IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.01.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.402, 403 and 5239 of 1999 and W.M.P. No.7662 of 1999 The Indian Siddha MedicalAssociation, rep. by its President, Sri. K. Gunasekaran .. Petitioner in W.P. No.402/1999 S. Rajaniganth .. Petitioner in W.P. No.403/1999 Tamil Nadu Siddha Doctor's Association, rep. by its Executive Member, Dr. Raj Kumar, P. .. Petitioner in W.P. No.5239/1999 -vs- 1. Tamil Nadu Siddha Medical Council, rep. by its President, Anna Hospital Campus, Arumbakkam, Chennai – 600 106. 2. The Registrar, Tamil Nadu Siddha Medical Council, Anna Hospital Campus, Aumbakkam, Chennai – 600 106. 3. Government of Tamilnadu, rep. by the Secretary, Health and Family Welfare Department, Fort St. George, Chennai – 9. 4. Tamil Nadu Board of Indian Medicine, rep. by its Registrar, Anna Hospital Campus, Arumbakkam, Chennai – 600 106. 5. Central Council of Indian Medicine, rep. by its Registrar, New Delhi. 6. Government of India, rep. by the Secretary, Ministry of Health and Family Welfare, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 7. Tamil Nadu Dr. M.G.R.Medical University, rep. by its Registrar, Guindy, Chennai. ... Respondents in W.P. Nos.402&403/1999 1. Government of India, rep. by the Secretary, Ministry of Health and Family Welfare, New Delhi. 2. Government of Tamilnadu, rep. by its Secretary, Ministry of Health and Family Welfare Fort St. George, Chennai – 600 009. 3. Central Council of Indian Medicine, rep. by its Registrar, No.61-65, Institution Area, Janak puri, New Delhi – 110 058. 4. Tamil Nadu Board of Indian Medicine, rep. by its Registrar, Anna Government Hospital, Arumbakkam, Chennai – 600 106. 5. Tamil Nadu Siddha Medical Council, rep. by its President, Anna Govt. Hospital, Arumbakkam, Chennai – 600 106. 6. Tamil Nadu Siddha Medical Council, rep. by its Registrar, Anna Govt. Hospital, Aumbakkam, Chennai – 600 106. 7. Tamil Nadu Dr. M.G.R.Medical University, rep. by its Registrar, Guindy, Chennai. ... Respondents in W.P. No.5239/1999 PRAYER in W.P. No.402/1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration, declaring that the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (Act 34 of 1997) and the consequential G.O. No.70 dated 12.2.1998 (Department of Health and Family Welfare, Tamilnadu) passed in pursuance of the enactment of the abovesaid impugned Act by the 3rd respondent as null and void, ultravires and unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P. No.403/1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration, declaring that the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (Act 34 of 1997) and the consequential G.O. No.70 dated 12.2.1998 (Department of Health and Family Welfare, Tamilnadu) passed in pursuance of the enactment of the abovesaid impugned Act by the 3rd respondent as null and void, ultravires and unconstitutional, insofar as petitioner is concerned. Prayer in W.P. No.5239 /1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration, declaring that the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (Act 34 of 1997) and the consequential G.O. No.70 dated 12.2.1998 (Department of Health and Family Welfare, Tamilnadu) passed in pursuance of the enactment of the abovesaid impugned Act by the 2nd respondent as null and void insofar as petitione-association are concerned. For Petitioner : Mr. R. Muralidharan For Respondents : Mr. P. Rajagopal For R2 (W.P. Nos.402 & 403 of 1999) For R6 (W.P. No.5239 of 1999) Mr. A. Arumugam, Spl. Govt. Pleader For R3 (W.P. Nos.402&403 of 1999) For R2 (W.P. No.5239/1999) O R D E R The first two writ petitions were admitted on 12.1.1999 and the third writ petition was admitted on 31.3.1999. The Miscellaneous application filed by the petitioners for grant of interim stay on the impugned legislation and the stay of the impugned G.O.70 Department of Health and Family Welfare dated 12.2.1978 was dismissed by a reasoned order dated 20.9.2000. In respect of the earlier two miscellaneous petitions, the prayer for interim relief was dismissed on 27.12.2002. In the subsequent application for interim stay filed by them, only notice was ordered. Pursuant to the notice, the second and fifth respondents have filed counter affidavits. In view of the inter- connectivity among the three writ petitions, they were heard together and common order is being passed. 