Holding

The view in Azeez Basha that an educational institution is not established by a minority if it derives its legal character through a statute is overruled; the indicia for a minority educational institution include establishment by a minority community with ideation, purpose, and implementation predominantly by the minority, and the administrative set-up must affirm the minority character.

Summary

The Supreme Court considered a reference to determine the criteria for an educational institution to be considered a minority institution under Article 30 of the Constitution, and whether the decision in Azeez Basha (which held that Aligarh Muslim University was not a minority institution because it was established by statute) was correct. The majority opinion, authored by Chief Justice Chandrachud, held that Article 30(1) applies to universities established before the Constitution, and that incorporation by statute does not automatically surrender minority character. The majority overruled the view in Azeez Basha that an institution deriving its legal character through a statute cannot be a minority institution. The Court laid down indicia for establishment: ideation, purpose, and implementation must be by the minority community, and the administrative set-up must affirm the minority character. The question of whether AMU itself is a minority institution was left to a regular bench. Other judges gave separate opinions, with some holding that the reference was invalid and that AMU is not a minority institution.

Issues considered

1. What are the ingredients, indicia or criteria for an educational institution to be considered a minority educational institution under Article 30 of the Constitution?
2. Whether Aligarh Muslim University (AMU) is a minority educational institution?
3. Whether the Constitution Bench decision in Azeez Basha was incorrect?
4. Whether the two-Judge Bench of the Supreme Court in Anjuman-e-Rahmaniya erred in referring the correctness of the decision rendered in Azeez Basha directly to a Bench of seven Judges?

Legislation cited

Aligarh Muslim University Act, 1920
Aligarh Muslim University (Amendment) Act, 1951
Aligarh Muslim University (Amendment) Act, 1965
Constitution of Indias. Article 13, s. Article 145, s. Article 19, s. Article 26, s. Article 29, s. Article 30, s. Article 372, s. Entry 63 of List I
National Commission for Minority Educational Institutions Act, 2004
University Grants Commission Act, 1956s. Section 22, s. Section 23, s. Section 2(f)

Headnote

Issue for Consideration The issues were: 1) ingredients, indicia or criteria for an educational institution to be considered a minority educational institution under Article 30 of the Constitution; Muslim University (AMU) is a minority educational institution; 3) whether the Constitution Bench decision in Azeez Basha was incorrect, and 4) Whether two-Judge Bench of Supreme Court in Anjuman-e-Rahmaniya erred in referring the correctness of the decision rendered in Azeez Basha directly to a

Subjects

Educational institutionMinority institutionIndicia for 'establishment' of a minority educational institutionAligarh Muslim University (AMU)Azeez Basha caseAnjuman-e-Rahmaniya caseScope and purpose of Art.30(1)Special protection guaranteed by Art.30(1)Anti-discrimination provisionSpecial rights provisionRight guaranteed to minoritiesEducational institutions established before and after commencement of the ConstitutionDistinction between 'incorporation' and 'establishment'Effect of incorporation on minority character of an institutionDeclaration as institution of national importance

Judgment

[2024] 11 S.C.R. 1647 : 2024 INSC 856

Aligarh Muslim University
v.
Naresh Agarwal & Ors.
(Civil Appeal No. 2286 of 2006)
08 November 2024
[Dr Dhananjaya Y Chandrachud,* CJI, Sanjiv Khanna,
Surya Kant,* J.B. Pardiwala, Dipankar Datta,*
Manoj Misra and Satish Chandra Sharma,* JJ.]

Issue for Consideration
The issues were: 1) ingredients, indicia or criteria for an
educational institution to be considered a minority educational
institution under Article 30 of the Constitution; 2) whether Aligarh
Muslim University (AMU) is a minority educational institution; 3)
whether the Constitution Bench decision in Azeez Basha was
incorrect, and 4) Whether two-Judge Bench of Supreme Court
in Anjuman-e-Rahmaniya erred in referring the correctness of
the decision rendered in Azeez Basha directly to a Bench of
seven Judges.

Headnotes†
A1. Educational Institution – No distinction between
educational institutions established before and after
commencement of the Constitution for purposes of
Art. 30(1) – Right guaranteed by Article 30(1) is applicable
to universities established before commencement of the
Constitution – Constitution of India – Art.30.
A2. Educational Institution – Minority institution – Indicia for
‘establishment’ of a minority educational institution –
Meaning of word ‘establish’ as used in Art.30(1) – Effect
of incorporation on minority character of an institution –
Distinction between ‘incorporation’ and ‘establishment’ –
Constitution of India – Art.30.

* Author
Ed. Note: There are four judgments in the matter. One judgment was pronounced by Hon’ble Dr Justice
Dhananjaya Y Chandrachud, Chief Justice of India, on behalf of himself, Hon’ble Mr Justice Sanjiv
Khanna, Hon’ble Mr Justice J B Pardiwala and Hon’ble Mr Justice Manoj Misra. Hon’ble Mr Justice
Surya Kant, Hon’ble Mr Justice Dipankar Datta and Hon’ble Mr Justice Satish Chandra Sharma
pronounced their separate judgments.
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A3. Educational Institution – Minority institution – Declaration
of an institution as one of national importance does not
amount to change in minority character of the institution.
A4. Educational Institution – Minority educational institution –
Whether Aligarh Muslim University (AMU) is a minority
educational institution.
A5. Constitution of India – Art.30 – Scope of – Purpose of
Art.30(1) – Special protection guaranteed by Art.30(1).
A6. Constitution of India – Art.30 – Article 30(1) can be
classified as both an anti-discrimination provision and
a special rights provision.
A7. Words and Phrases – ‘establishment’ and ‘incorporation’
of educational institutions – The words ‘incorporation’
and ‘establishment’ cannot be used interchangeably.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,
J.B. Pardiwala and Manoj Misra, JJ.)]:
1.1. A distinction between educational institutions established
before and after the commencement of the Constitution cannot
be made for the purposes of Article 30(1) – Article 30 will
stand diluted and weakened if it is to only apply prospectively
to institutions established after the commencement of the
Constitution – The adoption of the Constitution reflects a
break from the system of sovereign and potentate government
under the colonial regime and the dawn of governance based
on the rule of law – It secures to the minority educational
institutions, rights under the Constitution from the date of its
commencement. [Para 83]
1.2. Upon the commencement of the Constitution, citizens received
the protective cover of Part III – Article 372 read with Article
13(1) stipulates that laws which pre-date the Constitution are
unconstitutional if they contravene the fundamental rights –
The provisions do not stipulate that laws which pre-date the
Constitution cannot receive the additional protection which
the fundamental rights offer – The right to administration in
Article 30(1) is one such protection. [Para 84]
2.1. ‘Incorporation’ signifies the legal existence of the institution. In
contrast, ‘establishment’ signifies the founding or bringing into
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existence of the institution – The possibility of distinguishing
the establishment and incorporation of universities arose with
the advent of teaching Universities – Two kinds of institutions
were incorporated as teaching universities – They consisted
of institutions which were established and incorporated at
the same time, and institutions in which the establishment of
the institution predated its incorporation – Universities in the
latter category, however, were teaching colleges converted
into teaching universities – The instance of conversion of
teaching collages to teaching universities elucidates the
distinction between the ‘establishment’ and ‘incorporation’
of educational institutions. [Para 94]
2.2. The word ‘establish’ as used in Article 30(1) cannot and should
not be understood in a narrow and legalistic sense – The
words used in clause (1) of Article 30 have to be interpreted
in view of the object and purpose of the article, and the
guarantee and protection it confers – The guarantee and
protection are not dependent on the basis or the manner in
which the legal requirements were/are complied with, rather
it concerns the persons who have founded and created
the establishment – The incorporation by a statute or the
procedure and requirements in law are not determinative
factors – The persons behind it, that is, the promoters and
founder(s) are important – They should belong to a linguistic
or a religious minority – There will always be individuals
and groups instrumental in catalysing and setting up the
institution – Thus, giving a legal character to an educational
institution through state or sovereign action, it does not
ipso facto follow that the university so established deprives
the group of persons/individuals the guarantee under
clause (1) of Article 30 of the Constitution – Universities are as
much educational institutions as schools and colleges – The
interpretation in Azeez Basha confers a legalistic meaning
to the word ‘established’, sans the context of clause (1) of
Article 30 – No distinction exists between universities and
other educational institutions such as schools and colleges
for the purpose of Article 30(1). [Para 95]
2.3. It cannot be argued that a university was established by
Parliament merely because the long title and preamble
of the statute incorporating the university states that it is
an Act to establish and incorporate – If such a formalistic
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interpretation is adopted, fundamental rights would be
made subservient to legislative language – The courts must
identify the circumstances surrounding the incorporation of
the University (including through a reading of the statute) to
identify who established the university – Formalism must give
way to actuality and to what is real. [Para 112]
2.4. The argument that the test of whether an educational
institution is a minority institution must be examined based on
whether the community or the group which had established
the institution was a minority at the time of its establishment
in pre-independent India, is rejected – The purpose of the
provision is to ensure that the minorities are able to preserve
and promote their linguistic and religious culture – For
this purpose, the status of the group/community, that had
established the institution, on the date of commencement
of the Constitution should be considered – The test of
establishment will apply to future situations on the day when
new educational institutions are established – The protection
under clause (1) of Article 30 cannot be denied to institutions
established before the commencement of the Constitution for
the reason that at the time of establishment in pre-independent
India, the founders were not aware that they would receive
protection of Article 30(1). [Para 122]
2.5. ‘establishment’ or formation of an institution can be at any
point of time and even before the commencement of the
Constitution – If an institution was established before the
commencement of the Constitution, the enquiry on the
question of ‘establishment’ must relate back to the date
when the institution was established or formed to ascertain
whether it would qualify as a minority institution upon the
commencement of the Constitution. [Para 134]
3.1. To determine who established the institution, the Courts
must consider the genesis of the educational institution – For
this analysis, the Courts must trace the origin of the idea
for the establishment of the institution – The Court must
identify who was the brain behind the establishment of the
educational institution – Letters, correspondence with other
members of the community or with government/State officials
and resolutions issued could be valid proof for establishing
ideation or the impetus to found and establish – The proof
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of ideation must point towards one member of the minority
or a group from the community. [Para 135]
3.2. The second indicia is the purpose for which the educational
institution was established – Though it is not necessary that
the educational institution must have been established only
for the benefit of a religious or linguistic minority community,
it must predominantly be for its benefit – It is not necessary
that education must be provided in the language spoken by
the minority or on the religion of the minority – For example,
it is not necessary that an educational institution established
for the Tamils in Uttar Pradesh must necessarily prescribe
Tamil as the language of instruction – However, it must be
proved that the institution was established for the benefit of
the tamil-speaking community – This indicia could be proved
by a reference to private communication or speeches about
the necessity of establishing an educational institution for the
community and a recognition of the educational difficulties
faced by the community. [Para 136]
3.3. The third test is tracing the steps taken towards the
implementation of the idea – Information on who contributed
the funds for its creation, who was responsible for obtaining
the land, and whether the land was donated by a member
of the minority community or purchased from funds raised
by the minority community for this purpose or donated
by a person from some other community specifically for
the establishment of a minority educational institution are
elements that must be considered – Similar questions must
be asked of its other assets – Other important questions are:
who took the steps necessary for establishing the institution
(such as obtaining the relevant permissions, constructing
the buildings, and arranging other infrastructure). It is also
important to note that the state may grant some land or
other monetary aid during or after the establishment of the
educational institution – If the land or monies were granted
after the establishment, the grant would not have the effect
of changing the minority character of the institution – Minority
institutions are not barred from receiving aid save at the cost
of their minority status – If the land or monies are granted at
the time of establishment, the circumstances surrounding the
establishment must be considered as a whole to determine
who established the institution – The presence of a grant must
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not be automatically interpreted as leading to the erasure of
a claim to minority status. [Para 137]
3.4. An educational institution is a minority educational institution if
it is established by a religious or linguistic minority – It is not
necessary to prove that administration vests with the minority
to prove that it is a minority educational institution because
the very purpose of Article 30(1) is to grant special rights
on administration as a consequence of establishment – To
do otherwise, would amount to converting the consequence
to a pre-condition – The right to administer is guaranteed to
minority educational institutions to enable them to possess
sufficient autonomy to model the educational institution
according to the educational values that the community
wishes to emphasise – It is not necessary that the purpose can
only be implemented if persons belonging to the community
helm the administrative affairs – This is so particularly
because a minority institution may wish to emphasise secular
education. [Para 138]
3.5. The test to be adopted by the Court is whether the
administrative set up of the educational institution affirms
the minority character of the institution – If the administrative
structure of the educational institution does not reflect its
minority character or when it does not elucidate that the
educational institution was established to protect and promote
the interests of the minority, it may be reasonably inferred that
the purpose was not to establish an educational institution for
the benefit of the minority community – [Para 139]
3.6. The test of administration should be evaluated in praesenti,
that is, on the date of the commencement of the Constitution –
An institution to be a minority institution must satisfy the
criteria of being ‘administered’ as a minority institution on
the date of commencement of the Constitution, and being
a minority institution on the date of formation – Even if an
educational institution was established by the minority for
the purposes of the community, one must assess the impact
of any subsequent events that altered the character of the
institution before the commencement of the Constitution –
The statutory incorporation of the institution does not ipso
facto amount to a surrender of the minority character of the
institution – The Court must pierce the veil to identify if the
[2024] 11 S.C.R. 1653

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University was established by a minority for the purpose of
promoting the interest of the community – The Court may on
a holistic reading of the statutory provisions relating to the
administrative set-up of the educational institution deduce if
the minority character or the purpose of establishment was
relinquished upon incorporation – The question is whether
the regulatory measures wrest the administrative control from
the founders of the institution – This is a question of fact
which must be determined on the facts of each case – The
Court must make that determination upon a comprehensive
analysis of the administrative framework which includes host
of factors such as the representation of the interests of the
community in the administrative set-up. [Para 140]
3.7. Taken together, these are the main indicia which assist
the Court in determining who established an educational
institution under Article 30 – However, the complex nature
of establishing an educational institution is not lost on us –
Undoubtedly, there can be no straitjacket formula which may
be applied – The above indicia of establishment must be
considered as a whole, along with any relevant facts which
are available to the Court – The matter must be considered
in totality and competing factors must be weighed against
each other depending on the facts and circumstances of
each institution. [Para 141]
3.8. The above indicia must be proved through the submission
of cogent material – Reliance must be placed on primary
sources such as office documents, letters and resolutions
or memorandums issued to implement the resolutions –
Secondary sources must only be used to corroborate the
primary sources – The onus to prove that the educational
institution was established by a minority is on the claimants.
[Para 142]
4. The declaration of an institution as one of national importance
does not amount to a change in the minority character
of the institution – This is for multiple reasons – First,
Entries in the Lists in the Seventh Schedule delineate the
legislative competence of Parliament and of the legislatures
of the States – The State may regulate various aspects
of education and educational institutions – The field of
legislative competence over universities does not amount
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to a surrender of minority character – The distribution of
legislative competence between Parliament and the State
legislatures does not bear upon the minority character of
the institution – Second, as a matter of principle, nothing
prevents a minority educational institution from being an
institution of national importance – The qualities denoted by
the terms ‘national’ and ‘minority’ are not at odds with each
other nor are they mutually exclusive – The former indicates
that the institution has a pan-India or national character, as
opposed to relatively more local or regional institutions – It is
indicative of the importance of the institution on the national
stage – The latter is evidence of the religious or linguistic
background of the founders and the constitutional rights which
vest in them – Each term indicates distinct attributes which
are not antithetical to one another – A university may well
be both national and ergo, of national importance, as well
as minority in character – There is no reason why a minority
educational institution cannot also be an institution of national
importance – Third, Entries 63 and 64 provide Parliament
with the power to declare an institution to be of national
importance – An interpretation that an institution of national
importance cannot be a minority institution would amount to
rendering the fundamental right guaranteed by Article 30(1)
subservient to the legislative power of Parliament – Parliament
can in terms of Entries 63 and 64 declare any institution to
be of national importance. [Para 148]
5. Article 30(1) can be classified as both an anti-discrimination
provision and a special rights provision – A legislation or
an executive action which discriminates against religious
or linguistic minorities in establishing or administering
educational institutions is ultra vires Article 30(1) – This is
the anti-discrimination reading of the provision – Additionally,
a linguistic or religious minority which has established an
educational institution receives the guarantee of greater
autonomy in administration – This is the ‘special rights’ reading
of the provision. [Para 160(b)]
6. Religious or linguistic minorities must prove that they
established the educational institution for the community
to be a minority educational institution for the purposes of
Article 30(1). [Para 160(c)]
[2024] 11 S.C.R. 1655

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7. The right guaranteed by Article 30(1) is applicable to
universities established before the commencement of the
Constitution. [Para 160(d)]
8. The right under Article 30(1) is guaranteed to minorities
as defined upon the commencement of the Constitution –
A different right-bearing group cannot be identified for
institutions established before the adoption of the Constitution.
[Para 160(e)]
9. The incorporation of the University would not ipso facto lead
to surrendering of the minority character of the institution –
The circumstances surrounding the conversion of a teaching
college to a teaching university must be viewed to identify
if the minority character of the institution was surrendered
upon the conversion – The Court may on a holistic reading
of the statutory provisions relating to the administrative
set-up of the educational institution deduce if the minority
character or the purpose of establishment was relinquished
upon incorporation. [Para 160(f)]
10. The following are the factors which must be used to determine
if a minority ‘established’ an educational institution:
i. The indicia of ideation, purpose and implementation
must be satisfied – First, the idea for establishing an
educational institution must have stemmed from a
person or group belonging to the minority community;
second, the educational institution must be established
predominantly for the benefit of the minority community;
and third, steps for the implementation of the idea must
have been taken by the member(s) of the minority
community; and
ii. The administrative-set up of the educational institution
must elucidate and affirm (I) the minority character of
the educational institution; and (II) that it was established
to protect and promote the interests of the minority
community. [Para 160(g)]
11. The question of whether AMU is a minority educational
institution must be decided based on the principles laid down
in this judgment – The papers of this batch of cases shall be
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placed before the regular bench for deciding whether AMU
is a minority educational institution. [Para 161]

Held [per Surya Kant, J.]:
1. The minority institutions established in the pre-Constitution
era are also entitled to the protection conferred by Article
30. [Para 192(g)]
2. Educational institutions, with reference to Article 30 include
universities as well. [Para 192(h)]
3. In order to seek protection under Article 30 of our Constitution,
the minority institution must satisfy the conjunctive test, namely
that it was established by a minority community and has been/
is being administered by such a community. [Para 192(i)]
4. The true import and meaning of the expressions ‘establish’
and ‘administer’, which comprise the very core of Article 30,
are to be construed and understood strictly in accordance
with the indicia in paragraphs 141 and 181. [Para 192(j)]
5. The question pertaining to whether AMU satisfies the
abovementioned test of ‘establish’ and ‘administer’ so as to
seek protection of Article 30 of the Constitution, and which
will concomitantly entail a mixed question of facts and law,
will be determined by a Regular Bench. [Para 192(k)]

Held [per Dipankar Datta, J.]:
1. While the majority opinion seems to have identified
establishment as the sole indicium, Hon’ble Surya Kant and
Hon’ble Satish Chandra Sharma, JJ – have laid equal stress
on administration apart from establishment as the indicia –
Inasmuch as the broad criteria which can be used to assess
the status of an educational institution is concerned, I express
my agreement with the indicia laid out by Their Lordships.
[Para 54]
2. Certain broad indicia, which are universally applicable, may
be applied prospectively to facilitate identification of minority
institutions – However, any indicium or the indicia, as identified
or formulated, for treating an institution as a minority institution
may not be exhaustive so as to cater to all situations – Previous
decisions of this Court have also determined the minority
[2024] 11 S.C.R. 1657

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character of educational institutions vis-à-vis Article 30, as per
indicia tailored to the specific factual matrices – It could be
well-nigh difficult, if not impossible, to fix indicia without regard
to a whole lot of relevant facts and circumstances, which might
have escaped notice or may not have been visualized – A
flexible framework rather than a rigid one-size-fits-all model
is always desirable and essential for accurately assessing
minority institution status – Having regard to special features
that each minority institution is most likely to have, a nuanced
approach would be required to identify minority institutions
by balancing the general guidelines with unique institutional
circumstances – The indicia, which have been proposed, could
partly inform classification of minority institutions but a tailored
evaluation is all the more necessary to account for distinct
characteristics which each such institution is associated with;
more so, when AMU is unique in itself and its status is under
consideration as a standalone institution. [Para 57]
3. It is no longer res integra that even institutions established
prior to the Constitution would be eligible to seek the protection
of Article 30(1), as was expressed by this Court in Re: The
Kerala Education Bill, 1957. [Para 67]
4. The claim of the appellants cannot stand – AMU was neither
established by any religious community, nor is it administered
by a religious community which is regarded as a minority
community; hence, AMU does not qualify as a minority
institution – Protection under Article 30(1) of the Constitution
is, thus, not available – This submission of the appellants
has no historic, legal, factual, or logical basis. [Para 149]
5. In terms of clause (5) of Article 145 of the Constitution, not only
do the references not require an answer, it is also declared
that AMU is not a minority educational institution and that the
appeals seeking minority status for it should fail. [Para 150]

Held [per Satish Chandra Sharma, J.]:
1. The ‘establishment’ of an institution by the minority is
necessary for the said minority to claim right of administration
under Article 30 – The words ‘establish’ and ‘administer’ are
used conjunctively in Article 30 of the Constitution. [Para 266]
2. The term ‘establish’ in Article 30 means ‘to bring into existence
or to create’ and cannot be conflated with generic phrases
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such as ‘genesis of the institution’ or the ‘founding moment
of the institution’. [Para 266]
3. The real positive indicia for determining the question of
establishment of an institution would have to be developed
on a case to case basis with the following broad parameters
in mind:
Firstly, to claim ‘establishment’, the minority community
must actually and tangibly bring the entirety of the institution
into existence – The role played by the minority community
must be predominant, in fact almost complete to the point
of exclusion of all other forces – The indicia which may
be illustrative and exhaustive in this regard may be the
nature of the institution, the legal/statutory basis required
for establishing the institution, whether the establishment
required any ‘negotiation’ with outside forces, the role in
acquiring lands, obtaining funds, constructing buildings,
and other related matters must have been held completely
by the minority community – Similarly, while teachers,
curriculum, medium of instruction, etc. can be on secular
lines, however, the decision-making authority regarding
hiring teachers, curriculum decisions, medium of instruction,
admission criteria, and similar matters must be the minority
community – The choice of having secular education in the
institution must be made expressly by the minority community,
demonstrating the link between institution and the persons
claiming to establish it.
Secondly, the purpose of the institution must have been to
predominantly serve the interests of the minority community
or the sole betterment of the minority community, irrespective
of the form of education provided and the mode of admission
adopted – Therefore, as per the choice of the minority
community, an institution may have secular education, but
such secular education and the resultant institution, must
be predominantly meant for the overall betterment of the
minority community.
Thirdly, the institution must be predominantly administered as
a minority institution with the actual functional, executive and
policy administration vested with the minority – The minority
community should determine the selection, removal criteria,
and procedures for hiring teaching, administrative staff, and
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other personnel – The authority to hire and fire staff must
be from the minority community – Further, even if teaching
or administrative staff may include non-minority persons, the
final authority exercising functional, directional, and policy
control over these authorities must be from the minority
community – This ensures that the thoughts, beliefs, and
ideas of the minority community regarding administration are
implemented in reality – This represents the real decision-
making authority of the institution being of the minority
community – In ascertaining the above, it would be open
for the Court to look at the true purpose behind each of the
above factors and to pierce the veil. [Para 266]
4. The minority community may conceptualize the idea of an
institution and may advocate for the same, however, if during
exchange or negotiation, the actual institution which was
established had primacy of governmental efforts and control,
then such institution cannot be held to be predominantly
established by the efforts and actions of the minority
community. [Para 266]
5. In the pre-independence and pre-UGC era, in the absence of
a provision like Section 23 of the UGC Act, 1956, it was open
for any institutions to adopt the titles such as ‘university’ or in
some cases ‘vidyapeeth’ or ‘jamia’ asserting their capability to
grant degrees – The absence of a legislative embargo from
private establishment of Universities prior to 1956 would be
critical for the scope of enquiry. [Para 266]
6. The use of the phrase ‘establish and incorporate’ by the
Legislature may be relevant in the larger enquiry but cannot
be said to be conclusively determinative of the factum of
establishment or not by the minority community – If the
intention of the Legislature is to establish or incorporate
or recognise a minority University, the Legislatures have
incorporated suitable provisions to colour the University with
a minority identity. [Para 266]
7. There were no rights, fundamental or otherwise, prior to
the Constitution coming into force and therefore, there is
no question of surrendering any right – The British Indian
Government was a supreme Imperial power in the country, and
the question of surrender is illusionary and does not arise in
the present case – The coming into force of the Constitution
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and fundamental right after 1950, cannot alter the events that
occurred during the decade of 1910-1920 which led to the
establishment of the AMU. [Para 266]
8. There is no legal requirement for the AMU ‘Court’ to be manned
by the people from the minority community ever since 1951
and therefore, merely because de facto the persons from
the minority community may have manned the posts in the
institution, would not be relevant to adjudicate the question.
[Para 266]
9. The assertion that ‘neutral’ institutions or non-minority
institutions would in the natural course of things be ‘majoritarian’
or that Article 30 contemplates constitutionally protecting
certain educational spaces from such ‘majoritarianism-by-
default’ tendencies, is wholly erroneous – The purpose of
Article 30 is not to create ‘minority only’ ghettos rather provide
positive rights to the minorities to establish educational
institutions of their choice and kind. [Para 266]
10. Article 30, as a feature of the Constitution, provides
important rights which function within the larger penumbra of
fundamental rights – There is substantial interplay, intermixing
and balancing of rights inter se within the fundamental rights
and Article 30 is not absolute and certainly do not exist in a
silo. [Para 266]
11. The crux of Article 30(1) lies in its mandate to ensure parity
between non-minority [or ‘neutral’] institutions and minority
institutions – Its fundamental aim is to prevent any form
of discrimination or preferential treatment to non-minority
communities, thereby advocating for equal treatment under
the law for one and all – This provision underscores that no
specific category or type of institution should be disadvantaged
or unduly favoured over another within the legal framework.
[Para 266]
12. To assume that the minorities of the country require some
‘safe haven’ for attaining education and knowledge is wholly
incorrect – The minorities of the country have not just joined
the mainstream but comprise an important facet of the
mainstream itself. The institutions of national character of
the country always serve the interests of the minorities and
are diverse centers of learning. [Para 266]
[2024] 11 S.C.R. 1661

Aligarh Muslim University v. Naresh Agarwal & Ors.

B. Educational Institution – Minority educational institution –
Status of AMU vis-à-vis minority rights – Whether
the Constitution Bench decision in Azeez Basha was
incorrect.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv
Khanna, J.B. Pardiwala and Manoj Misra, JJ.)]: The view taken
in Azeez Basha that an educational institution is not established
by a minority if it derives its legal character through a statute, is
overruled. [Para 161]
Held [per Surya Kant, J.]: The Constitution Bench in Azeez
Basha, when it holds that since Section 6 of the AMU Act, 1920
stipulates that degrees conferred by AMU would be recognised
by the Government, it could not have been ‘brought into existence
by a private individual or body’, is seemingly incorrect – There
is no conflict between the seven-judge bench opinion in Kerala
Education Bill and the five-judge Constitution Bench in Azeez Basha
on the other – The six-judge Constitution Bench in Sidhajbhai
Sabhai, laying down that the right under Article 30 is absolute and
unconditional, is not the correct principle of law; the judgement is
no more binding in nature and stands effectively overruled in TMA
Pai, to that extent – Consequently, Azeez Basha does not suffer
from any legal infirmity on the premise that it did not cite or follow
Sidhajbhai Sabhai. [Para 192(a), (b) and (f)]
Held [per Dipankar Datta, J.]: Not only is Azeez Basha a judicial
verdict more than half a century old on the status of AMU vis-à-
vis minority rights, but it has a strong foundational basis and is
anchored in robust legal reasoning – The view taken therein, in the
given facts and circumstances, is indeed a plausible view which
demands due deference rather than the view being overruled at
this distance of time. [Para 14]
Held [per Satish Chandra Sharma, J.]: The notion that Azeez
Basha categorically prohibits minorities from establishing universities
due to statutory requirements is unfounded – The bench in Azeez
Basha and present bench are faced with a unique situation and
needs to adopt a suitably modulated approach – The judgment
in Azeez Basha does not preclude minorities from establishing
universities but rather highlights the importance of legislative intent
and statutory provisions in determining an institution’s character –
The UGC Act or the judgment in Yashpal, in no manner, comes to
the aid of the parties challenging the correctness of the judgment
1662 [2024] 11 S.C.R.

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in Azeez Basha – The amendment in the NCMEI Act 2004 does
not come to the aid of the parties questioning the correctness of
the decision in Azeez Basha.

