Allahabad High Court
Electro Homoeopathic Practitioners ... vs A.P. Verma, Chief Secretary, ... on 28 May, 2004
Equivalent citations: 2004(4)AWC3148, 2004 ALL. L. J. 2862, (2004) 19 ALLINDCAS 918 (ALL), (2004) 4 ALL WC 3148, (2004) 55 ALL LR 800, (2004) 2 ESC 1241
Author: M. Katju
Bench: M. Katju, R.S. Tripathi
JUDGMENT M. Katju, J.
1. This special appeal has been filed against the order of the learned single Judge, dated 29.4.2004.
2. We have heard learned counsel for the parties.
3. In D.K. Joshi v. State of U.P., 2000 (3) AWC 1845 (SC) : (2000) 5 SCC 80, it was brought to the notice of the Supreme Court that unqualified and unregistered persons are carrying on medical profession in the State of U. P. The Supreme Court was distressed to note that inspite of the direction to the U. P. Government to check this malpractice the District Magistrates and the Chief Medical Officers in the State had not taken effective steps to stop this menace which is hazardous to human life. The Chief Medical Officers only forwarded the names of the unauthorised medical practitioners to the District Magistrates but no follow up action was taken. It was also noted that after being warned the unqualified/unregistered Doctors have shifted to neighbouring districts. The Supreme Court issued several directions in para 6 of the said Judgment to stop the carrying on of the medical profession in U. P. by unqualified/unregistered persons and in addition to take the following steps :
(i) All District Magistrates and the Chief Medical Officers of the State shall be directed to identify within a time limit to be filed by the Secretary all unqualified/ unregistered medical practitioners and to initiate 'legal action against these persons immediately ;
(ii) All District Magistrates and the Chief Medical Officers shall monitor the legal proceedings, initiated against such persons ;
(iii) The Secretary, Health and Family Welfare Department, U. P., shall give due publicity of ' the names of such unqualified/unregistered medical practitioners so that people do not approach such persons for medical treatment;
(iv) The Secretary, Health and Family Welfare Department shall monitor the actions taken by all District Magistrates and all Chief Medical Officers of the State and issue necessary directions from time to time to these officers so that such unauthorised persons cannot pursue the medical profession in the State."
4. A contempt petition was moved before the Supreme Court alleging that the directions of the Court have not been complied with. By its order dated 8.10.2001 the contempt petition was dismissed by the Supreme Court with the direction that the petitioner can move the High Court for the relief sought for. Thereafter Contempt Petition No. 820 of 2002 was filed in this Court in which notices were issued to the respondents namely Chief Secretary, U. P. Secretary, Health and Family Welfare, District Magistrate, Meerut and Chief Medical Officer, Meerut. Other authorities were also impleaded as parties and were required to take action. The successive Principal Secretaries Medical Health. U. P., filed their affidavits including the action taken and the report of the Chief Medical Officers. In the report submitted by Director Medical Health, U. P., it was mentioned that the Community Health Centres are not providing adequate medical care which is almost absent in the rural areas. The Medical Council of India was also impleaded and filed its affidavit.
5. The learned single Judge after calling reports and the affidavits of successive Principal Secretaries, Medical Health, U. P., considered the matter in detail and issued the following directions :
(1) All the Hospitals, Nursing Homes, Maternity Homes, Medical Clinics, Private Practitioners, Practising medicine and offering medical and health care services pathology labs, diagnostic clinics, whether run privately or by firms, societies, trusts, private limited or public limited companies in the State shall register themselves with , Chief Medical Officer of the district where these establishments are • situate, giving full details of the medical facilities offered at these establishments, the names of the registered and authorised medical personnel practising, employed or engaged by them, their qualifications with proof of their registrations ; the Para Medical staff employed or engaged and their qualification, on a form (for each category) prescribed by the Principal Secretary, Medical Health and Family Welfare. Government of U. P. The prescribed proforma with true and accurate information shall be submitted supported by an affidavit of the peso providing such medical services or the person in-charge of such establishment sworn before Notary Public. The required information shall be submitted for registration, by all these persons, on or before 30.4.2004.
(2) The Principal Secretary, Medical, Health and Family Welfare, U. P., shall publish the information requiring all the persons to obtain registration, along with the directions given in this order, and the prescribed proforma, in all leading newspapers of the State, at least three times, in the month of February, 2004.
(3) Any change or addition in the particulars submitted shall be notified within thirty days and that the registration shall be renewed every year before 30th April of the year.
(4) On and from 1.5.2004 all those persons who have not furnished the information and obtained registration with the Chief Medical Officers of the district, shall be taken to be practising unauthorisedly and that the Chief Medical Officers, shall scrutinize and forthwith report the matter to the Senior Superintendent of Police of the district with information to this Court, to conduct raids and to seal the unauthorised premises/establishments, who fail to obtain registration will have liberty to apply only to this Court to explain the delay and to seek permission to continue with their medical practice profession.
