K.B.Nagur M.D(Ayu) vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 33 OF 2009

K.B. Nagur M.D. (Ayu.) ... Appellant

Versus

Union of India ... Respondent

WITH

I.A. NOS. 1, 3, 4, 6, 7, 8, 9, 10 AND 11

AND

WRIT PETITION (CIVIL) NO. 249 OF 2011

TRANSFER PETITION (CIVIL) NO. 736 OF 2011

TRANSFER PETITION (CIVIL) NO. 737 OF 2011

TRANSFER PETITION (CIVIL) NOS. 738-739 OF 2011

J U D G M E N T

Swatanter Kumar, J.

1. The Central Council of Indian Medicine (for short `the

Central Council') is a statutory body, constituted in terms of

Section 3 of the Indian Medicine Central Council Act, 1970 (for

short `the Act'). Section 4 of the Act mandates that election

under clause (a) or clause (b) of sub-Section (1) of Section 3 of

the Act shall be conducted by the Central Government in

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accordance with the rules as may be made in this behalf.

Where any dispute arises regarding any election to the Central

Council, it shall be referred to the Central Government whose

decision shall be final. Sub-section (1)(a) of Section 3 provides

that the Central Council shall consist of such number of

members, not exceeding five, as may be determined by the

Central Government in accordance with the provisions of the

First Schedule of the Act for each of the Ayurveda, Siddha and

Unani systems of medicine, from each State, in which a State

Register of the Indian Medicine is maintained, to be elected

from amongst themselves, by the persons enrolled on that

Register as registered practitioners of the respective systems.

Section 3(1)(b) of the Act states that one member each of the

Ayurveda, Siddha and Unani systems of medicine from each

University were to be elected from amongst themselves by the

members of the Faculty or Department of the respective

system of medicine of that University. The Central

Government could also nominate such number of members,

not exceeding thirty percent of the total members elected,

under the above mentioned clauses (a) and (b) to the Central

Council, from amongst persons having special knowledge or

practical experience in respect of Indian medicine, in

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accordance with Section 3(1)(c) of the Act. These elected

members are to elect their President, to be known as President

of the Central Council and a Vice-President for each of the

systems of medicine.

2. This elected Central Council, so constituted, is to

discharge various functions and duties as contemplated under

the provisions of the Act, which include the grant of

recognition to medical colleges/courses, maintenance of

education standards, appointment of Inspectors, conduct and

supervision of examinations, and even the withdrawal of

recognition, if necessary. A register is to be maintained of the

persons possessing requisite qualification in the type of

medicine which the member is eligible to practice and who

have been registered by the State Board and which register

has to be updated with regard to the qualification attained by

members of the respective professions subsequently.

3. As is evident from the above narrated provisions, the

Central Council discharges very significant and important

functions which would affect not only education in these three

systems but even their practice and treatment of thousands of

patients under these systems. The statute places an

obligation upon the Central Government to hold these

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elections and ensure that the Central Council works smoothly

and in accordance with the provisions of the Act. Section 7 of

the Act refers to the tenure that an elected member is entitled

to enjoy, upon his election to the Central Council. This

Section deals with the term of the Office of the President, Vice-

President and the members of the Central Council. The term

of office for all these persons is five years from the date of

election or nomination, as the case may be, or until a

successor has been duly elected or nominated, whichever is

longer. The latter part of this Section caused serious

impediment in the proper functioning of the Central Council

primarily for two reasons : (a) the Central Government did not

take appropriate steps to hold fresh elections and (b) the

persons who were elected and were interested in continuing as

such, took advantage of this provision and continued in office

far beyond five years as nobody was duly elected to replace

them.

