MISHRA, CJ. - (1.) HEARD finally with the consent of learned counsel appearing for the parties.
(2.) C.W.P. No.3031/2007 has been filed by Mr. Vijay Mehta in which prayer has been made to direct the State of Rajasthan to ensure that he doctors prescribe medicines in their generic name and the doctors who fail to do so be appropriately dealt with by the Indian Medical Council and Rajasthan Medical Council. The Council be directed to take stern action against those doctors who act contrary to the provisions of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulation, 2002. Other prayers made in the writ application have not been pressed as such they are not being referred. The petitioner is District President of All India Trade Union Congress. The writ application has been filed considering high rocketing unreasonable price of medicines. The medicines are becoming beyond the reach of the people living below the poverty line. The medicines are not available at reasonable cost. The medicines are not being prescribed by their generic name but by their brand names whereas the doctors cannot do so. They are bound by the Regulations framed by the Medical Council of India to prescribe the medicines by their generic names. The doctors are trying to adopt different mechanism to sidetrack and justify their action of not prescribing medicines by their generic names. Reliance has been placed by the petitioner on Rajasthan State Standard Treatment Guidelines, 2006 which have been prepared by the Medical, Health and Family Welfare Department of the Government of Rajasthan with the help of outstanding doctors of Rajasthan in different specialties. It has been mentioned with respect to the prescription form in the Guidelines of 2006 thus, "The International Non-proprietary name of the drug should always be used. If there is a specific reason to prescribe a special brand, the trade name can be added. The Pharmaceutical form (for example 'tablet', 'oral solution', 'eye ointment') should also be stated." The petitioner has also relied upon a Booklet containing Orders for Purchase of Stores (Drugs & Medicines) issued by the Directorate of Medical & Health Services, Government of Rajasthan in which generic names of medicines have been used. The Medical Council of India with the previous approval of the Central Government and in exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956 (referred to hereinafter as 'the Act of 1956') has framed Indian medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 herein after referred to as 'the Regulations of 2002') which have been notified on 11.3.2002. Chapter-I of the Regulations of 2002 pertains to Code of Medical Ethics. Regulation 1.5 deals with the use of generic name of drugs and provides that every practitioner should as far as possible prescribe the drugs by their generic names. Regulations have been filed as Annex.3 to the writ application. It is further averred in the writ application that strange mechanism is being resorted to frustrate the policy of Government of Rajasthan. Some doctors have resorted to the mechanism of making a patient write that he does not want medicines to be prescribed in generic name. Photocopies of two prescriptions (P/7 & P/8) have been filed. In one of them, patient Nand Kishore was asked to write "GENERIC DAVAI NAHI LAGWANI HAI". These types of declarations are obtained in ignorance and pressure. The action amounts to violation of professional ethics framed by the Medical Council of India with the approval of the Central Government.
(3.) THERE is no different sets of standard for same drugs. Sections 21, 22 and 23 of the Drugs and Cosmetics Act, 1940 (referred to herein after as 'the Act of 1940') have also been referred to. The Government is bound to keep the price control of drugs so that they are available at affordable prices. Prayer has also been made to direct the Central Government to bring more drugs under the price control. It is contended that to ensure that the people of Rajasthan get the drugs at reasonable price, the Government of Rajasthan be directed to set up large number of outlets wherefrom the citizens of Rajasthan can get drugs at affordable price. In the reply filed by the Union of India, it is contended that the manner of labeling and packaging of drugs has been prescribed and penal action has to be taken against the violator. Under the amendment made in the Act of 1940 by Drugs and Cosmetics (Amendment) Act, 2008, the penal provision with respect to spurious, adulterated, misbranded, non-standard drugs, cosmetics, ayurvedic, siddha and unani drugs has been suitably enhanced to deter the delinquents from indulging in such anti social activities. The maximum punishment is that of life term imprisonment and fine of Rs.10 lakhs. Reply has been filed by the Medical Council of India contending that the Medical Council of India is a statutory authority constituted by the Central Government under the Medical Council of India Act, 1956. It is an expert body constituted under the provisions of the Act of 1956. It is an expert body constituted under the provisions of the Act of 1956. The Regulations of the Medical Council of India are binding and mandatory as held by the Hon'ble Apex Court in M.C.I. vs. State of Karnataka ((1998) 6 SCC 131). It is further contended in the reply filed by he Medical Council of India that in the discharge of their statutory obligations towards maintenance of highest standards in medical education in he country, by virtue of Section 33 of the Act of 1956, the Medical Council of India has been empowered with the prior approval of the Central Government to frame regulations. In exercise of the powers conferred under Section 20A, the Medical Council of India has prescribed standards of professional conduct, etiquette and code of ethics to be observed by the medical practitioners. accordingly, the Regulations of 2002 have been framed. Chapter-I contains the code of medical ethics, duties and responsibilities of physician in general. It is provided in Regulation 1.5 that the medical practitioner is bound to use the generic names of drugs. Regulation 1.5 provides thus, "Every physician should, as far as possible, prescribe drugs with generic names and he/she shall ensure that thee is a rational prescription and use of drugs." ;