IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 441 OF 2015

DM Wayanad Institute of

Medical Sciences …..Petitioner(s)

versus

Union of India and another …..Respondent(s)

AND

WRIT PETITION (C) NO. 448 OF 2015

P. Krishna Das and another …..Petitioner(s)

versus

Union of India and others …..Respondent(s)

J U D G M E N T

M. Y. EQBAL, J.

Knocking the doors of this Court in the first instance under the garb of a

petition under Article 32 of the Constitution, instead of approaching the

High Court, for the enforcement of right claimed in these writ petitions is

the preliminary question we are deciding herein.

2. In these two writ petitions, the petitioners have invoked the

jurisdiction of this Court under Article 32 of the Constitution of India

challenging the refusal of the Medical Council of India (MCI) to recommend

the renewal of permission for admitting students for the academic year 2015-

16 in the MBBS Course of the petitioner institutes and the consequent

refusal of the Union Government to renew such permission.

W.P. (Civil) No. 441 of 2015:

3. The petitioner institute was said to have been granted permission for

admitting 150 students in the MBBS course for the academic year 2013-14 and

permission was renewed for the academic year 2014-15. The petitioner

applied for renewal of permission for the academic year 2015-16 pursuant to

which the assessors from the MCI conducted an inspection on 12th and 13th

December, 2014 and submitted a report dated 15.12.2014 in which no

deficiencies were alleged to have been pointed out.

4. However, the assessors from MCI were alleged to have made another

surprise inspection on 6th February, 2015 at 3.00 PM and directed the Dean

to call for a faculty meeting at 3.30 PM. Many teachers could not attend

the meeting alleged to have left the college for lunch or Friday prayers or

having gone home for the weekend while many others who came after 3.30 PM

from different parts of the campus were not allowed to attend the meeting.

Many of the Resident Doctors were stated to have been absent on account of

the imminent State Level PG Entrance Test. Another inspection was

conducted on 7th February, 2015. The inspection report was alleged to have

been inaccurate and signed in protest by the Dean.

5. The aforesaid report was considered by the Executive Committee of the

MCI on 10th February, 2015 and it was decided not to recommend the renewal

of the permission of the petitioner and the same was communicated to the

Union Government, which sent letter dated 04.03.2015 to the petitioner to

appear for a hearing. After the hearing where the petitioner was said to

have justified the deficiencies that were pointed out, the Central

Government sent letter dated 22.05.2015 directing the MCI to conduct a

reassessment. However, the MCI was alleged to have not done a re-inspection

as directed on the ground that a decision had already been made not to

recommend the renewal by invoking Regulation 8 (3) (1) (a) of the

Establishment of Medical College Regulations, 1999.

6. Thereafter, the Union Government published a list on 17.06.2015

stating that the permission of the petitioner college for the academic year

2015-16 had not been renewed and a letter dated 15.06.2015 was sent to the

petitioner informing the same.

7. The petitioner filed the present petition praying for declaring the

second inspection conducted on 6th and 7th February, 2015 to be illegal and

for directing the MCI to recommend the renewal of the approval of the

petitioner college for the academic year 2015-16 on the basis of the first

inspection conducted on 12th and 13th December, 2014. A prayer has also

been made for directing the Central Government to issue the letter of

renewal accordingly.

W.P. (Civil) No.448 of 2015

8. The petitioner-college was granted provisional affiliation for

starting the MBBS course for the academic session 2014-15 with 150

students. It appears that a surprise inspection was made by MCI and many

deficiencies were pointed out. The Executive Committee of MCI after

considering the inspection report recommended disapproval of the college.

The Central Government directed the MCI to reconsider the matter. However,

the MCI reiterated its stand of not recommending the renewal of permission

for the sessions 2015-16. The petitioner has challenged the decision of the

Medical Council of India.

9. We have heard Mr. Kapil Sibal, learned senior counsel appearing in

W.P. (Civil) No.441 of 2015 and Mr. V. Giri, learned senior counsel

appearing in W.P.(Civil) No. 448 of 2015 on the maintainability of the

writ petition under Article 32 of the Constitution of India.

