http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12

PETITIONER:

DR. A.K. SABHAPATHY

Vs.

RESPONDENT:

STATE OF KERALA AND ORS.

DATE OF JUDGMENT22/04/1992

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 AIR 1310 1992 SCR (2) 653

1992 SCC Supl. (3) 147 JT 1992 (3) 66

1992 SCALE (1)843

ACT:

Constitution of India, 1950: Article 254-Seventh

Schedule-List-III-Entry 26-Medical Profession-Central Law-

State law-Test for determination of Repugnancy-What is-

Conditions necessary for applicability of Article 254 dis-

cussed.

Doctrine of occupied filed.

Travancore-Cochin Medical Practitioners Act, 1953:

Section 38-First proviso-Medical Practitioner-Practice in

allopathic system of medicine-Qualifications and conditions

for registration-Power of Government to grant exemption

from-First proviso, to the extent it relates to allopathic

system of medicine, held inconsistent with and repugnant to

sections 15 and 21 of the Indian Medical Council Act, 1956.

Indian Medical Council Act, 1956: Section 2 (f)-

Expression "Modern scientific medicine" refers to allopathic

system of medicine-Object of the Act explained.

HEADNOTE:

Section 38 of the Travancore-Cochin Medical

Practitioners' Act, 1953 provides that no person other than

a registered medical practitioner or a practitioner whose

name is entered in the list published under section 30 or in

the list published under Section 25 shall practise modern

medicine, homoepathic medicine, ayurvedic medicine, siddha

medicine or unani tibbi medicine. It further provides that

no person who is not a registered practitioner of any such

medicine shall practise any other medicine unless he is also

registered practitioner of that medicine. First proviso to

the said section empowers the State Government to grant

exemption from the application of the section by publishing

a Notification in the official gazette. In exercise of the

power conferred by the said proviso the Government of Kerala

issued a notification dated May 4, 1977 directing that

Section 38 shall not aply to persons holding degree and

diploma from Kerala University in Integrated Medicine (DAM)

for practising

654

modern medicine in the State. By an order dated September

28, 1978 Government of Kerala also ordered that the Diploma

in Medicine and Surgery (DMS) awarded by Government of Bihar

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12

will be held at par with the integrated DAM of Kerala Uni-

versity and by its notification dated April 13, 1981 the

Government directed that section 38 shall not apply to

holders of DMS awarded by Government of Bihar.

The appellant challenged the validity of first proviso

to section 38 and the Notifications dated May 4, 1977 and

April 13, 1981 issued there-under as well as the order dated

28th September 1978 on the ground that the first proviso to

Section 38 of the Travancore-Cochin Medical Practitioners'

Act, 1953, a State Act, was void under Article 254 of the

Constitution because it was repugnant to and inconsistent

with section 15 of the Indian Medical Council Act, 1956, a

Central Act.

The High Court of Kerala did not go into the validity

of notification dated May 4, 1977 but it upheld the validity

of the first rpoviso and the order dated September 28, 1978

as well as the notification dated April 13, 1981 by holding

(a) that the Central Act does not lay down any qualification

for registration and all that section 15 says is that a

person whose name is not seen in the State register shall

not practise medicine; (b) the proviso to section 38 does

not in terms say that a person whose name is not on the

rolls of the State register in one system can practise

another system and it only exempts practitioners who want to

practise one system without being in the concerned list from

the operation of section 38; (c) that neither the Central

Act nor the State Act contains any provision which prohibits

a person possessing the requisite qualification to practise

two systems from getting enrolled on two State rolls and a

practitioner can be a registered practitioner in two regis-

ters and the Central Act does not place an embargo on a

State from recognising qualifications for the purpose of two

systems; (d) that the definition of medicine contained in

section 2(f) of the Central Act would not involve both

Homoepathic and indigenous system of medicine and that the

Central ACt concern itself only with the allopathic medicine

and the modern system contemplated by it is the allopathic

medicine. Against the judgment of the Kerala High Court

appeal was filed in this court.

