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, held that 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 a law and not by an execution instruction.

"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 a law and not by an execution instruction..."

The judgment was passed by a Bench comprising Justices B.R. Gavai and P.S. Narasimha in petitions filed by the Pharmacy Council of India challenging orders of the High Courts of Delhi, Chhattisgarh and Karnataka, whereby the moratorium issued by the Pharmacy Council of India on opening new colleges for 5 years was set aside.

By way of a resolution dated 17.07.2019, Pharmacy Council of India (PCI) had resolved to impose a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years starting from academic year 2020-21. Thereafter, the resolution was modified on 09.09.2019 to the extent that, inter-alia, the moratorium was relaxed for Government institutions and institutions in the North Eastern region and States/Union Territories wherein the number of institutions offering D. Pharm and B. Pharm courses (both combined) are less than 50.

While refusing to uphold the executive direction imposing a blanket ban, the Bench stated that the Council is still free to refuse the application filed for opening new colleges if there are already more than sufficient number of institutions in the concerned State. The Bench was of the view that at times it might be necessary to impose restrictions on opening of colleges in the larger interest of the public. In this regard, it noted -

"…we may observe that there could indeed be a necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges. Such restrictions may be in the larger general public interest. However, if that has to be done, it has to be done strictly in accordance with law. If and when such restrictions are imposed by an Authority competent to do so, the validity of the same can always be scrutinized on the touchstone of law."

Apart from assailing the resolutions, the petitioners before the High Courts had also sought directions to PCI to grant them approval for opening new pharmacy institutions imparting pharmacy courses for the academic year 2022-23, without insisting on fresh application. The three High Courts has allowed the petitions, setting aside the resolutions passed by PCI, primarily, on the following grounds -

1. 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 is to be done by law enacted by competent legislature;
3. The resolutions passed by PCI were in the nature of executive instructions and cannot be construed as law.
4. The petitioners were entitled to establish colleges on the principles of promissory estoppel and legitimate expectation.
5. PCI's resolution was violative of Article 14 as there was no reasonable basis for the exemption granted to certain institutions.
6. PCI's cap of 50 pharma institutions per State across the board was arbitrary since it did not factor in that population in all States is not uniform.

Issue

The Supreme Court delineated the issue for its consideration as under -

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

Analysis by the Supreme Court

At the outset the Bench referred to the judgment of the Constitution Bench in TMA Pai Foundation And Ors. v. State of Karnataka And Ors. to note that with regard to the establishment of education institutions three Articles of the Constitution assume significance - Articles 19(1)(g), 19(6) and 26. In view of Article 19(1)(g) and Article 26 of the Constitution of India, all citizens and religious denominations are conferred with a right to establish and maintain educational institutions. Reference was also made to the judgment of the Constitution Bench in Islamic Academy of Education And Ors. v. State of Karnataka And Ors., wherein it had held that the State would be entitled to impose restrictions and make regulations both in terms of Article 19(1)(g) and Article 30 of the Constitution of India for maintaining excellence in the standard of education. Relying on Constitution Bench judgment in P.A. Inamdar And Ors. v. State of Maharashtra And Ors. and Modern Dental College And Research Centre And Ors. v. State of MP And Ors. the Bench reiterated that the right to impart education is subject to reasonable restrictions in the interest of the general public.

Citing the judgment in State of Bihar And Ors. v. Project Uchcha Vidya, Shikshak Sangh And Ors. the Bench noted that it squarely addresses the issue before it. It observed -

"It could thus be seen that this Court has categorically held that a citizen cannot be deprived of the said right except in accordance with law. It has further been held that the requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. It has been held that such a law must be one enacted by the legislature."

The Bench further relied on the Constitution Bench judgment in State of M.P. v. Thakur Bharat Singh to re-emphasise that the rights of citizens cannot be infringed by executive directions, merely because the legislature has the competence to enact law 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]

Citation : 2022 LiveLaw (SC) 768

Summary - Supreme dismissed a batch of appeals filed by the Pharmacy Council of India against the judgments of certain High Courts which set aside the moratorium imposed on starting new Pharmacy colleges 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 be imposed only by a law and not by an execution instruction [Para 54, 55]

Constitution of India - Article 19 - Fundamental rights under Article 19 cannot be restricted through executive instructions -citizen cannot be deprived of the said right except in accordance with law. It has further been held that the requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise [Para 43]

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