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

A between the States to cause them to work in the field of higher education in their respective States as per the standards determined by the Union. Entry 25 in the Concurrent List is available both to the Centre and the States. However, power of the State is subject to the provisions of Entries 63, 64, 65, and 66 of the Union B List; while the State is competent to legislate on the education including technical education, medical education and universities, it should be as per the standards set by the Union.

134. The words “coordination” and “determination of the standards in higher education” are the preserve of Parliament and are exclusively covered by Entry 66 of the Union List. The word “coordination” means harmonisation with a view to forge a uniform pattern for concerted action. The term “fixing of standards of institutions for higher education” is for the purpose of harmonising coordination of the various institutions for higher education across the country. Looking at the present distribution of legislative powers between the Union and the States with regard to the field of “education”, that State’s power to legislate in relation to E “education, including technical education, medical education and universities” is analogous to that of the Union. However, such power is subject to Entries 63, 64, 65 and 66 of the Union List, as laid down in Entry 25 of the Concurrent List. It is the responsibility of the F Central Government to determine the standards of higher education and the same should not be lowered at the hands of any particular State. xxx xxx xxx xxx

147. Another argument that has been put forth is that the power to enact laws laying down process of admission in universities, etc. vests in both Central and State Governments under Entry 25 of the Concurrent List only. Under Entry 25 of the Concurrent List and erstwhile Entry 11 of the State List, the State Government has enacted various legislations that inter alia regulate

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 963 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

admission process in various institutions. For instance, A Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi Sansathan Vishwavidyalaya Adhiniyam, etc. were established by the State Government in exercise of power under Entry 25 of the Concurrent B List. Similarly, the Central Government has also enacted various legislations relating to higher education under Entry 25 of the Concurrent List pertaining to Centrally funded universities such as the Babasaheb Bhimrao Ambedkar University Act, 1994, the Maulana Azad National Urdu University Act, 1996, the Indira Gandhi C National Tribal University Act, 2007, etc. The Central Government may have the power to regulate the admission process for Centrally funded institutions like IITs, NIT, JIPMER, etc. but not in respect of other institutions running in the State. D

148. In view of the above discussion, it can be clearly laid down that power of the Union under Entry 66 of the Union List is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country. Thus, the scope of Entry 66 must be construed limited to its actual E sense of “determining the standards of higher education” and not of laying down admission process. In no case is the State denuded of its power to legislate under List III Entry 25. More so, pertaining to the admission process in universities imparting higher education. F

149. I have no hesitation in upholding the vires of the impugned legislation which empowers the State Government to regulate admission process in institutions imparting higher education within the State. In fact, the State being responsible for welfare and development of G the people of the State, ought to take necessary steps for welfare of its student community. The field of “higher education” being one such field which directly affects the growth and development of the State, it becomes prerogative of the State to take such steps which further H

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A the welfare of the people and in particular pursuing higher education. In fact, the State Government should be the sole entity to lay down the procedure for admission and fee, etc. governing the institutions running in that particular State except the Centrally funded institutions like IIT, NIT, etc. because no one can be a better judge B of the requirements and inequalities-in-opportunity of the people of a particular State than that State itself. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams.” C v) In Chintpurni Medical College and Hospital vs. State of Punjab and Ors., AIR 2018 SC 3119, (“Chintpurni Medical College and Hospital”)this Court considered the question, whether, a State Government can withdraw an Essentiality Certificate once granted to a medical college and whether such power is ultra vires the Central Act. An essentiality certificate is required to be issued by the State Government within the territory of which the medical college is proposed to be established, certifying the need in the subject state, of a medical college. The concerned State Government is required to certify that it has decided to issue an essentiality certificate for the establishment of a medical college with a specified number of seats in public interest, and further that such establishment is feasible. In examining whether such certificate, which is required to be secured by a college before seeking permission under Section 10A F of the IMC Act, 1956, could be subsequently cancelled by the State, this Court held that the only purpose of the essentiality certificate is to enable the Central Government acting under Section 10A to take an informed decision for permitting the opening or establishment of a new medical college. Once the college is established, its functioning and performance and even the de-recognition of its courses is controlled only by the provisions of the Central Act and not any other law. That it would therefore be impermissible to allow any authority including a State Government which merely issues an essentiality certificate, to exercise any power which could have the effect of terminating the

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 965 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

existence of a medical college permitted to be established by the Central Government. As regards the power of the Parliament under Entry 66 of List I, as juxtaposed with the power with the State Legislatures under Entry 25 of List III, this Court made the following observations: B “The IMC Act, which is a Legislation under Entry 66 of List I of Seventh Schedule of the Constitution of India is a complete code which governs the establishment, functioning, including maintenance of standards of education and even de-recognition of Medical Colleges vide Section 19 of the C Act. The States are denuded of the Legislative Power to legislate on medical education under Entry 25 of the Concurrent List since Parliament has exercised its power under Entry 66 and enacted the IMC Act” vi) In Tamil Nadu Medical Officers Association vs. Union D of India, (2021) 6 SCC 568,(“Tamil Nadu Medical Officers Association”) a Constitution Bench of this Court, considered the question, whether, under the scheme of the Constitution of India and the provisions of the IMC Act, 1956, read with the Medical Council of India Postgraduate Medical Education Regulations, 2000, a State has the legislative competence to enact legislation to provide for reservation of seats for admission in postgraduate medical courses, in favour of medical professionals working in government organisations within the State. In other words, the question before the Court pertained to the legislative competence of the states to make reservation for in-service doctors in the State quota in post graduate degree/diploma medical courses. The primary contention of the Petitioners therein was that while co-ordination and determination of standards in institutions for higher education falls within the exclusive domain of the Union, under Entry 66 of List I, medical education is a subject in the Concurrent list, i.e., under Entry 25 of List III. That though Entry 25 of List III is subject to Entry 66 of List I, the State is not denuded of its power to legislate on the manner and method of making admissions H

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A to post-graduate medical courses. The case of the Petitioners therein was that the competence of the State Government to make reservation for post-graduate seats in medical colleges, in favour of in-service candidates, is traceable to Entry 25 of List III, videModern Dental College. That since there was no plenary law by the Centre B to provide for any reservation for in-service candidates, it would be competent for the State Governments to provide for a reservation for in-service candidates. That in the absence of a Central law governing the field, it would be open to the State Government to enact a legal instrument to provide reservation for in-service candidates. This Court deliberated on the scope and ambit of Entry 66 of List I, and also on the question as to whether, in view of the said Entry, the State Legislature is denuded of its power to legislate on the manner and method of admissions into post-graduate medical courses. Referring to the dictum of this Court in Modern Dental College wherein it was held that Entry 66 of List I is specific and limited in scope, this Court observed that the said Entry pertains specifically and exclusively to the prescription of standards for higher education and research institutions and the scope of such E Entry would not extend to matters such as conduct of examination, prescribing course fee or admission of students. It was therefore declared that in exercise of powers under Entry 66 of List I, the Union cannot provide for anything with respect to reservation/ percentage of reservation and/ F or mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III. Further, referring to the provisions of the IMC Act, 1956 and more particularly, Section 33 thereof, which provides for the power of the Council to make regulations, this Court G held that the said provision does not confer any authority or power to frame regulations with respect to reservation in medical courses. Therefore, in the absence of a Central Law governing the field, it would be open to the State Government to make provision for reservation by legislating on the strength of Entry 25 of List III. This Court, therefore, H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 967 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

concluded that that Entry 66 of List I is a very specific A Entry having limited scope and that the no provision for reservation for in service candidates could be made under the said Entry; that power to legislate on such matter is traceable to Entry 25 of List III of the Seventh Schedule of the Constitution. B Aniruddha Bose J. in a separate but concurring judgment observed that although the students who would gain admission into the post-graduate courses as a part of the in-service quota, may not have been admitted purely based on a uniform order of merit, and this might, to some degree have an effect on the overall standard of medical education, the term “standards” in Entry 66 of List I must not be construed in such a manner. That the phrase “coordination and determination of standards” as appearing in Entry 66 of List I should be construed as the standard of education and other institutional standards which are to be complied with. Therefore, it was held that reservation in favour of in-service candidates, would in no way be regulated under Entry 66 of List I.

