24 OF 2018 J U D G M E N T NAGARATHNA, J. Relevant provisions of Indian Medical Council Act, 1956 68-80 12. A comparative table and analysis of the provisions of the IMC Act, 1956 and the Assam Act 92-106 14. In these appeals, the appellants have assailed the legality and correctness of the order dated 30.10.2014 passed by the Division Bench of the Gauhati High Court in W.P(C) No 5789/2005, whereby the High Court by allowing the Writ Petition struck down the Assam Rural Health Regulatory Authority Act, 2004 (hereinafter referred to as ‘Assam Act’ or the ‘State Act’ for the sake of brevity) which was enacted by the Assam State Legislature. On 23.06.2005, the Director, Medical Education, State of Assam, published an advertisement in the Assam Tribune inviting applications from eligible candidates seeking admissions in the three-year course of Diploma in Medicine and Rural Health Care in 3 the Medical Institute, Jorhat, for the session starting in the year 2005. By the impugned order dated 19.09.2014, the High Court rejected the State’s plea for impleadment of the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates from the said Institute during the pendency of the Writ Petition before the High Court. Hence, there would be no reason to implead the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates and had been engaged as Rural Health Practitioners on the basis of such qualification, as necessary parties in the writ petition. Indian Medical Council Act, 1956 (hereinafter referred to as ‘IMC Act, 1956’ or ‘Central Act’ for the sake of convenience) inasmuch as Section 10A of the Central Act categorically declares that no medical college shall “open a new or higher course of study or training” which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification. In the present case, the Central Act fully covers the field and places a total restriction on opening a new course in medicine without the permission of the Central Government. However, striking down that provision alone would not save the situation as Section 24 is 7 the “soul” of the State Act and without the said provision, the rest of the provisions of the Act would be meaningless. The controversy in these cases revolve around the legislative competence of the Assam State Legislature to enact the Assam Act which has been assailed by the writ petitioners before the Gauhati High Court on the ground of legislative competence as per Article 246 read with the relevant entries of List I and III of the Seventh Schedule of the Constitution of India. We have heard learned Senior Counsel Sri Rana Mukherjee learned Senior Counsel instructed by Ms. Natraj, for the Union of India and learned Senior Counsel Sri Vikas Singh, appearing on behalf of Respondent No 7, Medical Council of India. The appellants submitted that Section 10A of the Central Act only prescribes that a new course which would qualify a person for the award of a recognised medical qualification requires the permission of the Central Government. However, as per Section 15 of the said Act for practicing medicine in any State, all that is required is that a person has to be enrolled in a State Medical Register as defined in Section 2(k) thereof as a Register maintained under law enforced in any State regulating the registration of practitioners of medicine. It was contended that it is only where the State Legislation makes it impossible or difficult for the Parliament to legislate under Entry 66 of List I, that the State Law can be declared to be bad.
Chitralekha”) wherein it was held that it is only when the State Legislation makes it impossible or difficult for the Parliament to legislate under Entry 66 of List I, and only if the impact of the State Law is so heavy or devastating on Entry 66 of List I, so as to wipe out or appreciably abridge the Central field of legislation, can it be struck down but not otherwise. That Parliament has not said so and Section 15 of the IMC Act indicates that the Parliament recognises that persons enrolled in State Medical Registers under State Acts can practice medicine in the State. That as per the impugned Assam Act, Rural Health Practitioners can only practice in rural areas and that too, in a limited manner to treat basic common diseases and to prescribe basic medicines. Section 10(A)(1)(b) of the Central Act requires that previous permission of the Central Government be obtained prior to offering a new or higher course of study for obtaining a “recognised medical qualification” at an already established medical college. It was submitted that, the term “medical college” used in Section 10A(1)(a) of the IMC Act ought not be restricted as only “medical college offering a recognised medical qualification” within the meaning of the IMC Act, 1956.