C. Judicial discipline – Preliminary objection to reference –
Whether two-Judge Bench of Supreme Court in Anjuman-
e-Rahmaniya could not have referred the correctness of
the decision rendered by the Constitution Bench in Azeez
Basha directly to a Bench of seven Judges.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,
J.B. Pardiwala and Manoj Misra, JJ.)]:
1. In Central Board of Dawoodi Bohra Community, a Constitution
Bench discussed the legal precepts which apply to orders of
reference and reiterated the position of law as below:-
a. Decisions of this Court rendered by a Bench of larger
strength are binding on Benches of a less or equal
strength;
b. If a Bench of lower strength is doubtful about the
correctness of a judgment delivered by a Bench of
larger strength, it cannot disagree or dissent from the
view taken by the larger Bench – In case of doubt, it
can invite the attention of the Chief Justice of India
to its opinion and request the Chief Justice to list
the matter before a Bench, the strength of which is
greater than that which delivered the judgment which
has been doubted;
c. The correctness of the view taken by any Bench can
only be doubted by a Bench of equal strength – The
matter will then be placed for hearing before a Bench
of greater strength;
d. There are two exceptions to the rules: i. The discretion
of the Chief Justice is not bound by the rules – As the
master of the roster, the Chief Justice may list any case
before any Bench of any strength; ii. Despite the rules,
if a particular case has come up for hearing before a
Bench of larger strength and that Bench is of the opinion
that the judgment of the Bench of lower strength requires
reconsideration or correction, or is otherwise doubtful
of its correctness, it may dispense with the need for a
[2024] 11 S.C.R. 1663

Aligarh Muslim University v. Naresh Agarwal & Ors.

reference in the terms described above or an order of
the Chief Justice and hear the matter for reasons given
by it. [Para 37]
2. The position of law laid down in Central Board of Dawoodi
Bohra Community is correct – Decisions of a larger Bench
are binding precedent, and judicial discipline and propriety
dictate that Benches of lower strength must adhere to
such decisions – This will also avoid inconsistencies in the
development of law – Questions concerning the correctness
of judgments must ordinarily be referred only by a Bench
which is equal in strength to the Bench whose judgment is
doubted – We also agree with the two exceptions to this
rule, as detailed by this Court in Central Board of Dawoodi
Bohra Community – They must remain exceptions and not
transmogrify into the rule itself. [Para 38]
3. The three issues which required an authoritative
pronouncement in Anjuman-e-Rahmaniya, were not directly a
point of contention in Azeez Basha – However, the decision
would have a bearing on them – Doubting the correctness of
the opinion in Azeez Basha, without disagreeing with it, the
two-Judge Bench requested that the matter may be placed
before the Chief Justice of India for being heard by a Bench
of seven Judges – This falls within the permissible limits
laid down in Central Board of Dawoodi Bohra Community –
Further, the Solicitor General has also stated that he is not
pressing the Union’s preliminary objection – The order of
reference dated 12 February 2019 (wherein a three-Judge
Bench of this Court observed that the correctness of the
question arising from the decision in Azeez Basha was
unanswered, and then referred the matter to a seven-Judge
Bench), too, noted that although a three-Judge Bench
could not ordinarily refer a case directly to a seven-Judge
Bench, it was doing so in this case because the question
was already referred to a Bench of seven Judges but was
not answered. [Para 39]
4. The reference in Anjuman-e-Rahmaniya of the correctness of
the decision in Azeez Basha was valid – The reference was
within the parameters laid down in Central Board of Dawoodi
Bohra Community. [Para 160(a)]
1664 [2024] 11 S.C.R.

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Held [per Surya Kant, J.]:
1.1. The two-judge bench in Anjuman, after expressing doubt
about the correctness of Azeez Basha and its principles,
referred the matter for reconsideration to a larger bench –
Additionally, the bench in Anjuman specifically stated that
the larger bench reviewing Azeez Basha — A decision by
a five-judge bench—Should consist of seven judges – The
decision further directed that the matter be placed before
the Hon’ble Chief Justice for appropriate directions – Such
a reference is not consistent with the established norms of
judicial propriety. [Paras 90, 91]
1.2. The principles enunciated in Dawoodi Bohra re-enforce
the provisions of the Supreme Court Rules referred to
earlier, and also reiterate the well-established principles
based upon doctrines of predictability, consistency, finality
and the principle of stare decisis – The two-judge bench in
Anjuman, ought to have understood and applied the law,
consistent with these principles – The two-judge bench in
Anjuman being of lesser strength than the five-judge bench
in Azeez Basha, lacked the authority to explicitly question
the correctness of Azeez Basha and refer the matter to a
seven-judge bench. [Para 93]
1.3. In Anjuman, the bench not only referred the matter but also
specified the numerical strength of the bench to which it
should be referred, with a further direction that the matter
be placed before the Chief Justice for the limited purpose of
notifying the composition of the seven-judge bench – This
effectively impaired the Chief Justice’s authority as the
master of the roster – Allowing such a practice would enable
benches of lesser strength, such as a two-judge bench, to
undermine the decisions of larger benches, potentially even
an eleven-judge bench – This would also place the Chief
Justice in an untenable position, who would be bound by a
judicial order while acting in an administrative role, leading
to procedural complications and embarrassment. [Para 94]
2. There is no substantial difference between ‘doubting’ or
‘disagreeing’ with a judgement – That being so, the reference
by a two-judge bench in Anjuman doubting the correctness
of the five-judge bench in Azeez Basha and referring it to a
[2024] 11 S.C.R. 1665

Aligarh Muslim University v. Naresh Agarwal & Ors.

seven-judge bench suffers from multiple illegalities, including
judicial impropriety. [Para 192(c)]
3. In view of the dictum of the Constitution Bench in Dawoodi
Bohra, a two-judge bench has no authority whatsoever to
doubt or disagree with a judgement of the larger bench,
and directly refer the matter to a bench having a numerically
greater strength than the matter so doubted – The reference
by the two judge bench in Anjuman is nothing but a challenge
to the authority of the Chief Justice of India being the
master of the roster and in derogation of the special powers
enjoyed upon under Article 145 of the Constitution read with
Order VII Rule 2 of the Supreme Court Rules, 1966 (as
was applicable) – Consequently, the said reference is not
maintainable – However, the subsequent reference dated
12.02.2019, in which the then Hon’ble Chief Justice of India
was the presiding judge, is maintainable. [Para 192(d)]
4. The reference in Anjuman to a seven-judge bench for the
reconsideration of the five-judge decision in Azeez Basha is
bad in law and ought to be set aside. [Para 192(e)]

Held [per Dipankar Datta, J.]:
1.1. It has been considered uniformly to be an act of breach of
judicial propriety and discipline if a bench of lesser strength [of
2 (two) Judges] casts doubt in respect of a decision rendered
by a bench of greater strength [of 5 (five Judges] and a
request is made to the Chief Justice of India to constitute a
still larger Bench [of 7 (seven Judges] – This concept was
extensively ratiocinated in Central Board of Dawoodi Bohra
Community vs. State of Maharashtra. [Para 24]
1.2. If “doubting the correctness of the opinion in Azeez Basha,
without disagreeing with it” could permit the bench in Anjuman-
e-Rahmania to request the Chief Justice of India to place
the matter for being heard by a bench of 7 (seven) Judges
and such a course of action were held to be permissible
and within the limits of Central Board of Dawoodi Bohra
Community, as proposed in the majority opinion - I am afraid,
tomorrow, a bench of 2 (two) Judges, referring to opinions
of jurists [as in Anjuman-e-Rahmania] could well doubt the
‘basic structure’ doctrine and request the Chief Justice of
India to constitute a bench of 15 (fifteen) Judges – The
1666 [2024] 11 S.C.R.

Supreme Court Reports

reasoning in the majority opinion, with due respect, appears
to be based on an incomplete reading of paragraph 12(2) of
Central Board of Dawoodi Bohra Community – Though the
second sentence of the said paragraph is a bit ambiguous,
but the same read harmoniously with the other sentences
would lead to the inevitable conclusion that even in case of
a doubt being expressed by a bench of 2 (two) Judges in
respect of the ratio laid down by a bench of 5 (five) Judges,
the case on a reference being made (with sufficient reasons)
ought to be first placed before a bench of 3 (three) Judges,
and not to a bench of either 5 (five) or 7 (seven) Judges –
If, indeed, the proposed view in the majority opinion were
accepted, all the precedents referred to above would stand
overruled and a legal principle, which hitherto no bench of
this Court did, would be laid down and, in the process, the
floodgates for unmeritorious references opened – That would
be an incorrect and improper approach – Hence, the order
of reference in Anjuman-e-Rahmania must be regarded as
completely flawed and non-est. [Para 28]
2. The essence of the law laid down in State of Kerala vs. Very
Rev. Mother Provincial, which is a decision of the Constitution
Bench of 6 (six) Judges of this Court rendered more than
half a century back, and has never been doubted by any
subsequent bench, is that the minority institution should have
been established for the benefit of a minority community by
a member of that community – Attention of the bench of 2
(two) Judges in Anjuman-e-Rahmania was not invited to
this and one is left to wonder whether the reference would
have at all been made if Very Rev. Mother Provincial was
cited – There being no reference in Anjuman-e-Rahmania
of Very Rev. Mother Provincial, a binding decision, certainly
the said decision of the Constitution Bench had not been
placed before the bench of 2 (two) Judges by the set of
counsel appearing before it who agreed with the bench on
the question of (in)correctness of Azeez Basha – Also, there
cannot be any comparison of chalk and cheese – The case
dealt with by Azeez Basha and the one arising for decision
in Anjuman-e-Rahmania were fundamentally different and in
stark contrast with each other – Therefore, even on merits,
there was no good reason to make a reference for being
placed before a bench of 7 (seven) Judges which Anjuman-
e-Rahmania ordered. [Para 42]
[2024] 11 S.C.R. 1667

Aligarh Muslim University v. Naresh Agarwal & Ors.

Held [per Satish Chandra Sharma, J.]: The bench of two judges
in Anjuman-e-Rehmania & Ors v. Distt. Inspector of School & Ors.
could not have referred the matter to a bench of seven Hon’ble
Judges directly, without the Hon’ble Chief Justice of India, being
a part of the bench. [Para 266]

Case Law Cited

In the judgment of Dr. D.Y. Chandrachud, CJI:
S Azeez Basha v. Union of India [1968] 1 SCR 833 : AIR 1968
SC 662 – overruled.
Prof. Yashpal v. State of Chhattisgarh [2005] 2 SCR 23 : (2005)
5 SCC 420 – held inapplicable.
Central Board of Dawoodi Bohra Community v. State of Maharashtra
[2004] Supp. 6 SCR 1054 : (2005) 2 SCC 673; TMA Pai
Foundation v. State of Karnataka [2002] Supp. 3 SCR 587 : (2002)
8 SCC 481; Rev. Sidhajbhai Sabhai v. State of Bombay [1962] 3
SCR 837; In re Kerala Education Bill [1958] 1 SCR 995 – relied on.
Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye [2010] 4 SCR
15 : (2010) 4 SCC 378 – distinguished.
Anjuman-e-Rahmaniya v. District Inspector of Schools [Supreme
Court decision in W.P.(C) No. 54-57 of 1981] – affirmed.
Indira Sawhney (II) v. Union of India & Ors., AIR 2000 SC 498; A.K.
Gopalan v. State of Madras, AIR 1950 SC 27; Rustom Cavasjee
Cooper v. Union of India [1970] 3 SCR 530 : (1970) 1 SCC 248;
Maneka Gandhi v. Union of India [1978] 2 SCR 621 : (1978) 1
SCC 248; Ahmedabad St. Xaviers College Society and Anr. v.
State of Gujarat and Anr. [1975] 1 SCR 173 : AIR 1974 SC 1389;
Rev. Father W. Proost and Ors. v. State of Bihar and Ors. [1969]
2 SCR 73; PA Inamdar v. State of Maharashtra [2005] Supp. 2
SCR 603 : (2005) 6 SCC 537; State of Kerala v. Very Rev. Mother
Provincial [1971] 1 SCR 734 : (1970) 2 SCC 417; Manager, St.
Thomas UP School v. Commr. & Secy, to general Education Dept.
(2002) 2 SCC 497; DAV College trust & Management Society v.
State of Maharashtra [2013] 4 SCR 821 : (2013) 4 SCC 14; SP
Mittal v. Union of India [1983] 1 SCR 729 : (1983) 1 SCC 51; The
Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383 :
(1962) 1 S.C.P 383; Rev. Bishop SK Patro v. State of Bihar [1970]
1 SCR 172 : (1969) 1 SCC 863; In re Special Courts Bill [1979] 2
SCR 476 : (1979) 1 SCC 380; SEBI v. Rajpur Nagpal [2022] 15
1668 [2024] 11 S.C.R.

Supreme Court Reports

SCR 1 : (2023) 8 SCC 274; Keshavan Madhava Menon v. State of
Bombay [1951] 1 SCR 228 : AIR 1951 SC 128; Sukhdev Singh v.
Bhagatram Sardar Singh Raghuvanshi [1975] 3 SCR 619 : (1975)
1 SCC 421; Vaish Degree College v. Lakshmi Narain [1976] 2
SCR 1006 : (1976) 2 SCC 58; S.S. Dhanoa v. MCD [1981] 3 SCR
864 : (1981) 3 SCC 431 – referred to.
Dr. Naresh Agarwal v. Union of India, 2005 SCC OnLine All
1705 – referred to.
Aligarh Muslim University v. Malay Shukla Judgment in Special
Appeal No 1321 of 2005 and connected matters, High Court
of Allahabad – referred to.
St. David’s College, Lampeter v. Ministry of Education, 1951 All
ER 559 – referred to.

In the judgment of Surya Kant, J.:
S. Azeez Basha v. Union of India [1968] 1 SCR 833 – modified
and clarified to an extent.
Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR 837 –
held overruled.
Central Board of Dawoodi Bohra Community and another v. State
of Maharashtra and another (2005) 2 SCC 673; Right Rev. Bishop
S.K. Patro v. State of Bihar [1970] 1 SCR 172 : (1969) 1 SCC 863;
A.P. Christian Medical Educational Society v. Govt. of A.P. [1986]
2 SCR 749 : (1986) 2 SCC 667; T. Varghese George v. Kora K.
George [2011] 12 SCR 1070 : (2012) 1 SCC 369; Dayanand Anglo
Vedic (DAV) College Trust and Management Society v. State of
Maharashtra [2013] 4 SCR 821 : (2013) 4 SCC 14; St. Stephen’s
College v. University of Delhi [1991] Supp. 3 SCR 121 : (1992) 1
SCC 558; State of Kerala v. Very Rev. Mother Provincial [1971]
1 SCR 734 : (1970) 2 SCC 417; Dalco Engg. (P) Ltd. v. Satish
Prabhakar Padhye [2010] 4 SCR 15 : (2010) 4 SCC 378; Executive
Committee of Vaish Degree College v. Lakshmi Narain [1976] 2
SCR 1006 : (1976) 2 SCC 58; – relied on.
Aligarh Muslim University v. Naresh Agarwal [2009] 2 SCR 907 :
(2020) 13 SCC 737; TMA Pai Foundation v. State of Karnataka
[2002] Supp. 3 SCR 587 : (2002) 8 SCC 481; Prof. Yashpal v.
State of Chhattisgarh [2005] 2 SCR 23 : (2005) 5 SCC 420; P.A.
Inamdar v. State of Maharashtra [2005] Supp. 2 SCR 603 : (2005)
6 SCC 537; Islamic Academy of Education v. State of Karnataka
[2024] 11 S.C.R. 1669

Aligarh Muslim University v. Naresh Agarwal & Ors.

[2003] Supp. 2 SCR 474 : (2003) 6 SCC 697; Secy., Malankara
Syrian Catholic College v. T. Jose [2006] Supp. 9 SCR 644 : (2007)
1 SCC 386; In re the Kerala Education Bill,1957 [1959] 1 SCR
995; Krishen Kumar v. Union of India [1990] 3 SCR 352 : (1990)
4 SCC 234; State of Uttar Pradesh v. Ajay Kumar Sharma [2015]
12 SCR 627 : (2016) 15 SCC 292; Shanker Raju v. Union of India
[2011] 2 SCR 1 : (2011) 2 SCC 132; SEBI v. Rajkumar Nagpal
[2022] 15 SCR 1 : (2023) 8 SCC 274; Ashoka Kumar Thakur v.
Union of India (2008) 4 SCR 1 : (2008) 6 SCC 1; S.P. Mittal v.
Union of India (1983) 1 SCC 51; Rev. Father W. Proost and Ors. v.
State of Bihar and Ors. [1969] 2 SCR 73; Ahmedabad St. Xaviers
College Society and Anr. v. State of Gujarat and Anr. [1975] 1 SCR
173 : AIR 1974 SC 1389; Gandhi Faiz-e-am-College v. University
of Agra and Anr. [1975] 3 SCR 810 : (1975) 2 SCC 283; Kolawana
Gram Vikas Kendra v. State of Gujarat and Anr. [2009] 15 SCR
272 : (2010) 1 SCC 133; All Saints High School v. Govt. of A.P.
and Ors. [1980] 2 SCR 924:(1980) 2 SCC 478 Christian Medical
College Vellore Assn. v. Union of India [2020] 5 SCR 516 : (2020)
8 SCC 705; Modern School v. Union of India and Ors. [2004]
Supp. 1 SCR 668 : (2004) 5 SCC 583; Father Thomas Shingare
and Ors. v. State of Maharashtra and Ors. [2001] Supp. 5 SCR
636 : (2002) 1 SCC 758; Andhra Kesari College of Education v.
State of A.P. [2019] 12 SCR 669 : (2019) 9 SCC 457; Society for
Unaided Private Schools of Rajasthan v. Union of India [2012] 2
SCR 715 : (2012) 6 SCC 1; Icon Education Society v. State of
M.P. and Ors. [2023] 2 SCR 728 : 2023 SCC OnLine SC 289;
Islamic Academy of Education v. State of Karnataka and Ors.
[2003] Supp. 2 SCR 474 : 2003 6 SCC 697; Cochin University of
Science & Technology and Anr. v. Thomas P. John and Ors. [2008]
7 SCR 887 : (2008) 8 SCC 82; Board of Secondary Education and
Teachers Training v. Jt. Director of Public Instructions (1998) 8 SCC
555; Ivy C.Da. Conceicao v. State of Goa and Ors. [2017] 1 SCR
445 : (2017) 3 SCC 619; The Manager, Corporate Educational
Agency v. James Mathew and Ors. [2017] 6 SCR 498 : (2017)
15 SCC 595; R. Sulochana Devi v. D.M. Sujatha & Ors. [2004]
Supp. 5 SCR 1 : (2005) 9 SCC 335; Lilly Kurian v. Sr. Lewina
and Ors. [1979] 1 SCR 820 : AIR 1979 SC 52; State of Karnataka
and Anr. v. Associated Management of English Medium Primary &
Secondary Schools and Ors. [2014] 5 SCR 1104 : (2014) 9 SCC
485; Society for Unaided Private Schools of Rajasthan v. Union
of India and Anr. [2012] 2 SCR 715 : (2012) 6 SCC 1; Pramati
Educational & Cultural Trust and Ors. v. Union of India and Ors.
1670 [2024] 11 S.C.R.

Supreme Court Reports

[2014] 11 SCR 712 : (2014) 8 SCC 1; G. Vallikumari v. Andhra
Education Society (2010) 2 SCC 497; Frank Anthony Public School
Employees’ Assn. v. Union of India and Ors. [1987] 1 SCR 238 :
(1986) 4 SCC 707; State of Karnataka and Anr. v. Associated
Management of English Medium Primary & Secondary Schools
and Ors. [2014] 5 SCR 1104 : (2014) 9 SCC 485 – referred to.
Sehajdhari Sikh Federation v. Union of India and others, 2011 SCC
Online P&H 17374; Manager, Rajershi Memorial Basic Training
School v. State of Kerala, 1972 SCC OnLine Ker 111; Rt. Rev.
Dr. Aldo Maria Patroni v. Assistant Educational Officer, 1973 SCC
OnLine Ker 60; A. Raju and Ors. v. Manager, Nallor Narayana
L.P. Basic School & Ors., 2019 SCC OnLine Ker 16483; Dipendra
Nath Sarkar v. State of Bihar & Ors., 1960 SCC OnLine Pat 205;
Rt. Rev. Dr. Aldo Maria Patroni v. Assistant Educational Officer,
1973 SCC OnLine Ker 60, para 7; A. Raju and Ors. v. Manager,
Nallor Narayana L.P. Basic School & Ors., 2019 SCC OnLine Ker
16483 and Dipendra Nath Sarkar v. State of Bihar & Ors., 1960
SCC OnLine Pat 205 – referred to.
Anjuman-e-Rahmaniya v. District Inspector of Schools. [Supreme
Court decision in W.P.(C) No. 54-57 of 1981] – bad in law.

In the judgment of Dipankar Datta, J.:
Supertech Ltd. v. Emerald Court Owner Residents Association
[2021] 10 SCR 569 : (2023) 10 SCC 817; Maganlal Chhaganlal
(P) Ltd. v. Municipal Corpn. of Greater Bombay [1975] 1 SCR 1 :
(1974) 2 SCC 402; Re: Kerala Education Bill [1959] 1 SCR 995;
Lala Shri Bhagwan v. Shri Ram Chand [1965] 3 SCR 218; Central
Board of Dawoodi Bohra Community v. State of Maharashtra [2004]
Supp. 6 SCR 1054 : (2005) 2 SCC 673; Union of India v. Hansoli
Devi & Ors. [2002] Suppl. 2 SCR 324 : (2002) 7 SCC 273; Pradip
Chandra Parija v. Pramod Chandra Patnaik [2001] Supp. 5 SCR
460 : (2002) 1 SCC 1; Campaign for Judicial Accountability and
Reforms v. Union of India [2017] 12 SCR 331 : (2018) 1 SCC
196 – relied on.
Union of India v. Tulsiram Patel [1985] Supp. 2 SCR 131 : (1985)
3 SCC 398; S. Azeez Basha and Anr. v. Union of India [1968] 1
SCR 833; Aligarh Muslim University v. Naresh Agarwal and Ors.
[2020] 4 SCR 706 : (2020) 13 SCC 737; M. P. Sharma v. Satish
Chandra [1954] 1 SCR 1077 : (1954) 1 SCC 385; T.M.A. Pai
[2024] 11 S.C.R. 1671

Aligarh Muslim University v. Naresh Agarwal & Ors.

Foundation and ors. v. State of Karnataka and Ors. [2002] Supp.
3 SCR 587 : (2002) 8 SCC 481; Shahal H. Musaliar and Anr. v.
Union of India and Ors., Writ Petition (C) No. 331 of 2005; Islamic
Academy of Education v. State of Karnataka [2003] Supp. 2 SCR
474 : (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra
[2005] 2 Supp. SCR 603 : (2005) 6 SCC 537; Prof. Yashpal v.
State of Chhattisgarh [2005] 2 SCR 23:(2005) 5 SCC 420; State
of Kerala v. Very Rev. Mother Provincial [1971] 1 SCR 734 : (1970)
2 SCC 417; St. Stephen’s College v. University of Delhi [1991]
Supp. 3 SCR 121:(1992) 1 SCC 558; A.P. Christian Medical
Educational Society v. Govt. of A.P. [1986] 2 SCR 749 : (1986)
2 SCC 667; Ahmedabad St. Xavier’s College Society v. State of
Gujarat [1975] 1 SCR 173:(1974) 1 SCC 717; Dayanand Anglo
Vedic (DAV) College Trust and Management Society v. State of
Maharashtra [2013] 4 SCR 821 : (2013) 4 SCC 14 – referred to.
Anjuman-e-Rahmania and Ors. v. Distt. Inspector of School and
Ors. [Supreme Court decision in Writ Petition (Civil) Nos. 54-57
of 1981] – non-est in law.

In the judgment of Satish Chandra Sharma, J.:
S. Azeez Basha v. Union of India [1968] 1 SCR 833 – clarified.
Prof. Yashpal v. State of Chhattisgarh [2005] 2 SCR 23 : (2005)
5 SCC 420 – held inapplicable.
T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
587 : (2002) 8 SCC 481; In Re Kerala Education Bill, 1957 [1959]
1 SCR 995; Ahmedabad St. Xavier’s College Society v. State of
Gujarat [1975] 1 SCR 173 : (1974) 1 SCC 717 – relied on.
Dalco Engineering Pvt. Ltd. v. Satish Prabhakar Padhye [2010] 4
SCR 15 : (2010) 4 SCC 378 – distinguished.
P.A. Inamdar v. State of Maharashtra [2005] Supp. 2 SCR 603 :
(2005) 6 SCC 537; St. Stephen’s College v. University of Delhi
[1991] Supp. 3 SCR 121 : (1992) 1 SCC 558 [5-Judge Bench];
Rev. Father W Proost v. State of Bihar [1969] 2 SCR 73 [5-Judge
Bench]; Right Rev. Bishop SK Patro v. State of Bihar [1970]
1 SCR 172 : (1969) 1 SCC 863 [5-Judge Bench]; Sidhajbhai
Sabhai v. State of Bombay [1963] 3 SCR 837; A.P. Christians
Medical Educational Society v. Government of Andhra Pradesh
[1986] 2 SCR 749 : (1986) 2 SCC 667; Dir. of Endowments Gov.
1672 [2024] 11 S.C.R.

Supreme Court Reports

of Hyderabad v. Syed Akram Ali, AIR 1956 SC 60; State of Kerala
v. Very Rev. Mother Provincial [1971] 1 SCR 734 : (1970) 2 SCC
417; Bal Patil v. Union of India [2005] Supp. 2 SCR 459 : (2005) 6
SCC 690; Hyderabad Asbestos Cement Products v. Union of India
[1999] Supp. 5 SCR 155 : (2000) 1 SCC 426; M. Siddiq (Ram
Janambhumi Temple Reference-5J) v. Mahant Suresh Das [2019]
18 SCR 1 : (2020) 1 SCC 1; Indira Sawhney v. Union of India &
Anr. [1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; Mullaperiyar
Environmental Protection Forum v. Union Of India & Ors. [2006]
2 SCR 740 : (2006) 3 SCC 643; Sukhdev Singh v. Bhagatram
Sardar Singh Raghuvanshi [1975] 3 SCR 619:(1975) 1 SCC
421; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay
[1962] 2 Supp. SCR 496; Bharat Petroleum Corpn. Ltd. v. Mumbai
Shramik Sangha [2001] 3 SCR 208 : (2001) 4 SCC 448; Pradip
Chandra Parija v. Pramod Chandra Patnaik [2001] Supp. 5 SCR
460 : (2002) 1 SCC 1; Chandra Prakash v. State of U.P. [2002]
2 SCR 913 : (2002) 4 SCC 234; Vishweshwaraiah Iron & Steel
Ltd. v. Abdul Gani (2002) 10 SCC 437; Arya Samaj Education
Trust v. Director of Education (2004) 8 SCC 30; Central Board
of Dawoodi Bohra Community and Anr. v. State of Maharashtra
and Anr. [2004] Supp. 6 SCR 1054 : (2005) 2 SCC 673; Govt.
of A.P. v. B. Satyanarayana Rao (2000) 4 SCC 262; Shrimanth
Balasaheb Patil v. Speaker, Karnataka Legislative Assembly [2019]
16 SCR 886 : (2020) 2 SCC 595; Joint Commissioner of Income
Tax, Surat v. Saheli Leasing & Industries Ltd. [2010] 6 SCR 747 :
(2010) 6 SCC 384; Kantaru Rajeevaru (Right to Religion, In re-9
J.) (2) v. Indian Young Lawyers Association [2019] 17 SCR 599 :
(2020) 9 SCC 121; S.P. Mittal v. Union of India [1983] 1 SCR 729 :
(1983) 1 SCC 51; Dayanand Anglo Vedic (DAV) College Trust and
Management Society v. State of Maharashtra [2013] 4 SCR 821
: (2013) 4 SCC 14; Sakshi v. Union of India [2004] Supp. 2 SCR
723 : (2004) 5 SCC 518; Milkfood Ltd. v. GMC Ice Cream Private
Ltd. (2004) 7 SCC 288; Narinder Singh v. State of Punjab [2014]
4 SCR 1012 : (2014) 6 SCC 466; Shah Faesal v. Union of India
[2020] 3 SCR 1115 : (2020) 4 SCC 1; D.A.V. College v. State of
Punjab (1971) 2 SCC 269; Gandhi Faiz-e-am-College v. University
of Agra [1975] 3 SCR 810 : (1975) 2 SCC 283; Rt. Rev. Msgr.
Mark Netto v. State of Kerala [1979] 1 SCR 609 : (1979) 1 SCC
23; Lily Kurian v. Lewina [1979] 1 SCR 820 : (1979) 2 SCC 124;
Christian Medical College Hospital Employees’ Union v. Christian
Medical College Vellore Association [1988] 1 SCR 546 : (1987)
[2024] 11 S.C.R. 1673

Aligarh Muslim University v. Naresh Agarwal & Ors.

4 SCC 691; Al-Karim Educational Trust v. State of Bihar (1996) 8
SCC 330; Yunus Ali Sha v. Mohamed Abdul Kalam (1999) 3 SCC
676; Society of St. Joseph’s College v. Union of India (2002) 1 SCC
273; Secy., Malankara Syrian Catholic College v. T. Jose [2006]
Supp. 9 SCR 644 : (2007) 1 SCC 386; Satimbla Sharma v. St
Paul’s Senior Secondary School [2011] 10 SCR 203 : (2011) 13
SCC 760; Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1
SCR 383; P.S. Sathappan v. Andhra Bank Ltd. & Ors. [2004] Supp.
5 SCR 188 : (2004) 11 SCC 672; Executive Committee of Vaish
Degree College v. Lakshmi Narain [1976] 2 SCR 1006 : (1976) 2
SCC 58; S.S. Dhanoa v. MCD [1981] 3 SCR 864 : (1981) 3 SCC
431; CIT v. Canara Bank [2018] 7 SCR 866 : (2018) 9 SCC 322;
Sri Jagadguru Kari Basava Rajendraswami of Govimutt v. Commr.
of Hindu Religious and Charitable Endowments [1964] 8 SCR 252 :
[1964] 8 SCR 252; Rabindranath Bose v. Union of India (1970) 1
SCC 84; Guru Datta Sharma v. State of Bihar [1962] 2 SCR 292];
KS Puttaswamy (Privacy-9 J.) v. Union of India [2018] 8 SCR 1 :
(2017) 10 SCC 1; Keshavan Madhava Menon v. State of Bombay
[1951] 1 SCR 228 : [1951] SCR 228 and Pannalal Binjraj v. Union
of India [1957] 1 SCR 233 – referred to.
Hotel and Catering Industry Training Board v. Automobile Propriety
Ltd (1968) 1 WLR 1526 – referred to.
Anjuman-e-Rahmania and Others v. District Inspector of
Schools and Others [Supreme Court decision in W.P. (C) 54-57
of 1981] – referred to.

Books and Periodicals Cited

In the judgment of Dr. D.Y. Chandrachud, CJI:
Ronald Dworkin, “The Moral Reading of the Constitution” (March
21, 1996) – referred to.

In the judgment of Surya Kant, J.:
Jennifer Jackson Preece, “Minority rights in Europe: from Westphalia
to Helsinki” Review of International Studies (1997), Vol. 23, pp. 75–
92; Joseph B. Kelly, “National Minorities in International Law”, Denv.
J. Int’l L. & Pol’y, (1973) Vol. 3, pp. 253; Liebich, Andre. “Minority
as Inferiority: Minority Rights in Historical Perspective” Review of
International Studies, (2008) Vol. 34, no. 2, pp. 243–63; Greece
1674 [2024] 11 S.C.R.

