NOTIFICATION NO. 1224(2)/LXXIX-V-1-15-1(Ka)-18-2015 LUCKNOW DATED 09TH SEPTEMBER, 2015 ISSUED BY GOVERNOR OF STATE OF UTTAR PRADESH As per Notification dated 09.09.2015 as issued by the Governor of the State of Uttar Pradesh: ―In Section 39 of the United Provinces Ayurvedic And Unani Tibbi Systems Of Act, 1939 in sub-section (4) after clause (c) the following clause shall be inserted, namely:- “(d) The registered practitioners of Ayurvedic or Unani System of Medicine holding the qualifications mentioned in the Second Schedule to the Indian Medicine Central Council Act, 1970 (Act no. 48 of 1970) shall be eligible to practice the modern system of medicine known as allopathic medicine to the extent of training they have received in the system and notified by the State Government along with the Ayurvedic or Unani Medicine in which they are registered in the State Register.”

LEGAL PROVISIONS The United Provinces Ayurvedic And Unani Tibbi Systems Of Medicine Act, 1939 In State of Uttar Pradesh, the United Provinces Ayurvedic and Unani Tibbi Systems of Medicine Act, 1939 (hereinafter referred to as Act of 1939) was enacted to provide for the development of the Ayurvedic and Unani Tibbi Systems of Medicine and to regulate their practice in the United Provinces. According to Section 2(ii) of Act of 1939, Indian system of medicine" means the Ayurvedic or the Unani Tibbi system of medicine, whether supplemented or not by such modern advances as the Board may from time to time have determined. According to Section 2(v) of Act of 1939, Practitioner" means a practitioner of an Ayurvedic and Unani Tibbi systems of medicine. According to Section 2(vii) of Act of 1939, Register" means the register of Vaids and Hakims, maintained under section 25. According to Section 2(viii) of Act of 1939, Registered practitioner" means a practitioner whose name is for the time being entered in the register. According to Section 27 of Act of 1939, (1) Every person possessing the qualifications mentioned in be registered the Schedule shall, subject to the provisions contained in or made under this Act and upon payment of such fees, whether in a limp sum or periodically, as may be prescribed, be entitled on an application made to the Registrar, to have his name entered in the Register. When the name of a person has been registered in accordance with the provision aforesaid he shall be granted a certificate in the prescribed from. (2) Any person aggrieved by the order of the Registrar refusing to enter his name in the register or to make any entry therein may, within ninety days of such refusal, appeal to the Board. (3) The appeal shall be heard and decided by the Board in the prescribed manner. (4) The Board may, on its own motion or on the application of any person, cancel or alter any entry in the Register or order any entry in the register if in the opinion of the Board such an entry was fraudulently or incorrectly made or obtained, or an application was wrongly refused. According to Section 39 of Act of 1939, Notwithstanding anything contained in any law for the time--being, (1) The expression "legally qualified medical practitioners" duly qualified medical practitioner" or any word importing that person is recognized by law as medical practitioner or member of medical profession shall, in all Acts in force in Uttar Pradesh and in all Central Acts in their application to Uttar "Pradesh in so far as such Acts relate to any of the ' matters specified in List 1I or List III in the Seventh Schedule to the Constitution be deemed to include a registered practitioner. (2) A certificate required under any law or rule having the force. of law from any medical practitioner, or medical officer shall be valid, if such, certificate has been granted' by a registered practitioner. (3) A registered practitioner shall be eligible to, hold 'any appointment as a or other, medical officer in any Ayurvedic or Unani dispensary, hospital; infirmary or lying in hospitals supported by or receiving a grant' from the -[State Government] or in any public establishment, body or institution dealing with such systems of medicine. (4) A registered practitioner shall be entitled to – (a) sign or authenticate a birth or death certificate required by any law or rule to be signed or authenticated by 'a duly qualified -medical practitioner; (b) sign or authenticate a medical or physical fitness certificate required by any law- or rule to be signed or authenticated by a duly qualified, medical –practitioner.; (c) give evidence at any-inquest or in any Court of Law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine, surgery or midwifery. Thus, as per the statement of objects and provisions, the Act of 1939 was enacted for the development of the ayurvedic and unani system of medicine and not for the allopathic medicine. Further, the Act of 1939 does not allow the ayurvedic and uanni practitioners to practise allopathic medicine and accordingly, the ayurvedic and unani practitioners are not allowed to prescribe allopathic medicine or modern system of medicine. Indian Medicine System Also Known As Ayurvedic, Unani & Tibbs System

