A divisional bench of India’s Supreme Court on Monday issued an opinion on a writ petition filed by the Medical Consultants Association of Mumbai challenging the constitutionality of specific provisions of the National Commission for Indian System of Medicine Act 2020 and the National Homeopathy Commission Act 2020 as well as the 2020 amendment to Regulation 10(9) of the Indian Central Medical Council (Post Graduate Education in Ayurveda) Regulations 2016. These provisions, introduced in 2020, formed the keystone of the Centre’s decision to integrate different types of alternative medicine systems, such as homeopathy and Ayurveda, with modern or traditional medicine, commonly referred to as allopathy, by allowing practitioners of alternative medicine to perform their duties as surgeons and practice modern medicine and, in some cases, be trained and perform a number of surgeries. The Union Government claimed that this integrative health system, dubbed “One Nation One Health System”, would promote “inclusive, affordable, evidence-based and people-centred healthcare” and help address the national shortage of doctors. However, government push for what has been pejoratively called “mixopathy” or “crosspathy”, has been criticized by doctors and medical associations. In this petition, AMC Mumbai also claimed –
“The nature of the injuries caused or likely to be caused to the public is serious and has serious implications for public health, medical infrastructure and the right to life, including the right to prompt and correct medical assistance, such as that he is registered in Rule 21 of the Constitution of India.”
The bench included Judges Hemant Gupta and Sudhanshu Dhulia.
In 2020, Parliament adopted the National Commission for Indian System of Medicine Act 2020 and the National Homeopathy Commission Act 2020 which enabled practitioners of the Indian system of medicine (including homeopathy) to perform the duties of surgeons and practice modern medicine. The National Commission for Indian System of Medicine Act 2020 repealed the old Central Council of Indian Medicine Act 1970.
In the same year, the Central Council of Indian Medicine (CCIM), which is the statutory body constituted under the Ministry of AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddhaand homeopathy), promulgated the Regulations Amending the Central Council of Indian Medicine (Postgraduate Education in Ayurveda) Regulations 2020authorizing postgraduate practitioners shaya and shalakya currents of Ayurveda to be trained to perform 39 general surgery procedures and 19 other procedures such as excision of benign tumors, nasal and cataract surgeries, excision or amputation of gangrene, excision benign lesions, cysts or tumors of the breast. As a result of this amendment, postgraduate scholars in these streams were allowed to perform these surgeries or procedures independently after graduation. Although the Central Council of Indian Medicine Act has now been repealed, the regulations made thereunder will remain in effect and continue to apply until new regulations are made under the National Commission for the Indian System of Medicine Act.
These provisions were introduced by the Bharatiya Janata Party-led government to usher in an integrated system of medicine, which will be fully in place by 2030, which combines modern and traditional medicine systems. However, critics and analysts have noted that there is a lack of unanimity and consistency between states, central government and within the National Council of Physicians on this issue.
The Madras High Court in 2018, while quashing the criminal case against a doctor registered with the State Medical Board of Homeopathy who was found practicing modern medicine, ruled that registered AYUSH practitioners were eligible to practice “allopathic medicine” if trained with their respective systems, but not exclusively. [R. Senthilkumar v. The State, 2022 LiveLaw (Mad) 325]
The case was again stirred by the Association of Medical Consultants, which is an association of medical specialists in Mumbai, comprising eleven thousand members. The petitioner applied to the Supreme Court to request the annulment of certain provisions of the above-mentioned laws and regulations.
The petitioner disputed Section 34 of the National Commission for Indian System of Medicine Act 2020, Section 34 of the National Homeopathy Commission Act 2020 as well as the 2020 amendment to Regulation 10(9) of the Indian Central Medical Council (Post Graduate Education in Ayurveda) Regulations 2016.
The petitioner, while noting that the purpose of the challenged legislations was to address shortages of doctors in India by merging alternative medicine with traditional medicine, asserted that the legislations have failed to control incidents of medical malpractice by “quacks”. who offer modern medical treatment without any adequate qualification or experience. The petition states –
“Legislation legitimizes the practice of quackery and pseudoscience by immunizing them from any consequence or legal liability.”