(5) All those medical practitioners who desire to offer medical services in the State, in future, shall be required to submit the details in the aforesaid proforma for registration as above with the Chief Medical Officer of the district before they start medical practice.
(6) All the institutions/ establishments/colleges awarding medical degrees in the State shall apply and get themselves registered with the Principal Secretary Medical, Health and Family Welfare, U. P., with full particulars of their authorisation to confer such degrees/certificates on or before 30.4.2004."
6. The news papers and magazines, published in U. P. were restrained from publishing advertisements by and from unauthorised medical practitioners, publishing their claims of quick and magical remedies. They shall require these persons to give proof of their qualifications and registrations. The breach shall be taken to aid and abet illegal activities violative of the Magic Remedies (Objectionable Advertisements) Act, 1954, and other relevant legislation.
7. The Principal Secretary, Medical, Health and Family Welfare, U. P., was directed to ensure that no Medical Officer in the Government service is posted beyond three years in any district, and that all para-medical staff serving in the Primary Health Centre/Community Health Centre/District Hospitals and other hospitals run by Government of U. P. for more than five years shall be transferred from the centre/hospital. Any doctor in employment of the State Government offering their services to the unauthorised medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorised practice.
8. These orders were to be strictly complied with and any breach of these orders were to be treated to be contempt of court and punished accordingly.
9. The directions issued by the learned single Judge in his order dated 28.1.2004 were subject matter of challenge in Special Appeal No. 320 of 2004, Dr. Ravindra Kumar Goel and Ors. v. State of U. P. and Anr. The special appeals were dismissed by us on 27.4.2004 with the modification that Direction No. (8) in the judgment of the learned single Judge should only be treated as a recommendation and not a binding directive.
10. In Ravindra Kumar Goels case (supra) the Division Bench observed that in U. P. a large number of unauthorised medical practitioners (quacks) have mushroomed and have spread to every nook and corner, which is hazardous to the health and life of the public, apart from driving out the genuine doctors Just as bad coins drive out good coins from circulation (Gresham's Law in Economics). Such unauthorised medical practitioners have been befooling the people of Uttar Pradesh for more than two decades and have been exploiting them, often endangering their health. Under the law only a registered medical practitioner who has a degree from a recognised and genuine medical college alone can practice medicine. The Bench held that even if a person has got himself registered with the Medical Council of India or with the Board of Indian Medicine, U. P. or Homeopathic Medical Council or some other such body, he cannot be allowed to practise on the strength of that registration/certifiable alone. He must further have a medical degree from a genuine College.
11. The direction No. 8 was modified by us and a further direction was given by us to the State Government to frame a scheme regarding posting and transfer of Government doctors and no special treatment to any one.
12. The Electro Homeopathic Practitioners Association of India and National Federation of Electro Homeopathic Organizations, the appellants before us. filed an application for impleadment and another application with a prayer that the members of the appellants' association should be allowed to get themselves listed with the Chief Medical Officer of the district concerned where they were practising as Electro Homeopathy doctors and to teach and conduct courses in Electro Homeopathy and further that no punitive criminal action be taken against the members of the Association. A list of 224 members of this Association was appended to this application. The learned single Judge heard the parties and has rejected the application on the ground that the system of medicine practised by the appellants is not recognised by any legislation and that only those persons who hold a valid and recognised degree and are registered under legislation can be allowed to practice in the State.
13. The learned single Judge has also referred to the Delhi High Court decision in its judgment dated 18.11.1998 in Civil Misc. Writ Petition No. 4015 of 1996 and Misc. No. 8468 of 1997 by which the petitioners were restrained from issuing degrees in contravention to the Indian Medical Degree Act. 1916. The Delhi High Court observed that the petitioners do not hold the qualification/registration under the Indian Medical Council Act, 1956. Indian Medicine Central Council Act, 1970. Homoeopathy Central Council Act 1973, and it gave directions to the Central Government to consider making legislation prescribing the grant of licences to the existing practitioners of Electro Homoeopathy and other medical systems and to lay down the regulations for that purpose.
