Madras High Court
Unknown vs The Secretary on 13 April, 2023
W.P.No.32004 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.04.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.32004 of 2017
1.S.S.Jothenathan
2.M.P.Subramaniyan
3.R.Renuga
4.P.Rajaraajan
5.S.Vasudevan
6.A.Ramesh
7.D.Krishnakumar
8.R.Venkateswaran
9.R.Vignesh
10.Amm.Sreenivasan
11.R.Elango
12.S.Thangadurai
13.I.Rajasekar
14.S.Sivaramakumar
15.R.Ravichandran
16.S.Bharani
17.S.Alagarasan
18.K.Shanmugasundaram
19.S.Balakrishanan
20.C.Sekar
21.A.Hariramar
22.P.Gokulakrishanan
23.S.Elango
24.D.Emamali
25.A.Murugesan
26.B.Prabakaran
27.M.Velusamy
1/15
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W.P.No.32004 of 2017
28.T.Lalitha
29.T.M.Manivannan
30.A.Balasubramaniyan
31.E.Palanivel
32.J.Jaba Anandan
33.T.A.R.Ubaithullah
34.K.Udayakumar
35.K.Thirunavukkarasu
36.J.Shakulhameed
37.A.Ramanathan
38.A.Jebakumar
39.N.Ramachandiran
40.R.Senthamilselvam
41.A.M.Thandavamoorthy
42.S.Kamaraj
43.D.Paramanantham
44.R.Gomathi
45.P.Kaliyaperumal
46.S.Palaniammal
47.G.Kathiravan
48.T.Murugesan
49.K.Nagarajan
50.B.Ranganathan ...Petitioners
Vs.
1.The Secretary,
Ministry of Health & Family Welfare
Department,
156, A.Nirman Bhawan,
New Delhi.
2.The Secretary,
Department of Ayurveda, Yoga & Naturopathy,
Unani, Siddha and Homoeopathy (AYUSH)
Indian Red Cross Society Building,
Red Cross Road, New Delhi – 110 001.
2/15
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W.P.No.32004 of 2017
3.The Registrar,
Department of AYUSH Tamil Nadu,
Arumbakkam,
Chennai – 106. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, to direct the respondents herein to recognition
the B class medical practitioners of the petitioners based on education,
experience and grant further and other reliefs which the petitioners are
entitled to and pass appropriate orders in my representation dated 07.7.17,
27.10.17.
For Petitioners : Mr.K.M.Boopathy
For R1 & R2 : Mr.T.V.Krishnamachari
Senior Panel Counsel
For R3 : Mr.T.Arunkumar
Additional Government Pleader
ORDER
The writ of mandamus has been filed to direct the respondents to
recognize the petitioners as 'B' class Medical Practitioners based on their
education, experience by considering the representation dated 07.07.17 and
27.10.17.
2. Fifty petitioners filed the present writ petition, stating that they are
Traditional Healers and possess knowledge for treating the patients. The
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W.P.No.32004 of 2017
knowledge has been transmitted orally from generation to generation and
additionally, the petitioners have passed Diploma in alternate medicine. The
parents of the petitioners and their ancestors all are traditional healers in
their villages and therefore, the petitioners are to be recognized as Medical
Practitioners.
3. The respondent council recognize the degree persons, who passed
degree as 'A' Class Medical Practitioners and persons, who passed diploma
and possessed five years experience in hospital services as ‘B’ Class
Medical Practitioners. On 08.09.2008, the 2nd respondent recognized the
said category of persons studied in Travancore Sidha Vaidya Sangam.
Illiterate 10 years Medical practitioners are classified as ‘C’ Class. In view
of the fact that the petitioners are also traditional healers and possessing
knowledge in medical practice, they are to be recognized as ‘B’ class
medical practitioners as per the provisions.
4. The law relating to registration of medical practitioners underwent
several changes and the 2nd respondent filed a counter affidavit, elaborately
stating that the petitioners relied on Section 13-B of the Indian Medicine
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W.P.No.32004 of 2017
Central Council (Amendment) Act, 2002. Section 13-B is a kind of penal
provision, which states that in the absence of prior permission of the Central
Government, the Medical qualification granted to a student of a new
medical college or a college which has started a higher course of study or a
college which has increased its admission capacity would not be recognized.
Section 13-C stipulates that (a) all existing medical college (b) Colleges
which had started higher courses of study and (c) Colleges which had
increased admission capacity would have to seek permission from the
Central Government within a period of three years from the commencement
of the Amendment Act, i.e., by 06.11.2006.
5. Therefore, the persons, who acquired qualification from the
recognized medical institutions alone are entitled to practise as Medical
Practitioners under the provisions of the Act. The respondents relied on the
judgment of the Hon’ble Supreme Court of India in respect of such medical
practitioners and Paragraph No.16 of the counter affidavit states as under:
“16. That the issue of medical practitioners utilizing AYUSH
disciplines being subjected to the requirements of statutes
pertaining to 'medicine' was before the Hon'ble Supreme Court in
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W.P.No.32004 of 2017
Kerala Ayurveda Paramparya Vaidya Forum Vs. State of Kerala
and Ors. (2018) 6 SCC 648:
“4. The sole point for consideration before this
Court is as to whether the persons who do not fulfil the
prescribed qualification and are not duly registered
under the relevant statute, be permitted to practise as
“Paramparya Vaidyas”?
