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

- **Citation:** 2023 INSC 81
- **Court:** Supreme Court of India
- **Decided:** 2023-01-24
- **Case number:** Civil Appeal Nos. 502-503 of 2023
- **Bench:** B. R. Gavai, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baharul-islam-ors-v-the-indian-medical-association-and-ors-37901
- **Pages:** 102

## Headnote

Assam Rural Health Regulatory Authority Act, 2004 -
Constitutionality of - Legislative Competency of the State - Assam
State legislature enacted the Assam Rural Health Regulatory
Authority Act, 2004 - Said Act provides for the establishment of a
regulatory authority to register the Diploma holders and to regulate
their practice - State Act in conflict with Central Act (Indian Medical
Council Act, 1956) - Writ Petition challenging the Constitutionality
of the Act - High Court allowed the Writ petition by holding that the
Act, 2004 was unconstitutional as the State Act was in conflict with
the Central Act - High Court observed that the power and scope of
the State to legislate under Entry 25 of List III of the Seventh
Schedule is very limited and is only in respect of a field unoccupied
by a Central Act - Held: 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 determination of minimum standards and coordination - In view of the Indian Medical Council Act, 1956 and
the Rules and Regulations made thereunder, the Assam Rural Health
Regulatory Authority Act, 2004, declared to be null and void as
State Legislature not having the legislative competence to enact the
said Law - The State 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 - Constitution of India - Seventh Schedule -
List I, Entry 66 and List III, Entry 25.
[2023] 9 S.C.R. 917 : 2023 INSC 81
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Assam Community Professionals (Registration and
Competency) Act, 2015 - Constitutionality of - Power of Legislature
- To overrule a Judicial Decision - High Court vide the impugned
order allowed Writ petition holding that the Assam Rural Health
Regulatory Authority Act, 2004 enacted by the State legislature was
unconstitutional as the Act was in conflict with the Central Act
(Indian Medical Council Act, 1956) and State Legislature not having
the legislative competence to enact the said Law - Meanwhile, the
State passed the Assam Community Professionals (Registration and
Competency) Act, 2015 - Held: 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 - The power of the sovereign legislature to
legislate within its field, both prospectively and retrospectively
cannot be questioned - It 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 - The Assam
Community Professionals (Registration and Competency) Act, 2015,
enacted pursuant to the judgment of the High Court, is a valid piece
of Legislation as it removed the basis of the impugned judgment
passed by the High Court - The 2015 Act is also not in conflict with
the IMC, Act, 1956 - This is because the Central Act namely, IMC,
Act, 1956 does not deal with Community Health Professionals who
would practise as allopathic practitioners in the manner as they
were permitted to practise under the Assam Rural Health Regulatory
Authority Act, 2004, in rural areas of the State of Assam - Hence,
by a separate legislation the Community Health Professionals have
been permitted to practise as such professionals - The said
legislation of 2015 is not in conflict wit

## Text

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BAHARUL ISLAM & ORS.
v.
THE INDIAN MEDICAL ASSOCIATION AND ORS.
(Civil Appeal Nos. 502-503 of 2023)
JANUARY 24, 2023
[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
Assam Rural Health Regulatory Authority Act, 2004 -
Constitutionality of - Legislative Competency of the State - Assam
State legislature enacted the Assam Rural Health Regulatory
Authority Act, 2004 - Said Act provides for the establishment of a
regulatory authority to register the Diploma holders and to regulate
their practice - State Act in conflict with Central Act (Indian Medical
Council Act, 1956) - Writ Petition challenging the Constitutionality
of the Act - High Court allowed the Writ petition by holding that the
Act, 2004 was unconstitutional as the State Act was in conflict with
the Central Act - High Court observed that the power and scope of
the State to legislate under Entry 25 of List III of the Seventh
Schedule is very limited and is only in respect of a field unoccupied
by a Central Act - Held: 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 determination of minimum standards and coordination - In view of the Indian Medical Council Act, 1956 and
the Rules and Regulations made thereunder, the Assam Rural Health
Regulatory Authority Act, 2004, declared to be null and void as
State Legislature not having the legislative competence to enact the
said Law - The State 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 - Constitution of India - Seventh Schedule -
List I, Entry 66 and List III, Entry 25.