16Copy pinpoint16. Bearing in mind the aforesaid discussion, we shall proceed to consider the scheme of the legislations relevant to these appeals. E 16.1. The field of legislation covered under Entry 25 of List III is subject to Entries 63, 64, 65 and 66 of List I. It is, therefore, necessary to dilate on the effect of providing that one Entry or provision is ‘subject to’ another. As per Black’s Law Dictionary, 5th Edition, Pg. 1278, “subject to” means “liable, subordinate, subservient, inferior, obedient to, governed or affected by.” The following decisions would illustrate the above meanings of the phrase ‘subject to’: i) In K.R.C.S. Balakrishna Chetty & Sons & Co. vs. The State of Madras, AIR 1961 SC 1152, (“K.R.C.S. Balakrishna Chetty & Sons & Co.”) this Court observed that the expression “subject to” has reference to effectuating the intention of the law and the correct meaning, of the phrase is, “conditional upon”. ii) Similarly, in The South India Corporation (P) Ltd. vs. The Secretary, Board of Revenue Trivandrum and Ors., H

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A AIR 1964 SC 207, (“The South India Corporation (P) Ltd.”) this court observed that the expression “subject to” conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. This understanding of the phrase “subject to” has been affirmed in K.T. Plantation (P) Ltd. vs. State of B Karnataka, (2011) 9 SCC 1, (“K.T. Plantation (P) Ltd.”). iii) In Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr., (2004) 3 SCC 1, (“Ashok Leyland Ltd.”) this Court held that, “‘Subject to’ is an expression whereby limitation is expressed.” 16.2. In the facts of the present case, the Assam Act would be subject to the provisions of the Central Act. This is because the Assam Act is stated to be enacted on the strength of Entry 25 of List III, and the power of the State Legislature under the said Entry is circumscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of List I. 16.3. Where one Entry is made ‘subject to’ another Entry, it means that out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specially dealt with by the appropriate Legislature. In the present context, the field of legislation covered under Entry 25 of List III is subject to Entry 66 of List I. This would imply that out of the scope of Entry 25 of List III, a field of legislation covered by Entry 66 of List I is reserved to be dealt with by the Parliament. Hence, the field covered by the Central Act, enacted under Entry 66 of List I, is carved out of the scope of Entry 25 of List III F and is reserved to be dealt with by the Parliament. What is that field of legislation has to be identified. We shall proceed to undertake the said exercise by considering both the Central as well as the State enactments. Indian Medical Council Act, 1956 (IMC Act, 1956) (Central law) G

17Copy pinpoint17. The relevant provisions of the Indian Medical Council Act, 1956 (‘IMC Act, 1956’), read as under: Preamble – An Act to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for H India and for matters connected therewith.

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 969 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

xxx A “2. Definitions.- In this Act, unless the context otherwise requires,- (a) “approved institution” means a hospital, health centre or other such institution recognised by a University as an institution in which a person may undergo the training, if B any, required by his course of study before the award of anymedical qualification to him; xxx (d) “Indian Medical Register” means the medical register maintained by the Council; C (e) “medical institution” means any institution, within or without India, which grants degrees, diplomas or licences in medicine; (f) “medicine” means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not D include veterinary medicine and surgery; xxx (h) “recognised medical qualification” means any of the medical qualifications included in the Schedules; xxx E (k) “State Medical Register” means a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine; xxx 10A. Permission for establishment of new medical college, F new course of study.— (1) Notwithstanding anything contained in this Act or any other law for the time being in force,— (a) no person shall establish a medical college; or (b) no medical college shall— G (i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or H

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A (ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. B Explanation 1.—For the purposes of this section, “person” includes any University or a trust but does not include the Central Government. Explanation 2.—For the purposes of this section, “admission capacity”, in relation to any course of study or training (including C post-graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. xxx D 10B. Non-recognition of medical qualifications in certain cases.— (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted E to any student of such medical college shall be a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central F Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act. (3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act.

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 971 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

Explanation.—For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed. xxx

11. Recognition of medical qualifications granted by B Universities or medical institutions in India.— (1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act. C (2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification D may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date. xxx E

13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule.— (1) The medical qualifications granted by medical institutions in F India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act. (2) The medical qualifications granted to a citizen of India— (a) before the 15th day of August, 1947, by medical institutions G in the territories now forming part of Pakistan, and (b) before the Ist day of April, 1937, by medical institutions in the territories now forming part of Burma, which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act. H

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A (3) The medical qualifications granted by medical institutions outside India before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State B Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may C be prescribed. xxx

15. Right of persons possessing qualifications in the Schedules to be enrolled.— D (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. (2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register,— E (a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practise medicine in any State; (c) shall be entitled to sign or authenticate a medical or fitness F certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner; (d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian G Evidence Act, 1872 (1 of 1872) on any matter relating to medicine. (3) Any person who acts in contravention of any provision of sub- section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one H thousand rupees, or with both.

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 973 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

xxx A 19A. Minimum standards of medical education.— (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by Universities or medical institutions in India. B

(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the C comments of any State Government received within three months from the furnishing of the copies as aforesaid. (3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. D xxx

21. The Indian Medical Register.— (1) The Council shall cause to be maintained in the prescribed manner a register of medical practitioners to be known as the E Indian Medical Register, which shall contain the names of all persons who are for the time being enrolled on any State Medical Register and who possess any of the recognised medical qualifications. (2) It shall be the duty of the Registrar of the Council to keep the F Indian Medical Register in accordance with the provisions of this Act and of any orders made by the Council, and from time to time to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. (3) Such register shall be deemed to be a public document within G the meaning of the India Evidence Act, 1872 (1 of 1872) and may be proved by a copy published in the Gazette of India.

22. Supply of copies of the State Medical Registers.— Each State Medical Council shall supply to the Council six printed copies of the State Medical Register as soon as may be after the H

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A commencement of this Act and subsequently after the first day of April of each year, and each Registrar of a State Medical Council shall inform the Council without delay of all additions to and other amendments in the State Medical Register made from time to time.

B 23. Registration in the Indian Medical Register.— The Registrar of the Council may, on receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by any such person, enter his name in the Indian Medical Register: C Provided that the Registrar is satisfied that the person concerned possesses a recognised medical qualification.” 17.1. On a conjoint reading of the aforesaid provisions, it is noted that the IMC Act, 1956, is an Act which repealed the erstwhile Act of 1933 with the object of providing for the reconstitution of the Medical D Council of India and for the maintenance of a Medical Register for India and for matters connected therewith. There are two significant provisions which require consideration under this Act in the instant case: first is Section 10A and the second is Section 15. However, while considering the aforesaid Sections in detail, it would be worthwhile to refer to other relevant provisions of the IMC Act, 1956. 17.2. From the point of view of opening of a new medical institution as defined under Section 2(e), Section 10A becomes relevant. It begins with a non-obstante clause and states that notwithstanding anything contained in the IMC Act, 1956 or any other law for the time being in force, a) no person shall establish a medical college; or b) no medical college shall – i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this Section. H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 975 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

Explanation 1 and Explanation 2 define the expression “person” A and expression “admission capacity” respectively. Although, the expression “medical institution” has been defined in Section 2(e) to mean any institution, which grants degrees, diplomas or licences in medicine within or outside India, the expression “medical college” has not been defined. But in our view, the said expressions could be read interchangeably. Section 10A was inserted by the Act of 1993 with effect from 27.08.1992. 17.3. Thus, a condition precedent has been incorporated by an amendment to the IMC Act, 1956, with regard to opening of any medical institution/college in India which is, the seeking of previous permission of the Central Government in accordance with the procedure prescribed under Section 10A. In fact, this position is highlighted on a reading of Section 10B which states that if a medical qualification is granted to any student of a medical college which has been established de hors the provisions of Section 10A, no such qualification shall be recognised under the said Act. The phrase “recognised medical qualification” is defined in D Section 2(h) to mean any of the medical qualifications included in the Schedules. There are three Schedules to the IMC Act, 1956. The First Schedule deals with recognised medical qualifications granted by the Universities or Medical Institutions in India. The Second Schedule speaks of recognised medical qualifications granted by Medical Institutions outside India while the Third Schedule deals with recognised medical E qualifications granted by Medical Institutions not included in the First Schedule. 17.4. In this context, Sections 11 and 13 are also relevant. Sub- section (1) of Section 11 states that the medical qualifications granted by any University or Medical Institution in India which is included in the F First Schedule, shall be recognised medical qualification for the purposes of the said Act. Sub-section (2) of Section 11 is significant as it states that any University or medical institution in India which grants a medical qualification not included in the First Schedule, may apply to the Central Government to have such qualification recognised, and the Central G Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical H

