Kerala High Court: In a batch of writ petitions challenging various provisions of the Kerala Clinical Establishments (Registration and Regulation) Act, 2018 (‘the Act’) and the Rules framed thereunder on grounds of unconstitutionality and arbitrariness, the Single Judge Bench of Harisankar V. Menon, J., held that an enactment cannot be struck down merely on account of alleged unreasonableness or arbitrariness. Accordingly, the Court dismissed the petitions, which included objections to provisions such as the mandatory display of fees charged by clinical establishments for their services.
Issues, Analysis and Decision
1. Can the State of Kerala enact the legislation in question, on the face of the Central Act, i.e. Clinical Establishments (Registration and Regulation) Act, 2010?
The Court noted that under Article 246(3), the State Legislature was empowered to enact laws concerning matters listed in List II of the Seventh Schedule to the Constitution. It was not in dispute that Entry 6 in List II—“Public health and sanitation; hospitals and dispensaries”—fell within the State’s exclusive legislative domain, and that the State had enacted the legislation in question pursuant to this entry.
The Court further observed that, under certain circumstances, even Parliament was entitled to legislate on State List subjects, namely: in the national interest under Article 249, or during a proclamation of emergency under Article 250.
The Court noted that under Article 252(1) of the Constitution, two or more States could, by resolutions passed by their Legislatures, empower Parliament to make laws on subjects ordinarily outside its competence, specifically those in the State List, provided such resolutions were passed unanimously by all Houses of the participating States’ Legislatures It was observed that the Central Act in question had been enacted on the basis of resolutions from as many as four States. Under Article 252(2), any State that did not initially participate could choose to “adopt” the legislation later by passing its own resolution.
The Court clarified that the Constitution did not mandate that States which chose not to adopt the central legislation were barred from independently legislating under Article 246 on the same subject matter. Furthermore, a reading of the Central Act, particularly Section 1(2) confirmed that the adoption mechanism for non‑sponsoring States was optional, not compulsory.
2. Are the impugned Act and the Rules made thereunder unconstitutional?
The Court reiterated that a legislative enactment can only be struck down on two constitutional grounds: (i) lack of legislative competence; or (ii) violation of fundamental rights or any other constitutional provision.
Applying this principle, the court found no legislative incompetence—neither in terms of Entry 6 of List II of the Seventh Schedule nor under Article 252. Moreover, the petitioners had not demonstrated any infringement of constitutional provisions or fundamental rights. Consequently, there was no basis to strike down the legislation.
After referring to Rajbala v. State of Haryana, (2016) 2 SCC 445, wherein it was held that an enactment cannot be struck down merely on account of the alleged unreasonableness/ arbitrariness, the Court concluded that the challenge against the constitutionality of the Act in question is, therefore, only to be rejected.
3. Are the provisions of the Act requiring the display of “fee rate” and “package rate”, without defining the “fee rate” and “package rate”, unenforceable?
The Court noted that the petitioners had contended that every clinical establishment was required to mandatorily display the “fee rate” and “package rate” for the services and facilities provided—including procedures—and that no clinical establishment was permitted to charge fees exceeding those displayed. They argued that the statute was silent on the definition of “fee rate” and “package rate,” and therefore the provisions were unenforceable.
However, the Court observed that both the Supreme Court and the Kerala High Court had previously issued clear directions enforcing these requirements:
- The Supreme Court, in its order dated 27-02-2024 in Veterans Forum for Transparency in Public Life v. Union of India1, had directed the Health Secretary to convene meetings with State and UT counterparts to finalize a concrete proposal for fixing these rates
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A Division Bench of the Kerala High Court, in Sabu P. Joseph v. State of Kerala, 2021 SCC OnLine Ker 2148, had already directed private hospitals in Kerala to display service rates as mandated under Section 39 of the Act read with Rule 19 of the Rules
Accordingly, the Court held that the petitioners could not challenge Section 39 on the grounds stated. Especially since the petitioners—Kerala Private Hospitals Association and Indian Medical Association—had actively participated as respondents before the Division Bench and had been heard before those directions were issued. Thus, the provisions remained enforceable.
4. Does the provision entitled the suspension/cancellation provide for unbridled powers on the statutory Authority?
The Court noted that the petitioners had raised concerns regarding the alleged unregulated and arbitrary powers conferred upon the statutory authority under the Act, 2018, particularly under Section 14(3), which allows for cancellation of registration citing “imminent danger to public health.” The petitioners argued that the term “imminent danger” was undefined, thereby leaving scope for misuse.
However, the Court clarified that Section 14(3) merely outlines the functions of the registration authority and does not itself grant the power of cancellation. The actual power of cancellation lies under Section 25, which contains specific conditions and safeguards, including the need for:
- Established grounds, such as non-compliance or negligent conduct causing harm,
- Issuance of a show cause notice,
- Provision of a reasonable opportunity to be heard, and
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Appellate and revisionary remedies under Sections 34 and 35, respectively.
