A CRITICAL STUDY OF LAWS REGULATING QUACKS AND

MAGIC REMEDIES

1. INTRODUCTION

Background of quack and magic remedies-Definition of quackery-ethics in advertising-

regulation of quackery and magic remedies in India.

Quackery is the promotion of unproven or fraudulent medical practices.  Dictionary describes

a "quack" as a "fraudulent or ignorant pretender to medical skill" or "a person who pretends,

professionally or publicly, to have skill, knowledge, or qualifications he or she does not

possess; a charlatan". The word "quack" derives from the archaic word "quacksalver",

of Dutch origin, literally meaning "hawker of salve". In the middle Ages the word quack

meant "shouting". The quacksalvers sold their wares on the market shouting in a loud voice.

"Health fraud" is often used as a synonym for quackery, but quackery's salient characteristic

is aggressive promotion rather than fraud, greed or misinformation. "Pseudo-medicine" is a

term for treatments known to be ineffective, regardless of whether their advocates themselves

believe in their effectiveness.

From antiquity to the present, all societies have faced health challenges that prompted the

formation of groups of healers and the development of codes of ethics to govern the

treatments that they offered. As evolving entities, these codes reflected the social values and

class structure of the society for which they were framed. Thus, understanding the historical

evolution of codes of ethics from individual oaths that marked medical education and practice

as a vocation during the pre-Christian era through prayers that demonstrated the transition to

a religious avocation in Judaism, Islam and Christianity to the medieval European guilds that

began the process of transforming medicine into a paid profession, we can see not only how

western medical training and practice evolved but also how deeply rooted the lay and medical

concerns about confidentiality, end-of-life treatment, abortion, the changing role of

technology, the personal character of medical practitioners and the social status of medicine

have always been.

With the rise of scientific experimentation in the 17th and 18th centuries, western medicine

began to claim expertise and the right to self-regulation. New standards for professional

behaviour were articulated first by John Gregory and then by Thomas Percival. Their works

provided many American and Canadian doctors who studied in Edinburgh and London with

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the intellectual foundation from which to formulate formal codes of ethics when the

American and Canadian medical associations were created in 1847 and 1867, respectively.

Building on the belief that medicine was an altruistic calling, these codes helped to define

practitioners’ behaviour and to create group identity. But like all previous codes, they were

criticized by other healers and members of the public as efforts to constrain choice and limit

competition in the medical marketplace.

As medical practice shifted from the home to the hospital during the 20th century, the

existing codes of ethics were altered to reflect the impact of specialty training and the

increasing role of the Canadian government in funding health services. Internationally, the

discovery that German and Japanese doctors undertook heinous medical experiments on

captives resulted in the World Medical Association drawing up an international code of ethics

to prevent such activities in future. Although national granting agencies today have stringent

requirements for human experimentation, current research in the biomedical field has opened

new ethical challenges for medical education and practice. Likewise, for Canada and other

western nations that have government-funded health programs, the allocation of resources

and the adoption of new technologies and drug treatments contributed to the revision of the

“CMA Code of Ethics” and the creation of “Medical Professionalism in the New Millennium:

A Physician Charter” by an international committee. The purpose of this primer, then, is to

show how each society has grappled with defining a code of ethics for its medical students

and clinicians and to show why this is a never-ending task.

2. QUACKS, DRUGS RESISTANCE AND THE URBAN POOR

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The urban poor face significant challenges to staying healthy. Their informal status,

inadequate living conditions, and socio-economic profile mean that they fall ill frequently,

and are likely to need medical care often. Given the lack of preventive treatment-seeking

behaviour and the other constraints of the urban poor, it is highly likely that they approach

physicians looking for cheap and fast-acting cures to their health conditions. Since the

enforcement of regulations on qualified quacks is not stringent, the quacks themselves stand

to lose very little if their treatments go wrong. In addition, the process of evolution of drug

resistance amongst pathogens is a slow one, and it may be difficult to pinpoint the source of

this development. Given that the quacks adopt an unscientific approach to allopathic

treatment, the chances of them misusing medicines and failing to adopt new and better

techniques of treatment are low. All this contributes to the quacks continuing their practice

with impunity, unheeding of the larger risks that they are creating for the community.

