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       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

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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

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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

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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

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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

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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

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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:-

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“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

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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

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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

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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.