10. Mr. Sibal, learned senior counsel appearing for the petitioner,

submitted that because of the time schedule fixed in Priya Gupta’s case,

2012 (7) SCC 433, the petitioner has no option but to move this Court in

order to get the relief by issuance of appropriate directions to the

respondents. Learned senior counsel also drawn our attention to para 13 of

the judgment rendered by this Court in Priyadarshini Dental College and

Hospital vs. Union of India & Ors., (2011) 4 SCC 623.

11. Mr. V. Giri, learned senior counsel appearing in one of the writ

petitions, advanced the same arguments for filing the writ petition before

this Court under Article 32 of the Constitution instead of approaching the

High Court.

12. Both the learned senior counsel, however, claimed their right

guaranteed under Article 19(1)(g) of the Constitution of India.

13. At the very outset, we wish to extract the relevant portion of

Article 19 of the Constitution which reads as under:-

“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or

business

(2) -----------------

(3) ------------------

(4) ---------------------

(5) ---------------------

(6) Nothing in sub clause (g) of the said clause shall affect the operation

of any existing law in so far as it imposes, or prevent the State from

making any law imposing, in the interests of the general public, reasonable

restrictions on the exercise of the right conferred by the said sub clause,

and, in particular, nothing in the said sub clause shall affect the

operation of any existing law in so far as it relates to, or prevent the

State from making any law relating to,

(i) the professional or technical qualifications necessary for practising

any profession or carrying on any occupation, trade or business, or

(ii) 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.”

14. From a bare reading of the provision contained in Article 19(1)(g)

it is evidently clear that the citizens have been conferred with the right

to practice any profession or carry on any occupation, trade or business,

but such right is subject to the restriction and imposition of condition as

provided under Article 19(6) of the Constitution.

15. In Unni Krishnan’s case, 1993 (1) SCC 645, the right guaranteed under

Article 19(1)(g) has been elaborately discussed by the five Judges

Constitution Bench. The Court held that imparting education cannot be

treated as a trade or business. Trade or business normally connotes an

activity carried on with a profit motive. This Court observed that

education has never been nor can it be allowed to become commerce in this

country. Education has always been treated in this country as religious

and charitable activity and making it commercial is opposed to the ethos,

tradition and sensibilities of this nation. A citizen of this country may

have a right to establish an educational institution but no citizen, person

or institution has a right much less of fundamental right to affiliation or

recognition. Their Lordships observed:-

“67. Even on general principles, the matter could be approached this way.

Educational institutions can be classified under two categories:

1. Those requiring recognition by the State and

2. Those who do not require such a recognition.

67a. It is not merely an establishment of educational institution, that is

urged by the petitioners, but, to run the educational institution dependent

on recognition by the State. There is absolutely no fundamental right to

recognition in any citizen. The right to establishment and run the

educational institution with State’s recognition arises only on the State

permitting, pursuant to a policy decision or on the fulfilment of the

conditions of the statute. Therefore, where it is dependent on the

permission under the statute or the exercise of an executive power, it

cannot qualify to be a fundamental right. Then again, the State policy may

dictate a different course.

xxx xxx xxx

72. Accordingly, it is held that there is no fundamental right under

Article 19(1)(g) to establish an educational institution, if recognition or

affiliation is sought for such an educational institution. It may be made

clear that anyone desirous of starting an institution purely for the

purposes of educating the students could do so but Sections 22 and 23 of

the University Grants Commission Act which prohibits the award of degrees

except by a University must be kept in mind.”

16. Considering the facts of the case as averred by the petitioners and

the rights claimed therein, we are of the considered opinion that the

petitioners, even though have a right to establish institutions for

imparting medical and technical education, such right is not a fundamental

right.

17. From reading of Article 32, it is manifest that clause 1(i) of

Article 32 guarantees the right to move the Supreme Court for an

appropriate writ for the purpose of enforcing the Fundamental Rights

included in Part-III of the Constitution. The sole object of Article 32 is

the enforcement of Fundamental Rights guaranteed by the Constitution. It

follows that no question other than relating to the Fundamental Right will

be determined in a proceeding under Article 32 of the Constitution. The

difference between Article 32 and 226 of the Constitution is that while an

application under Article 32 lies only for the enforcement of Fundamental

Rights, the High Court under Article 226 has a wider power to exercise its

jurisdiction not only for the enforcement of Fundamental Rights but also

ordinary legal right.