The urban poor face significant challenges to staying healthy. Their informal status,

inadequate living conditions, and socio-economic profile mean that they fall ill frequently,

and are likely to need medical care often. Given the lack of preventive treatment-seeking

behaviour and the other constraints of the urban poor, it is highly likely that they approach

physicians looking for cheap and fast-acting cures to their health conditions.

A recent Physician and Chemist census that covers 120 cities in India has found that a large

proportion (22%) of the doctors practicing in urban India may not hold an MBBS (Bachelor

of Medicine, Bachelor of Surgery) degree, the basic minimum qualification needed to

practice allopathic medicine in India and across the world. These doctors may instead have

degrees in alternative medicine such as Ayurveda or Homeopathy, but may still be practicing

modern (allopathic) medicine in spite of not being authorized or trained to do so.

The census divides quacks amongst three categories— quacks with no qualifications at all;

practitioners of Indian Medicine (Ayurveda, Siddha, Tibb, Unani), Homeopathy, Yoga and

Naturopathy, commonly grouped under AYUSH, who are not qualified to practice modern

medicine (allopathy) but are doing so; and lastly, practitioners of so-called integrated

medicine such as  electro-homeopathy, indo-allopathy etc, terms which are not recognized

under Indian law. The second and third category of quacks may have some basic training in

healing and medicine.

The quacks with no qualifications at all are often the ones with makeshift shops that are little

more than a tent or a piece of cloth spread on the ground, set up in close proximity to areas

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frequented by the urban poor, such as on pavements, at the corners of busy roads, market

places, near public toilets, etc. While they claim to be traditional healers, it is likely that they

rely on a combination of superstition and placebos to “treat” the health problems of their

patients. They also rely on frugal innovation to relieve their patients’ symptoms- such as

using industrial glue to stick replacement teeth into the mouths of their patients.

3. LAWS REGULATING QUACK IN INDIA

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IPC: 416—- CHEATING BY PERSONATION.

A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.

IPC: 417- PUNISHMENT FOR CHEATING.

Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

IPC: 418- CHEATING WITH KNOWLEDGE.

Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

IPC: 419- PUNISHMENT FOR CHEATING.

Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

IPC: 23, 24, 25 –WRONGFUL GAIN, DISHONESTY, FRADULENCY

IPC: 44–INJURY

IPC: 269, 270—NEGLIGENCE ACT & MALIGNANT ACT.(LIKELY TO SPREAD

INFECTION OF DANGEROUS DISEASE ).

Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.

IPC: 336,337,338- act endangering life or personal safety, causing hurt and causing

grievous hurt and Indian medical council act1956- section 15 & section 25.

Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.

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Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

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4. DRUG ADVERTISEMENT AND LAW

Drugs and magic remedies Act- Importance of commercial advertising- some

aberrations in advertising-need to regulate advertising-constitutionality of

the provisions of the Act

Before the English medicine entered, India only knew about ayurvedic medicine

for the cures of all possible ailments. An ayurvedic doctor then was called as a sage who

used to do research on the medicinal plants. No one actually knew what kind of medicine was

used on them. However, it is known that that ayurvedic medicine was given only to protect an

individual and had no intention of business. Till now, only advertising of medicines

was not allowed. After the amendment comes out, advertisement of  false

treatment modules will also be banned.  People have started to openly advertise

cures for untreatable diseases. The ministry does not want citizens to be taken for a ride

by such quacks. The amendments should be through in the next six months."  For example

one swami, yoga guru Baba Ramdev, promised a cure for dreadful diseases like cancer

and AIDS. On the other Hand the Drugs and Magic Remedies Act states that no

medical practitioner should give a  claim for cure. So, the ministry issued several

notices to Baba Ramdev for these claims. The amendment would seek to curb similar

advertisements, officials said. The penalty has been enhanced.