The Indian Medicine Central Council Act, 1970 (hereinafter referred to as ―IMCC Act) has been framed to provide for the constitution of a Central Council of Indian Medicine and the maintenance of a Central Register of Indian Medicine and for matters connected therewith.

According to Section 2(d) of the IMCC Act, "Central Register of Indian Medicine" means the register maintained by the Central Council under this Act.

According to Section 2(e) of the IMCC Act, "Indian Medicine" means 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 declare by notification from time to time.

According to Section 2(g) of IMCC Act, "recognised medical qualification" means any of the medical qualifications, including Post-graduate medical qualification, of Indian medicine included in the Second, Third or Fourth Schedule of IMCC Act.

According to Section 2(j) of the IMCC Act, "State Register of Indian Medicine" means 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.

Section 17 of IMCC Act lays down the Rights of persons possessing qualifications included in Second, Third and Fourth Schedules of the Act to be enrolled (1) Subject to the other provisions contained in this Act, any 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 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 Government or in any institution maintained by a local or other authority; (b) shall practice Indian medicine in any State; (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 Indian Evidence Act, 1872 (1 of 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 State Register of Indian Medicine to practise 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 practise any system of medicine) 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 enrolled on a State Register of Indian medicine; (c) the right of a person to practise Indian medicine in a State in 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 (102 of 1956) [including the right to practise medicine as defined in 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 rupees, or with both.

According to Section 28 of IMCC Act, if the course of study to be undergone for obtaining a recognised medical qualification in Indian Medicine include a period of training after a person has passed the qualifying examination and before such qualification is conferred on him, any such person shall, on application made by him in this behalf, be granted provisional registration in a State Register of Indian medicine by the Board concerned in order to enable him to practice Indian Medicine in an approved institution for the purpose of such training and for no other purpose for the period aforesaid.

Section 29 of IMCC Act lays down Privileges of persons who are enrolled on the Central Register of Indian Medicine: Subject to the conditions and restrictions laid down in this Act regarding practice of Indian medicine by persons possessing certain recognised medical qualifications, every person whose name is for the time being borne on the Central Register of Indian Medicine shall be entitled according to his qualification to practice Indian medicine in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances or any fees to which he may be entitled.

THE SECOND SCHEDULE deals with Recognized medical qualifications in Indian medicine granted by Universities, Boards or other medical institutions in India

THE THIRD SCHEDULE deals with Qualifications granted by certain medical institutions before 15th August, 1947 in areas which comprised within India as defined in the Government of India Act, 1935.

THE FOURTH SCHEDULE deals with Qualifications granted by medical institutions in countries with which there is a scheme of reciprocity.

Thus, as per the provisions of Indian Medicine Central Council Act, 1970 only the that person can practice Indian medicine who possesses a recognised medical qualification as per the Schedule Annexed with the IMCC Act, 1970 and is enrolled on a State Register or the Central Register of Indian Medicine. If any other person practices Indian Medicine in contravention to the provisions of IMCC, then that person shall be punishment with imprisonment and / or with fine.

ALLOPATHIC MEDICINE / MODERN MEDICINE Indian Medical Council Act, 1956

Indian Medical Council Act, 1956 (hereinafter referred to as IMC Act) is an act to provide for the reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for matters connected therewith.

