The Controversy Over ‘Surgeries’ And Indian MedicineBloombergQuintOpinion
A storm of controversy has gathered around the recent notification by the Central Council of Indian Medicine to allow Ayurveda graduates to be trained in 58 surgical procedures. Amongst others, the Indian Medical Association has strongly objected to anybody other than doctors with MBBS degrees performing surgeries on patients.
This controversy is the latest in a series over the role to be played by practitioners of Indian medicine in providing healthcare to Indian citizens. These controversies have manifested themselves in various forms, ranging from disputes over the use of the prefix ‘Dr.’ , FIRs being filed against practitioners of Indian medicine prescribing modern medicine, and litigation over the red lines between the erstwhile Medicine Council Act, 1956 (replaced by the National Medical Commission Act, 2019) and the Indian Medicine Central Council Act, 1970. While the former regulates what we commonly refer to as modern medicine practiced by doctors with the highly coveted MBBS degree, the latter regulates traditional Indian medicine like Ayurveda, Siddha, and Unani.
The present controversy should be understood through the prism of the litigation over the issue of whether practitioners of Indian medicine can prescribe modern medicines that find no mention in the traditional texts.
Drug Prescriptions By Practitioners Of Indian Medicine
The root of the controversy about whether practitioners of Indian medicine can prescribe modern medicine lay in an amendment to the Drugs and Cosmetics Rules, 1945, in 1960, wherein a definition of a ‘registered medical practitioner’ was inserted into the law for the purposes of determining the person who could store and prescribe drugs. This amendment included not just doctors qualified under the MCI Act but also practitioners notified by state governments under their respective state laws as practicing modern medicine and registered on the state medical register. Since the regulation of medical practitioners is on the Concurrent List, the states as well as centre can legislate on the issue, with the latter’s laws taking precedence in the event of a legislative clash. This amendment caused a fair deal of confusion and litigation in various states on whether practitioners of Indian medicine can prescribe medication. Appeals from multiple high courts reached the Supreme Court in the Mukthiar Chand case which was finally decided in 1998.
In a long, ambiguous judgment the court came to two important conclusions. The first was that “The right to practise modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments”. The second was that “the right to prescribe allopathic drugs cannot be wholly divorced from the claim to practice allopathic medicine”.
The court also went on to discuss the two classes of practitioners of Indian medicine who could get on to the State Medical Register and thereby prescribe allopathic (modern) medicine.
- The first were those who had degrees in integrated medicine (a combination of ayurvedic and modern medicine) provided the state legislation recognised such degrees as sufficient for registration on the State Medical Register.
- The second were those living in states that allowed practitioners of Indian medicine to practice any system of medicine.
The judgment also states that “we could not lay our hands on any provision in the said State Acts under which the right to practice any system of medicine is conferred on practitioners of Indian medicine registered under those Acts.”
There has been plenty of litigation on this issue over the last two decades in states where the policy and municipal corporations in the course of their anti-quackery drives routinely haul up Ayurvedic, Siddha, and Unani practitioners for prescribing modern medicine. Tamil Nadu is one state that has seen plenty of litigation on this issue. In many cases, the Madras High Court has intervened to restrain the police from investigating the issue.
Can Practitioners Of Indian Medicine Perform Surgery?
On the issue of whether practitioners of Indian medicine can practice surgery, the recent notification in November is not the first time this controversy had arisen. In 2004, the Central Council of Indian Medicine put out a notification claiming that practitioners of Indian medicine were entitled to practice “Modern Scientific medicine in all its branches of internal medicine, surgery, gynaecology and obstetrics, anaesthesiology, diagnostic procedures ….”. The CCIM’s claim to practice modern medicine lies in the phrase “modern medicine” that is used in the definition of “Indian Medicine” in the IMCC Act, 1970. The entire definition is as follows:
“Indian medicine” means the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha [Unani Tibb or Sowa-Rigpa] whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time”
The definition allows CCIM to define the scope of “modern advances” but subject to the limitations imposed by the Supreme Court in the Mukhtiar Chand case where the court had commented in passing, that the phrase - ‘modern advances’ – merely allows practitioners of Indian medicine to use modern diagnostic tools like X-ray reports, blood testing reports etc. rather than opening the door to practicing all forms of modern medicine. The definition of ‘medicine’ in the erstwhile IMC Act, 1956 and the new NMC Act, 2019 on the other hand expressly includes ‘surgery’.
The legality of the notification in 2004, which was subsequently withdrawn, came up for adjudication before the Delhi High Court when a PIL was filed by the Delhi Medical Association against practitioners of supposedly “integrated medicine” (i.e. a combination of Indian Medicine and modern medicine) registered under the Delhi Bharatiya Chikitsa Parishad Act, 1998 who claimed the right to practice modern surgeries on the basis of the CCIM’s notification of 2004 as well as the definition of “integrated medicine” that found mention in the aforementioned Delhi law.
A Division Bench of the Delhi High Court disagreed with their interpretation of the law in April 2016, and upbraided the CCIM for its 2004 notification, calling it “quite misleading” with the potential to “play havoc with the health and lives of citizens of the city.” The court also reminded the “…CCIM that it being a creature of the Indian Medicine Act, does not enjoy any legislative or quasi legislative powers and has to confine itself to the field of Indian System of Medicine only and perform duties and functions as prescribed in the said Act and cannot transgress into the field/territory occupied by the MCI Act.”
This judgment of the Delhi High Court was appealed to the Supreme Court where it remains pending. Unlike the Delhi High Court judgment, which pits state legislation against the MCI Act which is a central legislation that takes precedence in case of a conflict with state legislation, the CCIM’s November notification involves a conflict between two central legislations – the NMC Act and the IMCC Act. Both legislations are on an even keel with neither taking precedence. In such a scenario, the court must assess whether the delegated legislation is within the scope of parent legislation. Unlike its earlier strategy of issuing notifications to take advantage of the ‘modern advances’ clause in the definition of ‘Indian Medicine’, CCIM has adopted a new strategy which will argue that ‘surgery’ was always a part of ‘Indian medicine’ which is why the notification has Sanskrit names for each of the 58 surgeries.
This strategy will force the courts to wade into tricky waters of passing judgment on the contents of old texts that form the basis of Indian medicine.
In a ‘new India’ where the Prime Minister has publicly stated that Ganesha’s head must have been fixed by a plastic surgeon and that Karna was a test tube baby, it is going to be difficult to find a judge with the courage to rule that the 58 surgeries have no basis in ancient Indian texts on the issue, regardless of the evidence.
Even if the notification is upheld, it is not possible to perform surgeries without the administration of modern medicine. Several of the 58 surgeries require local anaesthesia or the administration of painkillers, which cannot be prescribed by most practitioners of Indian medicine after the Mukhtiar Chand judgment of the Supreme Court.
Prashant Reddy T is a lawyer, Revathi Thushara Tapila is a law student at the National Law University, Odisha.
The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.