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A qualification only when granted after a specified date. On the other hand, Section 13(1) states that the medical qualifications granted by Medical Institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of the said Act. These are medical qualifications such as LMP (Licenced Medical Practitioners) in various B States of India and erstwhile provinces of India. The Third Schedule is in respect of courses in medicine which were recognised prior to the enforcement of the IMC Act, 1956, while the courses conducted by the institutions mentioned in the First Schedule have recognition under the said Act. C 17.5. Sections 11 and 13 have a bearing on Section 15 of the Act. Section 15 states that, subject to the other provisions contained in the Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. Further, except as provided in Section 25, no person other than a medical practitioner D enrolled on a State Medical Register shall, inter alia, practice medicine in any State or shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner. The expression “State Medical Register” as per Section 2(k) means a register maintained under any law for the time being in force in any State, E regulating the registration of practitioners of medicine. The word ‘medicine’ is defined in Section 2(f) of the said Act to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery.Therefore, unless a person has sufficient qualification recognised under the Schedules to the Act, he or she cannot be enrolled on any State Medical Register. In the absence of any such enrolment, such a person is barred from practicing medicine in any State. 17.6. Further, all persons who are enrolled in any State Medical Register and who possess any of the recognised medical qualifications are enabled to be enrolled after registration as medical practitioners under the Indian Medical Register. As per sub-Section (2) of Section 21, it is the duty of the Registrar of the Indian Medical Council, to keep the Indian Medical Register in accordance with the provisions of the IMC Act, 1956, and to from time to time revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. In H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 977 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

fact, under Section 22 of the Act, each State Medical Council has to A supply to the Indian Medical Council, six printed copies of the State Medical Register on the first day of April of each year. On the receipt of report of the registration of a person in a State Medical Register or on application made in the prescribed manner by such person, enter his name in the Indian Medical Register vide Section 23 of the Act. Removal B of the names from the Indian Medical Register is dealt with in Section 24, while provisional registration is dealt with in Section 25 of the Act and registration of additional qualifications in Section 26 of the Act. Every person whose name is for the first time being borne in the Indian Medical Register shall be entitled, according to his qualifications, to practice as a medical practitioner in any part of India and to recover in due course of C law, in respect of such practice, any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled to.

18Copy pinpoint18. It may be appropriate at this juncture to dilate on the Assam Act, 2004. D Assam Rural Health Regulatory Authority Act, 2004 (Assam Act): The relevant provisions of the said Act are as extracted as under: “2. Definitions.- In this Act unless the context otherwise requires: E (a) ‘Act’ means the Assam Rural Health Regulatory Authority Act, 2004; (b) ‘Authority’ means the Assam Rural Health Regulatory Authority established under Section 3; F (c) ‘Certificate’ means a certificate issued by the Authority under Section 17; (d) ‘Course’ means the prescribed course of education and training for the Diploma in Medicine and Rural Health Care; (e) ‘Diploma in Medicine and Rural Health Care’ means the G diploma awarded by the Authority on successful completion of the course of Diploma in Medicine and Rural Health Care under the provisions of the Act; xxx H

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A (g) ‘Medicine’ means allopathic medicine but does not include veterinary medicine; (h) ‘Medicine and Rural Health Care’ means practice of allopathic medicine and health care system in rural areas in the State of Assam; B (i) ‘Medical institute’ means institute established under this Act for imparting medical education both theoretical and practical for the course of Diploma in Medicine and Rural Health Care; xxx C (l) ‘Rural areas’ means areas not included in a Municipal Corporation, a Municipal Board or a Town Committee or any other area notified as urban area; xxx D (n) ‘Rural Health Practitioners’ means a holder of the diploma in Medicine and Rural Health Care who has registered himself as such with the Authority and obtained a certificate and a registration number. (o) ‘State Register of Rural Health Practitioners’ means the register maintained under Section 17 and the expressions “Registered’ and ‘Registration’ shall be construed accordingly; xxx

7. Minimum Standard. - The Authority may prescribe the minimum standards of the course, the curriculum, the examination etc. in respect of the course and prescribe by regulation the terms conditions and norms to be fulfilled, facilities to be provided by a Medical Institute for imparting education and training for the course of Diploma in Medicine and Rural Health Care.

G 8. Permission to open a Medical Institute.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force no person or organization other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior H and expressed permission of the State Government.

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(2) Every person or organization or trust wanting to start a Medical A Institute shall for the purpose of obtaining permission under sub- section (1) submit to the State Government a proposal in accordance with the provisions of the Act and the rules framed thereunder and the State Government shall refer the proposal to the Authority for its scrutiny and recommendations. B (3) On receipt of the proposal, the Authority may obtain such other particulars and information as may be considered necessary from the person or the organization concerned and thereafter if may, if the proposal is defective and does not contain any necessary particular, give a reasonable opportunity to the person or organization concerned for making a written representation and it shall be open to such person or organization to rectify the defects, if any, specified by the Authority. (4) The State Government may after considering the proposal and the recommendations or observations of the Authority and after obtaining where necessary, such other particulars as may be considered necessary by it from the person or the organization concerned either approve (with such conditions, if any, as may be considered necessary) or disapprove the proposal. (5) The authority while making its recommendations and the State Government while passing an order, either approving or disapproving the proposal shall have due regard to the following factors, namely, - (a) whether the proposed person or organization seeking to open a Medical Institute would be in a position to offer the minimum standards of education as prescribed by the F Authority; (b) whether the person seeking to establish a Medical Institute has adequate financial resources; (c) whether necessary· facilities in respect of staff; equipment, G accommodation, training and other facilities to ensure proper functioning of the Medical institute; (d) whether adequate hospital facilities having regard ·to the number of students likely to attend the Medical Institute would be available; H

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A (e) whether adequate qualified teaching and non-teaching staff would be available in the Medical Institute., (f) any other condition as may be prescribed. xxx

17. State Register of Rural Health Practitioners.- (1) The B Authority shall cause to be maintained in the prescribed manner and form a Register of Diploma Holders in Medicine and Rural Health Care to be known as the State Register of Rural health Practitioners. (2) It shall be the duty of Secretary to keep and maintain the State C Register of Rural Health Practitioners in accordance with the provisions of this Act and the rules made thereunder. (3) The State Register of Rural Health practitioners shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872. D (4) Every person on successful completion of the course shall be eligible for enrollment in the State Register of Rural Health Practitioners on furnishing to the Secretary the proof of such qualification and on payment of such fees as may be prescribed. (5) Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitle to have a E certificate issued by the Authority under the hand and seal of the President and the Secretary and bearing a Registration Number and shall be eligible to practise medicine and Rural Health Care in rural areas of the State of Assam. xxx

F 24. Powers and Functions.- The Rural Health Practitioners shall be eligible to practise Medicine and Rural Health Care subject to the following conditions namely. (a) they shall treat only those diseases and carry out those procedures which shall be outlined in the rules; G (b) they shall prescribe only those drugs, which shall be outlined in rules; (c) they shall not carry out any surgical procedure, invasion, investigation or treatment, ‘Medical Termination or; Pregnancy etc. but shall confine themselves to such H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 981 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

medicinal treatment and perform such minor surgery as may be prescribed. (d) they shall practice only in rural areas as defined in the Act; (e) they may issue illness certificates and death certificates. (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients treated by them; and (g) they shall not be eligible for employment in Hospitals, Nursing Homes and Health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services. C 18.1. The Assam Act is an Act to provide for the establishment of a regulatory authority in the State of Assam to regulate and register the Diploma holders in Medicine & Rural Health Care (DMRHC) and their practice of medicine in rural areas and also to regulate opening of Medical Institutes for imparting education and training for the course of Diploma D in Medicine and Rural Health Care (DMRHC). 18.2. Section 3 of the said Act deals with the establishment of the Assam Rural Health Regulatory Authority (in short “the Authority”). The powers and functions of the authority are enumerated in Section 6, inter alia, to include; E (a) to hold, conduct and regulate the examination for the course that is Diploma in Medicine and Rural Health Care including entrance test for admission into the Medical Institute; (b) to maintain State Register of Rural Health Practitioners; (c) to lay down the norms and standards for the course, curriculum facilities for instruction, training assessments and examinations for students undergoing the course for Diploma in Medicine and Rural Health Care and of the Medical Institute; (d) to provide guidelines for admission of the students to the course. (e) to inspect physical facilities, staff position, Hospital and academic infrastructure of a Medical Institute imparting education and training for Diploma in Medicine and Rural Health Care at the time of starting of such an Institute and H

