1—The notification that you are referring was published in the state gazette dated 25-11-1992 and it refers to section 33 (read with read with clause (fa) of section 2) of the Maharashtra Medical Practitioners Act,1961. It states that-- “the AYURVEDIC PRACTITIONERS enrolled on the State Register of Practitioners of Indian Medicine holding qualification specified in Parts A,B,A-1 of the Schedule appended to the said Act, shall be eligible to practise the modern system of medicine which is known as allopathic system of medicine, to the extent of the training they received in that system.”
2—The above gazette notification is against existing laws as described below:
i)—It is in violation of section of the Indian Medical Council Act, 1956, which is reproduced below.
“RIGHT OF PERSONS POSSESSING QUALIFICATIONS IN THE SCHEDULES TO BE ENROLLED.
(15) (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register.
(2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register:-
(a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
(b) shall practice medicine in any State;
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner:
(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine.
(3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both”
ii)—It is in violation of the SC judgment in Dr. Mukhtiar Chand & Ors. Vs. State Of Punjab & Ors., reported as AIR 1999, SC 468, (1998 (7) SCC 579). As per the judgment (para 43)—“A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act.”
iii)-- It is in violation of the SC judgment in Poonam Verma vs. Ashwin Patel, (1996) 4 SCC 332:
"A person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan."
3—The reason for issuing the said gazette notification is not revealed in the notification and would be known to the state government alone. However, it is likely that it may be “close nexus between the State Government Health Machinery and the unauthorised practitioners” to which the Hon’ble Allahabad HC had referred in Rajesh Kumar Srivastava vs A.P. Verma (Chief Secretary, UP) and Ors. (decided on 28 January, 2004) in the following words--
“8. During the pendency of contempt petition this Court also directed inspections of Community Health Centres at Koraon and Shankergarh at Allahabad as exemplars to verify the complaint alleging that the unauthorised practitioners are flourishing on account of wholly inadequate Primary and Secondary Medical care provided by the State Government, and that there is a close nexus between the State Government Health Machinery and the unauthorised practitioners.”
4—The notification was issued more than 20 years ago. Nobody has challenged it so far in the court. The IMA has to do a lot of explaining for their abject inaction in this regard, even though they never stop shedding crocodile tears about quackery. It is well known that if AYUSH practitioners practice allopathy, they commit quackery.
5—The question of allowing Ayurvedic practitioners to practice allopathy came before the Ethics Committee of the MCI and was a part of the agenda for the meeting held on 10-11 August, 2007.
“The Ethics Committee went into an office Memorandum from the Directorate General of Health Services, Ophtha/BC Section, Nirman Bhawan, New Delhi and decided to formulate an answer to it as follows:-
Three Ayurvedic postgraduate doctors namely Dr. Samir Raskar, Dr. Kaustuba More & Dr. Chandrakant Gosavi have claimed that they should be recognized as practicing surgeons for National Programme for Control of Blindness as they have postgraduate degree of Ayurveda. An office Memorandum from the Directorate General of Health Services, Ophtha/BC Section, Nirman Bhawan, New Delhi has been received in the Council and it is stated that the Ministry have received a letter from the above mentioned 3 doctors from Lions Mudhoji Eye Hospital, Phaltan requesting this Ministry to recognized them as “Practicing Surgeons” for National programme for control of blindness. It is requested that this matter may please be considered at an early date for further necessary action.”
The decision of the Ethics Committee was as follows:
“Section 1.1.3 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 states as under:-
“No person other than a doctor having qualification recognised by Medical Council of India and registered with Medical Council of India/State Medical Council(s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining qualification in any other system of Medicine is not allowed to practice Modern system of Medicine in any form”. 17
It is very clear from the above that only a MBBS doctor is allowed to practice modern system of Medicine and graduates from other system of Medicine (AYUSH) not allowed to practice modern system of Medicine in any form.”