Supreme Court Reports

Liberated– London Protocol, (United Kingdom, France & Russia)
(adopted on 03 February, 1830); Mazohl, Brigitte, ‘‘Equality among
the Nationalities’ and the Peoples (Volksstämme) of the Habsburg
Empire”, Constitutionalism, Legitimacy, and Power: Nineteenth-
Century Experiences Chapter 9, Oxford University Press (2014);
Holloway, Jonathan Scott,“Civilization, race, and the politics of
uplift”, African American History: A Very Short Introduction, Chapter
4, (Oxford University Press) (2023); Treaty of Peace with Poland
[Polish Minorities Treaty], (adopted on 28 June 1919); 11 Rights
of Minorities in Upper Silesia (Germ. v. Pol.), 1928 P.C.I.J. (ser.
A) No. 15 (Apr. 26) (Permanent Court of International Justice);
Minority Schools in Albania, Advisory Opinion, PCIJ Series A/B no
64, ICGJ 314 (Permanent Court of International Justice, 1935);
Greco-Bulgarian “Communities”, Advisory Opinion, PCIJ Series B.
No 17 (Permanent Court of International Justice, 1928); Dosabhoy
Framjee, “History of the Parsis: including their manners, customs,
religion and present position” Volume 2, Discovery Publishing
House, (1986); Justice R. A. Jahagirdar (Retd.), “Secularism:
the Road Behind and the Road Ahead,” Secularism: Collected
Works, Rationalist Foundation, pp. 9; Rochana Bajpai,“Debating
Difference: Group Rights and Liberal Democracy in India, Oxford
University Press, (2011); Sumit Mukherjee, “Conceptualisation
and Classification of Caste and Tribe by the Census of India,”
Journal of the Anthropological Survey of India, (2013), Vol. 62
no. 2 pp.807; Tariq Rahman, “Punjabi Language during British
Rule,” International Journal of Punjab Studies (2007); Meetika
Srivastava, “Evolution of the System of Public Administration in
India from the Period 1858- 1950: A Detailed Study Highlighting
the Major Landmarks in Administrative History Made During this
Period” (2009), available at https://ssrn.com/abstract=1482528.
Dick Kooiman, “Communalism and Indian Princely States: A
Comparison with British India” Economic and Political Weekly
(1995) Vol. 30 No. 34 pp. 2123-2133; Francesca R. Jensenius,
“Mired in Reservations: The Path-Dependent History of Electoral
Quotas in India” The Journal of Asian Studies (2015) Vol. 74 No.
1; McMillan, Alistair, “Standing at the Margins: Representation
and Electoral Reservations in India” Oxford University Press
(2005); Owen, Hugh “Negotiating the Lucknow Pact”, Journal of
Asian Studies, (1972) Vol. 31 No. 3 pp. 561–87; Proceedings of
the Indian Round Table Conference (12th November, 1930–19th
January, 1931); Krishna, K.B., The Problem of Minorities in India
or Communal Representation in India, G. Allen and Unwin, (1939);
[2024] 11 S.C.R. 1675

Aligarh Muslim University v. Naresh Agarwal & Ors.

Rochana Bajpai, “Constituent Assembly Debates and Minority
Right ” Economic and Political Weekly, (2000) Vol. 35 No. 21-
22; Navin Pal Singh, Dr. Balvinder Singh Slathia, “Intricacies of
Educational and Cultural Rights of Minorities in India: Efficacy
of Constitutional Safeguards” UGC Care Journal (2020) Vol.
43, no.4; Kamlesh Kumar Wadhwa, Minority Safeguards in
India, Thomas Press (India) Limited, (1975); “Partition of 1947
Continues to Haunt India, Pakistan” Stanford Report (2019)
available at https://news.stanford.edu/stories/2019/03/partition-
1947-continues-haunt-india-pakistan-stanford-scholar-says; B
Shiva Rao (ed), The Framing of India’s Constitution, Vol. I-V,
Indian Institute of Public Administration, (1967); Christina George,
“Begum Aizaz Rasul: The only Muslim Woman to oppose minority
reservations in the Constituent Assembly” The Indian Express,
(14 February, 2018), available at https://indianexpress.com/article/
gender/begum-aizaz-rasul-the-only-muslim-woman-to-oppose-
minority-reservations-in-the-constituent-assembly-5057096/;
Constituent Assembly Debate, Speech by Mohammad Ismail
Khan, (26 May 1949); Ministry of Human Resource Development,
No. F.7-5/2005-MC(P) (Notified on 18 January, 2005) available
at https://www.education.gov.in/sites/upload_files/mhrd/files/
Notification18012005.pdf; Ministry of Minority Affairs, S.O. 267(E)
(Notified on 27 January, 2014) available at https://ncm.nic.in/
legislations/Gazette_JainInclusion_27Jan2014.pdf; Theodore
Beck, “The Principal’s Annual Report for 1898—99” (‘Principal’s
Report), (1898—99), Muhammadan Anglo-Oriental College
Magazine (Aligarh) (MAOCM), and Aligarh Institute Gazette
(Aligarh) (AIG), New Series VII, No. 11 (15 July 1899) (At this
time the two journals were temporarily merged); Shamim Akhtar,
“Aligarh: From College to University” Proceedings of the Indian
History Congress (2018-19) Vol. 79, pp. 623; Rafiuddin Ahmad,
‘The Proposed Muslim University in India’, The Nineteenth Century,
XLIV (1898), 915-21; Sushila Rao, “The Doctrine of Eclipse in
Constitutional Law: A Critical Reappraisal of its Contemporary
Scope and Relevance” National Law School of India Review,
(2006) Vol. 18 No. 1 pp. 49; Lukas Meyer et. Al. (ed.), Rights,
Culture, and the Law, Oxford University Press (2003) pp. 181;
Justice GP Singh, Principles of Statutory Interpretation, Lexis
Nexis (2016), 14th edn.’ Henry Sharp, “The Development of
Indian Universities” Journal of the Royal Society of Arts, (1925),
Vol. 73, No. 3778 pp. 523; Indian Statutory Commission, Interim
Report- Review of Growth of Education in British India, Calcutta,
1676 [2024] 11 S.C.R.

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Government of India, Central Publication Branch (1929) pp.
123, available at https://archive.org/details/dli.csl.1000/page/
n157/mode/2up?view=theaterDr. Vishwanath Pandey (editor),
Founder of Banaras Hindu University: Pandit Madan Mohan
Malviya, Publication Cell, Banaras Hindu University (2006), pp.
19, available at https://web.archive.org/web/20120412191310/
http://www.bhu.ac.in/MMMMM.pdf – referred to.

In the judgment of Dipankar Datta, J.:
Constituent Assembly Debates, Volume 9, 30th August 1949
(9.127.209); Lok Sabha Debates, Twelfth Session, Third Series
Vol. XLIV – No. 9, 27th August 1965; Lok Sabha Debates, Twelfth
Session, Third Series Vol. XLV- No. 13, 2nd September 1965;
History of the Aligarh Muslim University, Khaliq Ahmad Nizami, p.
110, Idarah-i-Adbiyat-i-Delli, Delhi, 1995 and Black’s Law Dictionary
9th Edition – referred to,

In the judgment of Satish Chandra Sharma, J.:
Oxford Centre for Hindu Studies (OCHS), Oxford Centre
for Islamic Studies, and Delhi University’s Centre for Hindu
Studies – referred to.

List of Acts
Constitution of India; Aligarh Muslim University Act, 1920; Aligarh
Muslim University (Amendment) Act, 1951; Aligarh Muslim
University (Amendment) Act, 1965; Entry 63 of List I of the Seventh
Schedule to the Constitution; National Commission for Minority
Educational Institutions Act, 2004.

List of Keywords
Educational institution; Minority institution; Indicia for ‘establishment’
of a minority educational institution; Aligarh Muslim University
(AMU); Azeez Basha case; Anjuman-e-Rahmaniya case; Scope
and purpose of Art.30(1); Special protection guaranteed by
Art.30(1); Anti-discrimination provision; Special rights provision;
Right guaranteed to minorities; Educational institutions established
before and after commencement of the Constitution; Distinction
between ‘incorporation’ and ‘establishment’; Effect of incorporation
on minority character of an institution; Declaration as institution of
national importance.
[2024] 11 S.C.R. 1677

Aligarh Muslim University v. Naresh Agarwal & Ors.

Case Arising From
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No.
2286 of 2006
From the Judgment and Order dated 05.01.2006 of the High Court
of Judicature at Allahabad in SA No. 1324 of 2006
With
Civil Appeal Nos. 2321, 2320 and 2318 of 2006, Special Leave
Petition (C) No. 32490 of 2015, Writ Petition (C) No. 272 of 2016,
Civil Appeal Nos. 2861, 2316, 2319 and 2317 of 2006 and T.C. (C)
No. 46 of 2023

Appearances for Parties
By Courts Motion.
R Venkataramani, Attorney General for India, Tushar Mehta,
Solicitor General, K M Nataraj, Vikramjit Banerjee, A.S.Gs.,
Dr. Rajeev Dhavan, Nikhil Nayyar, Kapil Sibal, Rakesh Dwivedi,
Neeraj Kishan Kaul, Guru Krishna Kumar, Vinay Navare, Sridhar
Potaraju, Ms. Archana P. Dave, Salman Khurshid, Sr. Advs.,
T. V. S. Raghavendra Sreyas, N Sai Vinod, Naveen Hegde,
Siddharth Vasudev, Ms. Gayatri Gulati, Gurmeet Singh Makker,
V. Mohna, Ms. Sonali Jain, Kartikay Aggarwal, Abhishek Kumar
Pandey, Raman Yadav, Chitvan Singhal, Gaurang Bhushan,
Madhav Sinhal, Padmesh Mishra, Kanu Agrawal, Ankur Talwar,
Rohit Khare, Apoorv Kurup, R Bala, Siddhartha Sinha, Prashant
Rawat, Abhishek Singh, Ms. Sushma Suri, Prashant Bhushan,
Debadutta Kanungo, Govind Jee, Omanakuttan K K, Ramesh
Kumar Mishra, Aftab Ali Khan, Bahar. U. Barqui, Nizam Pasha,
Ms. Aparajita Jamwal, Ali Safeer Farooqi, Ms. Ruppali Samuels,
Ms. Sumedha Ray Sarkar, Rishabh Parikh, Mohd. Taiyub Khan,
Shahid Hussain Rizvi, Mansoor Ali, Z. K. Faizan, Mohd. Yunus,
Shadan Farasat, Gautam Bhatia, Aman Naqvi, Harshit Anand,
Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms. Mreganka
Kukreja, Abhishek Babbar, Ajesh K. Chawla, Ms. Shivangi Singh,
Ms. Saket Gautam, Ms. Mahesh Sharma, Nachiketa Joshi, Vikas
Chandra Shukla, Ms. Aditi Tripathi, Eklavya Dwivedi, Ms. Sanskriti
Pathak, Merusagar Samanatray, Aditya Shekhar, Pashupati
Razdan, Akash Vajpai, Bhakti Vardhan Singh, Vvv Pattabhiram,
Atulesh Kumar, Alabhya Dhamija, T. Bhaskar Gautham, Anirudh
Sharma, Aditya Kashyap, Shubhendu Anand, Amit Sharma,
1678 [2024] 11 S.C.R.

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Pranaya Kumar Mohapatra, Baijnath Patel, Ms. Sneh Lata
Mishra, Ms. Himadri Haksar, Narayan Dev Parashar, Santosh
Kumar, Praneet Pranav, Rahul G. Tanwani, Aman Jha, Sudipto
Sircar, Ms. Sindoora V.N.L, Mohit Pandey, Ms. Ankita Sharma,
Yashraj Bundela, Dhruv Sharma, Ms. Shriya Gilhotra, Rishi Tutu,
Raghav Agarwal, Piyush Beriwal, Sanyat Lodha, Sandeep Singh,
Toshiv Goyal, R. C. Kohli, Avnish Dave, Vaibhav Dwivedi, Shuchi
Singh, Gautam Singh, Aditya Sharma, Ms. Ankita Choudhary,
Kumar Prashant, Ms. Rashmi Singhania, Varun Chugh, Rajan
Chaurasia, Adarsh Kumar Pandey, Ayush Anand, Baij Nath
Patel, Ms. Alpana Sharma, Pravartak Pathak, Ranjeet Mishra,
Ms. Bharti Tyagi, Pramod Kumar Vishnoi, Akshat, Ramesh Thakur,
Shaswat Nath, Shespal Sai, Gopal Jha, Sayooj Mohandas, Govind
Kumar, Nisarg Choudhary, Gobind Kumar, Hrishikesh Haridas,
Aishvary Vikram, Raghav Agrawal, Prakash Gautam, Anjuman
Tripathi, Pankaj Singh, Ms. Ranjana Singh, Sanjay Kumar Dubey,
Krishna Kant Dubey, Ujjwal Kumar Dubey, Vivek Kumar Pandey,
Rakesh Kumar Tewari, Devendra Kumar Shukla, Rajeev Ranjan,
Pratyush Prakash, Jitendra Kumar Tripathi, Ms. Isha Singh,
Ms. Snehil Sonam, Mukesh Kumar, Arun Kanwa, Vignesh Singh,
Aniruth Sharma, P. V. Yogeswaran, Ashish Kumar Upadhyay,
Y. Lokesh, V. Kandha Prabhu, Ms. Maitri Goal, Sachin Kumar
Verma, Neeleshwar Pavani, Prem Prakash, Ms. M. Vidhya,
Dr. Vivek Sharma, Mrs. Naghma Imtiaz, Ms. Azra Rehman,
Ms. Sommya Chaturvedi, Ms. Sonika Choudhary, Ms. Satakshi
Mathur, Zargham Ahmed, Saif Naseem, Md Irshad Ahmed, Syed
Imtiyaz Ali, Tanveer Khan, Mrs. Seema Khan, Mrs. Rubina Javed,
Sheikh Imran, Ms. Sanchita Ain, (for M/S. Equity Lex Associates),
M.R. Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Zaki Ahmad
Khan, Sarwar Raza, Attarup Bannerjee, Sunado Raha, Pulkit
Agarwal, Abu Sohel, Ms. Sampriti Baksi, Kunal Malik, Nishant
Kumar Singh, Ankur Parihar, Pratyush Prasanna, Ishan Jain,
Sushmit Phatale, Sudhanshu Kaushesh, Palav Agarwal, Prashant
Kumar Yadav, Raghav Sehgal, Avnish Chaturvedi, Md Tasnimul
Hassan, Martin G George, Gholam Mohiuddin, Anindo Mukherjee,
Rameshwar Prasad Goyal, Ejaz Maqbool, Saif Zia, Gaurav
Sharma, Dhawal Mohan, Prateek Bhatia, Paranjay Tripathi, Rajesh
Raj, Ms. Ankita Dogra, Syed Mehdi Imam, Mohd Parvez Dabas,
Uzmi Jamil Husain, Tabrez Ahmad, Mohammad Noorullah, Atif
Shuhrawardy, Aqib Baig, Saheb, Abdul Nasir Khan, Amir Dabas,
Anisul Haque, Advs. for the appearing parties.
[2024] 11 S.C.R. 1679

Aligarh Muslim University v. Naresh Agarwal & Ors.

Judgment / Order of the Supreme Court

Judgment

Dr Dhananjaya Y Chandrachud, CJI*

Table of Contents**

A. Background ....................................................................... 5
B. The reference and related events .................................... 10
C. Submissions .................................................................... 19
D. Issues ............................................................................... 33
E. Analysis ............................................................................ 36
i. The preliminary objection by the Union of India.... 36
ii. The scope of Article 30 ........................................... 39
a. The purpose of Article 30(1) ................................ 44
b. The ‘special protection’ guaranteed by
Article 30(1) ........................................................ 49
iii. Indicia for a Minority Educational Institution ......... 55
iv. Applicability of Article 30 to a ‘University’
established before the commencement of the
Constitution ............................................................. 64
a. Article 30(1) applies to educational institutions
established before the commencement of the
Constitution ........................................................ 65
b. There is no difference between ‘Universities’ and
‘colleges’ established before the commencement
of the Constitution .............................................. 69
c. The minority character of the institution is not
ipso facto surrendered upon the incorporation
of the University .................................................. 77
d. ‘Minority’ as on the commencement of the
Constitution ......................................................... 88
v. Indicia for the ‘establishment’ of a minority
educational institution ............................................. 91

* For himself, Sanjiv Khanna, J.B. Pardiwala, Manoj Mishra, JJ.
** Ed. Note: Pagination as per the original Judgment.
1680 [2024] 11 S.C.R.

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vi. Impact of Entry 63 of List I on the minority status
of educational institutions ..................................... 103
vii. The decision of this Court in Prof. Yashpal ........... 107
viii. The amendment of the NCMEI Act in 2010 ............. 112
ix. Registration under the Societies Registration
Act ............................................................................ 114
F. Conclusion ........................................................................ 115

1. Article 30 of the Constitution of India guarantees to religious and
linguistic minorities, the right to establish and administer educational
institutions of their choice. The issues which arise for adjudication
in this reference pertain to the criteria to be fulfilled to qualify as a
minority educational institution for the purpose of Article 30(1) of the
Indian Constitution.

A. Background
2. In 1977, the Muhammadan Anglo-Oriental College was established
in Aligarh. The college was a teaching institution affiliated to the
Calcutta University at first and subsequently to the Allahabad
University. The imperial legislature passed the Aligarh Muslim
University Act 1920.1 The enactment, as the preamble indicates,
“established and incorporated” Aligarh Muslim University.2 The AMU
Act was amended by the Aligarh Muslim University (Amendment) Act
19513 and Aligarh Muslim University (Amendment) Act 1965.4 The
amendments related to the religious instructions of Muslim students5

1 “AMU Act”
2 “AMU”
3 “1951 Amendment Act”
4 “1965 Amendment Act”
5 Section 8 was amended to stipulate that it would be unlawful for the University to adopt or impose
any test of religious belief for admission or recruitment except where the religious test was made a
condition for benefaction. The amended proviso to the provision stipulated that nothing in the Section
shall be deemed to prevent the provision of religious instruction to those who consent to it. Section 9
which empowered the Court to mandate religious instruction for Muslim students was deleted by the
amendment. Section 23(1), which provided that all members of the Court would be Muslims, was also
deleted.
[2024] 11 S.C.R. 1681

Aligarh Muslim University v. Naresh Agarwal & Ors.

and the administrative set-up of the university.6 Proceedings under
Article 32 of the Constitution were instituted before this Court for
challenging the constitutional validity of the 1951 Amendment Act
and the 1965 Amendment Act. A Constitution Bench in the decision in
S Azeez Basha v. Union of India7 upheld the constitutional validity
of the Amendments. The petitioners made a three-fold argument:
(a) AMU was established by Muslims, who are a religious minority for
the purposes of Article 30(1); (b) Article 30(1) guarantees Muslims
the right to administer the University established by them; and
(c) the 1951 and 1965 Amendments are violative of Article 30(1)
to the extent that it infringed the right of the Muslim community to
administer the institution. Article 30 is extracted below:
“30. Right of minorities to establish and administer
educational institutions.—(1) All minorities, whether based
on religion or language, shall have the right to establish
and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory
acquisition of any property of an educational institution
established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by
or determined under such law for the acquisition of such
property is such as would not restrict or abrogate the right
guaranteed under that clause.
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management of a minority,
whether based on religion or language.”
The amendments were also impugned on the ground that they violated
Articles 14, 19, 25, 26, 29 and 31 of the Constitution.

6 Section 23 of the AMU Act was amended to delete clauses (2) and (3). By this amendment, the powers of
the Court were significantly reduced. The Court which was the supreme governing body of the University
now only had the power to advise the Visitor or any other authority of the University on matters which
may be referred to it for advice and exercise powers assigned to it by the Visitor. The powers of the Court
were instead placed in the hands of the Executive Council. The composition of the Court (which was an
all-Muslim body) was also amended. The process of constituting the Court and the Executive Council
was also amended.
7 (1968) 1 SCR 833 : AIR 1968 SC 662
1682 [2024] 11 S.C.R.

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3. The Union of India opposed the petitions, arguing that the Muslim
minority did not have the right to administer AMU since they had
not established the institution. It was submitted that AMU was
established by Parliament. That being the case, it was contended
that the amendments were not violative of Article 30(1).
4. A Constitution Bench dismissed the writ petitions in Azeez Basha
(supra). The challenge on the ground of violation of Article 30(1) was
rejected on the following grounds:
a. The phrase “establish and administer” in Article 30(1) must
be read conjunctively. Religious minorities have the right to
administer those educational institutions which they established.
Religious minorities do not have the right to administer
educational institutions which were not established by them,
even if they were administering them for some reason before
the commencement of the Constitution;
b. The word “establish” in Article 30(1) means “to bring into
existence”;
c. AMU was not established by the Muslim minority for the following
reasons:
i. AMU was brought into existence by the AMU Act, which
was enacted by Parliament in 1920. Section 6 of the AMU
Act provides that the degrees conferred to persons by
the University would be recognised by the government.
This provision indicates that AMU was established by
the Government of India because the Muslim minority
could not have insisted that the degrees conferred by a
university established by it ought to be recognized by the
Government. The AMU Act may have been passed as a
result of the efforts of the Muslim community but that does
not mean that AMU was established by them;
ii. The conversion of the College to the University was not
by the Muslim minority but by virtue of the 1920 Act; and
iii. Section 4 of the AMU Act by which the MAO College and
the Muslim University Association were dissolved, and
the properties, rights and liabilities in the societies were
vested in AMU shows that the previous bodies legally
ceased to exist;
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d. Since the Muslim community did not establish AMU, it cannot
claim a right to administer it under Article 30(1). Thus, any
amendment to the AMU Act would not be ultra vires Article 30
of the Constitution;
e. The argument that the administration of the University vested
in the Muslim community though it was not established by them
was rejected. The administration of AMU did not vest in the
Muslim minority under the AMU Act for the following reasons:
i. Although all the members of the Court (which was the
supreme governing body in terms of Section 23 of the
AMU Act) were required to be Muslims, the electorate
(which elected the members of the Court) did not comprise
exclusively of Muslims;
ii. Other authorities of AMU such as the Executive Council and
the Academic Council were tasked with the administration
of the University and were given significant powers. The
members of these bodies were not required to be Muslims;
iii. The Governor General (who was the Lord Rector) was
also entrusted with certain “overriding” powers concerning
the administration of the University. The Governor General
was not required to be a Muslim. In terms of Section 28(3),
the Governor General had overriding powers to amend
or repeal the Statutes. The Governor General possessed
similar powers with respect to amending or repealing
Ordinances. In terms of Section 40, the Governor General
had the power to remove any difficulty in the establishment
of the University; and
iv. The Visiting Board which consisted of the Governor of the
United Provinces, the members of the Executive Council
and Ministers were not necessarily required to be Muslims;
f. The term “establish and maintain” in Article 26 must be read
conjunctively, like the phrase “establish and administer” in Article
30. Assuming that educational institutions fall within the ambit
of Article 26, the Muslim community does not have the right to
maintain AMU because it did not establish it; and
g. The impugned amendments do not violate Articles 14, 19, 25,
29 and 31.
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B. The reference and related events
5. In 1981, a two-Judge Bench of this Court in Anjuman-e-Rahmaniya v.
District Inspector of Schools8 was faced with a question of whether
V.M.H.S Rehmania Inter College is a minority educational institution.
By an order dated 26 November 1981, the Bench questioned the
correctness of Azeez Basha (supra) and referred the matter to a
Bench of seven Judges, in the following terms:
“After hearing counsel for the Parties, we are clearly of the
opinion that this case involves two substantial questions
regarding the interpretation of Article 30(1) of the Constitution
of India. The present institution was founded in the year
1938 and registered under the Societies Registration Act
in the year 1940. The documents relating to the time
when the institution was founded clearly shows that
while the institution was established mainly by the
Muslim community but there were members from the
non-Muslim community also who participated in the
establishment process. The point that arises is as to
whether Art. 30(1) of the Constitution envisages an
institution which is established by minorities alone
without the participation for the factum of establishment
from any other community. On this point, there is no
clear decision of this court. There are some observations
in S. Azeez Basha & ors. Vs. Union of India 1968(1)
SCR 333, but these observations can be explained away.
Another point that arises is whether soon after the
establishment of the institution if it is registered as a
Society under the Society Registration Act, its status
as a minority institution changes in view of the broad
principles laid down in S. Azeez Basha’s case. Even as
it is several jurists including Mr. Seervai have expressed
about the correctness of the decision of this court in
S. Azeez Basha’s case. Since the point has arisen in
this case we think that this is a proper occasion when
a larger bench can consider the entire aspect fully. We,
therefore, direct that this case may be placed before

8 W.P.(C) No. 54-57 of 1981
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Hon. The Chief Justice for being heard by a bench of at
least 7 judges so that S. Azeez Basha’s case may also
be considered and the points that arise in this case
directly as to the essential conditions or ingredients of
the minority institution may also be decided once for
all. A large number of jurists including Mr. Seervai, learned
counsel for the petitioners Mr. Garg and learned counsel
for respondents and interveners Mr. Dikshit and Kaskar
have stated that this case requires reconsideration. In view
of the urgency it is necessary that the matter should be
decided as early as possible we give liberty to the counsel
for parties to mention the matter before Chief Justice.”
(emphasis supplied)

The above extract indicates that the following three questions were of
concern to this Court: (i) the essential conditions or ingredients of a
minority educational institution; (ii) whether the expression ‘establish’
in Article 30 means that the institution should be established only
by a minority without any association by other communities; and
(iii) whether the registration under the Societies Registration Act
1860 after the establishment of the institution alters its character.
6. About a month after the order referring the matter to a Bench of
seven Judges, the AMU Act was amended. On 31 December 1981,
the Aligarh Muslim University (Amendment) Act 19819 received the
assent of the President. Various provisions of the AMU Act were
amended, including the long title and preamble from which the
words “establish and” were omitted.10 Section 2(l) which defined
the term ‘University’ was also amended.11 After the amendment,
‘University’ was defined to mean “the educational institution of their
choice established by the Muslims of India, which originated as
the Mohammedan Anglo-Oriental College, Aligarh, and which was
subsequently incorporated as the Aligarh Muslim University.” The
amendment included Section 5(2)(c) by which the University was
required to promote “the educational and cultural advancement of
the Muslims of India”.12

9 AMU (Amendment) Act 1981
10 AMU (Amendment) Act 1981, Section 2
11 AMU (Amendment) Act 1981, Section 3
12 AMU (Amendment) Act 1981, Section 4
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7. In 2002, an eleven-Judge Bench of this Court in TMA Pai Foundation
v. State of Karnataka13 heard a batch of tagged matters which
included Anjuman-e-Rahmaniya (supra). This Court formulated
a question which reflected the reference made in Anjuman-e-
Rahmaniya (supra). The question was as follows: what is the indicia
for an educational institution to be a minority education institution to
which the rights in Article 30 would apply:
“3(a) What are the indicia for treating an educational
institution as a minority educational institution? Would an
institution be regarded as a minority educational institution
because it was established by a person(s) belonging to a
religious or linguistic minority or its being administered by
a person(s) belonging to a religious or linguistic minority?”
8. Despite framing the question arising from the reference, this Court
did not answer it in TMA Pai (supra). The decision stated that a
regular Bench would adjudicate the question. However, the regular
Bench disposed of the matters before it on 11 March 2003 without
answering the question.
9. Separately, AMU proposed a policy for admission into its post-
graduate medical course by which 50% of the seats were reserved
for Muslim candidates. The proposal was accepted by the Union of
India. Proceedings were initiated under Article 226 for challenging
the constitutional validity of the reservation policy.
10. The petitioners argued that the reservation policy by which 50%
of the seats were earmarked for Muslims was unconstitutional
because AMU was not a minority educational institution in view of
the judgment of this Court in Azeez Basha (supra). They averred
that the amendments to Sections 2(l) and 5(2)(c) of the AMU Act by
the AMU (Amendment) Act 1981 attempted to overrule the judgment
in Azeez Basha (supra) without altering the basis of the decision in
that case. In response, AMU contended that the AMU (Amendment)
Act 1981 had the effect of changing the basis of Azeez Basha (supra)
and that AMU was a minority institution after the amendment, and
thus was entitled to reserve seats for candidates from the Muslim
community.

13 (2002) 8 SCC 481
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11. A Single Judge of the Allahabad High Court in the decision in
Dr. Naresh Agarwal v. Union of India declared the reservation
policy unconstitutional on the following grounds:14
a. The basis for the decision in Azeez Basha (supra) was Sections
3, 4, and 6. These provisions were not amended by the AMU
(Amendment) Act 1981. The deletion of the word ‘establish’
from the long title and the preamble, and the amendment to the
definition of the term ‘University’ in Section 2(l) are not sufficient
to hold that AMU is a minority institution under Article 30;
b. The Muslim community willingly surrendered the right to
administer the University to statutory bodies;
c. The amendment to Section 2(l) is a legislative action which
encroaches on judicial power and is akin to Parliament
functioning as an appellate court or tribunal. To prevent Section
2(l) from being struck down for overruling Azeez Basha (supra),
it is necessary to read down the term “established” in the
amended AMU Act as referring to MAO College; and
d. AMU, not being a minority institution, is not entitled to the
protection of Article 30 and shall not provide for reservation
on the basis of religion as this would amount to a violation of
Article 29(2).
12. The Court declared AMU’s reservation policy unconstitutional and
directed the cancellation of the admissions made under this policy.
It directed the University to conduct a fresh entrance examination
without reservation on the basis of religion.
13. The judgement in appeal by a Division Bench of the Allahabad High
Court was reported as Aligarh Muslim University v. Malay Shukla.15
The Division Bench affirmed the judgment of the Single Judge, with
some modifications. AN Ray, C.J. speaking for the Division Bench
held that:
a. When the minority status is not assumed or admitted, the factor
of administration and control by non-minority groups becomes
important. The indicia for the determination of whether an

14 2005 SCC OnLine All 1705
15 Judgment in Special Appeal No 1321 of 2005 and connected matters, High Court of Allahabad
1688 [2024] 11 S.C.R.

