BAHARUL ISLAM & ORS. versus INDIAN MEDICAL ASSOCIATION AND ORS.
[2023] 9 S.C.R. 917, Supreme Court of India, 2023
Outcome: Unknown
Segment: Ratio
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BAHARUL ISLAM & ORS.
v.
THE INDIAN MEDICAL ASSOCIATION AND ORS.
(Civil Appeal Nos. 502-503 of 2023)
JANUARY 24, 2023
[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
Assam Rural Health Regulatory Authority Act, 2004 –
Constitutionality of – Legislative Competency of the State – Assam
State legislature enacted the Assam Rural Health Regulatory
Authority Act, 2004 – Said Act provides for the establishment of a
regulatory authority to register the Diploma holders and to regulate
their practice – State Act in conflict with Central Act (Indian Medical
Council Act, 1956) – Writ Petition challenging the Constitutionality
of the Act – High Court allowed the Writ petition by holding that the
Act, 2004 was unconstitutional as the State Act was in conflict with
the Central Act – High Court observed that the power and scope of
the State to legislate under Entry 25 of List III of the Seventh
Schedule is very limited and is only in respect of a field unoccupied
by a Central Act – Held: Prescription of minimum standards for
medical education, authority to recognise or de-recognise an
institution etc., are areas over which exclusive legislative competence
lies with the Parliament, under Entry 66 of List I – The State
Legislatures, on the other hand, under Entry 25 of List III, possess
legislative competence to legislate with respect to all other aspects
of education, except determination of minimum standards and co-
ordination – In view of the Indian Medical Council Act, 1956
and
the Rules and Regulations made thereunder, the Assam Rural Health
Regulatory Authority Act, 2004, declared to be null and void as
State Legislature not having the legislative competence to enact the
said Law – The State Legislature has no legislative competence to
enact a law which is in conflict with the law setting the standards of
medical education in the context of modern medicine or allopathic
medicine, which has been determined by Parliamentary Legislation
as well as the Rules – Constitution of India – Seventh Schedule –
List I, Entry 66 and List III, Entry 25.
[2023] 9 S.C.R. 917 : 2023 INSC 81
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Assam Community Professionals (Registration and
Competency) Act, 2015 – Constitutionality of – Power of Legislature
– To overrule a Judicial Decision – High Court vide the impugned
order allowed Writ petition holding that the Assam Rural Health
Regulatory Authority Act, 2004 enacted by the State legislature was
unconstitutional as the Act was in conflict with the Central Act
(Indian Medical Council Act, 1956) and State Legislature not having
the legislative competence to enact the said Law – Meanwhile, the
State passed the Assam Community Professionals (Registration and
Competency) Act, 2015 – Held: The Legislature cannot directly
overrule a judicial decision – But when a competent Legislature
retrospectively removes the substratum or foundation of a judgment
to make the decision ineffective, the said exercise is a valid
legislative exercise provided it does not transgress on any other
constitutional limitation – The power of the sovereign legislature to
legislate within its field, both prospectively and retrospectively
cannot be questioned – It would be permissible for the legislature
to remove a defect in earlier legislation pointed out by a constitutional
court in exercise of its powers by way of judicial review – The Assam
Community Professionals (Registration and Competency) Act, 2015,
enacted pursuant to the judgment of the High Court, is a valid piece
of Legislation as it removed the basis of the impugned
judgment
passed by the High Court – The 2015 Act is also not in conflict with
the IMC, Act, 1956 – This is because the Central Act namely, IMC,
Act, 1956 does not deal with Community Health Professionals who
would practise as allopathic practitioners in the manner as they
were permitted to practise under the Assam Rural Health Regulatory
Authority Act, 2004, in rural areas of the State of Assam – Hence,
by a separate legislation the Community Health Professionals have
been permitted to practise as such professionals – The said
legislation of 2015 is not in conflict with IMC, Act, 1956 and the
rules and regulations made thereunder – Hence, the Act of 2015 is
not hit by Entry 66 of List I of the Constitution and is within the
legislative competence of the State Legislature under the Seventh
Schedule of the Constitution.
Constitution of India: Seventh Schedule – Art. 245, 246 &
254 – Interplay between Entry 66 of List I and Entry 25 of List III –
Held: The question of invasion into another legislative territory
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has to be determined by substance and not by degree – Where one
Entry is made ‘subject to’ another Entry, all that it means is that out
of the scope of the former Entry, a field of legislation covered by
the latter Entry has been reserved to be specially dealt with by the
appropriate Legislature – The field of legislation covered under
Entry 25 of List III is subject to Entries 63, 64, 65 and 66 of List I –
Dual restrictions operate in the legislative competence of a State
Legislature to enact any law under Entry 25 of List III – First is, if
such a law is to be made by the State Legislature, it is always subject
to Entries 63, 64, 65 and 66 of List I or the Union List, in respect of
which only the Parliament has the power to enact a law – The second
restriction is with regard to the subject of the Entry as a whole –
When any law is made under Entry 25 of List III by a State
Legislature, the same is always subject to Entry 66 of List I – Modern
scientific medicine or allopathic medicine is within the scope of
Entry 66 of List I and not under Entry 25 of List III – In the instant
case the law made by the State Legislature is hit by the first of the
aforesaid two restrictions – Hence, the State Legislature lacked the
legislative competence to enact such a Law.
Dismissing the appeals, the Court
HELD: 1. The Assam Rural Health Regulatory Authority
Act, 2004, which is enacted by the State Legislature on the
strength of Entry 25 of List III, not only seeks to
introduce a
new course in the field of medical education, but also seeks to
regulate the profession of the candidates successfully completing
the said course. The Assam Act vests with the Regulatory
Authority constituted thereunder, the power to prescribe the
minimum standards of the course, duration of the course in
allopathic medicine the curriculum, the examination etc. Further,
it authorises the State Government to grant permission for the
opening of a medical institute. Prescription of minimum standards
for medical education, authority to recognise or de-recognise an
institution etc., are areas over which exclusive legislative
competence lies with the Parliament, under Entry 66 of List I.
The State Legislatures, on the other hand, under Entry 25 of List
III, possess legislative competence to legislate with respect to
all other aspects of education, except the determination of
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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minimum standards and co-ordination. With a view to provide a
benchmark quality of medical education, it is essential that uniform
standards be laid down by the Parliament, which are to be adhered
to by institutions and medical colleges across the country. To
this end, Entry 66 of List I has been formulated with the objective
of maintaining uniform standards of education in fields of research,
higher education and technical education. Hence, State
Legislatures lack legislative competence in the areas of
prescription of minimum standards for medical education,
authority to recognise or de-recognise an institution, etc. The
Assam Act which seeks to regulate such aspects of medical
education is therefore liable to be set aside on the ground that
the State Legislature lacks competence to legislate with regard
to the aspects enumerated hereinabove. [Para 21][1007-C-G]
2. Although, Entry 25 of List III of the Seventh Schedule of
the Constitution of India is in the Concurrent List which gives
powers to both the Union as well as the State Legislatures to
pass laws on the subject of ‘Education’, it is significant to note
that any such law to be made by the State Legislature is subject
to, inter alia, Entry 66 of List I or the Union List of the Seventh
Schedule. Hence, when there is a direct conflict between a State
Law and the Union Law in the matter of coordination and
determination of standards in higher education (Entry 66
of List
I) such as in medical education, concerning allopathic medicine
or modern medicine, as is in the instant case, where the State
Law is in direct conflict with the Union law, the State Law cannot
have any validity as the State Legislature does not possess
legislative competence. In other words, the Assam Act and Rules
and Regulations made under the said Act, being in conflict with
the Indian Medical Council Act, 1956 (IMC Act, 1956) and the
Rules and Regulations made thereunder, the doctrine of
repugnancy as such would not apply within the meaning of Article
254 of the Constitution. The finding with regard to the
constitutionality of the Assam Act of 2015 is limited to holding it
non-repugnant with the Indian Medical Council Act, 1956.
However, this Court is not rendering any finding with regard to
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any potential conflict of the provisions of the Assam Act of 2015
with the National Medical Commission Act, 2019. [Para 24][1014-
G-H; 1015-A-C]
3.1 Entry 25 of List III of the Seventh Schedule of the
Constitution of India deals with the subject education which is in
the Concurrent List under which both the Parliament or the Union
Legislature as well as the State Legislatures have legislative
competence to legislate. However, Entry 25 of List III is subject
to, inter alia, Entry 66 of List I which is the Union List. Entry 66
of List I deals with coordination and determination of standards
in institutions for higher education or research and scientific and
technical institutions. Thus, when any law is made under Entry
25 of List III by a State Legislature, the same is always subject to
Entry 66 of List I. In other words, if any law made by the Parliament
comes within the scope of Entry 66 of List I, then the State
Legislation would have to yield to the Parliamentary law. Thus,
where one Entry is made “subject to” another Entry, it would
imply that, out of the scope of the former Entry, a field of legislation
covered by the latter Entry has been reserved to be specifically
dealt with by the appropriate legislature. [Para 25(i)][1016-B-E]
3.2 The IMC Act, 1956 is a legislation made by the
Parliament for the purpose of coordination and determination of
standards in medical education throughout the Country. The said
law, along with the Rules and Regulations
made thereunder are
for the purpose of determination of standards of medical education
throughout India. Thus, determination of standards in medical
education in India is as per the IMC Act, 1956 which is a Central
Law. This is in respect of modern medicine or allopathic medicine
within the scope of Entry 66 of List I and not under Entry 25 of
List III of the Seventh Schedule. Therefore, a State Legislature
which passes a law in respect of allopathic medicine or modern
medicine would be subject to the provisions of the IMC Act,
1956 and the Rules and Regulations made thereunder. This would
imply that no State Legislature has the legislative competence to
pass any law which would be contradictory to or would be in direct
conflict with the IMC Act, 1956 and the Rules and Regulations
made thereunder. In other words, the standard in medical
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education insofar as modern medicine or allopathy is concerned,
having been set by the IMC Act, 1956 and the Rules and
Regulations made thereunder or by any subsequent Act in that
regard, such as the Medical Council of India Act, 2019, the State
Legislature has no legislative competence to enact a law which
is in conflict with the law setting the standards of medical
education in the context of modern medicine or allopathic
medicine, which has been determined by Parliamentary
Legislation as well as the Rules. In other words, a State
Legislature has no legislative competence to enact a law in
respect of modern medicine or allopathic medicine contrary to
the said standards that have been determined by the Central Law.
Hence, in view of the Indian Medical Council Act,1956 and the
Rules and Regulations made thereunder, the Assam Act, namely,
the Assam Rural Health Regulatory Authority Act, 2004, is
declared to be null and void in view of the Assam Legislature not
having the legislative competence to enact the said Law. [Para
25(ii) & (iii)][1016-F-H; 1017-A-D; 1018-A]
3.3 The Assam Community Professionals (Registration and
Competency) Act, 2015, enacted pursuant to the judgment of the
Gauhati High Court, is a valid piece of Legislation as it has
removed the basis of the impugned judgment passed by the
Gauhati High Court. The 2015 Act is also not in conflict with the
IMC, Act, 1956. This is because the Central Act namely,
IMC,
Act, 1956 does not deal with Community Health Professionals
who would practise as allopathic practitioners in the manner as
they were permitted to practise under the Assam Act, in rural
areas of the State of Assam. Hence, by a separate legislation the
Community Health Professionals have been permitted to practise
as such professionals. The said legislation of 2015 is not in conflict
with IMC, Act, 1956 and the rules and regulations made
thereunder. Hence, the Act of 2015 is not hit by Entry 66 of List
I of the Constitution and is within the legislative competence of
the State Legislature under the Seventh Schedule of the
Constitution. [Para 25(iv)][1018-B-E]
Tamil Nadu Medical Officers Association v. Union of
India (2021) 6 SCC 568 : [2020] 8 SCR 583 and Shri
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Prithvi Cotton Mills Ltd. v. Broach Borough Municipality
AIR 1970 SC 192 : [1970] 1 SCR 388 - followed.
State of Bombay v. F.N. Balsara AIR 1951 SC 318 :
[1951] 0 SCR 682; Atiabari Tea Company Ltd. v. State
of Assam AIR 1961 SC 232 : [1961] 1 SCR 809; RMDC
v. Union of India AIR 1957 SC 628 : [1957] 0 SCR
930; State of Tamil Nadu v. Adhiyaman Educational and
Research Institute (1995) 4 SCC 104 : [1995] 2
SCR 1075; Modern Dental College and Research
Centre v. State of Madhya Pradesh (2016) 7 SCC 353 :
[2016] 3 SCR 579; Chintpurni Medical College and
Hospital v. State of Punjab and Ors. AIR 2018 SC 3119
: [2018] 5 SCR 147; Gujarat University, Ahmedabad
v. Shri Krishna Ranganath Mudhoklar AIR 1963 SC
703 : [1963] 1 Suppl. SCR 112; Dr. Preeti Srivastava
v. State of M.P. (1999) 7 SCC 120 : [1999] 1 Suppl.
SCR 249; Indian Aluminium Company Co. v. State of
Kerala AIR 1996 SC 1431 : [1985] 2 Suppl. SCR 630;
Hindustan Gum and Chemicals Ltd. v. State of Haryana
(1985) 4 SCC 124 : [1985] 2 Suppl. SCR 630; M/s.
Misrilal Jain v. State of Orissa AIR 1977 SC 1686 :
[1977] 3 SCR 714 ; M/s. Tirath Ram Rajindra Nath,
Lucknow v. State of U.P. AIR 1973 SC 405; Govt. of
A.P. v. Hindustan Machine Tools Ltd AIR 1975 SC
2037; I.N. Saksena v. State of M.P AIR 1976 SC 2250:
[1976] 3 SCR 237; Central Coal Fields Ltd. v.
Bhubaneswar Singh AIR 1984 SC 1733 : [1985] 1 SCR
618; State of Himachal Pradesh v. Narain Singh (2009)
13 SCC 165 : [2009] 10 SCR 821 – relied on.
Dr. Mukhtiar
Chand v. State of Punjab (1998) 7 SCC
579 : [1998] 2 Suppl. SCR 143; Dr. A. K. Sabhapathy
v. State of Kerala 1992 Supp. 3 SCC 147 : [1992] 2
SCR 653; Gujarat University v. Krishna Ranganath
Mudholkar [1963] Supp. 1 SCR 112; R. Chitralekha v.
State of Mysore AIR 1964 SC 1823; Prof. Yashpal v.
State of Chhattisgarh (2005) 5 SCC 420 : [2005] 2
SCR 23; Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and Charitable
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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Trust v. State of Tamil Nadu (1996) 3 SCC 15 : [1996] 2
SCR 422; MCI v. State of Karnataka (1998) 6 SCC
131 : [1998] 3 SCR 740; Hingir - Rampur Coal Co.
Ltd. v. State of Orissa AIR 1961 SC 459 : [1961] 2
SCR 537; Association of Medical Superspeciality
Aspirants and Residents and Others v. Union of India
and Others (2019) 8 SCC 607 : [2019] 12 SCR 1011;
Prafulla Kumar Mukherjee v. Bank of Commerce,
Khulna AIR 1947 P.C. 60; Ujagar Prints v. Union of
India AIR 1989 SC 516 : [1988] 3 Suppl. SCR 770;
United Provinces v. Atiqa Begum AIR 1941 FC 16;
Calcutta Gas Company v. State of West Bengal AIR 1962
SC 1044 : [1962] 3 Suppl. SCR 1; Hoechst
Pharmaceuticals Ltd. v. State of Bihar AIR 1983 SC
1019 : [1983] 3 SCR 130; K.R.C.S. Balakrishna Chetty
& Sons & Co. v. The State of Madras AIR 1961 SC
1152 : [1961] 2 SCR 736; The South India Corporation
(P) Ltd. v. The Secretary, Board of Revenue Trivandrum
and Ors. AIR 1964 SC 207 :  [1964] 4 SCR 280; Ashok
Leyland Ltd. v. State of Tamil Nadu and Anr. (2004) 3
SCC 1 : [2004] 1 SCR 306; Subhasis Bakshi v. W.B.
Medical Council (2003) 9 SCC 269 : [2003] 1
SCR 1150 and State of Bombay v. United Motors India
Ltd. AIR 1953 SC 252 : [1953] 0 SCR 1069 – referred
to.
Case Law Reference
[1998] 2 Suppl. SCR 143
referred to
Para 5.1 (i)
[1992] 2 SCR 653
referred to
Para 5.1 (iii)
[1963] Supp. 1 SCR 112
relied on
Para 5.1 (iv)
AIR 1964 SC 1823
referred to
Para 5.1 (v)
[2018] 5 SCR 147
referred to
Para 1 6 (v)
[2005] 2 SCR 23
referred to
Para 6 (v)
[1996] 2 SCR 422
referred to
Para 6 (v)

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[1999] 1 Suppl. SCR 249
relied on
Para 8 (vii)
[1998] 3 SCR 740
referred to
Para 8 (ix)
[1951] SCR 682
referred to
Para 9 (iii)
[1961] 2 SCR 537
referred to
Para 9 (v)
[2019] 12 SCR 1011
referred to
Para 10
[1951] SCR 682
relied on
Para 11.4
[1961] 1 SCR 809
relied on
Para 11.5
[1988] 3 Suppl. SCR 770
referred to
Para 11.5
[1962] 3 Suppl. SCR 1
referred to
Para 11.9
[1957] SCR 930
relied on
Para 11.10
[1983] 3 SCR 130
referred to
Para 11.11
[1963] 1 Suppl. SCR 112
referred to
Para 15 (i)
[1995] 2 SCR 1075
relied on
Para 15 (ii)
[1999] 1 Suppl. SCR 249
referred to
Para 15 (iii)
[2016] 3 SCR 579
relied on
Para 15 (iv)
[2018] 5 SCR 147
relied on
Para 15 (v)
[2020] 8 SCR 583
followed
Para 15 (vi)
[1961] 2 SCR 736
referred to
Para 16.1 (i)
[1964] 4 SCR 280
referred to
Para16.1 (ii)
[2004] 1 SCR 306
referred to
Para16.1(iii)
[1998] 2 Suppl. SCR 143
referred to
Para 21 A
[2003] 1 SCR 1150
referred to
Para 21 B
[1992] 2 SCR 653
referred to
Para 21 B (i)
[1985] 2 Suppl. SCR 630
relied on
Para 22
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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[1970] 1 SCR 388
followed
Para 22
[1962] 1 SCR 549
referred to
Para 22 (a)
[1953] SCR 1069
referred to
Para 22 (a)
[1977] 3 SCR 714
relied on
Para 22 (b)
AIR 1973 SC 405
referred to
Para 22 (c)
AIR 1975 SC 2037
relied on
Para 22 (d)
[1976] 3 SCR 237
relied on
Para 22 (d)
[1985] 1 SCR 618
relied on
Para 22 (d)
[2009] 10 SCR 821
relied on
Para 22 (e)
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.502-
503 of 2023.
From the Judgment and Order dated 30.10.2014 and 19.09.2014
of the High Court of Gauhati in WPC No.5789 of 2005.
With
TC (C) Nos.25 And 24 of 2018.
Harin P. Raval, Sanjay R. Hegde, Rana Mukherjee, Sr. Advs.,
Oindrila Sen, Md. Sharuk Ali,  Raghav Gupta, Ms. Shreya, Ms. Shrestha
Narayan, Rajha Chatterjee, Piyush Sachdev, Aditya Pathak, Mahabir
Singh, Adeel Ahmed, Satish Kumar, Advs. for the Appellants.