[2023] 9 S.C.R. 917 : 2023 INSC 81
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Assam Community Professionals (Registration and
Competency) Act, 2015 - Constitutionality of - Power of Legislature
- To overrule a Judicial Decision - High Court vide the impugned
order allowed Writ petition holding that the Assam Rural Health
Regulatory Authority Act, 2004 enacted by the State legislature was
unconstitutional as the Act was in conflict with the Central Act
(Indian Medical Council Act, 1956) and State Legislature not having
the legislative competence to enact the said Law - Meanwhile, the
State passed the Assam Community Professionals (Registration and
Competency) Act, 2015 - Held: 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 - The power of the sovereign legislature to
legislate within its field, both prospectively and retrospectively
cannot be questioned - It 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 - The Assam
Community Professionals (Registration and Competency) Act, 2015,
enacted pursuant to the judgment of the High Court, is a valid piece
of Legislation as it removed the basis of the impugned judgment
passed by the High Court - The 2015 Act is also not in conflict with
the IMC, Act, 1956 - This is because the Central Act namely, IMC,
Act, 1956 does not deal with Community Health Professionals who
would practise as allopathic practitioners in the manner as they
were permitted to practise under the Assam Rural Health Regulatory
Authority Act, 2004, in rural areas of the State of Assam - Hence,
by a separate legislation the Community Health Professionals have
been permitted to practise as such professionals - The said
legislation of 2015 is not in conflict with IMC, Act, 1956 and the
rules and regulations made thereunder - Hence, the Act of 2015 is
not hit by Entry 66 of List I of the Constitution and is within the
legislative competence of the State Legislature under the Seventh
Schedule of the Constitution.
Constitution of India: Seventh Schedule - Art. 245, 246 &
254 - Interplay between Entry 66 of List I and Entry 25 of List III -
Held: The question of invasion into another legislative territory
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has to be determined by substance and not by degree - Where one
Entry is made 'subject to' another Entry, all that it means is that out
of the scope of the former Entry, a field of legislation covered by
the latter Entry has been reserved to be specially dealt with by the
appropriate Legislature - The field of legislation covered under
Entry 25 of List III is subject to Entries 63, 64, 65 and 66 of List I -
Dual restrictions operate in the legislative competence of a State
Legislature to enact any law under Entry 25 of List III - 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 -
When any law is made under Entry 25 of List III by a State
Legislature, the same is always subject to Entry 66 of List I - Modern
scientific medicine or allopathic medicine is within the scope of
Entry 66 of List I and not under Entry 25 of List III - In the instant
case the law made by the State Legislature is hit by the first of the
aforesaid two restrictions - Hence, the State Legislature lacked the
legislative competence to enact such a Law.
Dismissing the appeals, the Court
HELD: 1. The Assam Rural Health Regulatory Authority
Act, 2004, 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 a medical 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
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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 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 liable to be set aside on the ground that
the State Legislature lacks competence to legislate with regard
to the aspects enumerated hereinabove. [Para 21][1007-C-G]
2. 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 as in medical education, concerning allopathic medicine
or modern 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 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
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any potential conflict of the provisions of the Assam Act of 2015
with the National Medical Commission Act, 2019. [Para 24][1014G-H; 1015-A-C]
3.1 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 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 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. 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. [Para 25(i)][1016-B-E]
3.2 The IMC Act, 1956 is a 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
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 law in respect of allopathic medicine or modern
medicine 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 and the Rules and Regulations
made thereunder. In other words, the standard in medical
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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
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.
Hence, in view of the Indian Medical Council Act,1956 and the
Rules and Regulations made thereunder, the Assam Act, namely,
the Assam Rural Health Regulatory Authority Act, 2004, is
declared to be null and void in view of the Assam Legislature not
having the legislative competence to enact the said Law. [Para
25(ii) & (iii)][1016-F-H; 1017-A-D; 1018-A]
3.3 The Assam Community Professionals (Registration and
Competency) Act, 2015, enacted pursuant to the judgment of the
Gauhati High Court, is a valid piece of Legislation as it has
removed the basis of the impugned judgment passed by the
Gauhati High Court. The 2015 Act is also not in conflict with the
IMC, Act, 1956. This is because the Central Act namely, IMC,
Act, 1956 does not deal with Community Health Professionals
who would practise as allopathic practitioners in the manner as
they were permitted to practise under the Assam Act, in rural
areas of the State of Assam. Hence, by a separate legislation the
Community Health Professionals have been permitted to practise
as such professionals. The said legislation of 2015 is not in conflict
with IMC, Act, 1956 and the rules and regulations made
thereunder. Hence, the Act of 2015 is not hit by Entry 66 of List
I of the Constitution and is within the legislative competence of
the State Legislature under the Seventh Schedule of the
Constitution. [Para 25(iv)][1018-B-E]
Tamil Nadu Medical Officers Association v. Union of
India (2021) 6 SCC 568 : [2020] 8 SCR 583 and Shri
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Prithvi Cotton Mills Ltd. v. Broach Borough Municipality
AIR 1970 SC 192 : [1970] 1 SCR 388 - followed.
