IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP No. 7893 of 2002 Date of Decision: August 10, 2009 Electrohomoepathic Doctor’s Association Punjab .......... Petitioner versus State of Punjab and others ........... Respondents Present: Shri R.S. Bains, Advocate for the petitioner. Shri H.S. Sidhu, Addl. Advocate General, Punjab. Shri S.M. Sharma, Advocate, for respondents No. 5 to 14 2. CWP No. 3261 of 2005 Electrohomeopathic Doctor’s Association Punjab .......... Petitioner versus State of Punjab and others ........... Respondents Present: Shri R.S. Bains, Advocate for the petitioner. Shri H.S. Sidhu, Addl. Advocate General, Punjab. Shri Gurpreet Singh, Advocate for respondent No. 3 Shri Sandeep Khunger, Advocate for respondent No. 4 3. CWP No. 6225 of 2007 Kuldeep Singh Khaira .......... Petitioner versus Union of India and others ........... Respondents CWP No. 7893 of 2002 2 Present: Shri A.P.S. Shergill, Advocate for the petitioner. Shri K.K. Bansal, Advocate for respondent No.1 Shri H.S. Sidhu, Addl. Advocate General, Punjab for respondents No.2 to 5. Shri Randhir Singh, Addl. Advocate General, Haryana. Ms. Jaishree Thakur, Advocate for respondents No. 4 to 7 Shri S.M. Sharma, Advocate. 4. CWP No. 7493 of 2007 Shri Guru Gobind Singh Medical Institute of and Hospital of Electropathy and another .......... Petitioners versus Union of India and others ........... Respondents Present: Shri Deepak Sibal, Advocate for the petitioners. Shri Onkar Singh Batalvi, Advocate for respondent No.1 Shri H.S. Sidhu, Addl. Advocate General, Punjab for respondents No.2 to 4. Shri Gurminder Singh, Advocate, for respondent No. 5 5. CWP No. 13253of 2007 Electrohomeopathic Doctor’s Association Punjab .......... Petitioner versus State of Punjab and others ........... Respondents Present: Shri R.S. Bains, Advocate for the petitioner. Shri H.S. Sidhu, Addl. Advocate General, Punjab. Shri Onkar Singh Batalvi , Advocate for respondents No.1 to 3 Shri Gurminder Singh, Advocate, for respondent No. 4 CWP No. 7893 of 2002 3 6. CWP No. 7057 of 2009 Tejinder Singh .......... Petitioner versus Union of India and others ........... Respondents Present: Shri R.S. Bajaj, Advocate for the petitioner. CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? ***** HEMANT GUPTA, J. This order shall dispose of Civil Writ Petition Nos. 7893 of 2002, 3261 of 2005, 7493, 13253 of 2007 and 7057 of 2009 challenging the decision of the Central Government dated 25.11.2003 and the directions issued by the Punjab Government on 29.10.2004, 1.3.2007 and consequent proceedings initiated against the petitioners either for practising the Electro-homeopathy system of medicine and/or establishing the institutes imparting courses in Electro-homeopathy system of medicines. Civil Writ Petition No. 6225 of 2007 is a writ petition filed in public interest claiming action against the institutes imparting education in Electro- homeopathy system of medicines. For the facility of reference, writ petitions filed on behalf of the institutes claiming recognition and the right of the individuals to practise in CWP No. 7893 of 2002 4 Electropathy system of medicine shall be called ―the petitioners‖, whereas the petition filed in public interest as well as the State Governments, Central Government etc. shall be referred to as ―the respondents‖. It is also undisputed that Electropathy or Electro-homeopathy is one and the same system of medicine. Some background & Facts A Division Bench of this Court in CWP No. 1696 of 1997 vide an interim order dated 4.11.1997 directed the State Government to weed out unregistered medical practitioners who are engaged in providing medical care without proper registration and appropriate qualifications. On 13.10.1998, this Court granted six months time to the respondents to implement the directions given earlier on 4.11.1997 while finally disposing of the matter. In pursuance of said directions, a circular was issued by the Director, Health and Family Welfare, Punjab on 12.3.1999, to all the Civil Surgeons in the State of Punjab, that action is required against the so called self styled Doctors under section 15 of the Indian Medical Council Act, 1956 and under section 26 of the Drugs and Cosmetics Act, 1950. It was circulated that if it is necessary, then help of the Station House Officers of the concerned area be taken to check unregistered medical practitioners. By another circular dated 17.10.2000, it was conveyed that if any unregistered medical practitioner is found doing medical practise, disciplinary action would be taken against the concerned medical officer. Electro-homeopathy Doctors Association Punjab filed a writ petition challenging the circular dated 17.10.2000. Learned counsel for the State, made a statement in the said writ petition on 4.3.2002 to the effect that as per impugned instructions, action is required to be taken against those practising modern system of medicine