At, High Court of Judicature at Bombay
By, THE HONOUARABLE MR. JUSTICE A.P. SHAH & THE HONOURABLE MR. JUSTICE S.A. BOBDE
Mr. Y.S. Jahagirdar, Sr. Advocate with Mr. R.G. Ketkar and Mr. P.A. Savant for petitioners. Mr. R.G. Rane, A.G.P. for respondents Nos.1 to 3. Mr. A.V. Anturkar for respondent Nos.6 to 79.
A.P. SHAH, J.
The petitioner before us is a society registered under the Societies Registration Act and the Bombay Public Trust Act, 1950. The petitioner society claims that it has been established with a view to promoting and developing the so called new branch of medical science called "electropathy" which is distinct from other medical sciences like allopathy, Ayurved and Unani. The petitioner is conducting 3 years' diploma course in Bachelor of Electropathy, Medicine and Surgery (B.E.M.S.) and one year Diploma Course in M.D.E.H. for decree holder in Allopathy, Ayurved etc. The petitioner claims that it is a perpetual institution to which several colleges/ institutions imparting education and training in electropathy system are affiliated.
2.In effect and in substance what is sought in the petition is that the petitioner should be allowed to conduct the courses in the subject called electrohomoeopathy/ electropathy without any let or hindrance from the Government or any statutory authority and to confer diplomas and degrees pursuant to such courses being conducted by the petitioner. In particular, exception is being taken to an order dated 17-11-1987 issued by the Deputy Director, Homoeopathy, Maharashtra State to the effect that the course of electropathy/ electrohomoeopathy is not recognised either by the State Government or Central Government and that such courses should be immediately closed. It is alleged that pursuant to the said order dated 17-111987 the Sub Divisional Officer, Malkapur directed to close one of the colleges affiliated to the petitioner namely Datta Medical College of Electropathy at Malkapur.
3.It is averred in the petition that electropathy is most efficacious amongst the systems of treatment. To quote the words of the petitioner, "Electropathy is uptodate, harmless, natural, and scienti
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ic system of medicine." It is stated that this system was invented by Dr. Count Mattei in 1865 in Italy based on the principle of "Complexa, Complix and Curantur" which means that our complex body requires complex medicines to cure the diseases. It is stated that in electropathy system medicines are selected according to the similarity and theory propounded by Dr. Mattei is that all diseases find their origin from the vitiation of blood and lymph in human organism and electropathy medicines have maximum capacity to renew the lymph and blood. Then, in paras 3 and 4 of the petition alleged added advantages of the electropathy system are narrated. It is emphasised that the medicines are cheap and inexpensive and they have no side effects on human body. It is also contended that electropathy is distinct and independent of Homoeopathy system which is founded by Dr. Hahnemann. 4.The petitioner contends that the State Government is not giving any financial assistance to the petitioner whereas it is providing financial and other facilities to other systems of medicine such as Allopathy, Homoeopathy, Ayurvedic, Unani etc. The attitude of the State Government is, therefore, discriminatory towards the electropathy medical sciences. It is urged that the State Government has no power to interfere with the affairs of the petitioner and, therefore, action of the Government amounts to violation of the petitioner's fundamental rights guaranteed under Articles 14, 19(1)(c)(g) and 21 of the Constitution. By amending the petition a further prayer is made seeking to direct the Indian Medical Council and Maharashtra Medical Council to grant recognition to the degrees, diplomas, certificates awarded by the petitioner. 5.The petition was moved for admission for the first time on 23-2-1988 and an ad-interim relief was granted in terms of prayer clause (d) of the petition at the risk of the petitioner and students concerned. By further order dated 11-3-1988, the Bench continued ad-interim order but directed that the students concerned in all the colleges who are already admitted or to be admitted should specifically be informed accordingly. It now transpires that the students were not intimated about the orders passed by this Court. On the other hand, a false representation was made to the students that they would be able to practice medicine in the State of Maharashtra on the basis of degrees/ diploma/ certificate purported to be conferred by the electropathy institutions/ colleges purported to be affiliated to the petitioner. It seems that substantial sums were collected by way of fees from the students who ultimately discovered that the degrees, diplomas and certificates awarded by those institutions were not worth the paper on which they were printed and they were completely left in lurch as it borned out that it was neither any source of livelihood nor an opportunity of serving humanity but even they could not claim to have acquired knowledge of any medical science. We may hasten to add that interim relief ultimately came to be vacated by the Division Bench on 25-11-1994. 6.At the outset, it is required to be stated that electropathy system which is sought to be espoused by the petitioner society is not recognised in India nor is it a part of Homoeopathy system of medicines recognised in India as is conveyed by misleading name "electrohomoeopathy". In fact, no Government/ University/ Authority has recognised the petitioner society as medical institution entitled to confer degree and diploma or certificate in electropathy or electrohomoeopathy. The degrees, diplomas, certificates etc. conferred by the petitioner/colleges affiliated to it are not recognised in law and would not permit the students to practice as medical practitioners. We may also mention that electropathy is not recognised as a system of medicine in any part of the world including in Italy, where it is alleged to have been discovered in 1865 as is sought to be made out by the petitioner. 