Madras High Court
Rep. By Its President vs The State Of Tamil Nadu on 28 April, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.10311 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.10311 of 2016
and
WMP(MD)No.8062 of 2016
All Tamil Nadu Acupuncture and
Alternative Medical Association Trust
(Regd.75/2001)
Rep. by its President
S.Mohamed Sabir : Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by the Health Secretary,
Health Department,
St.Fort George, Chennai – 9.
2.The Director General of Police,
Rajaji Salai,
Chennai.
3.The Registrar,
Tamil Nadu Siddha Medicine Council,
Arumbakkam, Chennai.
4.The Secretary,
Health and Family Welfare Department,
Union of India, Room No.348 A Wing,
Nirman Bhavan, New Delhi – 110 011.
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WP(MD)No.10311 of 2016
5.The Registrar,
Dr.MGR University,
No.69, Anna Salai,
Guindy,
Chennai – 600 032.
6.The Secretary,
Health and Family Welfare Department,
Fort St.George,
Chennai.
7.The Director of Indian Medicine and Homeopathy,
Arignar Anna Government Hospital of Indian Medicine Campus,
Arumbakkam,
Chennai – 600 106. : Respondents
[R.4 to R.7 are suo-motu impleaded vide order dated 01.03.2023]
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the respondents 2 & 3 not to
interfere with the practice of Acupuncture treatment by the members of the
petitioner duly qualified by not entering and harassing the members of petitioner
with a view to stop their practice of Acupuncture system treatment without
following due process of law.
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WP(MD)No.10311 of 2016
For Petitioner : Mr.R.Venkatesan
for M/s.Right Law Associates
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by
Mr.J.K.Jeyaseelan,
Government Advocate
for R.1, R.3, R.5 to R.7
Mr.M.Vaikkam Karunanithi,
Government Advocate (Crl. Side)
for R.2
*****
ORDER
The petitioner, an Association established for the welfare of the Acupuncture and alternative medical practitioners, has filed this writ petition for a mandamus forbearing the respondents from interfering with the practice of Acupuncture by their members.
2.According to the petitioner Association, they are having 52 members / Therapists of Acupuncture and they are duly qualified from various Universities. Their members are receiving threat from the police and from the Doctors, who are practicing Siddha medicine and therefore, they have moved this writ petition. 3/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016
3.By relying on the orders issued by the Ministry of Health and Family Welfare, Government of India, dated 25.11.2003 and 21.02.2019, learned Counsel appearing for the petitioner submitted that the practice of Acupuncture is being recognized by the Ministry of Health and Family Welfare. The members of the petitioner Association, who are having a qualified degree, are entitled to practice Acupuncture, however, the police are obstructing their practice.
4.Learned Additional Advocate General appearing for the official respondents, by relying upon the counter affidavit filed by the Tamil Nadu Siddha Medical Council, submitted that those who studied the recognized Indian System of Medicines like Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy alone are eligible to practice Acupuncture as a mode of therapy and others are forbidden to practice, as they are not qualified Doctors. He also referred about various Government Orders dealing with quackery and medical malpractices.
5.This Court paid it's anxious consideration to the rival submissions and also to the materials placed on record.
4/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016
6.Acupuncture is one of the traditional Chinese medicines, which is commonly used for treating pain by inserting thin needles through the skin at strategic points in the human body. The petitioner is an association established for the purpose of protecting, promoting and propagating alternate systems of medicines, such as Acupuncture, Acupressure, etc. This writ petition was filed to direct the respondents not to interfere with the practice of the Acupuncture treatment by the members of the petitioner Association.
7.The Government of India, through the Ministry of Health and Family Welfare, on 25.11.2003 issued an order regarding grant of recognition to alternative medicine in No.R.14015/25/96-U&H(R)(Pt.). As per this order, the Government constituted a “Standing Committee of Experts” to consider various fields of alternative medicines as suggested by the High Court of Delhi in CWP.No.4015 of 1996 and OM.No.8468 of 1997. The Committee did not accept any other new system of medicine other than the already accepted traditional systems of medicine, such as, Ayurveda, Siddha, Unani, Homeopathy and Yoga & Naturopathy. However, the Committee recommended that Acupuncture and Hypnotherapy could be practised as a mode of therapy, only by registered 5/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 practitioners of modern medicine or Indian systems of medicine. It was further stated that the systems of medicines, which are not recognized as separate systems, should not be allowed to be continued as full-time Bachelor and Master’s degree courses, but such modes of therapy can be taught as Certificate Courses to medical practitioners. As per this order dated 25.11.2003, Acupuncture was not a system of medicine to be practised independently, but only a mode of therapy which registered medical practitioners could do.
8.On 21.02.2019, the Ministry of Health and Family Welfare, vide Circular in No.U-11018/03/2018-HR recognized Acupuncture as an independent system of medicine based on the report of the Inter-Departmental Committee. The Ministry, through this order, further created an Apex Committee on Acupuncture for the purpose of promotion and regulation of Acupuncture as a system of medicine. The terms of reference for the Apex Committee on Acupuncture, as per the Circular dated 21.02.2019, are extracted as follows:-
i. To frame detailed guidelines for promotion and regulation of acupuncture as a system of Healthcare / Therapy.
ii. To suggest steps for implementation of the guidelines so framed as well as for the reimbursement for Acupuncture. 6/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 Iii. To suggest appropriate authority / Department for implementation of the guidelines.
iv. To suggest its final report to the Government within a period of three months from the date of the first meeting of the committee.
