Madhya Pradesh High Court
Bhartiya Alternative Medical ... vs The State Of M.P on 22 July, 2010
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No. 7352/2007
Bhartiya Alternative Medical Foundation and others
Vs.
State of M.P. and others.
W.P. No. 2242/2007
Indian Electro Homeopathy Medical
College & Hospital, Baihar (Balaghat)
Vs.
State of M.P. and others.
W.P. No. 7457/2007
Council of Electrono Homeopathic
System of Medicine, Bhopal (M.P.)
Vs.
Union of India and others
W.P. No. 7770/2007
Alternative Medical College and others
Vs.
Union of India and another
W.P. No. 8253/2007
Private Doctors Association of Medicine
Vs.
State of M.P. and others.
DB : Hon. Arun Mishra & Hon. S.C. Sinho, JJ
Shri Parag Chaturvedi, Shri Aditya Sanghi and Shri
Sameer Seth, Advocates for petitioners.
Shri Deepak Awasthi, Govt. Advocate for State.
(2)
ORDER
(22.7.2010) As Per : Arun Mishra, J.
1. In W.P. No. 7352/2007, prayer has been made for quashing order (P-4) dated 11.4.2007 passed by Principal Secretary, Department of Medical Education, Madhya Pradesh, Bhopal. Prayer has also been made to direct the respondents to permit the petitioner institution to practice and impart education in alternative system of Electro Homeopathy System of Medicine in accordance with law. Prayer has also been made to issue mandamus directing respondents State to formulate the rules and regulation as well as guidelines by bringing regulatory legislation for Electro-Homeopathy System as per direction of Delhi High Court passed in W.P. No. 4015 of 1996.
2. In W.P. No. 2242/2007 prayer has been made to quash order dated 22.1.2007 and communications dated 6.2.2007 and 3.2.2007 issued by the respondents. Further prayer has been made to permit the petitioner institution/College established at Baihar, Balaghat to function and direct the respondents to grant registration to the petitioner institution.
3. In W.P. No. 7770/2007, prayer has been made to quash order dated 11.4.2007 passed by respondent No. 2. Further prayer has been made to direct the respondents to comply with order passed in W.P. Nos. 310/98 and 3990/95 to frame (3) rules and regulations with respect to Electro Homeopathy System of Medicine.
4. In W.P. No. 7457/2007, prayer has been made to quash order dated 11.4.2007 and to permit petitioner institution to impart education in Electro Homeopathy System of Medicines.
5. In W.P. No. 8253/2007 prayer has been made to declare the provision of Section 7-C and 8 of M.P. Chikitsiya Shiksha Sanstha (Niyantran) Adhiniyam, 1973 (hereinafter referred to as the Adhiniyam, 1973) as ultra vires.
6. The facts are being referred to from W.P. No. 7352/2007.
It is averred in the petition that petitioner institutions are imparting instructions in electro homeopathy by using medicines of electro homeopathy, harmless, devoid of all chemicals, minerals and metals etc. The Electro Homeopathic System was invented in the year 1865 in the city of Bologna in Italy by Count Ceaser Mattei. It has spread over and developed in various countries like Germany, Switzerland, United Kidgdom, Pakistan, Ghana, United Arab Emirates, Poland, Russia etc. It is asserted that electro homeopathy is the most natural and harmless system of medicines. Same is dependent upon the vegetable kingdom. Electro homeopathic remedies generate greater power, restoring capacity, arresting organic changes than all the drugs mentioned in other pharmacopoeias. The Electro Homeopathic Medicines are essences, juices, extracts of (4) various plants and its various organs prepared through cohobation/cold fermentation process propounded by Theophrastus Von Hahenheim and known as the 'Spagiric way'. It is submitted that High Court of Delhi vide order dated 18.11.1998 issued direction to the Central/State Government to make legislation prescribing: (i) the grant of licence to the existing and new institutes conducting courses in Electropathy and other alternative system of medicines,
(ii) minimum standards of education and check on the functioning of such institutes, (iii) minimum qualifications for getting admission in such institutes and (iv) conditions entitling these institutes to issue diplomas and certificates and right to use the prefix 'Doctor' and to issue medical certificates to the patients by diploma/certificate holders from such institutes. The State of M.P. was bound to comply with the directions contained in order dated 18.11.1998 and to make legislation recognizing the Electro Homeopathic System of Medicine.