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educational institution is a minority educational institution is (i)
who established it; (ii) who is responsible for administration;
and (iii) the purpose of the establishment;
b. By amending Section 2(l), Parliament attempted to overrule the
decision in Azeez Basha (supra). This amendment does not
change the basis of that decision because the incorporation
of the University was not the sole factor which influenced the
decision;
c. Section 5(2)(c) is discriminatory. Further, it does not change
the basis of the decision in Azeez Basha (supra);
d. The removal of the words “establish and” from the long title
and preamble of the AMU Act is impermissible because Azeez
Basha (supra) held that incorporation and establishment are
intimately connected. Permitting the omission of the word
“establish” may give rise to doubts as to whether incorporation
alone is sufficient for the surrender of the minority character
of the institution;
e. AMU is not merely a university but a field of legislative power in
Entry 63 of List I of the Seventh Schedule to the Constitution.
Section 2(l) modified the definition of a word in an entry in the
Seventh Schedule. The definition of a word in the Constitution
cannot be altered except through a constitutional amendment.
The AMU (Amendment) Act 1981 therefore suffers from lack
of legislative competence; and
f. Parliament lacks the authority to create a minority institution.
Only a minority can do so and courts may declare whether
a minority has succeeded in establishing an institution under
Article 30.
14. Ashok Bhushan, J. concurred with AN Ray, C.J. in a separate
judgment. The learned Judge observed that the institution must have
been both established and administered by a minority to seek the
protection of Article 30(1). The 1981 Amendment, in his view, has
dealt with the establishment component of the judgment but has left
the administration component untouched. Further, the learned Judge
agreeing with Chief Justice Ray observed that the requirements for a
minority to establish an institution cannot be secured by merely altering
the definition of the institution and the long title and the preamble of
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the Act. In view of the findings detailed above, the Court declared
that AMU was not a minority institution within the meaning of Article
30 and struck down Sections 2(l) and 5(2)(c) as amended by the
AMU (Amendment) Act 1981. The High Court held that the removal
of the words “establish and” from the long title and preamble was
invalid and restored them. It affirmed the conclusion of the Single
Judge that the reservation policy was unconstitutional. However, it
overruled the direction issued by the Single Judge to AMU to cancel
the admission of students who had already been accommodated in
the University on the basis of the reservation policy.
15. On 12 February 2019, while hearing the appeal against the judgment
of the Division Bench, a three-Judge Bench of this Court presided
over by Chief Justice Ranjan Gogoi noticed that the High Court
relied on the decision in Azeez Basha (supra). It also noticed that
the reference in Anjuman-e-Rahmaniya (supra) on the correctness
of Azeez Basha (supra) was yet to be determined. The observations
in Azeez Basha (supra) that the words “establish” and “administer”
in Article 30(1) must be read conjunctively were referred to.
Having noticed all of the above, the three-Judge Bench observed
that the correctness of the question arising from the decision in
Azeez Basha (supra) is unanswered:
“1. This Court in S. Azeez Basha and Anr. Vs. Union of
India, inter alia, has observed as follows:
“It is to our mind quite clear that Art. 30(1)
postulates that the religious community will have
the right to establish and administer educational
institutions of their choice meaning thereby
that where a religious minority established an
educational institution, it will have the right to
administer that. An argument has been raised to
the effect that even though the religious minority
may not have established the educational
institution, it will have the right to administer it, if
by some process it had been administering the
same before the Constitution came into force.
We are not prepared to accept this argument.
The Article in our opinion clearly shows that
the minority will have the right to administer
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educational institutions of their choice provided
they have established them, but not otherwise.
The Article cannot be read to mean that even if
the educational institution has been established
by somebody else, any religious minority would
have the right to administer it because, for some
reason or other, it might have been administering
it before the Constitution came into force. The
words “establish and administer” in the Article
must be read conjunctively and so read it
gives the right to the minority to administer
an educational institution provided it has been
established by it. ……….We are of the opinion
that nothing in that case justifies the contention
raised on behalf of the petitioners that the
minorities would have the right to administer an
educational institution even though the institution
may not have been established by them. The
two words in Art. 30(1) must be read together
and so read the Article gives the right to the
minority to administer institutions established
by it. If the educational institution has not been
established by a minority it cannot claim the
right to administer it under Art. 30(1).”
[…]
8. The said facts would show that the correctness of
the question arising from the decision of this Court in
S. Azeez Basha (supra) has remained undetermined.
9. That apart, the decision of this Court in Prof. Yashpal
and another vs. State of Chhattisgarh and others and
the amendment of the National Commission for Minority
Educational Institutions Act, 2004 made in the year 2010
would also require an authoritative pronouncement on the
aforesaid question formulated, as set out above, besides
the correctness of the view expressed in the judgment
of this Court in S. Azeez Basha (supra) which has been
extracted above.”
(emphasis supplied)
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16. The three-Judge Bench then referred the matter to a seven-Judge
Bench.
17. When this matter was taken up for hearing, the Union of India sought
to withdraw its appeal against the decision of the Division Bench
of the Allahabad High Court.16 This Court is competent to hear the
present case even if the Union of India was permitted to withdraw
its appeal because the other appellants continue to press their case.

C. Submissions
18. The petitioners broadly contend that the decision in Azeez Basha
(supra) is not correct, and that AMU is a minority institution. The
submissions of the learned counsel on behalf of the petitioners and
the intervenors are summarized below.
19. Dr. Rajeev Dhawan, learned senior counsel made the following
submissions:
a. The Union of India’s recent attempt to withdraw its appeal
against the minority status of AMU contradicts its consistent
position since 1981;
b. Azeez Basha (supra) is no longer good law because:
i. It failed to recognize that the words ‘establish’ and
‘administer’ are not preconditions to define a minority but
the consequential rights that flow from such a recognition;
ii. The assumption that universities lose their minority status
when recognized by a statute conflicts with the right of
minorities to establish educational institutions;
iii. It recognized the role of the Muslim community in the
establishment of AMU but held that its origins and
administration were rooted in legislation. This interpretation
could restrict the recognition of minority institutions under
Article 30;
iv. Its restrictive interpretation of the word ‘establish’ in
Article 30(1) is contrary to the expansive view adopted
by subsequent judgments; and

16 Civil Appeal No. 2318 of 2006, Supreme Court of India
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v. This decision has been superseded by subsequent
decisions like TMA Pai (supra), which emphasized that
the religious character of an institution cannot be stripped
down by government interventions.
c. Upholding Azeez Basha (supra) could jeopardize the minority
status of several educational institutions, including recognized
minority institutions like St. Stephen’s College and Christian
Medical College;
d. Minority rights were acknowledged by the State before
the adoption of the Constitution through various legislative
enactments like the Indian Councils Act of 1909, and the
Government of India Acts of 1919 and 1935, which provided
reservations to Muslims, Sikhs, and Christians in the legislature;
e. The formation of AMU was characterized as a “movement” rather
than a “surrender” by the Mohammedan Anglo-Oriental College.
Provisions in the AMU Act, including the transfer of assets,
liabilities, and special provisions for Muslim students, underscore
the continuation of minority rights with the establishment of AMU;
f. Entry 63 in the Union List of the Seventh Schedule to the
Constitution deals with the competence of the Union to make
laws regarding AMU and BHU but does not determine who
established or administers the universities. Article 30, which
guarantees minority rights, cannot be negated merely because
the institution is of national importance in terms of Entry 63;
g. The evolution of the AMU Act can be broken down into
four phases: pre-1951 with Muslim administration, the 1951
Amendment aligning with the Constitution, the 1965 Amendment
diluting minority status, and attempts to restore minority status
in 1972 and 1981;
h. While the 1951 amendment aligned the Act with the Constitution
by removing compulsory religious education, the 1965
amendment diluted minority administration by reducing “the
Court” to an advisory role, shifting the supreme governing
authority to the “Visitor” and the President of India; and
i. Amendments in 1972 and 1981 aimed to restore AMU to
minorities. The 1981 amendment explicitly stated that AMU
was “established by the Muslims of India” and aimed to
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promote Muslim educational and cultural advancement. The
1981 amendment accommodated a democratic setup, focusing
on the institution’s original purpose rather than numerical
representation.
20. Mr Kapil Sibal, learned senior counsel made the following
submissions:
a. The enactment of the Act of 1920 marked the formal recognition
of the MAO “College” as the Aligarh Muslim University, reflecting
a crucial legislative step in its evolution into a full-fledged
University;
b. Compliance with regulatory requirements, constitutionally
grounded in Article 19(6), is crucial for university status. However,
adherence to these regulations does not diminish the right
guaranteed by Article 30 to minorities to establish institutions
of their choice;
c. Article 30 grants religious and linguistic minorities the autonomy
to establish and administer institutions of their “choice”.
Institutions covered by Article 30 have the flexibility to choose
their administrative set-up, even if it includes individuals outside
the minority community. This choice is solely vested in the
institution;
d. Assessing the numerical composition within the administration
is inadequate to determine its minority status. Minority
institutions have the prerogative to include non-minorities in
their administration while maintaining their minority status.
St. Stephen’s College, Delhi, despite having a Christian
representation of less than 5 per cent, maintains its classification
as a minority institution;
e. The crucial factor for recognizing an educational institution as
a Minority educational institution lies in its genesis, focusing
on three key aspects:
i. the purpose for which it was founded (educational
advancement of the minority community);
ii. the identity of the founders and major fund providers (being
substantially from the concerned minority); and
iii. the concept’s initiation by a member of the minority,
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f. Provisions within the AMU Act focus on governance structures,
academic standards, and prevention of maladministration.
These statutory measures primarily relate to the administration
of the University and do not alter the constitutional fact of its
establishment by a minority;
g. “Establish” under Article 30 must be interpreted to mean ‘found’.
The word does not cover the conversion process from a college
to a university through the AMU Act;
h. AMU was established with the objective of providing quality
education specifically to Muslims. The exclusivity of such
institutions in offering education tailored to the needs of minorities
was not adequately considered by Azeez Basha (supra);
i. The denial of reservation to institutions like AMU results in fewer
degrees and job opportunities, exacerbating socio-economic
disparities within minority groups;
j. The founders of AMU satisfactorily fulfilled the five-step criteria
laid down in TMA Pai (supra) to ascertain the right to administer.
The criteria related to admission policies, fee structures,
governance, faculty appointments and disciplinary action;
k. The objective of establishing AMU was to obtain the status of
an independent university and not demonstrate allegiance to
colonial authorities;
l. A minority institution can accede to some regulations to maintain
a particular standard of education. With that, the institution also
retains the right to challenge any invasive restrictions imposed
on it; and
m. The imperial government never interfered with the administration
of the University after it was incorporated. MAO College was
also supervised by the British government even when it was
not a university. MAO College was acknowledged as a minority
institution under Azeez Basha (supra).
21. Mr Salman Khurshid, learned senior counsel made the following
submissions:
a. Adopting a ‘political, moral reading’ of Article 30 would facilitate a
broader interpretation of the term ‘established’. Ronald Dworkin’s
definition of a ‘political moral reading’ involves invoking moral
[2024] 11 S.C.R. 1695

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principles about political decency and justice for interpreting
constitutional provisions;17
b. Aligarh Tehzeeb represents a distinctive cultural ethos cultivated
by the AMU. This unique cultural identity encompasses traditions,
values and practices that have evolved within the university;
c. The concept of takeover in the context of educational institutions
can be categorized into non-consensual and consensual
takeovers. In the case of AMU, there was a consensual takeover,
where changes and amendments were made to its structure
and character through a process that involved the University’s
participation and consent; and
d. AMU was founded by members of the community. The societies
formed for this purpose had a crucial role in the establishment and
evolution of the University, contributing resources, support and a
collective vision that shaped the identity and character of AMU.
22. Mr. Shadan Farasat, learned counsel submitted that:
a. The purpose of Article 30 rests primarily on two grounds:
i. The ability to retain the minority identity;
ii. The ability to fully participate in the national mainstream;
Azeez Basha (supra) adopts an approach by which the
institution could either retain the minority status or integrate
into the national mainstream and lose it;
b. The Indian secularism model allows state involvement in religious
activities without compromising their character;
c. In advocating for a broader interpretation of ‘establish’ in
Article 30, there is a need to distinguish between ‘establish’
and ‘incorporate’ to better preserve constitutional protection
for minority educational institutions. The AMU Act of 1920 only
“incorporated” AMU. This is fundamentally different from the
establishment of the institution;
d. Stripping away the minority character of AMU would diminish
its significant place in history since the institution has led to:

17 Reliance was placed on Ronald Dworkin, “The Moral Reading of the Constitution” (March 21, 1996).
1696 [2024] 11 S.C.R.

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i. The creation of a Muslim-educated middle class; and
ii. The education of women.
e. The validity of the 1981 amendment should not be considered
in this case. The Parliament enacted it to reinstate AMU’s
minority status, which is now being contested by the current
Union government. Considering the Union’s arguments requires
reassessing Parliament’s reasoning behind the law.
23. Mr MR Shamshad, learned counsel submitted that an inclusive
definition of ‘minority educational institutions’ includes universities
established and administered by minorities.
24. The respondents broadly submitted that Azeez Basha (supra) is
good law, and that AMU is not a minority institution. They argued
that AMU was established by Parliament. The submissions of the
learned counsel on behalf of the respondents and the intervenors
are summarized below.
25. Mr R Venkataramani, Attorney General for India appearing for the
Union of India, made the following submissions:
a. The right guaranteed by Article 30 can only be exercised if
there is legislation in place to enable the establishment and
administration of minority institutions. This legislation should
empower minorities to form institutions under constitutional
provisions; and
b. While Article 30 guarantees minorities certain rights, they are
not exempt from other constitutional requirements, particularly
regarding reservation.
26. Mr Tushar Mehta, Solicitor General of India appearing for the Union
of India, made the following submissions:
a. Azeez Basha (supra) correctly recognized the choices available
to AMU in 1920. It had the choice of either affiliating with another
university or surrendering its minority status to the imperial
government;
b. Under the AMU Act, AMU voluntarily surrendered its minority
institution status to the imperial government. This is shown by
the historical context of the Aligarh Split, where the institution’s
leaders chose cooperation with the British government over
retaining its Muslim character;
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c. The British government exerted control over AMU, as evidenced
by provisions in the 1920 Act. The Lord Rector had significant
authority in the administration of the institution. The Act dissolved
the previous governing body and transferred property and
decision-making authority to secular government authorities;
d. The 1920 Act was a substantive statute which dealt with the
specifics of the administration of the institution. The administration
of the institution predominantly vested with the non-minority;
e. The British government mandated that AMU should not be
a religious institution and should be controlled by secular
authorities;
f. Amendments in 1951 made the 1920 Act consistent with
constitutional provisions. This affirmed that AMU was established
by statute, not by the minority community;
g. Justice M.C. Chagla in the course of legislative debates in
1965 stated that AMU was neither established nor administered
by minorities. Azeez Basha (supra) correctly held that AMU
surrendered its minority status to the British Government;
h. The validity of the 1981 amendment is questionable, as it is
contrary to previous judicial decisions;
i. The 1981 reference sought clarity on the definition of a minority
educational institution. The reference did not include the
question of whether AMU is a minority educational institution.
Legal challenges in 2005 regarding reservations for Muslims
in postgraduate programs led to the current reference. This
reference also focused on a specific legal question without
reopening factual controversies;
j. The term “establish” under Article 30 should be interpreted to
mean tangible and manifest establishment. The indicia to decide
the minority character of an institution contemplated under Article
30(1) of the Constitution, must include the following:
i. The institution/university must necessarily be established
and administered by the minority community; and
ii. The institution/university should be established by the
minority, for the minority and as a minority institution.
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k. There are concerns about the potential misuse of minority
status without a strict standard of actual establishment. The
drafting history of fundamental rights under Articles 29 and
30 consistently uses “establish” and “administer” conjunctively
and further expresses apprehensions about an over-expansive
interpretation of these Articles;
l. The genesis of an institution does not determine its minority
status. Legislative enactments are the final authority on the
establishment, as seen in legislations where the minority status
is explicitly recognised;
m. The reliance on St. Stephen’s (supra) is self-defeating since
this Court applied the standard of administrative control as an
indicia in that case. The involvement of the Government in AMU’s
establishment, clear intent and specific provisions indicate the
national and non-minority character of the institution;
n. The Nation Commission for Minority Educational Institution Act
200418 and its Amendment in 2010 provide that an institution
needs to be established and administered by minorities to be a
minority educational institution. The said definition is not under
challenge; and
o. The consequence of recognising AMU as a minority educational
institution is that seats cannot be reserved for the other
categories of the Scheduled Castes/Scheduled Tribes/Socially
and Educationally Backward Classes.
27. Mr Rakesh Dwivedi, learned senior counsel submitted that:
a. For a community to be considered a “minority,” it must fulfil
three criteria:
i. It must be numerically lesser than the majority;
ii. It cannot be the ruling group even if it is numerically
smaller; and
iii. The group itself should identify as a minority.
b. Muslims were not recognized as a minority during British rule,
as Hindus and Muslims were considered equals. Syed Ahmed

18 “NCMEI Act”
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Khan, the founder of Mohammedan Anglo-Oriental College,
claimed in a letter that the Muslim community never considered
itself as a minority and instead as rulers prior to the British
government;
c. Judgments of this Court have held that Article 30(1) applies to
institutions that were established before the commencement of
the Constitution. However, these decisions dealt with colleges
and schools and not a University. Article 30(1) does not apply
to a University that was established before the commencement
of the Constitution because a University before the enactment
of the University Grants Commission 1956 could only have
been established by the Government and not a person; and
d. Azeez Basha (supra) was a standalone and statute-specific
judgment. Overruling it would disrupt the Union’s control over
AMU, constituting “public mischief”. The precedent set by the
case should only be overturned if there is a substantial risk to
public interest, which is not the case here.
28. Mr. Neeraj Kishan Kaul, learned senior counsel submitted that:
a. The correctness or validity of Azeez Basha (supra) was not within
the purview of the reference order, which solely aimed to clarify
the meaning of “established and administered” under Article 30;
b. Parliament cannot deny a fact by creating legal fiction in a
subsequent legislation. The 1981 amendment only attempted to
change who “established” the University but made no change
in the provision related to the administration of the University.
It attempted to rewrite history by altering the recognition of the
University’s establishment;
c. AMU’s inclusion as an institution of national importance under
Entry 63 of the Union list gives the Union government sole authority
over it. Altering AMU’s status would require a constitutional
amendment rather than a legislative amendment; and
d. Over the past decades, there has been no demand for minority
status for AMU, as evidenced by legislative actions in 1951 and
1965. The demand for minority rights now would conflict with
existing reservation rights for Scheduled Castes, Scheduled
Tribes, and Socially and Economically Backward Classes.
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29. Mr Guru Krishnakumar, learned senior counsel made the following
submissions:
a. The “new sovereign,” presumably referring to contemporary
legislative and executive authorities, holds the discretion to
determine the approach towards minority rights. This implies
that decisions regarding minority rights are subject to the
interpretation and judgment of current governing bodies;
b. H.V. Kamath in the Constituent Assembly advocated for
parliamentary legislation on universities to demonstrate their
impartial and non-communal nature. Similarly, Naziruddin
Ahmed, a member of the Muslim League in the Constituent
Assembly, asserted that universities were rightly under the
Union’s jurisdiction; and
c. A fact established by legislation cannot override a fact recognised
by the Court.19
30. Mr Vijay Navare, learned senior counsel submitted that granting
minority status to AMU would undermine Parliament’s authority and
interfere with powers vested under Entry 63.
31. Ms. Archana Pathak Dave, learned senior counsel submitted that
AMU was created ‘by the Statute’ (Act 21 of 1920) and not ‘under
the Statute’.
32. Mr. Nachiketa Joshi, learned counsel submitted that the Rajya Sabha
debates related to the amendments of 1981 reveal a misconception
that this Court in Azeez Basha (supra) neglected AMU’s history
before 1920. The amendment failed to alter the foundational aspect
of Azeez Basha (supra), which is centred on the Muslim community’s
concessions to the terms of the British Government.

D. Issues
33. The petitioner and the respondents disagree on whether this Bench
must determine if AMU is a minority educational institution. In
Anjuman-e-Rahmaniya (supra), the two-Judge Bench referred the
question of the essential ingredients of a minority education institution.
This was the core issue which was referred to the Constitution

19 Reliance was placed on Indira Sawhney (II) v. Union of India & Ors, AIR 2000 SC 498.
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Bench. The other two questions which were formulated, that is, the
meaning of the phrase “establish” and the impact of registration under
the Societies Registration Act 1860 after the establishment of the
institution are in essence, subsets of the core issue. The question
of the indicia for recognising an educational institution as a minority
educational institution was reflected in question 3(a) framed in TMA
Pai (supra). Thus, neither was Anjuman-e-Rahmaniya (supra) nor
TMA Pai (supra) concerned with the factual situation in Azeez Basha:
that is, whether AMU is a minority education institution.
34. The 2019 reference order also limits the reference to the legal
aspects arising from the decision in Azeez Basha (supra) and
not the factual aspects of the decision relating to AMU. This is
clear from the passages from the 2019 reference order extracted
above, particularly paragraphs 8 and 9. Paragraph 8 states that the
correctness of the “question arising from” Azeez Basha (supra) has
“remained undetermined”. The paragraph indicates that the 2019
reference order must be read along with the previous references
in both Anjuman-e-Rahmaniya (supra) and TMA Pai Foundation
(supra). Paragraph 9 mentions that the correctness of the view in
Azeez Basha (supra) “which has been extracted above” requires
an authoritative pronouncement. The paragraph from Azeez Basha
(supra) extracted in the 2019 reference order deals with the question of
indicia to be considered a minority educational institution. It is evident
upon a reading of the reference orders that only the question of the
criteria to be fulfilled to qualify as a minority educational institution
is referred to this Bench.
35. From the order in Anjuman-e-Rahmaniya (supra) referring the
judgment in Azeez Basha (supra) to a larger Bench, the question
formulated in TMA Pai (supra) and the 2019 Reference order,
the question that must be decided by this Bench is what are the
ingredients, indicia or criteria for an educational institution to be
considered a minority educational institution under Article 30. The
following issues must be answered for this purpose:
a. Whether an educational institution must be both established
and administered by a linguistic or religious minority to secure
the guarantee under Article 30;
b. What are the criteria to be satisfied for the ‘establishment’
of a minority institution? Whether Article 30(1) envisages an
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institution which is established by a minority with participation
from members of other communities;
c. Whether a minority educational institution which is registered
as a society under the Societies Registration Act 186020 soon
after its establishment loses its status as a minority educational
institution by virtue of such registration; and
d. Whether the decision of this Court in Prof. Yashpal v. State of
Chhattisgarh21 and the amendment of National Commission
for Minority Educational Institutions Act 200522 in 2010 have a
bearing on the question formulated above and if so, in what
manner.

E. Analysis

i. The preliminary objection by the Union of India
36. The Union of India advanced a preliminary objection to the
reference. It argued that the order dated 26 November 1981 in
Anjuman-e-Rahmaniya (supra) by which the matter was referred
to a Bench of seven Judges is “wholly bad in law.” It relies on the
decision of a Constitution Bench in Central Board of Dawoodi
Bohra Community v. State of Maharashtra23 to argue that the two-
Judge Bench of this Court in Anjuman-e-Rahmaniya (supra) could
not have referred the correctness of the decision rendered by the
Constitution Bench in Azeez Basha (supra) directly to a Bench of
seven Judges. It was suggested that the two-Judge Bench ought to
have referred the matter to a Bench of equal strength to the decision
the correctness of which is doubted, that is, a Bench of five Judges.
The Union of India argued that only a Bench of five Judges could
have referred the matter to a Bench of seven Judges.
37. In Central Board of Dawoodi Bohra Community (supra), a
Constitution Bench discussed the legal precepts which apply to
orders of reference and reiterated the position of law as below:24

20 “Societies Registration Act”
21 [2005] 2 SCR 23 : (2005) 5 SCC 420
22 “NCMEI Act”
23 (2005) 2 SCC 673
24 Central Board of Dawoodi Bohra Community (supra) [12]
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a. Decisions of this Court rendered by a Bench of larger strength
are binding on Benches of a less or equal strength;
b. If a Bench of lower strength is doubtful about the correctness
of a judgment delivered by a Bench of larger strength, it cannot
disagree or dissent from the view taken by the larger Bench.
In case of doubt, it can invite the attention of the Chief Justice
of India to its opinion and request the Chief Justice to list the
matter before a Bench, the strength of which is greater than
that which delivered the judgment which has been doubted;
c. The correctness of the view taken by any Bench can only be
doubted by a Bench of equal strength. The matter will then be
placed for hearing before a Bench of greater strength;
d. There are two exceptions to the rules discussed above:
i. The discretion of the Chief Justice is not bound by the
rules. As the master of the roster, the Chief Justice may
list any case before any Bench of any strength;
ii. Despite the rules discussed above, if a particular case has
come up for hearing before a Bench of larger strength and
that Bench is of the opinion that the judgment of the Bench
of lower strength requires reconsideration or correction, or
is otherwise doubtful of its correctness, it may dispense
with the need for a reference in the terms described above
or an order of the Chief Justice and hear the matter for
reasons given by it.
38. The position of law laid down in Central Board of Dawoodi Bohra
Community (supra) is correct. Decisions of a larger Bench are binding
precedent, and judicial discipline and propriety dictate that Benches
of lower strength must adhere to such decisions. This will also avoid
inconsistencies in the development of law. Questions concerning the
correctness of judgments must ordinarily be referred only by a Bench
which is equal in strength to the Bench whose judgment is doubted.
We also agree with the two exceptions to this rule, as detailed by
this Court in Central Board of Dawoodi Bohra Community (supra).
They must remain exceptions and not transmogrify into the rule itself.
39. The three issues which required an authoritative pronouncement
in Anjuman-e-Rahmaniya (supra), were not directly a point of
contention in Azeez Basha (supra). However, the decision would
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have a bearing on them. Doubting the correctness of the opinion
in Azeez Basha (supra), without disagreeing with it, the two-Judge
Bench requested that the matter may be placed before the Chief
Justice of India for being heard by a Bench of seven Judges. This falls
within the permissible limits laid down in Central Board of Dawoodi
Bohra Community (supra) as explained in point (b) of paragraph 37.
Further, the Solicitor General has also stated that he is not pressing
the Union’s preliminary objection. The order of reference dated 12
February 2019, too, noted that although a three-Judge Bench could
not ordinarily refer a case directly to a seven-Judge Bench, it was
doing so in this case because the question was already referred
to a Bench of seven Judges but was not answered. The reference
order notes:
“10. Ordinarily and in the normal course the judicial
discipline would require the Bench to seek a reference
of this matter by a Five Judges Bench. However, having
regard to the background, as stated above, when the
precise question was already referred to a Seven Judges
Bench and was, however, not answered, we are of the
view that the present question, set out above, should be
referred to a Bench of Hon’ble Seven Judges.
11. Consequently and in the light of the above, place these
matters before the Hon’ble the Chief Justice of India on
the administrative side for appropriate orders.”
40. This Court will hear the questions referred to a seven-Judge Bench
for these reasons.

ii. The scope of Article 30
41. The fundamental rights enshrined in the Constitution do not operate
in silos. In A.K. Gopalan v. State of Madras,25 the majority judgment
of this Court held that fundamental rights operate to the mutual
exclusion of one another. In other words, each fundamental right was
understood as being distinct and unrelated to the others. This view
of Part III of the Constitution was later rejected in Rustom Cavasjee

25 AIR 1950 SC 27
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Cooper v. Union of India,26 which held that Part III “weaves a pattern
of guarantees on the texture of basic human rights. The guarantees
delimit the protection of those rights in their allotted fields: they do
not attempt to enunciate distinct rights.”27 Maneka Gandhi v. Union
of India28 affirmed that Rustom Cavasjee Cooper (supra) overruled
the majority judgment in A.K. Gopalan (supra). Thus, the scope
of the right of “minorities to establish and administer educational
institutions” must be identified in the background of the other cultural
and religious rights guaranteed by the Constitution.
42. Articles 25 to 28 are placed under the heading ‘Right to freedom of
religion’. Article 25(1) stipulates that all persons are equally entitled to
freedom of conscience, the right to freely profess, practice or propagate
religion. This is subject, however, to public order, morality, health and
other provisions of Part III of the Constitution. Clause (2) of Article 25
provides that nothing in Clause (1) would affect the operation of any
existing law or prevent the State from enacting a law regulating or
restricting any economic, financial, political or secular activity, which
may be associated with religious practice, and legislation providing for
social welfare reform or opening Hindu religious institutions of public
character to all classes and sections of Hindus. Article 26 guarantees
religious denominations or a section of them, the right to establish and
maintain institutions for religious and charitable purposes, manage
their own affairs in the matter of religion, to own and acquire movable
and immovable property, and administer such property in accordance
with law. The rights are subject to public order, morality and health.
Article 27 mandates that no one shall be compelled to pay any taxes,
the proceeds of which are to be specifically appropriated in payment
of expenses for the promotion and maintenance of any particular
religion or religious denomination.
43. Article 28, deals with the rights of individuals and secures to them
vide clause (3), the right not to take part in any religious instructions
that may be imparted in any educational institution recognised by the
State or receiving aid of the State funds. The provision stipulates that a
person need not attend religious worship conducted in such institution

26 (1970) 1 SCC 248
27 (1970) 1 SCC 248 [52]
28 (1978) 1 SCC 248
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or any premises attached thereto unless he wishes to do so, and if
such person is a minor, upon the consent of his guardian. Clause (1)
of Article 28 restricts educational institutions wholly maintained out
of the State funds29 from imparting ‘religious instructions’. However,
clause (2) to Article 28 stipulates that clause (1) will not apply to an
educational institution which is administered by the State but was
established under an endowment or trust which required religious
instruction to be imparted in such institution. The clause recognises
the distinction between ‘establishment’ and ‘administration’ of an
institution.
44. Articles 29 and 30 under the heading ‘Cultural and Educational Rights’,
are two provisions which specifically confer rights on a section of
citizens residing in the territory of India or a part thereof, having a
distinct language, script, or culture. Some would say that these are in
nature of special privileges, yet in substance, they are in the nature
of guarantees and protections given by the Constitution not to any
specific denomination by identity, but to any section of the citizens
which can be distinguished on the basis of language, script or culture.
Clause (1) of Article 29 gives them the right to conserve, secure and
extol their language, script or culture. The clause underscores the right
to conserve and nurture the language, script or culture. Clause (2) of
Article 29 is a negative right which stipulates that no citizen shall be
denied admission on the grounds of religion, race, caste, language,
or any of them in any educational institution maintained by the State
or receiving aid out of the State funds.
45. Though the heading of Article 29 states that it is a provision for
the protection of the interest of minorities, the substantive portion
stipulates that the right is available to “any section of citizens”
residing in India and having a distinct language, script or culture
of their own. Thus, Article 29 applies to non-minorities as much as
it applies to minorities, provided that the sections have a distinct
language, script and culture of their own.30 Similarly, Articles 25

29 The expression ‘wholly maintained out of the State funds’ has been interpreted in DAV College v. State
of Punjab (II), (1971) 2 SCC 269, to mean an institution which receives grants for its expenditure that
may be wholly maintained out of the State funds even though it receives a fee for affiliation or holding
examination as quid pro quo.
30 See Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717, (9J) [Chief Justice
Ray writing for himself and Justice Palekar [5,6], Justice Khanna [73], Justice Mathew writing for himself
and Justice YV Chandrachud [125, 126]; Rev. Father W Proost v. State of Bihar [5J] [1969] 2 SCR 73 [8,9]
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to 28 also do not make a distinction between majority and minority
religious sections. The provisions guarantee the right to freedom of
religion to both minorities and non-minorities. Article 25 recognises
the right of all persons to freedom of conscience and the right to
freely profess, practice and propagate religion. Article 26 recognises
the right of every religious denomination or any section thereof
to manage its religious affairs. The provisions of Article 28 also do
not distinguish between a minority and a non-minority educational
institution. The provisions apply equally to educational institutions
established by religious and linguistic minorities and non-minorities.31
46. The provisions noted above, whether they refer to individual rights
or denomination rights are manifestations that India is a pluralistic
society with different religions, practices, cultures and languages.
These provisions which are in the nature of rights and guarantees,
also prescribe the ambit of State interference.
47. Article 30 consists of three clauses. Clause (1) states that all
minorities whether based on religion or language, shall have a right
to establish and administer educational institutions of their choice.
Clause (1)(a) deals with the provision for compulsory acquisition of any
property for an educational institution established and administered
by a minority. We are not concerned per se with the said clause.
Clause (2) of Article 30 provides that the State shall not, in granting
aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority
whether based on religion or language.
48. The two crucial expressions which arise for consideration and
interpretation in this decision are the words ‘establish’ and ‘administer’
used in clause (1) of Article 30. These two words and expressions
have to be interpreted in the context of clause (1) to Article 30 which
confers a guarantee and protection to minority communities based
on religion or language.

