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Non-allopaths cannot practise allopathy

This is to bring to your kind notice the palpably wrong information given in the article “Non allopaths can practice allopathy if they hold the declaration stating so” by Dr GN Shenoy in issue dated Aug 16-31, 2003, by misinterpreting the supreme court’s judgement on the issue.

The conclusion “All non-allopathic practitioners who are covered by any Government Notification which classifies their practice as practice under the modern scientific system of medicine can deal with allopathic drugs” is erroneous and misinterpreted.

Apex Court’s Landmark judgement on the issue (Mukhtiar Chand Vs Punjab State and others in Civil appeal No 89 of 1987 in which Sarwan singh Dardi was also an appellant) states that those who are registered in the State Medical Register are entitled to practice Allopathy. Careful reading of the said judgement removes the mist when it states that “right to practice modern system of medicine or Indian system of medicine cannot be based on provisions of the Drugs Rules and the declarations made thereunder”.

Ironically the much debated notification was issued under the Drugs and Cosmetic Act. The author’s contention, that “All non-allopathic practitioners who are covered by any Govt notification which classifies their practice as Practice under the Modern scientific system of medicine can deal with allopathic Drugs” is thus nullified by the above observation.

It is true that the Supreme Court has upheld the right of the State Govts to issue a notification under the Drug Rules 1945, but the beneficiaries of that notification can’t claim the right to practice allopathy by virtue of that notification unless the state also recognises their qualification to be a requisite qualification for entering their name into state medical register.

The notification No 9874 IHBII-67/34526 dated 20 Oct 1967 issued by the Punjab Govt (quoted by you) exercising its powers under clause iii of Rule 2(ee) of the drug rules 1945, under which the petitioner Dr Sarwan Singh Dardi wanted to claim benefits merely states: “All the vaids /Hakims who have been registered under the East Punjab Ayurvedic and Unani Practitioners Act 1949 and the Pepsu Ayurvedic and Unani Practitioners Act 2008 BK and Punjab Ayurvedic And Unani practitioners Act 1963 as persons practicing Modern system of medicine for the purposes of Drugs Act.”

It may be recalled that the purpose of Drugs and Cosmetic Act is to regularise manufacture, stock and distribution of drugs and not practice of medicine. Right to practice a particular system of medicine is conferred by the act under which the practitioner is registered. To practice allopathy, registration in State Medical Register is a must. The quoted notification nowhere says that these practitioners are also entitled for enrollment on Punjab Medical Register.So they can’t practice allopathy.

Kindly refer to the following extracts from the said judgement ( also quoted by you): A harmonious reading of section 15 of 1956 act and Section 17 of 1970 Act leads to conclusion that there is no scope for a person enrolled on a State register of Indian Medicine or Central register of Indian medicine to practice modern system of medicine in any of its branches unless that person is also enrolled on a state medical register within the meaning of 1956 Act. The right to practice modern system of medicine or Indian system of medicine cannot be based on the provisions of the Drug Rules and declaration made thereunder by the State Govts. What can be more clearly stated than this?

The Apex court has further clarified as under; “The upshot of the above discussion is that Rule 2(ee)(iii) as effected from May 14,1960 is valid and does not suffer from the vice of want of ,the legislative competence and the notifications issued by the state Govts. thereunder are not ultra vires of the said rules and are legal. However, after sub section (2) in Section 15 of the 1956 Act occupied the field vide Central act 24 of 1964 with effect from June 16, 1964 the benefit of the said rule 2(ee)(iii) and the notifications issued there under would be available only in those states where the privilege of such right to practice 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.

The position with regard to medical practitioners of Indian medicine holding the degrees in integrated courses is on the same plain inasmuch as if any state act recognises their qualification as sufficient for registration in the state medical register, the prohibition contained in the Section 15(2) (b) of the 1956 act will not apply”. So the main eligibility to practice allopathy is ’registration in the State Medical Register’.

Mere declarations or notifications under rule 2(ee)(iii) of Drug Rules 1945 cannot permit allopathic practice to the practitioners of Indian Medicine registered and enrolled on the State Register of Indian Medicine unless the state act under which they are registered recognises their qualification to be requisite for enrollment on the State medical register.

At present the relevant laws don’t recognise the degrees in Indian Medicine to be eligible for enrollment on a state medical register. So it is wrong to profess that non -allopaths can practice allopathy merely on the basis of a notification.