9.After making Acupuncture an independent system of medicine, no further guidelines have been framed by the Apex Committee for the promotion and regulation of Acupuncture as a system of medicine. On 11.03.2019, the Indian Council of Medical Research has issued a press release that the Committee will frame detailed guidelines for the promotion and regulation of Acupuncture as a system of Healthcare / Therapy and will suggest steps for implementation of the guidelines. This press release has also assured that the Committee will submit its final report within a period of three months. But, the Apex Committee has not yet filed their report.
10.The petitioner Association seeks an omnibus prayer directing the respondents not to interfere with their practice of Acupuncture. This writ petition was filed as early as in the year 2016, whereas, Acupuncture was recognized as an 7/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 independent system of medicine only in the year 2019. Though Acupuncture is now recognized by the Government of India, by order dated 21.02.2019, still no guidelines have been framed for regulating the same. Given these facts, this Court is of the view that Acupuncture cannot be allowed to be practised independently based on recognition, without any guidelines regulating the same.
11.In Bose K.Mohamed Meera v. Union of India and Others [WP.No. 14751 of 2020, decided on 04.01.2022], this Court refused to quash the Circular in Na.ka.No.4047/A3/2019 dated 25.09.2020 issued by the Director of Indian Medicine and Homeopathy, Chennai, for identifying persons practising methods of therapies including acupuncture quacks. This Circular was issued to prevent illegal practitioners in the name of the Acupuncture therapist and this was held to be a reasonable one, given the non-submission of the final report by the Apex Committee even though Acupuncture was made an independent system of medicine.
12.The innocent lives of the public cannot be put at stake with an unregulated system, just because it was made as an independent system of practice. Therefore, until the final report on the guidelines for implementation of 8/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 Acupuncture by the Apex Committee constituted by Circular dated 21.02.2019 is submitted and approved by the Government, the previous order of the Ministry of Health and Family Welfare dated 25.11.2003 shall prevail. As per the previous order dated 25.11.2003, Acupuncture can be practised only as a mode of therapy and that it could be practised only by registered practitioners of modern medicine or Indian systems of medicine. Therefore, blanket protection from interference cannot be given to all the practitioners of Acupuncture, but only in accordance with the order dated 25.11.2003.
13.Further, this Court in Association of Acupuncture and Natural Therapy and Others v. State of Tamil Nadu and Others [WP(MD)Nos. 22355 of 2017, etc., batch, decided on 08.08.2019], while disposing a batch of cases of similar nature regarding the practice of Acupuncture, has held that as per the Tamil Nadu Clinical Establishments (Regulation) Rules, 2018, registration under the appropriate authorities is required and that the petitioners without registering under the Rules cannot practice Acupuncture.
14.In the State of Tamil Nadu, no person shall carry on any private clinical establishment, unless the private clinical establishment is duly registered under the 9/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 Tamil Nadu Private Clinical Establishments (Regulation) Act, 1997. A “clinic” is defined under Rule 2(c) of Tamil Nadu Clinical Establishments (Regulation) Rules, 2018, that it includes the place where treatment of illness using Government recognized system of medicine is done. Hence, there is also a requirement under this Act to be registered for practising Acupuncture.
15.The petitioner Association, in the typedset of papers, has enclosed the certificates which their members have acquired from various Universities. This Court has perused the certificates and it appears that Madurai Kamaraj University has issued Certificate of Acupuncture Therapy by conducting classes from 12.08.2009 to 11.11.2009. Similarly, the Karnataka State Open University has also granted certificates as if they had conducted Acupuncture Therapy, Traditional Chinese Medicine, Bio Energy – Advanced Five Elements, Auriculo, Scalp Acupuncture & Acupressure, through correspondence.
16.It is not known as to how within a short span, such courses could be covered and that too, through correspondence. It is also not known as to whether the competent authorities have recognized the Universities for conducting such courses. If the Universities have not been recognized, the qualification obtained by 10/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 the members of the petitioner Association itself may not be recognized to give treatment to the patients.
17.In view of the foregoing discussions, this Court is issuing the following directions :-
i. The respondents shall ensure that the practice of Acupuncture is done as a mode of therapy by the registered medical practitioners and not as an independent system of medicine, until the final report on the guidelines for implementation of Acupuncture by the Apex Committee constituted by order dated 21.02.2019 is submitted and approved by the Government.
ii. The respondents shall ensure that the clinics run by the members of the petitioner Association are duly registered under the Tamil Nadu Private Clinical Establishments (Regulation) Act, 1997, and if there is any contravention, they shall take necessary action.
iii. The respondents shall also ensure that the Colleges / Universities, throughout the State, conducting courses on Acupuncture and other alternative medicines are approved by the competent regulatory body.
11/13 https://www.mhc.tn.gov.in/judis WP(MD)No.10311 of 2016 With the above observations and directions, this writ petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed.
Internet : Yes 28.04.2023
Index : Yes / No
NCC : Yes / No
gk
To
1.The Secretary,
Health and Family Welfare Department,
Fort St.George, Chennai.
2.The Director General of Police,
Rajaji Salai,
Chennai.
3.The Registrar,
Tamil Nadu Siddha Medicine Council,
Arumbakkam, Chennai.
4.The Registrar,
Dr.MGR University,
No.69, Anna Salai,
Guindy, Chennai – 600 032.
5.The Director of Indian Medicine and Homeopathy, Arignar Anna Government Hospital of Indian Medicine Campus, Arumbakkam, Chennai – 600 106.
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