Homeopathic Surgeon Association Of India v. Union of India

Name of the caseHomeopathic Surgeon Association Of India v. Union of India
Citation (eq)2017 2 ALJ 625, AIR 2017 ALL 105
Year of the case2017
AppellantDeepak Kumar Jaiswal, Santosh Kr. Singh Paliwal, Advocates.
Respondent C.S.C., A.S.G.I.
Judges/ benchJustice V.K. Shukla & Mrs. Justice Sangeeta Chandra
Acts of involvedThe Drug and Cosmetics Rules, 1945, Section 2 (ee); The Indian Medicine Central Council Act,1970

Abstract 

The article aims to give the readers a brief idea about how the Medical Association works and about its practitioners. The judgement explained here will demonstrate the permissions and limits of the practitioners of various Medical fields. The article talks about sections of The Drug and Cosmetics Rules, 1945, The Indian Medicine Central Council Act,1970 and many others. 

Introduction

This case “Homeopathic Surgeon Association Of India V Union of India” is related to the permissions granted to medical practitioners to practice other fields of it or not. A medical practitioner according to The Indian Medical Degrees Act,1916 is a person, registered in a medical register of a State.

Issues 

  1. The issue raised was whether the Pharmacological course in the Governmental Colleges affiliated with Uttar Pradesh allowed taking Pharmacology courses. 

Prayer 

The petitioners prayed before the Court the following:

  1. To issue, or order, or give direction in the Writ of Certiorari and quash the order given on 28/11/2016.
  2. To issue, or order, or give direction in the Writ of Mandamus, and order the respondents to enable the initiation of the “Pharmacology Course” in Government Colleges so that the petitioner association can get Pharmacology course.

Mandamus

Mandamus is a writ. Mandamus is a Latin term which means “We command”. In simple terms, it is an order from the Supreme Court or High Court to any lower court or any other authority to do or perform the assigned duty commanded by them. It is like an awakening call from authority. 

Certiorari

Certiorari is another of the five writs granted. It means “to be certified”. It also means “to be fully informed”. The writ can be passed by The Supreme Court or High Court for quashing any order passed by any other lower court or tribunal. It orders the lower courts to show the records in a case so that the higher court can review it.

Related Provisions 

The acts and provisions taken into account are:

  1. The Drug and Cosmetics Rules, 1945, Section 2 (ee)[1]: Section 2(ee) of the Act provision talks about the “registered medical practitioners”. The provision describes who is a medical practitioner, like who has qualification granted under Section 3 of the Indian Medical Degrees Act, 1916, or under the schedules of Indian Medical Council Act, 1956. 
  2. The Indian Medicine Central Council Act,1970

          The act provides for the Constitution of a central council of Indian Medicine and the importance of a central Register of medicines and its related matters.

  1. Section 2 of the Indian Medical Council Act,1956

Section 2 of the talks about the definition of “Indian Medical Register”. The subsections, Section 2(d), 2(f), 2(h), 2(k) talks about the medicine, its qualification, and state medical register.

  1. Section 11 of the Indian Medical Council Act,1956

       Section 11 enumerates medical qualifications granted by any university or medical institute. 

Related Cases 

  1. Poonam Verma v Ashwin Patel ,1996

In this case, there was a registered practitioner under Bombay Homeopathic and Biochemic practitioner Act, 1959 who wished to practice modern medicine. In this Supreme court judgment, it was held that the practitioner was not qualified to do so, i.e., to practice Allopathy. Section 15 of the Indian Medical Council Act,1956 is taken as the relevant provision here.

  1. Dr Mukhtiar Chand and others v. State of Punjab and others[3], 1998

In this case, the question raised was whether a medical practitioner practising Indian Medicine be allowed to practice Modern Medicine On the provisions of Drugs and Cosmetics Rules 1945. The court said that it is not possible.

  1. State of Haryana v. Phool Singh,1998[4]

In this case the Drug and Cosmetics Rules,1945, viewed in its widest concept. The respondents came within the purview of Allopathic Medicines, so the court dismissed the appeal. 