Therefore, the State Legislature is denuded of its power under Entry 25 of List III to enact a law providing for the establishment of a medical college contrary to the provisions of the Central Act. Learned counsel for Respondent No 1 placed reliance on Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust vs State of Tamil Nadu, (1996) 3 SCC 15, (“Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust”) wherein it was held that under section 10A of the Indian Medical Council Act, the Parliament has evinced an 17 intention to cover the whole field relating to the establishment of new medical colleges in the Country and by virtue of Section 10A, the Parliament has made a complete and exhaustive provision covering the entire field governing establishment of new medical colleges in the Country. x.
That one of the restrictions under Section 24 of the Assam Act, being that the practitioners who graduate in the diploma 18 course would only be allowed to work in rural areas of the State of Assam, was not only unworkable but also in violation of Article 14 and 21 of the Constitution as equal quality of treatment should be secured for every citizen of this State. There are more than 2244 MBBS doctors working in the rural areas of Assam; even if there is a shortfall of doctors in the rural areas and the Assam Act aims to remedy the shortfall, the solution lies in increasing their coverage via permissible means and not otherwise. Learned Senior Counsel Sri Vikas Singh appearing on behalf of Respondent No 7, Medical Council of India, submitted as under: i. Thus, medical qualification included in the Schedule of the Central Act is the only recognised medical qualification on the basis of which a person’s name can be entered in the State Medical Register maintained by the State Medical Council. Thus, a combined reading of Section 2(d), Section 15 and Section 31 of the State Act, read with the Schedule to the AMC Act, 1999, makes it unequivocally clear that even the State Legislature of Assam intended that only a person possessing recognised medical qualification under Schedule I of the Central Act, is entitled in law to be entered in the State Medical Register and is allowed to practice modern scientific medicine. Respondent No 7 next submitted that the provisions of Central Act, 1956, will prevail over the Assam Act, 2004, as Article 246(2) of the Constitution provides that law made by the State Legislature on any subject enumerated in List-III of Seventh Schedule of the Constitution is subject to the law made by the Parliament under Article 246(1). In the said case, it was held that the registration in the State Medical Register relating to modern scientific medicine was a 23 sine qua non to enable persons, who, otherwise did not possess recognised medical qualification, to practice modern scientific medicine. That Rural Health Practitioners have limited knowledge and experience and hence, cannot be permitted to practice modern scientific medicine and administer medical treatment.
Section 10A of the said Act provides that, notwithstanding anything contained in the Act or any other law for the time being in force, no person shall establish a medical college; or no medical college shall open a new or higher course of study or training which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification. The powers and functions of rural health practitioners as delineated in Section 24 of the Assam Act would go to show that both legislations can co-exist without there being any overlapping. It was contended that in the instant case, the State Legislature has not made any attempt to encroach upon the field covered by the IMC Act, 1956 by offering qualifications envisaged in Section 2(h) read with First Schedule to the said Act. Therefore, as long as the Parliament does not occupy the field earmarked for it under Entry 66 of List I or for that matter by invoking its concurrent powers under Entry 25 of List III, the question of competence of the State Legislature to regulate and register the Diploma Holders in medicine and 27 rural health care and their practice of medicine in rural areas cannot be questioned.