State of Bombay v. F.N. Balsara AIR 1951 SC 318 :
[1951] 0 SCR 682; Atiabari Tea Company Ltd. v. State
of Assam AIR 1961 SC 232 : [1961] 1 SCR 809; RMDC
v. Union of India AIR 1957 SC 628 : [1957] 0 SCR
930; State of Tamil Nadu v. Adhiyaman Educational and
Research Institute (1995) 4 SCC 104 : [1995] 2
SCR 1075; Modern Dental College and Research
Centre v. State of Madhya Pradesh (2016) 7 SCC 353 :
[2016] 3 SCR 579; Chintpurni Medical College and
Hospital v. State of Punjab and Ors. AIR 2018 SC 3119
: [2018] 5 SCR 147; Gujarat University, Ahmedabad
v. Shri Krishna Ranganath Mudhoklar AIR 1963 SC
703 : [1963] 1 Suppl. SCR 112; Dr. Preeti Srivastava
v. State of M.P. (1999) 7 SCC 120 : [1999] 1 Suppl.
SCR 249; Indian Aluminium Company Co. v. State of
Kerala AIR 1996 SC 1431 : [1985] 2 Suppl. SCR 630;
Hindustan Gum and Chemicals Ltd. v. State of Haryana
(1985) 4 SCC 124 : [1985] 2 Suppl. SCR 630; M/s.
Misrilal Jain v. State of Orissa AIR 1977 SC 1686 :
[1977] 3 SCR 714 ; M/s. Tirath Ram Rajindra Nath,
Lucknow v. State of U.P. AIR 1973 SC 405; Govt. of
A.P. v. Hindustan Machine Tools Ltd AIR 1975 SC
2037; I.N. Saksena v. State of M.P AIR 1976 SC 2250:
[1976] 3 SCR 237; Central Coal Fields Ltd. v.
Bhubaneswar Singh AIR 1984 SC 1733 : [1985] 1 SCR
618; State of Himachal Pradesh v. Narain Singh (2009)
13 SCC 165 : [2009] 10 SCR 821 - relied on.
Dr. Mukhtiar Chand v. State of Punjab (1998) 7 SCC
579 : [1998] 2 Suppl. SCR 143; Dr. A. K. Sabhapathy
v. State of Kerala 1992 Supp. 3 SCC 147 : [1992] 2
SCR 653; Gujarat University v. Krishna Ranganath
Mudholkar [1963] Supp. 1 SCR 112; R. Chitralekha v.
State of Mysore AIR 1964 SC 1823; Prof. Yashpal v.
State of Chhattisgarh (2005) 5 SCC 420 : [2005] 2
SCR 23; Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and Charitable
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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Trust v. State of Tamil Nadu (1996) 3 SCC 15 : [1996] 2
SCR 422; MCI v. State of Karnataka (1998) 6 SCC
131 : [1998] 3 SCR 740; Hingir - Rampur Coal Co.
Ltd. v. State of Orissa AIR 1961 SC 459 : [1961] 2
SCR 537; Association of Medical Superspeciality
Aspirants and Residents and Others v. Union of India
and Others (2019) 8 SCC 607 : [2019] 12 SCR 1011;
Prafulla Kumar Mukherjee v. Bank of Commerce,
Khulna AIR 1947 P.C. 60; Ujagar Prints v. Union of
India AIR 1989 SC 516 : [1988] 3 Suppl. SCR 770;
United Provinces v. Atiqa Begum AIR 1941 FC 16;
Calcutta Gas Company v. State of West Bengal AIR 1962
SC 1044 : [1962] 3 Suppl. SCR 1; Hoechst
Pharmaceuticals Ltd. v. State of Bihar AIR 1983 SC
1019 : [1983] 3 SCR 130; K.R.C.S. Balakrishna Chetty
& Sons & Co. v. The State of Madras AIR 1961 SC
1152 : [1961] 2 SCR 736; The South India Corporation
(P) Ltd. v. The Secretary, Board of Revenue Trivandrum
and Ors. AIR 1964 SC 207 : [1964] 4 SCR 280; Ashok
Leyland Ltd. v. State of Tamil Nadu and Anr. (2004) 3
SCC 1 : [2004] 1 SCR 306; Subhasis Bakshi v. W.B.