  1. D.K. Joshi v. State of U.P.,2000[5] 

The case was regarding the practice of the Allopathic branch of medicine. The court repeatedly and strict quoted –

“(i) All district Magistrates and the Chief Medical Officers of the State shall be directed to identify, within a time limit to be fixed by the Secretary, all unqualified/unregistered medical practitioners and to initiate legal actions against these persons immediately;

(iii) The Secretary, Health and Family Welfare Department shall give due publicity of the names of such unqualified/unregistered medical practitioners so that people do not approach such persons for medical treatment.”

  1. Mumbai v State of Maharashtra, 2009[6]

Judgement-

The Apex court examined the issues and arguments presented and said-

  1. The Court took into consideration the decision given in the case of Poonam Varma v. Ashwin Patel[7], that the practitioner is not qualified to practice Allopathy and had entered into the prohibited area of it. Some of the extracts are:

The provision provided in the judgement said that any person cannot practice medicine if he has the qualification for the same and he is enrolled as a medical practitioner on state medical register.

  1. Right to practice is allowed only if the practitioner gets registered if he/she is qualified for the same. The court made it very clear that a practitioner who has studied a system of medicine will be allowed to give the patient drugs of any other system and treat them. Further, the court took the reference of the judgement given in the case of Dr Mukhtiar Chand and others v. State of Punjab and others, 1998 and said-

Central Council, according to Section 2(e) (1) of IMCC Act, 1970, resolved that during modern medicine time, modern scientists have made drugs which are used under various branches. 

  1. The Apex Court decided that the petitioners cannot be granted permission to start the Pharmacological course in the Governmental Colleges.
  1. Therefore, the prayer by the petitioner, the writ petition filed is dismissed.

Arguments

  1. Adv. Deepak Kr. Jaiswal and Advocate Santosh Singh Paliwal argued that now large scale discharge of duties by the Medical practitioners and bridge course of Pharmacology, also, certificate course for Modern Pharmacology for registered Practitioners has been taken up by the Government of state of Maharashtra, so same can be made up by the state of Uttar Pradesh. 
  2. The Principal Secretary, Medical Education (Ayush) Ministry of Health and Family Welfare, UP, has looked into the matter and said that in the state of UP concerning the different field of medicines, with different registered doctors in their field are entitled to carry out their practice in their field, so one branch of people cannot be allowed to practice another branch and such prayer cannot be taken into. 
  3. The learned counsel representing the respondents, Union of India and the State of UP was of the same view as of the Principal Secretary, Medical Education (Ayush) Ministry of Health and Family Welfare, UP, argued and stated that in the state each branch, who are practising medicine has their board and one member of one board cannot be allowed to practice in another board and about permission, it depends and it is the concern of the policymakers as what to do. The concerned State Government of UP is not prepared to take up the course as it is by the Government of Maharashtra. 
  4. The petitioner contrary to the view in the case of Dr Mukhtiar Chand and others v. State of Punjab and others, 1998, relied on the judgement given in the case of State of Haryana v. Phool Singh,1998.

Frequently Asked Questions

  1. Who is a medical practitioner?

A medical practitioner according to The Indian Medical Degrees Act, 1916 is a person, registered in a medical register of a State.

  1. What is Allopathy?

It is a field of medical practice in which treatment is done through drugs having effects opposite to the symptoms

  1. What is Homeopathy?

It is the field of medicine in which the practitioner believes the body will cure itself and gives small doses of natural substances.

  1. What is a mandamus?

Mandamus is a writ which is an order from the Supreme Court or High Court to any lower court or any other authority to do or perform the assigned duty commanded by them.

  1. Which article of The Constitution issues Writ in India?

Article 32 of the Indian Constitution talks about the writs in India.

References

  1. https://www.lawyerservices.in/Homeopathic-Surgeon-Association-of-India-Versus-Union-of-India-and-Others-2017-02-08
  2. https://www.legitquest.com/case/homeopathic-surgeon-association-of-india-v-union-of-india/1a88f5
  3. http://kanoon.nearlaw.com/2018/01/09/writ-mandamus/
  • [1] 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), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); 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 3 [excluding the Homoeopathic system of medicine]
  • [2] 1996 (4) SCC 332
  • [3] (1998) 7 SCC 579
  • [4] 1998-Laws (SC)-7-81
  • [5] 2000 (5) SCC 80
  • [6] JT 2009 (3) SC 351
  • [7] Supra note 2
  • [8] Extracts from the judgement of Poonam Varma v. Ashwin Patel

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