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A to give no objection certificate after the said Institute has completed all formalities and norms and to make periodical inspection to judge compliance of shortcomings pointed out, and to maintain standard of the Institute; 18.3. Section 8 deals with opening of a medical institute. Sub B section (1) of Section 8 begins with a non-obstante clause and states that, notwithstanding anything contained in the Assam Act or any other law for the time in force, no person or organisation other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior and expressed permission of the State Government. Sub-section (2) of Section 8 states that any person or organisation or trust wanting to start a Medical Institute must obtain permission from the State Government by submitting a proposal to the State Government. The State Government shall refer the proposal to the Authority for its scrutiny and recommendations. The Authority can prescribe the minimum standards of the course, the curriculum, the examination etc. in respect of the course and prescribe the regulation, the terms and conditions and norms to be fulfilled, facilities to be provided by a medical institute for imparting education and training for the course of Diploma in Medicine and Rural Heal Care. The Authority has the power to withdraw recognition, when an Institute does not conform to the standards prescribed by the authority, by making a reference to that effect to the State Government and the State Government may, on consideration of an explanation from the concerned Medical Institute and on making further enquiry, de-recognise an Institute. 18.4. Section 17 of the Assam Act speaks of State Register of Rural Health Practitioners. That the Authority shall cause to be maintained in the prescribed manner and form a register of Diploma Holders in Medicine and Rural Health Care to be known as the State Register of Rural Health Practitioners. Every person on successful completion of the course that is, the course of education and training for the Diploma in Medicine and Rural Healthcare, shall be eligible for enrolment in the State Register of Rural Health Practitioners on furnishing the proof of such qualification and on payment of such fees as may be prescribed. Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitled to have a certificate to be issued by the Authority bearing a Registration Number and shall be eligible to practise Medicine and Rural Health Care in rural areas. The H

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Rural Health Practitioners cannot use the word “Doctor” or “Dr.” before A and after their names. However, they can identify themselves as Rural Health Practitioners or RHP. 18.5. Section 21 of the Assam Act states that no person whose name is not enrolled or has been cancelled or removed from the State Register of Rural Health Practitioner shall practise Medicine and Rural B Health Care at any place whether urban or rural in the State of Assam. The powers and functions of Rural Health Practitioners are delineated in Section 24 which clearly states that they can practice subject to the following conditions namely: (a) to treat only those diseases and carry out only those procedures which are outlined in the rules; (b) to prescribe only those drugs, which are outlined in the rules; (c) not to carry out any surgical procedure, invasion, investigation or treatment, Medical Termination of Pregnancy etc. but confine themselves to such medicinal treatment and perform such minor surgery as may be prescribed. (d) to practise only in rural areas as defined in the Assam Act; (e) to issue only illness certificates and death certificates; (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients treated by them; (g) not to be employed in Hospitals, Nursing Homes and Health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services. F 18.6. Section 22 of the Assam Act empowers the State Government to make rules, while Regulations could be made by the Authority with the previous approval of the State Government, as per Section 23 of the Act. 18.7. The Regulations of Assam Rural Health Regulatory Authority, G 2005, regarding admission into Diploma in Medical and Rural Health Care course in Medical Institutes of the State were framed under which minimum standards for Medical Institutes offering Diploma in Medicine and Rural Health Care were prescribed under which the subjects to be taught were as under: H

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A “3. SUBJECTS TO BE TAUGHT: (a) Anatomy (b) Physiology & Biochemistry (c) Community Medicine (d) Pathology & Microbiology B (e) Pharmacology (f) Medicine and Paediatrics (g) Surgery and Orthopaedics (h) Obstetrics and Gynaecology C (i) Eye & ENT (j) Basics of Radiology and Imaging (k) Basics of Forensic and State Medicine (l) Basics of Human Genetics (m) Basics of Dentistry.” D 18.8. Regulation 3 of the 2005 Regulations prescribes the curriculum for the course of Diploma in Medicine and Rural Health Care in the subjects referred to above. Annexure I to the regulations deals with the lists of diseases that can be treated by a Diploma holder in Medicine and Rural Health Care including the procedures that can be E carried out, whereas, Annexure II lists the drugs that can be prescribed by such a diploma holder. The same read as under: “ANNEXURE-1 DISEASES THAT CAN BE TREATED BY A DIPLOMATE OF MEDICINE AND RURAL HEALTH CARE F Acute bacterial infections febrile illnesses, diarrhoea, dysentery, viral infections, malaria, amoebiasis, giardiasis, worm infestations, gastroenteritis, cholera, typhoid fever, vitamin deficiencies, iron deficiency anaemia, malnutrition, upper respiratory infections, actuate bronchitis, bronchial asthma, hypertension, heart failure, in ischemic heart disease, peptic ulcer, acute gastritis, viral hepatitis, G urinary tract infection, common skin infections, scabies, leprosy, first aid in poisoning and trauma, snake bite and animal bite. In children fever, respiratory infections, diarrhoeal diseases, nutritional deficiencies, anaemia, jaundice, convulsion, measles, chicken pox, asthma, scabies and other common skin infections. Care in H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 985 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

pregnancy, child birth and post-natal period, family welfare activities. PROCEDURES THAT CAN BE CARRIED OUT BY A DIPLOMATE IN MEDICINE AND RURAL HEALTH CARE:- Venupuncture, venesection, application of bandages and dressings, nasogastric intubation, catheterization, peritoneal tap, normal delivery. OPERATIVE PROCEDURES PERMITTED TO BE CARRIED OUT BY A DIPLOMATE IN MEDICINE AND RURAL HEALTH CARE Repair of small wounds by stitching, drainage of abscess; burn dressing, application of splints in fracture cases, application of tourniquet in case of severe bleeding wound in a limb injury. Conduction of delivery, episiotomy, stitching of vaginal tear during labour. ANNEXURE-II D DRUGS THAT CAN BE PRESCRIBED BY DIPLOMATE IN MEDINE AND RURAL HEALTH CARE: - Antacids, H2 receptor blockers, proton pump inhibitors, sucralfate. Antihistaminic. Antibiotics-cotrimoxazole, trimethoprim, norfloxacin, quinolones, tetracycline, chloramphenicol, streptomycin gentamycin, penicillin, cephalosporin, erythromycin, nitrofurantoin, metronidazole, tinidazole; Antitubercular-INH, rifampicin, ethambutol, pyrazinamide, streptomycin, Anthelminthics-mebendazole, albendazole, piperazine. Antimalerials-chioroquine, quinine, primaquine, sulfadoxine- pyrimethamide. Antileprosy-dapsone, rifampicin, clofazimine. Topical antifungal. G Antiviral-acyclovir. Antiamoebic-metronidazole, tinidazole, doloxanide furoate, chloroquine. Antiscabies-benzyle-benzoate, gamma benzene hexachloride, Anticholinergic-atropine. H

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A Antiemetics Antipyretics and analgesics Laxatives Oral rehydration solutions. Haematinics and vitamins. B Diuretics and antihypertensives Nitroglycerine Sedatives and antiepilectics-phenobarbitone, diazepam, phenytoin. Bronchodilators-salbutamol, theophyiline, aminophylline, corticosteroids. C Expectorants Uterine stimulants and relaxants, oral contraceptic pills.”