Medical Council (2003) 9 SCC 269 : [2003] 1
SCR 1150 and State of Bombay v. United Motors India
Ltd. AIR 1953 SC 252 : [1953] 0 SCR 1069 - referred
to.
Case Law Reference
[1998] 2 Suppl. SCR 143
referred to
Para 5.1 (i)
[1992] 2 SCR 653
referred to
Para 5.1 (iii)
[1963] Supp. 1 SCR 112
relied on
Para 5.1 (iv)
AIR 1964 SC 1823
referred to
Para 5.1 (v)
[2018] 5 SCR 147
referred to
Para 1 6 (v)
[2005] 2 SCR 23
referred to
Para 6 (v)
[1996] 2 SCR 422
referred to
Para 6 (v)
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[1999] 1 Suppl. SCR 249
relied on
Para 8 (vii)
[1998] 3 SCR 740
referred to
Para 8 (ix)
[1951] SCR 682
referred to
Para 9 (iii)
[1961] 2 SCR 537
referred to
Para 9 (v)
[2019] 12 SCR 1011
referred to
Para 10
[1951] SCR 682
relied on
Para 11.4
[1961] 1 SCR 809
relied on
Para 11.5
[1988] 3 Suppl. SCR 770
referred to
Para 11.5
[1962] 3 Suppl. SCR 1
referred to
Para 11.9
[1957] SCR 930
relied on
Para 11.10
[1983] 3 SCR 130
referred to
Para 11.11
[1963] 1 Suppl. SCR 112
referred to
Para 15 (i)
[1995] 2 SCR 1075
relied on
Para 15 (ii)
[1999] 1 Suppl. SCR 249
referred to
Para 15 (iii)
[2016] 3 SCR 579
relied on
Para 15 (iv)
[2018] 5 SCR 147
relied on
Para 15 (v)
[2020] 8 SCR 583
followed
Para 15 (vi)
[1961] 2 SCR 736
referred to
Para 16.1 (i)
[1964] 4 SCR 280
referred to
Para16.1 (ii)
[2004] 1 SCR 306
referred to
Para16.1(iii)
[1998] 2 Suppl. SCR 143
referred to
Para 21 A
[2003] 1 SCR 1150
referred to
Para 21 B
[1992] 2 SCR 653
referred to
Para 21 B (i)
[1985] 2 Suppl. SCR 630
relied on
Para 22
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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[1970] 1 SCR 388
followed
Para 22
[1962] 1 SCR 549
referred to
Para 22 (a)
[1953] SCR 1069
referred to
Para 22 (a)
[1977] 3 SCR 714
relied on
Para 22 (b)
AIR 1973 SC 405
referred to
Para 22 (c)
AIR 1975 SC 2037
relied on
Para 22 (d)
[1976] 3 SCR 237
relied on
Para 22 (d)
[1985] 1 SCR 618
relied on
Para 22 (d)
[2009] 10 SCR 821
relied on
Para 22 (e)
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.502503 of 2023.
From the Judgment and Order dated 30.10.2014 and 19.09.2014
of the High Court of Gauhati in WPC No.5789 of 2005.
With
TC (C) Nos.25 And 24 of 2018.
Harin P. Raval, Sanjay R. Hegde, Rana Mukherjee, Sr. Advs.,
Oindrila Sen, Md. Sharuk Ali, Raghav Gupta, Ms. Shreya, Ms. Shrestha
Narayan, Rajha Chatterjee, Piyush Sachdev, Aditya Pathak, Mahabir
Singh, Adeel Ahmed, Satish Kumar, Advs. for the Appellants.
Ms. Aishwarya Bhati, ASG, Vikas Singh, Sr. Adv., Gaurav Sharma,
Dhawal Mohan, Prateek Bhatia, Kapish Seth, Ms. Deepika Kalia, Ms.