Examples and instances of Misleading Advertisements include

Promise to cure horrible diseases like cancer and AIDS while Drugs and Magic

Remedies Act states that no medical practitioner should give a claim to cure for such

diseases as specified in the Schedule under section 3.

A medical practitioner advertising his clinic and claiming that he offered a definite

cure for epilepsy; Indian Medical Association (IMA) in this case declared him a fraud

based on the findings of the committee that he was giving his patients lethal drugs in

high doses. Then following a complaint from a Consumer, Advertising Standards

Council of India (ASCI) held that advertisement violated the Drugs and Magic

Remedies (Objectionable Advertisements) Act. Yet, the practitioner continued to

advertise and the drug control departments failed to act, resulting in thousands of

consumers falling into the false advertisements.

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In another case a Young girl, having a short height, caught attracted to wards an

advertisement that promises to convert a dwarf into tall and, promised her that she

would gain 10 cm in six months through surgery. The so-called correction surgery left

her confined to bed.

India is the land of spiritualist of babas and sadhus. There has not been a law

specifically to prosecute those making false spiritual claims and deceive people.

LACUNA IN LAW

However, in the present scenario the law is somewhat out modeled and outdated. While it

prohibits misleading health claims in the print media; it has no provision to tackle the

advertisements that may appear on the television or the internet. That there has not been a law

specifically to prosecute those who makes false spiritual claims and deceive people. As such

there is an immediate need for not only to formulate a strict law but also of a strict vigil on

the various claims made by unscrupulous practitioners about their claims for curing different

ailments and to punish the defaulters accordingly.

AMENDMENT REGARDING BLACK MAGIC

On 13th December, Congress Government finally passed the anti-Hindu, anti-superstitions

Bill  on the basis of vicious majority, throttling opposition parties; however, few amendments

were carried out in the said Bill. Many MLAs from opposition parties were not given a

chance to say anything; also, Minister for Social Justice did not give satisfactory replies to

their queries and the Bill was pushed ahead. MLAs from Shiv Sena and BJP, therefore,

created ruckus in the House which led to adjourning the House for half an hour. After 2 days

of discussions, the Bill was finally passed on 13th   December. The proposal put up by

Opposition parties to refer the Bill to Joint Review Committee, was dismissed with majority

and amendments suggested by ruling party were carried out.  

The Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman,

Evil and Aghori Practices and Black Magic Act, 2013is a criminal law act for the state

of Maharashtra, India, originally drafted by anti-superstition activist and the founder

of Maharashtra Andhashraddha Nirmoolan Samiti (MANS), Narendra Dabholkar (1945-

2013) in 2003. The act criminalises practices related to black magic, human sacrifices, use

ofmagic remedies to cure ailments and other such acts which exploit people's superstitions.

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The bill was initially promulgated as an ordinance on 24 August 2013, four days after the

assassination of Dabholkar. The bill was formally introduced in the winter session

of Maharashtra Legislative Assembly in Nagpur in December 2013.

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CONCEPT OF MEDICAL QUACKERY IN US, ENGLAND AND ASIA

One of the oldest of medication that has been prevalent in the ancient world for thousands of

years is "Alternative Medicine". The concepts of alternative medicines were mentioned in the

ancient scriptures of India, China, Egypt and almost all ancient civilizations of the world.

Historical evidences tell though the names of the various alternative medicines differed, the

procedure of making and mixing them was one and the same. The concept of alternative

medicines and medications prevailed in both the eastern and western part of globe. Today,

alternative medicine is still practiced in countries such as India and China. 

Alternative Medicine in the East 

The culture and traditions of Asian countries are known as eastern culture. The history of

alternative medicine in Asia indicates a strong presence and practice in countries such as

China and India for almost 6,000 years. 