It was submitted on behalf of the State of Assam that in the said case a distinction must be drawn between the Entries in List I wherein a declaration by the Parliament to take over the field is expressed and to other Entries in List I which do not contain such a declaration. Rana Mukherjee, learned Senior Counsel appearing for the petitioners in Transferred Case Nos.24 and 25 of 2018 drew our attention to the relief sought for by the petitioners therein and contended that the status and position of the petitioners therein, subsequent to the enactment of the ‘2015 Act’ has been adversely altered. Learned counsel submitted that the case of the petitioners in Transferred Cases would be resurrected in the event this Court is to set aside the judgment of the High Court and restore the Assam Act by allowing the Special Leave Petition filed by the similarly situated Rural Health Practitioners in the case of Baharul Islam and others, which is being considered. 30 Points for consideration: Having heard the learned counsel emphasise for the respective parties and on perusal of the material on record, the following points would arise for our consideration: i) Whether the Assam Act is invalid and null and void on the ground that the Assam State Legislature did not possess legislative competence to enact the said Act? (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”). (2) Where a law made by the Legislature of a State 1 *** with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: 32 Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.” It is also useful to refer to Entry 66 of List I (Union List) and Entry 25 of List III (Concurrent List) of the Seventh Schedule of the Constitution of India. Where there is an apparent overlapping between two Entries, the doctrine of pith and substance is applied to find out the true character of the enactment and the entry within which it would fall. But if a legislation in pith and substance falls within any of the Entries of List II, the State Legislature’s competence cannot be questioned on the ground that the field is covered by Union list or the Concurrent list vide Prafulla Kumar Mukherjee vs Bank of Commerce, Khulna, AIR 1947 P.C. vs State of Assam, AIR 1961 SC 232, (“ Atiabari Tea Company Ltd.”) it has been observed by this Court that the test of pith and substance is generally and more appropriately applied when a dispute arises as to the legislative competence of the Legislature and it has to be resolved by reference to the Entries to which the impugned legislation is relatable. The said expression indicates the ambit of the power of the respective Legislature to legislate as regards the subject matters comprised in the various Entries included in the legislative Lists. The expression ‘ with respect to ’ in Article 246 brings in the doctrine of pith and substance in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised, the test is whether the Legislation, looked at as a whole, is substantially ‘ with respect to ’ the particular topic of Legislation. Another important aspect while construing the Entries in the respective Lists is that every attempt should be made to harmonise the contents of the Entries so that interpretation of one Entry should not render the entire content of another Entry nugatory vide Calcutta Gas Company vs State of West 37 Bengal, AIR 1962 SC 1044, (“Calcutta Gas Company”). vs State of Bihar, AIR 1983 SC 1019, (“Hoechst Pharmaceuticals Ltd.”), it has been categorically held that taxation is considered as a distinct matter for purposes of legislative competence. iii) Where one Entry is made ‘subject to’ another Entry, all that it means is that out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specially dealt with by the appropriate Legislature.
In this context, learned ASG appearing for Union of India Sri Natraj submitted that there is a two-fold restriction on the field in which the Assam State Legislature can enact a law as far as medical education is concerned: the first is that any State law dealing with medical education must be subject to Entry 66 of List I which deals with coordination and determination of standards. According to him, if that is so, then the law made by the Parliament is the Central law which in pith and substance is within the four corners of Entry 66 of List I and would supersede any law made by a State legislature as per Entry 25 of List III. But if an enactment does not trench upon the subject mentioned in Entry 66 of List I and a State Legislature enacts such a law within the legislative competence of Entry 25 of List III in such a case the only test to be applied is whether such a State Legislation is repugnant to any Central Legislation which has also been made relatable to Entry 25 of List III.
This is because a State law within the parameters of Entry 25 of List III is subject to Entry 66 of List I and therefore, the State law must yield to the Central law. This Court considered, inter alia, the question as to whether the Gujarat University Act, 1949, which authorized the University to prescribe Gujarati or Hindi or both as an exclusive medium of instruction and examination in the affiliated colleges, would infringe Entry 66 of List I. It was further observed that if a subject of legislation is covered by Entries 63 to 66 even if it otherwise falls within the larger field of “education including universities,” as covered under Entry 11 of List II, the power to legislate on that subject must lie only with the Parliament.
Power to legislate in respect to medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co-ordination and determination of standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by virtue of Entry 66 of List I, to be vested with the Union. ii) In State of Tamil Nadu vs Adhiyaman Educational and Research Institute, (1995) 4 SCC 104, (“Adhiyaman Educational and Research Institute”) this Court considered the question, whether, even after the coming into force of the All-India Council for Technical Education Act, 1987, which is a Parliamentary enactment, the State Government had the power to grant and withdraw permission to start a technical institution, acting under the Tamil Nadu Private College (Regulation) Act, 1976, and the statutes and ordinances framed thereunder.