19Copy pinpoint19. A comparative table and analysis of the provisions of the IMC Act, 1956 and the Assam Act is as under: D

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 989 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 991 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

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A comparative study between MBBS, DMRHC is made is under:

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BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 997 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

20Copy pinpoint20. The following aspects of the matter emerge when the provisions of the Assam Act are considered in juxtaposition with the corresponding provisions of the Central Act: i) The Central Act operates in the area of modern scientific medicine, in all its branches, vide Section 2(f). The Assam Act seeks to regulate the practice of allopathic medicine, in rural areas, vide Section 2(g). Essentially, modern scientific medicine, includes allopathy. In other words, modern scientific medicine is the genus and allopathic medicine is a species of modern scientific medicine. This view has been adopted by this Court in A.K. Sabhapathy and Dr. Mukhtiar Chand. Therefore, the practice in modern scientific medicine including allopathic medicine, is governed by the Central Act. Hence, in order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act. ii) Further, Section 17 of the Assam Act provides that persons holding a Diploma in Medicine and Rural Health Care after successful completion of the course instituted under the Act, would be registered as Rural Health Practitioners and would be eligible to practise ‘medicine’ and Health Care in rural areas of Assam. The Assam Act permits Diploma holders to practise ‘medicine’, i.e., allopathic medicine, in rural areas of Assam. We are unable to accept that allopathic medicine, which is governed by the Central Act, may be practised by persons who do not possess the qualifications contemplated under the Schedules to the Central Act. iii) Practise in modern scientific medicine, including allopathic medicine, must be permitted only after having successfully undergone the academic rigor, as prescribed under the Central Act. The Central Act, in Section 33 authorizes the G Council to prescribe inter alia, the courses and period of study, practical training to be undertaken, subjects, examination and standards of proficiency required to be achieved. Therefore, it is problematic to hold that without having successfully gone through meticulous training as H

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A contemplated under the Central Act, a person may practise medicine. iv) On a close reading of Section 15 of the Central Act, in conjunction with Section 24 of the Assam Act, we find that Rural Health Practitioners possessing a Diploma under the B Assam Act have been authorised to perform certain functions identical to those performed by medical practitioners who possess qualifications prescribed under the Central Act. Such functions include treatment of common illnesses, prescription of certain categories of drugs, performance of minor surgeries, issuance of illness and death certificates. Performance of such functions by persons who do not possess the qualifications prescribed under the Central Act, could, in our view, have dangerous consequences. It is to be noted that insofar as Entry 25 of List III is concerned, there are dual restrictions which would operate on the legislative competence of a State Legislature to enact any law under the said Entry: first is, if such a law is to be made by the State Legislature, it is always subject to Entries 63, 64, 65 and 66 of List I or the Union List, in respect of which only the Parliament has the power to enact a law. The second restriction is with regard to the subject of the Entry as a whole. If the Parliament has made any law which is outside the scope of Entries 63, 64, 65 and 66 of List I but within the scope of Entry 25 of List III, in such a case Article 254 and the principles of repugnancy would apply if a State Law is in conflict with such Parliamentary Law.

F In the instant case the law made by the State Legislature, namely, the Assam Act is hit by the first of the aforesaid two restrictions; hence, it is null and void as the Assam Legislature lacked the legislative competence to enact such a Law. In light of the aforesaid discussion, we are of the considered view G that Rural Health Practitioners enlisted under the Assam Act, are underqualified to perform functions similar to those performed by medical practitioners registered in accordance with the Central Act. In order to be recognised as a practitioner in any branch of modern scientific medicine, including allopathic medicine, the qualifications that must mandatorily be obtained are those listed in the Schedules to the Central Act. H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 999 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

Triology of Cases A

21Copy pinpoint21. We next consider the three decisions relied upon by learned senior counsel for the appellants. (A) Dr. Mukhtiar Chand vs. State of Punjab, (1998) 7 SCC 579, (“Dr. Mukhtiar Chand”): B (i) In this case the controversy was with regard to the issuance of declarations by the State of Punjab under clause (iii) of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 (for short, ‘Drugs Rules’) which defines “registered medical practitioner”. The State of Punjab issued a notification dated 29.10.1967 declaring all the vaids/hakims who had been C registered under the East Punjab Ayurvedic and Unani Practitioners Act, 1949, and the PEPSU Ayurvedic and Unani Practitioners Act, 2008, and the Punjab Ayurvedic and Unani Practitioners Act, 1963, as persons practising modern system of medicine for the purposes of the Drugs D Act. (ii) Before this Court, it was contended that the right of practitioners of Indian medicine to practice modern scientific system of medicine (allopathic medicine) is protected under Section 17(3)(b) of the Indian Medicine Central Council E Act, 1970 (‘IMCC Act, 1970’ for short). (iii) While dealing with the IMC Act, 1956, this Court observed that in order to ensure professional standards required to practice allopathic medicine, the IMC Act, 1956 was passed, and the said Act also deals with the reconstitution of the F Medical Council of India and maintenance of an Indian Medical Register. Section 2(f) of the IMC Act, 1956, defines “medicine” to mean “modern scientific medicine” in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery and the expression “recognised medical qualification” is defined in Section 2(h) G of the said Act to mean any of the medical qualifications included in the Schedules to the Act. Further, referring to Section 15 of the IMC Act, 1956, it was observed that qualifications included in the Schedules shall be sufficient qualification for enrolment in any State Medical Register; H

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A but in none of the Schedules, the qualifications of integrated courses figure. Consequently, by virtue of this section, persons holding degrees in integrated courses cannot be registered in any State Medical Register. Hence, by Act 24 of 1964, Section 15 of the IMC Act, 1956, was modified by adding two more sub-sections. Section 15(2)(b) thereof prohibits all persons from practicing modern scientific medicine in all its branches in any State except a medical practitioner enrolled in a State Medical Register. There are two types of registration as far as the State Medical Register is concerned: the first is under Section 25 and the second is under Section 15(1) of the said Act. The third category of registration is in the “Indian Medical register” which the Indian Medical Council is enjoined to maintain under Section 21 of the said Act for which recognised medical qualification is a prerequisite. D (iv) The privileges of persons who are enrolled in the Indian Medical Register are mentioned in Section 27 of the IMC Act, 1956, and include the right to practice as a medical practitioner in any part of India. On the other hand, State Medical Registers are maintained by the State Medical Council of respective States which are not constituted under the IMC Act, 1956, but are constituted under any law for the time being in force, in any State regulating the registration of practitioners of medicine. It is, thus, possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the “recognised medical qualification” which is a prerequisite, only for being enrolled in the Indian Medical Register and not for the purposes of registration in a State Medical Register. A person holding “recognised medical qualification” cannot be denied registration in any State Medical Register, G but a person registered in a State Medical Register cannot be enrolled in the Indian Medical Register unless he possesses “recognised medical qualification”. This follows from a combined reading of Sections 15(1), 21(1) and 23 of the IMC Act, 1956. So, by virtue of such qualifications as prescribed in a State Act and on being registered in a State

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1001 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

Medical Register, a person will be entitled to practice allopathic medicine under Section 15(2)(b) of the IMC Act, 1956. (v) In this context, it would be relevant to mention what are the recognised medical qualifications in the context of the First and Third Schedules to the IMC Act, 1956. While the First B Schedule deals with recognised medical qualifications secured by persons from recognised Universities in India, on the other hand, the Third Schedule deals with medical qualification attained under the Pre-Independence recognised medical enactments such as Bombay Medical Act, 1912, the Bihar and Orissa Medical Act, 1916, the C Punjab Medical Registration Act, 1916, etc. (vi) It was further observed in the said Judgment that Rule 2(ee) of the Drugs Rules was inserted with effect from 14.05.1960, while Section 15 of the IMC Act, 1956, as it then stood, only provided that the medical qualifications in the Schedules shall be sufficient qualification for enrolment in any State Medical Register. Therefore, there was no inconsistency between the Section and the Rule when it was brought into force. However, after sub-section (2) of Section 15 was inserted into the said Act, a medical practitioner enrolled in a “State Medical Register” could practice modern scientific medicine in any State but the rights of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said Drugs Rules, by implication, got obliterated. However, this Court observed that it did not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments. (vii) On a harmonious reading of Section 15 of the IMC Act, 1956 and Section 17 of the IMCC Act, 1970, it was observed that there is no scope for a person enrolled in the State G Register of Indian Medicine or the Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled in a State Medical Register within the meaning of the IMC Act, 1956. Right to practice modern scientific medicine or Indian H