4. The petitioner is an Ayurvedic doctor and holds the

degree of Ayurvedic Medicine, namely BAMS, has done his

post graduation MD (Ayurvedic) degree subsequently. The

petitioner claims that he held and still holds various offices in

different organizations dealing with Ayurveda system of

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medicine. He claims to be the General Secretary of the

Medical Association of India and member of the Governing

Body of All India Ayurvedic Congress Committee, New Delhi

and Indian Association of Blood Bank, Delhi. His aim is to

ensure proper functioning of the Central Council, which has

not been properly constituted and for which elections have not

been held for the last 20-25 years. The petitioner, having

failed to achieve any results at the hands of the Central

Government or the Central Council, despite the fact that he

was holding various offices directly connected with the

functioning of the Central Council, filed a petition under

Article 32 of the Constitution of India, 1950 (hereafter, `the

Constitution') with the following prayers :

"(a) An appropriate writ, order or direction directing

the Union of India to hold elections to the Central

Council of Indian Medicines and to constitute the

same in accordance with law;

(b) further direct the Union of India to fill up the

posts of any member who has completed five years

within one month;

(c) Strike down and quash the last clause in section

7 of Indian Medicine Central Council Act, 1970

reading as "or until his successor shall have been

duly elected or nominated, whichever is longer" as

contrary to the very Act, unconstitutional and

undemocratic and violative of Articles 14 and 16 of

the Constitution of India."

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5. Obvious from the above prayers is that the petitioner,

firstly, wants a direction to the Union of India to discharge its

statutory duty in terms of Section 3 of the Act, to fill up the

membership of the Governing Body of the Central Council with

regard to the members who have completed the term of five

years within the stipulated period and secondly, the striking

down of provision of Section 7 of the Act as unconstitutional,

undemocratic and violative of Articles 14 and 16 of the

Constitution. It is the contention of the petitioner that the

elected members of the Central Council are adopting delaying

tactics and even invoking the jurisdiction of the High Courts to

stop the holding of elections or the declaration of result of the

elections wherever held, notwithstanding the fact that there is

an alternative remedy available to them of filing an election

petition. The inaction on the part of the Government borders

on complicity and with the passage of time vested interests

have developed. There is a specific averment in the petition

that the Union of India and even the members of the Central

Council are not evincing any interest in the functioning of the

Central Council and a few unelected members, whose term

expired long back, are squatting for an inordinately long

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period as being erstwhile elected members of the Central

Council with the aid of language of Section 7 of the Act. To

contend that the delay is prejudicial to the working of the

Central Council and is also opposed to the spirit of Section 3

of the Act, they rely on the decision of this Court in the case of

Kishansing Tomar v. Municipal Corporation of the City of

Ahmedabad and Others [(2006) 8 SCC 352], which held that

the Election Commission should take steps by following due

process of law, but that too should be done in a timely manner

and in no circumstances, shall such elections be delayed, so

as to cause gross violation of mandatory provisions contained

in Articles 243-U of the Constitution. This buttresses their

submission that timeliness in conduct of elections is

mandatory.

6. Lastly, challenge has been raised to the following

portion of Section 7 of the Act as unconstitutional, violative of

Articles 14 and 16 of the Constitution:-

" or until his successor shall have been duly elected

or nominated, whichever is longer"

7. First and foremost, we will deal with the contention of

the provision being ultra vires of Articles 14 and 16 of the

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Constitution of India, raised on behalf of the petitioner.

Article 14 guarantees equality before law whereas Article 16

talks of equal opportunities in matters of public employment.

This concept of equality has to be patently infringed by a

provision before that provision or any part thereof, can be

declared as unconstitutional. The mere fact that there is

some inconvenience arising from the language of a provision

and its due implementation, cannot be a ground for declaring

a provision violative of fundamental rights. The impugned part

of Section 7 of the Act is intended to ensure that there is no

vacuum in the membership of the Central Council. The term,

as prescribed under Section 7 of the Act, is five years.

Elections are expected to be held within that period of five

years to ensure that immediately after expiry of the specific

term, the members holding the office quit and the newly

elected members assume the charge. However, there can be

situations where the elections in the entire country or in any

part thereof cannot be held within the prescribed time and for

valid reasons. It may even be because of the situation that is

created by the people who are holding the office of the

members of the Central Council for their personal ends. In

such cases also, the elections may be delayed. It is the

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former situation which is intended to be protected by the

challenged words of Section 7 of the Act. The legislative intent

is clear that there cannot be a vacuum in the working of a

statutory body and it cannot be rendered non-existent even for

a short period by lapse of membership term or otherwise.