The Government had also stipulated that if any of the conditions imposed by them was not fulfilled, the permission granted to start the College would be withdrawn. The larger question before this Court in the said case was as regards the conflict between the All-India Council for Technical Education Act, 1987 and the Tamil Nadu Private College [Regulation] Act, 1976, in so far as the State Act provided significantly different and more stringent yardsticks to be complied with by technical universities seeking recognition, as compared to the Central enactment. It would, therefore, also include power to do all things which are necessary to prevent what would make “coordination” either impossible or difficult. [iv] Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. It was observed that there was no material on record which would demonstrate that the standards laid down by the Central Act are inadequate to ensure that the colleges eligible for recognition as per the 49 Central Act are able to successfully conduct the relevant courses.
iii)
In Preeti Srivastava vs State of Madhya Pradesh, AIR 1999 SC 2894, (“Preeti Srivastava”) this Court considered the question, whether, it was open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission to the post-graduate medical courses under the reserved seats category as compared to the general category candidates. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. The following factors were listed, which are non- exhaustive, which determine the standard of education in an institution: “(1) The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time; (3) The student-teacher ratio; (4) The ratio between the students and the hospital beds available to each student; (5) The calibre of the students admitted to the institution; (6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) Adequate accommodation for the college and the attached hospital; and (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.” It was concluded in the said case that whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the post-graduate level of 52 medical education was a question which must be decided by the Medical Council of India since it affects standards of post- graduate medical education. A challenge was laid by the Appellants therein, which were unaided private medical and dental colleges, to those provisions of the Act and Rules, which sought to regulate admission, fixation of fee, reservation 53 and eligibility criteria. With reference to Entry 25 of List III, it was observed that regulating ‘education’ as such, which includes medical education as well as universities, is a matter under the 54 concurrent list. However, in so far as other facets of education, including technical and medical education, as well as governance of universities are concerned, even State Legislatures are vested with power by virtue of Entry 25 of List III of the Seventh Schedule of the Constitution. To this end, Entry 66 of List I was formulated with the objective of maintaining uniform standards of education in fields of research, higher education and technical education. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to education was removed and deleted, and the same was replaced by amending Entry 25 of List III granting concurrent powers to both Parliament and State Legislature the power to legislate with respect to all other aspects of education, except that which was specifically covered by Entries 63 to 66 of List I. Now, suppose the Madras University says that a candidate at the BA 57 Examination, if he obtained 15% of the total marks shall be deemed to have passed that examination; and suppose the Bihar University says that a candidate who has obtained 20% of marks shall be deemed to have passed the BA degree examination; and some other university fixes some other standard, then it would be quite a chaotic condition, and the expression that is usually used, that the candidate should be a graduate, I think, would be meaningless. The intent of our Constitution Framers while introducing Entry 66 of the Union List was thus limited only to empowering the Union to lay down a uniform standard of higher education throughout the country and not to bereft the State Legislature of its entire power to legislate in relation to “education” and organising its own common entrance examination. However, power of the State is subject to the provisions of Entries 63, 64, 65, and 66 of the Union List; while the State is competent to legislate on the education including technical education, medical education and universities, it should be as per the standards set by the Union. Under Entry 25 of the Concurrent List and erstwhile 59 Entry 11 of the State List, the State Government has enacted various legislations that inter alia regulate admission process in various institutions. Similarly, the Central Government has also enacted various legislations relating to higher education under Entry 25 of the Concurrent List pertaining to Centrally funded universities such as the Babasaheb Bhimrao Ambedkar University Act, 1994, the Maulana Azad National Urdu University Act, 1996, the Indira Gandhi National Tribal University Act, 2007, etc.