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A system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments. (viii) In the above context, it was held that Rule 2(ee)(iii) as effected from 14.05.1960 was valid and did not suffer from the vice of want of legislative competence and the notifications issued by the State Governments thereunder were not ultra vires the said Rule and were legal. That after sub-section (2) in Section 15 of the IMC Act, 1956, occupied the field vide Central Act 24 of 1964 with effect from 16.06.1964, the benefit of the said Rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practice any system of medicine is conferred by the State law under which practitioners of Indian medicine are registered in the State, which is for the time being in force. That the position with regard to medical practitioners of Indian medicine holding degrees in integrated courses is on the same plane inasmuch as if any State Act recognises their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the IMC Act, 1956 will not apply. Thus, as far as modern medicine or allopathic medicine is concerned, the provisions of Section 15 of the IMC Act, 1956, would again become relevant inasmuch as Section 15(1) of the IMC Act, 1956, would have to be fulfilled before a person can be enrolled in any State Medical Register insofar as modern scientific medicine is concerned. If such a person does not fulfil the requirement of sub-section (1) of Section 15, then he would not have a recognised medical qualification in modern scientific medicine, in which event he cannot be registered in the said Medical Register under the IMC Act, 1956. Even insofar as those medical practitioners holding degrees in integrated courses are concerned, the State has to recognise their qualifications as sufficient for registration in the State Medical Register, otherwise, the prohibition under Section 15(2)(b) would apply, qua practice of modern scientific medicine. In such an event, they would not be empowered H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1003 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

to prescribe allopathic drugs covered by the Indian Drugs A and Cosmetics Act, 1940 (Drugs Act) and they can only prescribe allopathic drugs sold across the counter for common ailments. (B) Subhasis Bakshi vs. W.B. Medical Council, (2003) 9 SCC 269, (“Subhasis Bakshi”): B (i) In this case the appellants therein, who had completed the diploma course of Community Medical Service from duly recognised institutions in the State of West Bengal and were posted in different parts of the State, had assailed the Notification dated 15.10.1980, issued by the Government C of West Bengal by which amendments were made to the statute of the State Medical Faculty by introducing Article 6-F under Part B. Thereafter, a Corrigendum was issued and the diploma course that was earlier known as “Diploma in Medicine for Community Physicians” was rechristened as “Diploma in Community Medical Service”. D

The grievance of the appellants therein was that although they could treat certain common diseases but they had no right to issue certificates of sickness or death, prescriptions etc. as the same was taken away by a Notification dated 21-11-1990. Subsequently, challenging the denial of E “consequential right to treat” such as the right to issue prescription or certificates of sickness or death, the second- round of litigation began. A Writ Petition was filed before the Calcutta High Court which was allowed in favour of the appellants, subject to the condition that they would not F be allowed to pursue private practice and it was made clear that their only right was to prescribe medicines and issue certificates and this part of the order became final. However, the Bengal Medical Council preferred an appeal before the Division Bench of the Calcutta High Court. G Relying on Dr. A.K. Sabhapathy vs. State of Kerala and others, AIR 1992 SC 1310, (“Dr. A.K. Sabhapathy”) whereinit was found that “a person can practise in allopathic system of medicine in a State or in the country only if he possesses a recognised medical qualification” and since the H

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A appellants therein did not possess the required qualification, it was held that their names could not be included in the Medical Register. On this basis, the appellants approached this Court. This Court considered the question as to whether the right to issue prescription or certificates could be treated as a part of right to treat. This Court observed that once the right to treat is recognised, then the right to prescribe medicine or issue necessary certificate flows from it, or else the right to treat cannot be completely protected. It was further observed that appellants therein had the right to prescribe medicine. Consequently, the order of the Division Bench was set aside and the order of the learned Single Judge was restored. A direction was issued to include the names of all the diploma-holders concerned in the State Medical Register D for the limited purpose indicated therein. (C) Dr. A.K.Sabhapathy vs. State of Kerala, AIR 1992 SC 1310,(“Dr. A.K.Sabhapathy”): (i) In this case, the validity of the first proviso to Section 38 of the Travancore Cochin Medical Practitioners’ Act, 1953 (for short, “the State Act”) and the order dated 20.09.1978 and a notification dated 13.04.1981 issued by the Government of Kerala, were assailed. This Court considered the aforesaid State Law in light of the IMC Act, 1956 (“the Central Act”) and observed that the expression ‘modern scientific medicine’ in Section 2(f) of the Central Act refers to the Allopathic system of medicine and that the provisions of the Central Act have been made in relation to medical practitioners practising the said system. This view found support from the fact that after the enactment of the Central G Act, the Parliament had enacted the IMCC Act, 1970 in relation to the system of Indian medicine commonly known as Ayurveda, Siddha and Unani and the Homoeopathy Central Council Act, 1973 in relation to Homoeopathic system of medicine wherein provisions similar to those contained in the Central Act had been made in relation to H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1005 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

the said systems of medicine. This Court was of the view that from the provisions of the State Act, noticed earlier, it was evident that the field of operation of the State Act covered all the systems of medicine, namely, Allopathic, Ayurvedic, Siddha, Unani and Homoeopathic systems of medicine. Moreover, the State Act dealt with recognition of qualifications required for registration of a person as a medical practitioner in these systems, conditions for registration of medical practitioners and maintenance of register of practitioners for each system and the constitution of separate councils for modern medicine, homoeopathic medicine and indigenous medicine. C It was observed that as compared to the State Act, the field of operation of the Central Act is restricted and it is confined in its application to modern scientific medicine, namely, the Allopathic system of medicine only, wherein it also deals with recognition of medical qualifications which D may entitle a person to be registered as a medical practitioner; constitution of the Medical Council of India to advise the Central Government in the matter of recognition or withdrawal of recognition of medical qualifications, to prescribe the minimum standards of medical education required for granting recognised medical qualifications by E Universities or Medical Institutions in India and to appoint inspectors and visitors for inspection of any medical institution, college or hospital. It also provides for maintaining the Indian Medical Register and for enrolment of a person possessing recognised medical qualification in the said register and for removal of a person from the said register. That the Central Act does not deal with the registration of medical practitioners in the States and it proceeds on the basis that the said registration and the maintenance of State Medical Register is to be governed by the law made by the State. This Court was of the view that, it cannot, therefore, be said that the Central Act lays down an exhaustive code in respect of the subject matter dealt with by the State Act. It can, however, be said that the Central Act and the State Act, to a limited extent occupy the same field, viz., recognition of medical qualifications which are required for H

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A a person to be registered as a medical practitioner in the allopathic system of medicine. Both the enactments make provision for recognition of such qualifications granted by the universities or medical institutions. In this context, sub-section (1) of Section 15 of the B Central Act, i.e. IMC Act, 1956 as well as sub-section (1) of Section 21 of the said Act were referred to and it was observed that the aforesaid provisions contemplated that a person can practise in Allopathic system of medicine in a State or in the country only if he possesses a recognised medical qualification. Permitting a person who does not C possess the recognised medical qualification in the Allopathic system of medicine would be in direct conflict with the provisions of the Central Act. That the first proviso to Section 38 of the State Act in so far as it empowers the State Government to permit a person to practise Allopathic D system of medicine even though he does not possess the recognised medical qualifications for that system of medicine, is inconsistent with the provisions of Sections 15 and 21 read with Sections 11 and 14 of the IMC Act, 1956 i.e., the Central Act. That the said proviso suffered from the vice of repugnancy in so far as it covered persons who wanted to practice the Allopathic system of medicine and that the same was void to the extent of such repugnancy. That practitioners in the Allopathic system of medicine must, therefore, be excluded from the scope of the first proviso and it must be confined in its application to systems of medicines other than the Allopathic system of medicine. Consequently, this Court allowed the appeal in part. On a close consideration of the case law discussed above, it is evident that the following broad areas, would be covered within the legislative field of “Coordination and determination of standards” under Entry 66 of List I: G i) Prescription of medium of instruction, videGujarat University, Ahmedabad vs. Shri Krishna Ranganath Mudhoklar; ii) Recognition/de-recognition of an Institution imparting medical education by laying down standards for medical H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1007 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

