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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.Nagaresh, J.
Dr.Jayaprasad Karunakaran – Petitioner
Versus
Union Of India Represented By The Secretary, Ministry Of Ayush, Ayush Bhawan, B-Block, GPO Complex, INA, New Delhi – Respondent
WP(C) NO. 11555 OF 2021
Decided On : 02-06-2021
Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982 – Regulation 6 – Homoeopathy Central Council Act, 1973 – Sections 33, 26 – Constitution of India, 1950 – Article 19 – Writ of Mandamus – Prescription of Medicines for cure of covid – Petitioner claims that he has 17 years of practice and experience in treating chronic illnesses including viral diseases. – Petitioner had presented research document on HIV Virus treatment in the International AYUSH Conclave, after having selected from among 107 academicians. – Petitioner has also treated and saved serious Covid-19 patients in foreign countries. – However, when the petitioner attempted to treat Covid-19 patients at Thiruvananthapuram recently, he was informed by the officials of the State Health Department that action will be taken against him under the Disaster Management Act. – Petitioner, a Homoeopathic Practitioner conducting a Medical Centre at Thiruvananthapuram, is before this Court seeking a writ of Mandamus directing the respondents to ensure that the petitioner is not obstructed in any manner from performing in accordance with Ext.P4 judgment of the Hon’ble Supreme Court.
Finding of the court: As per the Medical Protocol of the Government, Doctors practising in AYUSH medicines are not supposed to prescribe any medicines, stating that it is curative for Covid-19 disease. At the same time, this Court also found that there is nothing prohibiting the qualified Medical AYUSH Practitioners to prescribe Immunity Booster Mixture or tablets, as suggested by the Ministry of AYUSH, Government of India. – Qualified Homoeopathic Physicians can prescribe and dispense preventive and prophylactic homoeo medicines, for preventing Covid-19 – Homoeopathic Physicians can resort to Homoeopathy for symptom management of Covid-19 like illnesses. – They may provide Add on interventions to the conventional cases of Covid-19 and prescribe drugs as mentioned in the guidelines but the suggested medicines should be as adjuvant to Standard Management Guidelines in the hospital setting only with the approval of authorities and willingness of the patient/guardian. – Advertisement by Homoeopathic Physicians is prohibited in view of Regulation 6 of the Homoeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982 read with Sections 33 and 24 of the Homoeopathic Central Council Act, 1973
Result: Writ Petition Disposed of
JUDGMENT :
The petitioner, a Homoeopathic Practitioner conducting a Medical Centre at Thiruvananthapuram, is before this Court seeking a writ of Mandamus directing the respondents to ensure that the petitioner is not obstructed in any manner from performing in accordance with Ext.P4 judgment of the Hon’ble Supreme Court.
2. The petitioner claims that he has 17 years of practice and experience in treating chronic illnesses including viral diseases. The petitioner had presented research document on HIV Virus treatment in the International AYUSH Conclave, after having selected from among 107 academicians. The petitioner has also treated and saved serious Covid-19 patients in foreign countries. However, when the petitioner attempted to treat Covid-19 patients at Thiruvananthapuram recently, he was informed by the officials of the State Health Department that action will be taken against him under the Disaster Management Act.
3. The learned counsel for the petitioner Sri. V.T. Madhavanunni would contend that the Hon’ble Apex Court has upheld the right of Homoeopathic Practitioners to treat Covid-19 patients and hence invoking provisions of the Disaster Management Act against the petitioner is highly arbitrary and illegal. The action of the Governmental authorities offends the right of the petitioner guaranteed under Article 19(1)(g) of the Constitution.
4. When the Kerala State itself holds an extensive network of Homoeopathic Clinics and Hospitals, prohibiting the Homoeopathic Practitioners from dispensing medicines to patients would destroy the very system of Homoeopathy. Though the Ministry of AYUSH of the Government of India has issued Ext.P5 Guidelines, the Union Ministry has not taken effective steps to properly implement the said Guidelines contended the learned counsel for the petitioner.
5. Sri. P. Vijayakumar, the learned Assistant Solicitor General of India representing the first respondent-Union of India, submitted that the Government of India, Ministry of AYUSH has issued Ext.P2 recommendations advising utilisation of Homoeopathy for preventive and prophylactic purposes, for symptom management of Covid-19 like illnesses and for add on intervention to the conventional care. There is no prohibition imposed by the Government of India on Homoeopathy for treatment of patients to the extent indicated in Ext.P2 recommendations.
6. The learned Government Pleader representing the 2nd respondent-State of Kerala submitted that the Government of Kerala had formed an expert committee for chartering the protocols for treatment for the management of Covid-19. The Government has approved the action plan of the Homoeo Department for giving Homoeo medicines as prophylactic. However the target population was not intended to include Covid-19 patients or their contacts or those people under quarantine.
7. In the light of the judgment of the Apex Court in Civil Appeal No.4049/2020, the Circular issued by the Government of Kerala has been modified as per Circular No.B1/150/2020/AYUSH dated 24.12.2020 and the qualified Homoeopathic Practitioners have been advised to follow Ext.P2 advisory and guidelines dated 06.03.2020 issued by the Ministry of AYUSH as well as the various Government Orders issued by the Government of Kerala. However, the Homoeopathic Practitioners should not make any claims regarding effectiveness of particular medicines in curing Covid-19.
8. Heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India representing the 1st respondent and the learned Government Pleader representing the 2nd respondent.
9. The issue in this writ petition concerns the extent to which the Practitioners in Homoeopathic Medicine can treat Covid-19 patients prescribing Homoeopathic medicines. The system of Homoeopathy is statutorily recognised in India. In 1973, the Homoeopathy Central Council Act, 1973 (Act No.59 of 1973) was enacted and Section 26 thereof provided that every person whose name is for the time being in for
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