The state cannot restrict the fundamental right to establish educational institutions by decree: SC

New Delhi: The Supreme Court on Thursday said the right to establish educational institutions is a fundamental right to which the state can impose reasonable restrictions only by statute and not by executive instruction.

The significant high court verdict came on a batch of appeals filed by the Pharmacy Council of India (PCI) challenging three similar but separate high court verdicts in Chhattisgarh, Delhi and Karnataka.

The high courts had accepted the appeals of several pharmacy establishments against the PCI resolutions of July 17 and September 9 imposing a moratorium on the opening of new pharmacy schools in the country.

A bench consisting of Justices BR Gavai and PS Narasimha upheld the High Court verdicts and dismissed the PCI’s appeal challenging those judgments, saying the right to impose restrictions on the opening of new faculties of pharmacy cannot be exercised simply by executive action.

Although there is a fundamental right to establish educational institutions, this may be subject to reasonable restrictions, which are deemed necessary in the general public interest…reasonable restrictions on such a right cannot be imposed only by statute and not by an execution instruction, said Judge Gavai, writing the judgment for the bench.

He said the view taken by the High Courts of Karnataka, Delhi and Chhattisgarh establishes the correct position of the law.

The judgment declared that the executive instructions cannot be used to impose restrictions on the fundamental right to establish educational institutions under Article 19 (1) (g) of the Constitution and concluded that the appeals of the PCI are subject to cancellation for this brief reason.

Before separating, we can observe that it might indeed be necessary to impose certain restrictions in order to prevent the meteoric growth of the faculties of pharmacy. Such restrictions may be in the general interest of the general public.

However, if it must be done, it must be done strictly in accordance with the law. If and when such restrictions are imposed by an authority competent to do so, the validity of these can always be examined on the touchstone of law…, he said.

While rejecting PCI’s pleas, however, the bench said that applications for endorsement of pharmacy courses must be accompanied by a certificate of no objection from state governments and consent of affiliation from affiliated bodies.

When considering such applications, the Commission may always consider various factors before deciding whether to grant or deny such applications. The mere fact that an institution has the right to establish an educational institution does not mean that such a request must be allowed, he said.

The Pharmacy Board of India, in its resolution dated 17th July 2019, had decided to impose a moratorium on the opening of new Colleges of Pharmacy for running degrees as well as degree courses in Pharmacy for a period of five years from the academic year 2020. -2021.

By subsequent resolution of September 9, 2019, the moratorium order was amended and exempted government institutions; (ii) Institutions in the North East 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 in the three high courts and won the case against the PCI which then moved the highest court.

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