Thus, to provide a safeguard for the interregnum period, of the

earlier members of the Central Council vacating their office

and newly elected members assuming their office, the

provisions of Section 7 have been enacted by the Legislature.

8. Still another aspect is that presumption of

constitutionality is always in favour of a legislation, unless the

contrary is shown. Furthermore, a Legislature, in enacting a

law, operates on a presumption, in law and practice, both, that

all other forums and entities constituted under one or other

Act would, in their functioning, act in accordance with law and

expeditiously. As it is a settled precept in the application of

economic principles, that all other things will remain the same

i.e., ceteris paribus, similarly, for the proper interpretation and

examination of a provision of a statute, all bodies must be

presumed to act effectively and in accordance with law.

9. A statute is construed so as to make it effective and

operative as per the principle expressed in ut res valeat potius

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quam pereat. There is, therefore, a presumption that the

Legislature does not exceed its jurisdiction and the burden of

establishing that the Act is not within the competence of

Legislature or that it has transgressed other constitutional

mandates, such as those relating to fundamental rights, is

always on the person who challenges its vagaries.

10. Here, we may also notice that there are two rules, of

most general application, in construing a written instrument

which are pari materia, applicable to statutes as well. First, if

possible, the written instrument shall be interpreted in light of

the above mechanism and secondly, such a meaning shall be

given to it, as may carry out and effectuate, to the fullest

extent, the intention of the parties or the framers of law. Of

course, such interpretation will be subject to the limitations of

uniformity in the meaning given to such expressions etc.

11. It is also a settled and deeply rooted canon of

constitutional jurisprudence, that in the process of

constitutional adjudication, the courts ought not to pass

decisions on questions of constitutionality unless such

adjudication is unavoidable. In this sense, the courts have

followed a policy of strict necessity in disposing of a

constitutional issue. In dealing with the issues of

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constitutionality, the courts are slow to embark upon an

unnecessary, wide or general enquiry and should confine their

decision as far as may be reasonably practicable, within the

narrow limits required on the facts of a case. From the above

discussion, it is clear that question of constitutionality of a

provision is a matter which the courts would venture to

examine only for valid, proper and sustainable grounds. We

do not see that the provisions of Section 7 of the Act, or any

part thereof, suffer from any legal infirmity, excessive

legislative power or violate any legal right of any person,

including the petitioner, much less a constitutional right.

Keeping the principle of strict necessity in mind, the courts do

not venture to examine the constitutional validity of a

provision and even strike down such provisions, if they are

constitutional and a Court does so only if the situation created

by such legislation is irremediable or unredeemable. None of

these circumstances exist in the present case.

12. In fact, it is not necessary for us to deliberate on this

issue at any greater length to notice that in a case under

Regulation 23 of the Dental Council (Election) Regulations,

1952, where it was provided that the President shall, no later

than 60 days before the date of occurrence of

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vacancy/vacancies, forward a notice by registered post to the

Registrar of each University concerned, requesting him to hold

an election not later than the date specified in the notice.

These regulations are framed under the Dentists Act, 1948.

Sections 6 and 7 of that Act deal with the tenure and election

of the President, Vice President and the Members of the Dental

Council of India. Section 6(1) of the Dentists Act further

provides that, subject to the provisions of that Section, an

elected or a nominated member would hold the office for a

term of five years from the date of his election or nomination,

or until his successor has been duly elected or nominated,

whichever was longer. The language of that Section is pari

materia with that of Section 7 of the Act. Challenge was raised

to the constitutional validity of Section 6(1) of the Dentists Act,

read with Regulation 23 of the Dental Council (Election)

Regulations, 1952, framed thereunder. A Constitution Bench

of this Court repelled the said challenge in the case of Dental

Council of India and Anr. v. Dr. H.R. Prem Sachdeva & Ors.

