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Equivalent citations: AIR 2003 Ker 188, 2003 (1) KLT 520
Author: J L Gupta
Bench: J L Gupta, M Ramachandran

JUDGMENT

Jawahar Lal Gupta, C.J.

1. “Should persons who do not fulfil the prescribed qualifications and are not duly registered under the relevant statute be permitted to practise as Vaidyas?” This is the core of the controversy in this case.

2. We have a bunch of 46 petitions. Out of these, O.P. Nos. 27784 and 21923 of 2002 form one part and the remaining 44 petitions constitute the second part. In the first set of petitions, the main prayer is for a declaration that a person who does not possess the recognised qualification and is not registered under the Act is not entitled to practise medicine. In the second set of cases, the petitioners do not possess the prescribed qualifications. They are not even registered. Yet, the prayer is for the issue of a writ of mandamus declaring that they are entitled “either to get exemption from Section 38 of the Travancore-Cochin Medical Practitioners Act, 1953 or to get registration under the provisions of the said Act.” The facts as averred in O.P. No. 27784 of 2002 (from the first set) may be briefly noticed.

3. The petitioner is a registered Society. According to it, the State Legislature had enacted the Travancore-Cochin Medical Practitioners Act, 1953. The persons who had undergone the prescribed course of study and possessed the requisite qualifications were entitled to be registered and practise medicine. The qualifications, etc., as laid down under the Act, have been periodically amended. Later on, the Indian Medicine Central Council Act, 1970 was enacted. The purpose of both the statutes is to ensure that “medicine is not practised by those who were not qualified………”

4. The petitioner alleges that “there are several persons in the State of Kerala practising Indian System of Medicine (ISM) without any qualification or registration.” This is in flagrant violation of the pro visions of Section 38 of the Travancore-Cochin Medical Practitioners Act, 1953 and Section 17 of the Indian Medicine Central Council Act, 1970. On this basis, the petitioner prays for a declaration that a person who does not fulfil the qualification is not entitled to practise medicine. The claim in the connected case viz., O.P. No. 21923 of 2002 is on the same lines.

5. A brief reference to the factual position in the other set of cases is also relevant. The facts as averred in O.P. No. 4439 of 1999 may be briefly noticed.

This petition has been filed by 138 persons. They claim to be ‘Paramparya Vaidyas’. They are practicing in Ayurveda, Siddha, Marma, Bahchikitsa, Prakruthi Chikitsa, Yoga, etc. The petitioners claim that these methods had been in vogue for a long time. They have acquired knowledge and experience “from their Gurus and parents ……” The petitioners have also stated that O.P. No. 11950 of 1996 had been filed in this Court. It was disposed of by the order dated June 26, 1998 with a direction to the State Government (1st respondent) to consider and decide the representation (Ext. P3). After the disposal of the Writ Petition, the Government had considered the advisability of enacting a comprehensive legislation governing the registration of Medical Practitioners. The Bill called “Kerala Medical Practitioners Bill” was drafted. It could be promulgated only with the approval of Government of India. The matter was referred to the competent authority. Certain queries were made by the Government of India. In view of this position, the petitioners were informed that their representations can be considered only after the proposal for enacting the legislation is approved by the Central Government. Faced with this situation, the petitioners pray that they have no other remedy except to approach this Court.

It is the case of the petitioners that Section 38 of 1953 Act empowered the State Government “to permit any person to practise medicine without registration…….”.. The Government has exercised this power and granted exemption to various persons by different orders. Copies of the orders dated May 5, 1982, June 25, 1986 and August 3, 1983 have been produced to show that exemption has been granted to different persons at different times.

The petitioners are not registered under the 1953 Act. As a result the respondents are creating difficulties and preventing them from practising as ‘Paramparya Vaidyas’.

6. Despite opportunity, no counter affidavit has been filed on behalf of the respondents. The counsel for the parties have been heard.

7. Learned counsel for the petitioners in the first set of cases has contended that only qualified persons are entitled to practise medicine. A person who does not possess the requisite qualification and is not registered under the relevant statute cannot administer any treatment to a sick person. On the other hand, learned counsel for the petitioners in the second set of cases have contended that by continued practice over a long period of time they have acquired the requisite expertise and persons who are similarly placed have been granted exemption from registration in terms of Section 38 of the 1953 Act. The action in denying a similar relief to the petitioners in the44 petitions listed before the Bench suffers from the vice of discrimination. Thus the respondents should be directed to permit the petitioners to practise as ‘Paramparya Vaidyas’.

8. It is in the light of the above pleas that the question as posed at the outset has to be considered.

9. The Travancore-Cochin Medical Practitioners Act, 1953 was promulgated to regulate the qualifications and to provide for the registration of practitioners of modern medicine. It took within its ambit the homeopathic and the indigenous systems of medicine. Section 23 of the Act inter alia provides that “every holder of a recognized qualification” shall be eligible for registration. The qualifications have been delineated in the Schedule to the statute. So far as Ayurveda and Siddha systems of medicine are concerned, the qualifications are mentioned in Part C. The provision and procedure for registration have been given. Section 30 requires the Registrar of the Council to publish in the Gazette the list of the names and qualifications of all practitioners registered under the Act. Section 38, to which reference has been made by counsel for the parties, provides as under:

“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, homeopathic 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 of persons or to any specified area in the State 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.”

