Anti Quackery

IMA Anti Quackery Wing

JUDGEMENTS AND DOCUMENTS

PREFACE

The purpose of this compendium of court orders and various rules and regulations is to acquaint doctors regarding specific provisions and orders barring quackery by unqualified people, practitioners of Indian & Integrated Medicine to practice Modern Medicine. This ready reckoner of provision of Acts and rules and court orders will allow you to decipher whether one is a quack and what actions are required to be taken against him.

We read/view in print and electronic media about many cases of patients who have suffered major health setback or even died due to receiving allopathic treatment from unqualified quacks. This is the tip of the iceberg as most cases of malpractice go unreported. It has been reported that number of quacks are increasing in India, both in urban and rural areas. It is estimated that about 10 lakh quacks are practicing allopathic medicine, out of which 4 lakh belong to practitioners of Indian Medicine (Ayurvedic, Sidha, Tibb and Unani). The health of the gullible people including poor, critically ill, women and children are at stake. Therefore, there is a greater need to act against quacks wherever any of us come across them.

Quacks can be divided amongst three basic categories as under :

1. Quacks with no qualification whatsoever.
2. Practitioners of Indian Medicine (Ayurvedic, Sidha, Tibb, Unani), Homeopathy, Naturopathy, commonly called Ayush, who are not qualified to practice Modern Medicine (Allopathy) but are practicing Modern Medicine.
3. Practitioners of so called integrated Medicine, Alternative System of Medicine, electro-homeopathy, indo-allopathy etc. terms which do not exist in any Act.

There is acute lack of awareness amongst State Governments, the legislature(s), judiciary and even doctors themselves regarding threat to nation’s health from quackery and about non-entitlement of practitioners of Indian Medicine who are practicing Modern Medicine. The confusion has been compounded due to various contradictory Govt. and court orders.
Act& Rules has been framed by Central Govt. which lay down distinct area of practice of each system of medicine as under:

Medical Acts

Even a cursory scrutiny of the chart above, it will be apparent that the Central Medical Acts have laid down separate area of practice for each system of medicine. However, CCIM has used a clause “modern advances” in Section 2(e) of CCIM Act 1970 to interpret that BAMS/BUMS are entitled to practice Modern Medicine and CCIM have issued a notification/declaration accordingly. Hon’ble High Court of Kerala vide its order dated 12.12.2006 in Writ No.1260/2006 reaffirmed by the Hon’ble Supreme Court of India in Special Leave to appeal (C) Nos…CC.6116/2007 has ruled that the word “modern advances” contained in Section 2(e) of Act 1970 would be referable to modern advances made in respective fields of Ayurveda, Sidha and Unani. The learned judge has placed reliance upon Supreme Court order in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468). Hence, the modern advances mentioned in Section 2(e) of the Act of 1970 cannot be interpreted to mean allopathic Medicine.” Though CCIM has been requested to cancel their notification, they have not done it so far on the ground that they are seeking legal advice. Obviously, their ulterior motives appear to be questionable. It is blatant violation of courts order.

Second subterfuge adopted by practitioners of Indian Medicine is that provisions of Drugs and Cosmetics Act/Rules 1945 allow them to practice Modern Medicine. Unfortunately certain State Govts. have issued notifications under Drugs and Cosmetics Act/Rules in such vague words so as to appear that practice of Modern Medicine by practitioners of Indian Medicine has been permitted. Such notifications are altogether faulty in the eyes of Law. Such notification needs to be withdrawn by the Govt. of State immediately. Power to practice a system of medicine flows from the Central Acts under which one has acquired a qualification and the central or state register where one is registered in. Hon’ble Supreme Court has ruled in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468) that “The right to practice Modern Scientific Medicine or Indian System of Medicine cannot be based on the provisions of the Drug Rules and declarations made thereunder by State Governments”. State governments have been approached to rescind their notifications which run contrary to Indian Medical Council Act 1956.

Having not succeeded to take advantage of ambiguity in State Medical Acts and Drugs and Cosmetics Act and Rules some practitioners of Ayurvedic, Sidhaand, Unani and Tibb, commonly called Ayush, have concocted a fake name like integrated Medicine and practice Modern Medicine (Allopathy) under its grab. The Govt. has clarified that they have not recognized integrated system of Medicine and currently there is no proposal to develop integrated system of Medicine by Govt. of India. Even CCIM in their letter dated 5.12.2008 has announced that the term” Integrated System of Medicine” has not been defined in their Act and it is not one of the approved system of medicine in India. “The practitioners of Integrated System of Medicine are quacks and should be treated alike them.

Then there is a variety of fake medical degrees like electro-homeopathy, indo-allopathy etc. who call themselves Alternative System of Medicine and under this guise practice Modern Medicine. Alternative System of Medicine is not recognized by law. Since they are a danger to the nation, there is a need to take action against such quacks wherever we find them. In fact, practitioners of Ayurved, Sidh, Unani, Tibb keep jumping from their original system of medicine to integrated or Alternative System of Medicine just to keep practicing Modern Medicine under different façade. If required, they are not averse to concoct new system of Medicine just to avoid detection.