2. The Tamil Nadu Legislature passed an Act viz. The Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (For short "TN Siddha Act"). The said Act provides for establishment of Tamil Nadu Siddha Medical Council (For short "State Council"). Under Section 2(14), the Act provides for prescription of a Schedule. Section 34 of the TN Siddha Act reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ ''The Government may, if they are satisfied on the report of the Council or otherwise that the course of study and examination prescribed by any University or an institution or authority referred to in sub- section (1) of section 27 conferring, granting or issuing any degree, diploma, licence, certificate or any other like award--- (i) included in the Schedule are not such as to secure the possession by persons obtaining such degree, diploma, licence, certificate or any other like award of the requisite knowledge and skill for the efficient practise of Siddha medicine, or (2) not included in the Schedule are such as to secure the possession by the persons aforesaid of such knowledge and skill by notification direct that such degree, diploma, licence, certificate or any other like award --- (a) in a case falling under clause (1), be removed from the Schedule, or (b) in a case falling under clause (2), be included in the Schedule, and upon the issue of such notification, the Schedule shall be deemed to have been amended accordingly." 3. The schedule prescribed under Section 34 read with Section 214 the names of the University, respective Boards of Examinations as well as the recognized medical qualifications. The present case is concerned with only Part II, Part III and Part IV, which may be reproduced as under:- 1 2 3 PART II 2. Government College of Indian/Indigenous/ Integrated Medicine, Chennai. Graduate of the College of Indian/Indigenous/Integrated Medicine. G.O.I.M. https://hcservices.ecourts.gov.in/hcservices/ 1 2 3 PART III (a) University of Madras (b) Madurai-Kamaraj University, Madurai -do-- -do-- (c) Tamil Nadu Dr.M.G.R. Medical University, Chennai Bachelor of Indian Medicine (Siddha) Bachelor of Indian Medicine (Siddha) Doctor of Medicine (Siddha) Bachelor of Siddha Medicine and Surgery Bachelor of Siddha Medicine and Surgery B.I.M. B.I.M. M.D. (Siddha) B.S.M.& S. B.S.M.& S. PART IV 4. Central Board of Indigenous Medicine, Chennai or Tamil Nadu Board of Indian Medicine. Certificate granted to traditionally trained or hereditary practitioners of Indian Medicine and Enlisted Siddha Medical Practitioners R.S.M.P. E.S.M.P. 4. The two writ petitioner-Association as well as one Siddha Medical Practitioner are challenging the power of the State enacting legislation of this sort. According to them, there is already a central legislation i.e.) Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970) is fully occupying the field. If the State has power to prescribe qualification for grant of educational degrees and diplomas to be recognised by the Universities and Medical Council, then it will whittle down the standard of education and also usurp the power of the Central Council from dealing with such issues. 5. A reference is also made to the statement of objects and reasons found in TN Siddha Act. It reads as follows:- ''At present there is no law to provide for the development of the Siddha System of medicine and for the regulation of the practitioners of the Siddha Medicine in the State of Tamil Nadu. It has been considered necessary to develop the Siddha System of Medicine and to register the practitioners of Siddha Medicine in the State. It has also been considered necessary to establish a Council called the Tamil Nadu Siddha Medical Council for the purpose." 6. It was stated by them that the objects and reasons found in the enactment is purely a misstatement. The Central Act as well as the Central Council which was enacted in the year 1970 and brought into force from 1976 is only intended to achieve the said object and https://hcservices.ecourts.gov.in/hcservices/ therefore, there was neither any necessity for enacting state legislation nor there is any power vested on the state legislature to bring such an enactment. It is necessary to refer to the statement of objects and reasons which enable the Centre to make a law on the subject. The Indian Medicine Central Council Act, 1970 (the Central Act) provides for constitution of a Central Council of Indian Medicine (CCIM) and the maintenance of a Central Register of Indian Medicine and for matters connected therewith. This Act was enacted by Parliament and came into force on 21-12-1970. Introduction to this Act reads as under:- “To consider problems relating to the Indian systems of Ayurveda, Siddha and Unani medicine and Homoeopathic system of medicine a number of Committees were appointed by the Government of India, which had recommended that a statutory Central Council on the lines of the Medical Council of India for modern system of medicine should be established for the proper development of these systems of medicine. In June 1966 the Central Council of Health at its 13th meeting, while discussing the policy on Ayurvedic education, recommended the setting up of a Central Council for Indian System of Medicine to lay down and regulate standards of education and examinations, qualifications and practice in these systems. On the basis of the above recommendations the Indian Medicine Central Council Bill was introduced in Parliament.” 