Allowing the appeal in part, this court,

655

HELD: 1. In order that Article 254(1) of the Constitution

may apply, two conditions must be fulfilled. Firstly,

provisions of the Provincial law and those of the Central

legislation must both be in respect of a matter which is

enumerated in the Concurrent List, and secondly, they must

be repugnant to each other. It is only when both these

reguirements are satisfied that the Provincial law will, to

the extent of the repugnancy, become void. [661 B-C]

A. S. Krishna v. State of Madras, [1957] SCR 399,

Hoechst Pharmaceuticals Ltd. and Anr. etc. v. State of Bihar

and Ors., [1983] 3 SCR 130, referred to.

2. In the instant case the Central Act as well as the

State Act are both laws made in respect of the medical

profession which is a matter relating to Entry 26 of the

Concurrent List. The field of operation of the State Act

covers all the systems of medicine, namely, allopathic,

ayurvedic, siddha, unani and homoepathic systems of

medicine. Moreover it deals 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 constitution

of separate councils for modern medicine homeopathic

medicine and indigenous medicine. [661 E, 665 C-D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12

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 also it deals

with recognition of medical qualifications which may entitle

a person to be registered as a medical practitioner, consti-

tution 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 hospi-

tal. But the Central Act does not deal with the registra-

tion of medical practitioners in the States and it proceeds

on the basis that the said registration and the maintenance

of State Medical Register is to be governed by the law made

by the State. 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. [665 E-H]

656

2.1 However it can 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. [665 H, 666 A]

Deep Chand v. State of Uttar Pradesh and Ors., [1959]

suppl. 2 SCR 8, relied on.

M. Karunanidhi v. Union of India, [1979] 3SCR 254,

referred to.

3. The High Court erred in holding that the Central ACt

does not lay down the qualifications for registration of a

medical practitioner. The provisions of the Central Act

contemplate 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.

[668 A, 668 C]

4. The first proviso to Section 38 of the Travancore-

Cochin Medical Practitioners' Act, 1953 in so far as it

empowers the State Government to permit a person to practise

allopathic system of medicine even though he does not pos-

sess the recognised medical qualifications for that system

of medicine is inconsistent with the provisions of Sections

15 and 21 read with Sections 11-14 of the Central Act. The

said proviso suffers from the vice of repugnancy in so far

as it covers persons who want to practise the Allopathic

system of medicine and is void to the extent of such repug-

nancy. Practitioners in 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.

[668 C-E]

4.1. The notification dated April 13, 1981, issued

under the first proviso to Section 38, which enables holders

of DMS diploma to practise modern medicine cannot be upheld

and is set aside. However the order dated September 20,

1978 treating the DMS diploma awarded by Government of Bihar

at par with Integrated DAM of the University of Kerala for

the purpose of continuing in profession only has not been

issued under the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12

657

first proviso to Section 38 of the State Act and it does not

entitle the holders of DMS diploma to get themselves regis-

tered as medical practitioner in modern medicine and prac-

tise modern medicine. Consequently, it does not suffer from

the same infirmity as the notification dated April 13, 1981.

[668 G-H, 669 A-B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3847 of

1983.

From the Judgment dated 14.10.1982 of the Kerala High

court in O.P. No.3064 of 1981 C.

M.A. Firoz for the Appellant.

J. Ramamurthy, T.T. Kunhikannan, R. Mohan, M.K.

Namboodry and K.R. Nambiar [N.P.] for the Respondents.

The Judgment of the Court was delivered by

S. C. AGRAWAL, J. This appeal by special leave is

directed against the judgment of the High Court of Kerala

dated October 14, 1982. It raises the question relating to

the validity of the first proviso to Section 38 of the

Tranvancore-Cochin Medical Practitioners' Act, 1953

(hereinafter referred to as 'the State Act') and the order

dated September 28, 1978 and notification dated April 13,

1981 issued by the Government of Kerala.

Section 38 of the State Act reads as under:

"38. Persons not registered under this Act etc.

not to practise:- No person other than (i) a

registered practitioner or (ii) a practitioner

whose name is entered in the list of practitioners

published under Section 30 or (iii) a practitioner

whose name is entered in the list mentioned in

Section 25 shall practise or hold himself out,

whether directly or by implication as practising

modern medicine, homoepathic medicine, or

ayurvedic medicine, siddha medicine or such

medicine shall practise any other medicine unless

he is also a registered practitioner of that

medicine:

Provided that the Government may, by notification

in the Gazette direct that this section shall not

apply to any person

658

or class of persons or to any specified area in the

State where none of the three classes of

practitioners mentioned above carries on medical

practice;

Provided further that this section shall not

apply to practitioner eligible for registration

under this Act who, after having filed the appli-

cation for registration, is awaiting the decision

of the appropriate council or of the Government in

case of appeal.