In India, the alternative medicines were known as Vedic medicines or Ayurveda. Ayurveda

has been practiced for thousands and thousands of years and is still in practice. The aim of

Ayurveda medicine is balancing the harmony of mind, soul and body.

Ayurveda is an alternative medicine made from herbs, certain vegetables, fruits and natural

minerals. There are historical evidences that surgeries were also performed as part of

Ayurvedic treatment in olden days. Ayurveda prescribes alternative medicines for curing

common cold, stroke and paralysis and certain mental diseases. 

In China, alternative medicine was practiced for centuries and its concept is based on Taoist

philosophy. The practice of alternative medicine in China that also spread to Japan and Korea

is known as Oriental branch of alternative medicine. The two schools that contributed to the

practice of alternative medicine and therapies are "Jinfang" and "Wenbing". You must be

aware of the term "acupuncture". This originated in China and is used to treat various

orthopedic and neurological ailments and is popular even today. Chinese treated the human

mind and the body and not the disease. They believed a strong human body could never fall

sick. 

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Alternative Medicine in the West

In the western world, alternative medicine is divided into European alternative medicinal

practice and American therapy. In Europe, both professional physicians and peasant folks

practiced alternative medicines. The alternative medicine was practiced in Europe as

herbalism, hydrotherapy using water and naturopathy. These alternative medicines have been

practiced for almost 2,000 years. 

The concept of naturopathy evolved in Europe and is popular even today. This alternative

medicine gives importance to good nutritional supplements along with ample sleep and rest.

They also included herbal medicines as a part of the treatment for various diseases. 

A German doctor Samuel Hahnemann introduced homeopathy in the 19th century. This

alternative medicine is effective in treating various ailments and disorders including mental

illness. 

Alternative medicine therapies were practiced in American continent also. A health

movement known as "herbalism" prevailed in this continent around 500 years ago. Various

herbs and plant extracts were used to make potions and concoctions to cure various ailments. 

Researches and studies reveal alternative medicines have no side effects like the Allopathic

medicines and therapies. Alternative medicines and therapies are gaining importance today.

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CASE LAWS

HamdardDawakhana (WAKF) LalKuan, Delhi v. Union of India, [SCR 1960 (2) 671]  –

The Court in this case dealt with advertising of prohibited drugs and commodities. The Court

was principally dealing with the right to advertise prohibited drugs, to prevent self-

medication and self-treatment. It is in no doubt true that some of the observations referred to

above go beyond the needs of the case and tend to affect the right to publish all commercial

advertisements. A Constitution Bench of this Court held that an advertisement is no doubt a

form of speech but its true character is reflected by the object for the promotion of which it is

employed. It assumes the attributes and elements of the activity under Art. 19(1) which it

seeks to aid by bringing it to the notice of the public.

When it takes the form of a commercial advertisement which has an element of trade or

commerce it no longer falls within the concept of freedom of speech for the object is not

propagation of ideas social, political or economic or furtherance of literature or human

thought; but as in the present case the commendation of the efficacy, value and importance in

treatment of particular diseases by certain drugs and medicines. In such a case, advertisement

is a part of business and it was being used for the purpose of furthering the business of the

petitioners and had no relationship with what may be called the essential concept of the

freedom of speech. It cannot be said that the right to publish and distribute commercial

advertisements advertising an individual’s personal business is a part of freedom of speech

guaranteed by the Constitution.

The Court came to the conclusion that the sale of prohibited drugs was not in the interest of

the general public and as such “could not be a speech” within the meaning of freedom of

speech and expression under Article 19(1) (a) of the Constitution. The Court further held in

the said case that an advertisement is no doubt a form of speech but its true character is

reflected by the object for the promotion of which it is employed.

