Dr. K.abdul Muneer And Another v. The State Of Tamil Nadu, Represented By Its Secretary To Government, Health And Family Welfare Department, Chennai And Others

(Prayer: Writ Petition filed under Art.226 of the Constitution of India praying for a Writ of Mandamus forbearing the respondents 1 and 2 from in any manner preventing the petitioners from practicing allopathy medicine based on the training and teaching in the BUMS Degree course.)

The claim of Unani Medical Practitioners to practice in the Allopathic system of medicine without their name being registered under the Indian Medical Council Act, 1956 is the core issue to be decided in this writ petition.

The facts :-

2. The petitioners are qualified Unani medical practitioners. They have filed this writ petition for issuance of a Writ of Mandamus forbearing the respondents 1 and 2 from in any manner preventing them from practicing allopathic medicine based on the training and teaching in the BUMC degree course.

3. In the affidavit filed in support of the writ petition, the petitioners contended thus :-

(a) The petitioners have undergone Bachelor of Unani Medicine and Surgery Course and successfully completed the course and obtained a degree in BUMS. The BUMS Course was for a period of 5 years in which five years was for theory and six months for internship (house surgeon) which includes teaching and training in Allopathy medicines. The training was given in the Government hospitals.

(b) During the period of 5 years of training, the petitioners were taught with with allopathy medicines and the method of treatment. The BUMS syllabus includes handling of allopathy medicines and methods of treatment. The petitioners were given enough training in the Kilpauk Medical College Hospital to handle the emergency patients with allopathy medicines. In the first and second years, BUMS students attended common classes along with MBBS students on the subject of Anatomy, Physiology and Biochemistry.

(c) Unani medicines are given as treatment in petitioners clinic. Besides this, allopathy medicines are also given to the patients based on the emergency needs of the patients. In fact, the MBBS Doctors are also giving Indian Medicine treatment at times, when the patients requires such treatment. The Unani treatment method is a slow and steady one. Patients who approach the Doctors with disease at the early stage could be given treatment in Unani Method. However, when the patients comes at the later stage of disease, then allopathic method should be followed initially to bring the patient within the capability of withstanding the slow sided treatment of Unani medicines. Therefore, based on the stage of the disease, patients are treated with Unani and Allopathy medicines in the respective clinics of the petitioners and allopathy medicine is used only to the limited extent, in accordance with the teaching and training given to them while studying for the BUMS Degree course.

(d) Both the petitioners completed their BUMS Degree course and internship on Indian Medicine during the year 1991. The petitioners are regularly renewing their registration once in five years as per law. The petitioners were administering Allopathy medicines along with Unani Medicine for all these years. However, of late, Chennai City Police attempted to interfere in their profession. On 12 December 2001, the Station House Officer attached to H-1 Police Station of Old Washermanpet came to the clinic of the first petitioner and conducted a search and informed the clinic employees that he would be arrested for practicing allopathy medicine. Similar raids were conducted by the police on subsequent occasions also. Therefore, the Unani Doctors Association submitted series of representations before the first respondent to stop the harassment by police. However, there was no follow up action. In the said circumstances, the petitioners have filed this writ petition for issue of a writ of mandamus forbearing respondents 1 and 2 from preventing the petitioners from using or administering allopathy medicines along with Unani medicines.

4. Director of Medical and Rural Health Services Chennai, the fourth respondent in the writ petition filed a counter with the following contentions:-

(a) The syllabus of the course of BUMS is not similar to that of MBBS Degree course. As per Section 15(2)(b) of the Indian Medical Council Act, 1956, "no person other than an medical practitioner enrolled on a State Medical Register shall practise medicine in any State". The petitioners have not obtained any valid allopathic medical degree/diploma included in the Schedule to the Indian medical Council Act, 1956 and therefore, they do not have basic qualification to practice allopathic medicine. The petitioners have obtained BUMS Degree course and therefore, it is open to them to practice in the system of Unani Medicine and they are not entitled to practice Allopathy Medicine in any form. In case the patients requires allopathic treatment, those patients could be referred to registered allopathic medical practitioners. The syllabus of Unani medicine does not have the coverage of administering the allopathic medicines and the statement of the petitioners that they have the theoretical and practical knowledge in administering allopathic medicines is nothing but false.

(b) Since the petitioners do not have allopathic medical degree as per Indian Medical Council Act 1956, their practice in Allopathic Medicine is nothing but illegal practice and as such, they are liable for legal action.