7. Several writ petitions were filed in this Court, one of which M.P. No. 2018/92 (National Development Society of Electro Homeo. and others Vs. State of M.P. and others) was allowed by this Court, which was decided along with several other writ petitions vide common order dated 19.3.1999. Another writ petition W.P. No. 3990/1995 was decided by this Court vide order (P-3) dated 2.1.2007. It is submitted that impugned order dated 11.4.2007 passed by the (5) Principal Secretary, Department of Medical Education deserves to be set aside and State Government be directed to legislate regulatory measures governing Electro Homeopathic System of Medicine.
8. In W.P. No. 8253/2007, the petitioner has challenged the vires of amended Section 8 and Section 7-C of Adhiniyam, 1973. Section 7-C puts a fetter on use of title 'Doctor'. It is provided in Section 7-C that the title "Doctor" may be used with the name of a person who holds a recognised medical qualification and who is registered as a medical practitioner with the Board or Council or any other institution established by law for the time being in force and no other person shall use the title 'Doctor' with his name to express himself as a medical practitioner. Section 8(1) of Adhiniyam, 1973 provides that whoever contravenes the provisions of Section 3 of Section 5-B or Section 7 or Section 7-B, or the terms and conditions subject to which permission is granted under Section 5 or Section 7, shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to one lakh rupees or with both. There is no prohibition to conduct and the use of Electro Homeopathic System of Medicines as such the aforesaid provisions be declared to be ultra vires.
9. Return has been filed in W.P. No. 7457/2007, which has been adopted in other writ petitions. It is contended in the return that a Division Bench of this Court in W.P. No. (6) 3990/2005 has issued directions that the petitioner institution or the like institutions shall not award any Degree in the courses conducted by them till the legislative enactments are put in force and there after in case any enactment is enforced they shall act in accordance with the provisions contained therein. It was also directed that the Government shall particularly provide the law in relation to the system of medicine of Electropathy claimed by petitioner and whether such type of certificate is sufficient to use the prefix 'Doctor' against their name. It was also directed that adequate media publicity shall be given by the State Government to inform general public to be careful in relation to such courses of instructions in electro homeopathy till the legislature enacts the law and recognizes this system of medicine. Despite the aforesaid prohibitory orders issued by Division Bench of this Court, the petitioner institutions are imparting education in Electro Homeopathic System of Medicine. Adhiniyam, 1973 has been amended in the year 2006. The committee headed by the experts in medical field in its report (R-1) dated 25.11.2003 has specifically recorded negative findings about Electro Homeopathy etc. that there is absolutely no scientific support to the Electro Homeopathy discipline and such persons cannot prefix the word Doctor against their names. Meaning of the word Doctor has been changed by Amendment Act, 2006. Similarly the provisions of Sections 3, 5, 7, 7-A, 7-B, 7-C and 9 have also been (7) amended. Under the aforesaid amended provisions, imparting instruction in Electro Homeopathic System of Medicine has been prohibited. Thus, it is not permissible to impart education until and unless permission is accorded by the State of M.P. in accordance with the provisions of Adhiniyam, 1973.
10. Shri Parag Chaturvedi, Shri Adhitya Sanghi and Shri Sameer Seth, learned counsel appearing for the petitioner institutions have submitted that in view of various decisions rendered by this Court and Delhi High Court, order dated 11.4.2007 passed by the Principal Secretary is illegal and arbitrary. It is also submitted that State is bound to legislate as per direction issued time to time in various cases and to recognize the Electro Homeopathic System of Medicine. The amendment made in the Adhiniyam, 1973 does not cast any fetter upon the petitioners to impart teaching, establishing and administering the institutions and to practice in the field of Electro Homeopathy.
11. Shri Deepak Awasthi, learned Government Advocate appearing on behalf of the State has submitted that Adhiniyam, 1973 has been amended so as to bring all the medical eduction being imparted within the State of M.P. under the purview of Adhiniyam, 1973. He has also submitted that by virtue of amended provisions of Section 3, 5-A, 5-B, 7, 7-C and Section 8, the prohibition is intended to be given effect to by enacting the penal provisions for (8) imparting education except in accordance with the aforesaid Adhiniyam, 1973.
12. The main plank of the arguments of the petitioners' counsel is the decision of this Court rendered in M.P. No. 2018/92 decided along with several other writ petitions vide common order dated 19.3.1999. This Court opined that M.P. Ayurvigyan Parishad Adhiniyam, 1987 (hereinafter referred to as Adhiniyam, 1987) operates in the field of Allopathic System of Medicine not in the alternative system of medicine. This Court opined that the Electro Homeopathic System of Medicine is not regulated by the Adhiniyam, 1987. In the circumstances, it was held that prohibiting them to practice and impart education in the alternative system of medicine was impermissible.