without requisite qualification and registration under the provisions of the Indian Medical Council Act, 1956, and that the members of the petitioner Association are not to be affected by the impugned circular. The writ petition was CWP No. 7893 of 2002 5 disposed of in terms of the statement made by the learned State counsel. Thereafter, the Punjab Government on 25.03.2002 issued a circular to the effect that a practitioner doing practise in Electro-homeopathy are not covered under the instruction issued on 17.10.2000. The Government of India, Ministry of Health and Family Welfare, passed an order on 25.11.2003 to the effect that Electropathy / Electro-homeopathy are not recognized systems of medicines and the State Governments were directed to give wide publicity to the said decision of the Government of India. It was directed that the institutes under the State / Union Territory are not to grant any degree / diploma in the stream of medicines which have not been recommended for recognition. The term ―Doctor‖ can be used by the practitioners of recognized system of medicine only. As a consequence of the said decision of the Central Government, the Central Council of Homeopathy issued a circular on 30.12.2003, to all the State Councils and the State Governments to comply with the above orders of Government of India. On 5.4.2004, the Punjab Homeopathy Council decided in its meeting to request all the Administrative Heads/ Deputy Commissioners / Senior Superintendents of Police / Sub Divisional Magistrates/ Deputy Superintendents of Police to implement / comply the orders of the Government of India. The Government of Punjab issued a circular on 29.10.2004 to take necessary action against the Electropathy and Electro-homeopathy institutions and clinics operating in the areas under their respective jurisdiction. Punjab Government again issued a circular on 1.3.2007 to all the Deputy Commissioners and Senior Superintendents of Police to take necessary action against Electropathy/ Electro-homeopathy institutes and clinics operating in the area as such stream of medicines have not been recommended for recognition and that the term ―Doctor‖ is to be used by the practitioners of recognized systems of medicine only. CWP No. 7893 of 2002 6 The right to practise Electro-homeopathy/ Electropathy was raised before the Delhi High Court in CWP No. 4015 of 1996 titled Wing Commander (Retd) M.M. Sethi vs. Ministry of Human Resources. In the said writ petition, Delhi High Court on 18.11.1998 issued various directions including a direction to the Central / State Governments to consider making legislation prescribing grant of licence to the existing and new institutes conducing course in Electropathy and other alternative systems of medicines. It also directed that the private respondents before the said court and such like institutes shall not award any degree in the courses conducted by them. The said Division Bench of Delhi High Court has held that in terms of Section 22 of the University Grants Commission Act, 1956, no educational institute in the country, except the University as defined in the said Act, is entitled to award degrees. Therefore, it was held that it is not permissible to award degrees by any of the private respondents in the above-said writ petitions. The Special Leave Petition against the said order was dismissed. In pursuance of the above said direction of the Delhi High Court, a Standing Committee of Experts on Alternate Systems of Medicine under the Chairmanship of Director General, Indian Council of Medical Research, considered the issue of grant of recognition to Electropathy or Electro-homeopathy as a system of medicine. The said Expert Committee considered the essential criteria described as (1) Fundamental principles of health and disease must differ in concepts from those of recognized systems in the country. It should be a comprehensive systems of health care and not restricted to few diseases only; (2) Substantial literature on concepts, aetiology diagnosis and management of disease like textbooks including pharmacopoeia and formularies and preferably journals, if any should be available in the country of origin, and also in other countries, and in the countries where practised; (3) Whether it is recognized as a system of medicine in the country of origin and / or in any other country where it is currently practised; (4) Scientifically validated information on modalities of treatment may be by CWP No. 7893 of 2002 7 drugs, devices or any other methods such as diet, massage, exercise and how they differ from those in the existing approved systems of medicine; and (5) From the safety and efficacy point of view standardize methods of preparation of drugs/ devices used in the therapy and quality control of the same should be available. It also considered criteria described as desirable i.e. (1) Prescribed criteria for admission, curricula and training