Holding

Rule 2(ee)(iii) of the Drugs Rules is within the Central Government's legislative competence and valid, and the state notifications issued under it are lawful, but their effect is limited by Section 15(2)(b) of the 1956 Act, permitting only those also enrolled on a State Medical Register to practice allopathic medicine.

Summary

The Supreme Court examined whether Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945, which defines "registered medical practitioner", exceeded the legislative competence of the Central Government under the Indian Drugs and Cosmetics Act, 1940, and whether state notifications declaring Vaids/Hakims as practitioners of modern medicine were valid. The Court held that Section 33 of the Drugs Act gives the Central Government wide rule‑making power, making the rule intra vires and the notifications lawful. However, the Court noted that the right to practice allopathic medicine is subject to Section 15(2)(b) of the Indian Medical Council Act, 1956, which restricts practice to those enrolled on a State Medical Register. Consequently, only practitioners who are also on such a register may prescribe allopathic drugs, and the benefit of the rule and notifications is limited to states that confer that right by their own laws. The appeals and petitions were dismissed, upholding the validity of the rule and the state notifications within the stated limits.

Issues considered

Whether Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945 is ultra vires the Indian Drugs and Cosmetics Act, 1940 for lack of legislative competence.
Whether the notifications issued by the Punjab and Rajasthan governments under clause (iii) of Rule 2(ee) are valid.
Effect of the Indian Medical Council Act, 1956 and the Indian Medicine Central Council Act, 1970 on the rule and the state notifications.
Whether practitioners of Indian medicine holding integrated‑course qualifications are entitled to prescribe allopathic medicines.

Legislation cited

Constitution of Indias. Article 19(1)(g), s. Article 6
Drugs and Cosmetics Act, 1940s. 12, s. 18, s. 2(e), s. 33, s. 6
Drugs and Cosmetics Rules, 1945s. Rule 2(ee)(iii)
Indian Medical Council Act, 1956s. 15, s. 15(2), s. 15(3), s. 21, s. 27, s. 2(h), s. 2(j), s. 2(k), s. 2(t)
Indian Medicine Central Council Act, 1970s. 17, s. 20, s. 22, s. 25, s. 28, s. 2(e)

Subjects

Rule‑making powerLegislative competenceRegistered medical practitionerAllopathic medicineIndian MedicineSection 15(2)(b) of the Medical Council ActFundamental right to practice professionState notifications

Judgment

DR. MUKHTIAR CHAND AND ORS. ETC. A
v.
THE STATE OF PUNJAB AND ORS.

OCTOBER 8, 1998

[M.M. PUNCHHI, CJ., K.T. THOMAS AND B
SYED SHAH MOHAMMED QUADRI, JJ.]

Indian Drugs and Cosmetics Act, 1940 :

Ss. 33(/) and 2(e), 18, 6 and 12-Rule making power-Scope of-Rule C
2(ee) (iii) defining "Medical Practitioner "-Whether· beyond legislative
competence of rule making authority and invalid-Held, No, Sec. 33 of the
Act confers wide power on Central Government to make rules-Rule 2 (ee)
(iii) was well within the scope ofsaid power-Thus, does not suffer from want
of legislative competence and valid
D
Drugs and Cosmetics Rules, 1945:

Rule 2(ee) (iii)-Defining "Medical Practitioner"-Constitutional
validity of-Held; intra vires the constitution-Constitution of lndia, 1950.

Rule 2(ee) (iii)-Medical practitioner-Notification dated 29./0.1967 E
and Circular dated 26.7.1982 issued by State Governments declaring Vaids/
Hakims registered under State Register as persons practising modern Scientific
system of Medicine-Validity of-Held, intra vires as they were well within
the confines of clause 2(ee) (iii) of the Rule.

Medical Council Act, 1956 : F
Ss. 15(2) (as inserted by Act 24 of 1964)-Indian Medicine Central
Council Act, 1970-Section 17(2) and (3) (b)-Medica/ Practitioner in
lndian System of Medicine-Enrolled on State Register or Central Register
of lndian Medicine-Claim to practice modern system of Medicine-Scope
of-Held, not entitled unless he is registered under the State Medical G
Register-Indian Drugs and Cosmetics Act, 1940.

Sec. 2(4)-Medical practitioner-Registration-"Recognised medical
qualification"-Necessity of-Held, only a prerequisite/or enrolling in Indian
Medical Register but not for registration in State Medical Register.
143
H
144 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A Medical Practitioner-Right to prescribe drugs ofa system ofMedicine--
Held, is synonymous with and not independent of right to practice that
system-Constitution of India, 1950--Article 19(1) (g).

Words & Phrases:

B "Registered Medical Practitioner-Meaning and scope of in the context
of Rule 2(ee) (iii) of Drugs and Cosmetics Rules, 1945.

"Indian Medicine"-Meaning and scope of in the context of Section
2(e) of Indian Medicine Central Council Act, 1970.

In exercise of the power under Rule 2(ee) (iii) of the Drugs and
C Cosmetics Rules, 1945, the State Government issued Notification dated
29.10.1967 and Circular dated 26.7.1982 declaring all the Vaids/Hakims
registered in the State Medical register as persons practising Modern
system of medicine for purposes of the Indian Drugs and Cosmetics Act,
1940. The High Court held the said Notification and Circular to be ultra
D vires the said rule and also contrary to Medical Council Act, 1956. Further,
High Court dismissed the writ petitions filed by Medical practitioners covered
by the above notification for allowing them to prescribe and store allopathic
medicines. Hence the present appeals.

The appellants contended that rule 2(ee) (iii) cannot be said to be
E illegal for want of legislative competence as section 33 of the Drugs Act
confers wide powers on the Central Government to frame rules, the right of
practitioners of Indian medicine to practise modern scientific system of
Medicine was protected under section 17 (3) (b) oflndian Medicine Central
Council Act, 1970, the integrated courses in Ayurvedic Medical education
comprises ofvarious topics under modern medicine and when persons have
F put in considerable years of practice covering such topics also, any infraction
of their right to prescribe medicines falling under the Drugs Act would very
adversely affect the areas where they were mostly serving.

Disposing of the appeals, this Court

G HELD: 1.1. Rule 2(ee) (iii) of Drugs and Cosmetics Rules, 1945 does
not suffer from the vice of want of the legislative competence and is not ultra
vires the Drugs and Cosmetics Act, 1940. (168-F)

