1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. OF 2023

(@ SLP(C) Nos. 32592-32593 of 2015)

BAHARUL ISLAM & ORS. APPELLANT(S)

VERSUS

THE INDIAN MEDICAL

ASSOCIATION AND ORS. RESPONDENT(S)

WITH

TC (C) NO. 25 OF 2018

TC (C) NO. 24 OF 2018

J U D G M E N T

NAGARATHNA, J.

I N D E X

Sl.

No.

Particulars Page

No.(s)

1. Brief facts of the case 2-8

2. Bird’s Eye View of the controversy 8

3. Submissions on behalf of the appellants 8-14

4. Arguments on behalf of R-1 14-19

5. Arguments on behalf of R-7 19-24

6. Submissions on behalf of the State of Assam 24-29

7. Points for consideration 30

8. Constitutional Scheme 30-39

9. Contentions on behalf of the UOI 39-41

10. Interplay between Entry 66 of List 1 and Entry 25 of

List III

42-68

11. Relevant provisions of Indian Medical Council Act,

1956

68-80

12. Relevant provisions of Assam Rural Health

Regulatory Authority Act, 2004

80-92

13. A comparative table and analysis of the provisions

of the IMC Act, 1956 and the Assam Act

92-106

14. Triology of cases 106-134

15. Conclusions: 134-139

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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

applications from eligible candidates seeking admissions in the

three-year course of Diploma in Medicine and Rural Health Care in

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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.

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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 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

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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 engage d 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

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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.

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

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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 (C) Nos. 24 and 25 of 2018 before this

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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

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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 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 Healthca re

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.

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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.

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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 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-

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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 from the Assam

and Chhattisgarh models of the Diploma Course and sought to

affiliate these courses/programs to a University or Regulatory

13

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

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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, 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 “recogni sed 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.

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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

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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 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

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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

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

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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

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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.

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

20

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 it

unequivocally clear that only those persons who are enrolled

21

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 practic e of modern scientific

medicine by any person, except those registered under the

State Medical Register maintained by the Assam Medical

Council.

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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 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

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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

24

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:

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

25

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. F. N. Balsara,

AIR 1951 SC 318, (“F. N. Balsara”) wherein it was held that

mere incidental encroachment on matters which have been

26

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 “r ecognised 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

27

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 this Court 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 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

28

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

29

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 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.

30

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

31

laws with respect to any of the mat ters

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 Stat e 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:

32

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.”

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

33

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

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.

34

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 vide Prafulla 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 vide

35

Ujagar 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 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

36

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

37

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 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.

38

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.

39

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.

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

40

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.

41

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 Cons titution 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.

42

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, Ahme dabad 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 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:

43

“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,

44

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 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

45

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 17

th 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 them that the Syndicate had accepted the report of

46

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 alternat ive

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:

47

“[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.

[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 b e

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

48

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 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

49

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 an y

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 Pr adesh, 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

50

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 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

51

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 exa minations held

including the manner in which the papers

are set and examined and the clinical

performance is judged.”

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

52

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 Researc h 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

53

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

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

54

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 a re 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

55

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 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

56

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, 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

57

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 m eaningless.

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 between the States to cause

them to work in the field of higher education in

58

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

59

Entry 11 of the State List, the State Government

has enacted various legislations that inter alia

regulate 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

60

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 t he growth and

development of the State, it becomes prerogative

of the State to take such steps which further 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

61

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 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:

62

“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

63

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 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, vide Modern 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

64

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, 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

65

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,

66

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. , 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.”

67

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.

68

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.

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

69

(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

(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.

70

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.

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.—

71

(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 qualificati on

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,

72

which are included in Part I of the Third Schedule

shall also be recognised medical qualifications for

the purposes of this Act.

(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;

73

(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.

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.

74

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

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

75

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

76

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.

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,

77

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

78

against such medical qualification declaring that it shall be a

recognised medical 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

79

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 recogni sed 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 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

80

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;

81

(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

(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

82

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.

(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 pr oposal 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.

83

(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;

(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.

84

(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 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

85

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;

86

(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 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

87

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

88

shall be eligible to practise Medicine and Rural Health Care in rural

areas. The 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;

89

(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 Institute s offering

Diploma in Medicine and Rural Health Care were prescribed under

which the subjects to be taught were as under:

“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.”

90

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 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: -

91

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.

Antiemetics

92

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:

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

Object of the Act “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.”

