A.K. SABHAPATHY Vs. THE STATE OF KERALA

JUDGEMENT

(1.) THIS original petition comes before us on a reference by a learned Judge of this Court, since the question of law involved is important and the impact of the decision on it on the medical profession would be serious. The petitioner is a member of the Kerala Branch of the Indian Medical Association, the Convenor of the I.M.A. Action Committee for Kerala and the Chairman of the Action Committee for Bihar DMS issue. It is in this representative capacity that he has approached this Court.

(2.) THE first respondent is the State of Kerala and the 2nd respondent, the Union of India. The 3rd respondent represents the Bihar D.M.S -holders' Association of Kerala and the 4th respondent is a Bihar D.M.S. Holder, awarded by the Bihar State Board of Homeopathic Medicine. Respondents 5, 6, and 7 got themselves impleaded since they were vitally interested in the outcome of this original petition.

(3.) THE grounds urged in support of the contentions of the petitioner are as fallows. The medical practice and other professions are covered by Entry 26 in List II of the Seventh Schedule of the Constitution of India. The Indian Medical Council Act, 1956, for short the Central Act, passed by Parliament covers this field. Section 15 of the said Act refers to the right of persons possessing qualifications in the Schedules to that Act to be enrolled in a State Medical Register. Persons who are entitled to practice modern medicine and surgery have to be enrolled in a State Medical Register. The schedules in that Act do not take in Bihar D.M.S Diploma and therefore D.M.S. holders are not entitled to practice allopathy. The provisions of the T.C. Act can be implemented only subject to the provisions of the Central Act. Ext. P8 notification issued under the first proviso to section 38 of the T.C. Act offends section 15 of the Central Act. The inconsistency between laws made by Parliament and by the State Legislature is a matter directly covered by Article 254 of the Constitution of India. When there is inconsistency, the State law should yield place to the central enactment to the extent of repugnancy. The first proviso to section 38 of the T.C. Act, in so far as it is repugnant to section 15 of the Central Act cannot therefore stand. In the absence of previous assent of the President, the first proviso to section 38 of the Act and Ext. P8 notification issued under it cannot have validity and cannot be enforced. The first proviso to section 38 of the T.C. Act does not contain any guidelines for its exercise. The proviso is thus arbitrary in nature and hence violative of the provisions in Article 14 of the Constitution. Exts. P2 and P3 are bad for the reason that they offend the provisions contained in the Central Act.