According to Section 2(c) of IMC Act, "council" means the Medical Council of India constituted under this Act.

According to Section 2(e) of IMC Act, "Indian Medical Register" means the medical register maintained by the Council.

According to Section 2(g) of IMC Act, "medicine" means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery.

According to Section 2(i) of IMC Act, "recognised medical qualification" means any of the medical qualifications included in the Schedules.

According to Section 2(k) of IMC Act, "State Medical Council" means a medical council constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine.

According to Section 2(l) of IMC Act, "State Medical Register" means a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine.

Section 15 of IMC Act deals with right of persons possessing qualifications in the schedules to be enrolled:

(1) 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.

(2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register:- (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 practice medicine in any State; (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 Indian Evidence Act, 1872 on 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.

Section 21 of IMC Act deals with Indian Medical Register: (1) The Council shall cause to be maintained in the prescribed manner a register of medical practitioners to be known as the Indian Medical Register, which shall contain the names of all persons who are for the time being enrolled on any State Medical Register and who possess any of the recognised medical qualifications.

(2) It shall be the duty of the Registrar of the Council to keep the Indian Medical Register in accordance with the provisions of this Act and of any orders made by the Council, and from time to time to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed.

(3) Such register shall be deemed to be public document within the meaning of the Indian Evidence Act, 1872 and may be proved by a copy published in the Gazette of India.

Section 25 of IMC Act deals with provisional registration which is reproduced hereunder: (1) A citizen of India possessing a medical qualification granted by a medical institution outside India included in part II of the Third Schedule, who is required to undergo practical training as prescribed under sub section (3) of Section 13, shall, on production of proper evidence that he has been selected for such practical training in an approved institution be entitled to be registered provisionally in a State Medical Register and shall be entitled to practise medicine in the approved institution for the purposes of such training and for no other purpose.

(2) A person who has passed the qualifying examination of any university or Medical Institution in India for the grant of a recognized medical qualification shall be entitled to be registered provisionally in a State Medical Register for the purpose of enabling him to be engaged in employment in a resident medical capacity in any approved institution, or in the Medical Service of the Armed Forces of the Union, and for no other purpose, on production of proper evidence that he has been selected for such employment.

(3) The names of all persons provisionally registered under sub-section (1) or sub-section (2) in the State Medical Register shall be entered therein separately from the names of other persons registered therein.

(4) A person registered provisionally as aforesaid who has completed practical training referred to in sub section (1) or who has been engaged for the prescribed period in employment in a resident medical capacity in any approved institution or in the Medical service of the Armed Forces of the Union, as the case may be, shall be entitled to registration in the State Medical Register under Section 15.

According to Section 27 of IMC Act, 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 expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled.

In exercise of powers conferred by Sections 4 and 32 of the Indian Medical Council Act, 1956, the Central Government has made Indian Medical Council Rules, 1957.

In exercise of powers conferred by section 33 of the Indian Medical Council Act, 1956, the Medical Council of India with the previous sanction of the Central Government has made the Medical Council of India Regulations, 2002.

Indian Medical Council (Professional Conduct, Etiquette And Ethics) Regulations, 2002 In exercise of powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956, the Medical Council of India, with the previous approval of the Central Government has made the regulations relating to the Professional Conduct, Etiquette and Ethics for registered medical practitioners known as “Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 “.

Clause 1 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 deals with Code of Medical Ethics.

According to Clause 1.1.3 of the said Regulations, 2002, no person other than a doctor having qualification recognised by Medical Council of India and registered with Medical Council of India/State Medical Council (s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice Modern system of Medicine in any form.

According to Clause 7 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 which deals with Misconduct, the following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action:

7.1 Violation of the Regulations: If he/she commits any violation of these Regulations

7.7 Signing Professional Certificates, Reports and other Documents: Registered medical practitioners are in certain cases bound by law to give, or may from time to time be called upon or requested to give certificates, notification, reports and other documents of similar character signed by them in their professional capacity for subsequent use in the courts or for administrative purposes etc. Such documents, among others, include the ones given at Appendix –4. Any registered practitioner who is shown to have signed or given under his name and authority any such certificate, notification, report or document of a similar character which is untrue, misleading or improper, is liable to have his name deleted from the Register.