1.2. The Drugs Act was enacted with a view to regulate the import,
manufacture, distribution and sale of drugs and Section 33 of the said Act
H confers wide power on the Central Government to make rules. Drugs can be
DR. MUKHTIAR CHAND v. STATE 145
sold or supplied by pharmacist or druggist only on the prescription of a A.
'registered medical practitioner' who can also store them for treatment of
his patients. It has, therefore, became necessary for the rule- making
authority to define the expression 'registered medical practitioner' for the
purposes of the Act and the Rules. Rule 2(ee) (iii) does no more than defining
that expression, which is within the scope of Section 33(1) as well as 33(2) B
(e). Therefore it cannot be said that the rule making authority was lacking
legislative competence to make rule 2(ee). The High Court misdirected itself
by looking to the provisions ofsections 6 and 12 which do not contain the
rule-making power. It is only section 33 which contains the rule-making
power. The High Court has also ~rred in searching for a powel' to frame
rules for the registration of medical practitioners; obviously such a power C
is not conferred under the Act. .The rule veritably does not deal with
registration of the medical practitioner. It only defines the expression
'registered medical practitioners' by specifying the categories of medical
practitioners which fall within the definition for purposes of the Drugs Act
and the Drugs Rules. (157-F-G-H; 158-A)
D
2. The Circular and the Notification issued by the State Governments
declaring the categories of Vaids/Haklms ro3i1tered in the State Medical
Register as persons practising modern system of medicine for the purpose
of Drugs Act 11re valid in law as they are well within the confines of clause
(iii) ofrule 2(ee). Clause (iii) of Rule 2(ee) does not require the qualification E
in modern scientific system of medicine but a declaration by the State
Government that a person is practising modern scientific system and that
he is registered in a medical Register of the State (other than a Register
for registration of Homeopathic practitioner). The notification can be faulted
with only if those requirements are not satisfied. The High Court proceeded
with an assumed intention of the rule-making authority that it could not be F
within its conception to bring Vaids/Hakims, the practitioners of Ayurveda
(Indian System of Medicine), within the purview of the said expression and
that it could have only envisaged registration of medical practitioner of
modern scientific system holding qualifications mentioned in clauses (i) and
eligible for registration under clause (ii) and on that basis held the said G
notification was ultra vires the rules. (158-C-EJ

3. The right to practise any profession or to carry on any occupation
trade or business is no doubt a fundamental right guaranteed under Article
19(1) (g) of the Constitution of India. But that right is subject to any law
relating to the professional or technical qualifications necessary for H
146 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A practising any profession or carrying on any occupation or trade or business
enacted under clause 6 of Article 19. The regulatory measures on the
exercise of this right both with regard to standard of professional
qualifications and professional conduct have been applied keeping in view not
only the right of the medical practitioners but also the right to life and
B proper health care of persons who need medical care and treatment. There
can, therefore, be no compromise on the professional standards of medical
practitioners. Thus for ensuring professional standards required to practise
allopathic medicine the Indian Medical Council Act 1956 was passed.
(159-A-B-C; 158-H)

C 4. There is no scope for a person enrolled on the State Register of
Indian Medicine or Central Register of Indian Medicine to practise modem
scientific medicine in any of its branches unless that person is also enrolled
on a State Medical Register within the meaning of 1956 Act. If any state law
relating to registration of medical practitioners permits practise of alloputhic
D medicine on the basis of degree in integrated medicines, the bnr In section
15(2) (b) of the 1956 Act will not apply. It is thus possible that in any state,
the law relating to registration of practitioners of Modern Scientific Medicine
may enable a person to be enrolled on the basis of the qualifications other
than the "recognised medical qualifications" which is pre-requisite only for
being enrolled on Indian Medical Register but not for registration in State
E Medical Register. Thus by virtue of qualifications as prescribed in a state
Act and on being registered in a State Medical Register, a person will be
entitled to practise allopathic medicine under section 15(2) (b) of the 1956
Act. Similarly the privileges which include the right to practise any system
of medicine conferred by or under any law relating to registration of
F practitioners of Indian medicine for the time being in force In any State on
a practitioner of Indian medicine enrolled on a state register or Indian
medicine, is not affected by the prohibition contained in sub-section(2) or
section 17 of Indian Medical Central Council Act, 1970.
(160-A; 161·A·D; 165-G)

G A.K. Sabhapathy v. State ofKera/a, [1992) Suppl. 3 SCC 147 = [1992)
2 SCR 653, dissented from.

5. The definition of' Indian Medicine' and the clarifications issued by
the Control Council only enables the person possessing qualification in
integrated courses and practising Indian Medicine to make use of the Modern
H advances in various sciences such as Radiology Report, (X-ray), complete
DR. MUKHTIAR CHAND v. STATE 147
blood picture report, lipids report, E.C.G. etc. for the purposes of practising A
in their own system. However, if any State Act recognises the qualification
of integrated course as sufficient qualification for registration in the state
Medical Register of that State, the prohibition of section 15 (2) (b) will not
be attracted. (167-H; 168-A)

6. When Rule 2(ee) of Drugs Act was inserted, section 15of1956 Act B
as it then stood, only provided that the Medical qualification in the Schedule
shall be sufficient q11alification for enrolment on any State Medical Register.
Thus, there was no inconsistency between the Section and Rule when it was
brought into force. But after insertion of sub-section (2) in Section 15 of the
1956 Act, which, inter alia, provides that no person other than a medical C
practitioner enrolled on a 'State Medical Register' shall practise modern
scientific medicine in any State, the right of non-allopathic doctors to
prescribe drugs by virtue of the declaration issued under the said drugs
Rules, by implication, got obliterated. However, this does not debar them from
prescribing or administering allopathic drugs sold across the counter for
common ailments. However, the benefit of the Rules and the notifications D
issued thereunder would be available only in those States where the privilege
of such right to practise any system of medicine is conferred by the State
Law under which practitioners of Indian Medicine are registered in the
state, which is for the time being in force. (147-B-C)

7. The Right to prescribe drugs of a system of medicine would be E
synonymous with the right to practise that system of medicine. In that sense,
the right to prescribe allopathic drugs cannot be wholly divorced from the
claim to practice allopathic medicine. [168-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 89 of
1987 etc. F
From the Judgment and Order dated 29.9.86 of the Punjab & Haryana
High Court in C.W.P. No. 4269of1986.

Kirit N. Raval, Additional Solicitor General, D.D. Thakur, P.C. Jain, Ms.
Indira Jaising, G.L. Sanghi, S.S. Khanduja, N.N. Bhatt, Y.P. Dhingra, Prem G
Malhotra, B.S. Chauhan, D.N. Misra, Krishan Datta, Umesh Kumar Bhore,
Pradeep Aggarwal, Sushi! Kr. Jain, K.T. Tulsi, (Jasbir Malik) for Chander
Shekhar Ashri, Prashant Kumar, Joseph Pocckkett, Dhruv Mehta, (Mrs. Anil
Katiyar,) for P. Parmeshwaran, H.M. Singh, R.S. Sodhi, (M.K. Dua) (NP), Ms.
Kamini Jaiswal, (NP), Ranjit Kumar, Ms. Anu Mohla, L. Nageshwar Rao, Braj
K. Misra, Ejaz Maqbool, Sabir Ranjan, R.N. Karanjwala, Ms. Nandini Gore, H
148 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A Ms. Anitha Shenoy, for Ms. Manilc Karanjwala, M.K. Garg, (NP), H.K. Puri,
Uijwal Banerjee, Rajesh Srivastava, Devender Singh, Ms. Diva Singh, Surya
Kant, Manu Mridul, Maninder Singh, K.S. Bhati, M.K. Singh for the appearing
parties. (
\.

The Judgment of the Court was delivered by
B
QUADRI, J. These cases raise questions of general importance and
practical significance - questions relating not only to the right to practise
medical profession but also to the right to life which includes health and well-
-
being of a person. The controversy in these cases was triggered off by the
C issuance of declarations by the State Governments under clause (iii) of Rule
2(ee) of the Drugs and Cosmetics Rules, 1945 (for short 'the Drugs Rules')
which defines "Registered Medical Practitioner''. Under such declarations,
notified Vaids/Hakims claim right to prescribe Allopathic drugs covered by
the Indian Drugs and Cosmetics Act, 1940 (for short 'the Drugs Act').
Furthermore, Vaids/Hakims who have obtained degrees in integrated courses
D claim right to practise allopathic system of medicine.

