article 19 of the Constitution of India must be construed
being in consonance with the interest of the general public.
E
The tests laid down, in our opinion, stand satisfied. We
may, however, notice that Clause (6) of Article 19 of the
Constitution of India stands on a higher footing vis-a-vis
~ Clause (5) thereof. We say so in view of the celebrated
decision of this Court in State of Madras v. V. G. Row (AIR
1952 SC 196) wherein it was stated: (AIR p.200, para 15) F
"15 ... It is important in this context to bear in mind
that the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned, and
no abstract standard or general pattern of reasonableness G
can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions H
856 SUPREME COURT REPORTS [2009] 3 S.C.R.
A at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances
of a given case, it is inevitable that the social philosophy
and the scale of values of the Judges participating in the
B decision should play an important part, and the limit to their
interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-
restraint and the sobering reflection that the Constitution
is meant not only for people of their way of thinking but for
all, and that the majority of the elected representatives of
c the people have, in authorising the imposition of the
restrictions, considered them to be reasonable."
D
42. The tests laid down therein viz. the test of
reasonableness as also general public interest, however,
may not ipso facto apply in a case involving Clause (6)
of Article 19 of the Constitution of India."
--
10. So far as the degrees and diplomas of non-recognised
institutions are concerned this Court had occasion to deal with
E the issue in Delhi Pradesh Registered Medical Practitioners
v. Director of Health, Delhi Admn. Services and Ors. (1997
(11) SCC 687). It was inter-alia observed as follows:
"5. We are, however, unable to accept such contention of
Mr Mehta. Sub-section (3) of Section 17 of the Indian
F Medicine Central Council Act, 1970, in our view, only
envisages that where before the enactment of the said
Indian Medicine Central Act, 1970 on the basis of requisite
qualification which was then recognised, a person got
himself registered as medical practitioner in the disciplines
G 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
H
AYURVEDIC ENLISTED DOCTOR'S ASSON., MUMBAI v. STATE 857
OF MAHARASHTRA AND ANR. [DR. ARIJIT PASAYAT, J.]
protected even though such practitioner did not possess A
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: B
'The 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 the object, have
added three new paragraphs to sub-section (3) of C
the clause protecting (1) 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 D
Indian Medicine on the date of commencement of
this Act, (ii) the privileges conferred on the
practitioners of Indian 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 E
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."
F
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 G
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 H
858 SUPREME COURT REPORTS (2009) 3 S.C.R. •
A 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
B 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
c 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
D
constitutional functionaries. W'e 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
E 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."
F
11. Above being the position, the High Court was justified
in dismissing the writ petitions. However, the prosecution was
lodged in terms of Section 33 for alleged violation of provisions
of the Maharashtra Act. Considering the peculiar facts of the
G case we direct that the prosecution shall not be continued in
respect of the past infractions. However, from today onwards,
it is open to the authorities to act as provided in the Statute. ,
The appeals are dismissed subject to the directions relating
to the prosecution. Costs made easy.
H D.G. Appeals dismissed.
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