7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and Cosmetics Act and regulations made there under. Accordingly, a) Prescribing steroids/ psychotropic drugs when there is no absolute medical indication; b) Selling Schedule ‗H‘ & ‗L‘ drugs and poisons to the public except to his patient;

in contravention of the above provisions shall constitute gross professional misconduct on the part of the physician.

Clause 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 deals with Punishment and Disciplinary Action.

8.1 It must be clearly understood that the instances of offences and of Professional misconduct which are given above do not constitute and are not intended to constitute a complete list of the infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council of India and or State Medical Councils are in no way precluded from considering and dealing with any other form of professional misconduct on the part of a registered practitioner. Circumstances may and do arise from time to time in relation to which there may occur questions of professional misconduct which do not come within any of these categories. Every care should be taken that the code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India and/or State Medical Councils have to consider and decide upon the facts brought before the Medical Council of India and/or State Medical Councils.

8.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/ Societies/Bodies.

8.3 In case the punishment of removal from the register is for a limited period, the appropriate Council may also direct that the name so removed shall be restored in the register after the expiry of the period for which the name was ordered to be removed.

8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6 months.

8.5 During the pendency of the complaint the appropriate Council may restrain the physician from performing the procedure or practice which is under scrutiny.

8.6 Professional incompetence shall be judged by peer group as per guidelines prescribed by Medical Council of India.

Indian Medical Degrees Act, 1916

Indian Medical Degrees Act, 1916 has been enacted to regulate the grant of titles implying qualification in Western medical Science and the assumption and use by unqualified persons of such title.

According to Section 2 of Indian Medical Degrees Act, 1916 ―Western medical science‖ means the western methods of Allopathic Medicine, Obstetrics and Surgery, but does not include the Homeopathic or Ayurvedic or Unani system of medicie and states means all the territories which immediately before the 1st November 1956, were comprised within Part A State, Part C States.

According to Section 3 of Indian Medical Degrees Act, 1961, the right of conferring granting or issuing in the States degrees diplomas, licenses certificates or other documents stating or implying that the holder grantee or recipient thereof qualified to practices western medical science, shall exercise able only by the authorities specified in the schedule and such other authority as the State Government may, by notification in the Office Gazette and subject to such conditions and restrictions as it thinks fit to impose authorize in this behalf.

According to Section 4 of the Indian Medical Degrees Act, 1916, save as provided by section 3 no person in the States shall confer grant or issue or hold himself out as entitled to confer grant or issue any degree, diploma licence certificate or other document, stating or implying that the holder grantee or recipients qualified to practice western medical science.

According to Section 5 of Indian Medical Degrees Act, 1916, whoever contravenes the provisions of section 4 shall be punishable with fine which may extend to one thousand rupees; and if the person so contravening is an association, every member of such association, who knowingly and willfully authorizes or permits the contravention shall be punishable with fine which may extend to five hundred rupees.

According to Section 6 of the Indian Medical Degrees Act, 1916, whoever voluntarily and falsely assume or uses any title or description or any addition to his name implying that he holds a degree, diploma, license or certificate conferred granted for issued by any authority referred to in section 3 or recognized the General Councils of of the United Kingdom or that he is qualified to practice western medical science, shall be punishable with fine which may extend to two hundred and fifty rupees, or if the subsequently commits and is convicted of an offence punishable under this section with fine which may extend to five hundred rupees. Provided that nothing in this section shall apply to the use by any person of any title, description or addition in which Prior to commencement of this Act he used in virtue of any degree, diploma licence or certificate conferred upon or granted or issued to him.