Ms. Aishwarya Bhati, ASG, Vikas Singh, Sr. Adv., Gaurav Sharma,
Dhawal Mohan, Prateek Bhatia, Kapish Seth, Ms. Deepika Kalia, Ms.
Mitushi Goyal, Mohd. Akhil, Rajesh Ranja, T. S. Sabarish,  Nakul
Chengappa K. K., Ms. Akriti A. Manubarwala, Gurmeet Singh Makker,
Shivam Singh,  Abhinav Singh, Manish Kumar, Gagan Gupta, Shuvodeep
Roy, Kumar Arnav Singhdeo, Advs. for the Respondents.
Ananga Bhattacharyya, V. K. Khanna, Hitesh Kumar Sharma,
Akhileshwar Jha, Ms. Niharika Dewivedi, Shweta Sand, Anubhav Gupta,
C.M. Jha, Narendra Pal Sharma, Advs, for the Intervenors.
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The Judgment of the Court was delivered by
NAGARATHNA, J.
I  N  D  E  X*
Leave granted.
2. In these appeals, the appellants have assailed the legality and
correctness of the order dated 30.10.2014 passed by the Division Bench
of the Gauhati High Court in W.P.(C) No. 5789/2005, whereby the High
Court by allowing the Writ Petition struck down the Assam Rural Health
Regulatory Authority Act, 2004 (hereinafter referred to as ‘Assam Act’
or the ‘State Act’ for the sake of brevity) which was enacted by the
Assam State Legislature.
Brief facts of the case:
3. The facts giving rise to the present appeals and transferred
cases, in a nutshell are that on 18.09.2004, the Assam Legislature enacted
the Assam Act. The said Act was enacted to provide for the establishment
of a regulatory authority in the State of Assam to register the Diploma
holders in Medicine and Rural Health Care (“DMRHC”), to regulate
their practice in medicine in rural areas and to regulate the opening of
medical institutions to impart education and training for the course of
Diploma in Medicine and Rural Health Care.
3.1. On 23.06.2005, the Director, Medical Education, State of
Assam, published an advertisement in the Assam Tribune inviting
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*Pagination in the Index is as per the Original Judgment.
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applications from eligible candidates seeking admissions in the three-
year course of Diploma in Medicine and Rural Health Care in the Medical
Institute, Jorhat, for the session starting in the year 2005.
3.2. The Indian Medical Association, Assam State Branch,
Respondent No. 1 herein, filed a Writ Petition being W.P. (C) No. 5789
of 2005 under Article 226 of the Constitution of India, before the Gauhati
High Court, assailing the validity of the Assam Act and the aforesaid
advertisement. During the pendency of the Writ Petition before the High
Court, the appellants herein were admitted in the First year of the three-
year Diploma Course in Medicine and Rural Health Care in the Medical
Institute, Jorhat, (‘Jorhat Medical Institute’ for the sake of convenience)
for the sessions 2012-2013, 2013-2014 and 2014-2015 respectively,
pursuant to the selection process.
3.3. Having regard to the fact that the Jorhat Medical Institute
was created as envisaged under the State Act, and about four-hundred
students had been admitted to the diploma course and awarded
certificates on having passed the Course, State of Assam made a plea
for impleadment of the Regulatory Authority, the Jorhat Medical Institute
and the persons who had obtained diploma certificates and had been
engaged as Rural Health Practitioners on the basis of such qualification.
3.4. By the impugned order dated 19.09.2014, the High Court
rejected the State’s plea for
impleadment of the Regulatory Authority,
the Jorhat Medical Institute and the persons who had obtained diploma
certificates from the said Institute during the pendency of the Writ Petition
before the High Court.
3.5. The pertinent findings of the High Court, in the impugned
order dated 19.09.2014 may be summarized as under:
i)
That the State had voluntarily assumed the risk of
proceeding with the admission process under the State Act,
even after a challenge was made to the vires of said Act
before the High Court.
ii)
The fact that there was no stay on the operation of the
State Act would not be a valid justification for the State to
proceed with the admissions to the course, more so, when
the legality of the said Act was challenged. That the
admissions, issue of diploma certificates to the persons who
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completed the course, and appointment of such persons as
Rural Health Practitioners, were all developments that took
place subsequent to the writ petition being filed.
iii)
That no question arose in the writ petition as to the
consideration of individual interests of the parties sought to
be impleaded. The question and issue that would arise was
only as to the vires of the State Act.  Hence, there would
be no reason to implead the Regulatory Authority, the Jorhat
Medical Institute and the persons who had obtained diploma
certificates and had been engaged as Rural Health
Practitioners on the basis of such qualification, as necessary
parties in the writ petition.
3.6. Further, vide the impugned judgment dated 30.10.2014, the
High Court allowed W.P. (C) No. 5789 of 2005 by holding that the Assam
Act, is unconstitutional and accordingly, the said Act was struck down.
The relevant findings of the High Court in the impugned judgment dated
30.10.2014, have been culled out as follows:
i)
That the State Act is in conflict with the Central Act i.e.
Indian Medical Council Act, 1956 (hereinafter referred to
as ‘IMC Act, 1956’ or ‘Central Act’ for the sake of
convenience) inasmuch as Section 10A of the Central Act
categorically declares that no medical college shall “open a
new or higher 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.
ii)
That the
restrictions under Section 10A(b)(i) of the Central
Act envisage injunction against medical colleges to open “a
new or higher course.” The words “new or higher course”
would definitely take in its sweep the diploma course
contemplated under the State Act.
iii)
That even for commencement of a diploma course, previous
permission of the Central Government is required. But in
the present case, no permission was taken. Therefore, it
was concluded that the State had ventured to introduce a
new diploma course in medicine and rural healthcare, without
the necessary permission as contemplated under Section
10A of the Central Act.
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]
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iv)
That the power and scope of the State Legislature to
legislate under the field covered under Entry 25 of List III
of the Seventh Schedule of the Constitution of India is very
limited and is only in respect of a field unoccupied by a
Central Act. In the present case, the Central Act fully
covers the field and places a total restriction on opening a
new course in medicine without the permission of the Central
Government.
v)
That it would be bizarre to say that the diploma-holders
should practice in rural areas and not in urban areas, and
they are entitled to treat only certain diseases and prescribe
only certain medicines. That such restrictions were
unworkable in practice. Such conditions and restrictions were
stipulated in Section 24 of the State Act. However, striking
down that provision alone would not save the situation as
Section 24 is the “soul” of the State Act and without the
said provision, the rest of the provisions of the Act would
be meaningless.
vi)
Keeping in view the larger interest of health and welfare of
society and the lapses committed by the State Legislature
in enacting a legislation without obtaining necessary
approvals from the Central Government, the State Act was
liable to be declared as unconstitutional and accordingly
struck down.
3.7. Aggrieved by the impugned judgment, certain persons who
were admitted in the First year of the three-year Diploma Course in
Medicine and Rural Health Care
in the Jorhat Medical Institute, for the
sessions 2012-13, 2013-14 and 2014-15, during the pendency of the writ
petition before the High Court, have preferred the present appeals.
3.8. At this stage itself, it may be mentioned that consequent upon
the striking down of the Assam Act, the Assam Legislature passed the
Assam Community Professional (Registration and Competency) Act,
2015 (“2015 Act”, for short) with a view to remove the basis of the
judgment passed by the Division Bench of the Gauhati High Court in the
aforesaid writ petition and in an attempt to restore the position of the
diploma holders in medicine and to give them continuity in service.  The
said Act has been assailed by the diploma holders in Transferred Case
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(C) Nos. 24 and 25 of 2018 before this Court. In the circumstances, we
have heard these cases together and the same are being disposed of by
this common judgment.
Bird’s Eye View of the Controversy:
4. The controversy in these cases revolve around the legislative
competence of the Assam State Legislature to enact the Assam Act
which has been assailed by the writ petitioners before the Gauhati High
Court on the ground of legislative competence as per Article 246 read
with the relevant entries of List I and III of the Seventh Schedule of the
Constitution of India. However, the Gauhati High Court has struck down
the Assam Act on the ground of repugnancy as per Article 254 of the
Constitution.
Submissions:
5. We have heard learned Senior Counsel Mr. Harin P. Raval and
learned senior counsel Mr. Sanjay Hegde for the appellants-diploma
holders in medicine and learned counsel Sri Shivam Singh, appearing for
the writ petitioner/Respondent No.1 herein namely, Indian Medical
Association instructed by Sri Abhinav Singh and learned Additional
Solicitor General Sri K.M. Natraj, for the Union of India and learned
Senior Counsel Sri Vikas Singh, appearing on behalf of Respondent No.
7, Medical Council of India. We have heard Sri Rana Mukherjee learned
Senior Counsel instructed by Ms. Oindrila Sen appearing on behalf of
the petitioners in Transferred Case (C) Nos. 24 and 25 of 2018 and Mr.
Ananga Bhattacharyya learned counsel appearing on behalf of the State
of Assam. We
have perused the material on record.
5.1. Learned Senior Counsel Sri. Harin P. Raval, appearing for
the appellants submitted as under:
i.
That the impugned judgment proceeds on a misplaced
interpretation of the Indian Medical Council Act, particularly
Section 10 thereof and is in the teeth of a three-judge bench
judgment of this Court in Dr. Mukhtiar Chand vs. State of
Punjab, (1998) 7 SCC 579, (“Dr. Mukhtiar Chand”).
That the High Court erred in holding that as per Section
10A of the Central Act, any new course including the relevant
diploma course can only be opened after prior permission
of the Central Government. The appellants submitted that
Section 10A of the Central Act only prescribes that a new
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course which would qualify a person for the award of a
recognised medical qualification requires the permission of
the Central Government. That Diploma in Medicine and
Rural Healthcare is not a medical qualification as defined
in Section 2(h) of the Central Act. Therefore, no permission
of the Central Government was required to start such a
diploma course.
ii.
That the award of a recognised medical qualification gives
a person the right to be included in the Indian Medical
Register under Section 21(1) of the IMC Act. However, as
per Section 15 of the said Act for practicing medicine in
any State, all that is required is that a person has to be
enrolled in a State Medical Register as defined in Section
2(k) thereof as a Register maintained under law enforced
in any State regulating the registration of practitioners of
medicine. That the impugned Assam Act, is such a law and
the State Register of Rural Health Practitioners created by
virtue of Section 17 of the Act is such a State Medical
Register in terms of even Section 2(k) of the IMC Act,
1956.
iii.
That the view taken by the High Court that medical
practitioners cannot practice allopathic medicine unless they
have completed any of the recognised courses under the
IMC Act, was a view which was taken by this court in Dr.
A. K. Sabhapathy vs. State of Kerala, 1992 Supp. 3 SCC
147, (“Dr. A. K. Sabhapathy”). Learned senior counsel
for the appellants submitted that the
said judgment has
specifically been overruled by a three-judge bench in Dr.
Mukhtiar Chand. It was thus, submitted that the view
taken by the High Court is contrary to the decision in Dr.
Mukhtiar Chand.
iv.
Learned senior counsel for the appellants refuted the
reliance placed by the Respondent-Medical Council of India
on Gujarat University vs. Krishna Ranganath
Mudholkar, 1963 Supp. (1) SCR 112, (“Gujarat
University”) wherein it was held that a State Legislation
can be unconstitutional even if there is no contrary Union
Legislation. It may be declared ultra vires if it effectively
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impinges on the field reserved for the Union under Entry
66 and infringes upon the Union field. It was contended
that it is only where the State Legislation makes it impossible
or difficult for the Parliament to legislate under Entry 66 of
List I, that the State Law can be declared to be bad.
v.
The learned senior counsel for the appellants placed reliance
on the judgment of a Constitutional Bench of this court in
R. Chitralekha vs. State of Mysore, AIR 1964 SC 1823,
(“R. Chitralekha”) wherein it was held that it is only when
the State Legislation makes it impossible or difficult for the
Parliament to legislate under Entry 66 of List I, and only if
the impact of the State Law is so heavy or devastating on
Entry 66 of List I, so as to wipe out or appreciably abridge
the Central field of legislation, can it be struck down but not
otherwise. Learned senior counsel contended that in the
present case, there is no question of the Assam Act, making
it impossible or difficult for the Parliament to exercise its
power for co-ordination and determination of standards in
medical institutions. If the Parliament wanted, they could
easily legislate to say that no person who does not hold
qualifications recognised by the IMC Act can practice
allopathic medicine. That Parliament has not said so and
Section 15 of the IMC Act indicates that the Parliament
recognises that persons enrolled in State Medical Registers
under State Acts can practice medicine in the State.
vi.
Learned senior counsel for the appellants contended that
accepting the argument of the MCI that allopathic medicine
can be practiced only by M.B.B.S. doctors with a MBBS
degree would not only be totally contrary to the scheme of
the IMC Act but would effectively declare unconstitutional
a number of State Acts of various States, which have
prescribed qualifications other than M.B.B.S. to practice
medicine in the State.
vii.
That the Medical Council of India (MCI) in the Meeting of
its Board of Governors at New Delhi on 16.07.2012, along
with the Secretary (Health), Ministry of Health & Family
Welfare, Government of India in its proposal for a B.Sc.
(Community Health) Program sought to  draw experience
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from the Assam and Chhattisgarh models of the Diploma
Course and sought to affiliate these courses/programs to a
University or Regulatory Body. Therefore, the Medical
Council of India has itself acknowledged the Assam
experience and sought to create a course on the same lines
in the interest of public healthcare.
viii.
That it is a well-known fact that M.B.B.S. doctors prefer
not to practice in rural areas and thus, there is an acute
shortage of such doctors in rural areas all over the country.
To address such an issue, the Assam Act was brought into
force by the State Legislature of Assam. Thus, striking it
down would be counter-productive and contrary to the
interests of the rural population of Assam.
ix.
That as per the impugned Assam Act, Rural Health
Practitioners can only practice in rural areas and that too,
in a limited manner to treat basic common diseases and to
prescribe basic medicines.
Learned Senior counsel submitted that the impugned judgment
may be set aside and the Assam Act may be declared to be a valid piece
of legislation.
5.2  Sri. Sanjay Hedge, learned Senior Counsel, drew our attention
to two judgments of this Court in the case of Dr. Mukhtiar Chand and
Subhasis Bakshi to contend that this Court has recognised the practice
in Allopathic medicine under various enactments and that the said
judgments would squarely apply to the facts of this case. The judgments
relied upon by Sri Sanjay Hedge shall
be discussed later.
Arguments on behalf of Respondent No. 1 Indian Medical
Association:
6. Learned counsel Sri Shivam Singh appearing for Respondent
No. 1, Indian Medical Association submitted as under:
i.
That the Assam Act is repugnant to the provisions of the
Indian Medical Council Act, 1956, (IMC Act, 1956) i.e. the
Central Act.
ii.
That the role of the Central Government in granting
permission for commencement of a “new or higher course”
as prescribed under Section 10A(b)(i) of the Central Act,
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cannot be diluted nor given a go-by. Section 10(A)(1)(b) of
the Central Act requires that previous permission of the
Central Government be obtained prior to offering a new or
higher course of study for obtaining a “recognised medical
qualification” at an already established medical college.
However, as regards prospective medical colleges,
obtainment of previous permission of the Central
Government is mandatory regardless of whether the medical
college intends to offer a recognised medical qualification
or a non-recognised medical qualification.
iii.
That the term “Medical College” is not defined in the IMC
Act, 1956, thus, reliance must be placed on the definition of
“Medical Institution” as defined in Section 2(e) of the IMC
Act, 1956. Thus, the term Medical College must be
understood in a wide sense to even include those that do
not offer a ‘recognised medical qualification’. It was
submitted that, the term “medical college” used in Section
10A(1)(a) of the IMC Act ought not be restricted as only
“medical college offering a recognised medical qualification”
within the meaning of the IMC Act, 1956.
iv.
On the strength of the State Act, the Jorhat Medical Institute,
was established to provide a Diploma Course in Medicine
and Rural Healthcare, without prior permission of the Central
Government which is an incurable defect. Thus, the setting
up of the Jorhat Medical Institute and commencement of
the diploma course is contrary to IMC Act, 1956 and,
therefore, unlawful on the ground that it was contrary to
Section 10A(1)(a) of the Central Act of 1956.
v.
Reliance was placed on the decisions of this Court in
Chintpurni Medical College & Hospital vs. State of
Punjab, (2018) 15 SCC 1, (“Chintpurni Medical College
& Hospital”) and Prof. Yashpal vs. State of Chhattisgarh,
(2005) 5 SCC 420, (“Prof. Yashpal”)to contend that the
State Government does not have the power to enact the
Assam Act and that the States are denuded of the legislative
power to legislate on medical education.
vi.
That the Central Act, namely, IMC Act, 1956, in pith and
substance, falls under Entry 66 of List I and occupies the
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entire field insofar as establishment of new medical colleges
is concerned which deals with coordination and
determination of standards, inter alia, in medical education.
Therefore, the State Legislature is denuded of its power
under Entry 25 of List III to enact a law providing for the
establishment of a medical college contrary to the provisions
of the Central Act.
vii.
That the provisions of the Central Act hold the field of
medical education and no medical college or course,
including the impugned course can be commenced without
the permission of the Central Government as mandated
under Section 10A of the said Act. Also, the Doctrine of
‘Occupied Field’ would apply in the present case. Learned
counsel for Respondent No. 1 placed reliance on
Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and
Charitable Trust vs. State of Tamil Nadu, (1996) 3 SCC
15, (“Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and
Charitable Trust”) wherein it was held that under section
10A of the Indian Medical Council Act, the Parliament has
evinced an intention to cover the whole field relating to the
establishment of new medical colleges in the Country and
by virtue of Section 10A, the Parliament has made a
complete and exhaustive provision covering the entire field
governing establishment of new medical colleges in the
Country. No further scope is left for the operation of
any
State Legislation in the said field which is fully covered by
the law made by the Parliament.
viii.
That the Assam Act is repugnant to the provisions of the
Central Act as no Presidential Assent was obtained as
required under Article 254 of the Constitution, to overcome
such repugnancy.
ix.
Learned counsel for Respondent No. 1 further contended
that the students who graduate on completion of the diploma
course would be ill-equipped as doctors and this would pose
risk to patients who require quality medical assistance and
treatment. That it is the fundamental right of the patient to
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receive quality medical assistance; meeting the standards
as prescribed by the Indian Medical Council or by the
Parliament but such quality treatment cannot be provided
by those who do not have the requisite qualification as per
the standards set by the Parliament.
x.
That one of the restrictions under Section 24 of the Assam
Act, being that the practitioners who graduate in the diploma
course would only be allowed to work in rural areas of the
State of Assam, was not only unworkable but also in violation
of Article 14 and 21 of the Constitution as equal quality of
treatment should be secured for every citizen of this State.
That the Assam Act discriminates between patients living
in rural areas and those living in urban areas, implying that
the persons who live in urban areas are entitled to standard
treatment and those who live in rural areas are entitled to
sub-standard treatment.
xi.
That the argument of the appellants that doctors with MBBS
qualification do not wish to practice in rural areas is
completely incorrect and is without any basis. That the
appellants have not brought anything on record to prove
the same. There are more than 2244 MBBS doctors working
in the rural areas of Assam; even if there is a shortfall of
doctors in the rural areas and the Assam Act aims to remedy
the shortfall, the solution lies in increasing their coverage
via permissible means and not otherwise.
xii.
