Educational institution

The right to establish an educational institution is a fundamental right under s. 19(1)(g), which cannot be limited by executive direction: Supreme Court

The Supreme Court on Thursday ruled that the right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and that reasonable restrictions on such right can only be imposed by a law and not by an executive instruction.

“The right to establish an educational institution is a fundamental right under Section 19 (1) (g) of the Constitution of India and reasonable restrictions on such right can only be imposed by law and not by an execution instruction…”

Judgment was rendered by a panel composed of Judges BR Gavai and PS Narasimha in petitions filed by the Pharmacy Council of India challenging the orders of the High Courts of Delhi, Chhattisgarh and Karnataka, by which the moratorium issued by the Pharmacy Council of India on the opening of new colleges for 5 years was set aside.

By resolution dated 17.07.2019, the Pharmacy Council of India (PCI) had decided to impose a moratorium on the opening of new Colleges of Pharmacy for running Diplomas as well as Bachelor of Pharmacy Courses for a five-year period beginning with the academic year. 2020-21. Subsequently, the resolution was modified on 09.09.2019 insofar as, among othersthe moratorium has been eased for government institutions and institutions in the Northeast Region and States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50.

While refusing to abide by the executive directive imposing a blanket ban, the bench stated that the Council is always free to refuse the request filed for the opening of new colleges if there are already more than enough establishments in the State concerned. The bench was of the view that it might sometimes be necessary to impose restrictions on the opening of colleges in the general interest of the public. In this regard, he noted –

“…we can observe that it might indeed be necessary to impose certain restrictions in order to prevent the meteoric growth of faculties of pharmacy. Such restrictions may be in the general interest of the general public. However, if it must be done, it must be done strictly in accordance with the law. If and when such restrictions are imposed by an authority competent to do so, the validity of these can always be checked on the touchstone of law.

In addition to attacking the resolutions, the petitioners before the High Courts had also asked PCI to grant them permission to open new institutions of pharmacy providing pharmacy courses for the academic year 2022-23, without insisting on a new application. All three High Courts granted the motions, quashing the resolutions passed by PCI, primarily, on the following grounds –

  1. The right to establish educational institutions is a fundamental right under Article 19(1)(g) of the Constitution of India;
  2. If reasonable restrictions are to be imposed, it must be done by law enacted by a competent legislature;
  3. The resolutions passed by PCI were in the nature of executive instructions and cannot be construed as law.
  4. The applicants had the right to establish colleges on the principles of promissory estoppel and legitimate expectation.
  5. PCIThe s resolution was contrary to Article 14 because there was no reasonable basis for the exemption granted to certain institutions.
  6. PCIThe cap of 50 pharmaceutical establishments per state in all areas was arbitrary because it did not take into account that the population of all states is not uniform.

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The Supreme Court defined the issue for its consideration as follows –

Whether the moratorium, as imposed by PCI, could have been imposed by said resolution, which is in the nature of an executive instruction.

Analysis by the Supreme Court

Initially, the Chamber referred to the judgment of the Constitutional Court in TMA Pai Et Ors Foundation. v. State of Karnataka and Ors. It should be noted that with regard to the establishment of educational institutions, three Articles of the Constitution are of importance – Articles 19(1)(g), 19(6) and 26. Considering Article 19 (1)(g) and Article 26 of the Constitution of India, all citizens and all religious denominations have the right to establish and maintain educational institutions. Reference was also made to the judgment of the Constitutional Court in Islamic Academy of Education and others. v. State of Karnataka and Ors.where it had held that the State would be entitled to impose restrictions and regulate both under Article 19(1) andg) and Article 30 of the Constitution of India to maintain excellence in the standard of education. Relying on the Constitution Bench judgment in PA Inamdar and Ors. v. State of Maharashtra and Ors. and Modern Dental College and Research Center and Ors. v. State of Deputies and others. the Chamber reiterated that the right to provide education is subject to reasonable restrictions in the interest of the general public.

Citing the judgment of State of Bihar and Ors. v. Uchcha Vidya, Shikshak Sangh and Ors Project. the Chamber noted that it squarely answered the question before it. He observed –

It is thus seen that this Court has categorically held that a citizen cannot be deprived of this right except in conformity with the law. It was further held that the requirement of law for the purposes of paragraph (6) of Article 19 of the Constitution cannot in any way be fulfilled by issuing a circular or policy decision under the Article 162 of the Constitution or otherwise. It was held that such a law must be a law enacted by the legislature.

The Court further relied on the Constitution Bench judgment in State of MP vs Thakur Bharat Singh to emphasize again that the rights of citizens cannot be infringed by executive instructions, simply because the legislative branch has jurisdiction to enact laws on the subject on which the executive order is issued.

[Case Status: Pharmacy Council of India v. Rajeev College of Pharmacy And Ors. Civil Appeal No. 6881 of 2022]

Reference: 2022 LiveLaw (SC) 768

Summary – Supreme has dismissed a batch of appeals filed by the Pharmacy Council of India against the judgments of certain High Courts which overturned the moratorium imposed on the start-up of new faculties of pharmacy for 5 years.

Constitution of India -Article 19(1)(g) -The right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can only be imposed by law and not by an executive instruction [Para 54, 55]

Constitution of India – Article 19 – Fundamental rights under Article 19 cannot be restricted by executive instructions – the citizen cannot be deprived of said right except in accordance with law. It was further held that the requirement of law for the purposes of paragraph (6) of Article 19 of the Constitution cannot in any way be fulfilled by issuing a circular or policy decision under the Article 162 of the Constitution or otherwise [Para 43]

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