“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 & Rural

Health Care (DMRHC)”

93

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

Apex Authority Indian Medical Council Assam Rural Health

Regulatory Authority

Definition of

‘medicine’

“2 (f). ‘Medicine’ means

modern scientific

medicine in all its

branches and includes

surgery and obstetrics,

but does not include

veterinary medicine and

surgery.”

“2 (g). ‘Medicine’

means allopathic

medicine but does not

include veterinary

medicine.”

Definition of

‘medical

institution’

“2 (e). ‘Medical

Institution’ means any

institution, within or

without India, which

grants degrees, diplomas

or licences in medicine.”

“2 (i). ‘Medical

Institution’ means

institution established

under this Act for

imparting medical

education both

theoretical and

practical for the

course of Diploma in

Medicine and Rural

Health Care.”

Scope of

Recognised

medical

qualification/

course(s)

covered under

the respective

Acts

“2 (h) ‘recognised

medical qualification’

means any of the medical

qualifications included in

the Schedules.”

“2 (d). ‘Course’ means

the prescribed course

of education and

training for the

diploma in Medicine &

Rural Health Care”

2 (e). ‘Diploma in

Medicine & Rural

Health Care’ means

the diploma awarded

by the Authority on

successful completion

of the course of

diploma in Medicine &

Rural Health Care

94

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

under the provisions

of the Act.”

Power to

prescribe

minimum

standards

“33- Power to mak e

regulations-

The Council may, with

the previous sanction

of the Central

Government, make

regulations generally to

carry out the purposes of

this Act, and without

prejudice to the

generality of this power,

such regulations may

provide for—

(a)–(i) xxx

(j) the courses and period

of study and of practical

training to be undertaken,

the s ubjects of

examination and the

standards of proficiency

therein to be obtained, in

Universities or medical

institutions for grant of

recognised medical

qualifications;

(k) the standards of staff,

equipment,

accommodation, training

and other facilities for

medical education;

(1) the conduct of

professional

“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.”

95

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

examinations,

qualifications of

examiners and the

conditions of admission

to such examinations;

(m) the standards of

professional conduct and

etiquette and code of

ethics to be observed by

medical practitioners.”

Permission for

establishment

of a new

medical

institute/college

“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 c ourse or

training to qualify

himself for the award of

any recognised medical

qualification; or

“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

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.

96

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

(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.”

Inclusion of

name in the

respective

registers, and

eligibility to

practice upon

such inclusion

“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

“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 the 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.

97

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

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 Indian

Evidence Act, 1872 (1 of

1872), and may be proved

by a copy published, in the

Gazette of India.

“27. Privileges of persons

who are enrolled on the

Indian Medical

Register.—Subject to the

conditions and restrictions

laid down in this Act

regarding medical practice

by persons possessing

certain recognised medical

qualifications, every

person whose name is for

the time being borne on

the Indian Medical

Register shall be entitled

according to his

qualifications to practise

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

(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 enrolment

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

98

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

respect of medicaments or

other appliances, or any

fees to which he may be

entitled.”

to practise medicine

and Rural Health

Care in rural areas of

the State of Assam:

(6) Provided that no

Rural Health

Practitioner shall use

the word “Doctor" or

"Dr." before and after

his name. However, he

may identify himself

as Rural Health

Practitioner or RHP.”

Rights, powers

and functions of

persons

possessing the

qualifications

prescribed

under the

respective Acts

“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

“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,

99

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

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 Evidence

Act, 1872 (1 of 1872)

or on any matter

relating to medicine.’

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 medicinal

treatment and

perform such

minor surgery as

may be prescribed.

(d) they shall practise

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

100

Parameters Indian Medical Council

Act, 1956

Assam Rural Health

Regulatory

Authority Act, 2004

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.

A comparative study between MBBS, DMRHC is made as

under:

Parameters MBBS DMRHC

1. Nomenclature Bachelor of Medicine and

Bachelor of Surgery.

Diploma in Medicine and

Rural Health Care.

2. Establishment Under the Indian Medical

Council Act, 1956.

Affiliated to a recognised

University.

Under the Assam Rural

Health Regulatory

Authority Act, 2004.

Affiliated to Srimanta

Sankaradeva University

of Health Sciences

3. Status of the

course

Medical - Degree. Medical - Diploma.