In exercise of the power under clause (iii) of Rule 2(ee) the State of
Punjab issued Notification No. 9874-THBTI-67/34526 dated 29th October,
1967 declaring all the Vaids/Hakims who had been registered under the East
E Punjab Ayurvedic and Unani Practitioners Act, 1949 and the Pepsu Ayurvedic
and Unani Practitioners Act, 2008 BK and the Punjab Ayurvedic and Unani
Practitioners Act, 1963 as persons practising modem System of Medicine for
purposes of the Drugs Act. One Dr. Sarwan Singh Dardi who was a medical
practitioner, registered with the Board of Ayurvedic and Unani System of
Medicines, Punjab, and who was practising modem system of medicines was
F served with an order of the District Durgs Inspector, Hoshiarpur, prohibiting
him from keeping in his possession any allopathic drug for administration to
patients and further issuing general direction to the chemists not to issue
allopathic drugs to any patient on the prescription of the said doctor. That
action of the Inspector was questioned by Dr. Dardi in the Punjab & Haryana
G High Court in C.W.P. No. 2204 of 1986. He claimed that he was covered by
the said notification and was entitled to prescribe allopathic medicine to his
patients and store such drugs for their treatment (hereinafter referred to as
Dardi's case). A Division Bench of the Punjab & Haryana High Court, by
judgment dated September 17, 1986, held that the said notification was ultra
vires the provisions of sub-clause (iii) of clause (ee) of rule 2 of the Drugs
H Rules and also contrary to the provisions oflndian Medical Council Act, 1956
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 149

and accordingly dismissed his writ petition. A
Writ petitions filed in the High Court of Punjab and Haryana for a
mandamus restraining the authorities concerned from interfering with their
right to prescribe medicines fall~g under the Drugs Act on the strength of

-
such notifications were also dismissed by the High Court and the aggrieved
persons have filed appeals before us by special leave. B
Writ petitions are filed in this Court by various petsons claiming that
they are registered medical practitioners within the meaning of the said
notification and are entitled to practise 'modern scientific system of medicine.
It may be noticed here that the petitioners in W.P.No. I 082/88 and 359/91 were C
registered by Ayurvedic and Unani Medical Council in the State ofBihar. The
petitioner in W.P.No.423/97 holds degree of B.A.M.S. from the Maharishi
Dayanand University, Rohtak. He asserts that on the basis of said degree he
is entitled to practise 'modem scientific system of medicine'.

On the same subject cases came up before Rajasthan High Court. The D
Jodhpur Branch of Indian Medical Association filed Civil Writ Petition No.
1777/82 in. the High Court. of Rajasthan seeking a declaration that rule 2(ee)(iii)
of the Drugs Rules and the Circular No.26(24)M.E.(Group-T}82 issued by the
Government of Rajasthan on July 26, 1982, were void and ultra vires the
provisions of the Drugs Act and the Indian Medical Council Act, 1956. By
judgment dated September 29, 1994 a Division Bench of the Rajasthan High E
Court held that the said rule was without any legislative competence and
consequentially the notification was illegal and void. The correctness of the
said judgment has been assailed by the Private Medical Practitioners
Association of India (which represents the beneficiaries of a similar circular
issued by the Government of Rajasthan) in S.L.P.No. 8422 of 1995. On the F
Strength of the aforesaid judgment of the Division Bench, another writ petition
filed by Mis. Chandasi Private Medical Practitioners Sansthan, a registered
society, was also dismissed. That judgment is also challenged by filling a
special leave Petition.

We heard all the said civil appeals, special leave petitions and writ G
petitions together as the question involved in all the cases is common.

Mr. D.D. Thakur, learned senior counsel appearing for the appellants-
petitioners in the appeals and special leave petitions, has argued that the
grounds on which the Punjab & Haryana High Court dismissed Dr.Dardi's writ
petition are not applicable to the appellants-petitioners and without noticing H
150 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A . the difference the Division Bench denied relief to them so the judgments
under appeal are unsustainable in law. The rule in question, submits the
learned senior counsel, was framed under the Drugs Act having regard to the
factual position that the qualified allopathic doctors are not available in the
rural areas and that persons like the appellants-petitioners have been catering
to the medical needs of the residents of such areas, as such the rule is in
B public interest. The rule, it is argued, cannot be said to be illegal for want of
legislative competence as Section 33 of the Drugs ~t confers very wide
powers on the Central Government to frame rules. As the class of medical
practitioners postulated by clause (iii) of the rule can properly be identified
by the State Governments they are empowered to declare, by general or
C specific order, such class and the notifications issued by various State
Governments are well within the ambit of the rule. In any event urged the
learned counsel, the High Court ought not to have dismissed the writ petition
in limine and that it ought to have gone into the merits of the case of the
petitioners on the basis of the qualifications possessed by them and allowed
D . them to prescribe allopathic medicines as registered medical practitioner.
Mr. K.T.S. Tulsi, learned senior counsel, supported the notification
issued by the State Government and submitted that had the State Government
so desired it would have withdrawn the notification but the very fact that it
had not done so, would show that the registered medical practitioners have
E been rendering yeoman service to the citizens, hence, the notification must
be given full effect.

Ms. Indra Jaising, learned senior counsel, adopted the arguments of Mr.
Thakur in general, but focussed on the plea that since integrated courses in
Ayurvedic medical education comprises of various topics under modem
p .medicine and when such persons have put in considerable years of practice
,covering such topics also, any infraction of their right to prescribe medicines
which may fall under the Drugs Act would very adversely affect the areas
where they are ll)OStiy serving now.

Mr. P.C. Jain, learned senior counsel appearing for the petitioners in
G Writ Petition No. 423of1997 while supporting the contention of Mr. Thakur,
highlighted that the right of practitioners of Indian Medicine to practise
modem scientific system of Medicine (Allopathic Medicine) is protected
under Section 17(3Xb) of Indian Medicine Central Council Act, 1970.

Mr. Kirit N. Raval, learned Additional Solicitor General appearing for the
H Central Government, has submitted that the Central Government is maintaining
DR. MUKHTIAR CHAND v. STATE (QUADRI, J.] 151
equal distance from both the contenders, namely, the doctors of modem A
scientific medicine (allopathic) and the qualified Vaids/Hakims of Indian
medicine; though the Central Government had taken the plea in the High
Courts that practice in allopathic medicine should not be allowed by non-
allopathic doctors and in that he would support the view taken by the High
Courts ofRajasthan and Punjab & Haryana regarding validity of rule 2(ee)(iii) B
and the notifications issued thereunder, he would however, add that as a
matter of fact many Ayurvedic Vaids and Unani Hakims are prescribing
allopathic drugs and that the Central Government will abide by the decision
of this Court. Here we are constrained to observe that the stand taken by the
Central Government shows utter bewilderment inasmuch as the authority
which framed rule is not interested in supporting the legality and the validity C
of the rule nor does it want to do away with the Rule whole heartedly.

Mr. K.S. Bhati, learned counsel appearing for the State of Rajasthan, in
his arguments strongly supported the judgment of the Rajasthan High Court
under appeal.
D
Mr. H.M. Singh appearing for the State of Punjab also supports the
judgment of Punjab and Haryana High Court and went further and submitted
that the rule itself was invalid - a strange plea by the State Government
indeed.

