This blog post is a part of a multi-part series. In the first part, we had written about the salient features of the National Medical Commission Act, 2019 (NMC Act) and the regime proposed by it. In this part, we will analyse some of the contentious issues in relation to the NMC Act.
Independence of Autonomous Boards:
The NMC Act has made provisions for the constitution of 4 (four) autonomous boards, namely, the Under-Graduate Medical Education Board; the Post-Graduate Medical Education Board; the Medical Assessment and Rating Board; and the Ethics and Medical Registration Board (Boards). However, in terms of Section 16(1) of the NMC Act, these “autonomous” Boards will remain under the overall supervision of the National Medical Commission (NMC). Section 16(2) of the NMC Act further provides that each of the abovementioned Boards shall be an autonomous body, however, in the same breath, it also dictates that these Boards shall carry out their functions subject to regulations made by the NMC. Furthermore, the Central Government has been entrusted with the responsibility of appointing the President and Members of these Boards on the recommendation of a ‘Search Committee’, which itself is comprised majorly of Central Government appointees. In terms of Section 23(1) of the NMC Act, the presidents of the Boards have been allowed only such administrative and financial powers, “as may be delegated” by the NMC.
The Central Government has been given the power to make rules regulating the salary, allowances, and other terms and conditions of service of the president and members of the Boards, and the allowances payable to the part-time members of the Boards (in terms of Section 56(2)(k) of the NMC Act), and the NMC has been empowered to regulate the manner of functioning of the Boards (in terms of Section 57(2)(k) read with Section 10(1)(d) of the NMC Act).
It may be argued that the autonomy given to the Boards as discussed above is somewhat of a misnomer, given the fact that the finances and functioning of the Boards are under the control of the NMC and the Central Government. The Boards are, in their true sense, mere extensions of the NMC, with the NMC even exercising appellate jurisdiction with respect to their decisions.
Drafting Choices and Typographical Errors:
Based on even a prima facie reading of the NMC Act, any reader would be able to point out certain unique choices made by the drafters of this legislation. This is most evident in the decision to leave certain terms of massive consequences undefined and vague. A clear example of this is in the provisions dealing with Community Health Providers (CHP). Important terms such as “mid-level” and “primary and preventive healthcare” have been left undefined. While this may be a conscious decision to allow the drafters of regulations in this regard, a wide berth in terms of actual interpretation, this could cause some level of confusion among stakeholders.
Another glaring issue is in Section 32(3) of the NMC Act. This provision is part of Section 32, which under sub-section 1 empowers the NMC to grant limited licence to practice medicine as a CHP. Sub-section 3 on the other hand provides that a CHP “may prescribe specified medicine independently, only in primary and preventive healthcare, but in cases other than primary and preventive healthcare, he may prescribe medicine only under the supervision of medical practitioners registered under sub-section (1) of Section 32”. Read in the present form, this provision might be read as suggesting that a CHP can, in fact, prescribe medicines in cases other than primary and preventive healthcare provided that the CHP is under the supervision of another medical practitioner. Such a reading, apart from being logically dubious, would also defeat the purpose behind the creation of CHPs and put them on an equal footing with traditional, duly qualified doctors.
This confusion may be a direct legacy of the erstwhile NMC Bill of 2017, whose Section 32(1) actually dealt with the inclusion of the name and qualifications of persons in the National Register or the State Register. Most likely, the drafters had intended to refer to Section 31(1) of the NMC Act, which deals with the maintenance of a National Register containing the name, address, and all recognised qualifications possessed by a licensed medical practitioner. This anomaly existed even in the NMC Bill that was introduced in the Parliament. However, it went unnoticed by all legislators. In such a situation, everyone would be best served if an amendment is made in this regard as soon as possible.
Dilution of Principle of Federalism
The NMC Bill was vehemently opposed by many State Governments on the ground that it was in violation of the principle of federalism. It must be noted that “Legal, medical and other professions” is Entry 26 of the Concurrent List (List III of Seventh Schedule of the Constitution). Therefore, in terms of Article 246 of the Indian Constitution, both the Parliament and State Legislatures are empowered to legislate of this subject. While it is also true that in terms of Article 254 of the Indian Constitution, the law made by the Parliament on a Concurrent List subject will prevail over a State law, it must be remembered that cooperative federalism is a constitutionally and judicially recognised principle.
The Hon’ble Supreme Court, in a recent ruling in Government of NCT of Delhi Vs. Union of India and Ors., (2018) 8 SCC 501, has unequivocally held that the Union and the States need to embrace a collaborative/ cooperative federal architecture for achieving coordination. In collaborative federalism, the Union and the State Governments should express their readiness to achieve a common objective and work together to achieve it. Both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be a perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them.
As per the NMC Bill, as passed by the Lok Sabha on July 29, 2019, the NMC was to comprise of 25 members appointed by the Central Government, including 1 Chairman, 10 ex officio members and 14 part-time members. Out of the 14 part time members, 11 were to be appointed on a rotational basis from among the nominees of the States and Union Territories. However, in a bid to assuage the objections raised by the States, the number of part time members was increased to 22, out of which a total of 19 members will now be nominated by States and Union Territories. The NMC Bill was passed by the Rajya Sabha with inter alia the abovementioned amendment and the Lok Sabha passed this amended NMC Bill on August 5, 2019.
This move may have pacified the States for the time being, but serious concerns regarding the dilution of federalism as a concept in the NMC still remain.
A report of the Parliamentary Standing Committee on Health and Family Welfare (Standing Committee) on the NMC Bill, 2017 had recommended giving greater representation to the states in the NMC, with certain members being elected by registered medical practitioners from among themselves. In relation to Clause 45 of the NMC Bill, which empowered the Central Government to give directions to a State Government to carry out the provisions of the Act, the Standing Committee had recommended that in the spirit of cooperative federalism, the Central Government should only give policy directions to the State Government. However, Clause 45 of the NMC Bill, 2017 has been incorporated as Section 46 of the NMC Act without this change. Additionally, Clause 28 of the NMC Bill, 2017 had provided that no person shall establish a new medical college without obtaining prior permission of the Medical Assessment and Rating Board. However, in this regard, the Standing Committee had recommended that the State Governments should be given adequate powers to establishment a new medical college, since they would be in a positon to evaluate the institutions with respect to financial resources, academic faculty, hospital facilities, etc. But, this recommendation is noticeably absent in the final version as enacted.
The change in the composition of the NMC from a largely elected body to a nominated body, with the Central Government playing the dominant role, limitation of the States’ role to mere advisory through the Medical Advisory Committee, and consolidation of all major functions and decision-making powers at the Central level will have far reaching implications vis-à-vis the overarching principle of federalism. These implications are not merely of an academic nature, but have very real practical consequences as well, as had been pointed out by the Standing Committee in its recommendations regarding the establishment of medical colleges. Even though it is still early days, it can be reasonably presumed that the NMC Act will remain open to challenges on this front. Whether the courts would also see the NMC Act as an attempt to claw away the States’ powers, only time will tell.