Mitushi Goyal, Mohd. Akhil, Rajesh Ranja, T. S. Sabarish, Nakul
Chengappa K. K., Ms. Akriti A. Manubarwala, Gurmeet Singh Makker,
Shivam Singh, Abhinav Singh, Manish Kumar, Gagan Gupta, Shuvodeep
Roy, Kumar Arnav Singhdeo, Advs. for the Respondents.
Ananga Bhattacharyya, V. K. Khanna, Hitesh Kumar Sharma,
Akhileshwar Jha, Ms. Niharika Dewivedi, Shweta Sand, Anubhav Gupta,
C.M. Jha, Narendra Pal Sharma, Advs, for the Intervenors.
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The Judgment of the Court was delivered by
NAGARATHNA, J.
I N D E X*
Leave granted.
2. In these appeals, the appellants have assailed the legality and
correctness of the order dated 30.10.2014 passed by the Division Bench
of the Gauhati High Court in W.P.(C) No. 5789/2005, whereby the High
Court by allowing the Writ Petition struck down the Assam Rural Health
Regulatory Authority Act, 2004 (hereinafter referred to as 'Assam Act'
or the 'State Act' for the sake of brevity) which was enacted by the
Assam State Legislature.
Brief facts of the case:
3. The facts giving rise to the present appeals and transferred
cases, in a nutshell are that on 18.09.2004, the Assam Legislature enacted
the Assam Act. The said Act was enacted to provide for the establishment
of a regulatory authority in the State of Assam to register the Diploma
holders in Medicine and Rural Health Care ("DMRHC"), to regulate
their practice in medicine in rural areas and to regulate the opening of
medical institutions to impart education and training for the course of
Diploma in Medicine and Rural Health Care.
3.1. On 23.06.2005, the Director, Medical Education, State of
Assam, published an advertisement in the Assam Tribune inviting
BAHARUL ISLAM & ORS. v. THE INDIAN MEDICAL
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*Pagination in the Index is as per the Original Judgment.
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applications from eligible candidates seeking admissions in the threeyear course of Diploma in Medicine and Rural Health Care in the Medical
Institute, Jorhat, for the session starting in the year 2005.
3.2. The Indian Medical Association, Assam State Branch,
Respondent No. 1 herein, filed a Writ Petition being W.P. (C) No. 5789
of 2005 under Article 226 of the Constitution of India, before the Gauhati
High Court, assailing the validity of the Assam Act and the aforesaid
advertisement. During the pendency of the Writ Petition before the High
Court, the appellants herein were admitted in the First year of the threeyear Diploma Course in Medicine and Rural Health Care in the Medical
Institute, Jorhat, ('Jorhat Medical Institute' for the sake of convenience)
for the sessions 2012-2013, 2013-2014 and 2014-2015 respectively,
pursuant to the selection process.
3.3. Having regard to the fact that the Jorhat Medical Institute
was created as envisaged under the State Act, and about four-hundred
students had been admitted to the diploma course and awarded
certificates on having passed the Course, State of Assam made a plea
for impleadment of the Regulatory Authority, the Jorhat Medical Institute
and the persons who had obtained diploma certificates and had been
engaged as Rural Health Practitioners on the basis of such qualification.
3.4. By the impugned order dated 19.09.2014, the High Court
rejected the State's plea for impleadment of the Regulatory Authority,
the Jorhat Medical Institute and the persons who had obtained diploma
certificates from the said Institute during the pendency of the Writ Petition
before the High Court.
3.5. The pertinent findings of the High Court, in the impugned
order dated 19.09.2014 may be summarized as under:
i)
That the State had voluntarily assumed the risk of
proceeding with the admission process under the State Act,
even after a challenge was made to the vires of said Act
before the High Court.
ii)
The fact that there was no stay on the operation of the
State Act would not be a valid justification for the State to
proceed with the admissions to the course, more so, when
the legality of the said Act was challenged. That the
admissions, issue of diploma certificates to the persons who
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completed the course, and appointment of such persons as
Rural Health Practitioners, were all developments that took
place subsequent to the writ petition being filed.
iii)
That no question arose in the writ petition as to the
consideration of individual interests of the parties sought to
be impleaded. The question and issue that would arise was
only as to the vires of the State Act. Hence, there would
be no reason to implead the Regulatory Authority, the Jorhat
Medical Institute and the persons who had obtained diploma
certificates and had been engaged as Rural Health
Practitioners on the basis of such qualification, as necessary
parties in the writ petition.
