Restrictions only by law on fundamental right to establish educational institutes: SC

New Delhi: The Supreme Court on Thursday said the right to establish educational institutions is a fundamental right but reasonable restrictions can be imposed by the state only by a law, and not an executive instruction.

A bench of Justices B.R. Gavai and P.S. Narasimha said: “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, reasonable restrictions on such a right can be imposed only by a law and not by an executive instruction.”

The top court upheld the various high court verdicts and dismissed the appeal by Pharmacy Council of India (PCI) challenging them.

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“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. In our view, the view taken by the High Courts of Karnataka, Delhi, and Chhattisgarh lays down the correct position of law,” it said.

“It is thus clear that though 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. However, the question that requires to be answered is as to whether the same can be done by executive instructions or not.”

The top court said merely because an institution has a right to establish an educational institution does not mean that such an application has to be allowed. It added that in a particular area, if there are more than sufficient number of institutions already existing, the Central Council can always take into consideration 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,” said the bench.

The top court judgment came on a batch of appeals filed by the PCI against three similar but separate verdicts of the high courts of Delhi, Chhattisgarh, and Karnataka.

The high courts had allowed the pleas of several pharmacy institutions challenging the July 17, 2019 and September 9, 2019, resolutions of the PCI, which had put a moratorium on opening of new pharmacy colleges in the country.

“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,” said the top court.

It said if and when such restrictions are imposed by an authority competent to do so, the validity of the same can always be scrutinised on the touchstone of law.

“We, therefore, refrain from considering the rival submissions made on that behalf. It is further to be noted 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,” said the bench.

The PCI resolutions were challenged by several private institutions in the three high courts, and the PCI moved the top court against the high court orders.

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