Supreme Court of India
KERALA AYURVEDA PARAMPARYA VAIDYA FORUMversusSTATE OF KERALA AND OTHERS
- Citation
- 2018 INSC 336
- Decided
- 13 April 2018
- Disposal
- Dismissed
- Bench
- R K AGRAWAL
Holding
Unregistered practitioners lacking recognised qualifications cannot practise Indian system medicines; the statutory qualification requirements under the 1953 Act and the IMCC Act are paramount and no exemption applies.
Summary
The Kerala Ayurveda Paramparya Vaidya Forum, an association of traditional practitioners of Ayurveda, Siddha and Unani, challenged the Travancore‑Cochin Medical Practitioners Act, 1953 which barred them from practising unless they were registered under the Act. The Forum argued that they had long‑standing custom, inherited knowledge and that the prohibition infringed their constitutional right to practice a profession. The Supreme Court examined the statutory scheme of the 1953 Act together with the Indian Medicine Central Council Act, 1970, which require a recognised qualification and registration for any practitioner of Indian system medicines. The Court held that the right to practice is subject to these qualification laws and that the exemption provisions did not apply to the appellants, who could not demonstrate the requisite qualifications or registration. Consequently, the Court upheld the High Court’s dismissal of the petitions and dismissed the appeals, leaving each party to bear its own costs.
Issues considered
- Whether the Travancore‑Cochin Medical Practitioners Act, 1953 and the Indian Medicine Central Council Act, 1970 prohibit unregistered Paramparya Vaidyas from practising Indian system medicines.
- Whether Section 17(3)(c) of the IMCC Act provides an exemption to such traditional practitioners.
- Whether the fundamental right to practice a profession can override statutory qualification requirements.
- Whether the State may exempt persons under the proviso to Section 38 of the 1953 Act in the absence of recognised qualifications.
Legislation cited
- Homoeopathy Central Council Act, 1973
- Indian Medical Council Act, 1956s. 15, s. 21
- Indian Medicine Central Council Act, 1970s. 17, s. 17(3)(c)
- Travancore‑Cochin Medical Practitioners Act, 1953s. 23, s. 32, s. 38
Subjects
Fundamental Right to Practice ProfessionMedical RegistrationParamparya VaidyaTravancore‑Cochin Medical Practitioners ActIndian Medicine Central Council ActQualification RequirementsQuackeryTraditional MedicineConstitutional LawPublic Health
Judgment
566 [2018]
SUPREME COURT 5 S.C.R. 566
REPORTS [2018] 5 S.C.R.
A KERALA AYURVEDA PARAMPARYA VAIDYA FORUM
v.
STATE OF KERALA AND OTHERS
(Civil Appeal No. 897 of 2009)
B APRIL 13, 2018
[R. K. AGRAWAL AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Travancore-Cochin Medical Practitioners Act, 1953 – s.38
C and ss.23, 32– Appellant-association consisting of ‘Paramparya
Vaidyas’ who have been practicing in Siddha/Unani/Ayurveda system
of medicine and passing their knowledge and experience to their
descendants by way of training and practice – Under the 1953 Act,
Paramparya Vaidyas were debarred from practicing modern/
homeopathic/ayurvedic/siddha/unani-tibbi medicines unless
D registered under the Act – Challenged by appellant, dismissed by
High Court – Held: Right to practice any profession or to carry on
any occupation, trade or business is a fundamental right guaranteed
under the Constitution – But that right is subject to any law relating
to the professional or technical qualification necessary for
E practicing any profession or carrying on any occupation/trade/
business – Every practitioner is deemed to be a practitioner
registered under the 1953 Act if at the commencement of the Act, his
name stands entered in the appropriate register and every certificate
of registration issued to every such practitioner shall be deemed to
be a certificate of registration issued under the 1953 Act – But in
F the present case, the appellants 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 the 1953 Act – High Court was right in dismissing the petitions
G filed by the appellants – Constitution of India – VIIth Schedule, List
III, Entry 26 – Indian Medicine Central Council Act, 1970 – s.17 –
Indian Medical Council Act, 1956 – Homeopathy Central Council
Act, 1973.