That the State of Assam has consciously and rightly chosen
not to
challenge the judgment passed by the High Court
that struck down the Assam Act and only private individuals
are appellants before this court. That the State of Assam
has enacted a subsequent legislation and has tried to
accommodate the ousted diploma holders in different
capacities. Merely because the appellants before this court
are aggrieved by their arrangement in a different capacity
under the new legislation, it cannot equip them to sustain
the present challenge.
7. Learned Senior Counsel Sri K.M. Natraj appearing for Union
of India has also been heard which shall be adverted to later.
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Submissions on behalf of Respondent No. 7 (Medical Council
of India):
8. Learned Senior Counsel Sri Vikas Singh appearing on behalf of
Respondent No. 7, Medical Council of India, submitted as under:
i.
Respondent No. 7 submitted that after the impugned
judgment dated 30.10.2014 was passed by the High Court,
the State of Assam notified the ‘2015 Act’, on 29.05.2015.
By virtue of Section 3(2) of the said Act, the Diploma
Holders who have completed or are still undergoing the
Diploma course in Medicine and Rural Health in the State
of Assam under the scheme of Assam Act, have been
recognised as “Community Health Professionals” and such
Community Health Professionals have been engaged as
para-medical professionals assisting the Medical Officers
in the State of Assam. Thereafter, the State of Assam has
protected the livelihood of the Rural Health Practitioners
by absorbing them as Community Health Professionals
under the ‘2015 Act’. Thus, the future of Rural Health
Practitioners has been protected by the State of Assam as
they have been employed as Community Health Professional
in the State.
ii.
That the Central Act i.e., IMC Act, 1956, is relatable to
Entry 66 of List I of Seventh Schedule of the Constitution.
It is an exhaustive legislation covering all aspects of opening
of new or higher courses of medicine, teaching and training,
recognition of medical qualification, registration of medical
practitioner, eligibility
criteria for registration in State Medical
Register and practice of modern scientific medicine. Thus,
the State Legislature is denuded of the power to make any
law as the field is already occupied by the Central Act.
iii.
That Section 15(1) of the Central Act prescribes minimum
qualification for registration in the State Medical Register.
Thus, medical qualification included in the Schedule of the
Central Act is the only recognised medical qualification on
the basis of which a person’s name can be entered in the
State Medical Register maintained by the State Medical
Council. Further, Section 15(2)(b) of the Central Act makes
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it unequivocally clear that only those persons who are
enrolled in the State Medical Register are entitled to practice
medicine in any State.
iv.
That Section 2(d) of the State Act read with Section 15
thereof, and Schedule to the Assam Medical Council Act,
1999, (“AMC Act, 1999”, for the sake of convenience)
provide that recognised medical qualification for the
purposes of registration in the State Medical Register shall
mean only those medical qualifications which have been
included in Schedule I to the Central Act of 1956. Thus, a
combined reading of Section 2(d), Section 15 and Section
31 of the State Act, read with the Schedule to the AMC
Act, 1999, makes it unequivocally clear that even the State
Legislature of Assam intended that only a person possessing
recognised medical qualification under Schedule I of the
Central Act, is entitled in law to be entered in the State
Medical Register and is allowed to practice modern scientific
medicine.
v.
That the Assam Act of 2004, was also in direct conflict and
inconsistent with the AMC Act, 1999. That Section 31 of
the AMC Act, 1999, prohibits practice of modern scientific
medicine by any person, except those registered under the
State Medical Register maintained by the Assam Medical
Council.
vi.
Respondent No. 7 next submitted that the provisions of
Central Act, 1956, will prevail over the Assam Act, 2004,
as Article 246(2) of the Constitution provides that law made
by the State Legislature on any subject
enumerated in List-
III of Seventh Schedule of the Constitution is subject to the
law made by the Parliament under Article 246(1). Thus,
Entry 25 of List III of Seventh Schedule under which the
Assam Act, 2004, had been enacted was subject to the law
made by the Parliament under Entry 66 of List I i.e., IMC
Act, 1956 which is a Central Legislation.
vii.
Respondent No. 7 placed reliance on Dr. Preeti Srivastava
vs. State of M.P., (1999) 7 SCC 120, (“Dr. Preeti
Srivastava”) to contend that a State Act cannot lower the
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standards fixed under the Central Act. That in the said case
it was held that only the Medical Council of India could
determine the lowering of standards or norms and the extent
of the same. Therefore, the State of Assam does not have
the legislative competence and authority to enact the Assam
Act, which has the effect of lowering down the standards.
viii.
Respondent No.7 contended that the judgment in Dr.
Mukhtiar Chand was not applicable in the present case.
In the said case, it was held that the registration in the State
Medical Register relating to modern scientific medicine was
a sine qua non to enable persons, who, otherwise did not
possess recognised medical qualification, to practice modern
scientific medicine. It was submitted that even if the name
of a Diploma Holder was included in the State Register of
Rural Health Practitioners as provided under the Assam
Act, it will not give them the right to practice modern
scientific medicine as per Section 15 of the IMC Act, 1956.
ix.
It was further submitted that medical students are required
to undergo rigorous teaching and training during the MBBS
course which is a five-year course and it is only after they
successfully complete the same that they become eligible
to get registered in the Indian Medical Register or the State
Medical Register and thereafter, they become legally
entitled to practice medicine and treat patients. Reliance
was placed on MCI vs. State of
Karnataka, (1998) 6
SCC 131, (“MCI”) to submit that Rural Health Practitioners
were nothing but half-baked doctors who do not possess
the requisite knowledge in the field of medicine and have
also not received proper training. That Rural Health
Practitioners have limited knowledge and experience and
hence, cannot be permitted to practice modern scientific
medicine and administer medical treatment. It was further
submitted that if such Diploma holders are permitted to
practice modern scientific medicine, then they would pose
a great threat to society and would degrade the standard of
health care system in the country.
Submissions on behalf of the State of Assam:
9. Learned counsel Sri Ananga Bhattacharyya made the following
submissions on behalf of the State of Assam:
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i.
That the Preamble to the IMC Act, 1956 discloses that the
said Act is enacted to provide for the reconstitution of
Medical Council of India and the maintenance of a Medical
Register for India and for matters connected therewith.
Section 10A of the said Act provides that, notwithstanding
anything contained in the Act or any other law for the time
being in force, no person shall establish a medical college;
or no medical college shall open a new or higher 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, except with the previous permission
of the Central Government. That the permission as
contemplated in Section 10A is the permission to open a
new or higher 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”. As
the Diploma in DMRHC as defined in Section 2(e) of the
Assam Act is not akin to “recognised medical qualification”
referred to in Section 10A of the IMC Act, 1956, the Assam
Act can certainly co-exist. The powers and functions of
rural health practitioners as delineated in Section 24 of the
Assam Act would go to show that both legislations can co-
exist without there being any overlapping.
ii.
That a perusal of Regulation 11 framed by the State
Authority under the Regulations of Assam Rural Health
Regulatory Authority, 2005 would
reveal that practice of
medicine under the scheme of the State Act has a very
limited meaning. Similarly, the word “surgery” has also been
assigned a limited scope. Therefore, the underlying purpose
is not to encroach upon the field covered by the Central
Act but to provide rural health care to the needy persons.
In attainment of the aforesaid objectives, if there is any
incidental encroachment, the same cannot have the potential
of adjudging the Assam Act as ultra vires.
iii.
That in determining whether an enactment is a legislation
with respect to a given power, what is relevant is whether,
in its pith and substance, it is a law upon the subject matter
in question. Reliance was placed on State of Bombay vs.
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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F. N. Balsara, AIR 1951 SC 318, (“F. N. Balsara”)
wherein it was held that mere incidental encroachment on
matters which have been assigned to another legislature
does not vitiate the legislation. It was contended that in the
instant case, the State Legislature has not made any attempt
to encroach upon the field covered by the IMC Act, 1956
by offering qualifications envisaged in Section 2(h) read
with First Schedule to the said Act. That the Parliament
even after enacting the IMC 1956 Act left out certain grey
areas, thus, the Assam Act is an attempt to cover the fields
left open by the Parliament.
iv.
That when one entry is made ‘subject to’ another entry, it
means that out of the scope of the former entry, a field of
legislation covered by the latter entry has been reserved to
be specifically dealt with by the appropriate legislature. That
what is covered by the Central Act is “recognised medical
qualification” within the meaning of Section 2(h) of the Act
read with the qualifications included in the First Schedule
to the said Central Act and not Diploma in Rural Health
Care and Medicine. Therefore, as long as the Parliament
does not occupy the field earmarked for it under Entry 66
of List I or for that matter by invoking its concurrent powers
under Entry 25 of List III, the question of competence of
the State Legislature to regulate and register the Diploma
Holders in medicine and rural health care and their
practice
of medicine in rural areas cannot be questioned.
v.
That repugnancy arises when two enactments, both within
the competence of two legislatures collide and when the
Constitution expressly or by necessary implication provides
that the enactment of one legislature has superiority over
the other, then to the extent of repugnancy one supersedes
the other. Reliance was placed on Hingir - Rampur Coal
Co. Ltd. vs. State of Orissa, AIR 1961 SC 459, (“Hingir
- Rampur Coal Co. Ltd.”) wherein thisCourt observed
that in a case where a declaration is made by the Parliament
that it is expedient in the public interest to take over the
field, in such a case, the test must be whether legislative
declaration covers the field or not. It was submitted on behalf
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of the State of Assam that in the said case a distinction
must be drawn between the Entries in List I wherein a
declaration by the Parliament to take over the field is
expressed and to other Entries in List I which do not contain
such a declaration. That Entry 66 of List I does not contain
any such declaration; therefore, it would be appropriate to
go by the language of Entry 25 of List III i.e., “subject to”.
Thus, the test is to find out the true nature and character of
the State Legislation. Any incidental encroachment in the
process would not vitiate the State law. Thus, the Assam
Act and the Central Act can co-exist within their respective
spheres and the provisions of Assam Act are not repugnant
to the provisions of the Central Act, hence, there is no
requirement of complying with the provisions of Article
254(2) of the Constitution of India.
10. Sri. Rana Mukherjee, learned Senior Counsel appearing for
the petitioners in Transferred Case Nos.24 and 25 of 2018 drew our
attention to the relief sought for by the petitioners therein and contended
that the status and position of the petitioners therein, subsequent to the
enactment of the ‘2015 Act’ has been adversely altered. Hence, the
petitioners therein have assailed the said Act. He contended that the
petitioners therein were imparted medical education under the Assam
Act and have been trained  under the said Act and are registered as
Rural Health Practitioners  and have been serving as Rural Health
Practitioners in various States. The State of Assam proceeded to enact
the impugned Legislation, i.e.,  the ‘2015 Act’, instead of assailing the
judgment of the Gauhati High Court which has struck down the Assam
Act thereby, resulting in adverse consequence on the petitioners in these
transferred cases. That by enactment of the ‘2015 Act’, the petitioners
in these cases are redesignated as Community Health Officers and
thereby their status and position has been downgraded to that of
Paramedics, whereas, under the Assam Act, they were registered as
Rural Health Practitioners in the State Medical Register. In these
circumstances, the petitioners in these cases have sought for continuation
of their rights, privileges, status and conditions of service as were provided
or granted to them under the Assam Act as Rural Health Practitioners.
Learned counsel submitted that the case of the petitioners in
Transferred Cases would be resurrected in the event this Court is to set
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aside the judgment of the High Court and restore the Assam Act by
allowing the Special Leave Petition filed by the similarly situated Rural
Health Practitioners in the case of Baharul Islam and others, which is
being considered. He further submitted that in the event this Court is to
affirm the judgment of the High Court, the vires of ‘2015 Act’ is to be
considered and the relief sought for by the petitioners in these Transferred
Cases may be granted. Learned Senior Counsel also placed reliance on
the judgment of this Court in the case of Association of Medical
Superspeciality Aspirants and Residents and Others v. Union of
India and Others. (2019) 8 SCC 607; paragraphs 25 and 26, to
emphasise the importance of rural health which has to be protected by
the State.
Points for consideration:
Having heard the learned counsel for the respective parties and
on perusal of the material on record, the following points would arise for
our consideration:
i)
Whether the Assam Act is invalid and null and void on the
ground that the Assam State Legislature did not possess
legislative competence to enact the said Act?
ii)
Whether the ‘2015 Act’ is ultra vires the Constitution?
iii)
What Order?
Constitutional Scheme
11. Before proceeding, it would be useful to refer to the
constitutional scheme relevant to the issues which arise in these cases.
11.1. For easy and immediate reference, the relevant provisions
of the Constitution of
India are extracted as under:
“246. Subject matter of laws made by Parliament and by
the Legislatures of States - (1) Notwithstanding anything in
clauses (2) and (3), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in
the Seventh Schedule (in this Constitution referred to as the
“Union List”).
(2) Notwithstanding anything in clause (3), Parliament, and,
subject to clause (1), the Legislature of any State also, have
power to make laws with respect to any of the matters
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enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List
II in the Seventh Schedule (in this Constitution referred to as
the “State List”).
(4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included in a
State notwithstanding that such matter is a matter enumerated
in the State List.
***
254. Inconsistency between laws made by Parliament and
laws made by the Legislatures of States - (1) If any provision
of a law made by the Legislature of a State is repugnant to
any provision of a law made by Parliament which Parliament
is competent to enact, or to any provision of an existing law
with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause (2),
the law made by Parliament, whether passed before or after
the law made by the Legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by
the Legislature of the State shall, to the extent of the
repugnancy, be void.
(2) Where a law made by the Legislature of a State 1 *** with
respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of an
earlier law made by Parliament or
an existing law with respect
to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration
of the President and has received his assent, prevail in that
State:
Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same
matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.”
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11.2.  It is also useful to refer to Entry 66 of List I (Union List)
and Entry 25 of List III (Concurrent List) of the Seventh Schedule
of the Constitution of India. The same read as under: -
Entry 66 of List I -Union List
“66. Co-ordination and determination of standards in
institutions for higher education or research and scientific
and technical institutions.”
***
Entry 25 of List III -Concurrent List
“25. Education, including technical education, medical
education and universities, subject to the provisions of entries
63, 64, 65 and 66 of List I; vocational and technical training
of labour.”
11.3. We shall now dilate on the aspect of interpretation of
legislative Entries in the context of List I and List III of the Seventh
Schedule of the Constitution of India referred to above. The power to
legislate which is dealt with under Article 246 has to be read in conjunction
with the Entries in the three Lists which define the respective areas of
legislative competence of the Union and State Legislatures. While
interpreting these entries, they should not be viewed in a narrow or myopic
manner but by giving the widest scope to their meaning, particularly,
when the vires of a provision of a statue is assailed. In such circumstances,
a liberal construction must be given to the Entry by looking at the
substance of the legislation and not its mere form. However, while
interpreting the Entries in the case of an apparent
conflict, every attempt
must be made by the Court to harmonise or reconcile them. Where
there is an apparent overlapping between two Entries, the doctrine of
pith and substance is applied to find out the true character of the
enactment and the entry within which it would fall. The doctrine of pith
and substance, in short, means, if an enactment substantially falls within
the powers expressly conferred by the Constitution upon the legislature
which enacted it, the same cannot be held to be invalid merely because
it incidentally encroaches on matters assigned to another legislature.
Also, in a situation where there is overlapping, the doctrine has to be
applied to determine to which Entry, a piece of legislation could be related.
If there is any trenching on the field reserved to another legislature, the
same would be of no consequence. In order to examine the true character
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of enactment or a provision thereof, due regard must be had to the
enactment as a whole and to its scope and objects. It is said that the
question of invasion into another legislative territory has to be determined
by substance and not by degree.
11.4. In case of any conflict between Entries in List I and List II,
the power of Parliament to legislate under List I will supersede when, on
an interpretation, the two powers cannot be reconciled. But if a legislation
in pith and substance falls within any of the Entries of List II, the State
Legislature’s competence cannot be questioned on the ground that the
field is covered by Union list or the Concurrent list videPrafulla Kumar
Mukherjee vs. Bank of Commerce, Khulna, AIR  1947 P.C. 60,
(“Prafulla Kumar Mukherjee”).According to the pith and substance
rule, if a law is in its pith and substance within the competence of the
Legislature which has made it, it will not be invalid because it incidentally
touches upon the subject lying within the competence of another
Legislature vide State of Bombay vs. F.N. Balsara, AIR  1951 SC
318.
11.5. In Atiabari Tea Company Ltd. vs. State of Assam,  AIR
1961 SC 232,(“Atiabari Tea Company Ltd.”) it has been observed
by this Court that the test of pith and substance is generally and more
appropriately applied when a dispute arises as to the legislative competence
of the Legislature and it has to be resolved by reference to the Entries to
which the impugned legislation is
relatable. When a question of legislative
competence is raised, the test is to look at the legislation as a whole and
if it has a substantial and not merely a remote connection with the Entry,
the same may well be taken to be a legislation on the topic videUjagar
Prints vs. Union of India, AIR 1989 SC 516, (“Ujagar Prints”).
11.6.  The expression used in Article 246 is ‘with respect to’ any
of the matters enumerated in the respective Lists.  The said expression
indicates the ambit of the power of the respective Legislature to legislate
as regards the subject matters comprised in the various Entries included
in the legislative Lists.  For instance, where an Entry describes an object
of tax, all taxable events pertaining to the object are within that field of
legislation unless the event is specifically provided for elsewhere under
a different legislative Entry. Thus, the Court has to discover the true
character and nature of the Legislation while deciding the validity of a
legislation. Applying the doctrine of pith and substance while interpreting
the legislative Lists what needs to be seen is whether an enactment
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substantially falls within the powers expressly conferred by the
Constitution upon the Legislature which enacted it. If it does, it cannot
be held to be invalid merely because it incidentally encroaches on matters
assigned to another Legislature vide FN Balsara.
11.7. In Ujagar Prints, it was observed that the Entries in the
legislative Lists must receive a liberal construction inspired by a broad
and generous spirit and not in a narrow and pedantic manner. This is
because the Entries are not sources of legislative power but are merely
topics or fields of Legislation. The expression ‘with respect to’ in Article
246 brings in the doctrine of pith and substance in the understanding of
the exertion of the legislative power and wherever the question of
legislative competence is raised, the test is whether the Legislation, looked
at as a whole, is substantially ‘with respect to’ the particular topic of
Legislation. For applying the principle of pith and substance, regard must
be had (i) to the enactment as a whole, (ii) to its main object, and (iii) to
the scope and effect of the provision.
11.8. Once the Legislation is found to be ‘with respect to’ the
legislative Entry in question unless there are other constitutional
prohibitions, the power would be unfettered. It would also extend to all
ancillary and subsidiary matters which can fairly and reasonably be said
to be comprehended in that topic or category of Legislation
vide United
Provinces vs. Atiqa Begum, AIR 1941 FC  16, (“United Provinces”).
11.9. Another important aspect while construing the Entries in the
respective Lists is that every attempt should be made to harmonise the
contents of the Entries so that interpretation of one Entry should not
render the entire content of another Entry nugatory vide Calcutta Gas
Company vs. State of West Bengal, AIR 1962 SC  1044, (“Calcutta
Gas Company”).This is especially so when some of the Entries in a
different List or in the same List may overlap or may appear to be in
direct conflict with each other, in such a situation, a duty is cast on the
Court to reconcile the Entries and bring about a harmonious construction.
