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








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2. QUACKS, DRUGS RESISTANCE AND THE URBAN POOR
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.
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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
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.


















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3. LAWS REGULATING QUACK IN INDIA
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: 44INJURY
IPC: 269, 270NEGLIGENCE 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.
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
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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 individuals 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.
HamdardDawakhanas 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 andunethical 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 its 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 Dawakhanas 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 Newspaperss 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 HamdardDawakhanas case and the Indian Express Newspaperss
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 childrens.

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