10. A perusal of the above provision shows that only a person whose name is entered in the register is entitled to practise medicine. By the first proviso, the Government has been given the power to direct that the provision shall not apply to any person or class of persons. It is a power to grant exemption. The power, in the very nature of things, can be exercised for a good reason. Not arbitrarily.

11. The 1953 Act was enacted to ensure that only competent and qualified persons practise medicine. Those who were not qualified were ineligible and as such were liable to be punished under Section 39. Still further similar provisions were made in the Madras Medical Registration Act, 1914 for the erstwhile Malabar area in the State of Kerala. On a cumulative consideration of the provisions of the two statutes it is clear that persons who have not been registered as medical practitioners are not entitled to administer any medicine. The obvious object of the statutes is to check quackery.

12. The counsel for the petitioners in the second set of cases contend that exemption has been granted to various persons; It is undoubtedly so. Copies of the orders produced by the petitioners indicate that by different orders passed in the years 1983 and 1986 exemption was granted. However, nothing has been placed on record to show that the petitioners in the present set of cases are similarly placed with the persons who were granted exemption. Equally, it has also not been shown that the petitioners have submitted any petition for the grant of exemption to the State Government.

13. Smt. Asha, counsel for the petitioner in one of the cases, submits that an application dated June 10, 1991 had been submitted by the petitioner in O.P. No. 8924 of 2000. A similar claim has also been made on behalf of the petitioners in O.P. No. 29838 of 2002. Reference has been made to the representation (Ext. P8).

14. So far as this aspect of the matter is concerned, it deserves notice that the conditions of eligibility forregistration etc., have been laid down in Section 23. Under Clause (1) Sub-clause (ii) even persons who have been practising for a period of five years preceding the first day of April, 1953 were made eligible for registration. Still further, in the proviso, it was laid down 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.” The obvious implication was that the application for registration on the basis of experience had to be made within the prescribed period of one year. Thereafter, the power to grant exemption was under Section 138. It could be invoked. But, the provision does not confer an indefeasible right to the citizen to claim exemption. It only embodies an enabling provision. A person who does not fulfil the qualifications cannot claim, as of right, the grant of exemption. Equally, it cannot be said that the mere fact that exemption has been granted to some persons and not to others, the action is per se discriminatory. In this context, it deserves mention that there is a presumption of validity regarding every action. The burden of proving that the position is otherwise, lies on the person who complains. It was for the petitioners to show that equals had been treated unequally. Nothing has been pointed from the records to show that the petitioners are similarly placed with the persons who had been granted exemption. Thus, the charge of discrimination cannot be sustained.

15. Mr. K.S. Babu, learned counsel for the petitioners in O.P. Nos. 27727/2000, 34903/2000, 3321/2001 and 6725/2002, very fairly states that in view of the above finding the claim of the petitioners in these petitions for entitlement to prepare medicines cannot be sustained. Thus, the petitions are liable to be dismissed. We order accordingly.

16. Mr. G. Hariharan, learned counsel for the petitioners, has placed reliance on the decision of the Calcutta High Court in Matter No. 546 of 1988 to support the claim for exemption. In this case, the petitioner had challenged the notification issued by the Government of West Bengal. Even a report lodged by the Sub Inspector of Police, under Sections 417 and 420 of the Indian Penal Code read with Section 5 of the Indian Medical Degree Act, 1916, Sections 30 and 31 of the Bengal Medical Act, 1914 etc., was under challenge. The factual position in that case was totally different from the present set of cases. Thus, the decision is not of any real relevance to the present controversy.

17. From the facts, it is clear that under the 1953 Act only those persons who have acquired the qualification from the institutions included in the schedule are entitled to practise medicine and claim registration. Since the petitioners in the second set of cases do not fulfil the qualifications, the claim made by them cannot be sustained. As a result, O.P. Nos. 21923 and 277 84 of 2002 are allowed. The remaining petitions are dismissed: The parties are left to bear their own costs.

 

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Fight Against Quackery

* Homble High Court of kerala declared only registered practioners eligible to practise Ayurveda and dismissed 48 petitions filed by
unqualified practitioners in the OP filed by AMAI
* Strikes to withdraw Go for granting recognition to quacks by Government of Kerala in 2009.
* The Govt withdrawn the GO after strike.
* Strikes to withdrawn GO for grandting recognition to quacks in 2011
* AMAI stayed the operation of the said GO on 24/04/2011
* Movement against quackery through TC Medical council
* Filed case against granting B’Class registration to unqualified Naturopaths

Legal actions against unethical Advertisements

Support To Department Of ISM
* Took a lead role in Peoples campaign for 9th plan and geared the ISm department development 1997-2002.
* Zonal plan training for ISM doctors.
* Published hand book for Ayurveda development with Kerala State Planning board.
* Infrastructures and medicine availability in ISM department improved to a great extend.
* Started 100 dispensaries throught people’s campaign in 1999.
* Sanction for Houses Surgeons posting in ISM hospitals to self financing colleges.
* Published Hand book for immunity clinics with the support of NRHM.
* Introduced Immunity clinics to prevent communicable diseases.
* Published Hand book for immunity clinics with the support of NRHM.
* Ensured the support of Ayurveda Community to the movement for parity

Court order against Quacks

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COURT ORDER AGAINST CALICUT UNIVERSITY