Thus, an effort must be made to give effect to both Entries and thereby
arrive at a reconciliation or harmonious construction of the same. In
other words, a construction which would reduce one of the Entries
nugatory or dead letter, is not to be followed.
11.10. The sequitur to the aforesaid discussion is that if the
Legislature passes a law which is beyond its legislative competence, it is
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a nullity ab-initio. The Legislation is rendered null and void for want of
jurisdiction or legislative competence vide RMDC vs. Union of India,
AIR 1957 SC 628, (“RMDC”).
11.11. Under the Seventh Schedule of the Constitution, Lists I &
II are divided essentially into two groups: One, relating to the power to
legislate on specified subjects and the other, relating to the power to tax.
In Hoechst Pharmaceuticals Ltd. vs. State of Bihar, AIR 1983 SC
1019, (“Hoechst Pharmaceuticals Ltd.”), it has been categorically
held that taxation is considered as a distinct matter for purposes of
legislative competence.
11.12. Having regard to the aforesaid discussion, we now answer
the points for consideration. While doing so, the following approach is
being adopted with regard to the interpretation of the Entries of the Lists
of the Seventh Schedule of the Constitution:
i)
The Entries in the different Lists should be read together
without giving a narrow meaning to any of them. The powers
of the Union and the State Legislatures are expressed in
precise and definite terms. Hence, there can be no broader
interpretation given to one Entry than to the other. Even
where an Entry is worded in wide terms, it cannot be so
interpreted as to negate or override another Entry or make
another Entry meaningless. In case of an apparent conflict
between different Entries, it is the duty of the Court to
reconcile them in the first instance.
ii)
In case of an apparent overlapping between
two Entries,
the doctrine of pith and substance has to be applied to find
out the true nature of a legislation and the Entry within
which it would fall.
iii)
Where one Entry is made ‘subject to’ another Entry, all
that it means is that out of the scope of the former Entry, a
field of legislation covered by the latter Entry has been
reserved to be specially dealt with by the appropriate
Legislature.
iv)
When one item is general and another specific, the latter
will exclude the former on a subject of legislation. If,
however, they cannot be fairly reconciled, the power
enumerated in List II must give way to List I.
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v)
On a close perusal of the Entries in the three Lists of the
Seventh Schedule of the Constitution, it is discerned that
the Constitution has divided the topics of legislation into the
following three broad categories: (i) Entries enabling laws
to be made; (ii) Entries enabling taxes to be imposed; and
(iii) Entries enabling fees and stamp duties to be collected.
Thus, the entries on levy of taxes are specifically mentioned.
Therefore, per se, there cannot be a conflict of taxation
power of Union and the State.
Contentions on behalf of the Union of India:
12. In this context, learned ASG appearing for Union of India Sri
Natraj submitted that there is a two-fold restriction on the field in which
the Assam State Legislature can enact a law as far as medical education
is concerned: the first is that any State law dealing with medical education
must be subject to Entry 66 of List I which deals with coordination and
determination of standards.  That any law to be made by the Assam
State Legislature or for that matter any State Legislature in the context
of education, particularly, medical education would be subjected to Entry
66 of List I. The second restriction on a law to be made by a State
Legislature is in exercise of its concurrent power with Parliament under
Entry 25 of List III which must not be a law which is repugnant to a
Central Legislation and that the parameters of Article 254 would apply
accordingly. He
contended that even before testing the validity of a
legislation made under Entry 25 of List III, it is necessary to, in the first
instance, consider as to whether the State Legislation impinges upon
any Central law which is in the realm of coordination and determination
of standards as envisaged in Entry 66 of List I. According to him, if that
is so, then the law made by the Parliament is the Central law which in
pith and substance is within the four corners of Entry 66 of List I and
would supersede any law made by a State legislature as per Entry 25 of
List III.  But if an enactment does not trench upon the subject mentioned
in Entry 66 of List I and a State Legislature enacts such a law within the
legislative competence of Entry 25 of List III in such a case the only test
to be applied is whether such a State Legislation is repugnant to any
Central Legislation which has also been made relatable to Entry 25 of
List III. If that is so, then the State Legislation being repugnant to the
Central law would be null and void unless it has received presidential
assent as envisaged under sub-clause (2) of Article 254 of the Constitution.
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13. Sri Natraj contended that, in the instant case, the IMC Act,
1956 is an enactment, which in pith and substance is, within the four
corners of Entry 66 of List I and is a Central Legislation in the mater of
coordination and determination of standards in medical education
applicable throughout the Country and hence, the State Law which is in
direct conflict with the Central Law cannot muster constitutionality.
Hence, it must fail and be declared null and void. This is because a State
law within the parameters of Entry 25 of List III is subject to Entry 66 of
List I and therefore, the State law must yield to the Central law. Learned
ASG contended that such an arrangement under the Constitution points
towards federal supremacy having regard to Article 246 of the
Constitution.
14. Therefore, according to Sri Nataraj, learned ASG, the State
law is null and void and has been rightly struck down by the Division
Bench of the Gauhati High Court. He, however, contended that the High
Court has applied the doctrine of repugnancy to strike down the State
enactment which was wholly unnecessary. Though the reasoning may
not be appropriate, the conclusion is correct. Bearing in mind the aforesaid
submissions of the learned ASG, we may proceed to consider the matter
further.
Interplay between Entry 66 of List I and Entry 25 of List III:
15. Since these appeals concern interpretation, inter alia, of Entry
66 of List I and Entry 25 of List III, it would be useful to
refer to the
following decisions of this Court, which examine the interplay of the
aforesaid Entries:
i)
In Gujarat University, Ahmedabad vs. Shri Krishna
Ranganath Mudhoklar, AIR 1963 SC 703, (“Gujarat
University, Ahmedabad”) the contest before a Constitution
Bench of this Court pertained to the fixation of an exclusive
medium of instruction in University Education and the
Legislative competence of the State Legislature to do so.
This Court considered, inter alia, the question as to whether
the Gujarat University Act, 1949, which authorized the
University to prescribe Gujarati or Hindi or both as an
exclusive medium of instruction and examination in the
affiliated colleges, would infringe Entry 66 of List I. One of
the arguments raised in that case was that under Entry 66
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of List I of the Seventh Schedule the power of co-ordination
and determination of standards in institutions for higher
education or research in scientific and technical institutions
was conferred upon Parliament and that these matters must
be regarded as having been excluded from Entry 11 of List
II (as it then stood), which read thus: “Education, including
universities, subject to the provisions of Entries 63, 64,
65 and 66 of List I and Entry 25 of List III.”
Addressing such a contention, J.C. Shah, J., speaking
for the majority (Subba Rao J. dissenting) observed that
the power of the State Legislature to legislate with respect
to higher scientific and technical education and vocational
and technical training of labour, is controlled by the five
items in List I and List III mentioned in Entry 11 of List II.
Items 63 to 66 of List I are carved out of the subject of
education and in respect of these items the power to legislate
is vested exclusively in the Parliament. That power of the
State to legislate in respect of education including
Universities must, to the extent to which it is entrusted to
the Parliament, be deemed to be restricted. It was further
observed that if a subject of legislation is covered by Entries
63 to 66 even if it otherwise falls within the larger field of
“education including universities,” as covered under Entry
11 of List II, the power to legislate on that subject must lie
only with the
Parliament. Acknowledging that Entry 11 of
List II and Entry 66 of List I undoubtedly overlap, it was
held that the said entries must be harmoniously construed
and to the extent of overlapping, the power conferred by
Entry 66 of List I must prevail over the power of the State
under Entry 11 of List II. The Majority on the Bench
concluded that the power, having regard to the width of
those items, must be deemed to vest with the Union. Power
to legislate in respect to medium of instruction, in so far it
has a direct bearing and impact upon the legislative head of
co-ordination and determination of standards in institutions
of higher education or research and scientific and technical
institutions, must also be deemed by virtue of Entry 66 of
List I, to be vested with the Union. This Court rejected the
argument that prescribing the medium of instruction is not
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a matter falling within determination and coordination of
standards of higher education in Entry 66 of List I. It held
expressly that it is within the purview of the said Entry.
Accordingly, it was held that the State Legislature was not
competent to legislate in that behalf.
ii)
In State of Tamil Nadu vs. Adhiyaman Educational and
Research Institute, (1995) 4 SCC 104,(“Adhiyaman
Educational and Research Institute”) this Court
considered the question, whether, even after the coming
into force of the All-India Council for Technical Education
Act, 1987, which is a Parliamentary enactment, the State
Government had the power to grant and withdraw
permission to start a technical institution, acting under the
Tamil Nadu Private College (Regulation) Act, 1976, and
the statutes and ordinances framed thereunder. The facts
leading to the controversy were that the Respondent
Institution applied to the Government of Tamil Nadu for
permission to start a new self-financing private Engineering
College in terms of a Government Memorandum dated 17th
April 1984, which permitted private managements to start
new Engineering Colleges under the self-financing scheme
without any financial commitment to the Government, but
subject to the fulfilment of certain conditions. The State
Government by its order of 9th June, 1987, granted
permission to the Trust to start a private Engineering College
under the name and style of Adhiyaman College of
Engineering at Hosur in Dharmapuri
district, beginning with
the academic year 1987-88. One of the conditions imposed
by the Government was that the institution could admit
candidates of its choice upto 50 per cent of the approved
intake under the management quota, and the remaining 50
per cent of the seats would be allotted by the Director of
Technical Education from among the candidates of the
approved list prepared for admission to Government and
Government-aided Engineering Colleges. The Government
had also stipulated that if any of the conditions imposed by
them was not fulfilled, the permission granted to start the
College would be withdrawn. In July, 1989, the University
sent a communication to the Respondent institution informing
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them that the Syndicate had accepted the report of the High
Power Committee appointed by the Government and it
resolved to reject the request of the institution for provisional
affiliation for 1989-90 for the first year and also the request
for provisional affiliation for second and third year courses
for 1989-90. By way of the said communication, the
Respondent was also informed that they should make
alternative arrangement to distribute the students already
admitted to the academic year 1987-88 and 1988-89 among
other institutions with adequate facilities. A challenge to
the communication and the resolution passed by the
Syndicate of the University accepting the report of the High
Power Committee appointed by the Government, was
carried before the High Court, and ultimately became the
subject of challenge before this Court. The larger question
before this Court in the said case was as regards the conflict
between the All-India Council for Technical Education Act,
1987 and the Tamil Nadu Private College [Regulation] Act,
1976, in so far as the State Act provided significantly
different and more stringent yardsticks to be complied with
by technical universities seeking recognition, as compared
to the Central enactment.
In that background, this Court undertook analysis of the
scope of Entry 66 of List I and Entry 25 of List III and
culled out the following principles:
“[i] The expression “coordination” used in Entry 66
of
the Union List of the Seventh Schedule to the Constitution
does not merely mean evaluation. It means harmonisation
with a view to forge a uniform pattern for a concerted
action according to a certain design, scheme or plan of
development. It, therefore, includes action not only for
removal of disparities in standards but also for preventing
the occurrence of such disparities. It would, therefore,
also include power to do all things which are necessary
to prevent what would make “coordination” either
impossible or difficult. This power is absolute and
unconditional and in the absence of any valid compelling
reasons, it must be given its full effect according to its
plain and express intention.
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[ii] To the extent that the State legislation is in conflict
with the Central legislation though the former is purported
to have been made under Entry 25 of the Concurrent
List but in effect encroaches upon legislation including
subordinate legislation made by the centre under Entry
25 of the Concurrent List or to give effect to Entry 66
of the Union List, it would be void and inoperative.
[iii] If there is a conflict between the two legislations,
unless the State legislation is saved by the provisions of
the main part of Clause [2] of Article 254, the State
legislation being repugnant to the Central legislation, the
same would be inoperative.
[iv] Whether the State law encroaches upon Entry 66
of the Union List or is repugnant to the law made by the
centre under Entry 25 of the Concurrent List, will have
to be determined by the examination of the two laws
and will depend upon the facts of each case.
[v] When there are more applicants than the available
situations/seats, the State authority is not prevented from
laying down higher standards or qualifications than those
laid down by the centre or the Central authority to short-
list the applicants. When the State authority does so, it
does not encroach upon Entry 66 of the Union List or
make a law which is repugnant to the Central law.
[vi] However, when the situations/ seats are available
and the State authorities deny an applicant the same on
the ground that the applicant is not qualified according
to
its standards or qualifications, as the case may be,
although the applicant satisfies the standards or
qualifications laid down by the Central law, they act
unconstitutionally. So also when the State authorities
derecognise or disaffiliate an institution for not satisfying
the standards or requirement laid down by them, although
it satisfied the norms and requirements laid down by the
central authority, the State authorities act illegally.”
Adverting to the facts of the said case, this Court ruled
that the provisions of the Central statute on the one hand
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and of the State statutes on the other, being inconsistent
and therefore, repugnant to each other, the Central statute
will prevail and the derecognition by the State Government
or the disaffiliation by the State University on grounds which
are inconsistent with those enumerated in the Central statute
were declared to be inoperative. It was observed that there
was no material on record which would demonstrate that
the standards laid down by the Central Act are inadequate
to ensure that the colleges eligible for recognition as per
the Central Act are able to successfully conduct the relevant
courses. Hence, it was held that the State Government did
not have the discretion to reject permission granted to any
technical institution, or derecognise the institution because
such institution has failed to satisfy the conditions laid down
by the State, which were inconsistent with those enumerated
in the Central statute.
iii)
In Preeti Srivastava vs. State of Madhya Pradesh, AIR
1999 SC 2894, (“Preeti Srivastava”) this Court
considered the question, whether, it was open to the State
to prescribe different admission criteria, in the sense of
prescribing different minimum qualifying marks, for special
category candidates seeking admission to the post-graduate
medical courses under the reserved seats category as
compared to the general category candidates. This Court
observed that both the Union as well as the States have the
power to legislate on education including medical education,
subject, inter alia, to Entry 66 of List I which deals with
laying down standards in institutions for higher education
or research and scientific and technical institutions as also
coordination of such standards. A State has, therefore, the
right to control education including medical education so
long as the field is not occupied by any Union Legislation.
It was further observed that the State cannot, while
controlling education in the State, impinge on standards in
institutions for higher education because that is exclusively
within the purview of the Union Government. Therefore,
while prescribing the criteria for admission to the institutions
for higher education including higher medical education, the
State cannot adversely affect the standards laid down by
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the Union of India under Entry 66 of List I. That since
norms for admission can have a direct impact on the
standards of education, only such norms or rules may be
prescribed which are consistent with or do not affect
adversely the standards of education prescribed by the Union
in exercise of powers under Entry 66 of List I. By way of
illustration, it was stated that a State may, for admission to
the postgraduate medical courses, lay down qualifications
in addition to those prescribed under Entry 66 of List I.
That such a rule would be consistent with promoting higher
standards for admission to the higher educational courses;
but any lowering of the norms laid down can and does have
an adverse effect on the standards of education in the
institutes of higher education. It was declared that it is within
the legislative competence of the State Legislature, in
exercise of power under Entry 25 of the Concurrent List to
prescribe higher educational qualifications and higher marks
for admission in addition to the one fixed by the Indian
Medical Council in order to bring out the higher qualitative
output from the students who pursue medical course. The
following factors were listed, which are non-exhaustive,
which determine the standard of education in an institution:
“(1) The calibre of the teaching staff;
(2) A proper syllabus designed to achieve a high level of
education in the given span of time;
(3) The student-teacher ratio;
(4) The ratio between the
students and the hospital beds
available to each student;
(5) The calibre of the students admitted to the institution;
(6) Equipment and laboratory facilities, or hospital
facilities for training in the case of medical colleges;
(7) Adequate accommodation for the college and the
attached hospital; and
(8) The standard of examinations held including the
manner in which the papers are set and examined and
the clinical performance is judged.”
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It was concluded in the said case that whether lower
minimum qualifying marks for the reserved category
candidates can be prescribed at the post-graduate level of
medical education was a question which must be decided
by the Medical Council of India since it affects standards
of post-graduate medical education. That even if minimum
qualifying marks can be lowered for the reserved category
candidates, there cannot be a wide disparity between the
minimum qualifying marks for the reserved category
candidates and the minimum qualifying marks for the general
category candidates at the level of post-graduation.
iv)
In Modern Dental College and Research Centre vs. State
of Madhya Pradesh, (2016) 7 SCC 353, (“Modern
Dental College and Research Centre”) this Court was
called upon to adjudicate upon a challenge to the vires of
the Niji Vyavasayik Shikshan Sanstha (Pravesh Ka
Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007,
read with the Madhya Pradesh Private Medical and Dental
Post Graduate Courses Entrance Examination Rules, 2009.
The said Act and Rules were framed primarily to regulate
the admission of students in post graduate courses in private
professional educational institutions and also contained
provisions for fixation of fee and reservation of seats in
such colleges. A challenge was laid by the Appellants therein,
which were unaided private medical and dental colleges, to
those provisions of the Act and Rules,
which sought to
regulate admission, fixation of fee, reservation and eligibility
criteria. The arguments raised by the Appellants therein
before this Court were founded, inter alia, on power of the
State to enact such a legislation. It was argued that the
matter of admission in higher educational institutional falls
within the purview of Entry 66 of List I to the Seventh
Schedule of the Constitution and is not covered under Entry
25 of List III of Seventh Schedule. In that background, this
Court undertook an analysis of the scope and ambit of Entry
66 of List I, relative to Entry 25 of List III.
This Court held that Entry 66 of List I is a specific Entry
having a very specific and limited scope. It deals with co-
ordination and determination of standards in institution of
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higher education or research as well as scientific and
technical institutions. Thus, when it comes to prescribing
the standards for such institutions of higher learning,
exclusive domain is given to the Union. That such co-
ordination and determination of standards, insofar as medical
education is concerned, is achieved by Parliamentary
legislation in the form of Medical Council of India Act, 1956
and by creating the statutory body like Medical Council of
India.
With reference to Entry 25 of List III, it was observed
that regulating ‘education’ as such, which includes medical
education as well as universities, is a matter under the
concurrent list. That earlier, education, including university
education, was the subject matter of Entry 11 of List II.
Thus, power to this extent was given to the State
Legislatures. However, this Entry was omitted by the
Constitution (Forty-Second Amendment) Act, 1976 with
effect from 03 July, 1977 and at the same time Entry 25 of
List II was amended. Education, including university
education, was thus transferred to Concurrent List and in
the process technical and medical education was also added
within the scope of Entry 25 of List II.
With that preface, it was observed in the said case that
on a harmonious reading of Entry 66 of List I and Entry 25
of List III, it would become manifest. That in matters
concerning co-ordination and laying down of standards in
higher education or research and scientific and technical
institutions, power rests with the Union/Parliament to the
exclusion of the State Legislatures. However, in so far as
other facets of education, including technical and medical
education, as well as governance of universities are
concerned, even State Legislatures are vested with power
by virtue of Entry 25 of List III of the Seventh Schedule of
the Constitution.  That the field covered by Entry 25 of List
III is wide enough and as circumscribed to the limited extent
of it being subject to Entries 63, 64, 65 and 66 of List I.
It was observed that most educational activities,
including admissions, have two aspects: the first of such
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aspects being the adoption and setting of the minimum
standards of education. That it was essential to lay down a
uniform minimum standard for the nation, with a view to
provide a benchmark quality of education being imparted
by various educational institutions across the country. To
this end, Entry 66 of List I was formulated with the objective
of maintaining uniform standards of education in fields of
research, higher education and technical education.
