The first proviso to Section 38 of the Travancore Cochin Medical Practitioners Act, 1953 is unconstitutional as it conflicts with the Central Council Act, 1970, which mandates registration for qualified practitioners.

JUDGMENT

[WP(C) Nos.8301/2015, 10651/2018, 1012/2015, 12619/2016, 18495/2016, 27540/2016, 27546/2016, 28303/2017, 32233/2016, 32971/2017]

The petitioners in these cases have approached this Court stating that they are entitled to an order exempting them from registration under the Travancore Cochin Medical Practitioners’ Act, 1953 (in short ‘ the Act’) under the proviso to Section 38 of the said Act.

2. The learned Government Pleader and the learned counsel appearing for the Travancore Cochin Medical Council would submit that the issue raised in these writ petitions is covered against the petitioners by the judgment of the Supreme Court in Kerala Ayurveda Paramparya Vaidya Forum v. State of Kerala and Others [ 2018(3) KHC 185 ]. Thereafter, a Division Bench of this Court in the judgment in Central Council of Indian Medicine and Others v. State of Kerala and Others [2020 KHC 759], held as follows:-

25. Therefore, it is clear that the question with respect to the powers of the State Government to grant exemption under the Act, 1953 vis-a-vis the provisions of the Central Act, 1970 was considered by the Apex Court also taking into account the judgment of the Apex Court in Dr. A.K. Sabhapathy (supra), and held that unless and until a qualified practitioner secures registration under the provisions of the Act, 1970 they are not entitled to practice the Indian system of Medicine or they are entitled to register their names in the appropriate Registers after the commencement of the Central Act, 1970 otherwise than as provided under the Central Act, 1970 . According to us, the clear cut findings entered by the Apex Court in Dr. A.K. Sabhapathy (supra) and the Kerala Ayurveda Paramparya Vaidya Forum (supra) make it clear that the issues now raised in the writ petitions are settled finally and therefore, the State Government is not empowered to grant any exemption invoking the first proviso to Section 38 of the Travancore-Cochin Medical Practitioners Act, 1953 and permit practice otherwise than in accordance with the provisions of the Central Council Act 1970, r/w with the relevant provisions of the Act 1953. Since the Apex Court in Kerala Ayurveda Paramparya Vaidya Forum has followed the proposition of law in Dr. A.K. Sabhapathy , we are of the clear opinion that the first proviso to Section 38 of the Act, 1953 is repugnant to the provisions of Section 17 of the Central Act, 1970 . We are also of the opinion that the Central Act, 1970 was brought into force in order to maintain the minimum standards for admission, duration of courses of training, details of the curricula and syllabi of studies and the title of degree or diploma varying from State to State and even from Institution to Institution in the same State and the statutory Central Council was constituted after conducting an in depth study by the Government of India relating to the Indian system of medicine and homeopathy. The main functions of the Central Council is to involve uniform standards of education and registration of the practitioners of the Indian system of Medicine and Homoeopathy and the Central Council was empowered to form separate committees for ayurveda, siddha, unani and homeopathy and the registration of the practitioners was made compulsory on the Central Register of Indian Medicine and Homoeopathy to ensure that the medicine is not practised by those who are not qualified in the Indian systems of Medicine and those who practice, observe the Code of Ethics in the profession. It was specifying the above that the bill was introduced and the Central Act, 1970 was constituted. Even though we find that the Government of India have addressed various communications to the Secretary to Government, Health and Family Welfare Department, Government of Kerala to make suitable alterations