Provided also that this section shall not apply

to a practitioner eligible for registration under

this Act until the period prescribed for

applications under Section 23 expires".

The University of Kerala awards a degree as well as a

diploma in Integrated Medicine known as DAM. By notification

dated May 4, 1977 issued by the Government of Kerala under

the first proviso to Section 38, it was directed that

Section 38 of the Act shall not apply to the degree holders

of DAM and diploma holders of DAM in practising modern

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12

medicine in the State. The Government of Bihar through the

Bihar State Board of Homoepathic Medicine awards a Diploma

in Medicine and Surgery called DMS. By order dated September

28, 1978, the Government of Kerala ordered that the said

diploma (DMS) awarded by the Government of Bihar will be

held in par with the integrated DAM of Kerala University for

purpose of continuing in the profession only. The holders of

DMS approached the Government with a request to issue of

notification similar to notification dated May 4, 1977 to

enable them to practise Modern Medicine. The said request

was earlier rejected by the Government but ultimately it was

acceded and a notification dated April 13, 1981 was issued

by the Government of Kerala in exercise of the power con-

ferred by the first proviso to Section 38 of the State ACt

whereby it was directed that Section 38 shall not apply to

holders of the DMS awarded by the Government of Bihar. The

aforesaid notifications dated May 4, 1977 and April 13, 1981

and order dated September 28, 1978 were challenged by the

appellant before the High Court of Kerala by filing a Writ

Petition under Article 226 of the Constitution. In the said

Writ Petition it was submitted by the appellant that after

the enactment of the Indian Medical Council Act, 1956

(hereinafter referred to as `the Central Act'), by Parlia-

ment the first proviso to Section 38 of the State Act, being

repugnant and inconsistent with the provisions of Section 15

of the Central Act, has been rendered

659

void and ineffective and the impugned notifications having

been issued in exercise of the power conferred by the said

proviso are also void and ineffective. The validity of the

first proviso to Section 38 of the State Act was also

challenged by the appellant on the ground that it does not

contain any guidelines for exercise of the power conferred

on the State Government and since it confers arbitrary power

on the State Government it is violative of the provisions of

Article 14 of the Constitution.

The said Writ Petition was contested by the State

Government. On behalf of the State Government it was

submitted that since DAM of Kerala University had been

permitted practice of modern medicine, the Government did

not see any reason why the holders of DMS of Bihar Govern-

ment should not practice and that the order dated September

28, 1978 was passed by the Government after consultation

with the University of Kerala and the Director of Indigenous

Systems of Medicine and that due consideration was given by

the Government to the allopathic subjects taught in the

Bihar DMS course. As regards the notification dated May 4,

1977 relating to DAM diploma holders and DAM diploma holders

of Kerala University, it was submitted that the challenge

was highly belated.

The High Court did not go into the validity of

notification dated May 4, 1977 relating to DAM degree hold-

ers and DAM diploma holders for the reason that no one who

would be affected by the invalidation of the said notifica-

tion was before the Court and in absence of any such person

being impleaded as a party to the Writ Petition, it was

neither permissible nor lawful for the Court to adjudicate

upon the said question. While considering the validity of

the other two notifications relating to DMS Diploma holders

of Bihar, the High Court examined the provisions of the

first proviso to Section 38 in the light of the provisions

contained in Section 15 of the Central Act. The High Court

rejected the contention urged on behalf of the State Govern-

ment that the definition of medicine contained in Section

2(f) of the Central Act would take in both Homoepathic and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12

