BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL ASSOCIATION AND ORS.

The Judgment of the Court was delivered by A NAGARATHNA, J. I N D E X*

Leave granted.

2Copy pinpoint2. In these appeals, the appellants have assailed the legality and correctness of the order dated 30.10.2014 passed by the Division Bench E 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: F

3Copy pinpoint3. 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 G 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 *Pagination in the Index is as per the Original Judgment. H

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A applications from eligible candidates seeking admissions in the three- year course of Diploma in Medicine and Rural Health Care in 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 B 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) C 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 D 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. 3.4. By the impugned order dated 19.09.2014, the High Court E 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 F 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. G 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 H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 929 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

completed the course, and appointment of such persons as A 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 B only 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 engaged as Rural Health Practitioners on the basis of such qualification, as necessary parties in the writ petition. C

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: D

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 E 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 F new or higher course.” The words “new or higher course” would 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 G 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. H

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A 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 B 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 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 F 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 G 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 H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 931 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

(C) Nos. 24 and 25 of 2018 before this Court. In the circumstances, we A have heard these cases together and the same are being disposed of by this common judgment. Bird’s Eye View of the Controversy:

4Copy pinpoint4. The controversy in these cases revolve around the legislative competence of the Assam State Legislature to enact the Assam Act B 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 C Constitution. Submissions:

5Copy pinpoint5. 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 D 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 E Senior Counsel instructed by Ms. Oindrila Sen appearing on behalf of the petitioners in 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 F 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 G 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 H

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A 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 Healthcare 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 B diploma course. 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. 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 H Legislation. It may be declared ultra vires if it effectively

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 933 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

impinges on the field reserved for the Union under Entry A 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 B 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 C 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 D power for co-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 E 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 F 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. G 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 H

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A from the Assam and Chhattisgarh models of the Diploma Course and sought to affiliate these courses/programs to a University or Regulatory 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. B 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.

E 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 case. The judgments relied upon by Sri Sanjay Hedge shall be discussed later. F Arguments on behalf of Respondent No. 1 Indian Medical Association:

6Copy pinpoint6. Learned counsel Sri Shivam Singh appearing for Respondent No. 1, Indian Medical Association submitted as under: G 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” H as prescribed under Section 10A(b)(i) of the Central Act,

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 935 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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 “recognised 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. iii. That the term “Medical College” is not defined in the IMC Act, 1956, thus, reliance must be placed on the definition of C “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 D 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 E 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. F

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 G State Government does not have the power to enact the Assam Act 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 H

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A 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 D 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 intention to cover the whole field relating to the E 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 F 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

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 937 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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 B Act, being that the practitioners who graduate in the diploma 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 C 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 D 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 E 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 F 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 accommodate the ousted diploma holders in different capacities. Merely because the appellants before this court are aggrieved by their arrangement in a different capacity G under the new legislation, it cannot equip them to sustain the present challenge.

7Copy pinpoint7. Learned Senior Counsel Sri K.M. Natraj appearing for Union of India has also been heard which shall be adverted to later. H

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A Submissions on behalf of Respondent No. 7 (Medical Council of India):

8Copy pinpoint8. 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 B 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 C 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 Health Practitioners D 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. E 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 H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 939 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

it unequivocally clear that only those persons who are A enrolled 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) B 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 C 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 D 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 practice of modern scientific medicine by any person, except those registered under the E State Medical Register maintained by the Assam Medical Council. 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 F 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 G 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 H

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A 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. B 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 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 E 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 great threat to society and would degrade the standard of health care system in the country. Submissions on behalf of the State of Assam:

9Copy pinpoint9. Learned counsel Sri Ananga Bhattacharyya made the following submissions on behalf of the State of Assam:

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 941 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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 D Assam Act is not akin to “recognised medical 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. E 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 F 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. G

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. H

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A F. N. Balsara, AIR 1951 SC 318, (“F. N. Balsara”) wherein it was held that mere incidental encroachment on matters which have been 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 B 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. C 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 “recognised 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 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 G Co. Ltd. vs. State of Orissa, AIR 1961 SC 459, (“Hingir - Rampur Coal Co. Ltd.”) wherein thisCourt 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 H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 943 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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 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.

10Copy pinpoint10. 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 E 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 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 H

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A 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 B 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 C the State. 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: D 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? E iii) What Order? Constitutional Scheme

11Copy pinpoint11. Before proceeding, it would be useful to refer to the constitutional scheme relevant to the issues which arise in these cases. F 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 laws with respect to any of the matters

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enumerated in List III in the Seventh Schedule (in this A 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 B 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. C ***

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 provision of a law made by Parliament which Parliament D 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 E 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 F 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: G 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.” H

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A 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 B institutions for higher education or research and scientific and technical institutions.” *** Entry 25 of List III -Concurrent List C “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 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

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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. 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 videPrafulla 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. D 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 E 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 videUjagar Prints vs. Union of India, AIR 1989 SC 516, (“Ujagar Prints”). F 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 G 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 H

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A 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 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. D 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 E 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 F Company vs. State of West 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 G 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 H

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a nullity ab-initio. The Legislation is rendered null and void for want of A 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. B 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. 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 G Legislature. 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. H

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A 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. B 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:

12Copy pinpoint12. 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 D State Legislature or for that matter any State Legislature in the context of education, particularly, medical 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 E 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. H

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13Copy pinpoint13. Sri Natraj contended that, in the instant case, the IMC Act, A 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. B 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 Constitution points towards federal supremacy having regard to Article 246 of the Constitution. C

14Copy pinpoint14. 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 D 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. Interplay between Entry 66 of List I and Entry 25 of List III:

15Copy pinpoint15. Since these appeals concern interpretation, inter alia, of Entry E 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, Ahmedabad vs. Shri Krishna Ranganath Mudhoklar, AIR 1963 SC 703, (“Gujarat F 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 G 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 H

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A 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: “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 E “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, 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

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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 B 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 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 17th 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 E 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 F 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 G 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 H

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A them that the Syndicate had accepted the report of 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 B Respondent was also informed that they should make alternative 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 C 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, D 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. E 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: “[i] The expression “coordination” used in Entry 66 of the Union List of the Seventh Schedule to the Constitution F 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.

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[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 B 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. C

[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 be determined by the examination of the two laws and will depend upon the facts of each case. D

[v] When there are more applicants than the available situations/seats, the State 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 H

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A 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 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 any 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. D iii) In Preeti Srivastava vs. State of Madhya Pradesh, 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 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 H State cannot adversely affect the standards laid down by

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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 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; E

(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 F 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; G (7) Adequate accommodation for the college and the attached hospital; and (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.” H

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A 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 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 B 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. C iv) In Modern Dental College and Research 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 D 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 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 G 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- H ordination and determination of standards in institution of

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higher education or research as well as scientific and A 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 B 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 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. E 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 are 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 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 H

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A 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 B 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, C 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 D 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 determination of minimum standards and co-ordination which was in national interest. Subsequently, vide the Constitution (Forty-second E 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 F 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 G 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,

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 961 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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 Examination, if he obtained 15% of the total marks shall be deemed to have passed that examination; and suppose the Bihar C 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 meaningless. 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. G

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 H

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