(c) In so far as the state of Tamil Nadu is concerned registered medical practitioners in Allopathic system of medicine alone are allowed to practice Allopathy system of medicine as per Indian Medical Council Act, 1956. Therefore, there is no question of permitting the petitioners to practice in the system of Allopathy medicines. Accordingly, the fourth respondent prayed for dismissal of the writ petition.

5. The third respondent has filed a counter explaining the provisions of the Indian Medical Central Council Act and the maintenance of Central Register containing the names of the qualified practitioners in Indian medicine. The material contentions in the counter read thus :-

(a) The Central Council as per their regulations prescribed under graduate level courses of 5 years duration in Ayurveda, Unani and Sidda system of medicine.

Similarly, Central Act has also prescribed three years of P.G./M.D. course.

(b) The State authorities are obliged to allow only the registered medical practitioners holding recognized medical qualification in Indian medicine to practice the said system and to earn their living.

(c) Section 17(3)(b) of the Central Act permits the practitioners of Indian Medicine holding recognized Indian Medical qualification and enrolled on State Register of Indian medicine to Practice any system of medicine. Therefore, the holders of recognized medical qualifications in Indian Medicine are entitled to avail all the rights and privileges enumerated in Section 17 of the Central Act.

Submissions :-

6. The learned Senior counsel for the petitioners made extensive submissions with respect to the legality of the practice of the petitioners in Allopathic medicine. The learned Senior Counsel would contend thus :-

(a) The petitioners have undergone 5 years theory and 6 months internship for obtaining the degree in BUMS. During such internship, they were posted in medical college hospital and they were also given training in administering allopathic medicine. Therefore, the petitioners are entitled to administer allopathic medicines in accordance with their training.

(b) The petitioners are not practicing in allopathic medicine as such. Their basic practice is only in Unani Medicine. It is only in very exceptional cases, petitioners administer Allopathic medicine. The police cannot interfere in the petitioners practicing Unani medicine primarily and allopathic medicine as secondary treatment. The petitioners have registered themselves before the authorities under the Indian Medicine Central Council Act, 1970. They have studied Indian Medicine which includes Unani and that their qualifications were recognized. Therefore, the petitioners are entitled to practice in the Unani Medicine. Since the petitioners were given training in the Allopathic medicine, it is open to them to prescribe allopathic medicine also along with unani medicines.

(c) The practice of the petitioners are in accordance with the Indian Medical Council Act, 1956 and since their names are registered before the Statutory Authority, it is open to them to practice the Unani system of medicine. The petitioners were given training in Allopathic medicine also, and as such, it is open to them to make use of such training. Therefore, the respondents were not justified in interfering with their right to practice the system of medicine.

7. The learned Additional Government Pleader would contend that the petitioners have qualified only in Unani Medicine and as such, it is not open to them to practice in any other system. Therefore, the respondents were justified in taking action against them.

Discussion :-

8. The Indian Medicine Central Council Act, 1970 was enacted for the constitution of Central Council of Indian Medicine and the maintenance of a Central Register of Indian medicine. This Act deals with Indian Medicine and the Medical colleges established for the purpose of imparting training in Indian Medicine as well as registration of the degree awarded by the recognized medical colleges.

9. Indian Medicine is defined in Section 2(e) of the Indian Medicine Central Council Act, 1970, thus :-

"Indian Medicine" means 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.

10. Section 23 of the Central Council Act provides for maintenance of a Central Register for Indian medicine. Such register should contain the name and address of the practitioners practicing in the system of Indian Medicine. Section 25 of the Act provides that Registrar of the Central Act may on receipt of the report of registration of a person in a State Register of Indian Medicine or on application made in the prescribed manner by any person, enter his name in the Central Register of Indian Medicine, provided that the Registrar is satisfied that the person concerned is eligible under the Act for such registration.

11. Indian Medical Council Act, 1956 was enacted for the purpose of reconstitution of the Medical Council Act and the maintenance of a Medical Register of practitioners in modern medicine and for matters connected therewith. The Act deals with approval of institutions for imparting medical education, registration of medical practitioners as well as maintenance of State Medical Register.

12. Section 2(F) of the Indian Medical Council Act, 1956 defines Medicine thus:-

"medicine" means modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery.

