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Synopsis

The Supreme Court recently held that the fundamental right to establish educational institutions can be subject to reasonable restrictions which are found necessary in general public interest, but the same cannot be done by way of executive instructions.

"...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 one enacted by the legislature", a bench of Justices BR Gavai and PS Narasimha.

These observations came to be made by the court while dismissing an appeal filed by Pharmacy Council of India (“PCI”) challenging the judgments whereby the High Courts of Karnataka, Delhi and Chhattisgarh had allowed the writ petitions challenging the moratorium put by PCI 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.

Court found that the moratorium was issued by the central council of PCI while using its executive powers and not by framing any regulation, as provided under Sections 10 and 18 of the Pharmacy Act, 1948.

Relying on TMA Pai Foundation case, court opined that in view of Article 19(1)(g) and Article 26 of the Constitution of India, all citizens and religious denominations are conferred with a right to establish and maintain educational institutions.

The constitution bench of this court has held that the state or its officers cannot exercise its executive authority to infringe the rights of the citizens merely because the legislature of the state has the power to legislate in regard to the subject on which the executive order is issued, the court further noted.

With this view, the bench went on to strike down the impugned notifications issued by PCI.

Before parting, court, however, observed 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. 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...", the bench remarked.

Case Title: PHARMACY COUNCIL OF INDIA vs. RAJEEV COLLEGE OF PHARMACY AND ORS.