(1999) 8 SCC 471 and held as under:-

"7. A conjoint reading of the various provisions of the

Act and the Regulations referred to above go to show

that the term of office of the members of the Council is

five years from the date of the election or nomination,

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as the case may be. Section 6(1), however, also

provides that a nominated or elected member, after the

expiry of the term, may continue "until his successor

has been duly elected or nominated, whichever is

longer". The expression "whichever is longer" does

suggest the continuation after the expiry of the term.

Can it, however, be construed to mean that if the

authorities fail to act as per clauses (a) to (f) of Section

3, the member concerned can continue to remain in

office till perpetuity? In our opinion that could not be

the intention of the law-makers. Regulation 23 (supra)

does give an indication of what we have said above.

8. A reasonable interpretation of the provisions of

the Act and the Regulations would be that

elections/nominations to the Council should normally

be held/made once in five years. However, if for some

valid reasons the elections cannot be held during the

term of five years, the same should be held within a

reasonable time thereafter and the continuance in

office of the elected/nominated members should not

go on for perpetuity. The continuance in office, after

the expiry of the term, should only be a stopgap

arrangement to avoid a vacuum. The obligation to

nominate/hold elections is of various authorities

obliged to elect/nominate members to the Council

under clauses (a) to (f). The Act and the Regulations

are silent about the period during which

elections/nominations should be made/held as also

about the consequences of not holding the elections or

making nominations within the five-year term or soon

thereafter and this lacuna gives rise to unnecessary

litigation. We hope that the authorities concerned

shall take appropriate measures by amending the

provisions of the statute or the Regulations or frame

appropriate rules so that the ambiguity regarding the

maximum period, after the expiry of the five-year term

during which election/nomination should be

held/made is removed."

13. For the reasons recorded above, we follow the view

expressed by the Constitution Bench. Therefore, we have no

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hesitation in repelling the challenge raised by the petitioner

regarding the constitutionality of Section 7 of the Act.

14. Now, we shall proceed to deal with the other

contention, that the Central Government is liable to be

directed to hold the elections to the Central Council, as well as

to promptly fill up the vacancies occurring in the Central

Council due to efflux of time. This relief, to a large extent, has

become infructuous. During the pendency of this writ

petition, various orders had been passed by this Court,

directing the Central Government as well as the Central

Council to conduct elections in accordance with the provisions

of the Act. On 3rd July, 2010, both the Central Council and

the Union of India had agreed to complete the election process

within a period of six months from that date. It took some

more time to complete the process, but when the matter came

up before us for hearing on 18th July, 2011, and on

subsequent dates, we were informed that elections to the

Central Council have been completed in all the States.

15. The election process in regard to Siddha system of

medicine in the States of Andhra Pradesh, Himachal Pradesh

and Jammu & Kashmir had not been completed, though

elected candidates under the Unani and Ayurvedic systems

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had been notified. This was because there were no Siddha

practitioners in those states. In all other States, the election

process in regard to the three medicine systems i.e., Ayurveda,

Unani and Siddha had been completed and the elected

candidates duly notified.

16. It was also pointed out before us that the Central

Government had not made its nomination in terms of Section

3(c) of the Act, under all the three systems of medicine.

17. We may notice that this petition has been rendered

infructuous, though to a limited extent. Section 3 of the Act

imposes a statutory obligation upon the Central Government

to hold elections to the Central Council, in accordance with

the statutory provisions, which we have discussed above.

Furthermore, the Central Government is responsible for

nominating such number of members not exceeding 30 per

cent of the total members elected under Sections 3(1)(a) and

3(1)(b) of the Act to the Central Council. In other words, the

Central Government has a major role to play in the

constitution, establishment and carrying on of activities by the

Central Council. This is an onerous and significant duty. We

cannot understand any reason whatsoever for the Central

Government not to perform its statutory duties, particularly

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when it concerns with the systems of medicine catering to a

country of one billion people. The Court would take judicial

notice of the fact that a large number of people depend upon

these systems of medicine for treatment of various diseases.

The standards of education as well as the professionalism in

practice of medicine in these fields is bound to suffer a

setback, if the Central Government fails to exercise its powers

and discharge its functions and duties in accordance with law.

