Dr. Fazlur Rahman vs The State of Tamil Nadu and another

The petitioner has filed the writ petition in W.P.No. 12428 of 1998 seeking to issue a writ of certiorarified mandamus, to quash the notice of the

second respondent dated 3.8.1998 purporting to be issued under Rule 1 of Part IV of the Code of Ethics, and to forbear the respondents from in

any manner taking penal action against the petitioner. He has also filed W.P.No. 12429 of 1998 seeking to issue a writ of declaration, declaring

Rule 1 of Part IV of ''Code of Medical Ethics'' of Tamil Nadu Medical Council as ultra vires the Constitution of India, illegal, inoperative and non-

est insofar as the petitioner is concerned.

The petitioner is a qualified medical practitioner acquired degree in medicine. He has also been designated as M.D. and Ph. D. in accupuncture.

An article was published in Tamil Health magazine, ''Family Health'' regarding the view of American Doctors who had expressed that children who

had been administered with polio vaccine are not totally immune to the said disease but are prone to subsequent attack of the said virus based on

their research. In view of the said publication, the second respondent issued a show cause notice dated 17.10.1997 calling upon the petitioner to

submit his explanation within 15 days from the date of receipt of the letter. In the said notice it is stated that the said publication amounts to an

advertisement for the purpose of obtaining patients or promoting his own professional advantage commending and directing attention of the public

to the petitioner''s professional skill and knowledge and it is contrary to public interest and discreditable to the medical profession. The petitioner

also submitted his explanation. After submitting his explanation, the petitioner has filed the above writ petitions.

The learned Senior Counsel appearing for the petitioner has submitted that the said Rule prohibits a person''s right to speak and so it offends

Article 19 of the Constitution of India. According to him, the petitioner is entitled to express his views which right has been guaranteed under

Article 19 of the Constitution and so the said Rule should be declared as unconstitutional. He has relied on the decision in S. Rangarajan Vs. P.

Jagjevan Ram and Others, in support of his submission.

It is not in dispute that the petitioner''s is a member of the Tamil Nadu Medical Council and the Medical Council has formulated the Code of

Medical Ethics. Part IV of the Code of Ethics had been laid down on the basis of the resolution passed at the extraordinary Special Business

Meeting dated 20.1.1975. The relevant Code reads as follows:

The action should be taken against the registered medical practitioners in cases where there is contribution in Tamil Journals of articles relating to

the description of the disease symptoms and treatment if they contained the name and designation or address or qualifications or photo of the

medical practitioners.

In the counter the second respondent has relied on this Rule also to sustain their right to issue the impugned show cause notice. On a reading of

the said Rules, under Part-IV, the purpose for framing such guidelines is only to prevent the. medical practitioners from solicitating of persons

directly or indirectly. Now the dispute is whether such Rule has to be construed as prohibition or infringement of petitioner''s fundamental right to

express his views.

It is not in dispute that the petitioner is a member of the Tamil Nadu Medical Council. It is also not in dispute that the said Council is entitled to

have the Code of Medical Ethics to regulate the conduct of the members. While doing so, the second respondent has formulated the said Rule. So,

it cannot be said that it amounts to prohibition or infringement of the petitioner''s fundamental right to express his views. But it is framed only to

regulate the conduct of the members of the association in accordance with Art. 19(6X) of the Constitution of India. Such a restriction cannot be

said to be unreasonable.

The decision cited by the learned Senior Counsel, namely S. Rangarajan Vs. P. Jagjevan Ram and Others, will not apply to the facts of the

present case. In the said case, the Apex Court has decided about the right of the general public and they are not bound by any Code of conduct.

It is not stated before me by the learned senior Counsel appearing for the petitioner that the said Council has no right to have the code of

conduct. The impugned Rule has been framed only to see that the medical practitioners are not soliciting patients directly or indirectly, which is

unethical to the profession.

Moreover, the Rule itself cannot be construed as a total prohibition with respect to the contribution of articles in Tamil Journals. The said

restriction would apply only if the said article contains the name and designation or address or qualifications or photo of the medical practitioners.

So, from the same Rule it is very clear that contribution of articles is not against the code of conduct but it is against the code of conduct only if it

contains the name and designation or address or qualifications or photo of the medical practitioners who contributed the articles. So, it is not

correct to submit that the said Rule prohibits the petitioner from expressing his views. So, the entire arguments on the basis that the said Rule

prohibits or infringe the fundamental right cannot be correct and the said argument is unsustainable. It is against the scope of the said Rule itself.

The learned Senior Counsel appearing for the petitioner has further submitted that the said Council has not taken action with respect to Other

doctors who have also contributed articles with addresses and photographs. I surprise to hear such an argument from the learned Senior Counsel.

Merely because the Medical Council has not taken action against some of the doctors, the petitioner cannot escape from his misconduct, if the

petitioner had committed such misconduct as alleged by the respondents, citing the abovesaid facts.

The abovesaid facts will clearly prove that the said Rule is valid one and enforceable in law. It does not prevent anybody from expressing

one''s views, but subject to the restrictions imposed therein in accordance with Article 19(6)(i) of the Constitution of India.

Since the said Rule is held to be valid, it is for the petitioner to appear for enquiry, if any to be held, and to establish his case on merits. At this

stage this Court interfere with the proceedings initiated by the respondents. Accordingly, these writ petitions are dismissed with the above

observations, with costs of Rs. l,000 each. Consequently, the connected W.M.P.Nos. are closed.