5. Learned Senior Counsel for the appellants
contended before this Court that in the State of Kerala, a
large number of persons are practising in
Siddha/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 homoeopathic and indigenous systems of medicine as
well. The 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
practising as “Paramparya Vaidyas”. The learned Senior
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W.P.No.32004 of 2017
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 the learned Senior
Counsel for the appellants that it is the custom that was
developed in the community that the “Vaidyas” practising
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 practising
Ayurveda, Siddha, Unani-Tibbi had applied to the
Government for licence in compliance with 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
practising in respective system of medicines without
obtaining licence or exemption as per the proviso to
Section 38 of the Act.
7. Per contra, the learned counsel for the State
contended that there are several persons in the State of
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W.P.No.32004 of 2017
Kerala practising 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 unauthorised
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 ....
.......
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 organised development of these systems and
standardise 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.
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
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W.P.No.32004 of 2017
purpose a Register was to be maintained under the IMCC
Act in order to ensure that medicine is not to be practised
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.
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 possession of a prescribed diploma
or degree awarded by a recognised institution. What one
might enquire with regard to the right to practise
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 recognised institution for that
purpose. Even a person who has acquired the prescribed
diploma or degree from a recognised institution would
not be entitled to practise medicine unless he is so
registered under the provisions of the IMCC Act.
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W.P.No.32004 of 2017
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 hakims 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 recognised or approved
qualification are practising medicine and playing with the
lives of thousands and millions of people. The right to
practise 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 practising 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.
19........The persons having no recognised and
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W.P.No.32004 of 2017
approved qualifications, having little knowledge about
the indigenous medicines, are becoming medical
practitioners and playing with the lives of thousands and
millions of people. Sometimes such quacks commit
blunders and precious lives are lost.”
Thus, the Hon'ble Supreme Court has laid down that medical practitioners
engaged in AYUSH disciplines are in no manner exempt from requirements
under the Indian Medical Central Council Act 1970. The law that has been
propounded by the Hon'ble Supreme Court in the aforementioned case is
that even AYUSH practitioners are at par with other medical practitioners
in so far as their role is concerned, thus they have to be subject to the same
requirements and criteria.
6. In the present case, the petitioners have not established that they
possess a valid degree from the recognized medical institutions as per the
Medical Council Act, Rules and Regulations. Such diploma or degrees
obtained from an unrecognised institutions cannot be a ground to claim
recognition. In the event of possessing a valid medical qualification, the
petitioners are entitled to submit appropriate application before the Council
for registration of their names.
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W.P.No.32004 of 2017
7. Thus, the relief as such sought for in the present writ petition
cannot be granted. If at all the petitioners continue to practice medicine
without any registration or recognition, they are liable to be prosecuted
under the penal provisions of the Act and also under the general law.
8. In this regard, the State authorities are bound to conduct periodical
inspections and identify all such medical practitioners, who do not possess
valid degree or recognition or permission from the Medical Council and
prosecute them in the manner known to law.
9. The Director General of Police, Mylapore, Chennai, and the
Director of Public Health and Preventive Medicine, DMS Compound,
Chennai are directed to conduct periodical inspections through their
subordinates and to identify and prosecute the persons, who all are illegally
practising medicine without registration and recognition from the Medical
Council.
10. The Right to Life as enshrined under Article 21 of the
Constitution of India includes decent medical facilities to be provided. It is
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W.P.No.32004 of 2017
the duty of the 'State' to ensure quality medical facility to the citizen, which
is an integral part of Article 21 of the Constitution of India. Therefore, such
inspections are imminent and the authorities are bound to be vigilant in the
matter of identifying fake medical practitioners in the interest of public.
11. With these directions, the writ petition stands dismissed. No costs.
13.04.2023
Index : Yes
Speaking order
Neutral Citation:Yes
kak
Note: Registry is directed to communicate the copy of this order to the
Director General of Police, Dr.Radhakrishnan Salai, Mylapore, Chennai –
600 004 and to the Director of Public Health and Preventive Medicine,
359, Anna Salai, DMS Complex, Teynampet, Chennai – 600 006.
To
1.The Secretary,
Ministry of Health & Family Welfare
Department, 156, A.Nirman Bhawan,
New Delhi.
2.The Secretary,
Department of Ayurveda, Yoga & Naturopathy,
Unani, Siddha and Homoeopathy (AYUSH)
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W.P.No.32004 of 2017
Indian Red Cross Society Building,
Red Cross Road,
New Delhi – 110 001.
3.The Registrar,
Department of AYUSH Tamil Nadu,
Arumbakkam,
Chennai – 106.
Copy to:
1.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
2.The Director of Public Health and
Preventive Medicine,
359, Anna Salai, DMS Complex,
Teynampet,
Chennai – 600 006.
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W.P.No.32004 of 2017
S.M.SUBRAMANIAM, J.
kak
W.P.No.32004 of 2017
13.04.2023
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