As already indicated, the Central Council exercises

supervisory, administrative and regulatory powers in relation

to education and practice of all these three systems. If the

Central Government wishes to exercise such control over

statutory bodies discharging important and diverse functions

in the field of medicine, then it is undoubtedly expected of the

Central Government to discharge its functions and duties

without failure and on time. It cannot justify its conduct in

unduly delaying the proper constitution of such bodies in

accordance with the provisions of the statutes and create faux

pas which shall prejudicially affect all concerned, including

the people at large.

18. We are conscious of the fact that this Court has to

adopt a purely judicial approach. The Constitution and the

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Rule of Law are the only supreme powers in any democracy

and no higher duty rests upon this Court, than to enforce, by

its decree, the will of the Legislature, as expressed in a statute,

unless such statute is plainly and unmistakably in violation of

the Constitution or Rule of Law.

19. In the case of Kishansing Tomar (supra), this Court

while dealing with the question of revision of electoral rolls by

the State Election Commission, noticed that the Election

Commission shall complete the election before the expiration

of the duration of five years' period as stipulated in Clause (9)

of Article 243-U of the Constitution and not yield to situations

that may be created by vested interests to postpone elections

beyond the stipulated time. The State Election Commission

shall take steps to prepare the electoral rolls, by following due

process of law, but that too, should be done in a timely

manner and in no circumstances, shall the elections be

delayed so as to cause gross violation of the mandatory

provisions contained in Article 243U of the Constitution.

Further, while drawing a distinction between severe man-made

calamities such as rioting, breakdown of law and order or

natural calamities, which could distract the authorities from

holding elections to the Municipality and other reasons for

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delay, this Court noted that the former are exceptional

circumstances and under no other circumstance would the

Election Commission be justified in delaying the process of

election after consulting the State Government and other

authorities. This Court laid significant emphasis on the

independence of the State Election Commission and expected

all other authorities to fully cooperate, and in default, granted

liberty to the State Election Commission to approach the High

Court and/or the Supreme Court, as the case may be for

relief/directions. However, no final or time-bound directions

were issued, in the petition above-referred, because election to

the Ahmedabad Municipal Corporation in that case had

already been held in the meanwhile.

20. Statutory or constitutional independence is a pre-

requisite to the proper functioning of such statutory bodies.

Their appropriate constitution, in accordance with the

provisions of the statute is mandatory. All concerned,

including the Central and State Governments have the onus to

discharge their duties and functions effectively and

expeditiously, in coordination and within the time specified.

No Court can permit any authority, much less the Central or

State Government to frustrate the statutory requirements of a

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provision and also the very object of an Act.

21. The language of Section 7 of the Act is intended to

provide for a situation which is interregnum by its very

existence. Whatever be the methods adopted, by whichever

agency including the Government, to extend beyond a regular

term the tenure of members, would not only be impermissible

in law, but would also be illegal.

22. As already referred above, the provisions of Section 3

are concerned with the constitution of the Central Council by

election and nomination. Section 4 requires the Central

Government to conduct elections in accordance with the

Rules. Section 7 provides the term of office. Once these

provisions are read together, it is clear that the legislative

intent is that election to the Central Council should be held

within the period of five years which is the term of office

prescribed for the elected and/or nominated members.

However, if for any reason, the elections are not held and

newly elected members do not join their office immediately

after expiry of five years, then the latter part of Section 7

comes into play. This is an extra-ordinary situation that the

elected members continue beyond their prescribed term

because the elections had not been held and newly elected

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members cannot join the Central Council. Though, no outer

limit has been specified by the Legislature for which such

previously elected members can continue in office, but this

certainly cannot be for indefinite period. For whatever reason,

once recourse to this exceptional situation becomes necessary,

then the concept of reasonable time would come into play. It

is a settled rule of statutory interpretation that wherever no

specific time limit is prescribed, the concept of reasonable time

shall hold the field for completing such an action. The courts

in the process of interpretation can supply the lacuna, which

would help to achieve the object of the Act and the legislative

intent and make the provisions effective and operative.