7. The learned counsel for the petitioners pointed out various provisions of the Central Act. The constitution of the Central Council found under Section 3 takes into account the interest of each State since the Central Council permits 5 members of each State to be in the Council. Section 14 deals with recognition of medical qualification granted by various medical institutions in India and they are prescribed under Second Schedule to the Act. Items 93 to 98 deal with the list of institutions operating in Tamil Nadu and also recognised medical qualifications have been prescribed. With reference to the medical qualification in Siddha system, serial Nos.97 and 98 deal with the recognised medical qualifications approved by the Central Council and they are as follows:- 1 2 3 4 5 97 University of Madras, Madras Ayuveda-Shiromani Bachelor of Indian Medicine (Siddha) B.I.M. (From 1930) (From 1965) https://hcservices.ecourts.gov.in/hcservices/ 1 2 3 4 5 98 Madurai Kamaraj University, Madurai Bachelor of Indian Medicine (Siddha) Doctor of Medicine (Siddha) Bachelor of Siddha Medicine & Surgery B.I.M. M.D. (Siddha) B.S.M. & S. From 1971 onwards From 1975 onwards From 1982 onwards 8. It is also submitted that if any new qualification to be recognised on a request made by a University, Board or other medical institutions, which are not included in Second Schedule, must apply to the Central Government, which, after consulting the Central Council will amend the Second Schedule by adding those qualifications. The power to withdraw recognition of an institution vests with the Central Council. In the same way, the prescription of minimum standards of education in Indian medicine shall vest only with the Central Council. The Central Council maintains a Central Register of list of practitioners. Therefore, it is not open to the State to pass a legislation usurping the power of the Central Government. 9. The State Government unmindful of its limited role had also constituted a State Council by virtue of the impugned order in G.O.Ms.No.70, Health and Family Welfare Department, dated 12.2.1998. The petitioner in W.P. No.402 of 1999 also produced a copy of letter dated 29.12.1998 sent by the Central Council (5th respondent) to the Association, enclosing a copy of the letter written to the State Government dated 15.12.1998. 10. The Central Council (5th respondent) has also filed a counter affidavit. In paragraphs 7 and 14, it is averred as follows:- " 7. ..... the Tamil Nadu Siddha Medical Council, the First Respondent herein – formed by the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 – is in no way empowered either to regulate the system of Siddha Medicine or to issue any certificate of passing the Siddha Degree Course Examination. CCIM formed by the IMCC Act 1970 is the only body that has control and regulation over education of Indian Systems of Medicine all over the nation. No other body than CCIM can have any powers in this regard. 14 .... I generally submit that many of the provisions contained in this State Act i.e. Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997, are quite contrary to the provisions already made under the Central Act i.e. the IMCC Act, 1970. Therefore, such contrary provisions render the State Act liable to be struck down." 11. On the contrary, the second respondent-State Siddha Medical Council had filed a counter affidavit dated 24.2.2003, refuting the stand of the fifth respondent-Central Council. The following averments made in paragraphs 4 and 5 are extracted below:- " 4. ........ The Government of Tamil Nadu have enacted the Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997. The said Act is constituted not only for the registration of Siddha Practitioners. It is for the development of Siddha Practitioners and Siddha Systems. Provision have also been included in the Act for the following purpose. 1) Recommend to Government to opening of new hospitels, dispensaries. 