education vide State of Tamil Nadu vs. Adhiyaman A Educational and Research Institute; Modern Dental College and Research Centre vs. State of Madhya Pradesh; Chintpurni Medical College and Hospital vs. State of Punjab. iii) Calibre of teaching staff, syllabus to be taught, student- B teacher ratio, ratio between the students and the hospital beds available to each student, laboratory facilities, standard of examination, vide Preeti Srivastava vs. State of Madhya Pradesh. The Assam Act, which is enacted by the State Legislature on the strength of Entry 25 of List III, not only seeks to introduce a new course in the field of medical education, but also seeks to regulate the profession of the candidates successfully completing the said course. The Assam Act vests with the Regulatory Authority constituted thereunder, the power to prescribe the minimum standards of the course, duration of the course in allopathic medicine the curriculum, the examination etc. Further, it authorises the State Government to grant permission for the opening of amedical institute.Prescription of minimum standards for medical education, authority to recognise or de-recognise an institution etc., are areas over which exclusive legislative competence lies with the Parliament, under Entry 66 of List I.The State Legislatures, on the other hand, under Entry 25 of List III, possess legislative competence to legislate with respect to all other aspects of education, except the determination of minimum standards and co-ordination.With a view to provide a benchmark quality of medical education, it is essential that uniform standards be laid down by the Parliament, which are to be adhered to by institutions and medical colleges across the country. To this end, Entry F 66 of List I has been formulated with the objective of maintaining uniform standards of education in fields of research, higher education and technical education. Hence, State Legislatures lack legislative competence in the areas of prescription of minimum standards for medical education, authority to recognise or de-recognise an institution, etc. The Assam Act which seeks to regulate such aspects of medical education is therefore G liable to be set aside on the ground that the State Legislature lacks competence to legislate with regard to the aspects enumerated hereinabove.

22Copy pinpoint22. Another aspect of the matter that remains to be considered is with regard to the vires of the Assam Community Professional H

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A (Registration and Competency) Act, 2015 (hereinafter referred to as ‘Assam Act of 2015’ for the sake of convenience), which was enacted by the State of Assam with a view to remove the basis of the impugned judgment and in an attempt to restore the position of the diploma holders in medicine and to give them continuity in service. The relevant provision of the said Act read as under: B “An Act to provide for registration norms and competency of the Community Health, Professionals, after passing B.Sc. (Community Health) Course and to give same status to the students who have completed or have been undergoing the Diploma in Medicine and Rural Health Care (DMRHC) course in Medical Institute, Jorhat C with that of B.Sc (Community Health) course, to enable them to serve as Paramedical personnel in the State of Assam. Whereas it is expedient to provide for registration norms and competency of the Community Health Professionals, after passing B.Sc (Community Health) course and to give same status to the students who have completed or have been undergoing the Diploma in Medicine and Rural Health Care (DMRHC) course in Medical Institute, Jorhat with that of B.Sc (Community Health) course, to enable them to serve as Paramedical personnel in the State of Assam and the matters connected therewith or incidental thereto; xxx

2. In this Act, unless the context otherwise requires,- (a) “Act” means the Assam Community Health Professionals’ F (Registration and Competency) Act, 2015; (b) “Certificate” means a Certificate of Registration issued by the Director of Medical Education, Research and Training, Assam under section 3 of this Act; (c) “Community Health Professionals” means the persons who G have been registered as such by the Director and issued a Certificate of Registration in accordance with the provisions of section 3 of this Act; (d) “Course” means the prescribed Paramedical Course of B.Sc (Community Health) or in short B.Sc (CH) as approved by the H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1009 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

Union Cabinet, conveyed vide Govt. of India’s letter No. DO No. A V 11025/40/2009/MEP-1 Dated 31/12/2013; xxx

3. (1) Every student who successfully completes the Course from any institution permitted by the Government of Assam to run the Course, shall be registered by the Director at Directorate of B Medical Education, Assam, Guwahati and shall be issued with a Certificate of Registration as Community Health Professional. (2) The students who have already completed or have been undergoing the Diploma in Medicine and Rural Health Care (DMRHC) course in the Medical Institute, Jorhat, on the date of C commencement of this Act, shall be deemed to have completed or have been undergoing as the case may be, the Paramedical Course of B.Sc (CH) for the purposes of this Act and shall acquire the same status to that of B.Sc (Community Health) graduates and they shall also be registered by the Director and issued with D Certificate of Registration as Community Health Professionals: Provided that the Certificate of Registration issued by the Director under this sub-section to the students who have already completed Diploma in Medicine and Rural Health Care (DMRHC) course from the Medical Institute, Jorhat, shall be deemed to have E been issued by the Director with effect from the date of issue of their respective Diplomas from the said Institute: Provided further that the students who have been undergoing the Diploma in Medicine and Rural Health Care (DMRHC) course in the Medical Institute, Jorhat on the commencement of this Act, F shall be deemed to have been undergoing the Course as defined under this Act and they shall be issued Certificate of Registration under this Act by the Director on completion of their Course.” It would be useful to refer to a decision of this Court in the case of Indian Aluminium Company Co. vs. State of Kerala, AIR 1996 G SC 1431, wherein the principles regarding the abrogation of a judgment of a court of law by a subsequent legislation could be culled out in the following manner: — “56. From a resume of the above decisions the following salient principles would emerge: H

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A (1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transaction and require the court to give effect to them; (2) The Constitution has delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary; (3) In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend the law. (4) The Court, therefore, need to carefully scan the law to find out: (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution. (5) The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the Legislature. Therefore, they are not the encroachment on judicial power. (6) In exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. (7) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1011 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the Legislature must have competence to do the same.” In the aforesaid case, Section 11 of the Kerala Electricity Surcharge (Levy and Collection) Act, 1989 arose for consideration and it was held that it was a valid piece of legislation and not an incursion on judicial power as the effect of Section 11 was to validate illegal collection of tax under an invalid law. In Hindustan Gum and Chemicals Ltd. vs. State of Haryana, (1985) 4 SCC 124, this Court held that it is permissible for a competent legislature to overcome the effect of a decision of a court, setting aside the imposition of a tax by passing a suitable Legislation, amending the relevant provisions of the statute concerned with retrospective effect, thus taking away the basis on which the decision of the court has been rendered and by inactive and appropriate provision validating the levy and collection of tax made before the decision in question was rendered. In that decision, reliance was placed on Shri Prithvi Cotton Mills Ltd. D vs. Broach Borough Municipality, AIR 1970 SC 192, a Constitution Bench decision of this Court, which has laid down the requirements which a validating law should satisfy in order to validate the levy and collection of a tax which has been declared earlier by a court as illegal, the relevant portion of the said judgments read as under:— E “When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared H

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A illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralize the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the Legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.” Further, in the following decisions, this Court has held that the amendments made to the respective Acts subsequent to the decision of the court were valid and therefore, were upheld:— F a) In State of Orissa vs. Oriental Paper Mills Ltd., AIR 1961 SC 1438, the insertion of Section 14A by way of an amendment to Orissa Sales Tax Act subsequent to the decision of this Court in State of Bombay vs. United Motors India Ltd., AIR 1953 SC 252, was upheld. G b) In M/s. Misrilal Jain vs. State of Orissa, AIR 1977 SC 1686, this Court declared Orissa Taxation (on Goods Carried by Roads or Inland Waterways] Act, 1962 as invalid, since it did not cover the defect from which the Orissa Taxation (on Goods Carried by Roads or Inland H Waterways] Act 7 of 1959 had suffered. It was further