13. The petitioners have undergone training in a recognized Unani Medical College and they were awarded degree in BUMS after undertaking course for 5 years. The petitioners were also given training in Allopathic medicine during the period of their internship. However, the basic course done by the petitioners was only Unani. The petitioners have registered their name in accordance with the Indian Medicine Central Council Act, 1970. There is no dispute with respect to the qualification of the petitioners in Unani Medicine as well as their registration under the Indian Medical Council Act, 1970.

14. The core question is as to whether the petitioners are entitled to practice in the system of allopathic medicine along with unani on the basis of the limited training given to them for administering allopathic medicine.

15. The Supreme Court in Dr.Mukhtiar Chand and others vs. State of Punjab and others, 1998 (7) SCC 579 , [LQ/SC/1998/1012] noticed the various systems of medicine in vogue in India. It reads thus :-

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.

16. The petitioners have undergone the course in Unani, leading to degree in BUMS. They have also registered their name before the Tamil Nadu Board of Indian Medicine as per the provisions of the Indian Medicine Central Council Act, 1970. The petitioners have no case that they are also qualified in Allopathic system of medicine within the meaning of Indian Medical Council Act, 1956. The State Government is maintaining a register of all qualified allopathic medical practitioners in the State of Tamil Nadu in accordance with the provisions of Central Act, 102/1956.

17. Section 15 of Indian Medical Council Act, 1956 provides that the medical qualification included in the Schedule to the Act shall be sufficient qualification for enrollment on any State Medical Register. Section 15(2)(a) prohibits a person other than a medical practitioner enrolled on a State Medical Register from practicing medicine in the State.

18. The degree obtained by the petitioners do not find place in the schedule to the Indian Medical Council Act, 1956. The petitioners have also no case that they have registered their names in the State list maintained under the Indian Medical Council Act. The question is as to whether the mere experience gained by them during their internship would qualify them for practicing in the allopathic system of medicine. It is true that the petitioners have undergone internship in the Kilpauk Medical College hospital. The said fact is fortified by the certificate issued by the authorities of the Kilpauk Medical College.

19. In Dr.Mukhtiar Chand case cited supra [1998 (7) SCC 579 [LQ/SC/1998/1012] ], the Supreme Court observed that by virtue of such qualification as prescribed under the Drugs and Cosmetics Act and on being registered in the State Medical Register, a person will be entitled to practice Allopathy under Section 15(2) (b) of the Indian Medical Council Act, 1956.

20. The Director of Medical Services in his counter affidavit filed before this Court has confirmed that in the State of Tamil Nadu, the State Medical Register is formed only as per the Indian Medical Council Act, 1956 and no other degrees other than the one found mentioned in the schedule to the said Act are recognized for the purpose of enrollment in the State Medical Register.

21. It is true that even a Unani practitioner can make use of the advancement in the filed of public health. As part of their profession, it is open to them to get the patient tested in pathological labs for the purpose of identifying the disease. Similarly, the professionals qualified in the Unani, Ayurveda and Siddha are also entitled to make use of the advancement made in science and technology as well as in the field of health education. When it comes to the administration of medicine, there should be a measure of seriousness.

22. The claim of the petitioner is mainly on account of the training which they have undergone during their internship. According to them, they have undergone the course in Obstetrics, Gynecology, Medicine, Surgery, Pediatrics, E.N.T. and Ophthalmology in Kilpauk Medical College Hospital. On the basis of such experience, they claim that they are qualified for prescribing allopathy medicine in addition to the Unani system of medicine. However, on a perusal of the experience certificate, it is seen that the training itself was for a very brief period. For example, the petitioners were given training in surgery for a period of 14 days. Similarly, they have undergone training in Gynecology for a period of 7 days. In case the petitioners are of the view that they could treat patients with allopathic medicine on account of the brief training which they have undergone in KMC for the period indicated above, they would also claim that it is possible for them to undertake surgery and practice in gynecology on account of their training for 14 days and 7 days respectively.

23. The petitioners are well aware that the right to practice in Allopathic system of medicine is regulated by the provisions of the Indian Medical Council Act, 1956. Similarly, practice in Ayurveda, Unani and Siddha system of medicine are regulated by Indian Medicine Central Council Act, 1970. Both these enactments operate in different fields.

