"The nature of injury caused to or likely to be caused to the public is grave and bearing serious repercussion on public health, medical infrastructure and right to life including the right to correct and prompt medical aid as enshrined under Article 21 of Constitution of India."

The Bench comprised Justices Hemant Gupta and Sudhanshu Dhulia.

Background

In 2020, the Parliament enacted the National Commission for Indian System of Medicine Act, 2020 and the National Commission for Homoeopathy Act, 2020 which allowed practitioners of the Indian System of Medicine (including Homoeopathy) to hold office in the capacity of a surgeon and practice modern medicine. The National Commission for Indian System of Medicine Act, 2020 has repealed the erstwhile Indian Medicine Central Council Act, 1970.

In the same year, the Central Council of Indian Medicine (CCIM), which is the statutorily constituted body under the Ministry of AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha, and Homeopathy), promulgated the Indian Medicine Central Council (Post Graduate Ayurveda Education) Amendment Regulations, 2020, authorising post-graduate practitioners in shalya and shalakya streams of Ayurveda to be trained to perform 39 general surgery procedures and 19 other procedures such as excisions of benign tumours, nasal and cataract surgeries, excision or amputation of gangrene, excision of benign lesions, cysts, or tumours of the breast. As a result of this amendment, the post-graduate scholars of these streams were authorised to independently perform these surgeries or procedures after the completion of their degree. Although the Indian Medicine Central Council Act has now been repealed, the regulations framed under it shall remain in force and continue to operate till new regulations are formulated under the National Commission for Indian System of Medicine Act.

These provisions have been introduced by the Bharatiya Janata Party-led government to inaugurate an integrated system of medicine, to be fully in place by 2030, that combines modern and traditional systems of medicine. However, critics and analysts have noted that there is a lack of unanimity and coherence between states, the Central government and within the National Medical Council on this issue.

The Madras High Court in 2018, while quashing the criminal proceedings against a doctor registered with the State Homeopathy Medical Council who was found practising modern medicine, held that registered AYUSH practitioners were eligible to practice "Allopathy medicine" if trained along with their respective systems, but not exclusively. [R. Senthilkumar v. The State, 2022 LiveLaw (Mad) 325]

The matter has been agitated again by the Association of Medical Consultants, which is an association of specialist doctors in Mumbai, comprising eleven thousand members. The petitioner has approached the apex court praying for certain provisions of the aforesaid Acts and regulations to be struck down.

Grounds of Challenge

The petitioner has challenged Section 34 of the National Commission for Indian System of Medicine Act, 2020, Section 34 of the National Commission for Homeopathy Act, 2020 as well the 2020 amendment to Regulation 10(9) of the Indian Medical Central Council (Post Graduate Ayurveda Education) Regulation, 2016.

The petitioner, while noting that the purpose of the impugned legislations was to fill up the shortages of doctors in India by merging alternative medicine with mainstream medicine, has claimed that the legislations have failed to keep a check on incidents of medical malpractice by 'quacks' who offer modern medical treatment without any adequate qualification or experience. The petition states –

"The enactments legitimise the practice of quackery and pseudoscience by immunizing them from any legal consequence or liability."

The Association has also highlighted the 115^th Report of the Parliamentary Standing Committee on Health and Family Welfare, in which the need to build the capacity of existing human resources in the healthcare sector to address the shortage of healthcare professionals and the need for integrated healthcare policy were recognised. However, the petitioner refers to a passage in the report where it has been categorically stated –

"The Committee, at the same time, cannot overlook the possible risk of non-qualified and untrained doctors prescribing modern medicine and inducing irreparable damage to the patients and reiterates its recommendation, as in its 109th Report, that healthcare professional practicing without requisite qualification anywhere in the country may attract penal provision."

The petitioner has also submitted that instead of strengthening the discipline, research and practice of alternative medicine, the Central Government has delivered a blow by providing these "shortcuts". Furthermore, even though the objective of the impugned legislations was to promote equitable and universal healthcare that encourages community health perspective and makes services of such medical professionals accessible and affordable to all the citizens, the petitioner has claimed that they contain several loopholes and would create "confusion in the minds of the public in general and especially in rural areas".

The petitioner has also placed reliance on Delhi Medical Association v. Principal Secretary (Health) & Ors. [(2016) SCC Online Del 2289]. The following passage from the judgement has been excerpted in the petition –

"The words 'modern advances as the CCIM may declare by notification from time to time' in the definition of Indian Medicine in Section 2(1)(e) of the Indian Medicine Act are not capable of taking Indian Medicine to boundaries beyond the essentials of Indian System of Medicine as otherwise defined as Ashtang, Ayurveda, Siddha, Unani etc. or of converting Indian System of Medicine to modern scientific system of medicine or Allopathic system of medicine as defined in the MCI Act and the Indian Medical Degrees Act. To hold otherwise would blur the otherwise well-defined boundaries between the two systems of medicine…The words 'modern advances as declared by CCIM' in the definition of Indian Medicine are only to enable inclusion in the schedule to Indian Medicine Act of the qualifications in such advances to enable the holders thereof to get their names entered into the Central Register of Indian Medicine."

The petitioner has alleged that the right to health and fair medical treatment enshrined under Article 21 of the Constitution included the right to know the professional status of the healthcare providers providing service to the patient.

The petitioner has relied on Mukhtiar Chand (Dr.) v. State of Punjab [(1998) 7 SCC 579] where the Supreme Court had held that a harmonious reading of Section 15 of Indian Medical Council Act, 1956 and Section 17 of the erstwhile Indian Medicine Central Council Act precluded the possibility of a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act. The petitioner quoted from the judgement –

"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. There can, therefore, be no compromise on the professional standards of medical practitioners."

The petitioner has also relied on Poonam Verma v. Ashwin Patel [(1996) 4 SCC 332], where the Supreme Court while holding a practitioner of Homeopathy guilty of negligence for prescribing Allopathic medicines, discussed the concerns surrounding the integration of various systems of medicine. The following excerpt has been borrowed –

"The significance of mutual exclusion is relevant inasmuch as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification) and that too, recognised qualification, is possessed by a person in that System…A person who does not have knowledge of a particular System of Medicine but practices in that System is a Quack and a mere pretender to medical knowledge or skill, or to put it differently, a Charlatan."

The petitioner has also highlighted the critical opprobrium generated by the use of and practice in alternative medicine in countries like the United Kingdom, Australia, France, Germany, and the United States of America, concluding that –

"The impugned legislations foster an age-old issue of quackery in India, without laying down any adequate mechanism to deal with the problem of non-qualified and untrained doctors prescribing modern medicine…The consequence of the implementation of the impugned legislations will have an adverse impact on the public health, medical infrastructure and right to life including the right to correct and prompt medical aid as enshrined under Article 21 of the Constitution."

The petitioner has prayed for the "quashing/ setting aside/ modification" of the impugned provisions.