Hon’ble Supreme Court has ruled in Mukhtiar Chand Vs. State of Punjab (AIR 19999 SC 468) that “A harmonious reading of Section 15 of 1956 Act (Indian Medical Council Act) and section 17 of 1970 Act (Indian Medicine Council Act) leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian Medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act.” In another case titled Poonam Verma Vs. Aswin Paatel (AIR 1996 SC 2111), the Hon’ble Supreme Court has given a definition of a quack a “A person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knowledge or to put it differently a chariatan.” The same was reaffirmed by Supreme Court in Civil Appeal No.3541 of2002  in Martin E D’Souza vs Mohd Ishfaq and it was held that “a professional maybe held liable for negligence on the ground that he did not possessed of the requisite skill which he professes to have, thus a doctor who has qualification in Ayurvedic, Unani or homeopathic medicine will be liable if he prescribes allopathic treatment….”A reading of above court orders will make it abundantly clear that no person other than those possessing qualifications mentioned in First, Second and Third Schedule of Indian Medical Council Act 1956 and registered with State Medical Register under the provisions of Indian Medical Council Act 1956 can practice allopathic or the modern scientific system of medicine anywhere in India.

The main roadblock to eradication of quackery is CCIM which keeps issuing clarifications/notifications without any authority of gazette notification that practitioners of Indian Medicine are allowed to practice Modern Medicine. They are deliberately misguiding the Govt. authorities and courts so that confusion may continue. Many times they have misled the prosecutors themselves who then start advocating on their behalf. Misled by them, State Governments under Drug and Cosmetic Rules keep issuing notifications under 2(cc)iii & Cosmetic Rules 45 which appear to allow practitioners of Indian Medicine to practice Modern Medicine. Back they have elicited many court orders in their favour by misleading the courts. Neither Para-Medics nor quacks are allowed to use prefix of Doctor, however, CCIM has persuaded the courts to rule to the contrary. These endeavours of CCIM is simultaneously harming the Indian System of Medicine and defaming Modern Scientific Medicine. CCIM do not clarify that the practitioner of Indian Medicine are registered in State register of Indian Medicine and not State Medical register.

Supreme Court in case of Mukhtiar Chand Vs. State of Punjab and others has file that
“for the purposes of Clause iii of Rules of (ee) what is required is not the qualification in Modern Scientific System of medicine but

1. Declaration by the State Government
2. That a person is practicing modern scientific systems
3. And that is registered in a Medical Register of the State” (i.e. State Medical Register)

“A Supreme Court has further held “A notification can be faculty with only those requirements are not satisfied”.

Non of the practitioner of Indian System are registered in State Medical Register; practitioners of Indian System are registered with State Register of Indian Medicine. Hence, any notification issued by State Government for the purpose of Clause 2(ee) (iii) is faulty, in the eyes of Law it is illegal.

Supreme Court has further ruled ‘But after Sub-section (2) of section __ was inserted in the 1956 Act, with effect from 15.9.1964 which, inter-alia, provides that no person other than a medical practitioner enrolled on “State Medical Register” shall practice modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs be virtue of the declaration issued under the said Drug rules by implication, got obliterated.”

It was further field by the Supreme Court that 2(ee)iii is not repugnant to Medical Council Act 1956.

There is also complete apathy on the part of Govt. to eradicate quackery and though IMA/MCI have submitted a draft Anti Quackery Bill, the Govt. has not taken any action to place it before parliament. On the contrary Govt. keeps issuing assurances that the interests of unqualified health professionals will be protected to meet rural health requirements. This really emboldens the quacks who are assured of their position and encourages more to swell their ranks. Govt. has not carried out any survey of quacks though repeatedly insisted upon them. Fake Medical Institutions distributing fake medical degrees are prospering and multiplying under the patronage of Govt. functionaries and politicians and no action is taken against them even though they are reported to Govt. police.

The drug suppliers are also giving a helping hand to quacks by supplying drugs directly and send their medical representation to them to promote sale of their drugs. These drug suppliers stoop down to supply of drugs without cash memo also.

The Central Governments has laid down Indian Medical Council Act (MCI) which governs and regulates practice of Modern Medicine. The provisions of the Act are worded in crystal clear terms and there is no ambiguity whatsoever. However, when it comes to State Medical Acts, it has been conducted in terms which some times appear to be confusing. Further they do not implement changes in State Medical Acts in pursuance to changes in Indian Medical Council Act 1956.

The purpose of this compendium is not only to educate the doctors regarding anti quackery provisions but also to encourage them to give active support to IMA in fight against quackery. Whenever they come across a quack they must intimate the same to police, district authorities and always send a copy of your complaint to IMA. All doctors are requested to disseminate the information contained in this compendium to other doctors and to send copy of Govt. or Court orders to IMA which is not part of this compendium. Doctors must realize they are fighting against fraud perpetrated against common people who does not have means to fight quackery.

After insertion of Section 15(2) of Medical Council Act 1956 with effect from 15-9-1964 the right of non-allopathic practitioners i.e. practitioners of  Indian System of Medicine got obliterated.

Section 2(ee) (iii) of drug rules as effected from 14-5-1960 was applicable of those practitioners who were already registered in State Medical Register i.e. State Medical Council (meant for MBBS only). Prior to a date on which a practitioners registered under Bombay Medical Act 1912 or under the Bombay Medical Practitioners Act 1938. Those were two exceptions, where, such practitioners were registered in Medical Register of a State. The said notification under Drug Rule 2(ee) (iii) was inserted to escape from rigors of Sub-section 15 of MCI Act 1956. In present scenario no one can get benefit of Section 2(ee) (iii), as none has been registered in State Medical Register after 1956 Act of MCI.

More over Indian Medical Degree Act 1916 (which is still operational) covers all registered degrees i.e. modern medicine, Indian System of Medicine, Homeopathic.  The Western Medical Science (Modern Medicine) was defined to mean the Western method of allopathic medicine of obstetrics and surgeries but has excluded homeopathy, ayurvedic and Unani System of Medicine from its purview.

For any clarifications or queries, please feel free to contact the undersigned.