13. Another Division Bench of this Court in W.P. No. 310/1998 (Rajendra Prasad Medical Institute of Electro Homeopathy & others Vs. Union of India and others) passed order dated 27.2.2001 to the effect that Central/State Government shall consider making of the legislation prescribing minimum standards of education and check on the functioning of the institutions conducting courses in Electropathy and other alternative system of medicine and also minimum qualification for admission and right to use prefix 'Doctor'. It was directed that petitioner shall not make misleading claim in regard to having been recognized by the Medical Council of India and State Medical Council in (9) the advertisement till enforcement of legislative enactments. General public shall be informed that the petitioner and other institutions are not recognized and affiliated. They shall not award any degree in the course conducted by them till the legislative enactments are put in force and in case enactments are in force, they shall act in accordance with the provisions contained thereunder. The following directions were issued by the Division Bench of this Court :-
(1) The central/State Government shall consider making the legislation prescribing the minimum standards of education and check on the functioning of the institute conducting courses in Electropathy and other alternative system of medicine on the line set out in Section 17, 18, 19 and 19 A of the medical council act, 1956.
(a) The minimum qualification for getting admission in such institute and the minimum qualification for getting admission their in.
(b) The right to use the prefix 'Doctor' and for the issue of medical certificates to the patients by Diploma/Certificate holders from the recognized institutes referred to here in above.
(2) The petitioners shall not make misleading claim in regard to having been recognized by the medical council of India or the state medical council in the advertisement till the enforcement of the legislative enactment.
(3) Adequate publicity through the media shall be given informing the general public about petitioners and other similar institute to be not having been not recognized and affiliated with any of the medical councils of the Central and State Government.(10)
(4) The petitioners institution or the like institutions shall not award any Degree in the courses conducted by them till the legislative enactments are put in force and there after in case any enactment is enforced, they shall act in accordance with the provisions contained therein.
(5) The exercise in the matter relating to making of the legislation referred to here in above shall be undertaken expeditiously preferably within a year.
14. Thereafter Single Bench of this Court has passed order in W.P. No. 3990/1995 on 2.1.2007. Order of Division Bench has been quoted in extenso. The Single Bench of this Court directed that order of Division Bench shall prevail and respondents shall abide by the directions given by the Division Bench in W.P. No. 310/1998 (Rajendra Prasad Medical Institute of Electro Homeopathy & others Vs. Union of India and others). Thereafter impugned order has been passed by the Principal Secretary, Department of Medical Education on 11.4.2007, which has been assailed in the instant writ petitions.
15. Now we take note of certain amendments which have been made in the Adhiniyam, 1973. The object of the Adhiniyam indicates that same is enacted to provide for proper regulation of Institutions of Medical Education in the State and for matters concerned therewith.
16. Definition of Medicine and Medical Education has been amended vide Act No. 15/2006. The definition of 'Medicine' has been modified by addition of Clause (iv) in Section 2(b). (11) Earlier 'Medicine' used to mean; (i) the medicine within the meaning of Clause (f) of Section 2 of the Indian Medical Council Act, 1956, (ii) medicine in Homeopathy and Biochemistry within the meaning of clauses (1) and (3) respectively of Section 2 of the Madhya Pradesh Homeopathic and Biochemic Practitioners Act, 1951 and (iii) medicine in Ayurvedic System, Naturopathy or Unani System within the meaning of clauses (b), (e) and (l) respectively of Section 2 of the Mahdya Pradesh Ayurvedic Unani Tatha Prakritic Chikitsa Vyavasayi Adhiniyam, 1970. By way of amendment, clause (iv) has been added to the effect that "all other medicines, therapies or systems". The definition of Medicine is quoted below :-
2(b) : "medicine" means-
(i) medicine within the meaning of clause (f) of Section 2 of the Indian Medical Council Act, 1956 (No.102 of 1956);
(ii) medicine in Homeopathy and Biochemistry within the meaning of clauses (1) and (3) respectively of Section 2 of the Madhya Pradesh Homeopathic and Biochemic Practitioners Act, 1951 (No. 26 of 1951);
(iii) medicine in Ayurvedic System, Naturopathy or Unani System within the meaning of clauses (b), (e) and
(l) respectively of Section 2 of the Madhya Pradesh Ayurvedic Unani Tatha Prakritic Chikitsa Vyavasayi Adhiniyam, 1970 (No. 5 of 1971);
(iv) all other medicines, therapies or systems;(12)
Definition of Medical Education has also been amended. Earlier Medical Education was confined to the aforesaid three aspects which were defined earlier in the medicine. Now Medical Education means 'any other medical qualifications', same is quoted below :-
2(c) : "medical education" means education in medicine for the purpose of preparing for -
(i) a medical qualification within the meaning of clause (h) of Section 2 of the Indian Medical Council Act, 1956 (No. 102 of 1956);
(ii) a medical qualification within the meaning of clause (g) of Section 2 of the Madhya Pradesh Homeopathic and Biochemic Practitioners Act, 1951 (No. 26 of 1951);
(iii) a medical qualification within the meaning of clause (h) of Section 2 of the Madhya Pradesh Ayurvedic, Unani Tatha Praktritic Chikitsa Vyavasayi Adhiniyam, 1970 (No.5 of 1971);
(iv) any other medical qualifications;
17. There is prohibition carved out by amended section 3. Embargo has been put now to the effect that no person shall establish or assist in establishment, administer or assist in administration of institution of medical education or shall advertise, it, and issue or assist in issuing any degree, diploma or certificate of medical education of such institution without obtaining prior permission in writing of the State Government, in accordance with the provisions of this Act. Section 3 is quoted below:-
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3. Restriction on establishing, administration and advertisement of institution of medical education without permission.- Subject to the provisions of Article 30 of the Constitution, no person shall establish or assist in establishment, administer or assist in administration of institution of medical education or shall advertise, it, and issue or assist in issuing any degree, diploma or certificate of medical education of such institution without obtaining prior permission in writing of the State Government, in accordance with the provisions of this Act.