24. In Poonam Verma vs. Ashwin Patel and others, 1996 (4) SCC 332 , [LQ/SC/1996/1004] the question before the Supreme Court was regarding the allopathic treatment given by the first respondent, who was only a Homeo Practitioner and the ultimate death of the patient. The application filed by the widow of the deceased claiming compensation was dismissed by the National Consumer Disputes Redressal Commission against which, the appellant has filed an appeal before the Supreme Court. Supreme Court found that the first respondent in the civil appeal, was only a homeopathic practitioner. However, he administered allopathy and kept the patient on allopathic drugs initially for viral fever and thereafter for typhoid. When the condition of the patient deteriorated, he was shifted to a local hospital where he was treated as in-patient for two days and later, he was taken to Hinduja hospital in an unconscious state where after about 4 hours of admission, he died.

(a) Before the Supreme Court, Homeopathic medical officer contended that after the completion of his homeopathic training and obtaining a diploma in homeopathy, he had worked as Chief Medical Officer at a well known allopathic clinic and he had gained very good experience in examining, diagnosing and treating the patients with complaints of various types of sickness and in prescribing necessary allopathic medicines. He also contended that he has been giving allopathic treatment for the deceased and his family members for 3 years and the treatment administered was correct in every respect.

(b) The Supreme Court formulated the following question for consideration:-

12 ... If, therefore, he had not studied Allopathy and had not pursued the prescribed course in Allopathy nor had he obtained any degree or diploma in Allopathy from any recognised medical college, could he prescribe and administer Allopathic medicines, is the question which is to be answered in this appeal with the connected question whether this will amount to actionable negligence.

(c) In order to answer the above question, Supreme Court considered the provisions of the Indian Medical Council Act, 1956, Maharashtra Medical Council Act, 1965 and other laws regarding the practice in Unani, Siddha and Ayurveda medicine and observed thus :-

"33. The impact of the above provisions is that no person can practise medicine in any State unless he possesses the requisite qualification and is enrolled as a medical practitioner on the State Medical Register. The consequences for the breach of these provisions are indicated in sub-section (3). If a person practises medicine without possessing either the requisite qualification or enrolment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both."

25. In Poonam Vera case cited supra, Supreme Court rejected the contention that merely because the Anatomy and Physiology of human being is similar, a person who studied one system of medicine could treat the patient by drugs of another system which he might not have studied. The observation reads thus ::-

"37. It is true that in all the aforesaid systems of medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous system, the Cardio-Vascular system, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.

38. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one system of medicine can claim to treat the patient by drugs of another system which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all systems of medicines and the students belonging to different systems of medicines may be taught Physiology and Anatomy together, but so far as the study of drugs is concerned, the Pharmacology of all systems is entirely different.

39. An ailment, if it is not surgical, is treated by medicines or drugs. typhoid fever, for example, can be treated not only under Allopathic system of medicine, but also under the Ayurvedic, Unani and Homoeopathic systems of medicines by drugs prepared and manufactured according to their own formulae and pharmacopoeia. Therefore, a person having studied one particular system of medicine cannot possibly claim deep and complete knowledge about the drugs of the other system of medicine.

40. The bane of Allopathic medicine is that it always has a side-effect. A warning to this effect is printed on the trade label for the use of the person (doctor) having studied that system of medicine.

49. But we are of the positive opinion that Respondent 1, having practised in Allopathy, without being qualified in that system, was guilty of negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim sic utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence).

26. In Dr.Mukhtiar Chand and others vs. State of Punjab and others, 1998 (7) SCC 579 , [LQ/SC/1998/1012] the core issue before the Supreme Court was regarding the claim made by the notified vaids/hakims to prescribe allopathic drugs covered by the Indian Drgus and Cosmetics Act, 1940, on the basis of a declaration issued by the State Government under the Drugs Act which contained a particular provision for registered medical practitioners.

The Supreme Court considered the provisions of Indian Medical Council Act, 1956 and Indian Medicine Central Council Act, 1970 as well as the Drugs and Cosmetics Act, 1940 and negatived the claim of medical practitioners registered under the Indian Medicine Central Council Act, 1970 to practice modern scientific medicine on account of their training in hospitals of allopathic medicine. The Supreme Court observed thus :-

42. ... 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.

45. ... It may be pointed out first that the Act regulates practise of allopathic medicine, so Section 15(2)(b) requires that only those who are registered on the State Medical Register alone can practise allopathic medicine and secondly, the prohibition is directed against every person who is not registered on any State Medical Register and all such persons are precluded from practising allopathic medicine. The punishment under Section 15(3) is in respect of the contravention of any provision of sub-section (2).