Travancore-Cochin Medical Practitioners Act, 1953 – Object
of – Discussed.
H
566
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 567
STATE OF KERALA AND OTHERS
Indian Medicine Central Council Act, 1970 – s.17(3)(c) – A
Exemption under, when available – Discussed.
Dismissing the appeals, the Court
HELD: 1.1 The Travancore-Cochin Medical Practitioners
Act, 1953 was enacted with an object to regulate the qualifications B
and provide for the registration of practitioners of modern
medicine and to enact a law relating to medical practitioners
generally in the State of Travancore-Cochin. [Para 9] [573-F]
1.2 The Indian Medicine Central Council Act, 1970 does
not contemplate any exemption from the provisions in the Act C
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 D
practice provided there had been no State Register maintained
in the State on the commencement of the IMCC Act. [Para 11]
[577-B]
1.3 Section 23 of the 1953 Act provides for eligibility
E
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 F
Section 38 of the 1953 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.
[Para 12] [581-D-E]
G
1.4 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 possession of
a prescribed Diploma or Degree awarded by a recognized
H
568 SUPREME COURT REPORTS [2018] 5 S.C.R.
A Institution. 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. [Para 13] [581-G-H; 582-A]
B
Conclusion:
1.5 The right to practice any profession or to carry on any
occupation, trade or business is a fundamental right guaranteed
under the Constitution. But that right is subject to any law relating
C
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
D 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. [Para 18] [585-F-H]
1.6 Every practitioner shall be deemed to be a practitioner
registered under the 1953 Act if at the commencement of this
E Act, his name stands entered in the appropriate register
maintained under the said Act and every certificate of registration
issued to every such practitioner shall be deemed to be a
certificate of registration issued under this Act. But in the present
case, the appellants have failed to show that they possessed
F 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. [Para 20] [586-E-F]
Dr. A.K. Sabhapathy v. State of Kerala and Others
G (1992) 3 Suppl. SCC 147 : [1992] 2 SCR 653 – held
applicable.
Dr. Sarwan Singh Dardi v. State of Punjab and Others
AIR 1987 P&H 81 ; Ishaq Husain Razvi v. State of
U.P. and Others AIR 1993 All. 283 – approved.
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 569
STATE OF KERALA AND OTHERS
Dr. Mukhtiar Chand and Others v. State of Punjab and A
Others (1998) 7 SCC 579 : [1998] 2 Suppl. SCR 143
– relied on.
Delhi Pradesh Registered Medical Practitioners v.
Director of Health, Delhi Administration Services and
Others (1997) 11 SCC 687 : [1997] 4 Suppl. SCR 514 B
– referred to.
Case Law Reference
[1998] 2 Suppl. SCR 143 relied on Para 12
C
[1992] 2 SCR 653 held applicable Para 14
[1997] 4 Suppl. SCR 514 referred to Para 15
AIR 1987 P&H 81 approved Para 16 D
AIR 1993 All. 283 approved Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 897 of
2009.
E
From the Judgment and Order dated 08.01.2003 of the High Court
of Kerala at Ernakulam in O. P. No. 24109 of 2001 (T)
WITH
Civil Appeal Nos. 898, 901, 899-900, 902, 903, 904, 905 of 2009. F
C.S. Rajan, Mathai M. Paikaday, Sr. Advs., T. G. Narayanan Nair,
K. N. Madhusoodhanan, Naveen R. Nath, Abhimanyu Verma,
Ramesh K., Shishir Pinaki, Sanjay Jain, Advs. for the Appellant.
Dr. M. P. Raju, Ashwani Bhardwaj, James P. Thomas, Ms. Sana G
Zaidi, G. Prakash, Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena
Prakash, Manu Srinath, Nishe Rajen Shonker, Rakesh Uttamchandra
Upadhyay, Ramesh Babu M. R., Shrish Kumar Misra, Mrs. K. Sarada
Devi, Alex Joseph, C.K. Sasi, M.K. Michael, Advs. for the
Respondents.