Mr. Devender Singh appearing for Respondent No. I in Special Leave E
Petition (c) No. 8422 of 1995 also maintained the arguments of Mr. Bhati.

Mr. Ranjit Kumar who appeared for allopathic doctors, vehemently
contended that a non-allopathic doctor could not be permitted to prescribe
allopathic medicines; he supported the grounds on which the Rajasthan High F
Court had struck down the rule and also the interpretation placed by the
Punjab & Haryana High Court on the said rule. His alternative submission is
that even ifVaids/Hakims are held to be within the ambit of clause (iii) after
the enactment of Section 15(2)(b) of the Medical Council Act and the Indian
Medicine Central Council Act, 1970 that clause ceased to be operative.
G
On the submissions made by the learned counsel for the parties, the
questions which fall for determination are :-
'·
l. Whether Rule 2(ee)(iii) of the Drugs Rule is bad for want of
legislative competence; and are the impugned notifications issued
by the State Governments, under clause (iii) of the said rule, H
152 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A declaring the categories of persons who were practising modern
system of medicine invalid in law?

2 What is the impact of Indian Medical Council Act, 1956 and
Indian Medical Central Council Act, 1970 on rule 2(ee)(iii) of the
Drugs Rules and the notifications issued thereunder? and
B 3. Whether the persons who have qualified the integrated courses
in Ayurveda and Unani from various universities are entitled to
practise in and prescribe allopathic medicines.

Before adverting to these questions, it would be useful to notice
C various systems of medicine in vogue in India and the statutes regulating
them.

The systems of medicines generally prevalent in India are Ayurveda,
Sidha, Unani Allopathic and Homeopathic. Jn Ayurveda, Sidha and Unani
systems the treatment is based on the harmony of the four humors, whereas •
D in 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
Homeopathy, treatment is provided by the likes.

Of the medical systems that in vogue in India, Ayurveda had its origin
in 5000 B.C. and is being practised throughout India b.ut Sidha is practised
I
E 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 B.C. but
that had come to be practised in India in the 10th Century A.O. (Park's
Textbook of Preventive and Social Medicine, 15th Edn. pp.I & 2). Allopathic
medicine is comparatively recent and had its origin in the 19th century.

F Noticing that for practising allopathic system of medicines the degrees
and diplomas were being issued by private institutions to untrained or
insufficiently trained persons and some of them were colourable imitations of
those issued by recognized Universities and corporations which was resulting
in unqualified persons posing to the public as possessing qualifications in
G medicine and surgery which they did not possess. The Indian Medical Degrees
Act, 1916 (for short '1916 Act') was enacted to ban conferring of degrees or
issuing of certificates, licences etc. to practise western medical science, by
persons or authorities other than those specified in the Schedule and notified
by State Governments. The western medical science was defined to mean the
western methods of allopathic medicine obstetrics and surgery; the
H Homoeopathic, Ayurvedic and Unani system of medicine were excluded from
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 153
its purview. The next Central legislation on the subject is Indian Medical A
Council Act, 1933 (for short '1933 Act'). This 1933 enactment was introduced
to constitute a Medical Council in India in order to establish a unifonn
minimum standard of higher qualifications in medicine for all the erstwhile
provinces. Section 2(d) of that Act defines the word "medicine" to mean
"modem scientific medicine" which connotes allopathic medicine including B
surgery and obstetrics, but excluding veterinary medicine and surgery. Although
Homeopathic, Ayurvedic or Unani system was not expressly excluded from
the definition, yet a perusal of the Schedule makes it abundantly clear that
those system of medicines were not within the scope of that Act.

It may be noted that since 'Legal, medical and other professions' is Item C
26 of List III [Concurrent List] of Seventh Schedule to our Constitution, both
the State Legislatures and the Parliament have enacted on the subject of
medical profession. Now all these systems of medicines are governed by
Central Acts. The Indian Medical Council Act, 1956 (which has repealed 1933
Act) regulates modem system of medicine; the Indian Medicine Central Council
Act, 1970 regulates Indian medicine and The Homeopathic Central Council D
Act, 1973 regulates practice of Homeopathic medicine. Here we are not
concerned with Homeopaths in regard to practice of allopathic medicine by
a homeopath, this Court concluded thus, in Poonam Verma v. Ashwin Patel,
[1996] 4 sec 332:

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

The erstwhile provinces were and thereafter the present States are also
having their own legislation with regard to medical practitioners in different F
systems (Indian medicine as well as allopathic) and are maintaining registers
of medical practitioners in those systems. They are too many to enlist them
here lest this judgment will be needlessly burdened. However, we shall presently
refer to the relevant Acts of the States to which the appeals relate.

The Drugs Act enacted with a view to regulate the import, manufacture, G
distribution and sale of drugs to curb the evil of adulteration of drugs and
production of spurious and sub-standard drugs which were posing serious
threat to th~ health of the community. The am~nde'd definition of 'Drug' in
clause (b) of Section (3) iII the Drugs Act it inclusive and comprehensive but
it does not include 'Ayurvedic, Siddha or Utlani' drug. Indeed, at the time of
its enactment in 1940, it was not intended to apply to such drugs. It is only H
154 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A by Act 13 of 1964 that those drugs are also brought within the purview of
the Drugs Act by including their definition in clause (a) of Section 3 and
Chapter IVA in the Act.

Section 33 which falls in Chapter IV of the Drugs Act, empowers the
Central Government to make rules for the purpose of giving effect to the
B provisions the of Chapter IV which deals with manufacture, sale and distribution
of drugs and cosmetics. Sub-section (2) of Section 33 enumerates many
subjects in clauses (a) to (g) in respect of which rules may be made. Section
33-A says that Chapter IV shall not except as provided in the Act, apply to
Ayurvedic, Shidda or Unani drugs. On December 21, 1945, in exercise of the
C powers conferred under Section 33, the Central Government framed the Drugs
Rules. Rule 2 contains the definition of the tenns and expressions used in the
Rules. Rule 2(ee), which was inserted by SO 1196 dated April 9, 1960 with
effect from May 14, 1960, defines the expression "registered medical
practitioner".

D For purposes of the Phannacy Act, 1948, the expression medical
practitioner is defined by substituting Section 2(t) therein with effect from
1.5.1960. Section 2(t) of Pharmacy Act and Rule 2(ee) of the Drug Rules are
identical.

Clauses (i) to (iii) of Rule 2(ee) are relevant for our purpose and they
E read as under:
"2(ee) Registered medical practitioner means a person-

(i) holding a qualification granted by an authority specified or notified
under Section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916),
F or specified in the Schedules to the Indian Medical Council Act, 1956
(102of1956); or
(ii) registered or eligible for registration in a medical register of a State
meant for the registration of persons practising the modern scientific
system of medicine (excluding the Homeopathic system of medicine);
G or
(fu) registered in a medical register (other than a register for the
registration of Homeopathic practitioners) of a State, who although
not falling within sub-clause (i) or sub-clause (ii) is declared by a
general or special order made by the state Government in this behalf
H as a person practising the modern scientific system of medicine for
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 155
the purposes of this Act. A
(iv) and (v) ... ••• ••• •••"

[They are omitted as they are not material for this batch of cases.]