2) Prescribe and publish text books for the courses provided by the Siddha Medical Institutions. 3) Evolve norms for standardisation of Siddha Medicine. 4) Make regulations for the manufacture and sale of Siddha Medicine. 5) Unearth various siddha Medicine and formulations kept secret by hereditary pactitioners and popularise them. 6) Formulate the aims and patterns of research on scientific lines in Siddha Medicine. 7) Undertake any search or research oriented programmed. 8) Suggest new courses of study and to make regulations for such courses. 5. ........ the Indian Medicine Central Council Act has come into force only from 1-10-76. But the Tamilnadu Board of Indian Medicine is registering institutionally qualified and the https://hcservices.ecourts.gov.in/hcservices/ hereditary Indian Medical Practitioners since 1933. Therefore, the Tamilnadu Board of Indian Medicine classified the qualification as follows and issued certificates. Institutionally qualified person - A Class Non-institutionally qualified person- B Class and C Class The Tamilnadu Siddha Medical Council cannot reject the medical registration certificate issued by the Tamilnadu Board of Indian Medicine to the hereditary Siddha Medical Practitioners." 12. The leaned counsel appearing for the Tamil Nadu Siddha Council also submitted that the Central Act 48 of 1970 itself contemplate the existence of a State law providing for State Council and a State medical register. In this context, a reference is made to Section 2(b) defining the term ''Board" and Section 2(j) defining the term ''State Register". Both provisions are extracted hereunder:- " (b) "Board" means a Board Council, Examining Body or Faculty of Indian Medicine (by whatever name called) constituted by the State Government under any law for the time being in force regulating the award of medical qualifications in, and registration of practitioners of, Indian medicine. (j) "State Register of Indian Medicine" means a register or registers maintained under any law (or for the time being in force in any State regulating the registration of practitioners of Indian medicine" (Emphasis Added) 13. A reference was made to the constitution of Central Council provided under Section 3(1)(a) of the Central Act referring to the State Register. Section 3(1)(a) of the Central Act is extracted below:- " 3. Constitution of Central Council-- (1) The Central Government shall, by notification in the Official Gazette constitute for the purposes of this Act a Central Council consisting of the following members, namely:- (a) such number of members not exceeding five as may be determined by the Central Government in accordance with the provisions of the First Schedule https://hcservices.ecourts.gov.in/hcservices/ (or each of the Ayurveda, Siddha and Unani systems of medicine from each State in which a State Register of Indian Medicine is maintained to be elected from amongst themselves by persons enrolled on that Register as practitioners of Ayurveda, Siddha or Unani, as the case may be;" 14. It was also pointed out that section 17 recognizes the right of persons whose names are found in the State Register also to hold office and also to practice Indian Medicine. Section 17 (3) also provides for a saving clause and it reads as follows:- ''(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) ... ... .. (omitted) ." 15. It was also stated that the Central Register of Indian Medicine provided under section 23 must contain the names of all persons who are for the time being enrolled on any State Register of Indian Medicine and who possess any of the recognised medical qualification. Under section 27, the Central Council is bound to remove the name of a person from the Central Register if his name is otherwise removed from the State Register pursuant to the order conferred by or under any law relating to registration of practitioners of Indian medicine, which is in force in any State. 