In Civil Appeal No.6681 of 2022-SC- Executive instructions cannot impose restrictions on fundamental right to establish educational institutions under Article 19(1)(g) of Constitution: Supreme Court 
Justices B.R.Gavai & Pamidighantam Sri Narasimha [15-09-2022]

Read Judgment: PHARMACY COUNCIL OF INDIA v. RAJEEV COLLEGE OF PHARMACY  AND ORS 

Tulip Kanth

New Delhi, September 16, 2022: While dismissing the appeal filed by the Pharmacy Council of India, the Supreme Court has struck down the Resolutions/communications of the Central Council of the appellant-PCI while observing that such executive instructions could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India.

Referring to the judgment of the Aurangabad Bench of the Bombay High Court in Sayali Charitable Trusts College of Pharmacy vs. The Pharmacy Council of India, Writ Petition No. 4919 of 2020, the Division Bench of Justice B.R.Gavai and Justice Pamidighantam Sri Narasimha said, “However, since we have 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, we are of the view that the Division Bench of the Bombay High Court, Aurangabad Bench, in the said case does not lay down the correct position of law.”

The Appeals in question were filed by the Pharmacy Council of India (PCI) mainly challenging the judgments of the High Courts of Karnataka, Delhi and Chhattisgarh. The aforesaid three High Courts had allowed the writ petitions filed by the respondents-institutions, which were filed challenging the Resolutions/communications of the appellant-PCI and dismissed the Writ Appeals filed by the PCI.

Through such Resolution/Communication dated July 17, 2019, the appellant-PCI had resolved to put 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 beginning from the Academic Year 2020- 2021. Through another Resolution/communication dated September 9, 2019, the aforesaid moratorium was modified, thereby exempting its application to (i) Government Institutions; (ii) Institutions in North Eastern region; and (iii) States/Union Territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50. Additionally, the institutions which had applied for opening colleges offering D.Pharm and/or B. Pharm courses for 2019- 2020 academic session were allowed to apply for conducting diploma as well as degree courses in Academic Session 2020- 2021 and existing approved pharmacy institutions were allowed to increase the intake capacity as per PCI norms and/or to start additional pharmacy course(s).

The writ petitions filed by the Institutions before the three High Courts challenged the validity of the said moratorium and also prayed for a direction to be issued to the appellant-PCI to grant approval for opening new pharmacy institutions imparting pharmacy courses for the ensuing academic year of 2022-2023 on the basis of inspection conducted by the PCI in February 2020 and to not insist on fresh applications from the institutions pursuant to the PCIs circular of July 3, 2022.

The moot question which required consideration, was whether the moratorium, as imposed by the Central Council of the appellant-PCI, could have been imposed by the said Resolution, which was in the nature of an executive instruction of the Central Council.

In order to answer this issue, the Apex Court placed heavy reliance on its judgment in State of Bihar and others vs. Project Uchcha Vidya, Sikshak Sangh and others wherein it was categorically 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 and such a law must be one enacted by the legislature.

The Top Court also referred to its judgment in State of M.P. vs. Thakur Bharat Singh wherein it was opined that even an Executive cannot do something to infringe the rights of the citizens by an executive action, though the State Legislature has legislative competence to legislate on the subject.

The Bench concluded the matter by saying, “Since we have held that the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant-PCI, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, we do not find it necessary to consider the submissions advanced on other issues. We find that the Resolutions/communications dated 17th July 2019 and 9th September 2019 of the Central Council of the appellant-PCI are liable to be struck down on this short ground.”

On the necessity to impose certain restrictions so as to prevent mushrooming growth of pharmacy colleges, the Bench held that 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.

The Bench also clarified that the applications seeking approval for D. Pharm and B. Pharm courses are required to be accompanied by a No Objection Certificate (NOC) from the State Government and consent of affiliation from the affiliating bodies. While scrutinizing such applications, the Council can always take into consideration various factors before deciding to allow or reject such applications. 

“Merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed”, the Bench said while also holding that  in  particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration as to whether it is necessary or not to increase the number of institutions in such an area. However, a blanket prohibition on the establishment of pharmacy colleges cannot be imposed by an executive resolution. Enumerating such compliances, the Bench  dismissed the appeals filed by the Pharmacy Council of India.