7.The three traditional systems of medicine viz. Allopathy, Homoeopathy and Indian Medicine (Ayurved, Unani and Siddha) are subjected to constant and rigorous regulatory measures. Parliament and the State Legislatures have regulated the medical profession by enacting various regulations. These regulations extend to a cross section of activities including establishment of the institutions which will impart knowledge on medical education. The institutional standards which will be required to be maintained by the educational institutions, in the field of medical education, the holding of examinations and conferring diplomas on the medical students are regulated by the statutory provisions. The statutory regulation of medical professionals does not end with the conferment of degrees or diplomas. The regulation extends to activities of the professional after he receives his formal degrees/diplomas which enables him to practice medicines. The registers are prescribed for maintaining the role of qualified doctors and their activities are controlled by the professional bodies partaking of a statutory character for the purpose of ensuring that their behaviour and conduct is consistent with the faith imposed upon on them by the Society to benefit those in distress. These regulations are contained in Indian Medical Degrees Act, 1916 and Indian Medical Council Act, 1956 which are applicable in the field of Allopathy system of medicine. Right to practice in Homoeopathy is regulated by the Homoeopathy Central Council Act, 1970 and in Ayurvedic and Unani Systems of medicine by the Indian Medicine Central Council Act, 1970. The so called electropathy/ electrochomoeopathy system of medicine does not appear to come within the purview of any of the aforesaid Acts. 8.The State of Maharashtra has enacted Maharashtra Medical Practitioners Act, 1961 which seeks to regulate the qualifications and to provide for the registration of the practitioners of Ayurvedic, Siddha and Unani System of medicine with a view to encouraging study and spread of such systems and to make provisions relating to the medical practitioners generally. The group of sections enunciated in Chapter VI lays down several prohibitions. Under section 33 of the Act, there is a prohibition of medical practice by medical practitioners who are not registered in the register maintained under the said Act, the Bombay Homoeopathic Biochemic Practitioners Act, 1959 or any other law relating to the registration of Homoeopathic or Biochemic Practitioners in the State, the Maharashtra Medical Council Act, 1965 or the Indian Medical Council Act, 1956. Under section 34 it is only a registered practitioner who is competent to give valid medical certificates. Section 35 makes it an offence to confer, grant or issue colourable imitations of degrees, diplomas and licences. Section 36 imposes a prohibition on the addition of any title or description to the name of any person reflecting a qualification to practice any system of medicine unless the person concerned holds such a degrees, diplomas, licence or certificate and this degree or diploma is (i) recognised by any law for the time being in force in India or (ii) recognised by the Medical Council of India or by the Central Council of Indian Medicines or (iii) has been conferred granted or issued by a body or institution referred to in sub-section (1) of section 35. A contravention of sections 33, 33A, 34, 35, 36, of the Act is made an offence which is punishable with imprisonment or fine as the case may be. 9.It seems that an expert committee headed by Dr. Pentel was constituted by the Central Government, for consideration of recognition to the electropathy Dr. Pentel Committee submitted its report in the first week of February, 1994 recommending the Central Government, not to grant recognition. to electropathy. Another expert committee appointed under the stewardship of Dr. S.D. Sharma also opined that electropathy should not be recognised as medical science. It seems that the Committee found that unauthorised institutions/ colleges have been continued and students are admitted in various courses relying upon different stay orders from various Courts, by Government and completely false and misleading advertisements are published by various colleges to dupe the students. One such advertisement issued by the petitioner/college affiliated thereto is annexed to the affidavit filed on behalf of the State Government. The office translation of the said advertisement reads as follows:"If you desire to be a Registered Medical Practitioner (RMP). Golden Chance Last Chance Medical Registration (R.M.P.)Special Features: "If you are a practitioner, engaged in medical treatment, but you do not have a medical diploma to be eligible to undertake the medical treatment and also do not have a certificate then do fill in this form without any reservation.In India today, the registration process for practising Ayurved, Allopathy, and Homoeopathy has closed. In each state only registration is being granted by the Board of Electro Homoeopathy system of Medicine, Maharashtra, Bombay has decided to offer registration based on the experience for specified period. Only those eligible will be allowed to be registered.How to fill form Those who have passed Matric and have three and by whom/ years experience in medical practice, can apply qualifications: for registration. Those who are non-matric should provide a certificate of medical practice of five years with a photograph.Fees: Board fees are Rs. 500/-. Fees have to be paid in advance by money order and receipt of money order have to be attached to the form. Benefit: After you are registered, you will get a beautiful coloured certificate of R.M.P. of the Board with its red seal thereon, so that you can give a medical certificate to any patient and also establish your own dispensary. You can style yourself as a registered Medical Practitioner (R.M.P.) and get success in life. Lots of money and social status. Note: 1. The order of the Government of Maharashtra, Medical Education and Drugs Department dated 27th July, 1988 not to prosecute, punish or convict any person practicing Electro Homoeopathy will be sent to you in due course.2. For establishing a dispensary bank loan will be available."It is apparent that these advertisements provoked the students and guardians to seek admission in these colleges assuming that they will be allowed to practice medicine after completion of the course. Taking advantage of the interim reliefs the students were made to believe that the colleges were run under the High Court order. The Division Bench while vacating the interim order observed that "the petitioners are carrying out commercial venture and by interim order the poor students are duped. The advertisements are issued that course is run under the order of the High Court. 