white paper released by IMA H.Q. ON MCI DISSOLUTION ISSUE:

White paper on Medical Council of India

1. Medical Council of India is a statutory body to regulate medical education and practice. MCI has done yeoman service to the country and has nurtured the medical profession. Indian doctors have achieved international recognition for their efficiency and professional caliber.

2. Medical Council of India was established in 1934 under the Indian Medical Council Act 1933. Responding to the growing needs of medical education the same was amended in 1956. The act governing the functioning of MCI was further amended in 1958,1964, 1993,2001 and 2004. This shows the robustness and dynamic character of MCI.

3. Set out in the above context Medical Council of India has been functioning well and catering effectively to the very objectives for which it had been constituted. Year 2009 was observed as the Platinum Jubilee year of the Medical Council of India to commemorate 75 years of its meaningful and purposive existence.

The Hon’ble Supreme Court in the year 2002 appointed an Adhoc Committee of three eminent medical educationists including Dr. P.N. Tandon, Dr. Rangabhashya and Dr. Mrs. S. Kantha to oversee and monitor the functioning of Medical Council of India for the purposes of enhancement of its credit and credence.

The said Committee in its exhaustive reports, which have been submitted to the Hon’ble Supreme Court and have also been made known to Ministry of Health and Family Welfare, Government of India, has categorically brought out that inspite of various constraints the Medical Council of India has fulfilled its targeted objectives in a meaningful and effective manner for the period from December, 2002 to March, 2009. The said Committee has also justified the need of extension of a meaningful and bonafide autonomy to the Medical Council of India specially in the context of the fact that quite many negative recommendations made by the Medical Council in regard to starting of new medical colleges were observed to have been overruled by the Government of India without assigning any reasons.

4. A perusal of the existing provisions of Indian Medical Council Act, 1956 would categorically bring out that Government of India, has substantial and reasonable control on the affairs of the Medical Council of India. (Annexure 1)

a. In terms of Section 3 of the Act, the Government of India, is required to constitute the Medical Council of India

b. In terms of Section 4, the Government of India, is vested with the appellate jurisdiction in regard to all the electoral matters pertaining to the constituting the Medical Council of India.

c. In terms of Section 32, Government of India, is singularly empowered to frame rules and notify them, which are binding to the Medical Council of India.

d. In terms of Section 33 the Regulations on various matters which have been catalogued in the section can be notified by the Medical Council of India only by prior approval of the Government of India.

e. In terms of Section 30, the Government of India, can constitute a Commission of Enquiry with the powers of the summary trial in case it is observed that the council is not functioning in a mode and manner towards fulfillment of its assigned objectives.

f. It nominates 37 members directly and in consultation with the state Governments

g. No person can establish a medical college or open a new course or increase admission capacity except with explicit previous permission of the central Government.

h. Central Government directly controls the post graduate medical education committee of MCI by nominating six out of nine members.

Apart from this the Medical Council of India is also accountable to the financial and audit mechanisms by the Controller and Auditor General of India and also is required to present its functioning reports to the Parliamentary Standing Committee of Health and Family Welfare.

5. The council is contemplated by the parent act as a representative body representing the medical practitioners from all the states across the country. The council so constituted is to be a body corporate by name ‘Medical Council of India’ and it has perpetual succession and common seal as per Section 6 of the Act.

6. Section 3 of the medical council act demonstrates that the Medical Council is to be representative of the medical practitioners all over the country. It provides for a representative from each State and from the Universities as well. The President and the Vice President are to be elected. The Medical Council is contemplated as having a separate juristic personality. It is not contemplated to be a mouth piece of the Central Government. It is contemplated as a body representing the voice of the medical practitioners from all over the country.

7. The ordinance 2010 provides for a statutory supersession of the Medical Council at least for a period of one year and brings into place a Board of Governors till the next elected council is brought into being. If there are circumstances warranting supersession of the Medical Council, then the competence of the Parliament to bring about an amendment to the statute providing for a supersession of the Medical Council cannot be doubted. (annexure 2)

8. The only aspect which is suggestive of an irregular exercise of the power in the matter of issuance of the Ordinance is whether the power to issue an ordinance can be exercised in such a manner to bring about an amendment completely inconsistent with the provisions of the parent statute; Whether by issuance of an ordinance the parent statute or at least good portion of the same can be rendered ineffective is the associated question which arises for consideration.

9. As stated above, the provisions of the parent act would show that the Medical Council is contemplated as a body representative of all the states in the country and all the universities as well. The body therefore would be representative of a plurality of the opinion emanating from the different states in the country.

10. Thus, keeping in mind the backdrop provided by the parent statute, can the President by resorting to the exercise of the ordinance making power, provide for the emergence of a pro tem body exercising all the powers of the Medical Council without any concomitant obligations and without such pro tem body, in any manner, acting as a mouth piece for the different states in the country. The further moot question is whether by resort to the ordinance making power under Article 123, the provisions of the parent statute can be annulled in such a drastic manner as to provide for a pro tem body, to function as per the dictates of the Central Government in which the State Government have absolutely no say whatsoever. The provisions of the ordinance providing for a pro tem Board of Governors to perform as a Medical Council and the provision which provides for a supersession of the Medical Council in its entirety is clearly inconsistent with the legislative intention reflected from the provisions of the parent act.

11. There might have been emergent reasons for the supersession of the offices of the President and Vice President. But it does not follow as a consequence that there were circumstances justifying the issuance of an ordinance, terminating the office of the members of the Medical Council from different States and Universities. It should be asserted that there were no circumstances within the meaning of Article 123 of the Constitution rendering it necessary for the President to promulgate an ordinance for the supersession of the entire Medical Council of India.

