Published on: 18 September, 2022 at 19:50 IST
According to the Supreme Court‘s ruling on Thursday, Article 19(1)(g) of the Indian Constitution recognises the freedom to establish educational institutions as a basic right, and only a statute, not an execution order, may put reasonable constraints on this right.
“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 Pharmacy Council of India filed petitions contesting rulings of the High Courts of Delhi, Chhattisgarh, and Karnataka. The judgement was reached by a bench consisting of Justices B.R. Gavai and P.S. Narasimha, and it overturned the Pharmacy Council of India’s 5-year embargo on the opening of new colleges.
With effect from the academic year 2020–21, the Pharmacy Council of India (PCI) has decided to impose a five-year ban on the opening of new pharmacy institutions for the purpose of offering diploma and degree programmes in pharmacy.
This decision was made by a resolution dated July 17, 2019. The resolution was then changed on September 9, 2019, among other things, to ease the ban for government institutions, institutions in the North Eastern area, and States and Union Territories with fewer than 50 schools offering D.Pharm and B.Pharm courses combined.
The Bench noted that the Council is still free to reject the application filed for opening new colleges if there are currently more than enough schools in the relevant state while refusing to uphold the executive direction imposing a general ban. In the interest of the general public, the Bench believed that it might occasionally be appropriate to set restrictions on the opening of colleges. This is what it noted:
“…we may observe that there could indeed be a necessity to impose certain restrictions so as to prevent the mushrooming growth of pharmacy colleges. Such restrictions may be in the general public’s interest.”
“However, if that has to be done, it has to be done strictly in accordance with the law. If and when such restrictions are imposed by an authority with the authority to do so, the legality of the restrictions can always be tested.”
In addition to contesting the resolutions, the petitioners asked the High Courts to direct PCI to give them permission to open additional institutions offering pharmacy programmes for the academic year 2022–2023 without requiring a new application. The petitions were approved by the three high courts, which primarily did so on the following justifications:
1. According to Article 19(1)(g) of the Indian Constitution, the right to establish educational institutions is a fundamental right.
2. If reasonable restrictions are to be imposed, they are to be done by a law enacted by a competent legislature.
3. The resolutions passed by PCI are 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 the population in all states is not uniform.
The Supreme Court identified the following issues for its consideration:
“Whether the moratorium, as imposed by PCI, could have been imposed by the said resolution, which is in the nature of an executive instruction.”
The Constitution Bench stated that the freedom to impart education is subject to reasonable constraints in the interest of the general public 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.
Additionally, the ruling of the Constitution Bench in Islamic Academy of Education and Others v. State of Karnataka and Others was cited.
The Bench cited the decision in State of Bihar and Others v. Project Uchcha Vidya, Shikshak Sangh and Others, noting that it directly addressed the matter at hand. It has been noticed :
“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 the law.”
“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 enacted by the legislature.”
The Bench further reiterated that executive orders cannot violate people’s rights just because the legislature has the authority to pass legislation on the matter covered by the executive order by citing the Constitution Bench ruling in State of M.P. v. Thakur Bharat Singh.