Section 4 deals with application of the Act. It is provided that the Act shall apply to all institutions of medical education except those which are established and administered or run by, or on behalf of, the Central Government or the State Government or sponsored by the Central Government or the State Government, whether singly or jointly. Thus exception has been carved out only with respect to institution or institutions run by them.
Section 5 provides that every person desirous of establishing and administering of running an institution of medical education shall, not less than one year before the commencement of the academic session apply with the particulars mentioned in sub-section (2) of Section 5. The sub-section (3) of Section 5 provides for enquiry into such applications and decision to be taken.
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Section 7 has also been amended drastically to the effect that where an institution of medical education established, before Amendment Act was brought into force, and it has not obtained permission of the State Government, whether affiliated to any University or recognised by any Board or not, is being administered or run on such date, the person responsible for establishing or administering or running such institution for the time being in force shall make an application within 30 days from the date of commencement of the M.P. Chikitsiya Shiksha Sanstha (Niyantran) Sanshodhan Adhiniyam, 2006. Sanshodhan Adhiniyam came into force w.e.f. 14.6.2006. Section 7 (1) is quoted below :-
7(1): Where an institution of medical education established prior to the date of commencement of the Madhya Pradesh Chikitsiya Shiksha Sanstha (Niyantran) Sanshodhan Adhiniyam, 2006, which has not obtained permission of the State Government, whether affiliated to any University or recognised by any Board or not, is being administered or run on such date, the person responsible for establishing or administering or running such institution for the time being in force shall make an application within 30 days from the date of commencement of the Madhya Pradesh Chikitsiya Shiksha Sanstha (Niyantran) SanshodhanAdhiniyam, 2006 to the State Government in such from and together with such fee as may be prescribed for grant of permission or for continuance of (15) such institution of medical education thereafter:
Provided that nothing in this sub-section shall apply to such institutions of medical education in respect of which applications were made before the date of commencement of the Madhya Pradesh Chikitsiya Shiksha Sanstha (Niyantran) Sanshodhan Adhiniyam, 2006."
18. By way of amendment Section 7-C has been inserted, which provides that the title 'Doctor' may be used with the name of a person who holds a recognised medical qualification and who is registered as a medical practitioner with the Board or Council or any other institution established by law for the time being in force and no other person shall use the tile 'Doctor' with his name to express himself as a medical practitioner. Section 7-C is quoted below :-
"7-C : Use of title "Doctor".- The title "Doctor" may be used with the name of a person who holds a recognised medical qualification and who is registered as a medical practitioner with the Board or Council or any other institution established by law for the time being in force and no other person shall use the title "Doctor" with his name to express himself as a medical practitioner."
19. Sub-section (1) and sub-section (2) of Section 8 have also been substituted, same are quoted below :-
8(1) : Whoever contravenes the provisions of Section 3 or Section 5- B or Section 7 or Section 7-B, or the terms and conditions subject to (16) which permission is granted under Section 5 or Section 7, shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to one lakh rupees or with both and whether the breach is a continuing one with further fine which may extend to one thousand rupees for every day after the day during which the breach is proved to have been persisted in.
(2) Whoever contravenes the provisions of Section 7-C shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to fifty thousand rupees or with both.