18. It is equally well settled that this Court under Article 32 will not

interfere with an administrative order where the constitutionality of the

statute or the order made thereunder is not challenged on the ground of

contravention of Fundamental Rights. At the same time if the validity of

the provisions of statute is challenged on the ground other than the

contravention of Fundamental Rights, this Court will not entertain that

challenge in a proceeding under Article 32 of the Constitution.

19. In the case of Northern Corporation vs. Union of India, (1990) 4 SCC

239, a petition under Article 32 of the Constitution of India was moved by

the transferee licence holder. The maintainability of the application

under Article 32 of the Constitution of India was seriously objected by the

Union of India. Writing the judgment, Hon’ble Sabyasachi Mukherjee, the

then CJI, held:-

“11. However, there is a far more serious objection in entertaining this

application under Article 32 of the Constitution, Article 32 of the

Constitution guarantees the right to move the Supreme Court for enforcement

of fundamental rights. If there is breach of the fundamental rights, the

petitioner can certainly have recourse to Article 32 of the Constitution

provided other conditions are satisfied. But we must, in all such cases, be

circumventive of what is the right claimed. In this case, the petitioner as

such has no fundamental right to clear the goods imported except in due

process of law. Now in the facts of this case, such clearance can only be

made on payment of duty as enjoined by the Customs Act. In a particular

situation whether customs duty is payable at the rate prevalent on a

particular date or not has to be determined within the four corners of the

Customs Act, 1962. The petitioner has no fundamental right as such to clear

any goods imported without payment of duties in accordance with the law.

There is procedure provided by law for determination of the payment of

customs duty. The revenue has proceeded on that basis. The petitioner

contends that duty at a particular rate prevalent at a particular date was

not payable. The petitioner cannot seek to remove the goods without payment

at that rate or without having the matter determined by the procedure

envisaged and enjoined by the law for that determination. The petitioner

without seeking to take any relief within the procedure envisaged under the

Act had moved this Court for breach of fundamental right. This is not

permissible and should never be entertained. In a matter of this nature

where liability of a citizen to pay a particular duty depends on

interpretation of law and determination of facts and the provision of a

particular statute for which elaborate procedure is prescribed, it cannot

conceivably be contended that enforcing of those provisions of the Act

would breach fundamental right which entitle a citizen to seek recourse to

Article 32 of the Constitution. We are, therefore, clearly of the opinion

that relief under Article 32 of the Constitution is wholly inappropriate in

the facts and the circumstances of this case. It has further to be

reiterated that for enforcement of fundamental right which is dependent

upon adjudication or determination of questions of law as well as question

of fact without taking any resort to the provisions of the Act, it is not

permissible to move this Court on the theoretical basis that there is

breach of the fundamental right. Whenever a person complains and claims

that there is a violation of law, it does not automatically involve breach

of fundamental right for the enforcement of which alone Article 32 of the

Constitution is attracted. It appears that the facts of this nature require

elaborate procedural investigation and this Court should not be moved and

should not entertain on these averments (sic) of the Article 32 of the

Constitution. This position is clearly well settled, but sometimes we are

persuaded to accept that an allegation of breach of law is an action in

breach of fundamental right.”

20. In the case of Kanubhai Brahmbhatt vs. State of Gujarat, AIR 1987 SC

1159, this Court took serious concern of the litigants coming to this Court

under Article 32 of the Constitution instead of first moving the

appropriate High Court for the redressal of their grievances. This Court

observed as under:

“3. If this Court takes upon itself to do everything which even the High

Court can do, this Court will not be able to do what this Court alone can

do under Article 136 of the Constitution of India, and other provisions

conferring exclusive jurisdiction on this Court. There is no reason to

assume that the concerned High Court will not do justice. Or that this

Court alone can do justice. If this Court entertains writ petitions at the

instance of parties who approach this Court directly instead of approaching

the concerned High Court in the first instance, tens of thousands of writ

petitions would in course of time be instituted in this Court directly. The

inevitable result will be that the arrears pertaining to matters in respect

of which this Court exercises exclusive jurisdiction under the Constitution

will assume more alarming proportions. As it is, more than ten years old

civil appeals and criminal appeals are sobbing for attention. It will

occasion great misery and immense hardship to tens of thousands of

litigants if the seriousness of this aspect is not sufficiently realized.