The field of “higher education” being one such field which directly affects the growth and development of the State, it becomes prerogative of the State to take such steps which further the welfare of the people and in particular pursuing higher education. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams.” v) In Chintpurni Medical College and Hospital vs State of Punjab and Ors., AIR 2018 SC 3119, (“ Chintpurni Medical College and Hospital”) this Court considered the question, whether, a State Government can withdraw an Essentiality Certificate once granted to a medical college and whether such power is ultra vires the Central Act. In examining whether such certificate, which is required to be secured by a college before seeking permission under Section 10A of the IMC Act, 1956, could be subsequently cancelled by the State, this Court held that the only purpose of the essentiality certificate is to enable the Central Government acting under Section 10A to take an informed decision for permitting the opening or establishment of a new medical college. The States are denuded of the Legislative Power to legislate on medical education under Entry 25 of the Concurrent List since Parliament has exercised its power under Entry 66 and enacted the IMC Act” vi) In Tamil Nadu Medical Officers Association vs Union of India, (2021) 6 SCC 568, (“Tamil Nadu Medical Officers Association”) a Constitution Bench of this Court, considered the question, whether, under the scheme of the Constitution of India and the provisions of the IMC Act, 1956, read with the Medical Council of India Postgraduate Medical Education Regulations, 2000, a State has the legislative competence to enact legislation to provide for reservation of seats for admission in postgraduate medical courses, in favour of medical professionals working in government organisations within the State. The case of the Petitioners therein was that the competence of the State Government to make reservation for post-graduate seats in medical colleges, in favour of in-service candidates, is traceable to Entry 25 of List III, vide Modern Dental College. Referring to the dictum of this Court in Modern Dental College wherein it was held that Entry 66 64 of List I is specific and limited in scope, this Court observed that the said Entry pertains specifically and exclusively to the prescription of standards for higher education and research institutions and the scope of such Entry would not extend to matters such as conduct of examination, prescribing course fee or admission of students. This Court, therefore, concluded that that Entry 66 of List I is a very specific Entry having limited scope and that the no provision for reservation for in service candidates could be made under the said Entry; that power to legislate on 65 such matter is traceable to Entry 25 of List III of the Seventh Schedule of the Constitution. in a separate but concurring judgment observed that although the students who would gain admission into the post-graduate courses as a part of the in- service quota, may not have been admitted purely based on a uniform order of merit, and this might, to some degree have an effect on the overall standard of medical education, the term “standards” in Entry 66 of List I must not be construed in such a manner. vs The Secretary, Board of Revenue Trivandrum and Ors., AIR 1964 207 SC, (“The South India Corporation (P) Ltd.”) this court observed that the expression “subject to” conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject.
This would imply that out of the scope of Entry 25 of List III, a field of legislation covered by Entry 66 of List I is reserved to be dealt with by the Parliament. –
Also Read: https://newslaw.in/supreme-court/w-p-crl-no-000491-2022/
In this Act, unless the context otherwise requires,- (a) “approved institution” means a hospital, health centre or other such institution recognised by a University as an institution in which a person may undergo the training, if any, required by his course of study before the award of anymedical qualification to him; x x x (d) “Indian Medical Register” means the medical register maintained by the Council; (e) “medical institution” means any institution, within or without India, which grants degrees, diplomas or licences in medicine; (f) “medicine” means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery; x x x (h) “recognised medical qualification” means any of the medical qualifications included in the Schedules; x x x 69 (k) “State Medical Register” means a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine; x x x 10A. Explanation 2.—For the purposes of this section, “admission capacity”, in relation to any course of study or training (including post-graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. (3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. (2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date. (3) The medical qualifications granted by medical institutions outside India before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may be prescribed.
— (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. — (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India. (3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. Supply of copies of the State Medical Registers.— Each State Medical Council shall supply to the Council six printed copies of the State Medical Register as soon as may be after the commencement of this Act and subsequently after the first day of April of each year, and each Registrar of a State Medical Council shall inform the Council without delay of all additions to and other amendments in the State Medical Register made from time to time. On a conjoint reading of the aforesaid provisions, it is noted that the IMC Act, 1956, is an Act which repealed the erstwhile Act of 1933 with the object of providing for the reconstitution of the Medical Council of India and for the maintenance of a Medical Register for India and for matters connected therewith.