14. The Central Government constituted a Committee of Experts and considered the recommendation of the Committee, The Central Government by its order 25.11.2003 refused to recognize any system of medicine other than those which are already recognised by the aforesaid Acts. The Committee found that Electro Homoeopathy did not meet the criteria fixed by the Committee for that purpose. We cannot sit in appeal over the order of the Central Government dated 25.11.2003. That order was passed on the basis of opinion of experts. This Court should exercise judicial restraint and ordinarily defer to the opinion of experts vide University of Mysore v. C.D. Govindrao, AIR 1965 SC 491 (para 13); Rajindra Prasad Mathur v. Karnataka University, AIR 1986 SC 1448 (para 7) ; Dalpat Abasaheb Solunke v. B.S. Mahajan, AIR 1990 SC 434 (para 9) ; Dental Council of India v. Subharti, 2002 (4) AWC 2916 (SC) : AIR 2001 SC 2151 (para 8): Dr. M.C. Gupta v. Dr. Arun Kumar Gupta, (1979) 2 SCC 339 (Paras 7 and 8) : Chairman J.& K. State Board of Education v. Feyaz Ahmad Malik, (2000) 3 SCC 58 (paras 18 and 20), etc.
15. In para 15 of the special appeal the system of Electro Homoeopathic has been explained as follows :
"There are two main fluids in the human body namely blood and lymph. Lymph means all fluid other than blood, like tear in the eye, saliva in the mouth, running nose, fluid in the urinary tract etc. These two fluids maintain between themselves a balance which in turn generates an electric charge which in turn maintains an electric circuit in the human body. When the fluid balance in the human body in upset, the electric charge is upset and the circuit breaks and the human body shows symptoms of disease. Plants in the vegetable world also contain an electric circuit which runs on a charge. The serum/essence drawn from plants also carries their charge, Drugs are prepared from the serum/essence and when appropriate dosages are administered, electric charge drawn from plants re-establishes the balance of electric charges in the human body. As a result thereof the equilibrium in the human body is restored and the circuit is re-established. Thus, the curative treatment by restoring the equilibrium in the human body by administering an electrical charge drawn from vegetable world is all that Electro Homoeopathy is about. The drugs are drawn exclusively from the vegetable world as against Homoeopathy which draws drugs from the blochemic world, from the animal world, from the reptile world-the poison of snakes-and from the world of chemistry both organic and inorganic. The medicines are harmless, and have no side effects. The practitioners of Electro Homoeopathy are known to have cured otherwise incurable diseases like cancer, leprosy and leucoderma etc. The system was. discovered by an italian named Count Caesar Mattel in Italy in 1865 and was brought to India in the early 20th century and is being practised here ever since, for close to a hundred years now. The system has its own Pharmacopoeia and its own Materia-Medlca. The system is today practised almost in all the European countries and in a large number of countries in Asia."
16. The above statements sound to us the hocus pocus and mumbo-jumbo. In this connection we would like to mention that in the field of science often fraudulent and false claims are made. For example, about 10 or 15 years ago two American Scientists claimed to have discovered a method of producing cold fusion (Nuclear energy is of 2 types, fission and fusion, and only the former has as yet been harnessed for peaceful purposes, while the letter has as yet not been so harnessed because it takes place at very temperatures of 10 million '°C' or so). Later on, when the claim was subjected to tests by experts it was found to be false.
17. Similarly, some years back a person from Kerala claimed to know a process of making petrol out of water (by putting some leaves in the latter). This was also found to be false. Many other such examples of fake scientific claims can be given.
18. This Court does not consist of medical experts. Hence, unless the concerned statutory body, consisting of medical experts, recognises electro-homoeopathy as a genuine medical science we will continue to regard it as quackery. There are several so-called medical systems which have sprouted up lately in our country (since many poor people cannot afford to go to a genuine doctor), and many of them appear to be fake. At any event unless the expert State Medical bodies accept them as genuine we cannot do so.
19. We may mention that in genuine science there has to be academic rigour. Every claim has to be tested on the anvil of observation, experiment, and logical thought. Nothing can be blindly accepted. Every claim has to be tested rigorously by experts, and only if on repeated experiment the hypothesis holds good can it be then regarded as a genuine scientific theory. For instance, Einstein's Theory of Relativity was not accepted by the scientific world until the scientific experiments by the Royal Society of London in 1919 at the time of the total solar eclipse in the Gulf of Guinea verified the correctness of the Theory. Hence making tall claims like knowing how to cure cancer, leprosy, etc. cannot be blindly accepted, rather they show the extravagant and unrealistic assertions of the practitioners of electro homoeopathy. True Scientists usually display great modesty, but perhaps that cannot be expected of quacks.
20. Shri U. K. Shandilya, learned senior counsel for the appellants submits that the members of the petitioner Association have a fundamental right under Article 19(1)(g) to practise their profession. We do not agree. The right under Article 19(1)(g) is subject to reasonable restrictions. The State can validly impose a restriction that only those who are registered with the Medical Council or other statutory body, and who hold a medical degree from a genuine and recognised medical college, can practise medicine. Such restriction is reasonable because practice by unauthorised persons can endanger public health.
21. The citizen has a right under Article 21 of the Constitution to get medical treatment vide Consumer Education and Research Centres v. Union of India, JT 1995 (1) SC 637, wherein the Supreme Court observed (vide para 26). "The right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution. The right to life includes protection of the health and strength of the worker which is a minimum requirement to enable a peon to live with human dignity."