31 See TMA Pai (supra) [88-90;144]; “144 […] As in the case of a majority-run institution, the moment
a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an
educational institution is maintained out of State funds, no religious instruction can be provided therein.
Article 28(1) does not state that it applies only to educational institutions that are not established or
maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions
of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-
minorities. […] Just as Articles 28(1) and (3) become applicable the moment any educational institution
takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational
institution maintained by the State or receiving aid out of State funds.”
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a. The purpose of Article 30(1)
49. A brief reference to the drafting history of the provision will help
us discern the purpose of the provision. On 19 April 1947, the
Minorities Sub-Committee (which was appointed to examine and
propose changes to the draft clauses of the fundamental rights
Committee) submitted the interim report to the Chairperson of the
Advisory Committee on Minorities and Fundamental Rights.32 The
Minorities Sub-Committee recommended, inter alia, the inclusion of
a constitutional provision that stipulated that all minorities, whether
based on religion, community or language shall be free to establish
and administer educational institutions of their choice.33 However,
when the first Draft of the Constitution was submitted by the Drafting
Committee to the President of the Constituent Assembly, the
provision guaranteed a right to establish and administer educational
institutions.34 This change in the language of the provision is crucial to
understanding the scope of the provision. The provision guaranteed a
purely negative group right to religious and linguistic minorities against
the State with the use of the words “shall be free”, that is, the right
to ensure that the State does not discriminate against minorities who
wish to establish and administer educational institutions. However,
upon the use of the phrase ‘right’, the possibility of interpreting the
provision as a guarantee of a positive right arose.
50. It cannot be disputed that Article 30(1) guarantees the minority
educational institutions, the right to not be discriminated. In fact,
Article 30(2) is a facet of the principle of non-discrimination of
minorities. The Article provides that the State shall not discriminate in
granting aid to educational institutions or discriminate on the ground
that it is under the management of a religious or linguistic minority. The
question is whether the use of ‘right’ in Article 30(1) also guarantees
a ‘special right’ in addition to the right to non-discrimination.
51. While there is no doubt that Article 30 protects the rights of minorities,
this Court has in numerous judgments conceptualised varied reasons
for the constitutional guarantee. In Ahmedabad St. Xavier’s College

32 B. Shiva Rao, The Framing of India’s Constitution: Select Documents [Vol II, The Indian Institute of Public
Administration] 207
33 Ibid[ 273]
34 Draft Constitution of India 1948, Article 23(a)
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Society v. State of Gujarat,35 a nine-Judge Bench discussed the
objective of the provision in detail. Chief Justice Ray writing for himself
and Justice Palekar observed that Article 30 ensures equality between
the majority and the minority, which would be denied in the absence
of a special provision.36 Justice HR Khanna cast the purpose of the
provision in terms of substantive equality and observed that Article
30 guarantees ‘special rights’ to give minorities a ‘sense of security’.
The learned Judge observed that the real effect of the provision was
to “ensure the preservation of the minority institutions by guaranteeing
the minorities autonomy […] in administration.”37 Justice Mathew,
writing for himself and Justice YV Chandrachud, also traced the
purpose to the guarantee to substantive equality for minorities. The
learned Judge observed that it will be impossible to protect the group
identity of minorities and prevent the assimilation of identities in the
absence of a provision guaranteeing substantive equality.38
52. Justice Mathew referred to the Advisory opinion of the Permanent
Court of International Justice on Minority Schools in Albania to draw
on the purpose of providing additional guarantees for minorities.39 In
this judgment, a crucial principle regarding equality and differential
treatment for minority groups was articulated. The Permanent Court
of International Justice observed that true equality might necessitate
differential treatment to establish equilibrium between different
situations:
“Whereas equality in fact may involve the necessity of
differential treatment in order to attain a result which
establishes an equilibrium between different situations. It
is easy to imagine cases in which equality of treatment
of the majority and of the minority whose situation and
requirements are different, would result in inequality. The

35 (1974) 1 SCC 717
36 Ibid [8,9]
37 Ibid [77]
38 Ibid [131-133]; “132.The problem of the minorities is not really a problem of the establishment of equality
because if taken literally, such equality would mean absolute identical treatment of both the minorities
and the major ities. This would result only in equality in law but inequality in fact. The distinction need not
be elaborated for it is obvious that “equality in law precludes discrimination of any kind; whereas equality
in fact may involve the necessity of differential treatment in order to attain a result which establishes an
equilibrium between different situations.”
39 Minority Schools in Albania, Advisory Opinion, PCIJ Series A/B no 64, ICGJ 314 (PCIJ 1935), 6th April
1935, League of Nations; Permanent Court of International Justice.
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equality between the members of the majority and of the
minority must be effective, genuine equality…”
53. This perspective underscores the imperative to enable minorities
to maintain their distinctive characteristics and fulfil their specific
needs. The case in question involved the abolition of all private
schools, a measure challenged primarily by the minority. The Court
emphasized that the rationale for the protection of minorities aimed
at preserving their unique attributes. To achieve this objective, it
deemed two aspects crucial. Firstly, it stressed the importance of
ensuring that members of minority groups enjoy complete equality with
other nationals of the state. Secondly, it emphasized the necessity
of providing minority groups with appropriate means for preserving
their racial peculiarities, traditions and national characteristics.
54. Distinct and diverse languages and religions have inherent value. It
is also indisputable that cultures are often entangled with language
and religion. The Constitution recognises that people who practise
such religions or speak such languages who find themselves in the
minority must not be at a disadvantage because of their numbers.
55. That being said, the purpose of Article 30 is not solely to enable
religious minorities to impart religious instruction. Article 30 extends
to secular education as well. That minorities may wish to impart
secular and religious instruction side by side may be one aspect of
the matter. Another equally relevant aspect is that minorities may
wish to impart secular education in a manner that is conducive to
the practice of their religion or harmonious with it, even if religious
instruction does not form part of the curriculum. In this way, the right
of linguistic and religious minorities to equality is protected.
56. The nine-Judge Bench in St. Xavier’s (supra) held that Article 30(1)
is in pursuance of the anti-discrimination and substantive equality
facets of the equality doctrine.40 In TMA Pai (supra), Chief Justice
Kirpal writing for the majority of the eleven-Judge Bench observed
that a law that discriminates based on whether the institution is
established by a minority or a majority is unconstitutional for violation
of Article 30. The Chief Justice observed that, however, the provision

40 St. Xavier’s (supra) Chief Justice Ray for himself and Justice Palekar [9]; Justice HR Khanna [77];
Justice Mathew for himself and Justice YV Chandrachud [131-133]
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should not lead to reverse discrimination.41 This observation on a
cursory view seems to indicate that the Court has taken a volte-
face by shifting from a special rights/substantive equality approach
of the provision to an anti-discrimination/formal equality reading
of the provision. However, a closer examination reveals that the
observations of the majority in TMA Pai (supra) were in line with the
precedents that viewed the provision as a guarantee of a ‘special
right’. This is evident from the interpretation of the interrelationship
between Article 29(2) and Article 30. One of the issues in that case
was whether Article 29(2) which provides that no person shall be
denied admission in State aided educational institution only on the
grounds of religion, race, caste, language or any of them is applicable
to minority education institutions. The opinion of the majority held
that the denial of admission to non-minorities in minority institutions
to a “reasonable extent” is not violative of Article 29(2) since it
“preserves the minority character of the institution”.42 Thus, Article
30, beyond preventing the State from discriminating against religious
and linguistic minorities who wish to establish educational institutions
also guarantees a ‘special protection’.

b. The ‘special protection’ guaranteed by Article 30(1)
57. This purpose of Article 30 was further expanded in PA Inamdar v.
State of Maharashtra,43 where a seven-Judge Bench observed that
the provision is better understood as a ‘protection’ and/ or a ‘privilege’

41 “138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority
institutions of their right to establish and administer educational institutions of their choice. Secularism
and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the
linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the
principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed
that will discriminate against such minorities with regard to the establishment and administration of
educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would
put the educational institutions run by the minorities at a disadvantage when compared to the institutions
run by the others will have to be struck down. At the same time, there also cannot be any reverse
discrimination. It was observed in St. Xavier’s College case [(1974) 1 SCC 717 : (1975) 1 SCR 173] at
SCR p. 192 that : (SCC p. 743, para 9)
“The whole object of conferring the right on minorities under Article 30 is to ensure that
there will be equality between the majority and the minority. If the minorities do not have
such special protection they will be denied equality.”
In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the
minority institutions. No one type or category of institution should be disfavoured or, for that matter,
receive more favourable treatment than another. Laws of the land, including rules and regulations, must
apply equally to the majority institutions as well as to the minority institutions. The minority institutions
must be allowed to do what the non-minority institutions are permitted to do.”
42 TMA Pai (supra) [133]
43 (2005) 6 SCC 537
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of the minority rather than an abstract right.44 What is the special
guarantee that Article 30 provides educational institutions established
by religious and linguistic minorities which is not otherwise available
to non-minorities?
58. Until the judgment of the eleven-Judge Bench in TMA Pai (supra),
the right to establish and administer educational institutions was
interpreted as a right that was exclusively available to religious
and linguistic minorities by virtue of Article 30. In TMA Pai (supra),
the right of every citizen to establish and administer educational
institutions was traced to Article 19(1)(g),45 which guarantees the
freedom to practise any profession, or to carry on any occupation,
trade or business. The eleven-Judge Bench also traced the right of
‘every’ religious denomination (of both the majority and the minority)
to establish and administer educational institutions to Article 26(a)
which guarantees the right to establish and maintain institutions
for religious and ‘charitable’ purposes. Charitable purposes was
interpreted to include education.46
59. The rights guaranteed by Articles 19(1)(g) and 26(a) can be reasonably
restricted on the grounds in Articles 19(6) and 26 respectively. An
educational institution established and administered by any citizen can
be regulated on the grounds stipulated in Article 19(6) which includes
the ground of professional or technical qualifications necessary
for practising any profession or carrying on any occupation, trade,
business.47 An educational institution established by a religious

44 PA Inamdar (supra) [100]; Also see St. Stephen’s (supra) [28,30(1), 59]
45 TMA Pai (supra) [Chief Justice Kirpal 19-20]; Chief Justice Kirpal authoring the majority opinion observed
that Article 19(1)(g) covers activities of citizens in respect of which income or profit is generated. The
learned Judge observed that “the establishment and running of an educational institution where a large
number of persons are employed as teachers or administrative staff, and an activity is carried on that
results in the imparting of knowledge to the students, must necessarily be regarded as an occupation.”
[para 25]
46 TMA Pai (supra) [Chief Justice Kirpal 26]; “26.The right to establish and maintain educational institutions
may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious
denomination or any section thereof to establish and maintain institutions for religious and charitable
purposes, subject to public order, morality and health. Education is a recognized head of charity.
Therefore, religious denominations or sections thereof, which do not fall within the special categories
carved out in Articles 29(1) and 30(1), have the right to establish and maintain religious and educational
institutions. This would allow members belonging to any religious denomination, including the majority
religious community, to set up an educational institution.”
47 The right of citizens of establish and administer educational institutions does not prevent the State
from making any law relating to: (a) professional or technical qualifications necessary for practising
any profession or carrying on any occupation, trade, business; (b) 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.
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denomination (without any element of profit48) can be regulated on
grounds of public order, morality and health. As opposed to these
two provisions, Article 30 does not circumscribe the right on any
grounds. This Court has, however, consistently emphasised that the
right guaranteed by Article 30 is not absolute.
60. In Rev. Sidhajbhai Sabhai v. State of Bombay,49 a Constitution
Bench observed that Article 30 is absolute and cannot be restricted
on any grounds such as in Article 19. However, in the very next
sentence this Court observed that the right can be restricted on the
grounds of efficiency of instruction, discipline, health, sanitation,
morality and public order.50 It must be noticed that these grounds
resemble the grounds for restraint prescribed in Articles 19(6) and 26.
61. The inconsistency of the observations in Rev. Sidhajbahi (supra)
was set right in State of Kerala v. Very Rev. Mother Provincial.51
The six-Judge Bench differentiated between restrictions on the
autonomy of a minority institution and the standard of education.52
The former is impermissible in view of the protection under Article
30(1). The latter was traced to the regulation of the profession
which is covered by Article 19(6). Thus, regulation of a minority
educational institution is permissible on the grounds in Article 19(6).
However, the regulation must not infringe the minority character of
the educational institution. Article 30(1) is absolute in that sense.
Justice Khanna’s concurring opinion in St. Xavier’s (supra) also
highlighted this point. The learned Judge observed that reasonable
restrictions can be imposed to ensure that a minority educational
institution is an institution of excellence. The examples given by
the Judge included ensuring regular payment of salaries and audit
of accounts.53 The distinction between regulation which affects the
minority character and a regulation in pursuance of ‘national interest’
was also drawn by the opinion of the majority in TMA Pai (supra).54
National interest was interpreted to include public safety, national

48 PA Inamdar [6]
49 [1962] 3 SCR 837
50 [1962] 3 SCR 837 [849]
51 (1970) 2 SCC 417
52 Ibid [9, 10]
53 St. Xavier’s [91]
54 TMA Pai (supra) [107]
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security and national integrity, preventing the exploitation of students
or the teaching community, and application of general laws such as
laws on taxation, sanitation and social welfare.55 The principle that
can be inferred from the above precedents is that regulations that
may be justified on the grounds stipulated in Articles 19(6) and 26
may fall foul of Article 30 if they infringe the ‘minority character’ of
the institution.56 This is the ‘special right’ or ‘protection’ which the
Constitution guarantees minority education institutions.
62. The right to administer was considered in some depth in St. Xavier’s
(supra) by Chief Justice AN Ray and Justice HR Khanna. Justice
Khanna emphasised that the right to administer an institution is to
effectively manage and conduct the affairs of the institution. The
learned Judge held that it means shaping the institution in congruence
with their vision and ideas for best serving the interests of both the
community and the institution. Chief Justice AN Ray, on the other
hand, observed that the right to administer has four components:
(a) the right to choose its managing or governing body; (b) the right
to choose the teachers; (c) the right not to be compelled to refuse
admission to students; and (d) the right to use its properties and
assets for the benefit of its own institutions. The right to administer as
guaranteed under Article 30(1) ensures autonomy in administration
and the right of choice which may not otherwise be available to a
non-minority institution. The right to administration, however, does not
grant a carte blanche to flout or disregard the regulations and controls
established by statute, which are essential for protecting the larger
public interest and maintaining educational standards. Thus, the right
to administer is not impaired by factors such as rules and regulations
prescribing the proper utilization of State funds, qualifications of
the teachers, their remuneration and benefits, eligibility criteria for
admission of students, attendance requirements and the threshold
to pass the exams conducted by the board/university to which the
college or school is affiliated. What is barred is the interference in
the internal management and overall control of the institution. At the
same time, we must clarify that a minority institution can employ
non-minority employees. Non-minority individuals can be teachers
or even hold the position of the academic or institution head. To

55 PA Inamdar (supra) [119]; TMA PAI [136]
56 See PA Inamdar (supra)[92,122]
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hold otherwise, would amount to interference with the choice, as
envisaged by Article 30(1).
63. This proposition was clearly elucidated by the seven-Judge Bench
in PA Inamdar v. State of Maharashtra57 which was formed to cull
out the ratio decidendi of the eleven - Judge Bench in TMA Pai
(supra). The degree of interference of the State in the administration
of an educational institution differs based on whether the institution
receives aid or recognition from the Government or whether the
institution was established by a minority. In PA Inamdar (supra), this
Court discussed the extent of State interference in an (i) unaided
and unrecognised/unaffiliated minority institution; (ii) unaided minority
institution seeking recognition; and (iii) aided minority institution. In
the case of the first class, the seven-Judge Bench held that the
minority ‘can exercise the right to heart’s content’. Institutions that
fall within the first class could even fill all the seats with students
from their community.58 With respect to the second class, this Court
held that the State cannot interfere in the day to day administration,
including the essential ingredients of management, admission of
students, recruiting staff and charging of fees.59 This Court held that
the regulation must be reasonable and for the purpose of ensuring
that the institution is effective for the minority and others who resort
to it.60 For institutions that fall within the third class, the State can
only regulate the proper utilisation of the grant without diluting the
minority status of the educational institution.61
64. Thus, the position that emerges is that: (i) the regulations must be
relevant to the purpose of granting recognition (in the case of a State-
recognised institutions) and aid (in the case of Government aided
institutions); and (ii) the effect of the regulation must not infringe the
minority character of the institution.
65. From the discussion above, the following principles emerge :
a. The purpose of Article 30(1) is to ensure that the State does
not discriminate against religious and linguistic minorities which

57 (2005) 6 SCC 537
58 PA Inamdar (supra) [120]; TMA Pai (supra) [145]
59 Ibid [121]
60 ibid [122]
61 PA Inamdar [123]; TMA Pai [143]
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seek to establish and administer educational institutions (“the
non-discrimination” purpose); and
b. The purpose of Article 30(1) is also to guarantee a ‘special
right’ to religious and linguistic minorities that have established
educational institutions. This special right is the guarantee of
limited State regulation in the administration of the institution.
The State must grant the minority institution sufficient autonomy
to enable it to protect the essentials of its minority character.
The regulation of the State must be relevant to the purpose of
granting recognition or aid, as the case may be. This special
or additional protection is guaranteed to ensure the protection
of the cultural fabric of religious and linguistic minorities.

iii. Indicia for a Minority Educational Institution
66. To recall, the petitioners while challenging the 1951 and 1965
amendments to the AMU Act in Azeez Basha (supra) argued that the
amendments were violative of the right to administration guaranteed
by Article 30(1). The Union of India responded to the argument with
the submission that the Muslim minority cannot claim the right to
administration since it did not ‘establish’ the institution. Opposing
this argument, the petitioners in Azeez Basha (supra) submitted
that Article 30(1) guarantees the ‘right to administer’ an educational
institution to minorities even if it was not established by them, if
by “some process, it had been administering the same before the
Constitution came into force.” The argument of the petitioners was
rejected. This Court held that the words “establish” and “administer”
must be read conjunctively, that is, the guarantee of the right to
administration is contingent on the establishment of the institution
by religious or linguistic minorities. In this context, the following
observations were made:
“It is to our mind quite clear that Art. 30(1) postulates that
the religious community will have the right to establish and
administer educational institutions of their choice meaning
thereby that where a religious minority establishes an
educational institution, it will have the right to administer
that. An argument has been raised to the effect that even
though the religious minority may not have established the
educational institution, it will have the right to administer it, if
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by some process it had been administering the same before
the Constitution came into force. We are not pre-pared
to accept this argument. The Article in our opinion clearly
shows that the minority will have the right to administer
educational institutions of their choice provided they have
established them, but not otherwise. The Article cannot
be read to mean that even if the educational institution
has been established by somebody else, any religious
minority would have the right to administer it because, for
some reason or other, it might have been administering
it before the Constitution came into force. The words
“establish and administer” in the Article must be
read conjunctively and so read it gives the right to
the minority to administer an educational institution
provided it has been established by it.
…
We are of opinion that nothing in that case justifies the
contention raised on behalf of the petitioners that the
minorities would have the right to administer an educational
institution even though the institution may not have been
established by them. The two words in Art. 30(1) must
be read together and so read the Article gives the right
to the minority to administer institutions established by it.”
(emphasis supplied)

The Constitution Bench in St. Stephen’s (supra) reiterated
this interpretation of the phrases ‘establish’ and ‘administer’ in
Article 30(1).62
67. Let us refer to Article 19(1)(a) to understand what it means to
conjunctively read two words in a provision. Article 19 guarantees the
fundamental right to free speech and expression. The guarantee of
the freedom of expression is, however, not dependent on the freedom
of speech. They are two separate rights. However, the situation

62 St Stephen’s [28] “It should be borne in mind that the words “establish” and “administer” used in Article 30(1)
are to be read conjunctively. The right claimed by a minority community to administer the educational
institution depends upon the proof of establishment of the institution. The proof of establishment of the
institution, is thus a condition precedent for claiming the right to administer the institute.”
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differs with regard to the rights to establish and administer outlined
in Article 30. It is settled that the rights to establish and administer
must be read conjunctively and not disjunctively. This Court has not
doubted this interpretation in any of the judgments subsequent to
Azeez Basha (supra).63
68. The question is whether the conjunctive reading of the words
“establish” and “administer” would also mean that for an educational
institution to be a minority institution, it should have been both
established and administered by a minority. In Azeez Basha
(supra), the Constitution Bench held that the institution must be
both established and administered by the minority. The Constitution
Bench framed the following three questions to determine if AMU was
a minority educational institution:
a. Whether on the reading of the AMU Act, the University was
established by the Muslim minority;
b. Whether the right to administer the University ever vested in
the minority; and
c. If (b) is affirmative, whether the right to administer the University
was surrendered when AMU was established.
69. The issue before this Bench is the indicia for an educational institution
to be a minority educational institution. Should it be proved that the
institution was established by the minority, or it was administered by
the minority, or both? The petitioners and the respondents agree that
the words ‘establish’ and ‘administer’ must be read conjunctively. They
argue that administration is a sequitur to establishment. However,
they disagree on the test to be applied to identify a minority education
institution. The petitioners argue that the only indicia for a minority
educational institution is that it must be established by a minority,
while the respondents argue that the dual test of establishment and
administration must be satisfied.
70. Before proceeding further, it is relevant to note the provisions of
the NCMEI Act. The NCMEI Act was enacted in 2004 to constitute
a National Commission for minority educational institutions and

63 Manager, St. Thomas UP School v. Commr. & Secy, to general Education Dept. (2002) 2 SCC 497; St.
Stephen’s (supra); DAV College trust & Management Society v. State of Maharashtra (2013) 4 SCC 14;
SP Mittal v. Union of India (1983) 1 SCC 51
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to provide for matters connected or incidental to it. Section 10 of
the NCMEI Act was amended in 2006. The amended provision
prescribed a procedure for the establishment of a minority educational
institution.64 Thus, there can be no ambiguity about the minority
status of educational institutions established after the enactment of
NCMEI (Amendment) Act 2006. However, that is not the case for
institutions which were established before the 2006 Amendment.
How do we identify if an educational institution established before
2006 is a minority educational institution?
71. Article 30 does not prescribe conditions which must be fulfilled for
an educational institution to be considered a minority educational
institution. Article 30 confers two group rights on all linguistic and
religious minorities: the right to establish an educational institution
and the right to administer an educational institution. This right can
be exercised by an individual belonging to a group or a collection
of persons.65 As observed above, the provision guarantees both a
positive and negative right. Thus, the provision, in addition to ensuring
that the State does not discriminate against the minority community
also guarantees the minority educational institution certain guarantees.
The institution is guaranteed the right of lesser State regulation and
greater autonomy in the administration of the educational institution.
The right to establish an educational institution guaranteed to the
minority is not a special right. That, as held in TMA Pai (supra) (as
explained in the preceding section), is a right which is available to

64 “10. Right to establish a Minority Educational Institution.- (1) Any person who desires to establish a
Minority Educational Institution may apply to the Competent authority for the grant of the no objection
certificate for the said purpose.
(2) The Competent authority shall, -
(a) on perusal of documents, affidavits or other evidence, if any;
(b) after gving an opportunity of being heard to the applicant, decide every application filed under sub-
section (1) as expeditiously as possible and grant or reject the application, as the case may be:
Provided that where an application is rejected, the Competent authority shall communicate the same to
the applicant.
(3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the
grant of no objection certificate,-
(a) the Competent authority does not grant such certificates; or
(b) where an application has been rejected and the same has not been communicated to the person who
has applied for the grant of such certificate,
It shall be deemed that the Competent authority has granted a no objection certificate to the applicant.
(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has
deemed to have granted the no objection certificate, be entitled to commence and proceed with the
establishment of a Minority Educational Institution in accordance with the rules and regulaitons, as the
case may be, laid down by or under any law for the time being in force.
65 Mother Provincial (supra)
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every citizen under Article 19(1)(g) and to minority and non-minority
religious denominations under Article 26. The special right that the
provision guarantees to religious and linguistic minorities relates to
the administration of educational institutions “of their choice”. The
expression “of their choice” is of an expansive nature indicating that
the choice extends to the full range of educational institutions.
72. Article 30(1) cannot extend to a situation where the minority
community which establishes an educational institution has no
intention to administer it. A religious or linguistic community may
establish an educational institution and yet not administer it. This
is evident from Article 28(2) of the Constitution which states that
Article 28(1) will not apply to an educational institution which is
administered by the State but was established under an endowment
or a trust which require religious instruction to be imparted. It is
quite possible that a member or a group belonging to the minority
community wishes to establish an institution but intends to accept
greater State regulation and lesser autonomy for the community. In
that case, putting a ‘minority’ tag on such an educational institution
merely because it has been established by a person or a group
belonging to a religious or linguistic minority would not be permissible
under Article 30(1). An educational institution established by a
minority, whether linguistic or religious, can give up their right to claim
the benefit under clause (1) of Article 30. The right can be given
up consciously by waiver. This may occur where administration has
been consciously and willingly entrusted to the State. Therefore, to
determine whether an educational institution is a minority educational
institution, a formalistic test such as to whether it was established
by a person or group belonging to a religious or linguistic minority
is not sufficient. The tests adopted must elucidate the purpose and
intent of establishing an educational institution for the minority. Both
the establishment and the administration by the minority must be
fulfilled cumulatively for that.66
73. In Azeez Basha (supra), the Constitution Bench referred to the
judgment in The Durgah Committee, Ajmer v. Syed Hussain Ali,67
for the proposition that even if a minority established an educational

66 See Section E(v) of this judgment for an expansive elucidation of the indicia.
67 (1962) 1 S.C.P 383
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institution, it may lose the concomitant right of administration in certain
circumstances. The relevant observations are extracted below:
“We should also like to refer to the observations in The
Durgah Committee, Ajmer v. Syed Hussain Ali. In that
case this Court observed while dealing with Art. 26(a) and
(d) of the Constitution that even if it be assumed that a
certain religious institution was established by a minority
community it may lose the right to administer it in certain
circumstances. We may in this connection refer to the
following observations at p. 414 for they apply equally to
Art. 30(1):
“If the right to administer the properties never
vested in the denomination or had been validly
surrendered by it or had otherwise been
effectively and irretrievably lost to it, Art. 26
cannot be successfully invoked.”
74. In Azeez Basha (supra), in addition to determining if AMU was
established by a Muslim minority, this Court also determined whether
it was ever administered by them or if the administration was validly
surrendered by them, on the basis of the above observations.
75. The context of the above observations in Durgah Committee (supra)
and its application to the interpretation of Article 30(1) needs to be
clarified. In that case, the constitutional validity of the Durgah Khwaja
Saheb Act 195568 was challenged by the Khadims of the tomb for
violation of Article 26(c) and Article 26(d) of the Constitution. To
offer a brief background, Khwaja Saheb was a saint who came to
India at the end of the 12th Century AD and settled in Ajmer. A tomb
in the form of a kutcha structure was built immediately after his
death. However, there were no endowments at this time. Akbar, the
Mughal emperor, took interest in the tomb and rebuilt it. Documents
also indicate that eighteen villages were endowed to the Durgah.
During this period, a descendant of the Saint functioned as the
Sajhadanashin and Mutawalli. During the rule of Shahjahan, the
office of Sajhadanashin and Mutawalli were separated. The Mutawalli
was solely made responsible for the management of the properties

68 “Durgah Act”
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of the Durgah and was appointed by the Ruler. Over the years, this
model was not altered. The Mutawalli was always appointed by the
Government in power.
76. Section 4(1) of the Durgah Act dealt with the appointment of a
Committee in which the administration, control and management of
the Durgah Endowment would vest. The members of the Committee
would be appointed by the Central Government. These two provisions
were challenged on the ground they were ultra vires Article 26(c)
and Article 26(d). In this context, the Constitution Bench observed
that the denomination will not have a right to administer the property
if it never had the right to administer it; if it had been surrendered;
or if it had been irretrievably lost:
“37. […] In other words, if the denomination never had
the right to manage the properties endowed in favour of
a denominational institution as for instance by reason of
the terms on which the endowment was created, it cannot
be heard to say that it has acquired the said rights as a
result of Article 26(c) and (d)…If the right to administer the
properties never vested in the denomination or had been
validly surrendered by it or has otherwise been effectively
and irretrievably lost to it Article 26 cannot be successfully
invoked. […]”
77. On the facts of the case, the Constitution Bench observed that the
endowments were made on such terms that did not confer the right
to manage the properties to the denomination. This Court held that
the right to administer the property could not be claimed if the terms
of the endowment did not confer administration to the denomination.
78. Azeez Basha (supra) relied on the decision of the Constitution Bench
in Durgah Committee (supra) which dealt with clauses (c) and (d)
of Article 26 which guarantee the right of any religious denomination
to own property and administer such property. They were not made
in the context of Article 26(a) by which the right to establish and
maintain institutions is conferred on religious denominations.
79. A parallel could have been drawn between the right guaranteed by
Article 26(a) and Article 30(1), which is what this Court in Azeez
Basha (supra) attempted to do. However, a parallel cannot be
drawn between clauses (c) and (d) of Article 26, and Article 30(1).
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The rights differ in nature and scope. Article 26(d) guarantees the
right to administer property in ‘accordance with law’. The provision
does not confer any special right to administration as in the case of
minority educational institutions.

iv. Applicability of Article 30 to a ‘University’ established before
the commencement of the Constitution
80. Mr Rakesh Dwivedi, senior counsel appearing for the respondents
made two submissions on the application of Article 30 to educational
institutions which were established before the commencement of
the Constitution. First, he urged that the claimant must prove that
they were a linguistic or religious minority when the institution was
established and not when the Constitution commenced; and second,
before the Constitution was adopted, Universities (unlike schools
and colleges which could be established by persons) could only be
established by the Imperial Government. Thus, Universities which
could not have been established by persons before the Constitution
was adopted cannot, according to the submission, claim a right under
Article 30. The observations in re Kerala Education Bill,69 Rev.
Bishop SK Patro v. State of Bihar70 and St. Stephen’s (supra)
that Article 30(1) applies to educational institutions which were
established before the Constitution was adopted were distinguished
on the ground that those cases dealt with colleges and schools, and
not Universities. The learned Attorney General also made a similar
argument. He submitted that in the absence of a legal competence
to establish a given class of institutions (that is, universities), the
question of availing of all attendant rights and claims in relation to
Article 30 cannot arise. In the subsequent sections, we will answer
the following two questions:
a. Whether ‘universities’ established before the commencement
of the Constitution are excluded from the purview of Article
30(1); and
b. Whether those who established an educational institution have
to prove that they were a minority at the time of establishment.

