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Right To Establish Educational Institution A Fundamental Right Under Article 19(1)(g), Can’t Be Restricted By Executive Instruction : 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 a right can only be imposed by law. imposed and not by an execution order.

“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 be imposed only by statute and not by any execution order…”

The verdict was passed by a bank consisting of: Judges BR Gavai and PS Narasimha in petitions filed by the Pharmacy Council of India challenging orders from the High Courts of Delhi, Chhattisgarh and Karnataka lifting the Pharmacy Council of India’s moratorium on opening new colleges for 5 years.

By resolution of 17.07.2019, Pharmacy Council of India (PCI) had decided to impose a moratorium on the opening of new pharmacy colleges to conduct both diploma and degree courses in pharmacy for a period of five years from the academic year 2020-21. Thereafter, the resolution was amended on 09.09.2019 to the extent that, among other thingsThe moratorium was relaxed for government agencies and agencies 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.

Although the Bench . refuses to maintain the executive direction that imposes a general ban, stated that the Council is still free to refuse the application for the opening of new colleges if there are already more than enough institutions in the concerned state. The Bench felt that at times it might be necessary to impose restrictions on the opening of colleges in the greater interest of the public. In this regard, it noted –

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“…we can see that there might indeed be a need to impose certain restrictions to prevent an explosive growth of pharmacy colleges. Such restrictions may be in the general public interest. However, if this has to be done, it must be done in strict accordance with the law. If and when such restrictions are imposed by a competent authority, their validity can always be checked against the touchstone of the law.

Aside from impinging on the resolutions, petitioners before the High Courts had also asked for instructions from PCI to grant their approval to open new pharmacy establishments providing pharmacy courses for the academic year 2022-23, without pushing for a new application. . The three High Courts upheld the petitions, quashing the resolutions passed by PCI primarily for the following reasons:

  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 should be done by law established by the competent legislator;
  3. The resolutions adopted by PCI were in the nature of executive instructions and cannot be construed as law.
  4. The petitioners had the right to establish colleges on the basis of the principles of promissory estoppel and legitimate expectations.
  5. PCIs resolution violated Article 14 as there was no reasonable basis for the exemption granted to certain institutions.
  6. PCIThe cap of 50 pharmaceutical institutions per state across the board was arbitrary because it did not take into account that the population is not uniform in all states.

Matter

The Supreme Court outlined the issue for its consideration as under –

Whether the suspension of payments, as imposed by PCI, could have been imposed by the said Decree, which is in the nature of an execution order.

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Analysis by the Supreme Court

The Bench initially referred to the Constitutional Bank’s judgment in TMA Pai and Ors Foundation. v. State of Karnataka and Ors. to note that with regard to the establishment of educational institutions, three articles of the Constitution are relevant – Articles 19(1)(g), 19(6) and 26. Having regard to Article 19(1)(g) and Article 26 of the Constitution of India, all citizens and religious denominations have the right to establish and maintain educational institutions. Reference was also made to the judgment of the Constitutional Bank in Islamic Academy of Education and Ors. v. State of Karnataka and Ors.in which it had held that the State would have the right to impose restrictions and to regulate, both within the meaning of Article 19(1)(g) and Article 30 of the Constitution of India for maintaining excellence in the quality of education. Relying on the Constitution Bench judgment in P. A. Inamdar and Ors. v. State of Maharashtra and Ors. and Modern Dental College and Research Center and Ors. v. State of MP and Ors. the Bench reiterated that the right to teach is subject to reasonable restrictions in the interest of the general public.

With reference to the judgment in State of Bihar and Ors. v. Project Uchcha Vidya, Shikshak Sangh and Ors. the Bench noted that it fully addresses the issue that preceded it. It observed –

Thus, it could be seen that this Court has categorically held that a citizen cannot be deprived of this right except in accordance with the law. It has further been held that the requirement of the law within the meaning of clause (6) of Article 19 of the Constitution cannot be achieved with any imagination by issuing a circular or a policy decision within the meaning of Article 162 of the Constitution or otherwise . It has been held that such a law should be enacted by the legislature.

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The Bench further invoked the Constitution Bench’s ruling in State of MP v. Thakur Bharat Singh to reiterate that the rights of citizens cannot be violated by implementing decrees merely because the legislator has the power to legislate on the subject on which the implementing decree has been issued.

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

Quote: 2022 LiveLaw (SC) 768

Summary – Supreme dismissed a series of appeals filed by the Pharmacy Council of India against the rulings of certain High Courts lifting the 5-year moratorium on starting new Pharmacy colleges.

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 right may only be imposed by a law and not by an executive order [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 this right except in accordance with the law. It has further been held that the requirement of the law within the meaning of clause (6) of Article 19 of the Constitution cannot be achieved with any imagination by issuing a circular or a policy decision within the meaning of Article 162 of the Constitution or otherwise [Para 43]

Click here to read/download the judgment


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