22. The Central Government constituted a Committee of experts under the directions of the Delhi High Court to consider whether Electro Homoeopathy can be regarded as a genuine system of medicine. The Expert Committee of the Central Committee recommended that no other system of medicine other than those which are already recognised by Legislation should be recognised. It follows that electro-homoeopathy has not been recognised by the authorities as a genuine medical system.
23. Shri U. K. Shandilya. learned sr. counsel for the appellants then submitted that the members of the petitioner's Association are not practising medicine, and hence they cannot be debarred from practice. We cannot agree. Chambers English Dictionary defines medicine to mean "the art or science of prevention and cure of disease." Thus, medicine is that knowledge which is used for curing the aliment of 'Jie human body. Since the petitioners claim that their activities are aimed at curing the ailment of the human body there can be no doubt that they claim to be practising medicine. It is of course a different matter that their claim has not been accepted by the expert committee appointed by the Central Government.
24. Section 2(f) of the Indian Medical Council Act, 1956, defines medicine as follows :
" 'medicine' means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery."
25. Electro-homoeopathy claims to be a modern medical science as it is alleged that it was discovered by an Italian named Count Caesar Mattel in Italy in 1865 and was brought to India in the early 20th century. Thus, it does not claim to be some ancient system of medicine.
26. Section 27 of the Indian Medical Council Act, 1956, states :
"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 practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expense, charges in respect of medicaments or other appliances, or any fees to which he may be entitled."
27. Thus, it is only a person who is registered in the Indian Medical Register maintained by the Medical Council of India who can practice modern scientific medicine. It follows that others are debarred.
28. Section 11 of the Indian Medical Council Act, 1956, states that only a medical qualification granted by any University or medical institution in India which is included in the First Schedule shall be a recognised medical qualification. The First Schedule gives in great detail the various medical qualifications granted by certain Universities or medical institutions in India. It follows that other qualifications which are not mentioned in the First Schedule are not recognised by the Indian Medical Council Act and hence such practitioners of unrecognised system of medicine are practicing illegally.
29. Similarly, the Indian Medicine Central Council Act, 1970, deals with the practice of Indian Medicine, ie., the system known as Ayurveda, Siddha or Unani. Section 14 of the said Act states that the medical qualifications granted by any University. Board or other medical institutions in India which is included in the Second Schedule to the Act shall be recognised as the medical qualification for the purposes of the Act.
30. Section 17(2) of the Act states that no person other than the practitioner of India medicine who possess the recognised medical qualification, and is enrolled in the State Register or the Central Register of Indian Medicine can practice Indian medicine in the State or hold office as Vaid, Siddha, Hakim, etc.
31. Section 17(4) provides for punishment of imprisonment up to one year or Rs. 1,000 or both for a person who violate Section 17(2) of the Act.
32. Thus, whether, it is modern medicine or ancient medicine, the practitioners thereof must hold the qualifications prescribed by the Act or Rules made thereunder and be registered under the Act to practice.
33. Similarly, in the Homoeopathy Central Council Act, 1973, only a person who possesses a recognised medical qualification and is enrolled in the State Register or the Central" Register of Homeopathy can practise homeopathy in the State. Under Section 15(4) the same punishment has been provided for violation of Section 15(2).
34. A perusal of the above provisions shows that Parliament has clearly provided thai only those holding a certificate granted by the concerned statutory authority can practice medicine, whether it is modern medicine or ancient medicine. Electro-homeopathy is not recognised by any of the aforesaid Acts. Hence, in our opinion it is nothing but quackery which is not permissible by law. The appeal is therefore, dismissed.
35. The State authorities are directed to restrain the practice or teaching of electro-homoeopathy throughout U. P.
36. Before parting with this case we would like to emphasise that unless we adopt the scientific path and scientific outlook our country will be condemned to remain poor and backward, and we will not get respect in the comity of Nations.
37. When our country was on the scientific path it prospered. With the aid of science, we had built mightly civilizations thousands of years ago when most people in Europe (except in Greece and Rome) were living in forests. We had made outstanding scientific discoveries e.g., decimal system in mathematics, plastic surgery in medicine etc. However, we subsequently look to the unscientific path of superstitions and empty rituals which has led us to disaster. The way out therefore, is to go back again to the scientific path shown by our ancestors. the path of Aryabhatta and Brahmagupta, Sushrut and Charak, Ramanujan and Raman. Only when we insist on high standards of scientific and logical thinking can our country rise in the world. Let a copy of this judgment be sent by the Registrar General of this Court to the Chief Secretary, Medical Secretary, Law Secretary and D.G.P., U. P. forthwith.