The Court went on to observe that the second aspect of
regulation of education is with regard to the implementation
of the standards of education determined by Parliament,
and the regulation of the complete activity of education.
This activity necessarily entails the application of the
standards determined by Parliament in all educational
institutions in accordance with the local and regional needs.
Therefore, it was held that while Entry 66 of List I dealt
with determination and co-ordination of standards, on the
other hand, the original Entry 11 of List II granted the States
the exclusive power to legislate with respect to all other
aspects of education, except the determination of minimum
standards and co-ordination which was in national interest.
Subsequently, vide the Constitution (Forty-second
Amendment) Act, 1976, the exclusive legislative field of
the State Legislature with regard to education was removed
and deleted, and the same was replaced by amending
Entry
25 of List III granting concurrent powers to both Parliament
and State Legislature the power to legislate with respect to
all other aspects of education, except that which was
specifically covered by Entries 63 to 66 of   List I.
In a concurring judgment, Bhanumati J. in paragraphs
131 to 134 and 147 to 149, has held as under:
“131. In order to answer the concern of other Constitution
Framers, Dr Ambedkar went on to clarify the limited
scope of List I Entry 66 (as in the present form), as
proposed by him in the following words: (CAD Vol. 9, p.
796)
Entry 57-A merely deals with the maintenance of
certain standards in certain classes of institutions,
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namely, institutions imparting higher education,
scientific and technical institutions, institutions for
research, etc. You may ask, “why this entry?” I shall
show why it is necessary. Take for instance, the BA
Degree examination which is conducted by the
different universities in India. Now, most provinces
and the Centre, when advertising for candidates,
merely say that the candidate should be a graduate
of a university. Now, suppose the Madras University
says that a candidate at the BA Examination, if he
obtained 15% of the total marks shall be deemed to
have passed that examination; and suppose the Bihar
University says that a candidate who has obtained
20% of marks shall be deemed to have passed the
BA degree examination; and some other university
fixes some other standard, then it would be quite a
chaotic condition, and the expression that is usually
used, that the candidate should be a graduate, I think,
would be meaningless. Similarly, there are certain
research institutes, on the results of which so many
activities of the Central and Provincial Governments
depend. Obviously, you cannot permit the results of
these technical and scientific institutes to deteriorate
from the normal standard and yet allow them to be
recognised either for the Central purposes, for all-
India purposes or the purposes of the State.
132. The intent of our Constitution Framers while
introducing Entry 66 of the Union List was thus limited
only to empowering the Union to lay
down a uniform
standard of higher education throughout the country and
not to bereft the State Legislature of its entire power to
legislate in relation to “education” and organising its own
common entrance examination.
133. If we consider the ambit of the present Entry 66 of
the Union List; no doubt the field of legislation is of very
wide import and determination of standards in institutions
for higher education. In the federal structure of India,
as there are many States, it is for the Union to coordinate
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between the States to cause them to work in the field of
higher education in their respective States as per the
standards determined by the Union. Entry 25 in the
Concurrent List is available both to the Centre and the
States. However, power of the State is subject to the
provisions of Entries 63, 64, 65, and 66 of the Union
List; while the State is competent to legislate on the
education including technical education, medical
education and universities, it should be as per the
standards set by the Union.
134. The words “coordination” and “determination of
the standards in higher education” are the preserve of
Parliament and are exclusively covered by Entry 66 of
the Union List. The word “coordination” means
harmonisation with a view to forge a uniform pattern
for concerted action. The term “fixing of standards of
institutions for higher education” is for the purpose of
harmonising coordination of the various institutions for
higher education across the country. Looking at the
present distribution of legislative powers between the
Union and the States with regard to the field of
“education”, that State’s power to legislate in relation to
“education, including technical education, medical
education and universities” is analogous to that of the
Union. However, such power is subject to Entries 63,
64, 65 and 66 of the Union List, as laid down in Entry 25
of the Concurrent List. It is the responsibility of the
Central
Government to determine the standards of higher
education and the same should not be lowered at the
hands of any particular State.
xxx xxx xxx xxx
147. Another argument that has been put forth is that
the power to enact laws laying down process of admission
in universities, etc. vests in both Central and State
Governments under Entry 25 of the Concurrent List only.
Under Entry 25 of the Concurrent List and erstwhile
Entry 11 of the State List, the State Government has
enacted various legislations that inter alia regulate
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admission process in various institutions. For instance,
Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam,
Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam,
Rashtriya Vidhi Sansathan Vishwavidyalaya Adhiniyam,
etc. were established by the State Government in
exercise of power under Entry 25 of the Concurrent
List. Similarly, the Central Government has also enacted
various legislations relating to higher education under
Entry 25 of the Concurrent List pertaining to Centrally
funded universities such as the Babasaheb Bhimrao
Ambedkar University Act, 1994, the Maulana Azad
National Urdu University Act, 1996, the Indira Gandhi
National Tribal University Act, 2007, etc. The Central
Government may have the power to regulate the
admission process for Centrally funded institutions like
IITs, NIT, JIPMER, etc. but not in respect of other
institutions running in the State.
148. In view of the above discussion, it can be clearly
laid down that power of the Union under Entry 66 of the
Union List is limited to prescribing standards of higher
education to bring about uniformity in the level of
education imparted throughout the country. Thus, the
scope of Entry 66 must be construed limited to its actual
sense of “determining the standards of higher education”
and not of laying down admission process. In no case is
the State denuded of its power to legislate under List III
Entry 25. More so, pertaining to the admission process
in universities imparting higher
education.
149. I have no hesitation in upholding the vires of the
impugned legislation which empowers the State
Government to regulate admission process in institutions
imparting higher education within the State. In fact, the
State being responsible for welfare and development of
the people of the State, ought to take necessary steps
for welfare of its student community. The field of “higher
education” being one such field which directly affects
the growth and development of the State, it becomes
prerogative of the State to take such steps which further
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the welfare of the people and in particular pursuing higher
education. In fact, the State Government should be the
sole entity to lay down the procedure for admission and
fee, etc. governing the institutions running in that
particular State except the Centrally funded institutions
like IIT, NIT, etc. because no one can be a better judge
of the requirements and inequalities-in-opportunity of the
people of a particular State than that State itself. Only
the State legislation can create equal level playing field
for the students who are coming out from the State Board
and other streams.”
v)
In Chintpurni Medical College and Hospital vs. State of
Punjab and Ors., AIR 2018 SC 3119, (“Chintpurni
Medical College and Hospital”)this Court considered the
question, whether, a State Government can withdraw an
Essentiality Certificate once granted to a medical college
and whether such power is ultra vires the Central Act. An
essentiality certificate is required to be issued by the State
Government within the territory of which the medical college
is proposed to be established, certifying the need in the
subject state, of a medical college. The concerned State
Government is required to certify that it has decided to issue
an essentiality certificate for the establishment of a medical
college with a specified number of seats in public interest,
and further that such establishment is feasible. In examining
whether such certificate,
which is required to be secured
by a college before seeking permission under Section 10A
of the IMC Act, 1956, could be subsequently cancelled by
the State, this Court held that the only purpose of the
essentiality certificate is to enable the Central Government
acting under Section 10A to take an informed decision for
permitting the opening or establishment of a new medical
college. Once the college is established, its functioning and
performance and even the de-recognition of its courses is
controlled only by the provisions of the Central Act and not
any other law. That it would therefore be impermissible to
allow any authority including a State Government which
merely issues an essentiality certificate, to exercise any
power which could have the effect of terminating the
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existence of a medical college permitted to be established
by the Central Government.
As regards the power of the Parliament under Entry 66
of List I, as juxtaposed with the power with the State
Legislatures under Entry 25 of List III, this Court made the
following observations:
“The IMC Act, which is a Legislation under Entry 66 of
List I of Seventh Schedule of the Constitution of India is a
complete code which governs the establishment, functioning,
including maintenance of standards of education and even
de-recognition of Medical Colleges vide Section 19 of the
Act. The States are denuded of the Legislative Power to
legislate on medical education under Entry 25 of the
Concurrent List since Parliament has exercised its power
under Entry 66 and enacted the IMC Act”
vi)
In Tamil Nadu Medical Officers Association vs. Union
of India, (2021) 6 SCC 568,(“Tamil Nadu Medical
Officers Association”) a Constitution Bench of this Court,
considered the question, whether, under the scheme of the
Constitution of India and the provisions of the IMC Act,
1956, read with the Medical Council of India Postgraduate
Medical Education Regulations, 2000, a State has the
legislative competence to enact legislation to provide for
reservation of seats for admission in postgraduate medical
courses, in favour of medical professionals working in
government organisations within the State. In other words,
the question before the Court pertained to the legislative
competence of the
states to make reservation for in-service
doctors in the State quota in post graduate degree/diploma
medical courses.
The primary contention of the Petitioners therein was
that while co-ordination and determination of standards in
institutions for higher education falls within the exclusive
domain of the Union, under Entry 66 of List I, medical
education is a subject in the Concurrent list, i.e., under Entry
25 of List III. That though Entry 25 of List III is subject to
Entry 66 of List I, the State is not denuded of its power to
legislate on the manner and method of making admissions
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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to post-graduate medical courses. The case of the
Petitioners therein was that the competence of the State
Government to make reservation for post-graduate seats
in medical colleges, in favour of in-service candidates, is
traceable to Entry 25 of List III, videModern Dental
College.  That since there was no plenary law by the Centre
to provide for any reservation for in-service candidates, it
would be competent for the State Governments to provide
for a reservation for in-service candidates. That in the
absence of a Central law governing the field, it would be
open to the State Government to enact a legal instrument
to provide reservation for in-service candidates.
This Court deliberated on the scope and ambit of Entry
66 of List I, and also on the question as to whether, in view
of the said Entry, the State Legislature is denuded of its
power to legislate on the manner and method of admissions
into post-graduate medical courses. Referring to the dictum
of this Court in Modern Dental College wherein it was
held that Entry 66 of List I is specific and limited in scope,
this Court observed that the said Entry pertains specifically
and exclusively to the prescription of standards for higher
education and research institutions and the scope of such
Entry would not extend to matters such as conduct of
examination, prescribing course fee or admission of students.
It was therefore declared that in exercise of powers under
Entry 66 of List I, the Union cannot provide for anything
with respect to reservation/ percentage of reservation and/
or mode of admission within the State quota, which powers
are conferred upon the States under Entry 25 of List III.
Further, referring to the provisions of the IMC Act, 1956
and more particularly, Section 33 thereof, which provides
for the power of the Council to make regulations, this Court
held that the said provision does not confer any authority or
power to frame regulations with respect to reservation in
medical courses. Therefore, in the absence of a Central
Law governing the field, it would be open to the State
Government to make provision for reservation by legislating
on the strength of Entry 25 of List III. This Court, therefore,
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concluded that that Entry 66 of List I is a very specific
Entry having limited scope and that the no provision for
reservation for in service candidates could be made under
the said Entry; that power to legislate on such matter is
traceable to Entry 25 of List III of the Seventh Schedule of
the Constitution.
Aniruddha Bose J. in a separate but concurring judgment
observed that although the students who would gain
admission into the post-graduate courses as a part of the
in-service quota, may not have been admitted purely based
on a uniform order of merit, and this might, to some degree
have an effect on the overall standard of medical education,
the term “standards” in Entry 66 of List I must not be
construed in such a manner. That the phrase “coordination
and determination of standards” as appearing in Entry 66
of List I should be construed as the standard of education
and other institutional standards which are to be complied
with. Therefore, it was held that reservation in favour of
in-service candidates, would in no way be regulated under
Entry 66 of List I.
16. Bearing in mind the aforesaid discussion, we shall proceed to
consider the scheme of the legislations relevant to these appeals.
16.1. The field of legislation covered under Entry 25 of List III is
subject to Entries 63, 64, 65 and 66 of List I. It is, therefore, necessary
to dilate on the effect of providing that one Entry or provision is ‘subject
to’ another. As per Black’s Law Dictionary,
5th Edition, Pg. 1278,
“subject to” means “liable, subordinate, subservient, inferior, obedient
to, governed or affected by.”  The following decisions would illustrate
the above meanings of the phrase ‘subject to’:
i)
In K.R.C.S. Balakrishna Chetty & Sons & Co. vs. The
State of Madras, AIR 1961 SC 1152, (“K.R.C.S.
Balakrishna Chetty & Sons & Co.”) this Court observed
that the expression “subject to” has reference to effectuating
the intention of the law and the correct meaning, of the
phrase is, “conditional upon”.
ii)
Similarly, in The South India Corporation (P) Ltd. vs.
The Secretary, Board of Revenue Trivandrum and Ors.,
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AIR 1964 SC 207, (“The South India Corporation (P)
Ltd.”) this court observed that the expression “subject to”
conveys the idea of a provision yielding place to another
provision or other provisions to which it is made subject.
This understanding of the phrase “subject to” has been
affirmed in K.T. Plantation (P) Ltd. vs. State of
Karnataka, (2011) 9 SCC 1, (“K.T. Plantation (P)
Ltd.”).
iii)
In Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr.,
(2004) 3 SCC 1, (“Ashok Leyland Ltd.”)  this Court held
that, “‘Subject to’ is an expression whereby limitation is
expressed.”
16.2.  In the facts of the present case, the Assam Act would be
subject to the provisions of the Central Act. This is because the Assam
Act is stated to be enacted on the strength of Entry 25 of List III, and
the power of the State Legislature under the said Entry is circumscribed
to the limited extent of it being subject to Entries 63, 64, 65 and 66 of
List I.
16.3. Where one Entry is made ‘subject to’ another Entry, it means
that out of the scope of the former Entry, a field of legislation covered by
the latter Entry has been reserved to be specially dealt with by the
appropriate Legislature. In the present context, the field of legislation
covered under Entry 25 of List III is subject to Entry 66 of List I. This
would imply that out of the scope of Entry 25 of List III, a field of
legislation covered by Entry 66 of List I is reserved to be dealt
with by
the Parliament. Hence, the field covered by the Central Act, enacted
under Entry 66 of List I, is carved out of the scope of Entry 25 of List III
and is reserved to be dealt with by the Parliament. What is that field of
legislation has to be identified.  We shall proceed to undertake the said
exercise by considering both the Central as well as the State enactments.
Indian Medical Council Act, 1956 (IMC Act, 1956)
(Central law)
17. The relevant provisions of the Indian Medical Council Act,
1956 (‘IMC Act, 1956’), read as under:
Preamble – 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.
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x x x
“2. Definitions.- In this Act, unless the context otherwise
requires,-
(a)   “approved institution” means a hospital, health centre or
other such institution recognised by a University as an
institution in which a person may undergo the training, if
any, required by his course of study before the award of
anymedical qualification to him;
x x x
(d)
“Indian Medical Register” means the medical register
maintained by the Council;
(e)
“medical institution” means any institution, within or without
India, which grants degrees, diplomas or licences in
medicine;
(f)   “medicine” means modern scientific medicine in all its
branches and includes surgery and obstetrics, but does not
include veterinary medicine and surgery;
x x x
(h)
“recognised medical qualification” means any of the medical
qualifications included in the Schedules;
x x x
(k)
“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;
x x x
10A. Permission for establishment of new medical college,
new course of study.—
(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 post-graduate 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
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(ii) 
increase its admission capacity in any course of study
or training (including a post-graduate 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
post-graduate course of study or training) in a medical college,
means the maximum number of students that may be fixed by the
Council from time to time for being admitted to such course or
training.
x x x
10B. Non-recognition of medical qualifications in certain
cases.—
(1) Where any medical college is established except with the
previous permission of the Central Government in accordance
with the provisions of section 10A, no medical qualification granted
to any student of such medical college shall be a recognised
medical qualification for the purposes of this Act.
(2) Where any medical college opens a new or higher course of
study or training (including a post-graduate course of study or
training) except with the previous permission of the Central
Government in accordance with the provisions of section 10A, no
medical qualification granted to any student of such medical
college on the basis of such study
or training shall be a recognised
medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity
in any course of study or training except with the previous
permission of the Central Government in accordance with the
provisions of section 10A, no medical qualification granted to any
student of such medical college on the basis of the increase in its
admission capacity shall be a recognised medical qualification for
the purposes of this Act.
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Explanation.—For the purposes of this section, the criteria for
identifying a student who has been granted a medical qualification
on the basis of such increase in the admission capacity shall be
such as may be prescribed.
x x x
11. Recognition of medical qualifications granted by
Universities or medical institutions in India.—
(1) The medical qualifications granted by any University or medical
institution in India which are included in the First Schedule shall
be recognised medical qualifications for the purposes of this Act.
(2) Any University or medical institution in India which grants a
medical qualification not included in the First Schedule may apply
to the Central Government to have such qualification recognised,
and the Central Government, after consulting the Council, may,
by notification in the Official Gazette, amend the First Schedule
so as to include such qualification therein, and any such notification
may also direct that an entry shall be made in the last column of
the First Schedule against such medical qualification declaring
that it shall be a recognised medical qualification only when granted
after a specified date.
x x x
13. Recognition of medical qualifications granted by certain
medical institutions whose qualifications are not included
in the First or Second Schedule.—
(1) The medical qualifications granted by medical institutions in
India which are not included in the First Schedule and which are
included in Part I of the Third
Schedule shall also be recognised
medical qualifications for the purposes of this Act.
(2) The medical qualifications granted to a citizen of India—
(a) 
before the 15th day of August, 1947, by medical institutions
in the territories now forming part of Pakistan, and
(b) 
before the Ist day of April, 1937, by medical institutions in
the territories now forming part of Burma,
which are included in Part I of the Third Schedule shall also be
recognised medical qualifications for the purposes of this Act.
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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(3) The medical qualifications granted by medical institutions
outside India before such date as the Central Government may,
by notification in the Official Gazette, specify which are included
in Part II of the Third Schedule shall also be recognised medical
qualifications for the purposes of this Act, but no person possessing
any such qualification shall be entitled to enrolment on any State
Medical Register unless he is a citizen of India and has undergone
such practical training after obtaining that qualification as may be
required by the rules or regulations in force in the country granting
the qualification, or if he has not undergone any practical training
in that country he has undergone such practical training as may
be prescribed.
x x x
15. 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 practise 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
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.
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x x x
19A. Minimum standards of medical education.—
(1) The Council may prescribe the minimum standards of medical
education required for granting recognised medical qualifications
(other than post-graduate medical qualifications) by Universities
or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Council to all State
Governments and the Council shall, before submitting the
regulations or any amendment thereof, as the case may be, to the
Central Government for sanction, take into consideration the
comments of any State Government received within three months
from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council
on the efficacy of the regulations and may recommend to the
Council such amendments thereof as it may think fit.
x x x
21. The 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 a public document within
the meaning of the India Evidence Act, 1872 (1 of 1872) and may
be proved by a copy published in the Gazette of India.
22. Supply of copies of the State Medical Registers.—
Each State Medical Council shall supply to the Council six printed
copies of the State Medical Register as soon as may be after the
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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commencement of this Act and subsequently after the first day of
April of each year, and each Registrar of a State Medical Council
shall inform the Council without delay of all additions to and other
amendments in the State Medical Register made from time to
time.
23. Registration in the Indian Medical Register.—
The Registrar of the Council may, on receipt of the report of
registration of a person in a State Medical Register or on
application made in the prescribed manner by any such person,
enter his name in the Indian Medical Register:
Provided that the Registrar is satisfied that the person concerned
possesses a recognised medical qualification.”