Thus, as per the provisions of Indian Medical Council Act, 1956, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 only the person who has obtained recognised qualification as per the Schedule appended to the Indian Medical Council Act, 1956 and who has been enrolled in the State Medical Register or Central Medical Register is entitled to practice the modern system of medicine. Any other person who practices modern system of medicine who does not possesses the recognised qualification and who is not enrolled on either State or Central Medical Register shall be punishment with imprisonment and / or with fine.

DRUGS AND COSMETICS ACT, 1940 The import, manufacture, distribution and sale of drugs and cosmetics in India is regulated by the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “DCA”) and Drugs and Cosmetics Rules, 1945 (hereinafter referred to as “DCR”).

According to Section 3(b) of DCA “drug‖ includes— (i) all for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes; (ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette; (iii) all substances intended for use as components of a drug including empty gelatin capsules; and (iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;

According to Section 4 of DCA, any substance specified as poisonous by rule made under Chapter III or Chapter IV or Chapter IVA shall be deemed to be a poisonous substance for the purposes of Chapter III or Chapter IV or Chapter IVA, as the case may be.

According to Section 2(ee) of Drugs and Cosmetics Rules, 1945, ―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 excluding the Homoeopathic system of medicine; or (iii) registered in a medical register, other than a register for the registration of Homoeopathic practitioner, 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 as a person practising the modern scientific system of medicine for the purposes of this Act; or (iv) registered or eligible for registration in the register of dentists for a State under the Dentists Act, 1948 (16 of 1948); or (v) who is engaged in the practice of veterinary medicine and who possesses qualifications approved by the State Government;

According to the provisions of Drugs & Cosmetics Act, 1940 and Drugs & Cosmetics Rules, 1945 certain restrictions have been imposed on the manufacture, sale, advertisement, labelling, packing, etc. of certain drugs. Thus, some allopathic drugs and ayurvedic, siddha and unani drgs can be termed as Schedule Drugs / Prescription Drugs. The List of schedule / prescription drugs of allopathic and ayurvedic, siddha and unani drugs is mentioned in Schedules appended to the Drugs and Cosmetics Rules, 1945. The drugs mentioned in Schedule E1, G, H, H1 and X appended to the Drugs and Cosmetics Rules, 1945 can be termed as Schedule Drugs / Prescription drugs. The drugs mentioned in Schedule H, H1 and X can be prescribed only by the registered medical practitioner as defined in Section 2(ee) of Drugs and Cosmetics Rules, 1945. According to the Rule 123 of DCR, the drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and the rules made thereunder to the extent and subject to the conditions specified in that Schedule. Thus, there are certain drugs as specified in Schedule K which can be sold without fulfilling all the conditions of the Chapter IV of DCA as well as the rules made under DCR upto the extent of exemption as mentioned in the Schedule K.

RELEVANT CASE LAWS

 The Hon’ble Supreme Court of India in the matter titled as “Ayurvedic Enlisted Doctor's Association, Mumbai v. State of Maharashtra, 2009(16) SCC 170‖ has held that:

“Indian Medicine Central Council Act, 1970-- Sections 29, 2(1)(h), 14, 17(3- A) & 23-- Registered practitioners-- Right to practice in any part of the country, requirement for having, scope -- Claim made that once the name is included in register of a particular state there is right to practice in any part of the country-- Whether maintainable? – Held, no --Right to practice is restricted -- Only if the name finds place in the Central Register then the question of practising in any part of the country arises-- Constitution of India -- Articles 19(1)(g) & (6) -- Bihar Development of Ayurvedic and Unani Systems of Medicines Act, 1956 --Sections 21 & 22 -- Maharashtra Medical Practitioners Act, 1961.

Indian Medicine Central Council Act, 1970 -- Section 23 -- Inclusion of name in Central Register – Scope -- Persons not possessing recognized medical qualifications – Their names cannot be included in the Central Register.”