A plain reading of clauses, extracted above shows that the ambit of
clause (iii) must necessarily exclude those who would fall under the first two B
clauses. There is no controversy that categories (i) and (ii) relate to practitioners
of allopathic medicines. Hence, the third category falling under clause (iii) on
which vaids/Hakims (non-Allopathic doctors) base their claim may be analysed
here. (a) It takes in persons who are registered in a medical register of a State
(it may be noticed here that such a register should not be meant for registration C
of Homeopathic practitioners but it need not be a register meant for registration
of persons practising modern system of medicine); (b) such persons do not
fall within category (i) or category (ii) of clause ( ee ), as noted above (c) they
must be declared as persons practising modem system of medicine by general
or special order made by the State Government in that behalf; and (d) such D
a declaration would operate only for purposes of the Drugs Act and the Rules
made thereunder.

The learned counsel argued at length on the question whether clause
(iii) is also intended for left out qualified allopathic doctors. But if that
interpretation is accepted the said clause will become redundant as admittedly E
clauses (i) and (ii) exhaust all categories of practitioners entitled to practice
in allopathic medicine. It was conceded at the end of the day and, in our view
rightly, that the clause takes in medical practitioners other than qualified
practitioners entitled to practise allopathic medicine. And as practitioners of
Homeopathic medicine are specifically excluded, it becomes evident that this
category comprises of practitioners who are enrolled in a medical register of F
a State and though not answering the description of clauses (i) and (ii) are
de facto practising modern system of medicine (allopathic) and those facts are
declared by the State Government concerned. By this sub-rlause, a de facto
practitioner of modern scientific medicine (allopathic) is recognized as a
registered medical practitioner and is enabled to prescribe drugs covered by G
the Drugs Act.

This being the content of clause (iii) of Rule 2(ee), we shall now tum
to the question of validity of the said clause and the circular/notifications
issued thereunder by the State Governments. Letter No.26(24) M.E. (Group-
! )82 dated July 27, 1982 was issued by the Rajasthan Government, H
156 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A communicating the approval of recommendations subject to the conditions
specified therein for purposes of issuing the notification under clause (iii)
(herein referred to as 'circular') and the notification No. 9874-IIBil-67/34526
dated October 29, 1967 was issued by the Punjab Government in exercise of
powers conferred under the said clause.

B The learned counsel appearing for allopathic doctors and their
association supported the view of the Rajasthan High Court that the rule is
bad for want of legislative competence. We are afraid we cannot accede to
this contention. Section 33 of the Drugs Act confers wide power on the
Central Government to make rules. Section 33, in so far as it is relevant, is
C reproduced hereunder :
"33 Power of Central Government to make rules.

I. The Central Government may after consultation with or on the
recommendation of the Board and after previous publication by
notification in the Official Gazette, make rules for the purpose of
D
giving effect to the provisions of this Chapter:

Provided that consultation with the Board may be dispensed with if
the Central Government is of opinion that circumstances have arisen
which render it necessary to make rules without such consultation,
E but in such a case the Board shall be consulted within six months of
the making of the rules and the Central Government shall take into
consideration any suggestions which the Board may make in relation
to the amendment of the said rules.

2 Without prejudice to the generality of the foregoing power, such
F rule may

(a) to (d) ••• ••• •••
(e) prescribe the forms of licences for the manufacture for the sale or
for distribution, for the sale and for the distribution of drugs or any
specified drug or class of drugs or of cosmetics or any specified
G
cosmetic or class of cosmetics, the form of application for such licences,
the conditions subject to which such licences may be issued, the
qualifications of such authority and the fees payable therefore and
provide for the cancellation or suspension of such licences in any
case where any provision of this Chapter or the rules made thereunder ·
H is contravened or any of the thereunder is contravened or any of the
DR. MUKHTIAR CHAND v. STATE [QUADRJ, J.] 157
conditions subject to which they are issued is not complied with; A
(f) to (p) *** ••• •••
(q) provide for the exemption, conditionally or otherwise, from all or
any of the provisions of this Chapter or the rules made thereunder,
of any specified drug or class of drugs or cosmetic or class of B
cosmetics."

Sub-section (1) of Section 33 of the Drugs Act empowers the Central
Government to make rules for purposes of giving effect to the provisions of
Chapter IV which deal with manufacture, sale and distribution of drugs and
cosmetics. This is a general power of great amplitude. Without prejudice to C
the generality of the power in sub-section (1) specific topics are itemized in
sub-section (2), in clauses (a) to (q), in respect of which rules may be made
by the Central Government. Among them sub-clause (e) relates to the power
to prescribe the forms of licences for the manufacture for sale, or for distribution
for the sale and for the distribution of drugs, or any specified drugs or classes D
of drugs or of cosmetics or of any specified cosmetics or any class of
cosmetics, the form of application for such licences, the condition subject to
which such licences may be issued, the authority empowered to issue the
same, the qualification for such authority, etc. Section 18 which falls in
Chapter IV, specifically deals with prohibition for manufacture and sale of
certain drugs and cosmetics. Rule 65 provides conditions of licence to sell, E
stock or exhibit or offer for sale or distribute for wholesale, retail etc. Various
sub-rules of the said rule contain as a condition of licence that the supply
of drugs should be on the prescription of a 'registered medical practitioner'
(See Conditions Nos. 2, 3(1), 5(1), 9 and 9(a)].

From the above discussion what emerges is that drugs can be sold or F
supplied by pharmacist or druggist only on the prescription of a 'registered
medical practitioner' who can also store them for treatment of his patients. It
has, therefore, became necessary for the rule-making authority to define the
expression 'registered medical practitioner' for the purposes of the Act and
the Rules. Rule 2(ee) does no more than defining that expression, which is G
within the scope of Section 33(1) as well as 33(2)(e). Therefore it cannot be
said that the rule making authority was lacking legislative competence to make
rule 2(ee). The High Court misdirected itself by looking to the provisions of
Sections 6 and 12 which do not contain the rule-making power. It is only
Section 33 which contains the rule-making power. The High Court has also
erred in searching for a power to frame rules for the registration of medical H
158 SUPREME COURT Hi PORTS [1998] SUPP. 2 S.C.R.

' A practitioners; obviously such a power is nQt conferred under the Act. The
rule veritably does not deal with registration of the medical practitioner. It .
only defines the expression 'registered medical practitioners' by specifying
the categories of medical practitioners which fall within the definition for
purposes of the Drugs Act and the Drugs Rules. For the aforementioned
reasons, we are unable to sustain the view taken by the High Court of
B Rajasthan that the impugned Rule 2(ee)(iii) suffers from the vice of lack of
legislative competence and is ultra vires the Drugs Act.

Now coming to the notifications issued by the Punjab Government on
October 29, 1967 and the Circular issued by the Rajasthan Government on
C July 26, 1982, referred to above, it has already been pointed out that for
purposes of clause (iii) of Rule 2(ee) what is required is not the qualification
in modern scientific system of medicine but a declaration by a State Government
that a person is practising modern scientific system and that he is registered
in a medical register of the State (other than a register for registration of
Homeopathic practitioner). A notificat~on can be faulted with only if those
D requirements are not satisfied. The Punjab and Haryana High Court proceeded
with an assumed intention of the rule-making authority that it could not be
within its conception to bring Vaids/Hakims, the practitioners of Ayurveda
(Indian System of Medicine), within the purview of the said expression and
that it could have only envisaged registration of medical practitioner of
E modem scientific system holding qualifications mentioned in clauses (i) and
eligible for registration under clause (ii) and on that basis held the said
notification was ultra vires the rules.