23. Neither the Government, nor the Central Council can

abjure their obligation to complete the election process within

five years, or in any case, within a reasonable time thereafter.

Thus, in our considered opinion, a period of three months

would be more than sufficient for completing the election

process in accordance with law. This time limit shall operate

only and as and when the Central Government and the

Central Council jointly and severely are not able to hold the

fresh elections within the term of office of the previously

elected members, i.e., five years from the date on which the

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members first assumed office.

24. The words of Section 7 of the Act are intended to

operate in an extra-ordinary situation, as the normal course

should be that the Central Government hold the elections

within a period of five years from the date of notification of the

elected candidates for the previous tenure. Even where

recourse to this exceptional situation becomes necessary, even

there, the concept of reasonable time would come into play, in

a situation where no definite period has been prescribed by the

Legislature itself. The courts can always supply such lacuna

in the interpretation of provisions of a law so as to achieve the

object of the Act particularly when such interpretation would

be in consonance with the legislative object of the statute.

Thus, in our considered opinion, a period of three months

would be more than sufficient time for completing the election

process, in the event of exceptional circumstances and if the

elections had not been commenced and completed within the

period of previous tenure of five years, as is the requirement of

law, and the Government cannot abjure its obligation to do so

within a maximum period of three months.

25. For the reasons afore-recorded, we partially allow this

Public Interest Litigation, with the above observations and the

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following directions:-

(A) Section 7 of the Indian Medicine Central Council Act,

1970 or any part thereof is neither ultra vires nor

violative of Articles 14 and/or 16 of the Constitution of

India.

(B)We hereby mandate that the Central Government shall

discharge all its duties and functions as contemplated

under Sections 3, 4 and 7 of the Indian Medicine

Central Council Act, 1970, without default, delay and

within the required intervals. We make it clear that it

is the obligation of the Central Government to hold

election to the Central Council within the period of five

years i.e., before expiry of , the term of office of the

President/Vice-President and Member of the Central

Council, as provided under Section 7 of the Act.

(C)In the eventuality of exceptional circumstances, if the

Central Government is not able to hold elections

within the period of the prescribed term, it shall

complete the process within a reasonable time

thereafter and in no case, exceeding three months

from the date on which the term of the members in

office expires.

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(D)No elected Member, under any of the three systems of

medicine, Ayurveda, Unani or Siddha shall hold the

office of the President, Vice President or Member,

beyond a period of three months from the expiry of

their term.

(E)We direct the Secretary, Ministry of Health and Family

Welfare and the President of the Central Council to

circulate copies of this judgment, for strict compliance

by all concerned.

26. During the pendency of this writ petition, another writ

petition being Writ Petition (Civil) No. 249 of 2011, was filed

with identical prayers. In view of this judgment, that writ

petition has been rendered infructuous and is liable to be

dismissed as such.

27. I.A. No. 8 is an application for intervention in the

present writ petition, by one Dr. Vinod Kumar Chauhan. I.A.

No. 9 is an application by the same party, with the prayer that

the election to Central Council, held from the State of

Uttarakhand be set aside and that fresh selection process be

ordered. I.A. No. 9 is dismissed, with the liberty to that

petitioner to approach the court of competent jurisdiction,

seeking appropriate relief and in accordance with law.

24 28. In view of the order of I.A. No. 9, I.A. No. 8 does not

survive and is dismissed as such.

29. Transfer Petition (Civil) No. 736 of 2011 is also

dismissed, with liberty to the petitioner to pursue his remedy,

if the cause of action survives, before the concerned High

Court.

30. All Transfer Petitions and Interlocutory Applications

for impleadment are hereby dismissed. Other applications do

not survive for consideration.

31. Before we part with this judgment, we would like to

place on record our appreciation for the valuable and able

assistance rendered by the learned ASG and all counsel and

assisting counsel appearing in the present PIL.

..................................

CJI.

[S.H. Kapadia]

..................................,J.

[A.K. Patnaik]

..................................,J.

[Swatanter Kumar]

New Delhi;

February 24, 2012

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