The Court further emphasised that the proviso to Section 25(3), which allows immediate restraint on the operation of a clinical establishment in cases of imminent danger, can only be invoked upon recording reasons in writing, ensuring accountability and transparency.
In conclusion, the Court held that sufficient procedural safeguards were in place, and thus, no uncanalised or arbitrary power had been vested in the authority. Therefore, the provision could not be held unconstitutional or invalid on that ground.
5. Is there any arbitrariness with respect to Section 3 of the Act as contended?
The Court noted that the fifth issue arising for consideration pertained to the contention raised by the Indian Dental Association, regarding Section 3 of the Act. Section 3 provided for the establishment of the State Council. According to the petitioner, Section 3(2)(j)(i) allowed for the inclusion of “one representative from welfare organisations of the patients in the State.” A similar provision was made under Section 8 concerning the constitution of the Executive Committee. It was contended that the inclusion of such representatives in what were considered expert bodies was illegal and arbitrary. However, the Court was not inclined to accept this argument.
It held that both the State Council and the Executive Committee envisioned inclusiveness by allowing representation from the patient side as well, with such representatives to be nominated by the Government from various welfare organisations.
The Court further observed that representatives of some of the petitioners, such as the Indian Dental Association and the Indian Medical Association, were also included in the constitution of the State Council. Therefore, if service providers were granted representation, it naturally followed that service recipients should also be included. Consequently, the Court recorded the contention but rejected it as untenable.
6. Is the inclusion of “dentistry” in the impugned Kerala statute constitutional?
The Court noted that the final issue for consideration related to the contentions raised in the writ petition filed by individual dentists, challenging the inclusion of “dentistry” under the impugned Act. The petitioners contended that dentistry could not be equated with “public health and sanitation” or “hospitals and dispensaries,” and therefore, its inclusion in the legislation was beyond the scope of legislative competence.
The Court noted that the Central Act, under Section 2(h), defined the term “recognised system of medicine,” which does not cover “dentistry,” whereas it covers “Allopathy.”
The Court observed that the legislative competence of the State Legislature to enact laws on the subject of “public health and sanitation” had already been independently examined and upheld. In light of this, it held that the State Legislature was well within its authority to enact the impugned statute, including provisions relating to a “recognised system of medicine” as defined under the Act. The Court further opined that the term “recognised system of medicine” encompassed “modern medicine,” which would necessarily include dentistry as well.
The Court highlighted that the art of preventing, curing, or alleviating disease or pain through diagnosis, treatment, or surgical procedures amounted to the practice of medicine. It further stated that dentistry was merely a specialisation within the broader field of medicine, comparable to disciplines such as orthopaedics or obstetrics. Thus, it was beyond doubt that dentistry constituted a specialised branch of medical science.
The Court held that it was evident that dentistry formed an integral part of “modern medicine”, as clearly reflected in the definition provided under Section 2(j) of the impugned Act. Even assuming, for the sake of argument, that dentistry was not explicitly covered under the relevant Central legislation, the Court stated that nothing prevented the State Legislature from including dentistry within the scope of the term “recognised system of medicine” as defined in the State Act. Accordingly, the Court concluded that the inclusion of dentistry under Section 2(j) could not be faulted as lacking legislative competence.
The Court clarified that although it held that mere arbitrariness in a statute did not warrant declaring it unconstitutional, it was of the opinion that the petitioners should be granted the liberty to present the practical difficulties they faced before the Government. It was then for the Government to consider these difficulties and adopt such remedial measures as it deemed appropriate, balancing the interests of clinical establishments and the beneficiaries of the statute as a whole.
[Kerala Private Hospitals Association v. State of Kerala, WP(C) NO. 1365 OF 2019, decided on 23-06-2025]
Advocates who appeared in this case:
For Petitioner:.KURIAN GEORGE KANNANTHANAM (SR.), K.ANAND, TONY GEORGE KANNANTHANAM, NISHA GEORGE, GEORGE POONTHOTTAM (SR.), .KAVYA VARMA M. M.,.K.M.SATHYANATHA MENON, .KAVERY S THAMPI,.K.I.MAYANKUTTY MATHER (SR.), R.JAIKRISHNA,, R.SURENDRAN, KUM.S.MAYUKHA
For Respondents: C.UNNIKRISHNAN (KOLLAM), AJIT JOY SRI.E.G.GORDEN, SENIOR GOVERNMENT PLEADER. N.MANOJ KUMAR, STATE ATTORNEY, A.ABDUL RAHMAN (A-1917), ANEESH JAMES, S.KANNAN, SENIOR G.P.,N.RAGHURAJ (SR.),SAYUJYA RADHAKRISHNAN
1. Writ Petition(s)(Civil) No(s). 648/2020