69 [1958] SCR 995
70 (1969) 1 SCC 863
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a. Article 30(1) applies to educational institutions established
before the commencement of the Constitution
81. In re the Kerala Education Bill 1957 (supra), a seven-Judge
Bench of this Court held that Article 30 applies to educational
institutions which predate the Constitution. This Court held that the
right to administer guaranteed by Article 30(1) is wide enough to
cover educational institutions established both before and after the
Constitution was adopted:
“22. … There is no reason why the benefit of Article 30(1)
should be limited only to educational institutions established
after the commencement of the Constitution. The language
employed in Article 30(1) is wide enough to cover both
pre-Constitution and post-Constitution institutions. It must
not be overlooked that Article 30(1) gives the minorities
two rights, namely, (a) to establish, and (b) to administer,
educational institutions of their choice. The second right
clearly covers pre-Constitution schools just as Article 26
covers the right to maintain pre-Constitution religious
institutions. …”
82. Although the opinion in that case was rendered in exercise of the
advisory jurisdiction of this Court under Article 143, it has immense
persuasive value.71 The judgment in Inre Kerala Education Bill
(supra) has held the field for many decades. Subsequent decisions of
this Court have also relied on it. The decision in Azeez Basha (supra)
observed that Article 30 would be “robbed of much of its content” if
it were held to apply only to educational institutions established after
the commencement of the Constitution.72 The Constitution Bench in
SK Patro (supra) also held the same. In that case, an educational
institution which was established in 1854 received the protection of
the rights guaranteed by Article 30(1).73 In St. Stephen’s (supra),
a Constitution Bench held that St. Stephen’s College which was
established in 1881 is a minority educational institution for the
purposes of Article 30(1).

71 In re Special Courts Bill, (1979) 1 SCC 380
72 Azeez Basha [19]
73 SK Patro [17]
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83. A distinction between educational institutions established before
and after the commencement of the Constitution cannot be made
for the purposes of Article 30(1). Article 30 will stand diluted and
weakened if it is to only apply prospectively to institutions established
after the commencement of the Constitution. The protection and
guarantee, if made applicable to only institutions established
after the commencement of the Constitution, would debase and
defile the object and purpose of the provision. The adoption of
the Constitution reflects a break from the system of sovereign and
potentate government under the colonial regime and the dawn of
governance based on the rule of law. It secures to the minority
educational institutions, rights under the Constitution from the date
of its commencement.
84. The Constitution annihilates the vestiges of colonial rule as reflected
in Article 395. Article 395 repeals the two enactments that established
the system of governance in pre-independent India: the Indian
Independence Act 1947 and the Government of India Act 1935.
Article 395 repudiates the chain of colonial continuity and symbolises
constitutional autochthony by repealing the Indian Independence
Act 1947. At the same time, Article 372 represents the thread of
continuity even when a new system of governance is put in place.
Article 372 stipulates that all laws which were in force in the territory
of India before the commencement of the Constitution will continue
in force. However, the only caveat was that the laws must not be
inconsistent with the provisions of the Constitution. Laws that are
violative of the provisions of Part III would be void to the extent of
the inconsistency.74 It is crucial to note that Article 13(1) renders the
laws to the extent of contravention void and not void ab initio. Thus,
the Constitution does not fully overhaul the system of governance
and administration. Rather, it only ensures that the governance is
in accordance with the rules prescribed in the Constitution. To put
it in legal terms, Article 13(1) has a retroactive effect and not a
retrospective effect. A provision is retrospective if it alters the position
of law before its enactment/commencement. It is retroactive if it
imposes new results for previous actions.75 Upon the commencement
of the Constitution, citizens received the protective cover of Part III.

74 Constitution of India, Article 13(1)
75 SEBI v. Rajpur Nagpal (2023) 8 SCC 274 [99-102]
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Article 372 read with Article 13(1) stipulates that laws which pre-
date the Constitution are unconstitutional if they contravene the
fundamental rights.76 The provisions do not stipulate that laws which
pre-date the Constitution cannot receive the additional protection
which the fundamental rights offer. The right to administration in
Article 30(1) is one such protection.
85. What is the scope of Article 30 when read in the context of Article 372
read with Article 13? Any law enacted by the Imperial Legislature
which discriminates against linguistic and religious minorities in the
establishment and administration of educational institution would
be void. This is the scope of the provision vis-à-vis Articles 372
and 13 when Article 30 is purely read as a negative right. But, this
Court has also interpreted the Article as a ‘special rights’ provision
guaranteeing additional protection to educational institutions
established by minorities. Thus, educational institutions established
by religious and linguistic minorities before the commencement of
the Constitution will also receive the special protection guaranteed
by Article 30(1): the right to administration without the infringement
of their minority character.
86. If the argument as propounded is accepted, we will have two
sets of minority educational institutions, one established before
the commencement of the Constitution which is deprived of the
guarantee given under Article 30(1), and those established after
the commencement of the Constitution which are entitled to the
benefit and guarantee given under Article 30(1). We do not think the
Constitution envisages such incongruous and unpalatable differences
in rights guaranteed under Article 30(1).

b. There is no difference between ‘Universities’ and ‘colleges’
established before the commencement of the Constitution
87. The next argument which needs to be addressed is whether
‘universities’ established before the commencement of the Constitution
could receive the protection of Article 30(1). To recall, the petitioners
argued that prior to the commencement of the Constitution, the law
did not confer the power to establish a university on a person. It was
argued that the power only vested in the Imperial Legislature and
thus, no person could have “established” a university.

76 See Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128
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Aligarh Muslim University v. Naresh Agarwal & Ors.

88. The educational policy in pre-independent India must be referred to
provide a brief context on the distinction between universities and
colleges. One of the distinctions between a college and a university
is the ability of the latter to confer degrees to students as evidence
of their proficiency in subjects which they have studied and for which
they are assessed. On 19 July 1854, the Court of Directors of the
East India Company submitted a despatch77 to the Governor-General
of India in Council on the subject of General Education in India. The
despatch recommended the incorporation of Universities by Acts of
the Legislative Council of India. The first University established in
India was the University of Calcutta. It was established by Act No.
II of 1857, passed by the Legislative Council of India. The preamble
to the enactment provides that the University at Calcutta was to
be established for the purpose of awarding academic degrees to
persons who have acquired proficiency in subjects. Subsequently, the
Legislative Council of India enacted Act No. XXII of 1857 to establish
and incorporate the University at Bombay for the same purpose. In
1857, the University at Madras was established.78 In 1860, an Act was
passed to give the Universities of Calcutta, Madras and Bombay, the
power of conferring degrees in addition to those degrees provided
for in the earlier enactments. The Legislative Council of India passed
sixteen other enactments79 for the establishment of universities before
the commencement of the Constitution.
89. The University Grants Commission Act 195680 was enacted a few
years after the commencement of the Constitution. The UGC Act
provides the power to confer degrees even to institutions which are
not established by an enactment. Section 2(f) defines a University
as educational institutions established or incorporated by or under a
Central Act, a Provincial Act or a State Act, and includes any such
institution as may, in consultation with the University concerned, be

77 “Woods Despatch”
78 Act No. XXVII of 1987
79 The Punjab University Act 1992, the Allahabad University Act 1887, The Mysore University
Regulation 1916, The Patna University Act 1917, The Firman of Osmania University 1918, The Lucknow
University Act 1920, The Delhi University Act 1922, The Nagpur University Act 1923, The Agra University
Act 1926, The Annamalai University Act 1926, University of Tranvancore Promulgation Act 1937, The
Utkal University Act 1943, The Gauhati University Act 1947, The Maharaja Sayajirao University of
Baroda Act 1949, The Gujarat University Act 1949; The Visva-Bharati Act 1951; The Jadavpur University
Act 1955.
80 “UGC Act”
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recognized by the Commission in accordance with the regulations
made in that behalf under the Act. Section 3 states that the Central
Government may, on the advice of the UGC, declare by notification
that any institution for higher education shall be deemed to be a
University for the purposes of the Act. All the provisions of the UGC
Act would apply to deemed-to-be-Universities just as they apply
to universities.81 Under the UGC Act, an institution (which is not a
university or deemed-to-be university) can be specially empowered
by an Act of Parliament to confer degrees.82
90. Two facets emerge from the above discussion. First, only Universities
can confer degrees;83 and second, before the enactment of the UGC
Act, the University had to necessarily be incorporated by a legislation
for the degrees conferred by them to be recognised. Thus, the
argument of the petitioners narrows down to one aspect. According
to the submission, a member or community belonging to a minority
despite making efforts through representation, mobilisation and
participation to establish a University cannot be regarded to have
‘established’ a Minority educational institution for the purpose of
Article 30(1) only because the University was incorporated through a
legislation. A brief analysis of the nature of Universities is necessary
to unravel this paradox.
91. The Wood despatch noted that the purpose of universities upon
their establishment was to confer academic degrees on students
as evidence of attainment of proficiency in the branch of study.84
Universities were instituted, “not so much to be in themselves
places of instruction, as to test the value of the education obtained
elsewhere”.85 Affiliated colleges and other institutions educated
students and sent them to universities where their proficiency was
to be tested.86 This limited role of Indian Universities upon their
establishment was recognised in the statutory enactments which
incorporated the first three Universities in India. The preamble to Act
No. II of 1857 which established and incorporated the University at

81 UGC Act, Section 3
82 UGC Act, Section 22
83 Also see St. David’s College, Lampeter v. Ministry of Education, 1951 All ER 559
84 Charles Wood, The despatch of 1854 on General education in India. [25];
85 Report of the Indian Universities Commission 1902 [ 7]
86 Willium Hunter, Report of the Indian Education Commission 1882 [25-26] “ Hunter Commission”
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Calcutta, Act XXII of 1857 which established and incorporated the
University at Bombay, and Act XXVII of 1857 which established and
incorporated the University at Madras stipulated that the Universities
were established to ascertain (through an examination) those persons
who had acquired proficiency in different branches. This was the only
power conferred upon Universities.87 The enactments also provided
that only candidates who were authorised through a certificate from
one of the institutions authorized by them shall be a candidate for
the degree.88 However, the University at Punjab incorporated in 1882
had greater scope. In 1869, an institution styled the Lahore University
College (and the Punjab University College later) was established in
pursuance of the wishes of the Chiefs, Nobles and influential classes
of Punjab. Act XIX of 1882 incorporated the University at Punjab by
which the college was converted into a University to confer degrees.
The University at Punjab was, thus, the first teaching University in
India.
92. On 12 January 1902, the Government of India issued a resolution
to appoint a commission to “inquire into the condition and prospects
of the Universities established in British India; to consider and
report upon any proposals […] for improving their constitution and
working […]”. The Report of the Commission discussed the necessity
of establishing teaching Universities, where better provision for
advanced courses of study could be made.89 In 1904, Act No. VIII
of 1904 was enacted to amend the law relating to the Universities
at Bombay, Calcutta, Madras and Allahabad. Section 3 of the
Act provided that the University shall have the power to make
provision for, inter alia, the instruction of students and the power to
appoint University professors and Lecturers. Universities that were
incorporated subsequent to Act No. VIII of 1904 had the power to
instruct students in addition to conducting examinations to confer
degrees.90 However, teaching universities also had to be incorporated

87 See Section XIII and XIV of the enactments; Also see Section 14 of Act No. XVIII of 1887 that established
the University at Allahabad
88 Section XII of the enactments.
89 Report of the Indian Universities Commission 1902 [24, 25]
90 See Section 4 of Osmania University Act, preamble and Section 4(1) of the Lucknow University Act 1920;
preamble to the Delhi University Act 1922 which states that it established and incorporates a teaching
and affiliating University; Section 4(1) of the Delhi University Act 1922; Section 4(1) of the Nagpur
University Act 1923
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through a legislative enactment because they would have the power
to confer degrees recognised by the Government.
93. It is in this background that we should decide if Universities
established before the enactment of the UGC Act could be covered by
Article 30(1). It is true that the intervention of the imperial legislature
was necessary to incorporate a university before the commencement
of the Constitution. The intervention of the State legislature was
necessary after the commencement of the Constitution until the
enactment of the UGC Act.91 The intervention of the legislative
body was required to ‘incorporate’ universities because the degrees
conferred by them would be recognised by the Government. This was
required even for the incorporation of teaching universities. However,
could it be argued that no person had the power to ‘establish’ a
university merely because the intervention of the legislative body was
required for the incorporation of the institution? Could it be argued
that a university was ‘established’ by the legislature merely because
it enacted a legislation incorporating it?
94. The words ‘incorporation’ and ‘establishment’ cannot be used
interchangeably. They connote different meanings. ‘Incorporation’
signifies the legal existence of the institution. 92 In contrast,
‘establishment’ signifies the founding or bringing into existence of
the institution.93 The possibility of distinguishing the establishment
and incorporation of universities arose with the advent of teaching
Universities. Two kinds of institutions were incorporated as teaching
universities. They consisted of institutions which were established
and incorporated at the same time, and institutions in which the
establishment of the institution predated its incorporation. Universities
in the latter category, however, were teaching colleges converted
into teaching universities. The University at Punjab is one such
example. The Annamalai University would also fall in this category.
In the case of Annamalai University, the Hon’ble Diwan Bahadur Sir
S.R.M Annamalai Chettiyar had established and was maintaining
colleges around Chidambaram in Tamil Nadu. The college was
converted to a University through the enactment of Annamalai

91 See Entry 11 of List II to the Seventh Schedule to the Constitution prior to Constitution(Forty-second
Amendment) Act 1976
92 Oxford Dictionary defines the word ‘incorporated’ as formed into business company with legal status
93 Oxford Dictionary defines establish as ‘to start or create an organization, a system.’
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University Act 1928.94 The ‘establishment’ and ‘incorporation’ of
these universities was distinct. The incorporation of the University
was necessary to confer degrees recognised by the Government.
However, there was an institution that pre-dated the incorporation
of the University that continued to exist even after the incorporation.
Thus, the instance of conversion of teaching collages to teaching
universities elucidates the distinction between the “establishment”
and “incorporation” of educational institutions.
95. The word ‘establish’ as used in Article 30(1) cannot and should not
be understood in a narrow and legalistic sense. The words used in
clause (1) of Article 30 have to be interpreted in view of the object and
purpose of the article, and the guarantee and protection it confers.
The guarantee and protection are not dependent on the basis or
the manner in which the legal requirements were/are complied with,
rather it concerns the persons who have founded and created the
establishment. The incorporation by a statute or the procedure and
requirements in law are not determinative factors. The persons behind
it, that is, the promoters and founder(s) are important. They should
belong to a linguistic or a religious minority. There will always be
individuals and groups instrumental in catalysing and setting up the
institution. Thus, giving a legal character to an educational institution
through state or sovereign action, it does not ipso facto follow that the
university so established deprives the group of persons/individuals the
guarantee under clause (1) of Article 30 of the Constitution. Universities
are as much educational institutions as schools and colleges. The
interpretation in Azeez Basha (supra) confers a legalistic meaning to
the word ‘established’, sans the context of clause (1) of Article 30. No
distinction exists between universities and other educational institutions
such as schools and colleges for the purpose of Article 30(1).
96. The following conclusions emerge from the discussion above:
a. The teaching universities and colleges serve the common
function of educating students. No distinction between the two
can be drawn for the purposes of Article 30(1) which guarantees
minorities the right of greater autonomy in the administration of
educational institutions to curate a model of education which
best serves the interests of the community; and

94 See the preamble of the Annamalai University Act 1928
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b. The submission that a person did not have the power to
‘establish’ a university before the enactment of the UGC Act is
rejected. The words establishment and incorporation cannot be
interchangeably used. They connote different meanings. The
former refers to founding an institution, which in the case of
teaching colleges that were converted to universities would
refer to any person or community who undertook the efforts
the establish the teaching college.

c. The minority character of the institution is not ipso facto
surrendered upon the incorporation of the University
97. The Solicitor General argued that Azeez Basha (supra) — correctly
understood — holds that the Muslim minority surrendered its rights
as a denominational institution before the Constitution was adopted
by approaching the imperial legislature to recognise the degrees. He
argued that the decision tacitly recognised the fact that two broad
groups existed during the freedom struggle. The first of these groups
was determined to conduct their affairs without assistance from or
reference to the imperial legislature. It set up institutions which granted
degrees which were not recognised by the imperial government. They
did not seek recognition of the degrees granted by their institutions
at that time. Instead, such institutions (and the degrees granted
by them) were recognised post-independence. Examples of such
universities include Shantiniketan; the predecessor of IIT Roorkee.
In contrast, the second group chose to collaborate with the imperial
government and sought recognition of the degrees awarded by its
universities. Having approached the imperial government for such
recognition, the second group surrendered their denominational status
(comparable to minority status under Article 30). It was submitted
that the founders of AMU formed a part of the second group. While
MAO College may have been of a denominational character, it has
been urged that the incorporation of the institute as AMU resulted in
the surrender of rights. Since we are only dealing with the principles
of law, we will address this argument without referring to the factual
aspects submitted by the learned Solicitor General. In short, the
argument is that the minority character of an educational institution
is surrendered upon the incorporation of the institution.
98. The minority character of institutions cannot be rejected if they were
conferred a legal character by a statute enacted prior to 1950. The
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enactment was necessary to award degrees recognized by the
British government, allowing graduates to gain degree recognition
and secure employment. The enactment of the statute is a ministerial
and a legislative act, which confers juristic personality as well as legal
rights in terms of the law in force. The statute grants the power to
the educational institution to confer the degrees. The incorporation
by way of statute is a legal requirement. That being the case, we
will not accept the argument that compliance with legal requirement
would tantamount to the ‘establishment’ of an institution by the
Legislature, and thereby the linguistic and religious minority forgo
the guarantees and protection under clause (1) of Article 30 of the
Constitution.
99. In the same vein, the state may also provide for the mode by which
educational institutions may be set up or established. For instance, it
may require that a society registered under the Societies Registration
Act or a public trust constituted in accordance with law is a pre-
requisite to establishing a school.95 The state may also issue a
certificate of recognition to the school (or other educational institution)
meeting the relevant criteria. It may also require schools to register
with the authorities.96 Certain steps as mandated by law may be a
sine qua non for setting up educational institutions.
100. In the absence of these prerequisites (such as registration with
the competent authorities), the educational institution will have no

95 See, for instance, Section 20A of the Andhra Pradesh Education Act 1982 read with Rule 14(4) of the
Andhra Pradesh Right of Children to Free and Compulsory Education Rules 2010.
Section 20A: “20-A. Prohibition of individual to establish institutions.—On and from the commencement of
the Andhra Pradesh Education (Amendment) Act, 1987 no individual shall establish a private institution:
Provided that this section shall not have any effect on any private institution established by an individual
and recognized by the competent authority prior to such commencement].”
Rule 14(4): “(4) The District Educational Officer, on being satisfied that the school fulfils the norms and
standards prescribed under section 19 and section 25 of the Act, shall issue the recognition certificate
in Form-2 as shown in the appendix. The certificate shall be for a period of three years and shall be
issued within 30 days from the date of making application for recognition. The certificate of recognition
shall be issued subject to following conditions: (a) The school is run by a society registered under the
Societies Registration Act, 1860 (21 of 1860), or a public trust constituted under any law for the time
being in force; …”
96 See, for instance, Section 30 of the Karnataka Education Act 1983: “30. Educational institutions to be
registered.- (1) Save as otherwise provided in this Act, every local authority institution and every private
educational institution established on or before the date of commencement of this Act or intended to be
established thereafter, shall notwithstanding anything contained in any other law for the time being in
force, be registered in accordance with this Act and the rules made thereunder. (2) No person or local
authority shall establish or as the case may be, run or maintain an educational institution requiring
registration under this section, unless such institution is so registered.”
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existence in the eyes of the law. It is only upon compliance with these
requirements that the institution assumes the legal form mandated
by the regulatory provisions of the law.
101. It is true that many persons or groups founded universities which
awarded degrees which were not recognised by the imperial
government. The existence of this option and the fact that others
chose this path in colonial times cannot shape the contours of the
right under Article 30 in independent India. This is because the
recognition of degrees was and is essential not only to the success
of the university but more importantly, to the success of its graduates.
Recognition of the degrees or qualifications held by persons who
have completed courses from universities is essential to professional
development. It is impossible to avail of employment opportunities
if the degree that one holds is not recognised.
102. This interpretation has also found support in numerous judgments
of this Court. Judgments of this Court have previously expounded
on the importance of recognition or affiliation of a College. It is only
with the affiliation of the college with the University that a student
could be awarded a degree upon the completion of the course
of study. The degree, beyond being a testament of a personal
achievement, is necessary for their professional growth. In in re the
Kerala Education Bill 1957 (supra), this Court expounded on the
importance of recognition and observed as follows:
“32. […] Without recognition, therefore, the educational
institutions established or to be established by the minority
communities cannot fulfil the real objects of their choice
and the rights under Article 30(1) cannot be effectively
exercised. The right to establish educational institutions
of their choice must, therefore, mean the right to establish
real institutions which will effectively serve the needs
of their community and the scholars who resort to their
educational institutions. There is, no doubt, no such thing
as fundamental right to recognition by the State but to deny
recognition to the educational institutions except upon
terms tantamount to the surrender of their constitutional
right of administration of the educational institutions of their
choice is in truth and in effect to deprive them of their rights
under Article 30(1). We repeat that the legislative power
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is subject to the fundamental rights and the legislature
cannot indirectly take away or abridge the fundamental
rights which it could not do directly and yet that will be
the result if the said Bill containing any offending clause
becomes law.”
103. In Rev. Sidhajbhai (supra), this Court reiterated that regulations
which may impose conditions for the recognition of the educational
institution must be directed towards making the institution effective,
while retaining its character as a minority institution. The dual test
laid down in this case to assess the validity of such regulations is
that the regulations must be reasonable and regulate the educational
character of the institution while being conducive to making it an
effective vehicle of education. An educational institution does not lose
its minority character merely because it subjects itself to regulatory
measures essential to avail the benefit of recognition/affiliation, or
grant in aid, provided these controls are designed to maintain the
standards of education and larger public interest.
104. The decision of the seven Judge Bench in In re the Kerala Education
Bill (supra)was followed by a six Judge Bench in Rev. Sidhajbhai
Sabhai (supra). This aspect was overlooked in Azeez Basha (supra)
which was decided by a bench of five judges. The importance
of recognition and affiliation cannot be understated. The position
of law even at the time of the decision in Azeez Basha (supra),
as held in re the Kerala Education Bill 1957 (supra), was that
recognition on terms tantamount to the surrender of the right to
administer the institution was a violation of Article 30(1). For Azeez
Basha (supra) to hold that the minority character of the institution
is surrendered upon enactment by central imperial legislation is to
hold that the recognition of its degrees would result in the denial
of the right under Article 30, reducing the choice available to a
religious or linguistic minority. This would be in the teeth of settled
law on the subject as well as Article 30(1). Azeez Basha (supra)
failed to notice this aspect of the decision in In re the Kerala
Education Bill 1957 (supra) discussed above and the decision in
Rev. Sidhajbhai (supra).
105. Further, the decisions of this Court subsequent to Azeez Basha
(supra) have not disturbed the relevant part of the precedents in In
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re the Kerala Education Bill 1957 (supra) and Rev. Sidhajbhai
(supra). Azeez Basha (supra) is the lone case which stands apart
in the long line of cases on this subject. In St. Xavier’s (supra),
the majority of the nine-Judge Bench held that an unconstitutional
condition of surrendering the minority character in exchange for
affiliation or recognition cannot be imposed.
106. Presently, the decision of eleven Judges in TMA Pai (supra) holds the
field on the subject and is binding on this Court. It, too, unequivocally
affirms the proposition of law discussed above. One of the many
relevant paragraphs in this regard is extracted below:
“70. … The object of establishing an institution has thus
been to provide technical or professional education to the
deserving candidates, and is not necessarily a commercial
venture. In order that this intention is meaningful, the
institution must be recognized. At the school level,
the recognition or affiliation has to be sought from the
educational authority or the body that conducts the
school-leaving examination. … A college or a professional
educational institution has to get recognition from the
university concerned, which normally requires certain
conditions to be fulfilled before recognition. It has been
held that conditions of affiliation or recognition, which
pertain to the academic and educational character of
the institution and ensure uniformity, efficiency and
excellence in educational courses are valid, and that
they do not violate even the provisions of Article 30
of the Constitution; but conditions that are laid down
for granting recognition should not be such as may
lead to governmental control of the administration of
the private educational institutions.”
(emphasis supplied)
107. Compliance with the legal requirement to secure a benefit provided
by the State cannot be on terms that require the relinquishment
of fundamental rights. An interpretation that leans towards this
consequence must not be adopted. Thus, the minority character of
an educational institution could not have been denied merely because
it was converted to a University through a legislative enactment.
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108. In Azeez Basha (supra), this Court recognised the efforts of the
Muslim community towards the establishment of AMU’s predecessor,
the MAO College, as well as towards the enactment of the AMU Act
but held that the central imperial legislature established AMU, and
not the Muslim community. In effect, it held that the enactment of the
AMU Act rendered any previous action undertaken by the Muslim
community towards the establishment of AMU irrelevant.
109. The reasoning of the Court hinged on the fact that the Muslim minority
could have established a university and awarded degrees but could
not have insisted upon governmental recognition of its degrees. The
Court held that the fact that AMU was brought into existence by a
statute which mandated the recognition of its degrees meant that the
central imperial legislature established it. Since the correctness of
the reasoning of the Court is being considered in these proceedings,
it is extracted below:
“22. There was nothing in 1920 to prevent the Muslim
minority, if it so chose, to establish a university; but if it
did so the degrees of such a university were not bound to
be recognised by Government. … The Aligarh University
was also in the same way established by legislation and
it provided under Section 6 of the 1920 Act that “the
degrees, diplomas and other academic distinctions granted
or conferred to or on persons by the University shall be
recognised by the Government as are the corresponding
degrees, diplomas and other academic distinctions granted
by any other university incorporated under any enactment”.
It is clear therefore that even though the Muslim minority
could have established at Aligarh in 1920 a university, it
could not insist that degrees granted by such a university
should be recognised by Government. Therefore when
the Aligarh University was established in 1920 and by
Section 6 its degrees were recognised by Government,
an institution was brought into existence which could not
be brought into existence by any private individual or
body for such individual or body could not insist upon the
recognition of the degrees conferred by any university
established by it. The enactment of Section 6 in the 1920
Act is a very important circumstance which shows that the
Aligarh University when it came to be established in 1920
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was not established by the Muslim minority, for the minority
could not insist on the recognition by Government of the
degrees conferred by any university established by it.
23. … There was no Aligarh University existing till the
1920 Act was passed. It was brought into being by
the 1920 Act and must therefore be held to have been
established by the Central Legislature which by passing
the 1920 Act incorporated it. The fact that it was based
on the M.A.O. College, would make no difference to the
question as to who established the Aligarh University.
The answer to our mind as to who established the Aligarh
University is clear and that is that it was the Central
Legislature by enacting the 1920 Act that established
the said University. As we have said already, the Muslim
minority could not establish a university whose degrees
were bound to be recognised by Government as provided
by Section 6 of 1920 Act : that one circumstance along
with the fact that without the 1920 Act the University
in the form that it had, could not come into existence
shows clearly that the Aligarh University when it came
into existence in 1920 was established by the Central
Legislature by the 1920 Act. It may be that the 1920 Act
was passed as a result of the efforts of the Muslim minority.
But that does not mean that the Aligarh University when
it came into being under the 1920 Act was established
by the Muslim minority.”
110. In Azeez Basha (supra), this Court observed that the term ‘establish’
means ‘to bring into existence’ and not any of the other dictionary
meanings that is, to ratify, confirm, settle, found, or create. Adopting
a formalistic interpretation, the Bench held that AMU was not
established by the Muslim minority since it was brought ‘into existence’
by the Central Legislature. In Mother Provincial (supra), another
Constitution Bench which was decided before Azeez Basha (supra)
interpreted the word ‘establish’ to mean to found an institution, which
offers a broader interpretation.97 In our view, it is inconsequential

97 8. […] Establishment here means the bringing of an institution and it must be by a minority community.
It matters not if a single philanthropic individual with his own means, founds the institution or the
community at large contributes the funds.” (emphasis supplied)
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whether the word means ‘to bring into existence’ or ‘to found’. We
have held above that the enactment of a legislation to incorporate
a university would not repudiate the minority character. The Court
must pierce the veil of the statute to identify if the institution intended
to retain its minority character even upon incorporation.
111. The respondents further submitted that the long title and the
preamble of the enactment must be used to determine if the minority
established the institution. A comparison was drawn between the
preamble of the AMU Act and statutes by which other universities
were incorporated. For example, the preamble of the Annamalai
University Act 1928 stipulates that the founder of the college, Shri
Annamalai Chettiyar, handed over the college with the property and
a fund of twenty thousand rupees to the local Government for the
establishment of a University. The preamble also recognises that he
and his heirs would be entitled to certain powers and privileges in
the University. However, in contrast, the preamble of the AMU Act
1920 stated that it is an enactment to ‘establish’ and ‘incorporate’
a University.
112. We do not agree with this submission. It cannot be argued that a
university was established by Parliament merely because the long
title and preamble of the statute incorporating the university states
that it is an Act to establish and incorporate. If such a formalistic
interpretation is adopted, fundamental rights would be made
subservient to legislative language. The preamble of the Annamalai
University Act certainly provides context to the incorporation of the
University and brings out the distinction between incorporation
and establishment. However, the courts in the absence of such an
elaborate preamble must not be ready to conclude that Parliament
established the University. The courts must identify the circumstances
surrounding the incorporation of the University (including through
a reading of the statute) to identify who established the university.
Formalism must give way to actuality and to what is real.
113. The written submissions filed on behalf of the Union of India place
reliance on Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye98
to argue that the term ‘establish’ means “coming into existence by
virtue of a statutory enactment”. It suggests that the institution owes

98 (2010) 4 SCC 378
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its existence to the legislature if the long title to an enactment states
that it is an act to “establish and incorporate”.
114. In Dalco (supra), the question before this Court was whether
companies incorporated in terms of the Companies Act 1956 were
bound by the norm contained in Section 47 of the same enactment.
Section 47 stipulated that an ‘establishment’ shall not dispense with
or reduce in rank an employee who acquires a disability during their
service.99 Section 2(k) of the same statute defined ‘establishment’
in the following terms:
“2. Definitions.—In this Act, unless the context otherwise
requires,—
…
(k) ‘establishment’ means a corporation established
by or under a Central, Provincial or State Act, or an
authority or a body owned or controlled or aided by the
Government or a local authority or a government company
as defined in Section 617 of the Companies Act, 1956
(1 of 1956) and includes Departments of a Government;”
(emphasis supplied)

115. After analysing the precedents, this Court held that Section 2(k)
referred to companies which owe their existence to a statute. It held
that without such a statute, the company would not exist. It held
that the term “established by or under” in Section 2(k) referred to
companies which are created by statutes and not ones which are
merely governed by statutes after coming into existence. This court,
therefore, held that companies incorporated and registered under the
Companies Act 1956 are not necessarily established by it.