It begins with a non-obstante clause and states that notwithstanding anything contained in the IMC Act, 1956 or any other law for the time being in force, a) no person shall establish a medical college; or b) no medical college shall – i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable 76 a student of such course or training to qualify himself for the award of any recognised medical qualification; or ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this Section. In fact, this position is highlighted on a reading of Section 10B which states that if a medical qualification is granted to any student of a medical college which has been established de hors the provisions of Section 10A, 77 no such qualification shall be recognised under the said Act. Sub-section (2) of Section 11 is significant as it states that any University or medical institution in India which grants a medical qualification not included in the First Schedule, may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule 78 against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date. On the other hand, Section 13(1) states that the medical qualifications granted by Medical Institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of the said Act. Further, except as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register shall, inter alia, practice medicine in any State or 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. As per sub-Section (2) of Section 21, it is the duty of the Registrar of the Indian Medical Council, to keep the Indian Medical Register in accordance with the provisions of the IMC Act, 1956, and to from time to time revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. Assam Rural Health Regulatory Authority Act, 2004 (Assam Act): The relevant provisions of the said Act are as extracted as under: “ 2. In this Act unless the context otherwise requires: (a) ‘Act’ means the Assam Rural Health Regulatory Authority Act, 2004; (b) ‘Authority’ means the Assam Rural Health Regulatory Authority established under Section 3; 81 (c) ‘Certificate’ means a certificate issued by the Authority under Section 17; (d) ‘Course’ means the prescribed course of education and training for the Diploma in Medicine and Rural Health Care; (e) ‘Diploma in Medicine and Rural Health Care’ means the diploma awarded by the Authority on successful completion of the course of Diploma in Medicine and Rural Health Care under the provisions of the Act; x x x (g) ‘Medicine’ means allopathic medicine but does not include veterinary medicine; (h) ‘Medicine and Rural Health Care’ means practice of allopathic medicine and health care system in rural areas in the State of Assam; (i) ‘Medical institute’ means institute established under this Act for imparting medical education both theoretical and practical for the course of Diploma in Medicine and Rural Health Care; x x x (l) ‘Rural areas’ means areas not included in a Municipal Corporation, a Municipal Board or a Town Committee or any other area notified as urban area; x x (n) ‘ Permission to open a Medical Institute.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force no person or organization other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior and expressed permission of the State Government. (4) The State Government may after considering the proposal and the recommendations or observations of the Authority and after obtaining where necessary, such other particulars as may be considered necessary by it from the person or the organization concerned either approve (with such conditions, if any, as may be considered necessary) or disapprove the proposal.
x x 17.
(5) Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitle to have a certificate issued by the Authority under the hand and seal of the President and the Secretary and bearing a Registration Number and shall be eligible to practise medicine and Rural Health Care in rural areas of the State of Assam. (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients treated by them; and (g) they shall not be eligible for employment in Hospitals, Nursing Homes and Health 85 establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services. The Assam Act is an Act to provide for the establishment of a regulatory authority in the State of Assam to regulate and register the Diploma holders in Medicine & Rural Health Care (DMRHC) and their practice of medicine in rural areas and also to regulate opening of Medical Institutes for imparting education and training for the course of Diploma in Medicine and Rural Health Care (DMRHC).
Sub section (1) of Section 8 begins with a non-obstante clause and states that, notwithstanding anything contained in the Assam Act or any other law for the time in force, no person or organisation other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior and expressed permission of the State Government. That the Authority shall cause to be maintained in the prescribed manner and form a register of Diploma Holders in Medicine and Rural Health Care to be known as the State Register of Rural Health Practitioners. Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitled to have a certificate to be issued by the Authority bearing a Registration Number and 88 shall be eligible to practise Medicine and Rural Health Care in rural areas. (d) to practise only in rural areas as defined in the Assam Act; (e) to issue only illness certificates and death certificates; (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients treated by them; 89 (g) not to be employed in Hospitals, Nursing Homes and Health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services.