and details of such course and list of institutions in the country of origin/ countries where it is currently recognized system of medicine; (2) Details of continuing medical education programmes and available research / training facilities; and (3) To examine as to whether it can be taught in the recognized Institutions to produce Doctors / Practitioners in this system of medicine. The Committee in its detailed report in respect of Electro-homeopathy system of Medicine concluded as under:- ― As the available literature is very scanty and the books prescribed for the NEHM course are all written by a few authors, translated into some Indian language such as Punjabi, Hindi and Urdu, the representative of NEHM, Shri O.P. Sharma, Registrar was called to elaborate on the source, publishers, year and edition of books etc. As it was not possible for him to give an instant reply, he was asked to submit the same to the Council within a week’s time. The same was submitted on 23rd February, 2001 which was examined by the Member Secretary, Sub-Committee Chairman Dr. B.N. Dhawan and the Chairman Dr. N.K. Ganguly. In the absence of any standard text books, references, pharmacopoeia etc offering teaching and training leading to Degrees / Diplomas under unrecognized systems/ institutions was not found appropriate by the Committee. It is not recognized as a system anywhere in the world. There is no uniqueness in the concept or modalities of treatment. Hence it is suggested that Government should take appropriate steps to close down such institutions and give wide publicity to such decision to protect the public from such unauthorized activities. After examining the information submitted on the basis of the guidelines issued, the Committee came to an unanimous decision that CWP No. 7893 of 2002 8 the available information on the basic concept, aetiopathology, management and prevention of diseases, available literature and pharmacopoeia, teaching and training programmes, available infrastructure for academic and therapeutic purposes etc, is not sufficient to give recognition to Electrohomeopathy / Electropathy as a new comprehensive system of medicine‖. It has further come on record that National Council for Electro- Homeopathy Medicines (NEHM) submitted documents before the said expert committee for recognizing its functioning on the lines of Indian Medical Council Act, 1956, as a fifth medical system in India on 11.02.2000, the other four medical system being Allopathic, Homeopathic, Ayurvedic and Unani. The Haryana Electro-homeopathy/ Electropathy Medical Association earlier filed a Civil Writ Petition No. 19999 of 2001 before this Court challenging circulars dated 27.02.1999 and 30.11.1999 issued by the Government of Haryana directing all the District Ayurvedic Authorities to take action against all those committing offences being committed under the Ayurveda and Unani Practise Act, 1963 and against those practising Ayurveda in unauthorized way and without registration or without requisite qualification. In the said writ petition, it was pointed out by the learned State Counsel that the Central Government has taken a decision on two occasions which is adverse to the petitioner i.e. 19.01.2003 and 1.11.1996. It was pointed out by the learned counsel for the respondent that Central Government is reconsidering the entire matter in view of the directions issued by the Delhi High Court in CWP No. 4015 of 1996. In view of the said stand of learned counsel for the respondent, the writ petition was disposed of with a direction to the Central Government to decide the writ petition as a representation. In pursuance of the said direction, Government of India passed an order on 11.10.2004. It was declared that a person whose name is borne on the Indian Medical Council Register or under the Indian Medicine Central Council Act, 1970 and under the Homeopathy Central Council Act, 1970 can practise and the CWP No. 7893 of 2002 9 institutions impart education in relevant system of medicine and award degrees. It was also declared that Electropathy is not recognized as a system of medicine by any of these Councils, consequently, no institute can award degree nor any one with unrecognized degree or diploma can be allowed to practise as a system of medicine. It was also stated that two Expert Committees had not recommended Electropathy as a system of medicine. The Committee of Experts constituted under the Director General of Indian Council of Medical Research had also considered the desirability of recognition of Electropathy as a system of medicine consequent to the directions of the High Court of Delhi but the said Committee did not recommend recognition to any such alternative system of medicine. The recommendations of the Committee have been accepted by the Government and order dated 25.11.2003 was issued. In short reply filed by the Union of India in CWP No. 3261 of 2005, it has been averred