Right to practice Vaidya/Medicine-Not absolute: SC

The bench of Supreme Court comprising Justice B.S.Chauhan and Swatanter Kumar, J.J. on 01.06.2010 in the case of Rajasthan Pradesh V.S. Sardarshahar and Anr.
Vs. Union of India (UOI) and Ors. held that the right to practice under Article 19(1)(g) of the Constitution not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution and hence a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice.

It is stated that the Hindi Sahitya Sammelan does not affiliate or recognise any institution and it exercises absolutely no control on the teaching in the subject of medicine qua degrees of Vaidya Visharad and Ayurved Ratana, nor it is necessary for a candidate to appear in the examination conducted by the Hindi Sahitya Sammelan to have been admitted as a regular student in any institution imparting education in the field of medicine. The Hindi Sahitya Sammelan holds written examination only for awarding the degree. In the opinion of the Court such grant of degree without any practical teaching, cannot be approved of and it is for this reason that the Central Government has come out with Central Act laying down the norms in detail for education being imparted in the field of medicine.

This Court has persistently deprecated the practice of an educational institution admitting the students and to allow them to appear in the examinations without having requisite recognition and affiliation. This kind of infraction of law has been treated as of very high magnitude and of serious nature. Students of a un-recognized institution cannot legally be entitled to appear in any examination conducted by any government, university or board. (Vide Minor Sunil Oraon Thr. Guardian and Ors. v. C.B.S.E. and Ors. AIR 2007 SC 458).

In Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153, this Court held that recognized degree can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or any State Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting.

More so, Article 21 which deals with the life and liberty of persons has also to be kept in mind and the poor people of this country who cannot afford to avail the facilities of qualified doctors have to be protected from quacks. Hindi Sahitya Sammelan Prayag had not been recognized for imparting medical education after 1967. Hindi Sahitya Sammelan is not a medical institution or university or a board. It is merely a society registered under the Registration of Societies Act. It does not have any affiliated colleges. Therefore, such persons cannot be permitted to indulge in medical practice. Rajasthan High Court erred observing that persons, who possessed the qualifications from Hindi Sahitya Sammelan Prayag upto 1.10.1976 i.e. the date of enforcement of Section 17 of the Act 1970 in Rajasthan, be allowed to practice.

The Bench further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II, III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.

In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian" guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates.

Finally the Court came to the following inescapable conclusions:-

(I) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.

(II) It is a Society registered under the Societies Registration Act.

(III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.

(IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any University/Board.

(V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No. 105 in II Schedule to the Act, 1970.

(VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in Ayurveda in any recognized college.

(VII) After commencement of Act, 1970, a person not possessing the qualification prescribed in Schedule II, III & IV to the Act, 1970 is not entitled to practice.

(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.

(IX) The right to practice under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution.

(X) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act.

It is held that a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice. Hence, an unqualified,unregistered and unauthorized medical practitioner possessing no valid qualification,degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrollment of imparting any affiliation or recognition and that too without knowing the basic qualification of the candidates. Mere inclusion of name of a person in a State Registrar maintained under the State Act is not enough making him eligible to practice. 