17.1.   On a conjoint reading of the aforesaid provisions, it is noted
that the IMC Act, 1956, is an Act which repealed the erstwhile Act of
1933 with the object of providing for the reconstitution of the Medical
Council of India and for the maintenance of a Medical Register for India
and for matters connected therewith. There are two significant provisions
which require consideration under this Act in the instant case: first is
Section 10A and the second is Section 15. However, while considering
the aforesaid Sections in detail, it would be worthwhile to refer to other
relevant provisions of the IMC Act, 1956.
17.2.  From the point of view of opening of a new medical institution
as defined under Section 2(e), Section 10A becomes relevant. It begins
with a non-obstante
clause and states that notwithstanding anything
contained in the IMC Act, 1956 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 post-graduate 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
training (including a post-graduate course of study or
training), except with the previous permission of the Central
Government obtained in accordance with the provisions of
this Section.
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Explanation 1 and Explanation 2 define the expression “person”
and expression “admission capacity” respectively. Although, the
expression “medical institution” has been defined in Section 2(e) to mean
any institution, which grants degrees, diplomas or licences in medicine
within or outside India, the expression “medical college” has not been
defined. But in our view, the said expressions could be read
interchangeably. Section 10A was inserted by the Act of 1993 with effect
from 27.08.1992.
17.3.  Thus, a condition precedent has been incorporated by an
amendment to the IMC Act, 1956, with regard to opening of any medical
institution/college in India which is, the seeking of previous permission
of the Central Government in accordance with the procedure prescribed
under Section 10A. In fact, this position is highlighted on a reading of
Section 10B which states that if a medical qualification is granted to any
student of a medical college which has been established de hors the
provisions of Section 10A, no such qualification shall be recognised under
the said Act. The phrase “recognised medical qualification” is defined in
Section 2(h) to mean any of the medical qualifications included in the
Schedules. There are three Schedules to the IMC Act, 1956. The First
Schedule deals with recognised medical qualifications granted by the
Universities or Medical Institutions in India. The Second Schedule
speaks of recognised medical qualifications granted by Medical
Institutions
outside India while the Third Schedule deals with recognised medical
qualifications granted by Medical Institutions not included in the First
Schedule.
17.4.  In this context, Sections 11 and 13 are also relevant. Sub-
section (1) of Section 11 states that the medical qualifications granted by
any University or Medical Institution in India which is included in the
First Schedule, shall be recognised medical qualification for the purposes
of the said Act. Sub-section (2) of Section 11 is significant as it states
that any University or medical institution in India which grants a medical
qualification not included in the First Schedule, may apply to the Central
Government to have such qualification recognised, and the Central
Government, after consulting the Council, may, by notification in the
Official Gazette, amend the First Schedule so as to include such
qualification therein, and any such notification may also direct that an
entry shall be made in the last column of the First Schedule against such
medical qualification declaring that it shall be a recognised medical
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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qualification only when granted after a specified date. On the other hand,
Section 13(1) states that the medical qualifications granted by Medical
Institutions in India which are not included in the First Schedule and
which are included in Part I of the Third Schedule shall also be recognised
medical qualifications for the purposes of the said Act. These are medical
qualifications such as LMP (Licenced Medical Practitioners) in various
States of India and erstwhile provinces of India.  The Third Schedule is
in respect of courses in medicine which were recognised prior to the
enforcement of the IMC Act, 1956, while the courses conducted by the
institutions mentioned in the First Schedule have recognition under the
said Act.
17.5.  Sections 11 and 13 have a bearing on Section 15 of the Act.
Section 15 states that, subject to the other provisions contained in the
Act, the medical qualifications included in the Schedules shall be sufficient
qualification for enrolment on any State Medical Register. Further, except
as provided in Section 25, no person other than a medical practitioner
enrolled on a State Medical Register shall, inter alia, practice medicine
in any State or 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. The
expression “State Medical Register” as per Section 2(k)
means a register
maintained under any law for the time being in force in any State,
regulating the registration of practitioners of medicine. The word
‘medicine’ is defined in Section 2(f) of the said Act to mean modern
scientific medicine in all its branches and includes surgery and obstetrics,
but does not include veterinary medicine and surgery.Therefore, unless
a person has sufficient qualification recognised under the Schedules to
the Act, he or she cannot be enrolled on any State Medical Register. In
the absence of any such enrolment, such a person is barred from practicing
medicine in any State.
17.6.  Further, all persons who are enrolled in any State Medical
Register and who possess any of the recognised medical qualifications
are enabled to be enrolled after registration as medical practitioners under
the Indian Medical Register. As per sub-Section (2) of Section 21, it is
the duty of the Registrar of the Indian Medical Council, to keep the
Indian Medical Register in accordance with the provisions of the IMC
Act, 1956, and to from time to time revise the register and publish it in
the Gazette of India and in such other manner as may be prescribed. In
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fact, under Section 22 of the Act, each State Medical Council has to
supply to the Indian Medical Council, six printed copies of the State
Medical Register on the first day of April of each year. On the receipt of
report of the registration of a person in a State Medical Register or on
application made in the prescribed manner by such person, enter his
name in the Indian Medical Register vide Section 23 of the Act. Removal
of the names from the Indian Medical Register is dealt with in Section
24, while provisional registration is dealt with in Section 25 of the Act
and registration of additional qualifications in Section 26 of the Act. Every
person whose name is for the first time being borne in 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
to.
18. It may be appropriate at this juncture to dilate on the Assam
Act, 2004.
Assam Rural Health Regulatory Authority Act, 2004 (Assam
Act):
The relevant provisions of the said Act are as extracted as under:
“2. Definitions.- In this Act unless the context otherwise requires:
(a)
‘Act’ means the Assam Rural Health Regulatory Authority
Act, 2004;
(b)
‘Authority’ means the Assam Rural Health Regulatory
Authority established under Section 3;
(c)
‘Certificate’ means a certificate issued by the Authority
under Section 17;
(d)
‘Course’ means the prescribed course of education and
training for the Diploma in Medicine and Rural Health Care;
(e)
‘Diploma in Medicine and Rural Health Care’ means the
diploma awarded by the Authority on successful completion
of the course of Diploma in Medicine and Rural Health
Care under the provisions of the Act;
x x x
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]
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(g)
‘Medicine’ means allopathic medicine but does not include
veterinary medicine;
(h)
‘Medicine and Rural Health Care’ means practice of
allopathic medicine and health care system in rural areas in
the State of Assam;
(i)
‘Medical institute’ means institute established under this Act
for imparting medical education both theoretical and practical
for the course of Diploma in Medicine and Rural Health
Care;
x x x
(l)
‘Rural areas’ means areas not included in a Municipal
Corporation, a Municipal Board or a Town Committee or
any other area notified as urban area;
x x x
(n)
‘Rural Health Practitioners’ means a holder of the diploma
in Medicine and Rural Health Care who has registered
himself as such with the Authority and obtained a certificate
and a registration number.
(o)
‘State Register of Rural Health Practitioners’ means the
register maintained under Section 17 and the expressions
“Registered’ and ‘Registration’ shall be construed
accordingly;
x x x
7. Minimum Standard. - The Authority may prescribe the
minimum standards of the course, the curriculum, the examination
etc. in respect of the course and prescribe by regulation the terms
conditions and norms to be fulfilled, facilities to be provided by a
Medical Institute for imparting education and training for the course
of Diploma in Medicine and Rural Health Care.
8. Permission to open a Medical Institute.- (1)
Notwithstanding anything contained in this Act or any
other law
for the time being in force no person or organization other than
the State Government of Assam shall establish a Medical Institute
without (a) the recommendation of the Authority and (b) prior
and expressed permission of the State Government.
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(2) Every person or organization or trust wanting to start a Medical
Institute shall for the purpose of obtaining permission under sub-
section (1) submit to the State Government a proposal in
accordance with the provisions of the Act and the rules framed
thereunder and the State Government shall refer the proposal to
the Authority for its scrutiny and recommendations.
(3) On receipt of the proposal, the Authority may obtain such
other particulars and information as may be considered necessary
from the person or the organization concerned and thereafter if
may, if the proposal is defective and does not contain any necessary
particular, give a reasonable opportunity to the person or
organization concerned for making a written representation and it
shall be open to such person or organization to rectify the defects,
if any, specified by the Authority.
(4) The State Government may after considering the proposal
and the recommendations or observations of the Authority and
after obtaining where necessary, such other particulars as may
be considered necessary by it from the person or the organization
concerned either approve (with such conditions, if any, as may be
considered necessary) or disapprove the proposal.
(5) The authority while making its recommendations and the State
Government while passing an order, either approving or
disapproving the proposal shall have due regard to the following
factors, namely, -
(a)
whether the proposed person or organization
seeking to open
a Medical Institute would be in a position to offer the
minimum standards of education as prescribed by the
Authority;
(b)
whether the person seeking to establish a Medical Institute
has adequate financial resources;
(c)
whether necessary· facilities in respect of staff; equipment,
accommodation, training and other facilities to ensure proper
functioning of the Medical institute;
(d)    whether adequate hospital facilities having regard ·to the
number of students likely to attend the Medical Institute
would be available;
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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(e)
whether adequate qualified teaching and non-teaching staff
would be available in the Medical Institute.,
(f)
any other condition as may be prescribed.
x x x
17. State Register of Rural Health Practitioners.- (1) The
Authority shall cause to be maintained in the prescribed manner
and form a Register of Diploma Holders in Medicine and Rural
Health Care to be known as the State Register of Rural health
Practitioners.
(2) It shall be the duty of Secretary to keep and maintain the State
Register of Rural Health Practitioners in accordance with the
provisions of this Act and the rules made thereunder.
(3) The State Register of Rural Health practitioners shall be
deemed to be a public document within the meaning of the Indian
Evidence Act, 1872.
(4) Every person on successful completion of the course shall be
eligible for enrollment in the State Register of Rural Health
Practitioners on furnishing to the Secretary the proof of such
qualification and on payment of such fees as may be prescribed.
(5) Every person whose name has been enrolled in the State
Register of Rural Health Practitioners shall be entitle to have a
certificate issued by the Authority under the hand and seal of the
President and the Secretary and bearing a Registration Number
and shall be eligible to practise medicine and Rural Health Care in
rural areas of the State of Assam.
x x x
24. Powers and Functions.- The Rural Health Practitioners shall
be
eligible to practise Medicine and Rural Health Care subject to
the following conditions namely.
(a)   they shall treat only those diseases and carry out those
procedures which shall be outlined in the rules;
(b)
they shall prescribe only those drugs, which shall be outlined
in rules;
(c)   they shall not carry out any surgical procedure, invasion,
investigation or treatment, ‘Medical Termination or;
Pregnancy etc. but shall confine themselves to such
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medicinal treatment and perform such minor surgery as may
be prescribed.
(d)
they shall practice only in rural areas as defined in the Act;
(e)
they may issue illness certificates and death certificates.
(f)
they shall maintain name, address, age, sex, diagnosis and
treatment records of all patients treated by them; and
(g)
they shall not be eligible for employment in Hospitals,
Nursing Homes and Health establishments located in urban
areas as General Duty Physicians involved in patient care
in OPD, Emergency and Indoor Services.
18.1. The Assam Act is an Act to provide for the establishment of
a regulatory authority in the State of Assam to regulate and register the
Diploma holders in Medicine & Rural Health Care (DMRHC) and their
practice of medicine in rural areas and also to regulate opening of Medical
Institutes for imparting education and training for the course of Diploma
in Medicine and Rural Health Care (DMRHC).
18.2. Section 3 of the said Act deals with the establishment of the
Assam Rural Health Regulatory Authority (in short “the Authority”).
The powers and functions of the authority are enumerated in Section 6,
inter alia, to include;
(a)
to hold, conduct and regulate the examination for the course
that is Diploma in Medicine and Rural Health Care including
entrance test for admission into the Medical Institute;
(b)
to maintain State Register of Rural Health Practitioners;
(c)
to lay down the norms and standards for the course,
curriculum
facilities for instruction, training assessments and
examinations for students undergoing the course for
Diploma in Medicine and Rural Health Care and of the
Medical Institute;
(d)
to provide guidelines for admission of the students to the
course.
(e)
to inspect physical facilities, staff position, Hospital and
academic infrastructure of a Medical Institute imparting
education and training for Diploma in Medicine and Rural
Health Care at the time of starting of such an Institute and
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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to give no objection certificate after the said Institute has
completed all formalities and norms and to make periodical
inspection to judge compliance of shortcomings pointed out,
and to maintain standard of the Institute;
18.3. Section 8 deals with opening of a medical institute. Sub
section (1) of Section 8 begins with a non-obstante clause and states
that, notwithstanding anything contained in the Assam Act or any other
law for the time in force, no person or organisation other than the State
Government of Assam shall establish a Medical Institute without (a) the
recommendation of the Authority and (b) prior and expressed permission
of the State Government. Sub-section (2) of Section 8 states that any
person or organisation or trust wanting to start a Medical Institute must
obtain permission from the State Government by submitting a proposal
to the State Government. The State Government shall refer the proposal
to the Authority for its scrutiny and recommendations. The Authority
can prescribe the minimum standards of the course, the curriculum, the
examination etc. in respect of the course and prescribe the regulation,
the terms and conditions and norms to be fulfilled, facilities to be provided
by a medical institute for imparting education and training for the course
of Diploma in Medicine and Rural Heal Care. The Authority has the
power to withdraw recognition, when an Institute does not conform to
the
standards prescribed by the authority, by making a reference to that
effect to the State Government and the State Government may, on
consideration of an explanation from the concerned Medical Institute
and on making further enquiry, de-recognise an Institute.
18.4. Section 17 of the Assam Act speaks of State Register of
Rural Health Practitioners. That the Authority shall cause to be
maintained in the prescribed manner and form a register of Diploma
Holders in Medicine and Rural Health Care to be known as the State
Register of Rural Health Practitioners.  Every person on successful
completion of the course that is, the course of education and training for
the Diploma in Medicine and Rural Healthcare, shall be eligible for
enrolment in the State Register of Rural Health Practitioners on furnishing
the proof of such qualification and on payment of such fees as may be
prescribed.  Every person whose name has been enrolled in the State
Register of Rural Health Practitioners shall be entitled to have a certificate
to be issued by the Authority bearing a Registration Number and shall be
eligible to practise Medicine and Rural Health Care in rural areas. The
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Rural Health Practitioners cannot use the word “Doctor” or “Dr.” before
and after their names. However, they can identify themselves as Rural
Health Practitioners or RHP.
18.5. Section 21 of the Assam Act states that no person whose
name is not enrolled or has been cancelled or removed from the State
Register of Rural Health Practitioner shall practise Medicine and Rural
Health Care at any place whether urban or rural in the State of Assam.
The powers and functions of Rural Health Practitioners are delineated
in Section 24 which clearly states that they can practice subject to the
following conditions namely:
(a)
to treat only those diseases and carry out only those
procedures which are outlined in the rules;
(b)
to prescribe only those drugs, which are outlined in the rules;
(c)
not to carry out any surgical procedure, invasion,
investigation or treatment, Medical Termination of
Pregnancy etc. but confine themselves to such medicinal
treatment and perform such minor surgery as may be
prescribed.
(d)
to practise only in rural areas as defined in the Assam Act;
(e)
to issue only illness certificates and death certificates;
(f)
they shall maintain name, address, age, sex, diagnosis and
treatment records of all patients treated by them;
(g)
not to be employed in Hospitals, Nursing Homes and Health
establishments located in urban areas as General Duty
Physicians involved in patient care in OPD, Emergency and
Indoor Services.
18.6. Section 22 of the Assam Act
empowers the State Government
to make rules, while Regulations could be made by the Authority with
the previous approval of the State Government, as per Section 23 of the
Act.
18.7. The Regulations of Assam Rural Health Regulatory Authority,
2005, regarding admission into Diploma in Medical and Rural Health
Care course in Medical Institutes of the State were framed under which
minimum standards for Medical Institutes offering Diploma in Medicine
and Rural Health Care were prescribed under which the subjects to be
taught were as under:
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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“3. SUBJECTS TO BE TAUGHT:
(a)
Anatomy
(b)
Physiology & Biochemistry
(c)
Community Medicine
(d)
Pathology & Microbiology
(e)
Pharmacology
(f)
Medicine and Paediatrics
(g)
Surgery and Orthopaedics
(h)
Obstetrics and Gynaecology
(i)
Eye & ENT
(j)
Basics of Radiology and Imaging
(k)
Basics of Forensic and State Medicine
(l)
Basics of Human Genetics
(m) Basics of Dentistry.”
18.8. Regulation 3 of the 2005 Regulations prescribes the
curriculum for the course of Diploma in Medicine and Rural Health
Care in the subjects referred to above. Annexure I to the regulations
deals with the lists of diseases that can be treated by a Diploma holder in
Medicine and Rural Health Care including the procedures that can be
carried out, whereas, Annexure II lists the drugs that can be prescribed
by such a diploma holder.  The same read as under:
“ANNEXURE-1
DISEASES THAT CAN BE TREATED BY A DIPLOMATE
OF MEDICINE AND RURAL HEALTH CARE
Acute bacterial infections febrile illnesses, diarrhoea, dysentery,
viral infections, malaria, amoebiasis, giardiasis, worm infestations,
gastroenteritis, cholera, typhoid fever, vitamin deficiencies, iron
deficiency anaemia, malnutrition, upper respiratory infections,
actuate bronchitis,  bronchial asthma, hypertension, heart failure,
in ischemic heart disease, peptic ulcer, acute gastritis, viral hepatitis,
urinary tract infection, common skin infections, scabies, leprosy,
first aid in poisoning and trauma,
snake bite and animal bite. In
children fever, respiratory infections, diarrhoeal diseases, nutritional
deficiencies, anaemia, jaundice, convulsion, measles, chicken pox,
asthma, scabies and other common skin infections. Care in
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pregnancy, child birth and post-natal period, family welfare
activities.
PROCEDURES THAT CAN BE CARRIED OUT BY A
DIPLOMATE IN MEDICINE AND RURAL HEALTH CARE:-
Venupuncture, venesection, application of bandages and dressings,
nasogastric intubation, catheterization, peritoneal tap, normal
delivery.
OPERATIVE PROCEDURES PERMITTED TO BE CARRIED
OUT BY A DIPLOMATE IN MEDICINE AND RURAL
HEALTH CARE
Repair of small wounds by stitching, drainage of abscess; burn
dressing, application of splints in fracture cases, application of
tourniquet in case of severe bleeding wound in a limb injury.
Conduction of delivery, episiotomy, stitching of vaginal tear during
labour.
ANNEXURE-II
DRUGS THAT CAN BE PRESCRIBED BY DIPLOMATE
IN MEDINE AND RURAL HEALTH CARE: -
Antacids, H2 receptor blockers, proton pump inhibitors, sucralfate.
Antihistaminic.
Antibiotics-cotrimoxazole, trimethoprim, norfloxacin, quinolones,
tetracycline, chloramphenicol, streptomycin gentamycin, penicillin,
cephalosporin, erythromycin, nitrofurantoin, metronidazole,
tinidazole;
Antitubercular-INH, rifampicin, ethambutol, pyrazinamide,
streptomycin, Anthelminthics-mebendazole, albendazole,
piperazine.
Antimalerials-chioroquine, quinine, primaquine, sulfadoxine-
pyrimethamide.