HamdardDawakhana’s case was considered by this Court in Indian Express Newspapers

(Bombay) Private Ltd. &Ors. etc. etc. vs. Union of India, 1985(2) SCR 287 – herein, the

Parliament of India enacted a statute that was aimed at controlling advertisements of drugs in

some specified cases [Drugs and Magic Remedies (ObjectionableAdvertisements) Act

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(1954)]. Purpose of the act was to prevent ‘objectionable’ and‘unethical’ advertisements in

order to discourage self-medication and self treatment. Theconstitutionality of this Act was

challenged by the plaintiff on the grounds that itrestricted his right to freedom of speech and

expression unfairly, in contravention of Arts19(1)(a) and Art 19(2) and also that it violated

his rights to carry on business because therestrictions were allegedly in contravention of Art

19(1)(g) .

The Judgment: The Bench that decided the case acknowledge that advertisement was no

doubt a form of speech but that “it’s true character is detected by the object for the promotion

of which it is employed. The judgment acknowledged that advertisements acquire some, but

notall, elements of speech or expression intended for protection by Art 19(1)(a) by bringing

to the notice of the public”.

The activity or product or service that it seeks to publicize [the right to disseminate and

receive information that Art 19(1)(a) recognizes in certain cases]. But the judgment goes onto

to state that the content and intent of the advertisement is extremely important when deciding

whether it deserves protection under Arts 19(1)(a) and 19(2).When it (advertisement)takes

the form of a commercial advertisement which has an element of trade and commerce, it no

longer falls within the concept of freedom of speech, for the object is not propagation of

ideas, social political or economic, or furtherance of literature or human thought, but the

commendation of the efficacy , value and importance of certain goods.

This statement forms the crux of the judgment and encapsulates the legal position occupied

by commercial speech when it comes to protection under Art 19(1)(a).The judgment iterated

that advertisements prohibited by the impugned Act relate to trade and commerce and not the

propagation of ideas and that advertising of prohibited drugs and commodities of which the

sale is not in the interest of the general public cannot be speech within the meaning of Art

19(1)(a).

The observations in Hamdard Dawakhana’s case to the effect that advertising by itself would

not come within Article 19(1) (a) of the Constitution, were explained by this Court in Indian

Express Newspapers’s case in the following words: The main plank of that decision was that

the type of advertisement dealt with there did not carry with it the protection of Article 19(1)

(a). the court finally opined that all commercial advertisements cannot be denied the

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protection of Article 19(1) (a) of the Constitution merely because they are issued by

businessmen.”

The combined reading of HamdardDawakhana’s case and the Indian Express Newspapers’s

case leads us to the conclusion that “commercial speech” cannot be denied the protection of

Article 19(1) (a) of the Constitution merely because the same are issued by businessmen.

Advertising is considered to be the cornerstone of our economic system. Low prices for

consumers are dependent upon mass production, mass production is dependent upon volume

sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free

economy in a democratic country, advertising can be viewed as the life blood of free media,

paying most of the costs and thus making the media widely available. Without advertising,

the resources available for expenditure on the “news” would decline, which may lead to an

erosion of quality and quantity. The cost of the “news” to the public would increase, thereby

restricting its “democratic” availability.

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CONCLUSION

This is a case that plays out the adage, ‘A little knowledge is dangerous’. A disproportionate

part of the costs due to drug resistant microbes will be shouldered by the economically

weaker sections, and slum dwellers are a high-risk group because of the density of the slums.

However, the effects of this phenomenon are also likely to spread to those better off by dint

of the slum dwellers being an integral part of a city, and providing goods and services to all

other socio-economic classes. It is time that the privileged also take the threat of drug

resistance seriously and use their influence to galvanize action, even if it is for the selfish

reason of their own well-being and that of their children’s.

Black magic has traditionally referred to the use of supernatural powers or magic for evil and

selfish purposes. With respect to the left-hand path and right-hand path dichotomy, black

magic is the malicious counterpart of benevolent white magic. In modern times, some find

that the definition of "black magic" has been convoluted by people who define magic or

ritualistic practices that they disapprove of as "black magic". Like its counterpart white

magic, the origins of black magic can be traced to the primitive, ritualistic worship of spirits

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