The Regulations of Assam Rural Health Regulatory Authority, 2005, regarding admission into Diploma in Medical and Rural Health Care course in Medical Institutes of the State were framed under which minimum standards for Medical Institutes offering Diploma in Medicine and Rural Health Care were prescribed under which the subjects to be taught were as under: “3. The same read as under: “ANNEXURE-1 DISEASES THAT CAN BE TREATED BY A DIPLOMATE OF MEDICINE AND RURAL HEALTH CARE Acute bacterial infections febrile, diarrhoea, dysentery, viral infections, malaria, amoebiasis, giardiasis, worm infestations, gastroenteritis, cholera, typhoid fever, vitamin deficiencies, iron deficiency anaemia, malnutrition, upper respiratory infections, actuate bronchitis, bronchial asthma, hypertension, heart failure, in ischemic heart disease, peptic ulcer, acute gastritis, viral hepatitis, urinary tract infection, common skin infections, scabies, leprosy, first aid in poisoning and trauma, snake bite and animal bite. PROCEDURES THAT CAN BE CARRIED OUT BY A DIPLOMATE IN MEDICINE AND RURAL HEALTH CARE: – 91 Venupuncture, venesection, application of bandages and dressings, nasogastric intubation, catheterization, peritoneal tap, normal delivery. Antiamoebic- metronidazole, tinidazole, doloxanide furoate, chloroquine. Antiemetics 92 Antipyretics and analgesics Laxatives Oral rehydration solutions. A comparative table and analysis of the provisions of the IMC Act, 1956 and the Assam Act is as under: Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 Object of the Act “An Act to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India and for matters connected therewith.” “An Act to provide for the establishment of a regulatory authority in the State of Assam to regulate and register the diploma holders in Medicine & Rural Health Care (DMRHC) and their practice of medicine in rural areas and also to regulate opening of Medical Institutes for imparting education and training for the course of diploma in Medicine & Rural Health Care (DMRHC)” 93 Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 Apex Authority Indian Medical Council Assam Rural Health Regulatory Authority Definition of ‘medicine’ “ 2 (f).
‘Medical Institution’ means institution established under this Act for medical education both theoretical and practical for the course of Diploma in Medicine and Rural Health Care.” Scope of Recognised medical qualification/ course(s) covered under the respective Acts “ 2 (h) ‘recognised medical qualification’ means any of the medical qualifications included in the Schedules.” “ 2 (d). (k) the standards of staff, equipment, accommodation, training and other facilities for medical education ; (1) the conduct of professional “7. Permission for establishment of new medical college, new course of study- (1) Notwithstanding anything contained in this Act or any other law for the time being in force,— (a) no person shall establish a medical college ; or (b) no medical college shall— (i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or “ 8. 96 Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 (ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.” Inclusion of name in the respective registers, and eligibility to practice upon such inclusion “ 21. 97 Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 time to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. — Subject to the conditions and restrictions laid down in this Act regarding medical practice by persons possessing certain recognised medical qualifications, every person whose name is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practise as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in (3) The State Register of Rural Health Practitioners shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872.
(5) Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitle to have a certificate issued by the Authority under the hand and seal of the President and the Secretary and bearing a Registration Number and shall be eligible 98 Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 respect of medicaments or other appliances, or any fees to which he may be entitled.” to practise medicine and Rural Health Care in rural areas of the State of Assam: (6) Provided that no Rural Health Practitioner shall use the word “Doctor” or “Dr.” before and after his name. (b) shall practice 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. (f) they shall maintain name, address, age, sex, diagnosis and treatment records 100 Parameters Indian Medical Council Act, 1956 Assam Rural Health Regulatory Authority Act, 2004 of all patients treated by them; and (g) they shall not be eligible for employment in Hospitals, Nursing Homes and Health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services. Syllabus Anatomy Physiology Anatomy Biochemistry Biochemistry Microbiology Pathology Pathology Pharmacology Pharmacology Community Medicine Community Medicine Medicine Medicine Obstetrics & Gynecology Obstetrics & Gynecology Ophthalmology Orthopedics Orthopedics ENT ENT Pediatrics Pediatrics Psychiatry Surgery Anesthesiology Surgery Dermatology & Venereology Dermatology as a part of Medicine Forensic Medicine & Toxicology 102 Parameters MBBS DMRHC Anesthesiology Internship Internship 7. Every student who successfully completes the course shall be eligible for enrollment in the State Register of Rural Health Practitioners as per Assam Act. The following aspects of the matter emerge when the provisions of the Assam Act are considered in juxtaposition with the corresponding provisions of the Central Act: i) The Central Act operates in the area of modern scientific medicine, in all its branches, vide Section 2(f).
