Kerala High Court: N.Nagaresh, J., upheld the right to practice of homoeopathic practitioners and clarified that the Homeopathy doctors can prescribe adjuvant medicine for Covid-19.
The petitioner, a Homoeopathic Practitioner had sought the issuance of writ of Mandamus directing the State to ensure that the petitioner was not obstructed in any manner from performing his profession. The petitioner had 17 years of 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 had also claimed to have treated and saved serious Covid-19 patients in foreign countries. However, when he attempted to treat Covid-19 patients in Kerala, he was informed by the State Health Department that action would be taken against him under the Disaster Management Act.
The petitioner contended that when the Supreme Court had already upheld the right of Homoeopathic Practitioners to treat Covid-19 patients in AKB Sadbhavana Mission School of Homoeo Pharmacy v. Union of India, (2021) 2 SCC 539, invoking provisions of the Disaster Management Act against the petitioner was highly arbitrary and illegal. Hence, the action of the Governmental authorities offended the right of the petitioner guaranteed under Article 19(1)(g) of the Constitution.
The State, on the other hand, argued that the Government has approved the action plan of the Homoeo Department for giving Homoeo medicines as prophylactic, however, the Homoeopathic Practitioners should not make any claims regarding effectiveness of particular medicines in curing Covid-19.
Analysis and Findings of the Court
Noticeably, Section 26 of the Homoeopathy Central Council Act, 1973 provides that every person whose name is for the time being in force borne on Part I of the Central Register of Homoeopathy, shall be entitled to practice Homoeopathy in any part of India and that the Section 34 of National Commission for Homoeopathy Act, 2020 provides that no person other than a person enrolled in the State Register or the National Register shall be allowed to practice Homoeopathy as a qualified practitioner. Thus, a person whose name is entered in the State Register or Central Register has a right to practice Homoeopathy. The State Medical Protocol issued by Kerala Government stated that Covid-19 affected persons should not be treated by anybody other than the Government and those authorised by the Government. However, as per the Advisory issued by Ministry of AYUSH there was nothing prohibiting the qualified medical AYUSH practitioners (which term would include Homoeopathy Practitioners also) to prescribe immunity booster mixture or tablets.
On 06-03-2020, the Government of India, Ministry of AYUSH took a system wise approach towards Covid-19 treatment and recommended under the head ‘Symptom Management of Covid-19 like illnesses’, that various medicines which found to be effective in treating flue like illness are Arsenicum Album, Btyonia Alba, Rhus Toxicodendron, Belladonna, Gelsemium, Eupatorium Perfoliatum. All these medicines should be taken in consultation with qualified physicians of AYUSH systems. Further, it had been mentioned that symptom management of Covid-19 like illnesses under sub-head ‘Homoeopathy’ can also be given as add on to conventional care and all these medicines should be taken in consultation with qualified physicians of AYUSH systems.
Subsequently, the Government of Kerala issued a government order approving the Action Plan outlining the homoeopathy strategies for prevention and management of Covid-19 in Kerala. The appended Action Plan provided details of strategy, setting up of communication platform, establishing necessary linkages, preparedness and readiness, implementation of the program and distribution of Homoeopathy Immune Booster. However, it was mentioned in the said Action Plan that the target population for the action plan does not include Covid-19 patients, their contacts or those under quarantine.
Relying on the decision of Supreme Court in AKB Sadbhavana Mission School of Homoeo Pharmacy’s case wherein the Court had held that “it is clear from the advisory dated 06-03-2020 and the specific stand taken by the Ministry of AYUSH that Homoeopathic Medical Practitioners are constrained to prescribe homoeopathic medicines only as Immunity Booster…what is permissible for Homoeopathic Medical Practitioner in reference to Covid-19 symptomatic and asymptomatic patients is already regulated by the advisories and guidelines”; the Bench arrived at the following conclusions:
- A qualified Homoeopathic Physicians can prescribe and dispense preventive and prophylactic homoeo medicines, for preventing Covid-19.
- The 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.
In view of the above conclusions, the instant petition was disposed of directing the State to ensure that the petitioner was not obstructed in any manner from practising Homoeopathy as per the Guidelines issued by the Ministry of AYUSH, Government of India and judgment of the Supreme Court.[Jayaprasad Karunakaran v. Union of India, WP(C) NO. 11555 OF 2021, decided on 02-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Adv. V.T.Madhavanunni And M.S.Vineeth
For Union of India: ASGI P. Vijayakumar