16. In the light of the above, it is submitted that there was no conflict between the Central Act and the T.N.Siddha Act. https://hcservices.ecourts.gov.in/hcservices/ 17. In opposition to the stand taken by the State, the learned counsel for the Central Council submitted that merely because the State is entitled to maintain a State Register and also to have a State Council for maintaining such Register, it does not give any authority for the State Legislature to create a law on a field which is already covered by the Central Law on the subject. Once the Central Law is enacted for the purpose of laying down co-ordination of standards on the field of Siddha medicine, only that law will prevail over the State law. In this context, the learned counsel for the petitioner relied upon the judgment of the Supreme Court in Medical Council of India -vs- State of Karnataka and others reported in (1998) 6 SCC 131. In that case, the Supreme Court upheld the validity of the power of the Medical Council of India in framing regulations with reference to the admission of students including the intake of the number of students to be admitted. To that extent, it was held that the State Law providing for the issues covered by the Central Law was repugnant to the Central Law and they were held to be unconstitutional. 18. Following this judgment, a Division Bench of this Court in Dharma Medical and Research Charitable Trust -vs- Government of India reported in 2006-2-L.W.346 considered the scope of the Indian Medicine Central Council Act, 1970 vis-a-vis the State enactment, viz., Dr.MGR Medical University Act. In paragraphs 5, 10 and 13, it was held as follows:- ''Para 5. In the instant case, both the State Act and the Central Act have been enacted in exercise of the powers conferred by Entry 25 of List III. Since Parliament and State Legislatures are empowered to make laws on the same subject, the possibility of repugnancy between a law made by Parliament and a law made by a State Legislature under Entry 25 of List III cannot be excluded. Article 254 of the Constitution makes a provision for dealing with such a situation. Article 254(1) gives overriding effect to the provisions of a law made by Parliament, which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List II and if a law made by the legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the legislature of the State is to be treated as void to the extent of repugnancy. Under Clause (2), the law made by the legislature of a State with respect to one of the matters enumerated in List III will prevail over the provisions of an earlier law made by Parliament or an existing law with respect to that matter if the law made by the legislature of the state has been reserved for consideration by the https://hcservices.ecourts.gov.in/hcservices/ President and has received his assent. The proviso to clause (2) curtails the ambit of clause (2) by providing that Parliament can enact a law with respect to the same matter on which the State legislature has made the law and by such law Parliament can add to, amend, vary or repeal the law made by the legislature of a State. Para 10. It would thus be clear that in enacting Section 13A, Parliament has made a complete and exhaustive provision covering the entire field for establishing a new medical college and for its continuance. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by the Parliament. As per sub-section (1) of Section 13A read with Explanation 2, inserted by the Amendment Act 52 of 2002, the admission capacity has to be fixed by the Central Government from time to time for being admitted to such course of training. Therefore, the University had clearly erred in denying Sanction to the petitioner college for the intake of 40 students which has been duly approved by the Central Council. Para 13. The law laid down by the Supreme Court with reference to the provisions of the Medical Council Act is squarely applicable to the medical colleges governed by the Indian Medicine Council Act, 1970....." 19. Though the counsel for both sides made reference to the Central Act, they were unaware of the amendments brought into the Central Act by the Indian Medicine Central Council (Amendment) Act, 2003 (Central Act 58 of 2003) with effect from 07.11.2003. By the said amendment, sections 13A, 13B and 13C together with their sub-sections were introduced. They read as under:- “13-A. Permission for establishment of new medical college, new course of study, etc.—(1) Notwithstanding anything contained in this Act or any other law for the time being in force,— (a) no person shall establish a medical college; or (b) no medical college shall— (i) open a new or higher course of study or training, including a postgraduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or https://hcservices.ecourts.gov.in/hcservices/ training including a postgraduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1.—For the purposes of this section, ‘person’ includes any university or a trust, but does not include the Central Government. Explanation 2.—For the purposes of this section, ‘admission capacity’, in relation to any course of study or training, including postgraduate course of study or training, in