And this is no imaginary phobia. A dismissed government servant has to wait

for nearly ten years for redress in this Court. Kashinth Dikshita v. Union

of India, (1986) 3 SCC 229: (AIR 1986) SC 2118). A litigant whose appeal

has been dismissed by wrongly refusing to condone delay has to wait for 14

years before his wrong is righted by this Court. Shankarrao v.

Chandrasenkunwar, Civil Appeal No.1335(N) of 1973 decided on January 29,

1987. The time for imposing self-discipline has already come, even if it

involves shedding of some amount of institutional ego, or raising of some

eyebrows. Again, it is as important to do justice at this level, as to

inspire confidence in the litigants that justice will be meted out to them

at the High Court level, and other levels. Faith must be inspired in the

hierarchy of courts and the institution as a whole, not only in this Court

alone. And this objective can be achieved only this Court showing trust in

the High Court by directing the litigants to approach the High Court in the

first instance. Besides, as a matter of fact, if matters like the present

one are instituted in the High Court, there is a likelihood of the same

being disposed of much more quickly, and equally effectively, on account of

the decentralisation of the process of administering justice. We are of the

opinion that the petitioner should be directed to adopt this course and

approach the High Court.”

21. In the case of Ram Jawaya Kapur vs. State of Punjab, AIR 1955 SC 549

= (1955) 2 SCR 225, the petitioner was carrying on business of printing,

publishing books for sale including text books used in the schools of State

of Punjab. The State of Punjab decided in furtherance of their policy of

nationalization of text books for the school students. According to the

Policy, all recognized schools had to follow the course of studies approved

by the Government. The petitioners alleged in support of their petitions

under Article 32 that the Punjab Government has in pursuance of their

policy of nationalization of text books issued a series of notifications

regarding the printing, publication and sale of these books and thereby

ousted them from the business altogether. Dismissing the writ petition, a

five Judges Constitution Bench, headed by the then Chief Justice observed:-

“21. As in our view the petitioners have no fundamental right in the

present case which can be said to have been infringed by the action of the

Government, the petition is bound to fail on that ground. This being the

position, the other two points raised by Mr Pathak do not require

consideration at all. As the petitioners have no fundamental right under

Article 19(1)(g) of the Constitution, the question whether the Government

could establish a monopoly without any legislation under Article 19(6) of

the Constitution is altogether immaterial.

Again a mere chance or prospect of having particular customers cannot be

said to be a right to property or to any interest in an undertaking within

the meaning of Article 31(2) of the Constitution and no question of payment

of compensation can arise because the petitioners have been deprived of the

same. The result is that the petition is dismissed with costs.”

22. In the case of Hindi Hitrakshak Samiti vs. Union of India, (1990) 2

SCC 352, a similar question relating to the maintainability of the writ

petition under Article 32 of the Constitution came for consideration before

a three Judges’ Bench of this Court for the enforcement of any Government

policy. In the writ petition, the petitioner sought for issuance of the

writ of mandamus directing Central Government to hold pre-medical and pre-

dental examination in Hindi and regional languages, which according to the

petitioner is mandated by Article 29(2) of the Constitution of India.

While permitting the petitioner to withdraw its petition, the Court

observed that Article 32 of the Constitution guarantees enforcement of

Fundamental Rights but violation of Fundamental Right is the sine qua non

for seeking enforcement of those rights by the Supreme Court. In order to

establish the violation of fundamental right, the Court has to consider the

direct and inevitable consequences of the action which is sought to be

remedied or the guarantee of which is sought to be enforced. Where the

existence of fundamental right has to be established by acceptance of a

particular policy, or a course of action for which there is no legal

compulsion or statutory imperative and on which there are divergent views,

the same cannot be sought to be enforced by Article 32 of the Constitution.

23. In the case of J. Fernandes & Co. vs. Dy. Chief Controller of Imports

and Exports, (1975) 1 SCC 716, this Court, while considering writ petition

under Article 32 of the Constitution, observed that a petition under

Article 32 will not be competent to challenge any erroneous decision of an

authority. A wrong application of law would not amount to a violation of

fundamental right. If the provisions of law are good and the orders passed

are within the jurisdiction of the authorities, there is no infraction of

fundamental right if the authorities are right or wrong on facts.