99 Section 47, Companies Act 1956: “47. Non-discrimination in government employment.—(1) No
establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his
service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could
be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a
supernumerary post until a suitable post is available or he attains the age of superannuation, whichever
is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any
establishment, by notification and subject to such conditions, if any, as may be specified in such
notification, exempt any establishment from the provisions of this section.”
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116. Dalco (supra) does not have a bearing on the interpretation of
the term “establish” in Article 30 because it was concerned with
the interpretation of the term “established by or under a Central,
Provincial or State Act” as it occurs in a parliamentary statute.
The words “establish and incorporate” in the long title of enactments
must be read together holistically to understand the import of the
expression. The other cases100 relied on by the Union of India in
this respect are not applicable to the question before us for similar
reasons.

d. ‘Minority’ as on the commencement of the Constitution
117. Mr Dwivedi submitted that an educational institution to be a minority
educational institution must have been established by a linguistic
or religious minority at the time of establishment. He proposed that
the following tests must be satisfied to determine if the community
was a minority:
a. The numerical test:101 Which community ruled the country when
the university was established? Is the community which seeks
to claim the right under Article 30 a minority compared to the
former?
b. The qualitative test of non-dominance:102 Even if the community
which seeks to claim the right under Article 30 was in a numerical
minority, was it in a non-dominant position in the state at the
point of time at which the institution was established?
c. The test of self-assessment: Did the specific persons who
established the educational institute consider themselves to
be a minority?
118. A preliminary question must be answered before addressing the
feasibility and legality of adopting the above tests. What should be
the relevant point to determine if the educational institution that
was founded before the commencement of the Constitution was

100 Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421; Vaish Degree College v.
Lakshmi Narain (1976) 2 SCC 58; S.S. Dhanoa v. MCD (1981) 3 SCC 431
101 See opinion of Justice Ruma Pal in TMA Pai (supra)
102 See opinion of Justice Quadri in TMA Pai (supra)
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established by a minority? Should it be determined based on the time
of establishment, the time of the commencement of the Constitution,
or the time when the right was claimed.
119. Before the commencement of the Constitution, there was no concept
of minority institutions, both linguistic and religious. The guarantee and
the protection given by the Constitution are applicable on the date
when the Constitution was adopted. It is on this date that it must be
determined if the right under Article 30 accrues. However, when the
question of whether the educational institution was established by
a linguistic or a religious minority arises, we will have to relate back
to the point in time when the institution was established. It would
be immaterial that back then the educational institution was not
granted the status and treated as a linguistic or a religious minority
institution. Thus, the details of the persons who had established the
institution, though earlier in point of time, is relevant and determines
the character of the institution. Such interpretation would do justice
to Article 30(1) and not deny and rob minority educational institutions
of constitutional guarantees.
120. The question of whether they qualify as a ‘minority’ has to be answered
with reference to the date of enforcement of the Constitution. The
Constitution upon its adoption guaranteed fundamental rights to
specific groups such as ‘persons’, ‘citizens’, ‘religious and linguistic
minorities’, ‘women’, ‘the Scheduled Castes’ and ‘Scheduled Tribes’.
These groups consist of such members as conceived by the
Constitution. For example, Part II of the Constitution and provisions of
the Citizenship Act 1955 enacted in pursuance of the power provided
under Article 11 stipulate conditions for acquiring citizenship. Only
those persons who satisfy the conditions prescribed can enforce
the rights guaranteed to citizens as a class. Similarly, the President
in exercise of the power under Article 341 may notify castes, tribes
or groups that would be Scheduled Castes for the purposes of the
Constitution.
121. The only criteria that is prescribed for right-bearers under Article 30
is that they should be linguistic or a religious minorities. The
courts have, however, specified what constitutes a minority. Chief
Justice Kirpal, writing for the majority of the eleven-Judge Bench
in TMA Pai (supra) observed that the minority must be determined
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based on the test of numerical minority within the State.103 If a
group or community is required to prove that it was a religious
or linguistic minority at the time of establishment of the institution
(where the institution was established before the commencement of
the Constitution), it would lead to a situation where the fundamental
right is conferred upon a group other than the one intended by the
Constitution. The demography of the Dominion of India underwent a
drastic change upon partition. The Constitution, through Article 30(1),
confers a right on those communities that were disadvantaged upon
the commencement of the Constitution and not the group that was
disadvantaged in pre-independent India.
122. We reject the argument that the test of whether an educational
institution is a minority institution must be examined based on whether
the community or the group which had established the institution was
a minority at the time of its establishment in pre-independent India.
The purpose of the provision as highlighted in the preceding sections
is to ensure that the minorities are able to preserve and promote
their linguistic and religious culture. For this purpose, the status of
the group/community, that had established the institution, on the date
of commencement of the Constitution should be considered. The
test of establishment will apply to future situations on the day when
new educational institutions are established. The protection under
clause (1) of Article 30 cannot be denied to institutions established
before the commencement of the Constitution for the reason that
at the time of establishment in pre-independent India, the founders
were not aware that they would receive protection of Article 30(1).
123. Having addressed the preliminary arguments on the applicability
of Article 30, we will now proceed to formulate the indicia for the
establishment of an educational institution.

v. Indicia for the ‘establishment’ of a minority educational institution
124. In this section of the judgment, we will answer two questions: (i) the
indicia for ‘establishment’ of a minority educational institution; and
(ii) the burden and degree of proof required to prove ‘establishment’
of a minority educational institution.

103 TMA Pai (supra) [81]
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125. In SK Patro (supra), the question before the Constitution Bench was
whether Church Missionary Society Higher Secondary School was
a minority educational institution. It was contended that the school
was established by the Church Missionary Society, London and not
the local residents of Bhagalpur. The Bench relied on the following
evidence to conclude that the School was established by the local
Christians:
a. The correspondence and resolutions indicated that a permanent
home for the Boys School was set up on property acquired by
local Christians and in buildings erected from funds collected
by them104
b. The institution and the land on which it was built and the balance
in the local fund were handed over to the Church Missionary
Society;105 and
c. Though substantial assistance was obtained from the Church
Missionary Society London, it could not be said that the school
was not established by local residents only because of that.106
126. In Mother Provincial (supra), this Court observed that the intention to
found an institution for the benefit of the minority community must be
present. In St. Stephen’s (supra), a Constitution Bench determined
whether St. Stephen’s College is a minority educational institution.
St Stephen’s College is a constituent college of Delhi University. The
Bench held that the college was established by the Indian Christian
community based on the following material:
a. The purpose of establishing the educational institution emerged
from the Report of 1878 to the Cambridge Brotherhood. The
purpose of founding the college was to ensure that graduates
from St. Stephen’s Mission School could be given the benefit
of Christian teachings in college;107
b. The buildings depicted the Christian orientation of the college108

104 SK Patro (supra) [15]
105 ibid [15]
106 ibid [16]
107 St Stephen’s (supra) [30]
108 Ibid [31-32] Foundation stone has the inscription :”to the glory of god, and the advancement of sound,
learning and religious education”; a cross was placed in the new building.
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c. The motto of the college is “Ad Dei Gloriam”, that is the glory
of god;109
d. There is a chapel in the college campus, where religious
instruction is imparted;110
e. The Constitution of the college reflects its Christian character.
It states that the object of the college is, inter alia, to offer
instruction on doctrines of Christianity,111 the original members
of the society were mostly Christians,112 and the composition
of the society reflects its Christian character where a large
number of Christian members of the Church of North India are
a part of it;113 and
f. The Governing Body has a distinct christian character. The
Supreme Council comprises of members of the Church of North
India. Their role is to look after the religious and moral instruction
to students.114 The administration vests with the Governing Body
which predominantly consists of Christians. Though three of the
thirteen members of the Governing Body may be non-Christians,
that does not dilute the Christian character of the institution.
127. The decisions in Mother Provincial (supra), SK Patro (supra) and
St. Stephen’s (supra) emphasise that the indicia for establishment
must elucidate the minority character of the educational institution.
What is the meaning of the phrase ‘minority character’? Are special
rights guaranteed by Article 30(1) only if educational institutions are
established ‘for’ the minorities, towards the purpose of protecting
minority interests? If yes, when can the courts be certain that the
above two conditions are satisfied? That is, what are the ‘core
essentials’ of minority character? We will answer this by referring to
judicial decisions on four questions. Clarity over the essentials of the
minority character will help us ascertain the indicia for ‘establishment’
of a minority educational institution.

109 ibid [33]
110 ibid [34]
111 Memorandum of the Society and Rules, Clause 2
112 Memorandum of the Society and Rules, Clause 4
113 ibid [35]
114 ibid [36]
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128. The first question that arose in earlier cases was whether a minority
educational institution must be established towards the conservation
of the distinct language, script or culture of linguistic and religious
minorities protected by Article 29(1). In Rev. Father W. Proost v.
The State of Bihar,115 a Constitution Bench answered the question
in the negative. The Bench held that Article 30(1) covers a minority
educational institution which is established to conserve culture and
language. However, that need not be the only purpose for the
establishment of the institution. This Court held that the scope of Article
30(1) cannot be restricted by Article 29(1).116 In St. Xavier (supra),
the majority of the nine-Judge Bench approved this interpretation.117
129. The second question that arose in earlier decisions was whether
an educational institution would retain its minority character even if
non-minorities are admitted in it. Would a Muslim minority education
institution retain its minority character when it admits students
from other faiths in the institution? In re the Kerala Education
Bill 1957 (supra), a seven-Judge Bench held that a minority
educational institution would not lose its minority character by merely
admitting students belonging to non-minorities and that the provision
contemplates an institution with a ‘sprinkling of outsiders’.118 This
position was further fortified in TMA Pai (supra). In TMA Pai (supra),
Article 29(2) and Article 30(1) were read harmoniously to hold that
Article 29(2) would apply to a limited extent to minority educational
institutions as well.119 Thus, an aided minority educational institution

115 [1969] 2 SCR 73
116 Rev. Father W Proost v. State of Bihar [5J] [1969] 2 SCR 73
117 See footnote 30 of this judgment.
118 “By admitting a non-member into it the minority institution does not shed its character and cease to be
a minority institution. Indeed the object of conservation of the distinct language, script and culture of a
minority may be better served by propagating the same amongst non-members of the particular minority
community.”
119 “149. […] As observed quite aptly in St. Stephen’s case [(1992) 1 SCC 558] (at SCC p. 608, para 85) “the
fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended
to nullify the special right guaranteed to minorities in Article 30(1)”. The word “only” used in Article 29(2)
is of considerable significance and has been used for some avowed purpose. Denying admission to
non-minorities for the purpose of accommodating minority students to a reasonable extent will not be
only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution
and to effectuate the guarantee under Article 30(1). The best possible way is to hold that as long as
the minority educational institution permits admission of citizens belonging to the non-minority
class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even
though the institution admits students of the minority group of its own choice for whom the
institution was meant. What would be a reasonable extent would depend upon variable factors,
and it may not be advisable to fix any specific percentage. The situation would vary according to
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is mandated to admit students from other faiths and that in itself does
not erode the minority character of the institution.
130. The third question was whether a minority education institution would
lose its minority character when secular education is taught. In In re
Kerala Education Bill (supra) and St. Xavier’s (supra), this Court
held that the word ‘choice’ in Article 30(1) expands the scope of the
provision to include not only religious but also secular education.120
131. The fourth question was whether it is essential that religious
instruction must be provided in a minority educational institution. In
TMA Pai (supra), this Court held that Article 28 equally applies to
minority educational institutions.121 Thus, if the minority institution
has received aid from the State wholly or in part, no student can
be forced to participate in religious instruction. Similarly, a minority
educational institution which is fully maintained out of State funds
cannot provide religious instruction. Even here, a harmonious
construction of Article 28 and Article 30(1) was adopted.

the type of institution and the nature of education that is being imparted in the institution. Usually, at the
school level, although it may be possible to fill up all the seats with students of the minority group, at the
higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with
the students of the minority group. However, even if it is possible to fill up all the seats with students of
the minority group, the moment the institution is granted aid, the institution will have to admit students of
the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated,
and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. It is for this
reason that a variable percentage of admission of minority students depending on the type of institution
and education is desirable, and indeed, necessary, to promote the constitutional guarantees enshrined
in both Article 29(2) and Article 30. [emphasis supplied]
120 In re Kerala Education Bill(supra) [23] “23. […] the right conferred on such minorities is to establish
educational institutions of their choice. It does not say that minorities based on religion should establish
educational institutions for teaching religion only, or that linguistic minorities should have the right to
establish educational institutions for teaching their language only. What the article says and means is
that the religious and the linguistic minorities should have the right to establish educational institutions
of their choice. There is no limitation placed on the subjects to be taught in such educational institutions.
As such minorities will ordinarily desire that their children should be brought up properly and efficiently
and be eligible for higher university education and go out in the world fully equipped with such intellectual
attainments as will make them fit for entering the public services, educational institutions of their choice
will necessarily include institutions imparting general secular education also.”; St. Xavier’s (supra) [Chief
Justice Ray for himself and Justice Palekar, 8]; [Justice HR Khanna, 96]; [Justice Beg, 197]; [Justice
Dwivedi, 236];
121 See TMA Pai (supra) [88-90;144]; “144 […] As in the case of a majority-run institution, the moment
a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an
educational institution is maintained out of State funds, no religious instruction can be provided therein.
Article 28(1) does not state that it applies only to educational institutions that are not established or
maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions
of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-
minorities. […] Just as Articles 28(1) and (3) become applicable the moment any educational institution
takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational
institution maintained by the State or receiving aid out of State funds.”
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132. The discussion above elucidates that the ‘minority character’ of the
institution is not a rigid concept. The provision does not contemplate
institutions which are exclusively for the benefit of members from the
minority community. A minority institution established by a religious
or linguistic minority need not be solely for their students or only for
the purpose of teaching the tenets of their religion or language. The
issue of whether an institution is a minority institution should not be
determined purely on the basis of the number of their students or
the teaching staff. Such an interpretation is contrary to precedent.
133. A holistic and realistic view should be taken keeping in mind the
objective and purpose of the provision. Based on the above principles
laid down by Benches of co-equal strength and larger Benches of
this Court on the components of the ‘minority character’, the following
inferences can be drawn:
a. The existence of a religious place for prayer and worship is not a
necessary indicator of the minority character because institutions
wholly maintained out of State funds are constitutionally barred
from providing religious instructions; and
b. The existence of religious symbols in the precincts of the
educational institution are not necessary to prove the minority
character because educational institutions could be established
for minorities to provide secular education without imparting
any lessons on religion.
134. As discussed above, ‘establishment’ or formation of an institution
can be at any point of time and even before the commencement
of the Constitution. If an institution was established before the
commencement of the Constitution, the enquiry on the question
of ‘establishment’ must relate back to the date when the institution
was established or formed to ascertain whether it would qualify as
a minority institution upon the commencement of the Constitution.
135. To determine who established the institution, the Courts must
consider the genesis of the educational institution. For this analysis,
the Courts must trace the origin of the idea for the establishment of
the institution. The Court must identify who was the brain behind the
establishment of the educational institution. Letters, correspondence
with other members of the community or with government/State
officials and resolutions issued could be valid proof for establishing
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ideation or the impetus to found and establish. The proof of ideation
must point towards one member of the minority or a group from the
community.122
136. The second indicia is the purpose for which the educational institution
was established. Though it is not necessary that the educational
institution must have been established only for the benefit of a
religious or linguistic minority community, it must predominantly be
for its benefit. It is not necessary that education must be provided in
the language spoken by the minority or on the religion of the minority.
For example, it is not necessary that an educational institution
established for the Tamils in Uttar Pradesh must necessarily prescribe
Tamil as the language of instruction. However, it must be proved that
the institution was established for the benefit of the tamil-speaking
community. This indicia could be proved by a reference to private
communication or speeches about the necessity of establishing an
educational institution for the community and a recognition of the
educational difficulties faced by the community.
137. The third test is tracing the steps taken towards the implementation
of the idea. Information on who contributed the funds for its creation,
who was responsible for obtaining the land, and whether the land
was donated by a member of the minority community or purchased
from funds raised by the minority community for this purpose or
donated by a person from some other community specifically for
the establishment of a minority educational institution are elements
that must be considered. Similar questions must be asked of its
other assets. Other important questions are: who took the steps
necessary for establishing the institution (such as obtaining the
relevant permissions, constructing the buildings, and arranging other
infrastructure)? It is also important to note that the state may grant
some land or other monetary aid during or after the establishment of
the educational institution. If the land or monies were granted after
the establishment, the grant would not have the effect of changing
the minority character of the institution. Minority institutions are not
barred from receiving aid save at the cost of their minority status.123
If the land or monies are granted at the time of establishment, the

122 Mother Provincial (supra)
123 TMA Pai (supra) [141]
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circumstances surrounding the establishment must be considered as
a whole to determine who established the institution. The presence
of a grant must not be automatically interpreted as leading to the
erasure of a claim to minority status.
138. The next question is whether the administrative structure of the
educational institution is an indicia for the establishment of a
minority educational institution. We have already held above that
an educational institution is a minority educational institution if it is
established by a religious or linguistic minority. We have clarified that
it is not necessary to prove that administration vests with the minority
to prove that it is a minority educational institution because the very
purpose of Article 30(1) is to grant special rights on administration
as a consequence of establishment. To do otherwise, would
amount to converting the consequence to a pre-condition. The right
to administer is guaranteed to minority educational institutions to
enable them to possess sufficient autonomy to model the educational
institution according to the educational values that the community
wishes to emphasise. It is not necessary that the purpose can only
be implemented if persons belonging to the community helm the
administrative affairs. This is so particularly because a minority
institution may wish to emphasise secular education. The founders
or the minority community may choose to populate the managing
board (or a comparable authority) responsible for the day-to-day
administration of the institution with persons belonging to the same
community. However, they are not compelled to do so. They may
wish to appoint persons who do not belong to their community but
who they deem fit for the proper administration of the institution. This
may be the case for professional colleges which offer specialised
courses such as law, medicine, or architecture, where the founders
may not possess the knowledge, experience, or insight necessary
to manage or administer the institution personally.
139. The test to be adopted by the Court is whether the administrative
set up of the educational institution affirms the minority character
of the institution. If the administrative structure of the educational
institution does not reflect its minority character or when it does not
elucidate that the educational institution was established to protect and
promote the interests of the minority, it may be reasonably inferred
that the purpose was not to establish an educational institution for
the benefit of the minority community.
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140. We may specifically deal with a scenario of an educational institution
established before the commencement of the Constitution. The test
of administration should be evaluated in praesenti, that is, on the
date of the commencement of the Constitution. An institution to be
a minority institution must satisfy the criteria of being ‘administered’
as a minority institution on the date of commencement of the
Constitution, and being a minority institution on the date of formation.
Even if an educational institution was established by the minority for
the purposes of the community, we must assess the impact of any
subsequent events that altered the character of the institution before
the commencement of the Constitution. We have in section E(iv)(c)
held that the statutory incorporation of the institution does not ipso
facto amount to a surrender of the minority character of the institution.
We have held that the Court must pierce the veil to identify if the
University was established by a minority for the purpose of promoting
the interest of the community. The Court may on a holistic reading
of the statutory provisions relating to the administrative set-up of the
educational institution deduce if the minority character or the purpose
of establishment was relinquished upon incorporation. The question is
whether the regulatory measures wrest the administrative control from
the founders of the institution. This is a question of fact which must
be determined on the facts of each case. The Court must make that
determination upon a comprehensive analysis of the administrative
framework which includes host of factors such as the representation
of the interests of the community in the administrative set-up.
141. Taken together, these are the main indicia which assist the Court in
determining who established an educational institution under Article
30. However, the complex nature of establishing an educational
institution is not lost on us. Undoubtedly, there can be no straitjacket
formula which may be applied. The above indicia of establishment
must be considered as a whole, along with any relevant facts which
are available to the Court. The matter must be considered in totality
and competing factors must be weighed against each other depending
on the facts and circumstances of each institution.
142. The above indicia must be proved through the submission of cogent
material. Reliance must be placed on primary sources such as
office documents, letters and resolutions or memorandums issued
to implement the resolutions. Secondary sources must only be
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used to corroborate the primary sources. The onus to prove that
the educational institution was established by a minority is on the
claimants.
143. One of the questions referred to this Bench was whether Article 30(1)
envisages an institution which is established by minorities alone
without participation from any other community? This question
was based on the facts as observed by this Court in Anjuman-e-
Rahmaniya (supra) where some persons from communities other
than the Muslim community had contributed to the establishment of
the educational institution. That case has been finally adjudicated
and the issues which arose in it do not survive. Nothing in Article 30
prevents some persons from other communities in contributing to the
establishment of an institution by a minority. There may be persons
hailing from different communities who are concerned about the
need for minority educational institutions and lend their assistance
in some form – be it by contributing monies or otherwise. Their
participation and involvement would not preclude Article 30 from being
applicable to such institutions provided that the minority community
continues to shoulder the core of the responsibility of establishing
an educational institution.

vi. Impact of Entry 63 of List I on the minority status of educational
institutions
144. Entry 63 of the Union List to the Seventh Schedule to the Constitution
deals with the institutions known at the commencement of the
Constitution as Benares Hindu University, Aligarh Muslim University
and Delhi University. Notably, the entry also indicates that Parliament
may enact laws which pertain to any other institutions which are
declared by law to be institutions of national importance.124
145. Entry 63 of List I had its genesis in Entry 13 of List I to the Seventh
Schedule to the Government of India Act 1935. Entry 13 read as
“Benares Hindu University and the Aligarh Muslim University”.
Entry 17 of List II read as “Educations including Universities other
than those specified in paragraph 13 of List I”. The Federal Legislature

124 Entry 63: “The institutions known at the commencement of this Constitution as the Benares Hindu
University, the Aligarh Muslim University and the Delhi University, and any other institution declared by
Parliament by law to be an institution of national importance.”
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had the power to enact laws with respect to BHU and AMU while the
Provincial Legislatures had the power to enact laws to establish new
Universities and amend the legislation through which Universities
were established and/or incorporated, except for the laws relating
to AMU and BHU.125
146. The Constitution of India adopted a similar model of division
of legislative power as regards the subject at hand. The State
Legislature had the power to enact laws with respect to education,
including Universities by virtue of Entry 11 of List II of the Seventh
Schedule to the Constitution. This power was subject to Entries
63,64 and 65 of List I and Entry 25 of List III. By the Constitution
(Thirty-second Amendment) Act 1973, Entry 63 was amended to
include the University established in pursuance of Article 371-E.126,127
Subsequently, by the Constitution (Forty-second Amendment)
Act 1976, Entry 11 of List II was deleted and a similar subject was
placed in Entry 25 of List III.128 Both Entry 11 of List II (prior to its
omission) and Entry 25 of List III (as it currently stands) were made
subject to the provisions of Entries 63, 64 and 65 of List I. The
effect of this was that Parliament retained the exclusive power to
legislate upon AMU, BHU and Delhi University in Entry 63 of List I
and the subjects which fall within the scope of Entries 64 and 65
notwithstanding the broader or more general entries in the Seventh
Schedule which include Universities.
147. In the Government of India Act 1935, the Federal Legislature only had
the power to legislate upon AMU and BHU. However, the scope of
Parliament’s legislative domain over education and Universities was
enlarged in the Constitution of India. In addition to Entry 63, Parliament
also has the power to legislate upon educational institutions which fall
within the ambit of Entries 64 and 65. Entry 64 deals with institutions
of scientific or technical education financed by the Government of

125 The Government of India Act 1935, Section 100
126 Article 371-A Establishment of Central University in Andhra Pradesh.- Parliament may by law provide for
the establishment of a University in the State of Andhra Pradesh.
127 Entry 63 subsequent to the enactment of the Constitution (Thirty-second Amendment) Act 1973: “The
institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh
Muslim University and the Delhi University; the University established in pursuance of Article 371-E any
other institution declared by Parliament by law to be an institution of national importance.”
128 Entry 25: “Education, including technical education, medical education and universities, subject to the
provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”
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India wholly or in part and declared by Parliament by law to be
institutions of national importance. Entry 65 deals with Union agencies
and institutions for (i) professional, vocational or technical training,
including the training of police officers; (ii) the promotion of special
studies or research; and (iii) scientific or technical assistance in the
investigation or detection of crime. Thus, Entries 64 and 65 deal
with institutions which provide education in specific fields. Another
crucial point is that by virtue of Entries 63 and 64, Parliament has
the power to legislate upon institutions which are declared by law
to be institutions of national importance. While Entry 64 provides
broad criteria for declaring an institution to be of national importance,
Article 63 does not contain similar indicia.
148. The question is whether the inclusion of a University as an institution
of ‘national’ importance amounts to an abrogation of its minority
character. The declaration of an institution as one of national
importance does not amount to a change in the minority character
of the institution. This is for multiple reasons. First, Entries in the
Lists in the Seventh Schedule delineate the legislative competence
of Parliament and of the legislatures of the States. As discussed
in the preceding sections of this judgment, the State may regulate
various aspects of education and educational institutions. The
field of legislative competence over universities does not amount
to a surrender of minority character. The distribution of legislative
competence between Parliament and the State legislatures does not
bear upon the minority character of the institution. Second, as a matter
of principle, nothing prevents a minority educational institution from
being an institution of national importance. The qualities denoted by
the terms “national” and “minority” are not at odds with each other nor
are they mutually exclusive. The former indicates that the institution
has a pan-India or national character, as opposed to relatively more
local or regional institutions. It is indicative of the importance of the
institution on the national stage. The latter is evidence of the religious
or linguistic background of the founders and the constitutional rights
which vest in them. Each term indicates distinct attributes which are
not antithetical to one another. A university may well be both national
and ergo, of national importance, as well as minority in character.
There is no reason why a minority educational institution cannot also
be an institution of national importance. Third, Entries 63 and 64
provide Parliament with the power to declare an institution to be of
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national importance. An interpretation that an institution of national
importance cannot be a minority institution would amount to rendering
the fundamental right guaranteed by Article 30(1) subservient to the
legislative power of Parliament. Parliament can in terms of Entries 63
and 64 declare any institution to be of national importance.129 If the
submission of the respondents is accepted, such a declaration would
automatically exclude the institution(s) from the scope of Article 30(1).

vii. The decision of this Court in Prof. Yashpal
149. Question (d) formulated in these proceedings requires the Court to
assess whether the decision in Prof. Yashpal (supra) has a bearing
on the other questions and if so, in what manner. It is therefore
necessary to advert to the facts and decision in that case. Various
writ petitions challenged certain provisions of the Chhattisgarh Niji
Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam
2002.130 Section 5 of this statute empowered the state government to
incorporate and establish a university by issuing a notification in the
Gazette. Section 6 permitted such a university to affiliate any college
or other institution or to set up more than one campus with the prior
approval of the state government. The state government established
more than a hundred universities under the Chhattisgarh Act.
150. The petitioners in that case submitted that:
a. The universities established under the Chhattisgarh Act had
no buildings or campuses and were running from tenements
consisting of a single room or a single floor in a building. Basic
infrastructure (such as classrooms, libraries, and laboratories)
was absent. Despite this, the universities were empowered to
award degrees;
b. The state government did not exercise any supervision over
these universities and was establishing them in a mechanical
manner, without assessing the infrastructure, teachers, or other
resources of each of them;