From what has been discussed above, we are unable to uphold the view
of the Punjab and Haryana High Court.
F We have perused the above said notifications issued by the State
Governments and we find that they are well within the confines of clause (iii)
of rule 2(ee). Therefore, we conclude that the said circular and the notification
issued by the said State Governments declaring the categories of Vaids/
Hakims who were practising modern system of medicine and were registered
G in the State Medical Registers, are valid in law.
Points 2 and 3 have some over lapping so it will be convenient to
discuss them together. The right to practise any profession or to carry on any
occupation trade or business in no doubt a fundamental right guaranteed
under Article 19( I)(g) of the Constitution of India. But that right is subject
H to any Jaw relating to the professional or technical qualifications necessary
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 159
for practsing any profession or carrying on any occupation or trade or A
business enacted under clause 6 of Article 19. The regulatory measures on
the exercise of this right both with regard to standard of professional
qualifications and professional conduct have been applied keeping in view
not only the right of the medical practitioners but also the right to life and
proper health care of persons who need medical care and treatment. There B
can, therefore, be no compromise on the professional standards of medical
practitioners. With regard to ensuring professional standards required to
practise allopathic medicine the 1956 Act. was passed which deals also with
reconstitution of the Medical Council of India and maintenance of an Indian
Medical Register. Thus, for the first time an Indian Medical Register for the
whole oflndia came to be maintained from 1956. In the 1956 Act. Section 2(t) C
defines "medicine" to mean 'modern scientific medicine' in all its branches
and includes surgery and obstetrics, but does not include veterinary medicine
and surgery and the expression recognised medical qualification is defined in
Section 2(h) to mean any of the medical qualifications included in the Schedul~
to the Act.
D
Three more expressions in the 1956 Act have to be noticed here. But
before we do so, it must be noted here that the object and reasons of the 1956
Act took note of the fact that there are local Acts in the States providing for
State Medical Council and maintenance of State Medical Registers for
registration of qualified practitioners in western medical science or modern E
scientific medicine, that is allopathic medicine. Now, reverting to the expressions
in 1956 Act, they are : "State Medical Council'' defined in Section 2(j) as a
medical council constituted under any law for the time being in force in any
State regulating the registration of practitioners of medicine; "State Medical
Register'' defined in Section 2(k) to mean a register maintained under any law F
for the time being in force in any State regulating the registration of practitioners
of medicine and 'Indian Medical Register' to mean the medical register
maintained by the Council. The 1956 Act ptovides for the recognition of
medical qualifications granted by Universities or medical institutions in and
outside India which are specified in the Schedules. Section 15 which is
relevant, was in the following terms when the said Act was passed in 1956: G

"15. Subject to the other provisions contained in this Act, the medical
qualifications included in the schedules shall be sufficient qualification
for enrolment on any State Medical Register."

It laid down that the qualifications included in the Schedules should be H·
160 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A sufficient qualification for enrolment on any State Medical Register. It may be
pointed out here that in none of the Schedules the qualifications of integrated
courses figure consequently by virtue of this section persons holding degrees
in integrated courses cannot be registered on any State Medical Register.

By Act 24 of 1964, Section 15 of the 1956 Act was modified by keeping
B the existing section as sub-section (1) and by adding two more, sub-sections
(2) and (3), which read thus :

"(2) Save as provide in Section 25, no person other than a medical
practitioner enrolled on a State Medical Register -

C (a) shall hold office as physician or surgeon or any other office (by
whatever designation called) in Government or in any institution
maintained by a local or other authority.

(b) shall practise medicine in any State

D (c) shall be entitled to sign or authenticate a medical or fitness
certificate or any other certificate required by any law to be signed or
authenticated by a duly qualified medical practitioner.

(d) shall be entitled to give evidence at any inquest or in any Court
of Law as an expert under Section 45 of the Evidence Act, 1872 or on
E any matter relating to medicine.

(3) Any person who acts in contravention of any provision of sub-
section (2) shall be punished with imprisonment for a term which may
extend to one year, or with fine which may extend to one thousand
rupees, or with both."
F
For the present discussion, the germane provision is Section 15(2)(b)of
the 1956 Act which prohibits all persons from practising modern scientific
medicine in all its branches in any State except a medical practitioner enrolled
on a State Medical Register. There are two types of registration as for the
G State Medical Register is concerned. The first is under Section 25, provisional
registration for the purposes of training in the approved institution and the
second is registration under Section 15( 1). The third category of registration
is in the Indian Medical Register' which the Council is enjoined to maintain
under Section 21 for which recognised medical qualification is a prerequisite.
The privileges of persons who are enrolled on the Indian Medical- Register
.H are mentioned in Section 27 and include right to practise as medical practitioner
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.) 161
in any part of India. 'State Medical Register' in contra-distinction to 'Indian A
Medical Register', is maintained by the State Medical Council which is not
constituted under 1956 Act but is constituted under any law for the time
being in force in any State; so also a State Medical Register is maintained not
under 1956 Act but under any law for the time being in force in any State
regulating the registration of practitioners of medicine. It is thus possible that
in any State, the law relating to registration of practitioners of modern scientific B
medicine may enable a person to be enrolled on the basis of the qualifications
other than the 'recognised medical qualification' which is a pre-requisite only
for being enrolled on Indian Medical Register but not for registration in a
State Medical Register. Even under the 1956 Act, 'recognised medical
qualification' is sufficient for that purpose. That does not mean that it is C
indispensably essential. Persons holding 'recognised medical qualification'
cannot be denied registration in any State Medical Register. But the same
cannot be insisted upon for registration on a State Medical Register. However,
a person registered in a State Medical Register cartfiot be enrolled on Indian
Medical Register unless he possesses 'recognised medical qualification'. This
follows from a combined reading of Sections 15(1), 21(1) and 23. So by virtue D
of such qualifications as prescribed in a State Act and on being registered
in a State Medical Register, a person will be entitled to practise allopathic
medicine under Section I 5(2)(b) of the 1956 Act.

In the above view of the matter, we are unable to agree with the E
., following observations of this Court in A.K. Sabhapathy v. State of Kera/a,
[1992] Suppl. 3 sec 147:

"These provisions contemplate that a person can practise in allopathic
system of medicine in a State or in the country only if he possesses
a recognised medical qualification. Permitting a person who does not p
possess the recognised medical qualification in the allopathic system
of medicine would be in direct conflict with the provisions of the
Central Act."
We have perused the Bombay Medical Act, 1912, Bihar and Orissa
Medical Act, 1916, Punjab Medical Registration Act 1916, Rajasthan G
Medical Act 1952 and Maharashtra Medical Council Act, 1965 which
regulate maintenance of registers of medical practitioners and the
entitlement to practice allopathic medicine. Under those Acts State
Medical Registers are maintained. Section 7(3) of the Bombay Act of
1912, enabled the Provincial Government, after consulting the State
medical council, to permit the registration of any person who was H
162 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A actually practising medicine in Bombay Presidency before 25th June,
1912, this seems to be the only case of registration without requisite
qualification. Further persons possessing Ayurvidya Visharad of the
Tilak Maharashtra Vidyapeeth of Poona, obtained during the years
1921-1935 (which was included in the Schedule to that Act on 31st.
September, 1939 pursuant to Notification No. 3020/33 dated 12.9.1939)
B
were entitled to be registered in the State Medical Register; this is the
only Ayurvedic qualification on the basis of which persons were
eligible to be registered on the State Medical Register in Maharashtra;
further with regard to rural areas, the prohibition to practice allopathic
medicine under that Act did not apply provided a person had
c commenced practice in any village in the rural area prior to 1912.
None of the petitioners has claimed benefit of these exceptions. We
could not find any other provision which enables a person, other than
those possessing qualification prescribed in the Schedules to the
Acts, to be registered on the State Medical Register to practise
allopathic medicine. So it can be observed that if any State law
D
relating to registration of Medical practitioners permits practise of
allopathic medicine on the basis of degree in integrated medicines, the
bar in Section 15(2)(b) of the 1956 Act will not apply.