20. Amendment in the definition of Medicine in Section 2(b) is that "all other medicines, therapies or systems" stands included within ken of Adhiniyam, 1973. Similarly "any other medical qualifications" has also been included in Section 2(c) which defines medical education. The amended provision obviously include medical qualification and system of medicine of Electro Homeopathy. The phrase "all other medicines, therapies or systems" is wide enough to take into its ambit Electro Homeopathy System of Medicine also. Then Section 3 carves out a prohibition to establish, administer or assist in administration of institution of medical education without prior permission in writing of the State Government, thus it is the prerogative of the State Government under Adhiniyam, 1973 to give permission to the institutions to impart any other medical qualification in all other system of medicines, therapies or systems which may be considered (17) appropriate. As per Section 7, in case any institution established prior to coming into the force of Amendment Act, 2006, which has not obtained permission of the State Government to impart such course of instructions, it has to apply within 30 days from the date of commencement of Amendment Act. There is also a bar to use title 'Doctor' except by a person who holds recognized medical qualification and who is a registered medical practitioner with the Board or Council or any other institution established by law for the time being in force. The legislative intent is clear. By way of aforesaid amendment, penal provision in Section 8 has also been inserted which makes punishable any violation of Section 3 and 7. In case any institution is imparting instructions in all other forms of medicines, therapies or systems as provided in Section 2 (b)
(iv) or for any other medical qualifications as defined in Section 2(c) of Adhiniyam, 1973 and has not obtained permission, it is running risk of being penalized under section 8 of Adhiniyam, 1973.
21. In view of the aforesaid, we find order (P-4) dated 11.4.2007 to be in accordance with law. Detailed reasons have been given why it has not been considered to give recognition to such system of medicine. Court cannot compel State Government to legislate to recognise particular system of medicine.
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22. Decision of Division Bench of this Court in W.P. No. 310/98 is clear that State Government has to make legislation. Without permission if such instructions are imparted, there are penal consequences also. We find that the act of 1973of the State does not violate Division Bench decision of this Court. No effective directions can be issued compelling the State legislature to legislate to recognize a particular system of medicine, on the contrary prohibition has been carved out by amending Act of 1973 not to impart medical education except the system of medicine recognized by the State Government. It was also made clear by Division Bench of this Court that petitioner shall not make any misleading claim and adequate publicity shall be given that such institutions are not recognized. There is prohibition carved out under the aforesaid Act, that the petitioners institution or the like institutions shall not award any Degree in the courses conducted by them till the legislative enactments are put in force and there after in case any enactment is enforced, they shall act in accordance with the provisions contained therein. In our opinion, no such institution, which is not recognized in accordance with the provisions of Adhiniyam, 1973, can function in view of the amendment which has been made.
23. The decision of Single Bench of this Court rendered in M.P. No. 2018/92 on 19.3.1999 stands nullified by the amendment made in the Adhiniyam, 1973. Now restriction (19) has been imposed to establish the institution and to run it except with the permission granted by the State Government in all other systems of medicine etc. by amending definition of medicine and medical education as defined under Section 2(b) and 2(c) in said Adhiniyam, 1973. Thus legislative intent is clear that petitioner institutions cannot impart education as they are not recognized under Adhiniyam, 1973 neither prefix 'Doctor' can be used and nor degree or diploma can be distributed. Any violation of the provisions, attracts the penal provision of Section 8.
24. Coming to the order passed by Govt. of India, Ministry of Health and Family Welfare, Department of Health Research on 5th May, 2010; in the said order the decision rendered by this Court on 19.3.1999 has been reflected. As already discussed by us, there was yet another Division Bench decision rendered by this Court in W.P. No. 310/98 in which directions were issued to the State Government to make legislation recognizing the Electro Homeopathic System; the State Government has not chosen to legislate and we find other directions prohibitory in nature were issued by this Court, such institutions were debarred from awarding degree in the course conducted by them till legislative enactment is made and adequate publicity was required to be given by informing the general public that such institutions are not recognized one to impart education. In view of the amended provisions of Adhiniyam, (20) 1973 by amendment Act No. 15/2006 w.e.f. 14.6.2006, the legislative intent is writ large, consequences are clear as discussed in the order. Provisions of Adhiniyam, 1973 have not been noted in the order of Central Government, that cannot hold the field with respect to State of M.P. in view of legislative changes brought out in the State of M.P.
25. Resultantly, we find no merit in the instant writ petitions. Writ petition being devoid of merit, deserve dismissal, they are hereby dismissed. However, we leave the parties to bear their own costs as incurred of these petitions.
(Arun Mishra) (S.C.Sinho)
Judge Judge
PB