101

Parameters MBBS DMRHC

4. Duration of

the course

Four & Half years + One

year Internship

Three & Half years (Six

months Internship)

5.Eligibility

Criteria

10+2 Science with

minimum 60%

10+2 Science with

minimum 60%

6. Syllabus Anatomy Anatomy

Physiology Physiology

Biochemistry Biochemistry

Microbiology Microbiology

Pathology Pathology

Pharmacology Pharmacology

Community Medicine Community Medicine

Medicine Medicine

Obstetrics & Gynecology Obstetrics & Gynecology

Ophthalmology Ophthalmology

Orthopedics Orthopedics

ENT ENT

Pediatrics Pediatrics

Psychiatry Psychiatry

Surgery Surgery

Dermatology & Venereology Dermatology as a part of

Medicine

Forensic Medicine &

Toxicology

102

Parameters MBBS DMRHC

Anesthesiology

Internship Internship

7. Registration Every student who

successfully completes the

course shall be eligible for

enrollment in the State

Medical Register as per the

IMC Act, 1956.

Every student who

successfully completes

the course shall be

eligible for enrollment in

the State Register of

Rural Health

Practitioners as per

Assam Act.

8. Designation After the registration the

graduates are posted in

different level of Health

sectors and designated as a

Medical Officers (MO) at

PHC, CHC etc.

After the registration the

graduates are posted in

different Sub-Centers,

PHC at rural area and

designated as a Rural

Health Practitioners’

(RHP).

9. Powers and

Functions

1. They can practice

medicine and provide

primary health care.

2. They can perform

minor surgery at PHC, CHC

level.

3. They will provide

normal delivery at PHC,

CHC and Higher Level.

4. They can issue illness

certificates and death

certificates.

1. They shall be eligible

to practice medicine and

Rural Health Care in

rural areas only in the

State of Assam.

2. They can perform

minor surgery at PHC or

sub-center clinic.

3. They will provide

normal delivery at Sub

Centre and PHC Level.

4. They can issue illness

certificates and death

certificates.

103

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

104

‘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 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,

105

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,

106

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.

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,

107

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; but in none of the Schedules,

108

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

109

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 “recogni sed 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 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 recogni sed medical

110

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

111

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 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

112

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 recogni sed 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,

113

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 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

114

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 v s. State of

Kerala and others, AIR 1992 SC 1310, (“Dr. A.K.

Sabhapathy”) wherein it 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 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.

115

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

116

‘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 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 deal t 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

117

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

118

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

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

119

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, vide Gujarat

University, Ahmedabad vs. Shri Krishna Ranganath

Mudhoklar;

120

ii) Recognition/de-recognition of an Institution imparting

medical education by laying down standards for medical 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 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

121

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 m edical 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

(Registration and Competency) Act, 2015 (hereinafter referred to as

‘Assam Act of 2015’ for the sake of convenience), which was enacted

122

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;

xxx

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;

123

(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 Union Cabinet, conveyed vide Govt.

of India's letter No. DO No. V 11025/40/2009/MEP-1

Dated 31/12/2013;

xxx

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

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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. v s. 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:

(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

125

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 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.

126

In Hindustan Gum and Chemicals Ltd. v s. 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

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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 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."

128

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 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 v s. State of

U.P., AIR 1973 SC 405, this Court held that there is a

distinction between encroachment on the judicial power and

129

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 v s. State of M.P., AIR 1976

SC 2250, Central Coal Fields Ltd., v s. 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.

130

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 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

131

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

132

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 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

133

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

134

within the mandate of expert and statutory authorities entrusted

with the said mandate by the Parliament.

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

135

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 law in respect of allopathic medicine or modern

medicine would be subject to the provisions of the IMC

136

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 medici ne or

allopathic medicine contrary to the said standards

that have been determined by the Central Law.

137

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 Act, namely, the Assam Rural Health

Regulatory Authority Act, 2004, is declared to be null

138

and void, in view of the Assam Legislature not having

the legislative competence to enact the said Law.

(iv) Consequently, the subsequent legislation, namely, the

Assam Act of 2015 i.e., 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

139

Legislature under the Seventh Schedule of the

Constitution.

26. In the result, the Civil Appeals arising out of SLP(C) Nos.

32592-32593 of 2015 as well as TC (C) No. 24 of 2018 and TC (C)

No. 25 of 2018 stand dismissed. Pending application(s), if any, shall

stand disposed of.

27. Parties to bear their respective costs.

.………….……………J.

(B.R. GAVAI)

.………….……………J.

(B.V. NAGARATHNA)

NEW DELHI;

24 JANUARY, 2023.