Summary
By resolutions of July and September 2019, the Central Council of the Pharmacy Council of India imposed a five-year moratorium, from 2020–21, on opening new D.Pharm and B.Pharm colleges. Government institutions, the North-East and States with fewer than 50 institutions were exempted. The High Courts of Karnataka, Delhi and Chhattisgarh quashed the moratorium. The Supreme Court dismissed PCI's appeals. Establishing an educational institution is a fundamental right under Article 19(1)(g), and reasonable restrictions under Article 19(6) can be imposed only by law, not by executive instruction. PCI, a statutory body, conceded that it acted by resolution rather than by a regulation under Sections 10 and 18 of the Pharmacy Act, 1948, and the Act confers no power to impose such a ban. The contrary Bombay High Court view was disapproved.
Issues
- Whether the Pharmacy Council of India could impose a five-year moratorium on new pharmacy colleges by a resolution of its Central Council
- Whether a restriction on the fundamental right under Article 19(1)(g) to establish educational institutions can be imposed by executive instruction rather than by law
Provisions considered
- Article 19(1)(g) and 19(6), Constitution of IndiaThe right to establish and run educational institutions is an occupation protected by Article 19(1)(g). It can be restricted only by a law imposing reasonable restrictions, which a circular, policy decision or executive resolution is not. (¶¶ 34, 35, 38, 39, 41, 42, 43)
- Sections 3, 10 and 18, Pharmacy Act, 1948The moratorium was not framed as an Education Regulation through the Section 10 and 18 procedure of consulting the States, Central Government approval, gazette publication and laying before Parliament. The Act confers no power to ban new colleges by resolution. (¶¶ 16, 32, 45, 52, 53)
Held
- Following T.M.A. Pai, Islamic Academy, P.A. Inamdar and Modern Dental College, the right to establish educational institutions is a fundamental right that may be reasonably restricted in the public interest. But under Project Uchcha Vidya and Thakur Bharat Singh, such a restriction must be imposed by law made by the legislature, not by a circular or executive action. (¶¶ 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48)
- PCI is a statutory body whose powers must be found within the four corners of the Act, and what the statute does not authorise is prohibited. It conceded that the moratorium was imposed by executive resolution, not by regulation. Jawaharlal Nehru Technological University was distinguished, because Section 20 of the Telangana Education Act expressly authorised a moratorium. Jigya Yadav, concerning CBSE, a registered society, did not help either. (¶¶ 32, 45, 49, 50, 51, 52)
- Star India, on the meaning of 'regulate', concerned regulations framed under statute and did not apply to a resolution. The Bombay High Court's decision in Sayali Charitable Trust upholding the moratorium does not lay down the correct law. The resolutions were struck down on this ground alone, without deciding the other challenges. (¶¶ 53, 54, 55)
- Restrictions to prevent the mushrooming of pharmacy colleges may be in the public interest, but they must be imposed in accordance with law. When deciding individual applications, accompanied by a State NOC and consent of affiliation, the Central Council may still consider whether more institutions are needed in a particular area. A blanket prohibition by executive resolution is impermissible. (¶¶ 56, 57)
Result
PCI's appeals dismissed and the writ petitions disposed of in those terms; the appeal of Shaheed Teg Bahadur College of Pharmacy was disposed of as infructuous; no order as to costs.