Article 19(1)(g) | Citizens' Right To Establish Educational Institution Can Be Restricted Only By Legislative Enactment, Not Mere Circulars: Delhi HC

The Delhi High Court today accepted an argument that a citizen cannot be deprived of the right to establish and administer an educational institution, unless the legislature in its wisdom decides to impose a reasonable restriction in general public interest on exercise of this fundamental right.

Justice Rekha Palli observed that any restriction on the exercise of the right under Article 19(1)(g) of the Constitution of India can only be by law and anything short of law would fall foul of the power under Article 19(6).

The Court thus agreed with the contention that the requirement under clause Article 19(6) can be met only by introduction of a statutory provision either in the Act or in the Regulation and not merely by the issuance of a circular or a policy decision taken by an authority, howsoever high.

The Court made the observations while allowing a bunch of pleas challenging the decision of the National Council for Teacher Education (NCTE) refusing to open its online web portal for submission of applications from institutions desirous of seeking recognition of teachers' education courses.

The Court opined that a mere decision taken by the general body of NCTE comprising of experts to impose a total ban or simple inaction not to open the portal for years, cannot be said to be falling within the ambit of the term 'law' as envisaged under Article 19(6).

It directed the Council to open the online portal within two weeks and thereafter accept and process the applications in a timely manner, as may be submitted for grant of recognition for conducting new teaching courses for the academic session 2022-23.

"Even though, prima facie, it appears that the imposition of a total ban on the commencement of new educational courses may not strictly fall within the ambit of the respondents' power to regulate and coordinate teacher education, I am of the considered view that even if this plea were to be accepted, the fact remains that the fundamental right of a citizen to establish educational institutions can, under Article 19 (6), be curtailed only by way of a legislative act," the Court observed.

The NCTE had argued that the policy decision taken by them is in consonance with the Central Government's NEP, 2020, which amounted to a direction under sec. 29 of the National Council for Teacher Education Act, 1993.

Responding to the said contention, the Court observed that NEP policy laid emphasis on creating a pool of school teachers that will "shape the next generation by ensuring that teachers are equipped with multi-disciplinary perspectives and knowledge." However, it added that the policy does not, in any manner, suggest that there should be a complete halt to recognition of new courses in teacher education for years together.

"Even though, the petitioners have vehemently urged that the NEP, 2020 cannot be said to be a direction by the Central Government to the NCTE as contemplated under section 29 of the Act, I do not deem it necessary to deal with this aspect as I find that neither does the NEP, 2020, in any manner, suggest that no new private teaching courses or institutions should be granted recognition for years together nor will this action of the NCTE in imposing a virtual mortarium on the commencement of new teacher education courses by private institutions, be in furtherance of the objects sought to be achieved by the NEP, 2020," the Court observed.

The Court also noted that the UNESCO report titled "State of the Education Report for India-2021" as well as the NEP 2020 clearly reflect on the acute shortage of trained teachers in our country, which was still grappling with the problem of illiteracy in several regions.

"Inspite of this, the NCTE, which is obligated under the Act to ensure maintenance of high standards of teacher education institutions, instead of laying higher standards for their establishment and functioning, is seeking to impose a total ban on prospective entrants. Such a ban which has been brazenly made applicable to at least 92% of the teacher education institutions, will in fact lead to an even greater shortage of trained teachers in the country, and worsen an already existing crisis. This will not only be against the aim of the NEP, 2020 but will also be against the interest of the general public," the Court said.

With the aforementioned observations, the pleas were allowed.

Case Title: MEHTA TEACHER TRAINING COLLEGE v. NATIONAL COUNCIL FOR TEACHER EDUCATION & ANR. and other connected petitions

Citation: 2022 LiveLaw (Del) 797

Click Here To Read Order