SC Reiterates Fundamental Rights cannot be Compromised

Parmanand Pandey

It is cliché to say that nursing is a noble profession because the nurse must care for people in their darkest hours, often taking unfair blame and criticism from their patients. They provide care to their patients because they are called to do so. Gone are the days of the Florence Nightingale, who was known for setting examples by her selfless deeds. In the olden days the nurses were more guided by their inner voice than by the norms set by the profession. They are now given training to inculcate the spirit of nurturing and service. That is why, now it is considered more a ‘profession’ rather than a ‘missionary work with zeal’. When one thinks about nursing, the idea of service of one individual towards another, who is ‘ailing and infirm’ immediately comes to mind. Although the core idea and the purpose of nursing continue to be the same, the scope and its character have, without doubt, considerably changed. Its boundaries are far and wide. The profession of nursing has not been confined to any region, place, community or country. Indian nurses are preferred in most of the gulf countries mainly because they work with feeling and ‘compassion’. Another noteworthy fact is that nursing has today become a female dominated. A recent judgement of the Bombay High Court stirred the hornet’s nest by saying that the nurses can practice only in the state wherefrom they have obtained their degree or diploma.
However, the Supreme Court of India set aside the judgement of the Bombay High Court by invoking 19(1)(g) of the constitution, which unequivocally says that it is the fundamental rights of every citizen ‘to practice any profession or to carry on any occupation, trade or business’. However, like other fundamental rights the reasonable restrictions can be imposed by the state. The word reasonable has very positive connotation and it cannot be arbitrary. It must be based on the prudent grammar.
The conspectus the case is that a writ petition was filed in the Bombay High Court by the ‘Private Nursing Schools and Colleges Management Association against the Union of India and others’. The petitioner is an association of the management consisting of about 400 schools and colleges, which are active in imparting training to the nursing students and conducting private nursing schools and colleges. The private schools and colleges are situated in the entire State of Maharashtra. Petitioner-association prayed for issuance of declaration that the Indian Nursing Council has no authority to grant recognition to the institutions imparting nursing courses. Petitioner also prayed for issuance of writ of prohibition restraining the respondent Indian Nursing Council from publishing on its website material indicating that the institutions imparting nursing course must obtain recognition from it.
The contention of the respondent Indian Nursing Council in the High Court was that the State has no powers to legislate on the subject of nursing education and it must be recognised and monitored by the respondent. It also submitted that the reliance placed by the petitioners on the State Act in support of their contentions is misconceived. It may be noted that the Indian Nursing Council has come into existence through an enactment with a view to imparting uniform standard of training for nurses, midwives and health visitors.
It provided [1 ](a) any recognised qualification shall be a sufficient qualification for enrollment in any [State] register (b) no person shall, after the date of the commencement of this act, be entitled to be enrolled in any [State] register as a nurse, midwife, [auxiliary nurse-midwife] health visitor, or public health nurse unless he or she holds a recognised qualification, (c) any person holding a recognised higher qualification shall be entitled to have the qualification entered as a supplementary qualification in any State register in which he or she is enrolled, and after the said date no person shall be entitled to have entered as a supplementary qualification in any [State] register any qualification which is not a recognised higher qualification.
Notwithstanding anything contained in clause (b) of subsection (1) (a) a citizen of India holding a qualification which entitles him or her to be registered with any Council of Nursing or Midwifery (by whatever name called) in any foreign country, may, with the approval of the Council, be enrolled in any State register; and where approval has been accorded by the Council in respect of such qualification in one case, the approval of the Council for enrollment in a State register in the case of any other citizen of India holding the same qualification shall not be necessary; (b) a person not being a citizen of India who is employed as a nurse, midwife, auxiliary nurse-midwife, teacher or administrator in any hospital or institution situated in any State for purposes of teaching, research or charitable work may, with the approval of the President of the Council, be enrolled temporarily in the State register for such period as may be specified in this behalf in the order issued by the Council President provided such person shall be limited to the hospital or institution to which he or she is attached.
In 1966 the Maharashtra Nursing Act was enacted by the state government as to unify and make better provision for regulating registration and training of nurses in the State of Maharashtra and to provide for matters connected with the purposes aforesaid. Section 2(a) of the Act defines “Affiliated Institution” as an institution for the nursing of the sick, maternity or child welfare, which is, or which is deemed to be affiliated to the Council in accordance with this Act and the bylaws. ‘Recognised Institution’ is defined in section 2(o) of the Act to mean that any institution recognised or deemed to be recognised for training of nurses in accordance with this Act and by-laws.
The High Court of Bombay said that ‘we are of the opinion that the authority of the National Council is limited to the establishment of standards of education which includes prescribing the appropriate syllabus, norms of training, prescription of appropriate infrastructure for conducting the courses etc; whereas whether a particular institution which proposes to impart education in Nursing etc. is to be recognised having regard to the norms and standards prescribed by the National Council and also having regard to the availability of the infrastructure etc. of a particular institution is matter to be decided by the Council.’
The High Court further said that ‘it must also be reemphasized that the Hon’ble Supreme Court, in the matter of Nutan Kumari, has accepted the position spelt out in the judgment delivered by the Patna High Court that it is the State Government that has power to grant recognition and the Indian Nursing Council has no authority to grant such recognition so far as Auxiliary Nurse and Midwife Course is concerned and the view taken by the learned Single Judge is proper. Similarly, while confirming the judgment of the Karnataka High Court the Hon’ble Supreme Court has accepted the view of Karnataka High Court that Indian Nursing Council has no authority to grant recognition to the Institutions imparting Nursing education and as such, restrained Indian Nursing Council from publishing on its website the materials, that are indicated’.
So far as provisions of Maharashtra Nursing Act, 1966, are concerned, it deals with recognition of Training Institutions and Affiliation of Institutions, which authorizes the Council to recognise Institutions for training of Nurses. It also provides for grant of affiliation of Institutions. The functions of Indian Nursing Council are restricted to the aspects governed by provisions of Central enactment. Effect of refusal to accord approval in respect of courses operated in the State or by the Institutions is that Diploma or Degree offered by such shall have validity only in the concerned State and the candidate securing such Diploma or Degree Certificate shall not be entitled to practice in any other State.
The Court held and declared that the Indian Nursing Council has no authority to grant recognition to the institutions imparting nursing training such as Auxiliary Nurse and Midwife Course (ANM), General Nursing and Midwifery (GNM), Bachelor of Nursing (B.Sc.), Post Basic Bachelor of Nursing (P.B.B.Sc.) and Master of Nursing (M.Sc.). Indian Nursing Council was also prohibited from publishing on its website material indicating that the institutions imparting nursing course in the Maharashtra State shall have to obtain recognition from it.
Setting aside the judgement of the Bombay High Court, the Supreme Court said that ‘the judgement is inconsistent with the fundamental right available to citizens under Article 19(1)(g) of the Constitution of India, to practice their occupation throughout the territory of India. Legislation in the form of the Nursing Council Act has no way restricted nor does it purport to restrict the practice of nursing once a Degree or Diploma is granted by the State Authority to that State only.’ Thus, this judgement of the Supreme Court has again put its imprimatur on the supremacy of the Fundamental Rights, which cannot be compromised’.