3.6. Further, vide the impugned judgment dated 30.10.2014, the
High Court allowed W.P. (C) No. 5789 of 2005 by holding that the Assam
Act, is unconstitutional and accordingly, the said Act was struck down.
The relevant findings of the High Court in the impugned judgment dated
30.10.2014, have been culled out as follows:
i)
That the State Act is in conflict with the Central Act i.e.
Indian Medical Council Act, 1956 (hereinafter referred to
as 'IMC Act, 1956' or 'Central Act' for the sake of
convenience) inasmuch as Section 10A of the Central Act
categorically declares that no medical college shall "open a
new or higher course of study or training" which would
enable a student of such course or training to qualify himself
for the award of any recognised medical qualification.
ii)
That the restrictions under Section 10A(b)(i) of the Central
Act envisage injunction against medical colleges to open "a
new or higher course." The words "new or higher course"
would definitely take in its sweep the diploma course
contemplated under the State Act.
iii)
That even for commencement of a diploma course, previous
permission of the Central Government is required. But in
the present case, no permission was taken. Therefore, it
was concluded that the State had ventured to introduce a
new diploma course in medicine and rural healthcare, without
the necessary permission as contemplated under Section
10A of the Central Act.
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iv)
That the power and scope of the State Legislature to
legislate under the field covered under Entry 25 of List III
of the Seventh Schedule of the Constitution of India is very
limited and is only in respect of a field unoccupied by a
Central Act. In the present case, the Central Act fully
covers the field and places a total restriction on opening a
new course in medicine without the permission of the Central
Government.
v)
That it would be bizarre to say that the diploma-holders
should practice in rural areas and not in urban areas, and
they are entitled to treat only certain diseases and prescribe
only certain medicines. That such restrictions were
unworkable in practice. Such conditions and restrictions were
stipulated in Section 24 of the State Act. However, striking
down that provision alone would not save the situation as
Section 24 is the "soul" of the State Act and without the
said provision, the rest of the provisions of the Act would
be meaningless.
vi)
Keeping in view the larger interest of health and welfare of
society and the lapses committed by the State Legislature
in enacting a legislation without obtaining necessary
approvals from the Central Government, the State Act was
liable to be declared as unconstitutional and accordingly
struck down.
3.7. Aggrieved by the impugned judgment, certain persons who
were admitted in the First year of the three-year Diploma Course in
Medicine and Rural Health Care in the Jorhat Medical Institute, for the
sessions 2012-13, 2013-14 and 2014-15, during the pendency of the writ
petition before the High Court, have preferred the present appeals.
3.8. At this stage itself, it may be mentioned that consequent upon
the striking down of the Assam Act, the Assam Legislature passed the
Assam Community Professional (Registration and Competency) Act,
2015 ("2015 Act", for short) with a view to remove the basis of the
judgment passed by the Division Bench of the Gauhati High Court in the
aforesaid writ petition and in an attempt to restore the position of the
diploma holders in medicine and to give them continuity in service. The
said Act has been assailed by the diploma holders in Transferred Case
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(C) Nos. 24 and 25 of 2018 before this Court. In the circumstances, we
have heard these cases together and the same are being disposed of by
this common judgment.
Bird's Eye View of the Controversy:
4. The controversy in these cases revolve around the legislative
competence of the Assam State Legislature to enact the Assam Act
which has been assailed by the writ petitioners before the Gauhati High
Court on the ground of legislative competence as per Article 246 read
with the relevant entries of List I and III of the Seventh Schedule of the
Constitution of India. However, the Gauhati High Court has struck down
the Assam Act on the ground of repugnancy as per Article 254 of the
Constitution.
Submissions:
5. We have heard learned Senior Counsel Mr. Harin P. Raval and
learned senior counsel Mr. Sanjay Hegde for the appellants-diploma
holders in medicine and learned counsel Sri Shivam Singh, appearing for
the writ petitioner/Respondent No.1 herein namely, Indian Medical
Association instructed by Sri Abhinav Singh and learned Additional
Solicitor General Sri K.M. Natraj, for the Union of India and learned
Senior Counsel Sri Vikas Singh, appearing on behalf of Respondent No.
7, Medical Council of India. We have heard Sri Rana Mukherjee learned
Senior Counsel instructed by Ms. Oindrila Sen appearing on behalf of
the petitioners in Transferred Case (C) Nos. 24 and 25 of 2018 and Mr.