Rule 2( ee), as noted above, has been inserted in the Drugs Rules with
E effect from May 14, 1960. Section 15 of the I 956 Act, as it then stood, only
provided that the medical qualifications in the Schedule shall be sufficient
qualification for enrolment on any State medical register and so there was no
inconsistency between the section and the Rule when it was brought into
force. But after Sub-section (2) of Section 15 was inserted in the 1956 Act,
with effect from 15.09.1964, which inter alia, provides that no person other
F than a medical practitioner enrolled on a 'State Medical Register' shall practise
modem scientific medicine in any State, the right of non-allopathic doctors
to prescribe drugs by virtue of the declaration issued under the said drugs
Rules, by implication, got obliterated. However, this does not debar them from
prescribing or administering allopathic drugs sold across the counter for
G common ailments.

Here it may be necessary to refer to the development of law with regard
to Indian medicine. In pre-constitutional era each province of India was
having its own enactment regulating the registration and practice in Indian
medicines like - Uttar Pradesh Indian Medicine Act, 1939. The Punjab
H Ayurvedic and Unani Practitioners Act, 1949 etc. After coming into force of
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 163
the Constitution, many State legislations were enacted to regulate the practise A
of Indian medicine, Ayurvedic and Unani like Punjab Ayurvedic and Unani
Practitioners Act, 1963 etc. However, on the model of 1956 Act, the Parliament
- enacted The Indian Medicine Central Council Act, 1970 (for short '1970 Act').
The schemes and provisions of 1970 Act and 1956 Act are analogous. 'Indian
Medicine' is defined in Section 2(e) of the Act to mean the system of Indian B
medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb
whether supplemented or not by such modem advances as the Central Council
may declare by notification from time to time. In Section 20) the expression
"State Register of Indian Medicine" is defined to mean a register or registers
maintained under any law for the time being in force in any State regulating
the registration of practitioners of Indian medicine. The Act contemplates C
having separate Committees for Ayurvedic, Siddha and Unani medicines.
Section 17 enables, inter alia, the persons who possess medical qualifications
mentioned in the Second, Third or Fourth Schedule to be enrolled on any
state Register of Indian Medicine. A perusal of the Second, Third and Fourth
Schedules shows that they contain both integrated medicine as well as other D
qualifications. So a holder of degree in integrated medicine is entitled to be
enrolled under Section 17 of 1970 Act. Section 22 authorises the Central
Council to prescribe the minimum standards of education in Indian medicine
required for granting recognized medical qualifications by Universities, Boards
or medical institutions in India. The Central Council is enjoined to maintain
Central Register of Indian medicine containing the particulars mentioned E
therein and Section 25 lays down procedure for registration in the Central
Register of Indian medicine. The counterpart of Section 15 of 1956 Act is
Section 17 of 1970 Act. We shall quote it here :

"17.(1) Subject to the other provisions contained in this Act, any F
medical qualification included in the Second, Third or Fourth Schedule
shall be sufficient qualification for enrolment on any State Register of
Indian Medicine.

(2) Save as provided in Section 28, no person other than a practitioner
of Indian Medicine who possesses a recognised medical qualification G
and is enrolled on a State Register or the Central Register of Indian
Medicine-

(a) shall hold office as Vaid, Siddha, Hakim or Physician or any
other office (by whatever designation called) in Govt. or in any
institution maintained by a local or other authority; H
164 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A (b) shall practise Indian medicine in any State;

(c) shall be entitled to sign or authenticl!te a medical or fitness
certificate or any other certificate required by any law to be signed
or authenticated by a duly qualified medical practitioner;

(d) shall be entitled to give evidence at any inquest or in any
B
court of law as an expert under Section 45 of the Indian Evidence
Act, 1872, on any matter relating to Indian medicine.

(3) Nothing contained in sub-section (2) shall affect-

(a) the right of a practitioner of Indian medicine enrolled on a
c State Register of Indian Medicine to practice Indian medicine in
any State merely on the ground that, on the commencement of
this Act, he does not possess a recognised medical qualification;

(b) the privileges (including the right to practice any system of
medicine) conferred by or under any law relating to registration
D
of practitioners of Indian medicine for the time being in force in
any State on a practitioner of Indian medicine enrolled on a State
Register of Indian Medicine;

(c) the right of a person to practise Indian medicine ·in a State in
E which, on the commencement of this Act, a State register of
Indian Medicine is not maintained if, on such commencement, he
has been practising Indian Medicine for not less than five years;

(d) the rights conferred by or under the Indian Medical Council
act, 1956 (including the right to practise medicine as defined in
F clause (f) of Section 2 of the said Act, on persons possessing any
qualifications included in the Schedules to the said Act.

4. Any person who acts in contravention of any provision of sub-
section (2) shall be punished with imprisonment for a term which may
extend to one year, or with fine which may extend to one thousand
G rupees, or with both."

A perusal of the provisions extracted above, shows that sub-section (I)
prescribes qualifications considered sufficient for enrolment on any State
Register of Indian Medicine. Sub-section (2) ordains that all persons except
those who possess a recognised medical qualification and are enrolled on a
H State Register or the Central Register of Indian medicine, are prohibited from
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 165

doing any of the acts mentioned in Clause (a) to (d) of that sub-section. Sub- A

-
section (3), however, carves out an exception to the prohibition contained in
sub-section (2). Clause (a) thereof saves the right to practise of any medical
practitioner of Indian Medicine who was not having recognised medical
qualification on the date of the commencement of 1970 Act but who was
enrolled on a State Register to practise that system of medicine; clause (b) B
protects the privileges which include the right to practise any system of
medicine which was conferred by or under any law relating to registration
of practitioners of Indian medicine for the time being in force in any State
on a practitioner of Indian medicine who was enrolled on a State Register of
Indian medicine; Clause (c) saves the right of a person to practise Indian
medicine in a State in which no State Register of Indian medicine was maintained C
at the commencement of that Act provided he has been practising in the
Indian Medicine for not less than five years before .the commencement of the
Act and Clause (d) protects the rights conferred by or under the 1956 Act
including the right to practise modem medicine possessing any qualification
included in that Act. In other words, under clause (d) the right to practise
modem scientific medicine in all its branches is confined to only such persons D
who possess any qualification included in the Schedules to 1956 Act. In view
of this conclusion it matters little if the practitioners registered under 1970 Act
are being involved in various programmes or given postings in hospitals of
allopathic medicine and the like.
E
It will be appropriate to notice that 1970 Act also maintains similar
distinction between State register of Indian medicine and Central register of
Indian medicine. Whereas the State register of Indian medicine is maintained
under any law for the time being in force in any State regulating the registration
of practitioners of Indian medicine, the Central register of Indian medicine has
to be maintained by the Central Council under Section 23 of that Act. For a F
person to be registered on the Central register, Section 25 enjoins that registrar
should be satisfied that the persons concerned was eligible under that Act
for such registration. Keeping this position in mind, if we read Section 17(3)(b),
it becomes clear that the privileges which include the right to practise any
system of medicine conferred by or under any law relating to registration of G
practitioners of Indian medicine for the time being in force in any State on
a practitioner of Indian medicine enrolled on a State register oflndian medicine,
is not affected by the prohibition contained in sub-section (2) of Section 17.