12. Dissolving the entire body means casting aspersions on the conduct of all the members and all medical professionals in general. It seems that the government has made up its mind to dissolve the MCI and take control. Did the government dissolve the Securities and Exchange Board of India (Sebi) when a major racket was unearthed?. The six-member body which will function directly under the health ministry, will effectively take away the independence of a medical education regulatory mechanism. Politicians and bureaucrats have taken over a professional body.

13. The said dissolution has to be evaluated in the context of the fact that, the Government of India has proposed a Bill titled “National Accreditation Regulatory for Higher Education Institutional Bill 2010, before the Loksabha on 3rd May, 2010, wherein in terms of Section 50 of the said Act it is explicitly provided that :

50(1) If at anytime the Central Government is of the opinion-

(a) that on account of circumstances beyond the control of the Authority, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or

(b) that the Authority has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act; or

(c) that circumstances exist which render it necessary in the public interest so to do, the Central Government, may be notification and for reasons to be specified therein, supersede the Authority for such period, not exceeding six months, as may be specified in the Notification.

Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Authority to make representations against the proposed supersession and shall consider representations, if any, of the Authority.

Sub-clause 4 of the same Section reads as under :

“The Central Government shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.”

14. This mandates that the mechanism of supersession of a authority would be in terms of a Notification, which will be citing a reasons for supersession and the same will be resorted to by giving due opportunity of hearing to the concerned authority in terms of the binding principles of natural justice.

15. In the present context the Ordinance dated 5th May, 2010, which has come into force at ones has been issued without even adherence to the principle of natural justice as has been contemplated by the Government of India, in terms of the Bill, which is before the Parliament for consideration. Even the reasons for supersession have not been cited. Further in the very Ordinance the Government of India, has taken powers for itself for issuance of directions, which will be binding to the Medical Council of India on matters of public interest and what would constitute public interest the authority for interpreting the same would be vested solely with the Government of India.

16. This is not the first time that the Government has made such a move. In 2005, the then Union health minister, Dr Anbumani Ramadoss, tried unsuccessfully to bring in a legislation to dissolve the MCI and set up another council under the control of the health ministry. The Indian Medical Association, along with other professional bodies, opposed this move. Nevertheless, the legislation was drafted and placed before the cabinet for approval to bring in an ordinance. The Prime Minister’s Office referred this bill to a standing committee of Parliament on health. The standing committee rejected it on the ground that any regulatory body should be devoid of Government control or it would lose its independent regulatory mechanism. (annexure 3)

17. The said Bill also contemplated dissolution of the existing Council, putting an embargo / restriction on the terms of the members of the council including President and Vice-President vesting Government of India, with the Authority to remove President, Vice President and members of the Council and also taking up the authority and jurisdiction for issuance of binding directions to the Medical Council of India and failure of compliance thereof resulting in removal of the Office bearers including members of the Council.

18. As a matter of fact, the very intent which was incorporated in the Indian Medical Council Amendment Bill, 2005 has manifested itself in the Amendment effected through issuance of an Ordinance dated 15th May, 2010.

It is pertinent to note that the Indian Median Council Amendment Bill, 2005, was referred to the Standing Committee of the Parliament of Ministry of Health and Family Welfare and an exhaustive report thereof has not only unanimously observed that the said Amendment Bill prejudicial to the autonomy of Medical Council of India, but has also been said to be an attempt by the Government of India to centralize the powers with itself and reduce down a Body of Experts created for a distinct purpose by a Parliamentary enactment into a Department working under the Government of India.

19. Has the move been made because of an ongoing conflict between the two central Government ministries — education and health— over who should govern higher medical education ? The onus of overseeing medical education in India continues to be a bone of contention between the government of India’s Health Ministry and Human Resource and Development (HRD) Ministry. As early as June last year, the President of India had announced that both the proposed National Commission for Higher Education (NCHER) and the National Council for Human Resources in Health (NCHRH) would function under the purview of the Health Ministry. The recent draft of the (NCHER) bill proposes to bring medical education in India under the purview of the Union Human Resource and Development Ministry. The health ministry however, is keen on retaining medical education under its wing— NCHRH. This would mean that the MCI will be a body that will deal with the issue of ethics in the profession, standards for practitioners and registration of medical professionals. It would regulate medical professionals, much like other professional councils such as the Bar Council of India. The Government is likely to bring medical education under the ambit of the proposed National Commission for Higher Education and Research (NCHER), being piloted by the Human Resources Development Ministry.

20. If the Government is committed to weeding out corruption, it should have first addressed the root causes. There is an acute shortage of medical seats. It should immediately go about addressing this issue and increase the number of medical colleges, which will also address the issue of shortage of doctors.

21. The Medical Council of India is the independent regulator for doctors in India. It’s statutory purpose is to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine. MCI does this by controlling entry to the medical register and setting the standards for medical schools and postgraduate education and training. It also determines the principles and values that underpin good medical practice and take firm and fair action where those standards have not been met.MCI has strong and effective legal powers designed to maintain the standards the public have a right to expect of doctors. Patients' interests are best served by independent, accountable regulation. MCI must be independent of Government and be publicly accountable for the discharge of its functions.

22. Indian Medical Association

a) condemns dissolution of MCI as arbitrary exercise of power.

b) demands reconstitution of MCI immediately as per provisions.

c) demands restoration of the independence of MCI.

d) demands retaining of MCI in its present character and form.

e) demands two representatives for MCI to be elected from central council of IMA.

Dr. G. Samaram Dr.. Dharam Prakash

National President Hony. Secretary General