AYUSH Drs. can practice modern medicine including ObGyn, Surgery, ENT, Anesthesia, Opthal. : Adv. ROHiT ERANDE.©

 "(At least in Tamilnadu) AYUSH Drs. can practice modern medicine including ObGyn, Surgery, ENT, Anesthesia, Opthal. Thanks to the State Government Circular, which was relied upon by the Hon. High Court".

Adv. ROHiT ERANDE.©

Case Details :

Crl.O.P.No.23128 of 2018 and Crl.M.P.No.12895 of 2018

Dr.R.Senthilkumar V/s. The State & anr.

CORAM :

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

PRONOUNCED ON : 22.07.2022

The Judgment Link :

https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/670268

Facts of the case in short :

1. This Criminal Petition is filed under Section 482 of Criminal Procedure Code to quash the FIR  filed against the Petitioner before Ld. J.M.F.C. Salem as in the raid conducted, the Petitioner inspite being HMS Homeopath was found to be practicing Allopathy Medicine and the Allopathy medicines were seized . 

2. Feeling aggrieved by the FIR and further compliant, the Petitioner approached the High Court on the ground that he had completed BHMS (Bachelor of Homoeopathic Medicine and Surgery), from the Tamil Nadu Dr.M.G.R.Medical University and registered himself in the Tamil Nadu Homoeopathy Medical Council and thus, the petitioner is a registered medical practitioner in Indian System of Medicine.

3. The Petitioner relied upon the Circular dated 15.10.2010 issued by the Health and Family Welfare Department, Government of Tamil Nadu, wherein it has been already held that “the institutionally qualified Practitioners of Ayurveda, Sidddha and Unani, who are registered in the Tamil Nadu Board of Indian Medicine, Chennai are eligible to practice in the respective system with Allopathy based on the training and teaching they had in the Course.  But they cannot exclusively do the practice in Allopathy Medicine and there were decisions of earlier benches of this High court on similar point ”wherein another circular was referred to interalia mentioning  therein that  to a limited extent, the petitioner, who has completed BHMS (Bachelor of Homoeopathic Medicine and Surgery), can use the Allopathy medicines

4. The Circular was issued on the background that the Police Department in the course of their action against the Quacks has inspected the clinics run by the registered medical practitioners in Siddha, Ayurveda, Homoeopathy and Unani and arrested some of them as if they had practiced Allopathy System of Medicine. The Government have informed that as per section 17(3) B of the Indian Medicine Central Council Act, 1970 the institutionally qualified practitioners of Siddha, Ayurveda and Unani Tibb Homeopathy are eligible to practice respective systems with modern scientific medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology etc based on the training and teaching.

5. Hence the Police authorities were instructed  not to intervene with the practice of registered practitioners of Siddha, Ayurveda, Unani, Homeopathy and Naturopathy who are registered in the Tamil Nadu Siddha  Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council. If any cases of the Doctors who are already under arrest may be reviewed with reference to the above clarification. The Letter from the Health & Family Welfare Department, to that effect was also produced on record. 

Held :

1. It was held that in the light of the said circular, it is imperative that no proceedings can be initiated against any of those registered practitioners in Siddha, Ayurveda, Homeopathy and Unani, who are eligible to practice irrespective of the respective system also with Modern Scientific Medicine including Surgery and Gynecology Obstetrics, Anesthesiology, ENT, Opthalmology etc,. 

2. Such registration of the medical practitioners with Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council as well as  such of those qualified doctors who were recognised as such by the Madurai Kamaraj University and Tamil Nadu Dr. MGR Medical University who have been  qualified respectively in the system of bachelor of Siddha Medicine and Surgery.

3. It was further observed that in the said circular, a specific request has been made by the Commissioner of Police to his subordinates not to intervene with the practice of registered practitioners of Siddha, Ayurveda, Unani, Homeopathy and Naturopathy who are  registered in the Tamil Nadu Siddha Medical Council, Tamil Nadu Board of Indian Medicine and Tamil Nadu Homeopathy Medical Council. Hence, it is clear that without following the said direction, the present case has been registered by the respondent police.

4. The earlier judgment of this Court was again relied upon in the judgment reported in CDJ 2010 MHC 6560, in paragraph 10, it was held , in short, that the rights of practitioners of Indian System of Medicine are protected under Section 17(3)(b) of the Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970)  and as per Section 2(1)(3) of the said Act, “Indian Medicine: means the system of Indian Medicine commonly known as Ashtang Ayurveda,     Siddha or Unani Tibb whether supplemented or not by such modern advances, as   the Central Council of Indian Medicine may declare by notification from time to time;

5. Further, the Central Council of Indian Medicine in its Notification F.No.28~5/2004~AY (MM), dated the 19th May 2004, has clarified that the word “Modern Advances“ in clause (e) of Section 2(1) of the said Act as advances made in the various branches of modern scientific medicine in all its branches of internal medicine, surgery, gynaecology and obstetrics, anaesthesiology, diagnostic procedures and other technological innovation made from time to time and declare that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented with such modern advances; 

6. It was further found that the Government of Tamil Nadu declared that every registered medical practitioner holding the requisite qualification specified in the Act and registered under the Act, as a person practicing the modern scientific system of medicine for the purposes of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940).

7. On these backgrounds, the Hon. Judge came to the conclusion that even though the Petitioner is a BHMS, he was authorized by the relevant provisions as above, to practice the modern medicines too and hence the criminal Actions were quashed and set aside. 

This Judgment has once again stirred up the hornet’s nest, I may say. The conflict between Modern Medicine practitioners  and AYUSH practitioners is age old. Moreover, it has been the prerogative of various States to allow the AYUSH practitioners to practice Modern Medicine i.e. Allopathy. 

But earlier, Various High Courts have taken contrary view, to this judgment. You may see the following blogs.

1) https://advrohiterande.blogspot.com/2017/12/ayush-drs-cannot-practice-allopathy-hon.html. (Delhi high Court)

2. https://advrohiterande.blogspot.com/2017/12/hon-bombay-high-court-stayed-govt.html (Bombay High Court)

3. https://advrohiterande.blogspot.com/2017/12/ayush-drs-cannot-practice-allopathy-hon.html. (Delhi high Court)

4. https://advrohiterande.blogspot.com/2017/08/only-allopaths-can-prescribe-modern.html (Allhabad High Court)

Ultimately the end user of beneficiary is the patient and his/her interest should be paramount. No pathy can guarantee 100% results. In any case, may it be Modern Medicine or AYUSH, proper minimum training and valid registration is mandatory. It has been said that (which may or may not be correct)  in rural areas where the Allopathy practitioners are not found, AYUSH practitioners give their services and use allopathic medicines too. But the problem would arise when something goes wrong. 

Thus, I feel, if possible, there should be one pathy with all the god virtues of all the different pathies and that will be the greatest boon to the mankind. 

Thanks and Regards,

Adv. ROHiT ERANDE.©

Pune.