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1013 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

held that the State was not entitled to recover any tax. The A subsequent Act 8 of 1968 was upheld as the vice from which the earlier enactment suffered was cured by due compliance with the legal or constitutional requirements. c) In M/s. Tirath Ram Rajindra Nath, Lucknow vs. State of U.P., AIR 1973 SC 405, this Court held that there is a B distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the competence of the legislature but the latter is within its permissible limits. In that case, the U.P. Sales Tax Act (Amendment and Validation) Act, 1970 was upheld by this C Court. d) In Govt. of A.P. vs. Hindustan Machine Tools Ltd., AIR 1975 SC 2037, I.N. Saksena vs. State of M.P., AIR 1976 SC 2250, Central Coal Fields Ltd., vs. Bhubaneswar Singh, AIR 1984 SC 1733 and several other decisions D this Court has upheld the amendments made to the respective Acts subsequent to the decision of a court of law thereby removing the basis of the judgment. (e) In State of Himachal Pradesh vs. Narain Singh, (2009) 13 SCC 165, this Court has held that Himachal Pradesh E Land Revenue (Amendment and Valuation) Act, 1996 was sound as it removed the defect of the previous law. Hence, the amendment was not invalid just because, it nullified some provisions of the earlier Act. It was also held that the amendment was necessitated in the interest of land revenue, land settlement and for the purpose of updating the same. The Legislature cannot directly overrule a judicial decision. But when a competent Legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such legislative device which removes the vice in previous legislation which has been declared unconstitutional is not considered an encroachment on judicial power but an instance of abrogation. The power of the sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. It H

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A would be permissible for the legislature to remove a defect in earlier legislation pointed out by a constitutional court in exercise of its powers by way of judicial review. This defect can be removed both retrospectively and prospectively by a legislative process and the previous actions can also be validated. But where there is a mere validation without the defect being legislatively removed, the legislative action will amount to overruling B the judgment by a legislative fiat which is invalid. In light of the aforesaid discussion, the petitions challenging the vires of the Assam Community Professional (Registration and Competency) Act, 2015 i.e., Transferred Case (C) Nos. 24 and 25 of 2018 are liable to be dismissed, and are accordingly dismissed. The said C Act has been enacted with a view to restore the position of the diploma holders in medicine and to give them continuity in service. The said Act has been enacted by a valid legislative exercise, and does not transgress any other constitutional limitation and in accordance with Entry 25 of List III of the Seventh Schedule and is not in conflict with the IMC Act, D 1956 and the rules and regulations made thereunder as per Entry 66 of List I of the Seventh Schedule.

23Copy pinpoint23. Before parting with this case, it is necessary to advert to the reasoning of the Division Bench of the High Court which has held in paragraph 15 of its judgment dated 30.10.2014 that the Central Legislation, E namely, the IMC Act, 1956, fully covers the field and therefore, the impugned legislation passed by the Assam State Legislature concerning the Diploma Course in Allopathic Medicine was null and void. In this context, Article 254 of the Constitution has been adverted to and it has been observed that, on account of repugnancy and there being no Presidential assent as required under Article 254, the Assam Act is null and void.

24Copy pinpoint24. We do not think the doctrine of repugnancy governing Article 254 of the Constitution of India, would apply in the instant case. Although, Entry 25 of List III of the Seventh Schedule of the Constitution of India is in the Concurrent List which gives powers to both the Union as well as the State Legislatures to pass laws on the subject of ‘Education’, it is significant to note that any such law to be made by the State Legislature is subject to, inter alia, Entry 66 of List I or the Union List of the Seventh Schedule. Hence, when there is a direct conflict between a State Law and the Union Law in the matter of coordination and determination of standards in higher education (Entry 66 of List I) such H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1015 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

as in medical education, concerning allopathic medicine or modern A medicine, as is in the instant case, where the State Law is in direct conflict with the Union law, the State Law cannot have any validity as the State Legislature does not possess legislative competence. In other words, the Assam Act and Rules and Regulations made under the said Act, being in conflict with the Indian Medical Council Act, 1956 (IMC B Act, 1956) and the Rules and Regulations made thereunder, the doctrine of repugnancy as such would not apply within the meaning of Article 254 of the Constitution. The finding with regard to the constitutionality of the Assam Act of 2015 is limited to holding it non-repugnant with the Indian Medical Council Act, 1956. However, this Court is not rendering any finding with regard to any potential conflict of the provisions of the Assam Act of 2015 with the National Medical Commission Act, 2019. We also wish to refer to the Directive Principle of State Policy. The framers of the Constitution, in Article 47 have directed the Union and State Governments to regard the ‘improvement of public health’, as its primary duty. It follows from this directive that the State shall make all possible efforts to ensure equitable access to healthcare services. These efforts must be made to progressively realize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, as acknowledged in international conventions and agreements. While the State has every right to devise policies for public health and medical education, with due regard to peculiar social and financial considerations, these policies ought not to cause unfair disadvantage to any class of citizens. The citizens residing in rural areas have an equal right to access healthcare services, by duly qualified staff. Policies for enhancing access to rural healthcare must not shortchange the citizens residing in rural areas or subject them to direct or indirect forms of unfair discrimination on the basis of their place of birth or residence. Any variation between the standards of qualification required for medical practitioners who render services in rural areas qua the medical practitioners rendering services in urban or metropolitan areas must prescribe to constitutional values of substantive equality and non- discrimination. We may hasten to add that deciding the particular qualifications for medical practitioners practising in disparate areas and in disparate fields, providing different levels of primary, secondary or tertiary medical services, is within the mandate of expert and statutory authorities entrusted with the said mandate by the Parliament. H

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A The above ought to be considered in the spirit of constitutional goals and statesmanship subserving, as it does, the common good of the citizenry of our Country. Conclusion:

25Copy pinpoint25. In the result, we arrive at the following conclusions: B (i) Entry 25 of List III of the Seventh Schedule of the Constitution of India deals with the subject education which is in the Concurrent List under which both the Parliament or the Union Legislature as well as the State Legislatures have legislative competence to legislate. However, Entry C 25 of List III is subject to, inter alia, Entry 66 of List I which is the Union List. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Thus, when any law is made under Entry 25 of D List III by a State Legislature, the same is always subject to Entry 66 of List I. In other words, if any law made by the Parliament comes within the scope of Entry 66 of List I, then the State Legislation would have to yield to the Parliamentary law.

E Thus, where one Entry is made “subject to” another Entry, it would imply that, out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specifically dealt with by the appropriate legislature. (ii) In the instant case, it is held that the IMC Act, 1956 is a F legislation made by the Parliament for the purpose of coordination and determination of standards in medical education throughout the Country. The said law, along with the Rules and Regulations made thereunder are for the purpose of determination of standards of medical education G throughout India. Thus, determination of standards in medical education in India is as per the IMC Act, 1956 which is a Central Law. This is in respect of modern medicine or allopathic medicine within the scope of Entry 66 of List I and not under Entry 25 of List III of the Seventh Schedule. Therefore, a State Legislature which passes a H

BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL 1017 ASSOCIATION AND ORS. [B. V. NAGARATHNA, J.]

law in respect of allopathic medicine or modern medicine A would be subject to the provisions of the IMC Act, 1956 and the Rules and Regulations made thereunder. This would imply that no State Legislature has the legislative competence to pass any law which would be contradictory to or would be in direct conflict with the IMC Act, 1956 B and the Rules and Regulations made thereunder. In other words, the standard in medical education insofar as modern medicine or allopathy is concerned, having been set by the IMC Act, 1956 and the Rules and Regulations made thereunder or by any subsequent Act in that regard, such as the Medical Council of India Act, 2019, the State C Legislature has no legislative competence to enact a law which is in conflict with the law setting the standards of medical education in the context of modern medicine or allopathic medicine, which has been determined by Parliamentary Legislation as well as the Rules. In other words, a State Legislature has no legislative competence to enact a law in respect of modern medicine or allopathic medicine contrary to the said standards that have been determined by the Central Law. In view of the above conclusion, we hold that decision of the Gauhati High Court holding that the Assam Act to be null and void, is just and proper. However, the Gauhati High Court has held that the State had no legislative competence to enact the Assam Act in view of Article 254 of the Constitution on the premise that the IMC Act and the Rules and Regulations made thereunder were holding the field and hence, on the basis of the doctrine of occupied field, the Assam Act was struck down as being repugnant to the Central Law. In view of the aforesaid conclusion, we are of the view that the said reasoning is incorrect. It is reiterated that the IMC Act and the Rules and Regulations made thereunder, which are all G Central legislations, have been enacted having regard to Entry 66 of List I and would prevail over any State Law made by virtue of Entry 25 of List III of the Constitution. (iii) Hence, in view of the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder, the Assam H