Antileprosy-dapsone, rifampicin, clofazimine.
Topical antifungal.
Antiviral-acyclovir. Antiamoebic-metronidazole, tinidazole,
doloxanide furoate, chloroquine.
Antiscabies-benzyle-benzoate, gamma benzene hexachloride,
Anticholinergic-atropine.
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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Antiemetics
Antipyretics and analgesics
Laxatives
Oral rehydration solutions.
Haematinics and vitamins.
Diuretics and antihypertensives
Nitroglycerine
Sedatives and antiepilectics-phenobarbitone, diazepam, phenytoin.
Bronchodilators-salbutamol, theophyiline, aminophylline,
corticosteroids.
Expectorants
Uterine stimulants and relaxants, oral contraceptic pills.”
19. A comparative table and analysis of the provisions of the
IMC Act, 1956 and the Assam Act is as under:

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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SUPREME COURT REPORTS
[2023] 9 S.C.R.

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E
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989
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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SUPREME COURT REPORTS
[2023] 9 S.C.R.

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B
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991
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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SUPREME COURT REPORTS
[2023] 9 S.C.R.

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B
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D
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993
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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A comparative study between MBBS, DMRHC is made is under:

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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20. The following aspects of the matter emerge when the
provisions of the Assam Act are considered in juxtaposition with the
corresponding provisions of the Central Act:
i)
The Central Act operates in the area of modern scientific
medicine, in all its branches, vide Section 2(f). The Assam
Act seeks to regulate the practice of allopathic medicine, in
rural areas, vide Section 2(g). Essentially, modern scientific
medicine, includes allopathy. In other words, modern
scientific medicine is the genus and allopathic medicine is a
species of modern scientific medicine. This view has been
adopted by this Court in A.K. Sabhapathy and Dr.
Mukhtiar Chand. Therefore, the practice in modern
scientific medicine including allopathic medicine, is governed
by the Central Act. Hence, in order to be recognised as a
practitioner in any branch of modern scientific medicine,
including allopathic medicine, the qualifications that must
mandatorily be obtained are those listed in the Schedules to
the Central Act.
ii)
Further, Section 17 of the Assam Act provides that persons
holding a Diploma in Medicine and Rural Health Care after
successful completion of the course instituted under the Act,
would be registered as Rural Health Practitioners and would
be eligible to practise ‘medicine’ and Health Care in rural
areas of Assam. The Assam Act permits Diploma holders
to practise ‘medicine’, i.e., allopathic medicine, in rural areas
of Assam. We are unable to accept that allopathic
medicine,
which is governed by the Central Act, may be practised by
persons who do not possess the qualifications contemplated
under the Schedules to the Central Act.
iii)
Practise in modern scientific medicine, including allopathic
medicine, must be permitted only after having successfully
undergone the academic rigor, as prescribed under the
Central Act. The Central Act, in Section 33 authorizes the
Council to prescribe inter alia, the courses and period of
study, practical training to be undertaken, subjects,
examination and standards of proficiency required to be
achieved. Therefore, it is problematic to hold that without
having successfully gone through meticulous training as
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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contemplated under the Central Act, a person may practise
medicine.
iv)
On a close reading of Section 15 of the Central Act, in
conjunction with Section 24 of the Assam Act, we find that
Rural Health Practitioners possessing a Diploma under the
Assam Act have been authorised to perform certain
functions identical to those performed by medical
practitioners who possess qualifications prescribed under
the Central Act. Such functions include treatment of
common illnesses, prescription of certain categories of
drugs, performance of minor surgeries, issuance of illness
and death certificates. Performance of such functions by
persons who do not possess the qualifications prescribed
under the Central Act, could, in our view, have dangerous
consequences.
It is to be noted that insofar as Entry 25 of List III is concerned,
there are dual restrictions which would operate on the legislative
competence of a State Legislature to enact any law under the said Entry:
first is, if such a law is to be made by the State Legislature, it is always
subject to Entries 63, 64, 65 and 66 of List I or the Union List, in respect
of which only the Parliament has the power to enact a law. The second
restriction is with regard to the subject of the Entry as a whole. If the
Parliament has made any law which is outside the scope of Entries 63,
64, 65 and 66 of List I but within the scope of Entry 25 of List III, in such
a case Article 254 and the
principles of repugnancy would apply if a
State Law is in conflict with such Parliamentary Law.
In the instant case the law made by the State Legislature, namely,
the Assam Act is hit by the first of the aforesaid two restrictions; hence,
it is null and void as the Assam Legislature lacked the legislative
competence to enact such a Law.
In light of the aforesaid discussion, we are of the considered view
that Rural Health Practitioners enlisted under the Assam Act, are
underqualified to perform functions similar to those performed by medical
practitioners registered in accordance with the Central Act. In order to
be recognised as a practitioner in any branch of modern scientific medicine,
including allopathic medicine, the qualifications that must mandatorily be
obtained are those listed in the Schedules to the Central Act.
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Triology of Cases
21. We next consider the three decisions relied upon by learned
senior counsel for the appellants.
(A) Dr. Mukhtiar Chand vs. State of Punjab, (1998) 7 SCC
579, (“Dr. Mukhtiar Chand”):
(i)
In this case the controversy was with regard to the issuance
of declarations by the State of Punjab under clause (iii) of
Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 (for
short, ‘Drugs Rules’) which defines “registered medical
practitioner”. The State of Punjab issued a notification dated
29.10.1967 declaring all the vaids/hakims who had been
registered under the East Punjab Ayurvedic and Unani
Practitioners Act, 1949, and the PEPSU Ayurvedic and
Unani Practitioners Act, 2008, and the Punjab Ayurvedic
and Unani Practitioners Act, 1963, as persons practising
modern system of medicine for the purposes of the Drugs
Act. 
(ii)
Before this Court, it was contended that the right of
practitioners of Indian medicine to practice modern scientific
system of medicine (allopathic medicine) is protected under
Section 17(3)(b) of the Indian Medicine Central Council
Act, 1970 (‘IMCC Act, 1970’ for short).
(iii)
While dealing with the IMC Act, 1956, this Court observed
that in order to ensure professional standards required to
practice allopathic medicine, the IMC Act, 1956 was passed,
and the said Act also deals with the reconstitution of the
Medical Council of India and maintenance of an Indian
Medical Register. Section 2(f) of the IMC Act, 1956, defines
“medicine” to mean “modern scientific medicine” in all its
branches and includes surgery and obstetrics, but does not
include veterinary medicine and surgery and the expression
“recognised medical qualification” is defined in Section 2(h)
of the said Act to mean any of the medical qualifications
included in the Schedules to the Act. Further, referring to
Section 15 of the IMC Act, 1956, it was observed that
qualifications included in the Schedules shall be sufficient
qualification for enrolment in any State Medical Register;
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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but in none of the Schedules, the qualifications of integrated
courses figure. Consequently, by virtue of this section,
persons holding degrees in integrated courses cannot be
registered in any State Medical Register. Hence, by Act 24
of 1964, Section 15 of the IMC Act, 1956, was modified by
adding two more sub-sections. Section 15(2)(b) thereof
prohibits all persons from practicing modern scientific
medicine in all its branches in any State except a medical
practitioner enrolled in a State Medical Register. There are
two types of registration as far as the State Medical Register
is concerned: the first is under Section 25 and the second is
under Section 15(1) of the said Act. The third category of
registration is in the “Indian Medical register” which the
Indian Medical Council is enjoined to maintain under Section
21 of the said Act for which recognised medical qualification
is a prerequisite.
(iv)
The privileges of persons who are enrolled in the Indian
Medical Register are mentioned in Section 27 of the IMC
Act, 1956, and include the right to practice as a medical
practitioner in any part of India. On the other hand, State
Medical Registers are maintained by the State Medical
Council of respective States which are not constituted under
the IMC Act, 1956, but are constituted under any law for
the time being in force, in any State regulating the registration
of practitioners of medicine. It is, thus, possible that
in any
State, the law relating to registration of practitioners of
modern scientific medicine may enable a person to be
enrolled on the basis of the qualifications other than the
“recognised medical qualification” which is a prerequisite,
only for being enrolled in the Indian Medical Register and
not for the purposes of registration in a State Medical
Register. A person holding “recognised medical qualification”
cannot be denied registration in any State Medical Register,
but a person registered in a State Medical Register cannot
be enrolled in the Indian Medical Register unless he
possesses “recognised medical qualification”. This follows
from a combined reading of Sections 15(1), 21(1) and 23 of
the IMC Act, 1956. So, by virtue of such qualifications as
prescribed in a State Act and on being registered in a State
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Medical Register, a person will be entitled to practice
allopathic medicine under Section 15(2)(b) of the IMC Act,
1956.
(v)
In this context, it would be relevant to mention what are the
recognised medical qualifications in the context of the First
and Third Schedules to the IMC Act, 1956. While the First
Schedule deals with recognised medical qualifications
secured by persons from recognised Universities in India,
on the other hand, the Third Schedule deals with medical
qualification attained under the Pre-Independence
recognised medical enactments such as Bombay Medical
Act, 1912, the Bihar and Orissa Medical Act, 1916, the
Punjab Medical Registration Act, 1916, etc.
(vi)
It was further observed in the said Judgment that Rule 2(ee)
of the Drugs Rules was inserted with effect from
14.05.1960, while Section 15 of the IMC Act, 1956, as it
then stood, only provided that the medical qualifications in
the Schedules shall be sufficient qualification for enrolment
in any State Medical Register. Therefore, there was no
inconsistency between the Section and the Rule when it
was brought into force. However, after sub-section (2) of
Section 15 was inserted into the said Act, a medical
practitioner enrolled in a “State Medical Register” could
practice modern scientific medicine in any State but the
rights of non-allopathic doctors to prescribe drugs by virtue
of the declaration issued under the said Drugs Rules, by
implication, got obliterated. However, this Court
observed
that it did not debar them from prescribing or administering
allopathic drugs sold across the counter for common
ailments.
(vii)
On a harmonious reading of Section 15 of the IMC Act,
1956 and Section 17 of the IMCC Act, 1970, it was observed
that there is no scope for a person enrolled in the State
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 enrolled in a State
Medical Register within the meaning of the IMC Act, 1956.
Right to practice modern scientific medicine or Indian
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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system of medicine cannot be based on the provisions of
the Drugs Rules and declaration made thereunder by State
Governments.
(viii) In the above context, it was held that Rule 2(ee)(iii) as
effected from 14.05.1960 was valid and did not suffer from
the vice of want of legislative competence and the
notifications issued by the State Governments thereunder
were not ultra vires the said Rule and were legal. That
after sub-section (2) in Section 15 of the IMC Act, 1956,
occupied the field vide Central Act 24 of 1964 with effect
from 16.06.1964, 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 practice
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. That the position
with regard to medical practitioners of Indian medicine
holding degrees in integrated courses is on the same plane
inasmuch as if any State Act recognises their qualification
as sufficient for registration in the State Medical Register,
the prohibition contained in Section 15(2)(b) of the IMC
Act, 1956 will not apply. Thus, as far as modern medicine
or allopathic medicine is concerned, the provisions of Section
15 of the IMC Act, 1956, would again become relevant
inasmuch as Section 15(1) of the IMC Act, 1956, would
have to be fulfilled before a
person can be enrolled in any
State Medical Register insofar as modern scientific medicine
is concerned. If such a person does not fulfil the requirement
of sub-section (1) of Section 15, then he would not have a
recognised medical qualification in modern scientific
medicine, in which event he cannot be registered in the
said Medical Register under the IMC Act, 1956. Even
insofar as those medical practitioners holding degrees in
integrated courses are concerned, the State has to recognise
their qualifications as sufficient for registration in the State
Medical Register, otherwise, the prohibition under Section
15(2)(b) would apply, qua practice of modern scientific
medicine. In such an event, they would not be empowered
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to prescribe allopathic drugs covered by the Indian Drugs
and Cosmetics Act, 1940 (Drugs Act) and they can only
prescribe allopathic drugs sold across the counter for
common ailments.
(B) Subhasis Bakshi vs. W.B. Medical Council, (2003) 9 SCC
269, (“Subhasis Bakshi”):
(i)
In this case the appellants therein, who had completed the
diploma course of Community Medical Service from duly
recognised institutions in the State of West Bengal and were
posted in different parts of the State, had assailed the
Notification dated 15.10.1980, issued by the Government
of West Bengal by which amendments were made to the
statute of the State Medical Faculty by introducing Article
6-F under Part B. Thereafter, a Corrigendum was issued
and the diploma course that was earlier known as “Diploma
in Medicine for Community Physicians” was rechristened
as “Diploma in Community Medical Service”.
The grievance of the appellants therein was that although
they could treat certain common diseases but they had no
right to issue certificates of sickness or death, prescriptions
etc. as the same was taken away by a Notification dated
21-11-1990. Subsequently, challenging the denial of
“consequential right to treat” such as the right to issue
prescription or certificates of sickness or death, the second-
round of litigation began. A Writ Petition was filed before
the Calcutta High Court which was allowed in favour of
the appellants, subject to the condition that they would not
be allowed
to pursue private practice and it was made clear
that their only right was to prescribe medicines and issue
certificates and this part of the order became final.
However, the Bengal Medical Council preferred an
appeal before the Division Bench of the Calcutta High Court.
Relying on Dr. A.K. Sabhapathy vs. State of Kerala and
others, AIR 1992 SC 1310, (“Dr. A.K. Sabhapathy”)
whereinit was found that “a person can practise in allopathic
system of medicine in a State or in the country only if he
possesses a recognised medical qualification” and since the
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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appellants therein did not possess the required qualification,
it was held that their names could not be included in the
Medical Register. On this basis, the appellants approached
this Court.
This Court considered the question as to whether the
right to issue prescription or certificates could be treated as
a part of right to treat. This Court observed that once the
right to treat is recognised, then the right to prescribe
medicine or issue necessary certificate flows from it, or
else the right to treat cannot be completely protected. It
was further observed that appellants therein had the right
to prescribe medicine. Consequently, the order of the
Division Bench was set aside and the order of the learned
Single Judge was restored.
A direction was issued to include the names of all the
diploma-holders concerned in the State Medical Register
for the limited purpose indicated therein.
(C) Dr. A.K.Sabhapathy vs. State of Kerala, AIR 1992 SC
1310,(“Dr. A.K.Sabhapathy”):
(i)
In this case, the validity of the first proviso to Section 38 of
the Travancore Cochin Medical Practitioners’ Act, 1953
(for short, “the State Act”) and the order dated 20.09.1978
and a notification dated 13.04.1981 issued by the
Government of Kerala, were assailed. This Court considered
the aforesaid State Law in light of the IMC Act, 1956 (“the
Central Act”) and observed that the expression ‘modern
scientific medicine’ in Section 2(f) of the Central
Act refers
to the Allopathic system of medicine and that the provisions
of the Central Act have been made in relation to medical
practitioners practising the said system. This view found
support from the fact that after the enactment of the Central
Act, the Parliament had enacted the IMCC Act, 1970 in
relation to the system of Indian medicine commonly known
as Ayurveda, Siddha and Unani and the Homoeopathy
Central Council Act, 1973 in relation to Homoeopathic
system of medicine wherein provisions similar to those
contained in the Central Act had been made in relation to
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the said systems of medicine. This Court was of the view
that from the provisions of the State Act, noticed earlier, it
was evident that the field of operation of the State Act
covered all the systems of medicine, namely, Allopathic,
Ayurvedic, Siddha, Unani and Homoeopathic systems of
medicine. Moreover, the State Act dealt with recognition
of qualifications required for registration of a person as a
medical practitioner in these systems, conditions for
registration of medical practitioners and maintenance of
register of practitioners for each system and the constitution
of separate councils for modern medicine, homoeopathic
medicine and indigenous medicine.
It was observed that as compared to the State Act, the
field of operation of the Central Act is restricted and it is
confined in its application to modern scientific medicine,
namely, the Allopathic system of medicine only, wherein it
also deals with recognition of medical qualifications which
may entitle a person to be registered as a medical
practitioner; constitution of the Medical Council of India to
advise the Central Government in the matter of recognition
or withdrawal of recognition of medical qualifications, to
prescribe the minimum standards of medical education
required for granting recognised medical qualifications by
Universities or Medical Institutions in India and to appoint
inspectors and visitors for inspection of any medical
institution, college or hospital. It also provides for
maintaining
the Indian Medical Register and for enrolment of a person
possessing recognised medical qualification in the said
register and for removal of a person from the said register.
That the Central Act does not deal with the registration of
medical practitioners in the States and it proceeds on the
basis that the said registration and the maintenance of State
Medical Register is to be governed by the law made by the
State. This Court was of the view that, it cannot, therefore,
be said that the Central Act lays down an exhaustive code
in respect of the subject matter dealt with by the State Act.
It can, however, be said that the Central Act and the State
Act, to a limited extent occupy the same field, viz.,
recognition of medical qualifications which are required for
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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a person to be registered as a medical practitioner in the
allopathic system of medicine. Both the enactments make
provision for recognition of such qualifications granted by
the universities or medical institutions.
In this context, sub-section (1) of Section 15 of the
Central Act, i.e. IMC Act, 1956 as well as sub-section (1)
of Section 21 of the said Act were referred to and it was
observed that the aforesaid provisions contemplated that a
person can practise in Allopathic system of medicine in a
State or in the country only if he possesses a recognised
medical qualification. Permitting a person who does not
possess the recognised medical qualification in the
Allopathic system of medicine would be in direct conflict
with the provisions of the Central Act. That the first proviso
to Section 38 of the State Act in so far as it empowers the
State Government to permit a person to practise Allopathic
system of medicine even though he does not possess the
recognised medical qualifications for that system of
medicine, is inconsistent with the provisions of Sections 15
and 21 read with Sections 11 and 14 of the IMC Act, 1956
i.e., the Central Act. That the said proviso suffered from
the vice of repugnancy in so far as it covered persons who
wanted to practice the Allopathic system of medicine and
that the same was void to the extent of such repugnancy.
That practitioners in the Allopathic system of medicine must,
therefore, be excluded from the scope of the first proviso
and it must be confined in its application to systems of
medicines other than the Allopathic system of medicine.
Consequently, this Court allowed the appeal in part.
On a close consideration of the case law discussed above, it is
evident that the following broad areas, would be covered within the
legislative field of “Coordination and determination of standards”
under Entry 66 of List I:
i)
Prescription of medium of instruction, videGujarat
University, Ahmedabad vs. Shri Krishna Ranganath
Mudhoklar;
ii)
Recognition/de-recognition of an Institution imparting
medical education by laying down standards for medical
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education vide State of Tamil Nadu vs. Adhiyaman
Educational and Research Institute; Modern Dental
College and Research Centre vs. State of Madhya
Pradesh; Chintpurni Medical College and Hospital vs.
State of Punjab.
iii)
Calibre of teaching staff, syllabus to be taught, student-
teacher ratio, ratio between the students and the hospital
beds available to each student, laboratory facilities, standard
of examination, vide Preeti Srivastava vs. State of
Madhya Pradesh.