indigenous systems of medicine and held that the Central Act

concerns itself with the allopathic medicine and the modern

system that is contemplated by it is the allopathic medi-

cine. After examining the enactments the High Court has

observed that the State Act and the Central Act are both

covered by Entry 26 in List III of the schedule VII to the

Constitution. The High Court, therefore, considered the

question whether the first proviso to Section 38 of the

State Act was repugnant to Section 15 of the

660

Central Act in the light of the provisions contained in

Article 254 of the Constitution. The High Court has held

that the Central Act does not lay down any qualification for

registration and all that Section 15 says is that a person

whose name is not seen in the State register shall not

practise medicine. The High Court has also pointed out that

the proviso to Section 38 does not in terms say that a

person whose name is not on the rolls of the State register

in one system can practise another system. According to the

High Court the proviso only exempts practitioners who want

to practice one system without being in the concerned list

from the operation of Section 38. The High Court was of the

view that neither the Central Act nor the State Act contains

any provision which prohibits a person who satisfies the

authorities that he possesses the requisite qualification to

practise two systems from getting enrolled on two State

rolls and a practitioner can be a registered practitioner in

two registers and the Central Act does not place an embargo

on a State from recognising qualifications for the purpose

of two systems, due regard being given to the course of

study and subjects taught, for such qualification and if

that is possible, nothing prevents a State Government from

permitting a practitioner to be on two rolls. Although the

High Court found some repugnancy between the Central Act and

the State Act, it was of the view that the repugnancy was

not one that was absolutely irreconcilable. The High Court

negatived the challenge to the validity of the first proviso

to Section 38 of the State Act on the ground to violation of

Article 14 on the view that the power conferred by the

proviso vests in the State Government which is a sufficient

safeguard against arbitrary exercise of power. Since the

validity of the first proviso, Section 38 of the State Act

was upheld the notification dated April 13, 1981 issued

under the said proviso was also upheld as valid by the High

Court.

The appellant is assailing the validity of the first

proviso to Section 38 of the State Act on the ground of

repugnancy under Article 254 (1) of the Constitution which

provides as under:

"254. Inconsistency between laws made by

Parliament and laws made by the Legislatures of

States -(1) if any provision of a law made by the

Legislature of a state is repugnant to any provi-

sion of a law made by Parliament which Parliament

is competent to enact, or to any provision of an

existing law with respect of one of the matters

enumerated in the Concurrent

661

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".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12

In order that Article 254(1) may apply, two conditions

must be fulfilled:

"(1) The provisions of the Provincial law and

those of the Central legislation must both be in

respect of a matter which is enumerated in the

Concurrent List, and (2) they must be repugnant

to each other. It is only when both these

requirements are satisfied that the Provincial law

will, to the extent of the repugnancy, become

void".

A.S. Krishna v. State of Madras, [1957] SCR 399

Hoechst Pharmaceuticals Ltd. & Another etc. v.

State of Bihar & Others, [1983] 3 SCR 130.

In the instant case the Central Act as well as the

State Act are both laws made in respect of the medical

profession which is a matter relating to Entry 26 of the

Concurrent List. The question is : Are the provisions of the

first proviso to Section 38 of the State Act repugnant to

any provision of the Central Act? This question will have to

be answered by applying the tests of repugnancy laid down by

this Court. In Deep Chand v. The State of Uttar Pradesh and

Ors., [1959] Suppl. 2 SCR 8, this Court has laid down that

repugnancy between two statutes may be ascertained on the

bases of the following principles:

(1) Whether there is direct conflict between the

two provisions;

(2) Whether Parliament intended to lay down an

exhaustive code in respect of the subject matter

replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law

made by the State Legislature occupy the same

field". (P.43)

662

After considering the various decisions construing the

provisions of Article 254 this Court in M. Karunanidhi v.

Union of India, [1979] 3 SCR 254, the Court laid down

following propositions:

"1. That in order to decide the question of

repugnancy it must be shown that the two

enactments contain inconsistent and irreconcilable

provisions, so that they cannot stand together or

operate in the same field.

2. That there can be no repeal by implication

unless the inconsistency appears on the fact of

the two statutes.

3. That where the two statutes occupy a particular

field, there is room or possibility of both the

statutes operating in the same field without

coming into collision with each other, no

repugnancy results.

4. That where there is no inconsistency but a

statute occupying the same field seeks to create

distinct and separate offences, no question of

repugnancy arises and both the statutes continue

to operate in the same field". [P.278]

Keeping in view these principles, we will examine the

provisions of the State Act and the Central Act to ascertain

the field of operation of the two enactments.