H
570 SUPREME COURT REPORTS [2018] 5 S.C.R.
A The Judgment of the Court was delivered by
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
2001 and connected matters whereby the High Court had dismissed the
B 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
C 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’
D 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
E Practitioners Act, 1953 (in short ‘the Act’), the ‘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
F 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
G
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
H have a serious consideration of the circumstances expeditiously.
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 571
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
(e) Several petitions were filed before the High Court by the A
‘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 B
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. C
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’? D
Rival Submissions:
5. Learned senior counsel for the appellants contended before
this Court that in the State of Kerala, a large number of persons are
practicing in Sidha/Unani/Ayurveda system of medicines known as
E
‘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 F
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,
G
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’
H
572 SUPREME COURT REPORTS [2018] 5 S.C.R.
A practicing in 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
B
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
C 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
D the context of Section 32 of the Act.
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
E 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
F 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
G Medicines without proper qualification and registration as provided under
the IMCC Act and the only exemption is under Section 17(3)(c) of 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.
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 573
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
8. Learned counsel further submitted that the modus operandi A
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
B
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 C
of the 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 D
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 E
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 and to
enact a law relating to medical practitioners generally in the State of F
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
G
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. H
574 SUPREME COURT REPORTS [2018] 5 S.C.R.
A (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
B 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
C 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.
D
(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
E this Act, he does not possess a recognized medical qualification;
(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
F 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;
G
(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.
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 575
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
(4) Any person who acts in contravention of any provision of sub- A
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.- B
(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 C
(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 D
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, E
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 set forth in the F
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 G
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.
H
576 SUPREME COURT REPORTS [2018] 5 S.C.R.
A (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:
B 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
C (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
D (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
E 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 where none of the
F 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
G 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.
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 577
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
11. As per the statement of objects and reasons of the IMCC Act, A
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
B
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 no C
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:-
D
“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 E
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.
F
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
G
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.
H
578 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 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
B
the Constitution, many State legislations were enacted to regulate
the practise of Indian medicine, Ayurvedic and Unani like the
Punjab Ayurvedic 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”).
C 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
D
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
E 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
F
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
G 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:
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 579
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
“17. (1) Subject to the other provisions contained in this Act, A
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 B
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; C
(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
(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 E
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 F
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 G
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;
H
580 SUPREME COURT REPORTS [2018] 5 S.C.R.
A (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
B
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
C 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. Sub-section
(3), however, carves out an exception to the prohibition contained
in sub-section (2). Clause (a) thereof saves the right to practice
D
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
E 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
F
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.
G 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
H
medicine and the like.
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 581
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
43. It will be appropriate to notice that the 1970 Act also maintains A
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
B
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 C
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, are not affected by the
prohibition contained in sub-section (2) of Section 17.”
D
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, E
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 F
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 G
the measure thereof is the 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
H
582 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 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.
B 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
C 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
D Section 21 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
E 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
F 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
G 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
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 583
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
than the allopathic system of medicine. We, however, wish to A
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 B
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 Dr. A.K. Sabhapathy (supra), as reproduced above,
will also apply. C
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 D
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 E
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 F
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 G
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
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584 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 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 Medicine enrolled on a State Register, under any law in
force in that State, and (iii) the right to practise in a State of
B
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
C 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
D 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
E 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
F 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
G 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.”
H
KERALA AYURVEDA PARAMPARYA VAIDYA FORUM v. 585
STATE OF KERALA AND OTHERS [R. K. AGRAWAL, J.]
16. It would be relevant to quote the following decision in Dr. A
Sarwan Singh Dardi vs. State of Punjab and Others AIR 1987 P&H
81 wherein it was held as under:-
“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 B
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 C
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 D
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….”
E
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 F
qualification are practicing medicine and playing 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
G
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. H
586 SUPREME COURT REPORTS [2018] 5 S.C.R.
A 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
B Doctors, Vaidyas, Hakims etc. The position has now changed and there
are quite a good number of medical colleges imparting 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
C 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
D 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
E stands entered in the appropriate register maintained under the said Act
and every certificate of registration issued to every such practitioner
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
F 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
G dismissed. Interlocutory applications, if any, are disposed of accordingly.
However, the parties are left to bear their own costs.
Divya Pandey Appeals dismissed.
H
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