LIMITATIONS IN THE CATEGORY OF THE CASES PERTAINS TO CIVIL APPELLATE JURISDICTION

CIVIL JURISDICTION

CATEGORY	ART. /RULE/ SECTION	LIMITATION	TIME FROM WHICH PERIOD BEGINS TO RUN
1] FIRST APPEAL  (CPC)	Art.116 (a) of Limitation Act, 1963	90 Days	The date of the decree or order.
	R.15(2) of Bombay City Civil Court Act, 1948	30 Days	The date of the decree or order.
a. Land Acquisition Act.	Art. 116 of Limitation Act.	90 Days	The date of the decree or order.
b. Employees State Insurance Act.	Sec. 82 (3) ESI Act.	60 Days	From the date of order
c. Railway Claims Tribunal Act.	Sec. 23 (3) of RCT Act.	90 Days	From the date of order
d. Motor Vehicles Act.	Sec. 173(1) of MV Act.	90 Days	From the date of order
e. Workmen's Compensation Act.	Sec. 30 (20 Workmen's Compensation Act. Sec.30(3) Section 5 of the Limitation Act is applicable	60 Days	From the date of order
f. The Copy Right Act.	Sec. 72(2) The Copy Right Act	3 Months	From the date of order
g. Securities & Exchange Board of India Act.	Sec. 15z of SEBI Act	60 Days, If prevented by sufficient cause to file within 60 days further period not exceeding 60 days.	From the date of communication  of the decision or order to him.
h. Maharashtra 8 Electricity & Regulatory Commission Act.	Sec. 27 of MERC Act.	60 Days	----
i. Foreign Exchange Regulation Act.	Sec. 35 of FERA	60 days, If sufficient cause shown for further 60 days.	-----
j. Family Court Appeals Act.	Sec. 19 (3) of Family Courts Appeal Act.	30 Days.	From the date of judgment or order
k. Cross objection in Appeal	Order (41) of CPC R.22	30 Days.	Within one month from the date of service notice on him or his pleader of the day fixed par hearing of appeal or within  such further time as the appellate court may allow.
2] SECOND APPEAL (CPC)	Art.116 of Limitation  Act.	90 Days.	The date of the decree or order.
3] LETTERS PATENT APPEAL	Bombay High Court (A.S.) Rules Provisions of L.P.A. and Order 41 of CPC (117 Art.)	30 Days.	From  the date of order.
4] APPEAL FROM ORDER	----	District - 90 Days. Bombay - 30 Days.	From  the date of order. From  the date of order.
5] CIVIL REVISION  APPLICATION(CPC)	Art. 131 of Limitation Act.	90 Days.	The date of the decree or order or sentence sought to be revised.
6] APPLICATIONS
a. Application for setting aside Registrar's order  Revision of orders of Reg & Addl. Reg by motion u/ Chapter II, Rule 7	Bombay High Court (A.S) Rules Chapter XII Rule-2 Chapter II Rule - 7	7 Days. 15 Days.	From the date of order complained of From the date of order  complained of
b. For bringing L.Rs. on record	Art. 120	90 Days.	The date of death of the plaintiff , appellant , defendant or respondent , as the case may be.
c. For setting aside abatement	Art. 121	60 Days.	The date of abatement.
d. For leave to appeal as a pauper(a) to the High Court	Art.130	60 Days.	The date of decree appealed from.
e. To the High Court for a certificate of fitness of appeal to the Supreme Court clause 1 of Art. 132, 133 etc.	Art, 132 of Limitation Act	60 Days.	The date of the decree , order or sentence.
f. Application for restoration of appeal, application Review, Revision dismissed for default, want  of prosecution.	Art. 123 of Limitation Act.	30 Days.	The date of the decree or where the summons or notice was not duly served, when the aplicant had knowledge of the decree.
g. Appeal under Sec. 35G(2) of Central Excise Act.	35G(2)(a)	180 Days.	From the date on which order appealed against is received by commissioner or party order.
h. The Customs Act Appeal u/s. 130 (2)	130(2) (a)	180 Days.	From the date on which the order appealed against is received by commissioner of customs or the other party
7] REVIEW	Art. 124	30 Days.	The date of the decree or order.
8] CONTEMPT PETITION	Sec. 20	1 Year	From the date on which the contempt  ------- to have been committed.
9] CONTEMPT APPEAL	Sec. 19(4) (a)	30 Days.	-----
10] WRIT PETITIONS	Art. 226, 227 etc	No limitation but to be filed as early as possible.	------
11) REVISION PETITION in NCDRC	21 (b)	90	From the date of order in Appeal
12) REVIEW in NCDRC	22(2)	30	From the date of order or receipt of the order
13) Application for setting aside the ex-parte order or dismissal of complaint in default	22A	30	From the date of order or receipt of order

BMW hit-and-run exposé: Anand tenders unconditional apology to SC

NEW DELHI: Noted criminal lawyer R K Anand, who was held guilty of attempting to influence the course of justice in the infamous BMW hit-and-run case, has tendered an unconditional apology to the Supreme Court.
Anand tendered his "sincere and unqualified unconditional apology" for all acts imputed to him in the sting operation carried out by a news channel in 2007 and as observed in the Supreme Court judgement.