Another legal point which the author has missed is: The legal, medical and other professions are covered by the entry 26 of List III-concurrent list contained in schedule 7 of constitution of India . In view of provisions of article 254 of the constitution; the provisions of state law on the subject on the concurrent list on which the parliament too had enacted a legislation has to conform to the provisions of law enacted by the parliament. Hence any state law on allopathy practice can not overrule the central law on the subject.

The history, purpose and intention of state notification declaring Ayurveds as Registered medical practitioners for the purpose of Drugs and Cosmetic Act is totally different. It may be recalled that before 1964, the ayurvedic medicines were prepared by the vaids themselves and provisions of the Drugs and Cosmetic Act were not applicable on them but when the manufacturing of ayurvedic drugs began, a need was felt to regulate their production and distribution.

Hence the Drugs and Cosmetic Act was amended in 1964 and ayurvedic medicines were brought under the definition of ‘a drug’. So registered medical practitioners were to be identified to prescribe these drugs. Thus it became imperative for the states to issue notifications to declare such practitioners as registered medical practitioner for the purpose of drugs and cosmetic act. This notification was misused by the non allopaths for practicing allopathy. But now the mist has been cleared by many court judgements.

So your inferences published in EHM are just opposite to what had been laid down by various laws. It will spread wrong information and propagate quackery.

Dr Kuldip Singh,
President- IMA, Punjab and Dr Rajinder Sharma
Secretary-Legal Cell-IMA, Punjab
aniraj4@yahoo.com

Dr Gopinath Shenoy replies:

No professional can practise his vocation unless and until he is registered with the Appropriate Authority established under the Act and the Rules and Regulation formulated under the Act, which controls such a practice. It goes without saying and it is common knowledge that practice in any particular school of medicine requires a registration with the Authority controlling the said school.

To practice allopathic medicine, registration with the appropriate medical Council is a pre-requisite and to practice Modern Scientific Medicine, registration with the Allopathic Medical Council is a must as it is this Council that controls allopathic practice.

Hence, it goes without saying that any ayurvedacharya who desires to practice Modern Scientific Medicine also, as a condition precedent, needs to be registered with the Approrpriate Authority and that is the Allopathic State medical Council.

This registration is made possible by the State Government and it is the State Government that decides which qualifications, from which school of medicine, to include in its schedule and it is also the State government which decides which qualification, from which school of medicine it desire to delete from the said schedule.

In short it is the State Government that opens the doors to the non-allopaths to practice modern scientific medicine. My article highlights the fact that it is the State Government that decides who can and who cannot practice a particular school of medicine. My article is based on the fact that above is common knowledge. If any person does not have this common knowledge it cannot be helped.

Ethics - an integral part of drug regulation

With regard to your otherwise excellent editorial note on ‘Unethical drug promotion: time to stem the rot’, September, 2003, it is difficult to agree when you say that, ‘‘Drug regulators may be right in saying that ethics and drug regulation are different issues.’’

In fact, ethics is an integral part of drug regulation as stipulated in various sections of the Drugs and Cosmetics Act and Rules. Just a few examples to illustrate the point:

All drug labels need to be approved by the Drugs Controller General, India (DCGI) as per Schedule Y, Appendix 1 (10.2). Yet, Nimulid suspension bottle carries the caption ‘Fast, safe and tasty.’ It is illegal to use the word ‘safe’ in any drug anywhere in the world. Besides, the product is misbranded, under Section 17 (c), for making false claims. Yet, no action has been taken against the manufacturer. The offence is criminal in nature and calls for imprisonment for a minimum of one year as per Section 27 (d) of Drugs and Cosmetics Act.

Combinations of quinolones with imidazoles are freely being promoted for diarrhoea. These combinations are not approved by the DCGI as per Section 122-E (c). Hence, such products are unlawful. Their labels, cartons and monographs also need mandatory approval from DCGI under Schedule Y, appendix I (10.1 and 10.2). No action has been taken by the DCGI against offending manufacturers even though all these are criminal actions.

Letrozole is approved for use in breast cancer not only in India but the world over. Yet, Sun Pharmaceuticals Ltd. is openly promoting its brand Letroz for induction of ovulation. It has printed claims in violation of D&C Rules. No action has been initiated by the DCGI to prosecute the manufacturers.

Dr Chandra M Gulhati
Editor, Monthly Index of Medical Specialities (MIMS), India, New Delhi
mims@ndb.vsnl.net.in