“As such, any doctor who does not possess recognized MBBS degree along with Postgraduate qualifications cannot do Surgery according to the law of the land. Any attempt to allow anybody else to do this kind of procedure by any authority under any pretext would be totally against the law i.e. totally illegal. It will attract such penalties as prescribed by law. No Government agency can recognize any doctor from stream other then modern system of medicine to do this as long as the present law stands. To do so will be totally illegal.”
“Further, the Hon’ble Supreme Court, justice I Venkatanarayana in W.P.No.3003 of 1990 have said that “There can be no doubt about the fact that it is the duty of the State to provide medical facilities to all the citizens. It is equally the responsibility of the State not to permit quacks and other unqualified persons to practice medicine and surgery. By permitting quacks, quality of health life of the country would be degenerated and the manner in which they administer drugs affects the health o the citizens. Cases are not ____ where quacks have been performing surgery with crude instruments playing with the lies of the citizen”. 18
In view of above ruling of the Hon’ble Supreme Court of India and the Hon’ble High Court, the claim of the postgraduate surgical diploma holder of AYUSH to be called practicing surgeons and to do Eye Surgery cannot be entertained by any authority. Doing so will be going against the letter of spirit of the judgement of the Hon’ble Courts and who ever does so shall be responsible for the consequences.
Further, it is necessary at this point of time to comment also on certain notifications issued by the Central Council of Indian Medicine, which create lots of confusions amongst the public and also in the Governments level as well.
The Central Council of Indian Medicine, (Institutional Area, Janakpuri, New Delhi) in its notification No.F.No.8-5/2002-Ay.(MM), dated 22.1.2004 have stated that rights of practitioners of Indian systems of Medicine are protected under Indian Medicine Central Council Act, 1970 under Section 17(3)(B) which states as under:- “Nothing contained in sub-Section (2) shall affect privileges (including the right to practice any system of medicine) conferred by or under any law relating to registration of practitioners of Indian Medicine for the time being in force in any state on a practitioners of Indian Medicine enrolled on a State Register of Indian Medicine.”
They have further concluded “institutionally qualified practitioners of Ayurveda, Siddha, Unani Tibb are eligible to practice respective Systems with modern scientific medicine including surgery and Gynaecology Obstetrics. Anaesthesiology, ENT, Ophthalmology etc. based on the training and teaching”.
The Ethics Committee feels that this kind of interpretation and notifications are totally against the law and against the rules laid down by the Hon’ble Supreme Court & other Courts from time to time. It is well known that though many modern investigative procedures of Pathology, Microbiology, Biochemistry & Radiology and imaging have been incorporated into the curriculum and teaching of different system other than Allopathy, the main point is that after taking help of all these modern advances, the practitioners of these streams are only allowed to practice their system of medicine along with the drug, medicine procedure pertaining their system of medicine alone. This is the spirit behind using modern advances in AYUSH. At no point of time in their teaching and training these graduates are taught the treatment including differential diagnosis, management, prescription of allopathic drugs, methodology of modern stream of treatment and modern method of surgery as they are taught to allopathic graduates and postgraduates. Otherwise, there has to be no justification in continuing a separate modern allopathic system at all and all medical courses would become an integrated course as claimed by the Central Council of Indian Medicine.
Therefore, if these doctors of AYUSH are allowed to treat patients in modern system of medicine and are recognized to perform delicate of surgeries, the authorities concerned who allow this shall be solely responsible for any untoward incidents that may happen to the patients and will have to bear the responsibility thereof.
This may be sent to the Executive Committee for necessary action including placement of the above before the General Body, if it feels, necessary.”
It is clear from the above that practice of “the modern system of medicine which is known as allopathic system of medicine, to the extent of the training they received in that system”, as stated in the impugned gazette notification, is totally against law.
6—Besides the IMA, it was also the duty of the MCI and the Maharashtra Medical Council to challenge the notification dated 29-11-1992 but they clearly failed in such duty.
7—Let us hope that wiser counsel prevails and the impugned notification is withdrawn / quashed.