47. A harmonious reading of Section 15 of the 1956 Act and Section 17 of the 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or the Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of the 1956 Act.

27. In Dr.Mukhtar Chand case cited supra, counsel for those qualified in the integrated course also made submissions that right to practice a system of medicine is derived from the Act under which a medical practitioner is registered and right which the holders of a degree in integrated courses of Indian medicine were claiming was to have their prescription of allopathic medicine honoured by a pharmacist or a chemist under the Pharmacy Act and the Drugs Act. The Supreme Court rejected the said argument and observed thus :-

"This argument is too technical to be acceded to because prescribing a drug is a concomitant of the right to practise a system of medicine. Therefore, in a broader sense, the right to prescribe drugs of a system of medicine would be synonymous with the right to practise that system of medicine. In that sense, the right to prescribe an allopathic drug cannot be wholly divorced from the claim to practise allopathic medicine."

28. The Medical Council Act, 1956 was amended by the Indian Medical Council (Amendment) Act, 2001. As per Section 13(4A), a person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognized for enrollment as medical practitioner in that country after such date as may be specified by the Central Government under sub-Section(3) shall not be entitled to be enrolled on any medical register maintained by a State Medical Council or to have his name entered in the Indian Medical Register, unless he qualifies the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies the said screening test shall be deemed to be the recognized medical qualification for the purpose of this Act for that person. The amendment made to the Indian Medical Council Act in introducing a screening test for those who qualified outside India also shows the concern of the Government in the matter of public health.

29. When the Medical Council Act prohibits registration of MBBS degree holders from other countries in India without undergoing screening test, it is not open to the medical practitioners of other system of medicine to claim their right to practice in modern medicine without qualification in the said system. In fact, the conduct of screening test for foreign MBBS Degree holders to register in India was upheld by the Supreme Court in Yash Ahuja and others vs. Medical Council of India and others, 2009 (12) Scale 687 [LQ/SC/2009/1868] .

30. The grievance of the petitioners are on account of the raid conducted by the police authorities in their clinic on account of their practice in Allopathic medicine along with Unani Medicine. The Director of Medical Sciences in his counter affidavit has categorically stated that the Unani practitioners like the petitioners are not entitled to practice in the system of Allopathic medicine. The petitioners have also no case that they are qualified in the allopathic system of medicine. The petitioners are taking shelter under the brief training given to them during their internship. The training which the petitioners have undergone during the time of house surgeoncy was only for the purpose of completing the course as per the regulations. During that particular period of six months, the petitioners were given training in as many as seven departments viz., Obstetrics, Gynecology, Medicine, Surgery, Pediatrics, E.N.T. and Ophthalmology. The training for a brief period given to the petitioners were not for the purpose of practicing in the system of allopathic medicine or to administer modern medicine. It was only as part of their curriculum to get the degree in BUMS they have undergone such training. The training received by the petitioners in the Government Hospital will not qualify them to practice in the allopathic system of medicine. So long as there is no entry of the petitioners name in the State Register maintained by the statutory authorities under the Indian Medical Council Act, 1956, it is not open to them to practice in the allopathic medicine.

31. There is no dispute that Ayurveda, Siddha, Unani and allopathic and homeopathic system of medicines have got their own history, heritage, advantages and importance. It is not possible to ignore our traditional, indigenous system of medicine and the service rendered by the medical practitioners of Indian Medicine for the cause of public health. There is no restriction for practicing the Indian Medicine by the qualified practitioners. The problem would arise only when they attempt to practice the allopathic system of medicine without a Degree and training in the modern system of medicine.

32. The petitioners have no case that they were prevented by police from practicing in the Unani system of medicine. The police attempted to prevent only their practice in the allopathic medicine as they are not qualified to administer modern medicine. In such circumstances, the petitioners are not entitled to the relief claimed in the writ petition. There is no merit in their contention and as such, the writ petition is liable to be dismissed.

33. Before concluding this judgment, I consider it appropriate to quote the following observation of the Supreme Court in Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332 [LQ/SC/1996/1004] :

"43. A person who does not have knowledge of a particular system of medicine but practises in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan."

34. In the result, the writ petition is dismissed. No costs.