10.It has been contended by the State Government that allowing the petitioner society to function by inviting applications under dubious advertisements; purporting to grant affiliation to other colleges; to train certificate/diploma degrees in electropathy without basics and foundation of the system being made known and recognised by the Universities, Government and educational institutions as also public would be extremely injurious to public health. The competence of medical practitioners to be reeled out by the petitioner society and colleges to be said to be affiliated to it, is completely unknown and unrecognised. The qualifications and competence of the teaching staff is similarly unknown and unrecognised. The infrastructure for imparting the purported training in electropathy is unknown and not specified in the syllabus supplied by the petitioner to the Government for recognition. Various books which are mentioned in the syllabus provided by the petitioner are not approved by any Government/ Universities/ authorities. The authors of such books are virtually unknown in any system of medicine. Syllabus submitted by the petitioner to the Government for recognition is bogus and appears to have been copied from the syllabus of recognised medical courses. For example the petitioner and the colleges affiliated to it offered to teach Surgery in Paper I (100 marks) in the third year. Strangely enough the subject "Surgery" is purported to be taught without the basic background of Anatomy, Physiology, Pathology, Pharmacology and more significantly even to persons who are non matriculates. The prescribed age limit which is an indication of the minimum requisite maturity for undertaking training in medical courses is absolutely absent. It seems clear to us that the only object of starting this course was to make quick money at the expense of innocent students. In our opinion, Education and Public Health are prime concern of the State Government and, therefore, the State Government and State authorities are entitled to stop functioning of such institutions by refusing recognition to the course and directing them to close down as was done by the impugned orders dated 17-11-1987 and 29-1-1988. In our view the petitioner cannot claim any fundamental right to impart what is prescribed by them as the course in electropathy/ electrohomoeopathy which is not recognised under any of the statutory enactments. Challenge of the petitioner with reference to Articles 14, 19 and 21 of the Constitution is entirely without any basis or substance. The Constitution does not recognise a claim to an unrestricted practice of a business or profession particularly where as in the case of profession like medicine, the wider interest of the community is at stake. 11.In Unni Krishnan J. P. and others vs. State of Andhra Pradesh and others, AIR 1993 SC 2178, the Supreme Court had occasion to consider the scope of section 22 of the University Grants Commission Act, 1956. It was held that no educational institution in this country except an university as defined in the said Act is entitled to award degrees. In view of this settled legal position, it is not permissible for the petitioner or any other institution affiliated to it to award degrees. 12.In case of Wing Commander (Retired) H. M. Sethi vs. Ministry of Human Resources Development Government of India, New Delhi and others decided on 18th November, 1998 (W. P. No. 4015 of 1996 and C.W. No. 8468 of 1997). The Division Bench of Delhi High Court has restrained the respondents in that case from awarding degrees/diplomas or certificates to the students. The Bench observed as under:"At the same time, as the law stands there seems to be no legal prohibition in granting diplomas and certificates for the courses conducted by respondent Nos. 10 to 16. Our country has a large number of unemployed youth and it is not difficult to lure them by the institutes like respondents 10 to 16 as the issue of certificate/diplomas for practising the systems other than the recognised one, is almost guaranteed by them. Judicial notice can be taken of the fact that such institutes do not possess proper infra-structure for teaching and training the students and they make misleading claims. These are run purely on commercial considerations and the efficacy of their systems in treating the patients is yet to be established scientifically. Therefore, in public interest functioning of the institutes like respondent 10 to 16 deserves to be checked and regulated by making legislation by the Central/State Governments." Ultimately, the Bench directed the Central Government. and State Government to consider making legislation prescribing various regulations against the colleges/ institutions running the courses of electropathy and other alternative systems of medicines. 13.In the result, in view of the foregoing discussion, we pass the following order. (i) The petitioner society is directed to close down all courses in electropathy/ electro-homoeopathy forthwith. (ii) The petitioner society is directed not to grant affiliation and/or recognition to any college or institution. (iii) The petitioner society is hereby directed to refund the fees received from the students admitted by the petitioner society for its 3 years diploma courses as well as 1 year diploma course with interest at the rate of 18% p.a. within 3 months. (iv) The State Government is directed to close down all institutions in the State holding the course in electropathy or Electrohomoeopathy and to take action against the electropathy practitioners in accordance with the provisions of the Maharashtra Medical Practitioners Act, 1961. (v) Writ petition is dismissed with costs quantified at Rs.25,000/-. The amount of costs shall be paid to the students who have been joined as respondents to the writ petition. Parties to act on the ordinary copy of this order duly authenticated as true copy by the Associate of this Court.
"2001 (4) MAH.L.J 553" == "2002 (1) BOM.L.R 9" == "2002 (1) ALL MR 105" == "2002 AIR (Bom) 22 2002 (2) BCR 734"