Ananga Bhattacharyya learned counsel appearing on behalf of the State
of Assam. We have perused the material on record.
5.1. Learned Senior Counsel Sri. Harin P. Raval, appearing for
the appellants submitted as under:
i.
That the impugned judgment proceeds on a misplaced
interpretation of the Indian Medical Council Act, particularly
Section 10 thereof and is in the teeth of a three-judge bench
judgment of this Court in Dr. Mukhtiar Chand vs. State of
Punjab, (1998) 7 SCC 579, ("Dr. Mukhtiar Chand").
That the High Court erred in holding that as per Section
10A of the Central Act, any new course including the relevant
diploma course can only be opened after prior permission
of the Central Government. The appellants submitted that
Section 10A of the Central Act only prescribes that a new
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course which would qualify a person for the award of a
recognised medical qualification requires the permission of
the Central Government. That Diploma in Medicine and
Rural Healthcare is not a medical qualification as defined
in Section 2(h) of the Central Act. Therefore, no permission
of the Central Government was required to start such a
diploma course.
ii.
That the award of a recognised medical qualification gives
a person the right to be included in the Indian Medical
Register under Section 21(1) of the IMC Act. However, as
per Section 15 of the said Act for practicing medicine in
any State, all that is required is that a person has to be
enrolled in a State Medical Register as defined in Section
2(k) thereof as a Register maintained under law enforced
in any State regulating the registration of practitioners of
medicine. That the impugned Assam Act, is such a law and
the State Register of Rural Health Practitioners created by
virtue of Section 17 of the Act is such a State Medical
Register in terms of even Section 2(k) of the IMC Act,
1956.
iii.
That the view taken by the High Court that medical
practitioners cannot practice allopathic medicine unless they
have completed any of the recognised courses under the
IMC Act, was a view which was taken by this court in Dr.
A. K. Sabhapathy vs. State of Kerala, 1992 Supp. 3 SCC
147, ("Dr. A. K. Sabhapathy"). Learned senior counsel
for the appellants submitted that the said judgment has
specifically been overruled by a three-judge bench in Dr.
Mukhtiar Chand. It was thus, submitted that the view
taken by the High Court is contrary to the decision in Dr.
Mukhtiar Chand.
iv.
Learned senior counsel for the appellants refuted the
reliance placed by the Respondent-Medical Council of India
on Gujarat University vs. Krishna Ranganath
Mudholkar, 1963 Supp. (1) SCR 112, ("Gujarat
University") wherein it was held that a State Legislation
can be unconstitutional even if there is no contrary Union
Legislation. It may be declared ultra vires if it effectively
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impinges on the field reserved for the Union under Entry
66 and infringes upon the Union field. It was contended
that it is only where the State Legislation makes it impossible
or difficult for the Parliament to legislate under Entry 66 of
List I, that the State Law can be declared to be bad.
v.
The learned senior counsel for the appellants placed reliance
on the judgment of a Constitutional Bench of this court in
R. Chitralekha vs. State of Mysore, AIR 1964 SC 1823,
("R. Chitralekha") wherein it was held that it is only when
the State Legislation makes it impossible or difficult for the
Parliament to legislate under Entry 66 of List I, and only if
the impact of the State Law is so heavy or devastating on
Entry 66 of List I, so as to wipe out or appreciably abridge
the Central field of legislation, can it be struck down but not
otherwise. Learned senior counsel contended that in the
present case, there is no question of the Assam Act, making
it impossible or difficult for the Parliament to exercise its
power for co-ordination and determination of standards in
medical institutions. If the Parliament wanted, they could
easily legislate to say that no person who does not hold
qualifications recognised by the IMC Act can practice
allopathic medicine. That Parliament has not said so and
Section 15 of the IMC Act indicates that the Parliament
recognises that persons enrolled in State Medical Registers
under State Acts can practice medicine in the State.
vi.
Learned senior counsel for the appellants contended that
accepting the argument of the MCI that allopathic medicine
can be practiced only by M.B.B.S. doctors with a MBBS
degree would not only be totally contrary to the scheme of
the IMC Act but would effectively declare unconstitutional
a number of State Acts of various States, which have
prescribed qualifications other than M.B.B.S. to practice
medicine in the State.
vii.
That the Medical Council of India (MCI) in the Meeting of
its Board of Governors at New Delhi on 16.07.2012, along
with the Secretary (Health), Ministry of Health & Family
Welfare, Government of India in its proposal for a B.Sc.
