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State can’t curtail fundamental right to establish educational institutes by executive order: SC

The Supreme Court said Thursday that the right to establish educational institutions is a fundamental right that the state can impose reasonable restrictions on “only by law” and not by executive order.

The key decision of the highest court came on a series of appeals filed by the Pharmacy Council of India (PCI) challenging three similar but separate rulings from the high courts of Chhattisgarh, Delhi and Karnataka.

The high courts had allowed the pleas of several pharmacy institutions against PCI’s July 17 and September 9 resolutions imposing a moratorium on the opening of new pharmacy schools in the country.

A bench made up of Justices BR Gavai and PS Narasimha upheld the Supreme Court rulings and dismissed the PCI appeal that attacked these rulings, saying that the right to impose restrictions on opening new pharmacy colleges cannot be exercised alone by an executive action.

“While there is a fundamental right to establish educational institutions, they may be subject to reasonable restrictions, which are deemed necessary in the general public interest…reasonable restrictions on such a right can be imposed only by statute and not by executive order” , said Judge Gavai, who wrote the verdict for the bank.

It said the position of the High Courts of Karnataka, Delhi and Chhattisgarh determines the correct position of the law.

The judgment stating that the executive instructions cannot be used to limit the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution and ruled that the appeals of PCI can be rejected on this short ground.

“Before we say goodbye, we can state that there could 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.

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“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 an authority empowered to do so, their validity can always be checked against the touchstone of the law…” it said.

However, although the bank rejected the PCI’s pleas, the bank said that applications for pharmacy course approval must be accompanied by a “No Objection Certificate” from state governments and approval from member agencies.

“When examining such applications, the Council may always consider several factors before deciding whether to grant or deny such applications. The fact that an institution has the right to establish an educational institution does not mean that such an application should be allowed.”

The Pharmacy Council of India, see its resolution of 17 July 2019, had decided to impose a moratorium on the opening of new pharmacy colleges to conduct diplomas and training in pharmacy for a period of five years from the academic year 2020-2021 .

Subsequent resolution of September 9, 2019, the moratorium order was amended and exempted from “government institutions; (ii) institutions in the Northeast Region; and (iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50”.

Several private institutions challenged these resolutions before the three high courts and won the case against the PCI, which later moved the highest court.

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