As indicated in the Preamble the State Act is a law

relating to medical practitioners generally in the State of

Travancore-Cochin (now Kerala) and it has been enacted to

regulate the qualifications and to provide for the

registration of the practitioners of modern medicine, homoe-

pathic medicine and indigenous medicine with a view to

encourage the spread of such medicines. In Clause (f) the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12

expression "modern medicine" is defined to mean the allo-

pathic system of medicine. Clause (g) of Section 2 defines

"practitioner" to mean any person ordinarily engaged in the

practice of modern medicine or homoeopathic medicine or

indigenous medicine as the case may be. The expression

"qualified practitioner" has been defined in clause (i) to

mean a qualification enumerated in the Schedule. The expres-

sion "registered practitioner" has been defined in Clause

(i) of Section 2 to mean a practitioner whose name is for

the time being entered in a register. Under Clause (k),

"register" means the

663

Register of practitioners maintained under this Act. Section

3 makes provisions for establishment, incorporation and

constitution of Council of Modern Medicine, the Council of

Homoeopathic Medicine and the Counsel of Indigenous Medi-

cine. Section 19 provides for appointment of a Registrar for

each council and under Section 20(1) it is the duty of the

Registrar to keep the registers. Section 20(2) lays down

that there shall be separate registers for modern medicine,

homoeopathic medicine, ayurvedic medicine, siddha medicine

and unani-tibbi medicine. Section 23 lays down the condi-

tions of eligibility for registration of a practitioner and

every holder of a recognised qualification is eligible.

Sections 28 and 29 make provision for removal of the name of

a person from the register of practitioners. Section 31(1)

imposes a prohibition that no registered practitioner, other

than a qualified registered practitioner who has not under-

gone a course of practical training in surgery or obstetrics

under modern medicine to the satisfaction of that appropri-

ate council, shall practise surgery or obstetrics. Section

47 empowers the State Government to alter the list of recog-

nised qualifications mentioned in the Schedule to the Act on

the basis of the report of the appropriate Council. It would

thus be seen that the State Act governs the practitioners in

the various systems of medicine prevalent in the State by

establishing separate councils for each system to regulate

the registration of such practitioners and also by prescrib-

ing the qualifications which shall be recognised for such

registration.

The Central Act has been enacted to provide for the

reconstitution of the Medical Council of India and the

maintenance of medical register for India and for matters

connected therewith. The expression "medicine" is defined in

Clause (f) of Section 2 to mean modern scientific medicine

in all its branches including surgery and obstetrics but

excluding veterinary medicine and surgery. In Clause (h) the

expression "recognised medical qualification" has been

defined to mean any of the medical qualifications included

in the Schedules. "State Medical Council" has been defined

in Clause (j) to mean a medical council constituted under

any law for the time being in force in any state regulating

the registration of practitioners of medicine. Clause (k)

defines "State Medical Register" to mean a register

maintained under any law for the time being in force in any

State regulating registration of practitioners of medicine.

Section 3 provides for the constitution of the Medical

Council of India Sections 11 to 14 deal with recognition of

medical qualifications granted by universities or medical

664

institutions in India as well as by medical institutions

outside India. Section 15 enables a person possessing the

medical qualifications included in the Schedule to be

enrolled on any State Medical Register and it prohibits a

person other than a medical practitioner enrolled on a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12

State Medical Register to practise medicine in any State.

Section 16 prescribes that every university or medical

institution in India which grants recognised medical

qualification shall furnish such information as the Indian

Medical Council may from time to time require as to the

course of study and examinations to be undergone in order to

obtain such qualification, as to the ages at which such

course of study and examinations are required to be

undergone and such qualification is conferred and generally

as to the requisites for obtaining such qualification.

Section 17 provides for the appointment of medical

inspectors for inspection of any medical institution,

college, hospital or other institution where medical

education is given. Under Section 18 the Medical Council of

India has been empowered to appoint visitors to inspect any

medical institution, college hospital or other institution

where medical education is given or attend any examination

held by any university or medical institution for the

purpose of granting recognised medical qualification.

Section 19 provides for withdrawal of recognition of a

medical qualification by the Central Government on the basis

of the representation by the Medical Council. Section 19-A

empowers the Medical Council of India to prescribe the

minimum standards for medical education required for

granting recognised medical qualifications by the

universities or medical institutions in India. Section 20-A

empowers the Medical Council of India to prescribe the

standards of professional conduct and etiquette and a code

of ethics for medical practitioners. Section 21 makes

provision for maintaining a register of medical practition-

ers known as the Indian Medical Register, which shall con-

tain 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. Section 34(1)

provides for removal of the name of a person from the India

Medical Register if his name has been removed from the State

Medical Register in pursuance of any power conferred by or

under any law relating to registration of medical practi-

tioners for the time being in force in any state. Section 27

provides that every person whose name is for the time being

borne on the Indian Medical Register shall be entitled

according to his qualification to practise as a medical

practitioner in any part of India.