(Community Health) Program sought to draw experience
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from the Assam and Chhattisgarh models of the Diploma
Course and sought to affiliate these courses/programs to a
University or Regulatory Body. Therefore, the Medical
Council of India has itself acknowledged the Assam
experience and sought to create a course on the same lines
in the interest of public healthcare.
viii.
That it is a well-known fact that M.B.B.S. doctors prefer
not to practice in rural areas and thus, there is an acute
shortage of such doctors in rural areas all over the country.
To address such an issue, the Assam Act was brought into
force by the State Legislature of Assam. Thus, striking it
down would be counter-productive and contrary to the
interests of the rural population of Assam.
ix.
That as per the impugned Assam Act, Rural Health
Practitioners can only practice in rural areas and that too,
in a limited manner to treat basic common diseases and to
prescribe basic medicines.
Learned Senior counsel submitted that the impugned judgment
may be set aside and the Assam Act may be declared to be a valid piece
of legislation.
5.2 Sri. Sanjay Hedge, learned Senior Counsel, drew our attention
to two judgments of this Court in the case of Dr. Mukhtiar Chand and
Subhasis Bakshi to contend that this Court has recognised the practice
in Allopathic medicine under various enactments and that the said
judgments would squarely apply to the facts of this case. The judgments
relied upon by Sri Sanjay Hedge shall be discussed later.
Arguments on behalf of Respondent No. 1 Indian Medical
Association:
6. Learned counsel Sri Shivam Singh appearing for Respondent
No. 1, Indian Medical Association submitted as under:
i.
That the Assam Act is repugnant to the provisions of the
Indian Medical Council Act, 1956, (IMC Act, 1956) i.e. the
Central Act.
ii.
That the role of the Central Government in granting
permission for commencement of a "new or higher course"
as prescribed under Section 10A(b)(i) of the Central Act,
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cannot be diluted nor given a go-by. Section 10(A)(1)(b) of
the Central Act requires that previous permission of the
Central Government be obtained prior to offering a new or
higher course of study for obtaining a "recognised medical
qualification" at an already established medical college.
However, as regards prospective medical colleges,
obtainment of previous permission of the Central
Government is mandatory regardless of whether the medical
college intends to offer a recognised medical qualification
or a non-recognised medical qualification.
iii.
That the term "Medical College" is not defined in the IMC
Act, 1956, thus, reliance must be placed on the definition of
"Medical Institution" as defined in Section 2(e) of the IMC
Act, 1956. Thus, the term Medical College must be
understood in a wide sense to even include those that do
not offer a 'recognised medical qualification'. It was
submitted that, the term "medical college" used in Section
10A(1)(a) of the IMC Act ought not be restricted as only
"medical college offering a recognised medical qualification"
within the meaning of the IMC Act, 1956.
iv.
On the strength of the State Act, the Jorhat Medical Institute,
was established to provide a Diploma Course in Medicine
and Rural Healthcare, without prior permission of the Central
Government which is an incurable defect. Thus, the setting
up of the Jorhat Medical Institute and commencement of
the diploma course is contrary to IMC Act, 1956 and,
therefore, unlawful on the ground that it was contrary to
Section 10A(1)(a) of the Central Act of 1956.
v.
Reliance was placed on the decisions of this Court in
Chintpurni Medical College & Hospital vs. State of
Punjab, (2018) 15 SCC 1, ("Chintpurni Medical College
& Hospital") and Prof. Yashpal vs. State of Chhattisgarh,
(2005) 5 SCC 420, ("Prof. Yashpal")to contend that the
State Government does not have the power to enact the
Assam Act and that the States are denuded of the legislative
power to legislate on medical education.
vi.
That the Central Act, namely, IMC Act, 1956, in pith and
substance, falls under Entry 66 of List I and occupies the
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entire field insofar as establishment of new medical colleges
is concerned which deals with coordination and
determination of standards, inter alia, in medical education.
Therefore, the State Legislature is denuded of its power
under Entry 25 of List III to enact a law providing for the
establishment of a medical college contrary to the provisions
of the Central Act.
vii.
That the provisions of the Central Act hold the field of
medical education and no medical college or course,
including the impugned course can be commenced without
the permission of the Central Government as mandated
under Section 10A of the said Act. Also, the Doctrine of
'Occupied Field' would apply in the present case.