24. In the case of Ujjam Bai vs. State of U.P, AIR 1962 SC 1621=(1963) 1

SCR 778, before the seven Judges’ Constitution Bench, a question came for

consideration as to whether an assessment made by an authority under the

taxing statute which is intra vires and in the undoubted exercise of its

jurisdiction can be challenged under Article 32 of the Constitution of

India? Answering the question, Their Lordships held as under:

“21. In my opinion, the correct answer to the two questions which have been

referred to this larger Bench must be in the negative. An order of

assessment made by an authority under a taxing statute which is intra vires

and in the undoubted exercise of its jurisdiction cannot be challenged on

the sole ground that it is passed on a misconstruction of a provision of

the Act or of a notification issued thereunder. Nor can the validity of

such an order be questioned in a petition under Article 32 of the

Constitution. The proper remedy for correcting an error in such an order is

to proceed by way of appeal, or if the error is an error apparent on the

face of the record, then by an application under Article 226 of the

Constitution. It is necessary to observe here that Article 32 of the

Constitution does not give this Court an appellate jurisdiction such as is

given by Arts 132 to 136. Article 32 guarantees the right to a

constitutional remedy and relates only to the enforcement of the rights

conferred by Part III of the Constitution. Unless a question of the

enforcement of a fundamental right arises, Article 32 does not apply. There

can be no question of the enforcement of a fundamental right if the order

challenged is a valid and legal order, in spite of the allegation that it

is erroneous. I have, therefore, come to the conclusion that no question of

the enforcement of fundamental right arises in this case and the writ

petition is not maintainable.”

25. Their Lordships further observed:

“38. As I have said above, the submission of the learned Additional

Solicitor General is well founded. It has the support of the following

decisions of this Court which I shall now deal with. In Gulabdas v.

Assistant Collector of Custom 1957 AIR(SC) 733, 736.) it was held that if

the order impugned is made under the provisions of a statue which is intra

vires and the order is within the jurisdiction of the authority making it

then whether it is right or wrong, there is no infraction of the

fundamental rights and it has to be challenged in the manner provided in

the Statute and not by a petition under Article 32. In that case the

petitioner was aggrieved by the order of the Assistant Collector of Customs

who assessed the goods imported under a licence under a different entry and

consequently a higher Excise Duty was imposed. The petitioners feeling

aggrieved by the order filed a petition under Article 32 and the objection

to its maintainability was that the application could not be sustained

because no fundamental right had been violated by the impugned order it

having been properly and correctly made by the authorities competent to

make it. The petitioner there contended that the goods imported, which were

called &'Lyra&' brand Crayons were not crayons at all and therefore

imposition of a higher duty by holding them to be crayons was an

infringement of fundamental right under Article 19(1)(f) & (g).”

26. Coming back to the instant writ petitions, indisputably, the

petitioners have challenged the decision of MCI and the Central Government

refusing to grant permission or renewal to carry on their courses for the

Academic Session 2015-16. The decisions are based on the inspection

reports submitted by the teams of MCI. The jurisdiction of MCI or the

Central Government to grant or refuse to grant permission has not been

challenged. Hence, it is well within the jurisdiction of MCI which is

statutory body to take a decision based on the inspection of the college to

satisfy itself the compliance of various provisions of the acts, rules and

regulations.

27. Under Article 32 of the Constitution, this Court is not supposed to

go into finding of facts recorded by the authorities and to come to a

different conclusion. Moreover, having regard to the law settled by

Constitution Bench of this Court in number of decisions, in our considered

opinion, the rights so claimed by the petitioners are not fundamental

rights; hence the same cannot be agitated directly before this Court under

Article 32 of the constitution.

28. We, therefore, dismiss these writ petitions filed under Article 32 of

the Constitution. However, this will not prevent the petitioners from

agitating their grievances before the appropriate forum including the High

Court having jurisdiction to deal with the matter.

…………………………….J.

(M.Y. Eqbal)

…………………………….J.

(Arun Mishra)

New Delhi

July 23, 2015