The Association also highlighted the 115e Report of the Parliamentary Standing Committee on Health and Family Welfare, in which the need to strengthen the capacity of existing human resources in the health sector to deal with the shortage of health professionals and the need to an integrated health policy have been recognized. However, the petitioner refers to a passage in the report where he was emphatically stated –
“The Committee, at the same time, cannot ignore the possible risk that unqualified and untrained doctors prescribe modern medicine and cause irreparable harm to patients and reiterates its recommendation, as in its 109th report, that medical professionals practicing without required qualification anywhere in the country may attract criminal provisions.”
The petitioner also argued that instead of strengthening the discipline, research and practice of alternative medicine, the central government has dealt a blow by providing these “shortcuts”. Further, even though the objective of the impugned legislations was to promote equitable and universal health care that encourages a community health perspective and makes the services of such health professionals accessible and affordable to all citizens, the petitioner asserted that they contained several loopholes and would create “confusion in the minds of the general public and especially in rural areas”.
The petitioner also relied on Delhi Medical Association v. Principal Secretary (Health) & Ors. [(2016) SCC Online Del 2289]. The following passage from the judgment was taken from the motion –
“The words ‘modern advancements which the CCIM may declare by notification from time to time’ in the definition of Indian medicine in Paragraph 2(1)(e) of the Indian Medicine Act are not capable of taking Indian medicine to the limits beyond the essentials of the Indian system of medicine as otherwise defined as Ashtang, Ayurveda, Siddha, Unani, etc. or to convert the Indian System of Medicine into Modern Scientific Medicine System or Allopathic Medicine System as defined in MCI Act and Indian Medical Degrees Act. To hold otherwise would blur the otherwise well-defined boundaries between the two systems of medicine… The words “modern advancements as declared by the CCIM” in the definition of Indian medicine are only intended to allow for the inclusion in the schedule of the Indian Medicine Act of Qualifications advances these to enable their holders to have their names entered in the Central Register of Indian Medicine. »
The petitioner alleged that the right to health and to fair medical treatment enshrined in Rule 21 of the Constitution included the right to know the professional status of health care providers providing services to the patient.
The petitioner relied on Mukhtiar Chand (Dr) c. state of punjab [(1998) 7 SCC 579] where the Supreme Court ruled that a harmonious reading of Section 15 of Indian Medical Council Act, 1956 and Section 17 of yesteryear Central Council of Indian Medicine Act excluded the ability of a person registered in the National Register of Indian Medicine or the Central Register of Indian Medicine to practice modern scientific medicine in any of its branches, unless that person is also registered in a national medical register within the meaning of the law of 1956. The applicant cited the judgment –
“The regulatory measures relating to the exercise of this right, both with regard to the level of professional qualifications and professional conduct, have been applied taking into account not only the right of doctors but also the right to life and appropriate health care for those in need medical care and treatment There can therefore be no compromise on the professional standards of medical practitioners.
The petitioner also relied on Poonam Verma vs. Ashwin Patel [(1996) 4 SCC 332], where the Supreme Court, while finding a homeopathic practitioner guilty of negligence for prescribing allopathic medicines, raised concerns surrounding the integration of various systems of medicine. The following excerpt was borrowed –
“The importance of mutual exclusion is relevant inasmuch as the right to practice in a particular system of medicine depends on registration which is only permitted if the qualification) and that, also, the recognized qualification, is possessed by a person in that system… A person who has no knowledge of a particular system of medicine but practices in that system is a charlatan and a mere pretender to medical knowledge or skill, or to put it another way , a charlatan.”
The petitioner also pointed to the critical stigma generated by the use and practice of alternative medicine in countries such as the United Kingdom, Australia, France, Germany and the United States of America, concluding that –
“The challenged legislations are fostering a centuries-old problem of quackery in India, without establishing an adequate mechanism to deal with the problem of unqualified and untrained doctors prescribing modern medicine…The consequence of the implementation of the challenged legislations will have a negative impact on public health, medical infrastructure and the right to life, including the right to prompt and correct medical assistance, as set out in Section 21 of the constitution.”
The petitioner prayed for the “cancellation/cancellation/modification” of the impugned provisions.
Attorney Sunil Fernandes appeared and argued for AMC.
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