Case Title: Pharmacy Council of India v. Rajeev College of Pharmacy And Ors.
The Supreme Court ruled that the right to create an educational institution is a basic right under Article 19(1)(g) of the Indian Constitution and that reasonable constraints on such a right can be imposed only by law, not by executive order.
The judgement was issued by a Bench comprised of Justices B.R. Gavai and P.S. Narasimha in petitions filed by the Pharmacy Council of India challenging orders of the High Courts of Delhi, Chhattisgarh, and Karnataka, which set aside the Pharmacy Council of India's 5-year moratorium on opening new colleges.
The Pharmacy Council of India (PCI) decided, in a resolution dated 17.07.2019, to put a five-year ban on the establishment of new pharmacy institutions to provide diploma and degree courses in pharmacy, beginning with the academic year 2020-21. Following that, on 09.09.2019, the resolution was amended to lift the moratorium for Government institutions, institutions in the Northeastern area, and states/union territories where the number of institutions offering D. Pharm and B. Pharm courses (both combined) is less than 50.
Apart from assailing the resolutions, the petitioners before the High Courts had also sought directions to PCI to grant them approval for opening new pharmacy institutions imparting pharmacy courses for the academic year 2022-23, without insisting on fresh application. The three High Courts have allowed the petitions, setting aside the resolutions passed by PCI, primarily, on the following grounds -
The right to establish educational institutions is a fundamental right under Article 19(1)(g) of the Constitution of India;
If reasonable restrictions are to be imposed, it is to be done by law enacted by the competent legislature;
The resolutions passed by PCI were like executive instructions and cannot be construed as law.
The petitioners were entitled to establish colleges on the principles of promissory estoppel and legitimate expectation.
PCI's resolution was violative of Article 14 as there was no reasonable basis for the exemption granted to certain institutions.
PCI's cap of 50 pharma institutions per State across the board was arbitrary since it did not factor in that population in all States is not uniform.
The Supreme Court delineated the issue for its consideration as under -
"Whether the moratorium, as imposed by PCI, could have been imposed by the said Resolution, which is like an executive instruction."
Citing the judgment in State of Bihar And Ors. v. Project Uchcha Vidya, Shikshak Sangh And Ors. the Bench noted that it squarely addresses the issue before it. It observed -
"It could thus be seen that this Court has categorically held that a citizen cannot be deprived of the said right except in accordance with the law. It has further been held that the requirement of law for clause (6) of Article 19 of the Constitution can by no stretch of the 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."
The Bench also reiterated that executive orders cannot violate citizens' rights simply because the legislature has the authority to pass legislation on the matter covered by the executive order by citing the Constitution Bench ruling in State of M.P. v. Thakur Bharat Singh.