665

The High Court, in our opinion, has rightly held that

the expression 'modern scientific medicine' in Section 2(f)

of the Central Act refers to the Allopathic system of medi-

cine and that the provisions of the Central Act have been

made in relation to medical practitioners practising the

said system. This view finds support from the fact that

after the enactment of the Central Act, Parliament has

enacted the Indian Medicine Central Council Act, 1970 in

relation to the system of Indian medicine commonly known as

Ayurveda, Siddha and Unani and the Homeopathy Central Coun-

cil Act, 1973 in relation to homoepathic system of medicine

wherin provisions similar to those contained in the Central

Act have been made in relation to the said systems of medi-

cine.

From the provisions of the State Act, noticed earlier,

it is evident that the field of operation of the State Act

covers all the systems of medicine, namely, allopathic,

ayurvedic, siddha, unani and homoepathic system of medicine.

Moreover the State Act deals with recognition of

qualifications required for registration of a person as a

medical practitioner in these systems, conditions for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12

registration of medical practitioners and maintenance of

register of practitioners for each system and the

constitution of separate councils for modern medicine,

homoepathic medicine and indigenous medicine. 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 also it 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 medi-

cal qualifications by universities or medical institutions

in India and to appoint inspectors and visitors for inspec-

tion 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. The Central Act does not deal

with the registration of medical practitioners in the States

and it proceeds on the basis that the said registration and

the maintenance of State Medical Register is to be governed

by the law made by the State. 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,