ii) Further, Section 17 of the Assam Act provides that persons holding a Diploma in Medicine and Rural Health Care after successful completion of the course instituted under the Act, would be registered as Rural Health Practitioners and would be eligible to practise ‘medicine’ and Health Care in rural areas of Assam. iv) On a close reading of Section 15 of the Central Act, in conjunction with Section 24 of the Assam Act, we find that Rural Health Practitioners possessing a Diploma under the Assam Act have been authorised to perform certain functions identical to those performed by medical practitioners who possess qualifications prescribed under the Central Act. It is to be noted that insofar as Entry 25 of List III is concerned, there are dual restrictions which would operate on the legislative competence of a State Legislature to enact any law under the said Entry: first is, if such a law is to be made by the State Legislature, it is always subject to Entries 63, 64, 65 and 66 of List I or the Union List, in respect of which only the Parliament has the power to enact a law. Mukhtiar Chand”) : (i) In this case the controversy was with regard to the issuance of declarations by the State of Punjab under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 (for short, ‘Drugs Rules’) which defines “registered medical practitioner”. (ii) Before this Court, it was contended that the right of practitioners of Indian medicine to practice modern scientific system of medicine (allopathic medicine) is protected under Section 17(3)(b) of the Indian Medicine Central Council Act, 1970 (‘IMCC Act, 1970’ for short).
Section 2(f) of the IMC Act, 1956, defines “medicine” to mean “modern scientific medicine” in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery and the expression “recognised medical qualification” is defined in Section 2(h) of the said Act to mean any of the medical qualifications included in the Schedules to the Act.
It is, thus, possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the “recognised medical qualification” which is a prerequisite, only for being enrolled in the Indian Medical Register and not for the purposes of registration in a State Medical Register. While the First Schedule deals with recognised medical 110 qualifications secured by persons from recognised Universities in India, on the other hand, the Third Schedule deals with medical qualification attained under the Pre-Independence recognised medical enactments such as Bombay Medical Act, 1912, the Bihar and Orissa Medical Act, 1916, the Punjab Medical Registration Act, 1916, etc. However, after sub-section (2) of Section 15 was inserted into the said Act, a medical practitioner enrolled in a “State Medical Register” could practice modern scientific medicine in any State but the rights of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said Drugs Rules, by implication, got obliterated. That after sub-section (2) in Section 15 of the IMC Act, 1956, occupied the field vide Central Act 24 of 1964 with effect from 16.06.1964, the benefit of the said Rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practice 112 any system of medicine is conferred by the State law under which practitioners of Indian medicine are registered in the State, which is for the time being in force.
Thus, as far as modern medicine or allopathic medicine is concerned, the provisions of Section 15 of the IMC Act, 1956, would again become relevant inasmuch as Section 15(1) of the IMC Act, 1956, would have to be fulfilled before a person can be enrolled in any State Medical Register insofar as modern scientific medicine is concerned. Medical Council, (2003) 9 SCC 269, (“Subhasis Bakshi”) : (i)
Case Title: BAHARUL ISLAM . Vs. THE INDIAN MEDICAL ASSOCIATION (2023 INSC 81)
Case Number: C.A. No.-000502-000503 / 2023