The Assam Act, which is enacted by the State Legislature on the
strength of Entry 25 of List III, not only seeks to introduce a new course
in the field of medical education, but also seeks to regulate the profession
of the candidates successfully completing the said course. The Assam
Act vests with the Regulatory Authority constituted thereunder, the power
to prescribe the minimum standards of the course, duration of the course
in allopathic medicine the curriculum, the examination etc. Further, it
authorises the State Government to grant permission for the opening of
amedical institute.Prescription of minimum standards for medical
education, authority to recognise or de-recognise an institution etc., are
areas over which exclusive legislative competence lies with the
Parliament, under Entry 66 of List I.The State Legislatures, on the other
hand, under Entry 25 of List III, possess legislative competence to legislate
with respect to all other aspects of education, except the determination
of
minimum standards and co-ordination.With a view to provide a
benchmark quality of medical education, it is essential that uniform
standards be laid down by the Parliament, which are to be adhered to by
institutions and medical colleges across the country. To this end, Entry
66 of List I has been formulated with the objective of maintaining uniform
standards of education in fields of research, higher education and
technical education. Hence, State Legislatures lack legislative competence
in the areas of prescription of minimum standards for medical education,
authority to recognise or de-recognise an institution, etc. The Assam
Act which seeks to regulate such aspects of medical education is therefore
liable to be set aside on the ground that the State Legislature lacks
competence to legislate with regard to the aspects enumerated
hereinabove.
22. Another aspect of the matter that remains to be considered is
with regard to the vires of the Assam Community Professional
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(Registration and Competency) Act, 2015 (hereinafter referred to as
‘Assam Act of 2015’ for the sake of convenience), which was enacted
by the State of Assam with a view to remove the basis of the impugned
judgment and in an attempt to restore the position of the diploma holders
in medicine and to give them continuity in service. The relevant provision
of the said Act read as under:
“An Act to provide for registration norms and competency of the
Community Health, Professionals, after passing B.Sc. (Community
Health) Course and to give same status to the students who have
completed or have been undergoing the Diploma in Medicine and
Rural Health Care (DMRHC) course in Medical Institute, Jorhat
with that of B.Sc (Community Health) course, to enable them to
serve as Paramedical personnel in the State of Assam.
Whereas it is expedient to provide for registration norms and
competency of the Community Health Professionals, after passing
B.Sc (Community Health) course and to give same status to the
students who have completed or have been undergoing the
Diploma in Medicine and Rural Health Care (DMRHC) course
in Medical Institute, Jorhat with that of B.Sc (Community Health)
course, to enable them to serve as Paramedical personnel in the
State of Assam and the matters connected therewith or incidental
thereto;
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2. In this Act, unless the context otherwise requires,-
(a) “Act” means the Assam Community Health
Professionals’
(Registration and Competency) Act, 2015;
(b) “Certificate” means a Certificate of Registration issued by
the Director of Medical Education, Research and Training, Assam
under section 3 of this Act;
(c) “Community Health Professionals” means the persons who
have been registered as such by the Director and issued a
Certificate of Registration in accordance with the provisions of
section 3 of this Act;
(d) “Course” means the prescribed Paramedical Course of B.Sc
(Community Health) or in short B.Sc (CH) as approved by the
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Union Cabinet, conveyed vide Govt. of India’s letter No. DO No.
V 11025/40/2009/MEP-1 Dated 31/12/2013;
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3. (1) Every student who successfully completes the Course from
any institution permitted by the Government of Assam to run the
Course, shall be registered by the Director at Directorate of
Medical Education, Assam, Guwahati and shall be issued with a
Certificate of Registration as Community Health Professional.
(2) The students who have already completed or have been
undergoing the Diploma in Medicine and Rural Health Care
(DMRHC) course in the Medical Institute, Jorhat, on the date of
commencement of this Act, shall be deemed to have completed
or have been undergoing as the case may be, the Paramedical
Course of B.Sc (CH) for the purposes of this Act and shall acquire
the same status to that of B.Sc (Community Health) graduates
and they shall also be registered by the Director and issued with
Certificate of Registration as Community Health Professionals:
Provided that the Certificate of Registration issued by the
Director under this sub-section to the students who have already
completed Diploma in Medicine and Rural Health Care (DMRHC)
course from the Medical Institute, Jorhat, shall be deemed to have
been issued by the Director with effect from the date of issue of
their respective Diplomas from the said Institute:
Provided further that the students who have been undergoing
the Diploma in Medicine and Rural Health Care (DMRHC) course
in the
Medical Institute, Jorhat on the commencement of this Act,
shall be deemed to have been undergoing the Course as defined
under this Act and they shall be issued Certificate of Registration
under this Act by the Director on completion of their Course.”
It would be useful to refer to a decision of this Court in the case
of Indian Aluminium Company Co. vs. State of Kerala, AIR 1996
SC 1431, wherein the principles regarding the abrogation of a judgment
of a court of law by a subsequent legislation could be culled out in the
following manner: —
“56. From a resume of the above decisions the following salient
principles would emerge:
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(1) The adjudication of the rights of the parties is the essential
judicial function. Legislature has to lay down the norms of conduct
or rules which will govern the parties and the transaction and
require the court to give effect to them;
(2) The Constitution has delineated delicate balance in the exercise
of the sovereign power by the Legislature, Executive and
Judiciary;
(3) In a democracy governed by rule of law, the Legislature
exercises the power under Articles 245 and 246 and other
companion Articles read with the entries in the respective Lists in
the Seventh Schedule to make the law which includes power to
amend the law.
(4) The Court, therefore, need to carefully scan the law to find
out: (a) whether the vice pointed out by the Court and invalidity
suffered by previous law is cured complying with the legal and
constitutional requirements; (b) whether the Legislature has
competence to validate the law; (c) whether such validation is
consistent with the rights guaranteed in Part III of the Constitution.
(5) The Court does not have the power to validate an invalid law
or to legalise impost of tax illegally made and collected or to remove
the norm of invalidation or provide a remedy. These are not judicial
functions but the exclusive province of the Legislature. Therefore,
they are not the encroachment on judicial power.
(6) In exercising legislative power, the Legislature by mere
declaration, without anything
more, cannot directly overrule, revise
or override a judicial decision. It can render judicial decision
ineffective by enacting valid law on the topic within its legislative
field fundamentally altering or changing its character
retrospectively. The changed or altered conditions are such that
the previous decision would not have been rendered by the Court,
if those conditions had existed at the time of declaring the law as
invalid. It is also empowered to give effect to retrospective
legislation with a deeming date or with effect from a particular
date.
(7) The consistent thread that runs through all the decisions of
this Court is that the legislature cannot directly overrule the decision
or make a direction as not binding on it but has power to make the
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decision ineffective by removing the base on which the decision
was rendered, consistent with the law of the Constitution and the
Legislature must have competence to do the same.”
In the aforesaid case, Section 11 of the Kerala Electricity
Surcharge (Levy and Collection) Act, 1989 arose for consideration and
it was held that it was a valid piece of legislation and not an incursion on
judicial power as the effect of Section 11 was to validate illegal collection
of tax under an invalid law.
In Hindustan Gum and Chemicals Ltd. vs. State of Haryana,
(1985) 4 SCC 124, this Court held that it is permissible for a competent
legislature to overcome the effect of a decision of a court, setting aside
the imposition of a tax by passing a suitable Legislation, amending the
relevant provisions of the statute concerned with retrospective effect,
thus taking away the basis on which the decision of the court has been
rendered and by inactive and appropriate provision validating the levy
and collection of tax made before the decision in question was rendered.
In that decision, reliance was placed on Shri Prithvi Cotton Mills Ltd.
vs. Broach Borough Municipality, AIR 1970 SC 192, a Constitution
Bench decision of this Court, which has laid down the requirements
which a validating law should satisfy in order to validate the levy and
collection of a tax which has been declared earlier by a court as illegal,
the relevant portion of the said judgments read as under:—
“When a
Legislature sets out to validate a tax declared by a court
to be illegally collected under an ineffective or an invalid law, the
cause for ineffectiveness or invalidity must be removed before
validation can be said to take place effectively. The most important
condition, of course, is that the Legislature must possess the power
to impose the tax, for, if it does not, the action must ever remain
ineffective and illegal. Granted legislative competence, it is not
sufficient to declare merely that the decision of the court shall not
bind for that is tantamount to reversing the decision in exercise of
judicial power which the Legislature does not possess or exercise.
A court’s decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could not
have been given in the altered circumstances. Ordinarily, a court
holds a tax to be invalidly imposed because the power to tax is
wanting or the statute or the rules or both are invalid or do not
sufficiently create the jurisdiction. Validation of a tax so declared
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illegal may be done only if the grounds of illegality or invalidity are
capable of being removed and are in fact removed and the tax
thus made legal. Sometimes this is done by providing for jurisdiction
where jurisdiction had not been properly invested before.
Sometimes this is done by re-enacting retrospectively a valid and
legal taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law. Sometimes the
Legislature gives its own meaning and interpretation of the law
under which the tax was collected and by legislative fiat makes
the new meaning binding upon courts. The Legislature may follow
any one method or all of them and while it does so it may neutralize
the effect of the earlier decision of the court which becomes
ineffective after the change of the law. Whichever method is
adopted it must be within the competence of the Legislature and
legal and adequate to attain the object of validation. If the
Legislature has the power over the subject-matter and competence
to make a valid law, it can at any time make such a valid law and
make it retrospectively so as to bind even past transactions. The
validity of a validating law, therefore, depends upon whether the
Legislature possesses the competence which it claims over the
subject-matter and whether in making the validation it removes
the defect which the courts had found in the existing law and
makes adequate provisions in
the validating law for a valid
imposition of the tax.”
Further, in the following decisions, this Court has held that the
amendments made to the respective Acts subsequent to the decision of
the court were valid and therefore, were upheld:—
a)
In State of Orissa vs. Oriental Paper Mills Ltd., AIR
1961 SC 1438, the insertion of Section 14A by way of an
amendment to Orissa Sales Tax Act subsequent to the
decision of this Court in State of Bombay vs. United Motors
India Ltd., AIR 1953 SC 252, was upheld.
b)
In M/s. Misrilal Jain vs. State of Orissa, AIR 1977 SC
1686, this Court declared Orissa Taxation (on Goods
Carried by Roads or Inland Waterways] Act, 1962 as
invalid, since it did not cover the defect from which the
Orissa Taxation (on Goods Carried by Roads or Inland
Waterways] Act 7 of 1959 had suffered. It was further
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held that the State was not entitled to recover any tax. The
subsequent Act 8 of 1968 was upheld as the vice from which
the earlier enactment suffered was cured by due compliance
with the legal or constitutional requirements.
c)
In M/s. Tirath Ram Rajindra Nath, Lucknow vs. State
of U.P., AIR 1973 SC 405, this Court held that there is a
distinction between encroachment on the judicial power and
nullification of the effect of a judicial decision by changing
the law retrospectively. The former is outside the
competence of the legislature but the latter is within its
permissible limits. In that case, the U.P. Sales Tax Act
(Amendment and Validation) Act, 1970 was upheld by this
Court.
d)
In Govt. of A.P. vs. Hindustan Machine Tools Ltd., AIR
1975 SC 2037, I.N. Saksena vs. State of M.P., AIR 1976
SC 2250, Central Coal Fields Ltd., vs. Bhubaneswar
Singh, AIR 1984 SC 1733 and several other decisions
this Court has upheld the amendments made to the
respective Acts subsequent to the decision of a court of
law thereby removing the basis of the judgment.
(e)
In State of Himachal Pradesh vs. Narain Singh, (2009)
13 SCC 165, this Court has held that Himachal Pradesh
Land Revenue (Amendment and Valuation) Act, 1996 was
sound as it removed the defect of the previous law. Hence,
the amendment was not invalid just because, it nullified some
provisions of the earlier Act. It was also held that the
amendment was necessitated in the interest of land revenue,
land
settlement and for the purpose of updating the same.
The Legislature cannot directly overrule a judicial decision. But
when a competent Legislature retrospectively removes the substratum
or foundation of a judgment to make the decision ineffective, the said
exercise is a valid legislative exercise provided it does not transgress on
any other constitutional limitation. Such legislative device which removes
the vice in previous legislation which has been declared unconstitutional
is not considered an encroachment on judicial power but an instance of
abrogation. The power of the sovereign legislature to legislate within its
field, both prospectively and retrospectively cannot be questioned. It
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would be permissible for the legislature to remove a defect in earlier
legislation pointed out by a constitutional court in exercise of its powers
by way of judicial review. This defect can be removed both retrospectively
and prospectively by a legislative process and the previous actions can
also be validated. But where there is a mere validation without the defect
being legislatively removed, the legislative action will amount to overruling
the judgment by a legislative fiat which is invalid.
In light of the aforesaid discussion, the petitions challenging the
vires of the Assam Community Professional (Registration and
Competency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of
2018 are liable to be dismissed, and are accordingly dismissed. The said
Act has been enacted with a view to restore the position of the diploma
holders in medicine and to give them continuity in service. The said Act
has been enacted by a valid legislative exercise, and does not transgress
any other constitutional limitation and in accordance with Entry 25 of
List III of the Seventh Schedule and is not in conflict with the IMC Act,
1956 and the rules and regulations made thereunder as per Entry 66 of
List I of the Seventh Schedule.
23. Before parting with this case, it is necessary to advert to the
reasoning of the Division Bench of the High Court which has held in
paragraph 15 of its judgment dated 30.10.2014 that the Central
Legislation,
namely, the IMC Act, 1956, fully covers the field and therefore, the
impugned legislation passed by the Assam State Legislature concerning
the Diploma Course in Allopathic Medicine was null and void. In this
context, Article 254 of the Constitution has been adverted to and it has
been observed that, on account of repugnancy and there being no
Presidential assent as required under Article 254, the Assam Act is null
and void.
24. We do not think the doctrine of repugnancy governing Article
254 of the Constitution of India, would apply in the instant case. Although,
Entry 25 of List III of the Seventh Schedule of the Constitution of India
is in the Concurrent List which gives powers to both the Union as well
as the State Legislatures to pass laws on the subject of ‘Education’, it is
significant to note that any such law to be made by the State Legislature
is subject to, inter alia, Entry 66 of List I or the Union List of the
Seventh Schedule. Hence, when there is a direct conflict between a
State Law and the Union Law in the matter of coordination and
determination of standards in higher education (Entry 66 of List I) such
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as in medical education, concerning allopathic medicine or modern
medicine, as is in the instant case, where the State Law is in direct
conflict with the Union law, the State Law cannot have any validity as
the State Legislature does not possess legislative competence. In other
words, the Assam Act and Rules and Regulations made under the said
Act, being in conflict with the Indian Medical Council Act, 1956 (IMC
Act, 1956) and the Rules and Regulations made thereunder, the doctrine
of repugnancy as such would not apply within the meaning of Article
254 of the Constitution.
The finding with regard to the constitutionality of the Assam Act
of 2015 is limited to holding it non-repugnant with the Indian Medical
Council Act, 1956. However, this Court is not rendering any finding with
regard to any potential conflict of the provisions of the Assam Act of
2015 with the National Medical Commission Act, 2019.
We also wish to refer to the Directive Principle of State Policy.
The framers of the Constitution, in Article 47 have directed the Union
and State Governments to regard the ‘improvement of public health’, as
its primary duty. It follows from this directive that the State shall make
all possible efforts to ensure equitable access to healthcare services.
These efforts must be made to progressively realize the right of everyone
to the enjoyment of the highest attainable standard of physical and mental
health, as acknowledged in international conventions and
agreements.
While the State has every right to devise policies for public health and
medical education, with due regard to peculiar social and financial
considerations, these policies ought not to cause unfair disadvantage to
any class of citizens. The citizens residing in rural areas have an equal
right to access healthcare services, by duly qualified staff. Policies for
enhancing access to rural healthcare must not shortchange the citizens
residing in rural areas or subject them to direct or indirect forms of
unfair discrimination on the basis of their place of birth or residence.
Any variation between the standards of qualification required for
medical practitioners who render services in rural areas qua the medical
practitioners rendering services in urban or metropolitan areas must
prescribe to constitutional values of substantive equality and non-
discrimination. We may hasten to add that deciding the particular
qualifications for medical practitioners practising in disparate areas and
in disparate fields, providing different levels of primary, secondary or
tertiary medical services, is within the mandate of expert and statutory
authorities entrusted with the said mandate by the Parliament.
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The above ought to be considered in the spirit of constitutional
goals and statesmanship subserving, as it does, the common good of the
citizenry of our Country.
Conclusion:
25. In the result, we arrive at the following conclusions:
(i)
Entry 25 of List III of the Seventh Schedule of the
Constitution of India deals with the subject education which
is in the Concurrent List under which both the Parliament
or the Union Legislature as well as the State Legislatures
have legislative competence to legislate. However, Entry
25 of List III is subject to, inter alia, Entry 66 of List I
which is the Union List. Entry 66 of List I deals with
coordination and determination of standards in institutions
for higher education or research and scientific and technical
institutions. Thus, when any law is made under Entry 25 of
List III by a State Legislature, the same is always subject
to Entry 66 of List I. In other words, if any law made by the
Parliament comes within the scope of Entry 66 of List I,
then the State Legislation would have to yield to the
Parliamentary law.
Thus, where one Entry is made “subject to” another
Entry, it would imply that, out of the scope of the former
Entry, a field of legislation covered by the latter Entry has
been reserved to be specifically dealt with by the appropriate
legislature.
(ii)
In the instant case, it is held that the IMC Act, 1956 is a
legislation made by the Parliament for the purpose of
coordination and determination of standards in medical
education throughout the Country. The said law, along with
the Rules and Regulations made thereunder are for the
purpose of determination of standards of medical education
throughout India. Thus, determination of standards in
medical education in India is as per the IMC Act, 1956
which is a Central Law. This is in respect of modern
medicine or allopathic medicine within the scope of Entry
66 of List I and not under Entry 25 of List III of the Seventh
Schedule. Therefore, a State Legislature which passes a
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law in respect of allopathic medicine or modern medicine
would be subject to the provisions of the IMC Act, 1956
and the Rules and Regulations made thereunder. This would
imply that no State Legislature has the legislative
competence to pass any law which would be contradictory
to or would be in direct conflict with the IMC Act, 1956
and the Rules and Regulations made thereunder. In other
words, the standard in medical education insofar as modern
medicine or allopathy is concerned, having been set by the
IMC Act, 1956 and the Rules and Regulations made
thereunder or by any subsequent Act in that regard, such
as the Medical Council of India Act, 2019, the State
Legislature has no legislative competence to enact a law
which is in conflict with the law setting the standards of
medical education in the context of modern medicine or
allopathic medicine, which has been determined by
Parliamentary Legislation as well as the Rules. In other
words, a State Legislature has no legislative competence
to enact a law in respect of modern medicine or allopathic
medicine contrary to the said standards that have been
determined by the Central Law.
In view of the above conclusion, we hold that decision
of the Gauhati High Court holding that the Assam Act to be
null and void, is just and proper.
However, the Gauhati High Court has held that the State
had no legislative competence to enact the Assam Act in
view of Article 254 of the Constitution on the premise that
the IMC
Act and the Rules and Regulations made
thereunder were holding the field and hence, on the basis
of the doctrine of occupied field, the Assam Act was struck
down as being repugnant to the Central Law. In view of
the aforesaid conclusion, we are of the view that the said
reasoning is incorrect. It is reiterated that the IMC Act and
the Rules and Regulations made thereunder, which are all
Central legislations, have been enacted having regard to
Entry 66 of List I and would prevail over any State Law
made by virtue of Entry 25 of List III of the Constitution.
(iii)
Hence, in view of the Indian Medical Council Act, 1956
and the Rules and Regulations made thereunder, the Assam
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