To ascertain if any State law confers 'the right to practise any system'
we have perused Bombay Medical practitioners Act, 1938, Rajasthan Indian H
166 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A Medicine Act, 1953 and Maharashtra Medical Practitioners Act, 1961 which
deal with registration of practitioners of Indian Medicine in those States. The
requirement as to registration was also contemplated under Pepsu Ayurvedic
& Unani Practitioners Act, 2008 B.K. (No. XII of2008 B.K.) and East Punjab
Ayurvedic & Unani practitioners Act. 1949 as well as under Punjab Ayurvedic
and Unani Practitioners Act 1963, which repealed the said two Acts. This 1963
B Act prescribes qualifications as specified in the Schedule for the purpose of
registration as a registered practitioner. In the said Act of 1963 also, there is
an express provision prohibiting a person other than registered practitioners,
as defined therein, to practise or hold out whether directly or by implication
as practising or being prepared to practise Ayurvedic system or Unani system.
C Section 16(3) of the Pepsu Ayurvedic and Unani Practitioners Act, 2008 B.K.
enjoins that no Vaids/Hakims shall be registered under the Act if the Registrar
is satisfied that such a person is found to practise any other system of
medicine for which he did not hold any certificate or diploma. But we could
not lay our hands on any provision in the said State Acts under which the
right to practise any system of medicine is conferred on practitioners of
D Indian medicine registered under those Acts.

Nevertheless, Ms. Indira Jaising asserted that the prohibition contained
in Section 15(2) and the punishment provided in Section 15(3) of the 1956 Act
would apply only to persons practising allopathic system of medicine without
E obtaining the registration but does not apply to practitioners of Indian medicine.
This submission is too broad to merit acceptance. It may be pointed out first
that the Act regulates practice of allopathic medicine, so Section 15(2Xb)
requires that only those who are registered on 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
F all such persons are precluded from practising allopathic medicine. The
punishment under Section 15(3) is in respect of contravention of any provision
of sub-section (2).

However, the claim of those who have been notified by State
G Governments under clause (iii) of Rule 2(ee) of the Drugs Rules and those
who possess degrees in integrated courses to practise allopathic medicine is
sought to be supported from the definition of the Indian Medicine in Section
2( e) of 1970 Act, referred to above, meaning 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
H declare by notification from time to time. Lot of emphasis is laid on the words
DR. MUKHTIAR CHAND v. STATE (QUADRI, J.] 167

underlined to show that they indicate modem scientific medicine as under A
integrated systems various branches of modem scientific medicine have been
included in the syllabi. A degree holder in integrated courses is imparted not
only the theoretical knowledge of modem scientific medicine but also training
thereunder, is the claim. We shall examine the notifications issued by the
Central Council to ascertain the import of those words. In its resolution dated B
March 11, 1987, the Central Council elucidated the concept of "modem
advances" as follows :

"This meeting of the Central Council hereby unanimously resolved
that in Clause (e) of Sub-section 2( 1) of 1970 Act of the IMCC Act,
'the modem advances', the drug has advanced made under the various C
branches of modem scientific system of medicine, clinicai non-clinical,
biosciences, also technological innovations made from time to time
and declare that the courses and curriculum conducted and recognised
by the CCIM are supplemented by such modem advances."

On October 30, 1996 a clarificatory notification was issued, which reads as D
under:

"As per provision under Section 2(1) of the Indian Medicine Central
Council Act, 1970, hereby Central Council oflndian Medicine notifies
that 'institutionally qualified practitioners oflndian system of medicine
(Ayurveda, Siddha and Unani) are eligible to practise Indian system E
of medicine and modem medicine including Surgery, Gynecology and
Obstetrics based on their training and teaching which are included in
the syllabi of courses of ISM prescribed by Central Council of Indian
Medicine after approval of the Government of India.

The meaning of the word 'modem medicine'(Advances) means F
advances made in various branches of Modem scientific medicine,
clinical, non-clinical bio-sciences also technological innovations made
from time to time and notify that the courses and curriculum conducted
and recognised by the Central Council of Indian Medicine are
supplemented by such modem advances."
G
Based on those clarifications, the arguments proceed that persons who
registered under the 1970 Act and have done integrated courses, are entitled
to practise allopathic medicine. In our view, all that the definition of 'Indian
Medicine' and the clarifications issued by the Central Council enable such
practitioners of Indian medicine is to make use of the modem advances in
various sciences such as Radiology Report, (x-ray), complete blood picture H
168 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A report, lipids report, E.C.G., etc. for purposes of practising in their own
system. However, if any State Act recognizes the qualification of integrated
course as sufficient qualification for registration in the State Medical Register
of that State, the prohibition of Section 15(2)(b) will not be attracted.

A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970
B Act leads to the conclusion that there is no scope for a person enrolled on
the State Register of Indian medicine or 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 1956
Act.
c The right to practise modern scientific medicine or Indian system of
medicine cannot be based on the provisions of the Drugs Rules and declaration
made thereunder by State Governments. Indeed, Ms. Indira Jaising has also
submitted that the right to practise a system of medicine is derived from the
Act under which a medical practitioner is registered. But she has strenuously
D argued that the right which the holders of degree in integrated courses of
Indian medicine are claiming is to have their prescription of allopathic medicine,
honoured by a pharmacist or the chemist under the Pharmacy Act and the
Drugs Act. 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,
E 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 allopathic drug cannot be wholly divorced from
the claim to practise allopathic medicine.

The upshot of the above discussion is that Rule 2(ee)(iii) as effected
F from May 14, 1960 is valid and does not suffer from the vice of want of the
legislative competence and the notifications issued by the State Governments
thereunder are not ultra vires the said rule and are legal. However, after sub-
section (2) in Section 15 of the 1956 Act occupied the field vide Central Act
24of1964 with effect from June 16, 1964, the benefit of the said rule and the
G notifications issued thereunder would be available only in those States where
the privilege of such right to practise any system of medicine is conferred by
the State Law under which practitioners of Indian Medicine are registered in
the State, which is for the time being in force. The position with regard to
Medical practitioners of Indian medicine holding degrees in integrated courses
is on the same plain inasmuch as if any State Act recognizes their qualification
H as sufficient for registration in the State Medical register, the prohibition
DR. MUKHTIAR CHAND v. STATE [QUADRI, J.] 169
contained in Section 15(2)(b) of the 1956 Act will not apply. A
In the result, civil appeals, special leave petitions and writ petitions are
accordingly disposed of. There shall be no order as to costs.

S.V.K.I. Appeals and Petitions disposed of.