666

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. The third test of

repugnancy laid down in Deep Chand's case (supra) is,

therefore, satisfied. Since the grievance of the appellant

is confined to the first proviso to section 38 of the State

Act, we would examine whether the provisions of the First

Proviso to Section 38 of the state Act, are inconsistent

with any of the provisions of the central Act and whether it

is possible to reconcile the provisions of the First Proviso

to Section 38 of the State Act with the provisions of the

Central Act. The main part of Section 38 prohibits a person

other than those mentioned in the three categories specified

therein, namely, (i) a registered practitioner or (ii) a

practitioner whose name is entered in the list published

under Section 30 or (iii) a practitioner whose name is

entered in the list published under Section 25 to practise

or to hold himself out, Whether by directly or by implica-

tion, as practising modern medicine, homoepathic medicine,

ayurvedic medicine, siddha medicine or unani-tibbi medicine

and it further lays down that no person who is not a regis-

tered practitioner of such medicine shall practice any other

medicine unless he is also a registered practitioner in that

medicine. In other words, the main part of Section 38 in-

sists upon compliance with the requirements of the provi-

sions of the State Act prescribing the conditions for regis-

tration as a medical practitioner which includes holding a

recognised qualification, i.e., a qualification enumerated

in the schedule to the State Act, in respect of a particular

system of medicine in which he wishes to practise. The first

proviso to Section 38 enables the State Government to dis-

pense with the requirements of the main part of Section 38

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12

in relation to any person or class of persons or in relation

to any specified area in the State where none of the three

classes of practitioners mentioned above carries on medical

practice. As a result a person can be permitted to practise

as a medical practitioner even though he does not possess

the recognised qualifications which are necessary for a

person to be registered as a medical practitioner in a

particular system of medicine. This provision in so far as

it relates to the allopathic system of medicine, runs con-

trary to the provisions of the Central Act. Under S.11(1) of

the Central Act Medical qualifications granted by any uni-

versity or medical institution in India which are included

in the First

667

Schedule of the said Act alone are the recognised medical

qualifications and under Section 11(2) a medical qualifica-

tion granted by any university or medical institution in

India which is not included in the First Schedule can be

included in the said Schedule by the Central Government by a

notification in the Official Gazette after consulting the

Medical Council of India. Similar provisions are contained

in Section 12 in relation to medical qualifications granted

by medical institutions outside India in connection with

which there is a scheme of reciprocity which qualifications

are included in the Second Schedule and Section 13 relating

to medical qualifications granted by medical institutions in

India or outside India which are included in Part I and II

of the Third Schedule. Section 14 contains a special provi-

sion empowering the Central Government after consultation

with the Medical Council of India to give recognition to

medical qualifications granted by medical institutions in

any country outside India in respect of which a scheme of

reciprocity for the recognition of such medical qualifica-

tion is not in force. Section 15(1) entitles a person having

recognised medical qualification under the Act to be en-

rolled in any state medical register. Under sub-s.(2) of

section 15 no person other than a medical practitioner

enrolled on a State medical register shall practise medicine

in any State. The object underlying these provisions in the

Central Act is that a person possessing a recognised medical

qualification alone is entitled to be registered as a medi-

cal practitioner and it is the Central Government alone

which can declare a particular medical qualification as a

recognised medical qualification in accordance with the

provisions contained in Section 11 to 14 of the Act. More-

over the Central Act, in Section 19-A, empowers the Medical

Council of India to prescribe the minimum standards of

medical education required for granting recognised medical

qualifications by universities or medical institutions in

India. Section 16, 17 and 18 confer powers on the Medical

Council of India to keep an eye on the imparting of medical

education by the universities and medical institutions in

India and to appoint inspectors and visitors for that pur-

pose. Section 19 enables the Central Government to withdraw

the recognition to a medical qualification on the basis of

the representation by the Medical Council of India. These

provisions indicate that in enacting the Central Act the

intention of Parliament was to ensure that only persons

having adequate knowledge of the allopathic system of medi-

cine are able to practise medical profession.

668

We are, therefore, unable to agree with the view of the

High Court that the Central Act does not lay down the

qualifications for registration of a medical practitioner.

We may in this context refer to sub-s.(1) of Section 15

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12

which postulates the holding of a recognised medical quali-

fication by a person for being registered in the State

Medical Register so as to entitle to practise modern scien-

tific medicine in the state and sub-s.(1) of Section 21

which provides that the Indian Medical Register that is

required to be maintained by the Medical Council of India

shall contain the name of persons who are for the time being

enrolled in the State Medical Register and who possess any

of the recognised medical qualifications. These provisions

contemplate that a person can practise in allopathic system

of medicine in a state or in the country only if he possess-

es 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 con-

flict with the provisions of the Central Act. We are, there-

fore, of the view that the first proviso to Section 38 of

the State Act in so far as it empowers the State Government

to permit a person to practise allopathic system of medicine

even though he does not possess the recognised medical

qualifications for that system of medicine is inconsistent

with the provisions of Section 15 & 21 read with Sections

11- 14 of the Central Act. The said proviso suffers from the

vice of repugnancy in so far as it covers persons who want

to practice the Allopathic system of medicine and is void

to the extent of such repugnancy. Practitioners in allopath-

ic 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 Allopath-

ic system of medicine. We, however, wish to make it clear

that we have not considered the impact of the provisions

contained in the Indian medicine Central Council Act, 1970

and the Homoeopathy Central Council Act, 1973 on the provi-

sions of the said proviso to Section 38 of the State Act.

The notification dated April 13, 1981 has been issued

under the first proviso to Section 38 and in express terms

it enables holders of DMS diploma of Government of Bihar to

practise modern medicine in the State of Kerala and makes

them eligible for registration as practitioners in modern

medicine. Since the scope of the first proviso has been

restricted to exclude the system of modern medicine, the

said notification cannot be

669

upheld and must be set aside. The same, however, cannot be

said with regard to Order dated September 20, 1978 whereby

the DMS diploma awarded by Government of Bihar is to be

treated at par with Integrated DAM of the University of

Kerala for the purpose of continuing in profession only. The

said order has not been issued under the first proviso to

Section 38 of the State Act and it cannot be said that it

entitles the holders of DMS diploma to get themselves

registered as medical practitioners in modern medicine and

practise modern medicine. The said order dated September 20,

1978, does not suffer from the same infirmity as the notifi-

cation dated April 13, 1981.

In the result, the appeal is partly allowed. The

judgment and order of the High Court of Kerala dated October

14, 1982 is set aside and the Writ Petition filed by the

appellant is allowed to the extent that the notification

(Ex.P8) dated April 13, 1981 is quashed. No order as to

costs.

T.N.A Appeal partly allowed