 The Hon’ble High Court of Delhi in the matter titled as Pradeep Kumar v. Government of NCT of Delhi[DB], 2006(128) DLT 753 has held that:

“Indian Medicines Central Council Act, 1970 -- Sections 29, 28, 2(f), 17(3)(a), (b), Schedules II, III & IV -- Right to do medical practice in India – Scope -- Held, in view of section 29, only those persons registered in the Central Register can practice in any part of India unless they are entitled to exceptions given under Section 17(3)(a) & (b).”

 The Hon’ble Apex Court of India in the matter titled as “Mukhtiar Chand versus State of Punjab, 1998 (7) SCC 579‖ has held that:

“Drugs can be sold or 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 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 practitioners; obviously such a power is not conferred under that 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 Rajasthan that the impugned Rule 2(ee) (iii) suffers from the vice of lack of legislative competence and is ultra vires the Drugs Act.

For purpose 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 notification can be faulted with only if those 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 Vaida/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 notification was ultra vires the rules.

We have perused the above said notifications used 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 in the State Medical Registers, are valid in law.

In our view, all that the definition of `Indian medicine' and the clarification issued by the Central Council enable such practitioners of Indian medicine is to make use of the modern advances in various sciences such as Radiology Report, (X-ray), complete blood picture report, lipids report, E.C.G., etc. for purposes of practising in their own system. However, if any State Act recognizes 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 Act leads to the conclusion that there is no scope for a person enrolled on the State Register in 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.

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.

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 practice allopathic medicine.

Rule 2(ee)(iii) as effected 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 24 of 1964 with effect from June 16, 1964, the benefit of the said rule and the 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 as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply. “

 The Hon’ble Supreme Court of India in the matter titled as “Poonam Verma versus Ashwin Patel, CA No. 8856/1994 dated 10.05.1996” has held that:

―The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.

So far as persons engaged in Medical Profession are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a Doctor or a Surgeon does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, as there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test.

It covers the liability of a Doctor in respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.

A Doctor when consulted by a patient owes him certain duties, namely, (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence per se. A person who does not have knowledge of a particular System of 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.

Medical Council Act, 1956 -- Section 15(3) -- Practice without qualification -- Prosecution for -- A person qualified under system of medicine practicing allopathic system of medicine without requisite qualification -- The treatment resulting in death of a patient -- Direction given to the Medical Council to initiate appropriate action against such quack.”

 The Hon’ble High court of Allahabad in the matter titled as ―Dr. Mehboob Alam versus State of U.P. & others, 2002 CriLJ 1218, has held that:

“8...The provisions of Indian Medicine Central Council Act, 1970 show that as person holding a qualification recognised by the aforesaid Act in the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb is entitled to practise only in the discipline in which he has acquired the qualification. The Act does not authorise him to practice in Allopathy system of medicine.”

OPINION In view of the above legal provisions and case laws, it is opined that the person who possesses recognized qualification as per the schedule appended to the Indian Medical Council Act, 1956 and who is enrolled either on the State Medical Register or Central Medical Register can only practice modern system of medicine and thus, only that practitioner can prescribe modern medicines. The practitioners of Ayurvedic and Unani system of medicine are not entitled to practice modern system of medicine and accordingly, they are not entitled to prescribe any modern medicine or allopathic medicine.

Thus, the Notification dated 09.09.2015 which authorises the Ayurvedic and Unani practitioners to practice the modern system of medicine known as allopathic medicine is ultra vires and contrary to the above mentioned legal provisions. Also, the said notification is ultra vires and contrary to the above mentioned landmark judgments as passed by the Hon‘ble Supreme Court of India. Further, the said notification dated 09.09.2015 is ultra vires to the objective of the United Provinces Indian Medicine Act, 1939 which is enacted for the development of the Ayurvedic and Unani Tibbi system of the medicine.

In view of the above, it is opined that the notification dated 09.09.2015 should not be enforced and the same is liable to be set aside and quashed.