The reply by the advocate came on the apex court's show cause notice as to why he should not be given more punishment.

Anand pleaded before the court that his punishment should not be enhanced under section 12 of Contempt of Court Act.

The apex court had on July 29, 2009 upheld the conviction and stripping the status off senior advocate of Anand for contempt of court for attempting to influence the course of justice in the hit-and-run case.

A three-judge bench of apex court had asked as to why the quantum of punishment for Anand, who was the defence lawyer in the BMW case, should not be enhanced.

The apex court had held that the sting operation carried out by a news channel showing the defence and prosecution lawyers trying to influence controversial witness Kulkarni as not a typical case of trial by the media but undertaken in public interest.

The Delhi High Court had held guilty two senior advocates-- R K Anand and I U Khan, for obstructing administration of justice and, as a punishment, debarred them from appearing in courts for four months.

However, the apex court had set aside the conviction of Khan from charges of contempt of court.

SC slams India's tit-for-tat tactic on Pak prisoners

NEW DELHI: Holding that India lay great store in right to life, the Supreme Court on Monday ordered the government to immediately release 16 Pakistani prisoners who had completed their jail terms despite the Centre's argument that it was waiting for Islamabad to let off a similar number of Indian prisoners.

Commenting adversely on the UPA government's decision to put on hold the release of 16 Pakistanis even though they had completed their prison term in various state jails, a Bench comprising Justices Markandey Katju and R M Lodha said right to life had primacy in a country governed by rule of law and was not dependent on another country's action.

It refused to accept the Centre's stand that exchange of prisoners was a diplomatic process that required cooperation at both ends.

"Under the Constitution, detention even for a second beyond the permitted period of sentence is illegal. Now you (Centre) are putting a condition that until they return a similar number of prisoners we cannot send them back. If Pakistan does not do something right, does that mean we should also follow them," the Bench said.
A petition filed by J&K Panthers Party chief Bhim Singh and advocate B S Billowriya had alleged that over 30 Pakistanis were illegally detained in prisons in Agra, Jodhpur, Naini, Sangrur, Varanasi and Tihar despite completion of their sentences.

The 16 persons ordered to be released on Monday are Mohammad Ajmal, Mehrban Sathi, Mohammad Nawaz, Sajad Ali Jat, Shabir Ahmed, Shahzad Gul, Shahid Mehmood, Qudrat Ullah, Mohammad Farooq Raja, Dawood Ahmed Mughal, Faiz Ali, Mohammad Usman Shiksh, Zarar Baloch, Shahid Latief, Suhail Ahmed Kataria and Sher Khan. They have already been provided travel documents by Pakistan.

Petitioner Bhim Singh also requested the Bench to order expeditious completion of trial of the rest of the Pakistani prisoners even as the Centre informed the court that it had extended consular access to Pakistani high commission officials for establishing the identity of the prisoners.

It invited a strong rebuke from Justice Katju, who said, "It's easy to say complete trial within one year but you must understand our problem. In India there is great shortage of judges. We are performing under great pressure."

Switching to Hindi to drive home the point, Justice Katju said, "Koi jaadu ki chhadi hai hamare paas jo ek saal mein case sune (Do we have a magic wand to dispose of cases in a year)."
The Centre also informed the court that "a consular access programme was being finalised in consultation with the external affairs ministry and the Pakistani high commission to provide consular access to five Pakistani prisoners, including `security and high security' prisoners who have completed their sentence".

These five prisoners are Mohammad Abdullah aka Abu Murad, Mohammad Aslam Mughal aka Zahoor Ahmed, Manzoor Ahmad Sheikh aka Umer, Liaquat Ali Khan aka Mehboob Ali and Abdul Qadeer Khawaja.