Right to manage an institution

Can an executive instruction restrict the fundamental right to establish an educational institution?
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"The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that the legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated.” Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353.

Vide Resolution / Communication dated 17th July 2019, the Pharmacy Council of India (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. Vide Resolution / communication dated 9th September 2019, the aforesaid moratorium was modified, thereby exempting its application to Government Institutions; Institutions in North-eastern region; and States / Union Territories where the number of institutions offering D. Pharm and B. Pharm courses is less than 50. Also, vide the said Resolution / communication dated 9th September 2019, the institutions which had applied for opening colleges offering D. Pharm and / or B. Pharm courses for 2019-202020 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 courses.

Various Institutions challenged the validity of the said moratorium before the High Courts of Karnataka, Delhi and Chhattisgarh and also prayed for a direction to be issued to the 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. All the three High Courts, i.e., Karnataka, Delhi and Chhattisgarh, while allowing the writ petitions filed by various institutions and quashing and setting aside the Resolutions / communications of the Central Council of the PCI held that the right to establish educational institutions is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India; that there can be reasonable restrictions on such a right. However, such a restriction can be imposed only by law enacted by the competent legislature: that the Resolution / communication dated 17th July 2019, vide which the moratorium was imposed is an executive instruction and could not be construed as a law and, therefore, the moratorium imposed by an executive instruction is not sustainable in law.

The PCI filed Appeals before the Supreme Court of India, challenging the judgments pronounced by the three High Courts, i.e., Karnataka, Delhi and Chhattisgarh. Several interim orders passed by these High Courts during the pendency of these matters were also challenged. By the judgments and orders, the three High Courts of Karnataka, Delhi and Chhattisgarh had also dismissed the Writ Appeals filed by the PCI. Hence, in Pharmacy Council of India (PCI) v. Rajeev College of Pharmacy and Others (Civil Appeal No. 6681 of 2022, decided on September 15, 2022), a Bench of Justices B.R. Gavai and P.S. Narasimha had the occasion to deal with the issue as to whether the moratorium, as imposed by the Central Council of PCI, could have been imposed by a Resolution, which is in the nature of an executive instruction of the Central Council of the PCI.

After hearing the parties at length, the Supreme Court referred to the judgment in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 wherein it was held that - with regard to the establishment of educational institutions, three Articles of the Constitution come into play. Article 19(1)(g) of the Constitution of India gives the right to all the citizens to practise any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6) of the Constitution of India. Article 26 of the Constitution of India gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.

The Supreme Court also referred to the judgment in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 wherein it was held that - so far as institutions imparting professional education are concerned, having regard to the public interest, they are bound to maintain excellence in the standard of education. To that extent, there cannot be any compromise and 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. The width of the rights and limitations thereof of unaided institutions whether run by a majority or a minority must conform to the maintenance of excellence. With a view to achieve the said goal, indisputably, the regulations can be made by the State. The right to administer does not amount to the right to maladminister and the right is not free from regulation. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions.

Further, the Supreme Court discussed the judgment in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 in which it was held that - as an occupation, right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non-minority. Such a right is, generally speaking, subject to the laws imposing reasonable restrictions in the interest of the general public. In particular, laws may be enacted on the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30 of the Constitution of India. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities.

The Supreme Court, after discussing a catena of judgments, held that there is a fundamental right to establish educational institutions, the same can be subject to reasonable restrictions, which are found necessary in the general public interest and also held that the right to manage an institution is also a right to property. Establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution. A citizen cannot be deprived of the said right except in accordance with law. 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. Such a law, it is trite, must be one enacted by the legislature.

The Supreme Court also held that the Resolutions / communications dated 17th July 2019 and 9th September 2019 of the Central Council of the 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 and accordingly, the Resolutions / communications dated 17th July 2019 and 9th September 2019 of the Central Council of the PCI were struck down. The Bench observed that there could indeed be a necessity to impose certain restrictions so as to prevent mushrooming 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. Therefore, the Appeals filed by the Pharmacy Council of India were dismissed.

The Judgment pronounced by the Bench of Justices B.R. Gavai and P.S. Narasimha in Pharmacy Council of India (PCI) v. Rajeev College of Pharmacy and Others, is a step in the right direction as it has been held that 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. 

Muneeb Rashid Malik is an Advocate at Luthra and Luthra Law Offices India and he tweets @muneebmalikrash.

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