that an Inquiry Committee was constituted in September 1988 under the Chairmanship of Director General, Indian Council of Medical Research to examine the feasibility of granting recognition to the so called system. The said Committee did not recommend the grant of recognition to this system in their report submitted in December 1990. Subsequently, to fulfill an assurance made in the Parliament while discussing a Private Members Bill seeking recognition to the system, an Experts Committee was constituted under the Chairmanship of Dr. S.D. Sharma, the then Additional Director General in the Director General of Health Services. The said Committee did not recommend grant of recognition to this system in its report submitted in November 1991. On 19.01.1993, an order was passed by the Secretary (Health) disposing of the representation received for recognition of Electro-homeopathy / Electropathy. Such systems of medicines have not been recognized for the reason given in the order. A copy of the said order has been appended as Annexure R-1 with the written statement. Subsequently, in terms of the directions of the Delhi High Court, a Standing Committee of experts on CWP No. 7893 of 2002 10 Alternate System of Medicine, considered the claim of the petitioners for recognization of the system but it has not recommended grant of recognition of Electropathy vide order dated 25.11.2003 which is subject matter of challenge in the present writ petitions. Reliance is also placed on two orders of Delhi High Court in CWP 6287-88 of 2004 – Electro Homeopathic Practitioners Association of India Vs. Union of India dated September 27, 2004 and order dated November 17, 2004 in WP (c) 4092 of 1993 – Academic Medical & Social Welfare Society Vs. Union of India , wherein identical issue as sought to be raised in the present petition has been answered against the petitioners. Arguments Learned counsel for the writ petitioners have firstly argued that the Central Government has passed an order on 25.11.2003 without taking into consideration the relevant and complete information on the subject of Electropathy or Electro-homeopathy and without giving opportunity to the effected persons, therefore, the said order is required to be set aside for reason of denial of principles of natural justice as well. Learned counsel for the writ petitioners have also vehemently argued that Electropathy or Electro-homeopathy system of medicines is a scientific and well developed system of medicine. Indian Medical Council Act, 1956; Indian Medicine Central Council Act, 1970; and Homeopathy Council Act, 1970 permit practise of specific systems of medicines. Such systems of medicines alone are regulated and controlled by the aforesaid legislations. It is contended that the petitioners have a fundamental right to impart knowledge in alternative systems of medicines i.e., Electropathy or Electro-homeopathy, as such system does not contravene any of the three above-mentioned statutes or for that matter any other statute. Since there is no statute prohibiting practising or controlling the imparting of education of Electropathy or Electro-homeopathy system of medicines, the same CWP No. 7893 of 2002 11 cannot be controlled or regulated by the Central or State Government by an executive order as any restriction in respect of a right to practise a profession can be only by a suitable law enacted by the Parliament or by a competent State Legislature. The right to practise any profession can only be regulated in terms of ―Law‖ enacted in terms of clause (6) of Article 19 of the Constitution. There fore, the executive orders of the Central Government dated 25.11.2003 and for that matter the subsequent orders of the State Government cannot impose restrictions on the right of the petitioners to practise such system of medicine guaranteed to the petitioners under Article 19(1)(g) of the Constitution of India. Learned counsel for the petitioners in support of their arguments has relied upon a number of judgments. Particular reference was made to Mohammad Yasin Vs Town Area Committee, Jalalabad AIR 1952 SC 115; Sri. Dwarka Nath Tewari and others vs. State of Bihar and others, 1959 SC 249; Kharak Singh vs. State of U.P., AIR 1963 SC 1295; D. Bhuvan Mohan Patnaik and others vs. State of A.P. and others, AIR 1974 SC 2092; and Godawat Pan Masala Products I.P. Ltd., and another vs. Union of India and others, (2004)7 SCC 183. On the other hand, Mr. Batalavi representing the Union of India, relied upon New Delhi Municipal Council Vs Tanvi Trading And Credit Private Limited and Others (2008)8 SCC 765. He also referred to Division Bench judgment of Allahabad High Court reported as The Electro Homoeopathic Practitioners Association of India and another vs. A.P. Verma, Chief Secretary, Government of U.P. and others, 2004 Allahabad Law Journal 2862, wherein it was held as under:- ―32. Thus, whether it is modern medicine or ancient medicine, the practitioners thereof must hold the qualifications prescribed by the Act or Rules made thereunder and be registered under the Act to practise. 33. Similarly, in the Homeopathy Central Council Act, 1973 only a person who possesses a recognized medical qualification and is CWP No. 7893 of 2002 12 enrolled in the State Register or the Central Register of Homeopathy can practise homeopathy in the State. Under section 15(4) the same punishment has been provided for violation of Section 15(2). 34. A perusal of the above provisions shows that Parliament has clearly provided that only those holding a certificate granted by the concerned statutory authority can practise medicine, whether it is modern or ancient medicine. Electro-homeopathy is not recognized in any of the aforesaid Acts. Hence in our opinion it is nothing but quackery which is not permissible by law. The appeal is, therefore, dismissed. 35. The State authorities are directed to restrain the practise or teaching of electro-homeopathy throughout U.P.‖ Mr. Sidhu, learned Additional Advocate General, Punjab, representing the State of Punjab, has also referred to Single Bench judgment of Andhra Pradesh High Court reported as M/s Private Medical Practitioners’ Association of A.P. vs. Government of Andhra Pradesh and others, AIR 2003 Andhra Pradesh 1 as well as Single Bench of Allahabad High Court reported as Charan Singh and others vs. State of U.P and others, AIR 2004 Allahabad 373. Learned counsel has made reference to the Commentary on Constitution of India by Jagdish Swarup published by the Modern Law Publications in the year 2007 to contend that the medical profession requires more careful preparation by one who seeks to enter it. It has to deal with all those subtle and mysterious influences upon which health and life depend and requires not only a knowledge of the properties of vegetables and mineral substances but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Everyone may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill, which he possesses. Reliance must be placed upon the assurance given by his licence, issued by an authority competent to judge in that respect, that he possesses the requisite CWP No. 7893 of 2002 13 qualifications. He also referred to a judgment of Supreme Court of United States of America reported as Hawker vs. State of New York, 170 US 189 (1898), wherein it was quoted with approval that health, limb and life should not be left to the treatment of ignorant pretenders and charlatans. Mr. Sidhu further contended that right to practise medicine is not an absolute right as such right affects public health and, therefore, a practitioner who wishes to practise must strictly fall within one or the other regulatory statutes. If he does not fall within any of the regulatory statutes, he is not entitled to practise medicine as by necessary implication all other systems of medicines are deemed to be excluded. It is also argued that the order dated 25.11.2003 was passed by the Central Government in terms of the directions of the Division Bench of the Delhi High Court and such order is not merely an executive order but an order passed in exercise of executive power of the State in terms of Article 73 of the Constitution of India. It, thus, validly prohibits practise in Electropathy system of medicine. In view of the above, we are of the opinion that the following questions arise for consideration in these writ petitions for our opinion. 1. Whether the decision of the Central Government communicated on 25.11.2003 can be said to be illegal, arbitrary or void on account of violation of principles of natural justice? 2. Whether Electropathy or Electro-homeopathy system of medicine is a modern scientific medical system and falls within the scope of Indian Medical Council Act, 1956? 3. Whether the decision of the Central Government dated 25.11.2003 or of the State Government is the decision taken by the executive in exercise of the executive powers of the State if the Indian Medical Council Act, 1956 is not applicable to the Electropathy or Electro-homeopathy system of medicine? CWP No. 7893 of 2002 14 We shall now deal with the first question that the order of the Central Government on 25.11.2003 was passed without giving an opportunity to the affected persons and is therefore violates the principals of natural justice. In CWP No. 7493 of 2007, the petitioners have relied upon a detailed representation submitted by the N.E.H.M of India, a representative body of Electro-homeopaths, which has sought recognition of such system of medicine. The Committee considered the representation of the representative body of Electro-homeopaths and made its recommendations on the basis of such representation and other material collected and available before them. In considering recognition to a system of medicine, it is neither feasible nor practicable to hear all those who were practicing