129 See The Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry Act 2008;
The Institutes of Technology Act 1961; The Indian Institutes of Management Act 2017; National Institutes
of Technology, Science, Education and Research Act 2007; The Indian Institutes of Information
Technology Act 2014; See https://www.education.gov.in/institutions-national-importance
130 “Chhattisgarh Act”
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c. The UGC was unable to exercise any control over these
universities due to the scheme of the Chhattisgarh Act and was
made a redundant body;
d. These universities were offering courses and degrees which
were not a part of the Schedule to the UGC Act. This was in
violation of Section 22 of the UGC Act as well as the Schedule;
e. These universities were offering professional courses without
obtaining permission or approval from regulatory bodies such
as the All India Council of Technical Education, Medical Council
of India and Dental Council of India; and
f. These universities conferred degrees without obtaining the
requisite permission from statutory bodies. These degrees
would not be recognised by professional organisations or other
employers. The students who were awarded such degrees
would therefore not only suffer financially but would also have
lost the time spent completing these courses.
151. In response, the State of Chhattisgarh submitted that it was competent
to enact the statute under challenge in view of Entry 32 of List II
of the Seventh Schedule to the Constitution.131 It argued that the
universities were established on the basis of the representations
made by the sponsoring body as set out in the project reports.
However, it admitted that some of these universities did not meet the
minimum standards expected of educational institutions, giving rise
to serious concerns about the academic interest of the students. It
stated that it therefore amended the Chhattisgarh Act in 2004. After
the amendments, a large number of universities were de-notified
because they failed to comply with the amended statute. Finally,
it argued that the writ petitions ought to be dismissed because the
concerns raised in them no longer subsisted after the amendments
in 2004 and the consequent denotification of many universities.
152. This Court analysed the relevant entries in the Lists of the Seventh
Schedule to the Constitution as well as the UGC Act and held that
Sections 5 and 6 of Chhattisgarh Act were ultra vires the Constitution
and liable to be struck down for the following reasons:

131 “32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and
universities; unincorporated trading, literary, scientific, religious and other societies and associations;
co-operative societies.”
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a. The term “university” occurring in the three Lists of the Seventh
Schedule must mean an institution with adequate facilities and
resources for advanced learning and research. The standard of
teaching and education must be such as would befit a university.
The power conferred on state legislatures with respect to the
incorporation of universities must be exercised only with respect
to institutions which would in substance amount to universities.
The Chhattisgarh Act did not provide for the establishment of
universities in the true sense. Rather, it conferred the legal
status of a university to mere institutions or project reports
and permitted them to issue degrees. In doing so, it clothed
an institute which is not a university and cannot amount to a
university (because of a lack of infrastructure and resources) with
the juristic personality of a university. This is not contemplated
either by Entry 32 of List II or Entry 25 of List III. Sections 5
and 6 of the Chhattisgarh Act were a fraud on the Constitution;
b. Although Entry 32 of List II and Entry 25 of List III empower the
state legislatures to enact laws concerning the incorporation of
universities, the whole gamut of the university including teaching,
quality of education, curriculum and examinations, would not
come within the purview of the state legislature because of
Entry 66 of List I. Entry 66 of List I concerns the coordination
and determination of standards in institutions for higher education
or research and scientific and technical institutions. Parliament
alone is competent to enact legislation which pertains to Entry 66
of List I. The UGC Act was enacted in pursuance of this entry;
c. A statute enacted by the state legislature which stultifies or has
the effect of nullifying a statute validly enacted by Parliament
would be ultra vires. The Chhattisgarh Act made it impossible
for the UGC to perform its duties and to ensure the coordination
and determination of standards in terms of the UGC Act; and
d. The expression “established or incorporated” in Sections 2(f),
22 and 23 of the UGC Act must be read as “established and
incorporated” insofar as private universities are concerned.
This is necessary in order to give effect to the purpose of the
UGC Act.
153. The decision of this Court in Prof. Yashpal (supra) will not have a
bearing on this case for the following reasons:
a. The interpretation of a statutory provision cannot influence the
interpretation of a provision of the Constitution. The Constitution
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is the basic or fundamental law of the country. It controls all
other laws;
b. The decision in Prof.Yashpal (supra) was rendered in the
context of institutions which were given the status of universities
by the operation of law but which existed only on paper, without
any facilities, and offered some courses which were not approved
by the relevant authorities. The purpose of this Court reading
“established or incorporated” as “established and incorporated”
was to prevent such institutions from being given the status of
universities in the absence of essential features of universities.
It was to ensure that institutions which were accorded the status
of universities existed in actuality; and
c. The distinction between the meaning of the term ‘establish’
and that of the term ‘incorporate’ was not effaced by this
interpretation. Article 30 uses the word ‘establish.’ The indicia
for determining whether an institution is a minority educational
institution for the purposes of Article 30 would depend only
upon whether the minority community in question established
the educational institution.

viii. The amendment of the NCMEI Act in 2010
154. The NCMEI Act was enacted in 2004 to constitute a National
Commission for minority educational institutions and to provide
for matters connected or incidental to it. Section 3 mandates the
constitution of the National Commission For Minority Educational
Institutions.132 Section 11 details the functions of the Commission
which include advising the Central or State governments on questions
related to the education of minorities which may be referred to it; suo
motu enquiries or enquiries based on petitions instituted by minority
educational institutions; and intervening in proceedings before courts
(with the leave of the court) which concern the deprivation or violation
of the educational rights of minorities. Section 12 empowers the
Commission to adjudicate disputes between a minority educational
institution and university regarding affiliation and confers upon it
the power of a civil court trying a suit in certain matters. Section
12B empowers the Commission to hear appeals against orders of
authorities established by the Central or State governments, which
reject applications for the grant of minority status filed by educational

132 “Commission”
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institutions. The Commission also has other powers.133 Section 10
prescribes the procedure to establish a minority educational institution.
In terms of the provision, any person who desires to establish a
minority educational institution has to apply to the competent authority
for the grant of a no objection certificate for the purpose. The
competent authority would upon the perusal of documents, affidavits
or other evidence and after giving the applicant an opportunity to be
heard either allow or reject the application.
155. The NCMEI Act was amended in 2010.134
156. Section 2(g) defined a ‘minority educational institution’ as reproduced
below:
“(g) “Minority educational institution” means a college
or institution (other than a University) established or
maintained by a person or group of persons from amongst
the minorities;”
In 2010, Section 2(g) was amended to read as follows:
“(g) “Minority educational institution” means a college or
an educational institution established and administered by
a minority or minorities;”
157. Two material changes were made to Section 2(g) in 2010. The
first was the removal of the words “other than a University” from
the definition. The NCMEI Act did not extend to universities prior
to 2010. The amendment in that year widened the ambit of the
Act and made its provisions applicable to minority universities
as well. The second change was the replacement of the term
“established or maintained” with “established and administered.”
The amendment in 2010 to the definition of a minority educational
institution in Section 2(g) cannot impact the interpretation of
Article 30(1). In the preceding sections, we have held that
establishment by a minority is the only indicia for a minority educational
institution. Section 10 of the NCMEI Act recognises this by prescribing
the procedure to ‘establish’ a minority educational institution. The
amendment to the definition of a minority educational education in
Section 2(f) only recognises the right guaranteed by Article 30(1). It
recognises that a minority educational institution once established
is also administered by them.

133 Sections 12D and 12E, NCMEI Act.
134 See the National Commission for Minority Educational Institutions (Amendment) Act 2010.
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ix. Registration under the Societies Registration Act
158. The question is whether a minority educational institution which is
registered as a society under the Societies Registration Act soon
after its establishment loses its status as a minority educational
institution by virtue of such registration.
159. As discussed in Section B of this judgment, this question was
referred to a larger Bench by this Court in Anjuman-e-Rahmaniya
(supra). This question was referred because the institution in that
case was founded in 1938 and was registered under the Societies
Registration Act in 1940. The judgment in Anjuman-e-Rahmaniya
(supra) has been rendered and the case has been disposed of. This
judgment will therefore not have a bearing on that case. Moreover,
the parties in the present proceedings have not addressed this Court
as to question (c) nor does the question have a bearing on the other
questions referred. In these circumstances, we are of the opinion
that this question is not required to be answered.

F. Conclusion
160. In view of the above discussion, the following are our conclusions:
a. The reference in Anjuman-e-Rahmaniya (supra) of the
correctness of the decision in Azeez Basha (supra) was valid.
The reference was within the parameters laid down in Central
Board of Dawoodi Bohra Community (supra);
b. Article 30(1) can be classified as both an anti-discrimination
provision and a special rights provision. A legislation or an
executive action which discriminates against religious or linguistic
minorities in establishing or administering educational institutions
is ultra vires Article 30(1).This is the anti-discrimination reading
of the provision. Additionally, a linguistic or religious minority
which has established an educational institution receives the
guarantee of greater autonomy in administration. This is the
‘special rights’ reading of the provision;
c. Religious or linguistic minorities must prove that they established
the educational institution for the community to be a minority
educational institution for the purposes of Article 30(1);
d. The right guaranteed by Article 30(1) is applicable to universities
established before the commencement of the Constitution;
e. The right under Article 30(1) is guaranteed to minorities
as defined upon the commencement of the Constitution. A
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different right-bearing group cannot be identified for institutions
established before the adoption of the Constitution;
f. The incorporation of the University would not ipso facto lead
to surrendering of the minority character of the institution. The
circumstances surrounding the conversion of a teaching college
to a teaching university must be viewed to identify if the minority
character of the institution was surrendered upon the conversion.
The Court may on a holistic reading of the statutory provisions
relating to the administrative set-up of the educational institution
deduce if the minority character or the purpose of establishment
was relinquished upon incorporation; and
g. The following are the factors which must be used to determine
if a minority ‘established’ an educational institution:
i. The indicia of ideation, purpose and implementation
must be satisfied. First, the idea for establishing an
educational institution must have stemmed from a person
or group belonging to the minority community; second, the
educational institution must be established predominantly
for the benefit of the minority community; and third, steps
for the implementation of the idea must have been taken
by the member(s) of the minority community; and
ii. The administrative-set up of the educational institution
must elucidate and affirm (I) the minority character of the
educational institution; and (II) that it was established to
protect and promote the interests of the minority community.
161. The view taken in Azeez Basha (supra) that an educational institution
is not established by a minority if it derives its legal character through
a statute, is overruled. The questions referred are answered in the
above terms. The question of whether AMU is a minority educational
institution must be decided based on the principles laid down in
this judgment. The papers of this batch of cases shall be placed
before the regular bench for deciding whether AMU is a minority
educational institution and for the adjudication of the appeal from
the decision of the Allahabad High Court in Malay Shukla (supra)
after receiving instructions from the Chief Justice of India on the
administrative side.
162. The reference is disposed of in the above terms.
163. Pending applications, if any, stand disposed of.
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Surya Kant, J.
Table of Contents**

I. Background ........................................................................ 4
A. History of minority rights ............................................. 4
B. The Constitutional scheme ......................................... 14
C. Brief history of AMU .................................................... 19
D. Challenge to the constitutionality of the 1951 and 1965
Amendment Acts ......................................................... 29
E. History of discordance with Azeez Basha ................... 37
II. Contentions of the parties ................................................. 41
III. Issues for determination .................................................... 45
IV. Analysis .............................................................................. 47
F. Issue I: What are the requisite parameters of reference
to a larger bench? ....................................................... 47
G. Issue II: Whether the Appellant has the locus standi
to bring the present challenge? .................................. 55
H. Issue III: What are the tests to seek protection under
Article 30? ................................................................... 62
I. Issue IV: What is the meaning of ‘establish’ in
Art. 30? .......................................................................... 66
J. Issue V: What is the meaning of ‘administer’ in Article
30? ............................................................................... 84
K. Issue VI: Whether the Union of India is obligated to
defend the AMU Amendment Act, 1981? .................... 90
V. Areas of divergence .............................................................. 91
VI. Conclusion ........................................................................... 100

1. A three-judge bench presided over by the then Chief Justice of India
vide order dated 12.02.2019, passed in Aligarh Muslim University
v. Naresh Agarwal,1 (2019 Reference Order) made this reference
to a Bench of Seven Judges, with a view to:

** Ed. Note: Pagination as per the original Judgment.
1 Aligarh Muslim University v. Naresh Agarwal (2020) 13 SCC 737.
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i. To determine the correctness of the question arising from the
decision of this Court in S. Azeez Basha v. Union of India,2
which had ruled against the minority status sought to be accorded
to the Aligarh Muslim University (AMU).
ii. To determine question 3(a) formulated in TMA Pai Foundation
v. State of Karnataka,3 which postulates that:
“Q. 3. (a) What are the indicia for treating an educational
institution as a minority educational institution? Would an
institution be regarded as a minority educational institution
because it was established by a person(s) belonging to a
religious or linguistic minority or its being administered by
a person(s) belonging to a religious or linguistic minority?
This question need not be answered by this Bench, it will
be dealt with by a regular Bench.”; and
iii. Whether the decision of this Court in Prof. Yashpal v. State
of Chhattisgarh,4 and the amendment in 2010 to the National
Commission for Minority Educational Institutions Act, 2004
(NCMEI Act) have any bearing on the aforesaid questions
formulated?
2. The fulcrum of this reference revolves around the interpretation of
Article 30 of the Constitution of India, which deals with the right of
minorities to set up educational institutions. We have had the benefit
of perusing the erudite opinion authored by Hon’ble the Chief Justice
Dr. D.Y. Chandrachud. While the said opinion comprehensively
addresses each issue with depth and clarity, we have expressed
a differing view on the interpretation of certain aspects, given the
significant constitutional implications involved. Recognizing the weight
of these issues, we have chosen to offer our own perspective, though
we acknowledge the thoroughness and diligence with which Hon’ble
the Chief Justice has approached this complex matter.
3. Before we lay down the indicia under Article 30 to determine whether
an institution has a minority character and ought to be afforded
protection, we deemed it appropriate to embark on a substantive

2 S. Azeez Basha v. Union of India [1968] 1 SCR 833
3 TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481, para 18.
4 Prof. Yashpal and Anr. v. State of Chhattisgarh and Ors. (2005) 5 SCC 420
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analysis of the issues involved, and will begin by undertaking a
comprehensive examination of the multifaceted nature of minority
rights, both in India and internationally.

I. Background

A. History of minority rights
4. The basis of defining the term ‘minorities’ and bestowing associated
rights on them have varied significantly across different eras and
regions. Indicators such as religion, nationality, ethnicity, and race
frequently emerge as markers of minority status across the world. In
contrast, the Indian perspective on minorities is broadly categorized
as religious and linguistic minorities.

A.1. Global history of minority rights
5. The idea of minority rights can generally be traced back to the ‘Peace
of Westphalia’, a set of treaties concluded in the mid-17th century,
which sought to give rights to certain religious minorities in newly
ceded territories post-war.5 Hence, globally, the concept of minority
rights broadly emerged along the fault lines of religion.
6. However, the focus on religion changed subsequently with the
rise of nationalism in Europe. Since national identities emerged
as the primary means of distinguishing insiders from outsiders,
the concept of minorities in different instruments—such as the
1815 Final Act of Congress of Vienna—was defined in terms of
national groups.6
7. As national identities began to take shape, the notion of minority
rights became increasingly intertwined with the quest for
international legitimacy. By the time of the 1878 Congress of
Berlin, the question of minorities had become a crucial factor in the
emergence of new nation-states beyond Western Europe. These
States, requiring international recognition, were accordingly
required to demonstrate a willingness to comply with a ‘standard of

5 Jennifer Jackson Preece, “Minority rights in Europe: from Westphalia to Helsinki” Review of International
Studies (1997), Vol. 23, pp. 75–92; Joseph B. Kelly, “National Minorities in International Law”, Denv. J.
Int’l L. &Pol’y, (1973) Vol. 3, pp. 253; Liebich, Andre. “Minority as Inferiority: Minority Rights in Historical
Perspective” Review of International Studies, (2008) Vol. 34, no. 2, pp. 243–63.
6 Ibid.
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civilization’, which included the protection of minority rights.7 This
was not merely a moral obligation but a strategic tool for gaining
acceptance within the global community. Nations such as Greece, for
example, were compelled by powers like France, Great Britain, and
Russia to uphold minority rights as a condition for their recognition
and support.8
8. This momentum of bestowing rights to minorities continued to
gain further traction across Europe. For instance, Hungary’s
Parliament first proclaimed minority rights in July 1849,9 followed
by their formal codification into Austrian law in 1867. Similarly,
Belgium joined the movement in 1898. Although this era did not
achieve universal respect for minority rights, it marked a pivotal
shift, with these categories of rights increasingly taking centre
stage in international negotiations and settlements, particularly in
the aftermath of conflicts.
9. The mid-19 th century also witnessed the gradual upliftment of
historically-oppressed groups, such as the African-Americans, who
constituted the largest minority in the United States. The American
Civil War of the 1860s culminated in the issuance of the Emancipation
Proclamation by Abraham Lincoln in 1863. This landmark decree
effectively abolished slavery and guaranteed freedom to all African-
Americans. This progress was further bolstered by the 14th Amendment
of 1868, which granted various civil rights to all citizens.10
10. This trajectory of liberation extended into the early 20th century, with
the League of Nations making the establishment of a minority state
system one of its key priorities. The new Nation-States that emerged
in East-Central Europe post-1919 were so ethnographically diverse
that recognising minority rights became essential. The victorious
powers understood that ethnic dissatisfaction with the territorial status
quo could potentially escalate into domestic and even international
violence. Thus,the rights of minorities became a prerequisite for

7 G. Gong, “The Standard of Civilization in International Society” Oxford University Press, (1984).
8 Greece Liberated– London Protocol, (United Kingdom, France & Russia) (adopted on 03 February, 1830).
9 Mazohl, Brigitte, ‘‘Equality among the Nationalities’ and the Peoples (Volksstämme) of the Habsburg
Empire”, Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences Chapter 9, Oxford
University Press (2014).
10 Holloway, Jonathan Scott, “Civilization, race, and the politics of uplift”, African American History: A Very
Short Introduction, Chapter 4, (Oxford University Press) (2023).
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independence, as well as a condition for war reparations or admission
into the League of Nations. A notable example is the Polish Minority
Treaties of 1918, which granted special and presumably temporary
rights in areas such as education, allowing minorities to read and
learn their preferred languages.11
11. The growing significance of minority rights during this period is
further exemplified by several cases before the Permanent Court
of International Justice (PCIJ). In a 1923 case of the Rights of
Minorities in Upper Silesia, the PCIJ affirmed that individuals
should have the autonomy to decide their minority affiliation. 12
Similarly, in the 1930 Greco-Bulgarian communities case, the PCIJ
emphasized the rights of minorities to uphold and preserve their
traditions, clarifying that a ‘community’ under the subject-Convention
referred to a group united by race, religion, language, and traditions,
and that such a community could possess property distinct from any
individual comprising it.13 Further, in Minority Schools in Albania,
decided in 1935, the PCIJ explored the interrelation between
minority status and cultural identity while addressing the religious
and educational autonomy enjoyed by the Greek communities of
Albania.14 The PCIJ concluded that the essence of minority treaties
was to ensure de facto equality for minorities, thus enabling them
to maintain their cultural distinctiveness through a specialized
minority regime.
12. In this manner, the historical development of minority rights from the
16th to 20th centuries illustrates a progressively advancing standard of
rights accorded to these groups. Initially, minority status was primarily
defined by religious affiliation; however, over time, nationality and
linguistic identity became key criteria. This evolution reflects a broader
international understanding of minority groups. There have been
instances where the dominant majority has also actively sought to
empower these minorities, highlighting the complex interplay between
oppression and advocacy throughout history.

11 Treaty of Peace with Poland [Polish Minorities Treaty], (adopted on 28 June 1919).
12 Rights of Minorities in Upper Silesia (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 15 (Apr. 26) (Permanent
Court of International Justice).
13 Greco-Bulgarian “Communities”, Advisory Opinion, PCIJ Series B. No 17 (Permanent Court of
International Justice, 1928).
14 Minority Schools in Albania, Advisory Opinion, PCIJ Series A/B no 64, ICGJ 314 (Permanent Court of
International Justice, 1935).
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A.2. Minority rights in India
13. The trailing analysis put forth hereinabove sets the context to hereafter
understand the Indian experience with minority rights. However, any
discussion of minority rights in India must begin with appreciating its
unique and vibrant nature,characterized by its rich mosaic of cultures,
religions, and languages.
14. As a melting pot of cultures, India is home to a diverse array
of different communities. One such example is the Parsis, who
came to India from Persia—escaping persecution by the then
Arab conquerors—and have since established themselves as one
of the most prosperous communities in India.15 Another important
minority is the Sikhs, who follow Sikhism, which “is believed to
be a deep synthesis of divine virtues, ceaseless, remembrance,
relentless service of mankind, equality of mind, and ephemeral
nature of the world besides the defiance of tyranny and fighting
for righteousness”. 16 These instances, among others, provide
ample historical evidence supporting India’s tradition of tolerance,
as embodied in the notion of ‘Vasudeva Kutumbakam’,17 where
all communities have flourished and seamlessly integrated into
Indian culture.
15. It was only with the advent of British rule in India that longstanding
religious, caste, linguistic and regional ethnic tribal entities that had
existed in India for centuries began to receive renewed scrutiny.18
The late 19th century, particularly after the Revolt of 1857, saw an
increasing incorporation of Indians into the colonial government. This
increasing inclusion of Indians in British institutions forced imperialists
to address how Indians were to be represented, leading to the
concept of group-based representation.19 They were initially defined
by religious terms—evident in the first Indian Census of 1872, which
classified Indians by religion—the representation later expanded to
include caste and racial categories. Subsequent censuses further

15 Dosabhoy Framjee, “History of the Parsis: including their manners, customs, religion and present
position” Volume 2, Discovery Publishing House, (1986).
16 Sehajdhari Sikh Federation v. Union of India and others, 2011 SCC Online P&H 17374.
17 Justice R. A. Jahagirdar (Retd.), “Secularism: the Road Behind and the Road Ahead,” Secularism:
Collected Works, Rationalist Foundation, pp. 9.
18 Rochana Bajpai, “Debating Difference: Group Rights and Liberal Democracy in India, Oxford University
Press, (2011).
19 Ibid.
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sought to amalgamate oppressed castes of India into a single
all-India category of ‘Depressed Classes’.20

A.2.1. The concept of linguistic minorities
16. History indicates that during the British Rule, Hindi was sought to be
projected as the language of the majority community.21 In this vein,
the British decided to introduce the permissive use of the Devanagari
script in the Courts of the North-Western Provinces and Oudh, with
a view to undermine the influence of the Mughal elites.22 From the
late 19th century onwards, there seemed to be murmurs against
the perceived imposition of Hindi language, in regions where other
languages were spoken. These concerns were endeavoured to be
redressed by reorganising and carving out new States, predominantly
on linguistic considerations, such as, for instance, the division of the
States of Bihar and Odisha.23
17. The reorganization of the States based on linguistic differences
gained momentum with the appointment of the Indian Statutory
Commission, and subsequently,in April 1938, when a resolution
was passed by the Madras Legislative Assembly, unsuccessfully
recommending the establishment of four new Provinces from the
former Madras Presidency. Ultimately, the States Reorganisation
Act, 1956 enabled the division of States on a linguistic basis,
aligning administrative boundaries with the linguistic identities of
the population.

A.2.2. The concept of religious minorities
18. In addition to linguistic minorities, the question of rights and privileges
for religious minorities also gained prominence. The genesis of this
category of minority rights in India can be traced back to the 1909
Morley-Minto Constitutional Reforms, which introduced separate
electorates and reserved quotas to protect the interests of one of

20 Sumit Mukherjee, “Conceptualisation and Classification of Caste and Tribe by the Census of India,”
Journal of the Anthropological Survey of India, (2013), Vol. 62 no. 2 pp.807.
21 Tariq Rahman, “Punjabi Language during British Rule,” International Journal of Punjab Studies (2007).
22 Amit Ranjan, “How Hindi came to dominate India” The Diplomat, (06 May, 2017) available at https://
thediplomat.com/2017/05/how-hindi-came-to-dominate-india/.
23 Fazal Ali, Report of the States Reorganisation Committee (1955), available at https://www.mha.gov.in/
sites/default/files/State%20Reorganisation%20Commisison%20Report%20of%201955_270614.pdf.
[2024] 11 S.C.R. 1769

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the minority communities within the evolving political framework.24
Following this development, the British government extended similar
provisions to other communities, as well as the Depressed Classes,
thereby institutionalizing measures for their representation and
protection.25
19. Subsequently, political organisations seeking to leverage the 1919
Montagu-Chelmsford reforms played a crucial role in consolidating
minority identities.26 The principle that eventually emerged for Indian
representation in colonial institutions was that minority groups
should be represented in proportion to their population size.27 The
primary demand of these groups was to secure safeguards against
potential dominance by the Congress or the majority community in
Indian politics.
20. The 1928 Simon Commission further solidified the foundation
of minority rights by recommending the continuation of separate
electorates.28 At the same time, the 1928 Nehru Report, which
influenced the framing of a Constitution for India, laid great emphasis
on the safeguards of minorities.29 However, in a significant departure
from the 1916 Lucknow Pact,30 the Committee rejected the Muslim
League’s demands for separate electorates, noting that communal
protection was no longer necessary for Hindus and Muslims.31
21. Historical events reveal that after the failure of Round Table Conference
of 1930 and 1932, the Colonial Government firstly proposed the
Communal Award followed by the Government of India Act, 1935,
which was the last major colonial constitutional exercise prior to
Independence. This Act reserved seats in Provincial Legislatures for

24 Meetika Srivastava, “Evolution of the System of Public Administration in India from the Period 1858-
1950: A Detailed Study Highlighting the Major Landmarks in Administrative History Made During this
Period” (2009), available at https://ssrn.com/abstract=1482528.
25 Dick Kooiman, “Communalism and Indian Princely States: A Comparison with British India” Economic
and Political Weekly (1995) Vol. 30 No. 34 pp. 2123-2133.
26 Ibid.
27 Francesca R. Jensenius, “Mired in Reservations: The Path-Dependent History of Electoral Quotas in
India” The Journal of Asian Studies (2015) Vol. 74 No. 1.
28 McMillan, Alistair, “Standing at the Margins: Representation and Electoral Reservations in India” Oxford
University Press (2005).
29 Ibid.
30 Owen, Hugh “Negotiating the Lucknow Pact”, Journal of Asian Studies, (1972) Vol. 31 No. 3 pp. 561–87.
31 Proceedings of the Indian Round Table Conference (12th November, 1930–19th January, 1931).
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a total of thirteen communal and socio-economic categories.32 The
1940s then witnessed intense political debates centred on the ‘minority
question,’with various parties negotiating the extent of concessions
to be granted to minority communities.33

A.2.3. Deliberations by the Constituent Assembly of India
22. The developments of the last few decades of British rule in India
vis-à-vis minority rights directly contributed to the discussions in the
Constituent Assembly Debates and the formalisation of safeguards
for minorities within the Indian Constitution.34 In fact, it strengthened
the belief of the makers of the Indian Constitution that the Indian
State must be formally committed to protecting the distinct cultural,
linguistic and religious practices of various communities.35
23. Thus, to streamline the complex task of drafting the Indian Constitution,
the Constituent Assembly decided to work through specialized
committees. Among these, the Advisory Committee on Fundamental
Rights, Minorities, etc., was formed under the leadership of Sardar
Vallabhbhai Patel, having proportional representation from all major
minority groups.36 Given the broad mandate of this Committee, it
was further divided into five Sub-Committees, one of which was
the Minorities Sub-Committee, chaired by Dr. H.C. Mookherjee, a
prominent Christian leader.37
24. Soon after, the Advisory Committee prepared the ‘Report on Minority
Rights’, which recommended that elections to all legislatures be
conducted on the basis of joint electorates, with reservations
for specified minorities.38 Additionally, the Report also proposed
reservation in recruitment for minorities. The Report further incorporated
suggestions for establishing Constitutional and Administrative
mechanisms to address the challenges faced by minorities in India.

32 Rochana Bajpai, supra note 18.
33 Krishna, K.B., The Problem of Minorities in India or Communal Representation in India, G. Allen and
Unwin, (1939).
34 Rochana Bajpai, “Constituent Assembly Debates and Minority Right” Economic and Political Weekly,
(2000) Vol. 35 No. 21-22.
35 Ibid.
36 Navin Pal Singh, Dr. Balvinder Singh Slathia, “Intricacies of Educational and Cultural Rights of Minorities
in India: Efficacy of Constitutional Safeguards” UGC Care Journal (2020) Vol. 43, no.4.
37 Ibid.
38 Rochana Bajpai, supra note 18.
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25. The discussions on the Draft Constitution, initiated by Dr. Ambedkar on
21.02.1948,intended to give special attention to minority rights.39 This
then led to the insertion of ‘Special Provisions Relating to Minorities’
(Part XIV – Articles 292 to 301) into the Draft Constitution. This was
in addition to the protections granted to all citizens under the Chapter
of Fundamental Rights.40 The proposed Part XIV instead intended
to provide political reservations for Muslims, Indian-Christians,
Anglo-Indians, Scheduled Castes, and Scheduled Tribes. Additionally,
it envisioned special protection for Anglo-Indians with respect to
educational institutions and also addressed minority claims in the
realm of public recruitment.41 Finally, it sought to include administrative
checks to ensure the effective implementation and functioning of
these constitutional safeguards.
26. However, these provisions sought to be incorporated under Part XIV
were short-lived. The harsh realities of the communal violence
following the partition of the Indian subcontinent into India and
Pakistan greatly impacted one and all. The conflicts, violence,
exploitation, general public disorder and lawlessness during the
migration exercise resulted in the deaths of almost one million
people, with an estimated displacement of approximately ten to
twenty million people.42
27. Naturally, the aftermath of these events sent shock waves throughout
the country. It profoundly affected the Constituent Assembly and the
Drafting Committee, particularly in regard to the recognition of communal
minority rights.43 Prior to the Partition, the Assembly had granted
religious reservations in legislative bodies. However, these reservations
were done away with post-Partition. 44 The prevailing sentiment
was that such measures could foster separatist tendencies and
were inconsistent with the principles of a Secular Democratic State.
This view was also supported by various Muslim members of the

39 Rochana Bajpai, supra note 34.
40 Kamlesh Kumar Wadhwa, Minority Safeguards in India, Thomas Press (India) Limited, (1975).
41 Ibid.
42 “Partition of 1947 Continues to Haunt India, Pakistan” Stanford Report(2019) available at https://news.
stanford.edu/stories/2019/03/partition-1947-continues-haunt-india-pakistan-stanford-scholar-says.
43 B Shiva Rao (ed), The Framing of India’s Constitution, Vol. I-V, Indian Institute of Public Administration,
(1967).
44 Ibid.
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Constituent Assembly. 45 For instance, Mohammad Ismail Khan
stated:46
“[…] Because this reservation of seats would only
keep alive Communalism and would be ineffectual as a
safeguard for the Muslim minorities or for the matter of
that for any other minorities. I congratulate the majority
community, that they have not taken advantage of their
superiority in numbers, by utilising this device for their own
purposes. The Muslims have been thinking for some
time that this reservation was wholly incompatible
with responsible Government and I may say that when
Provincial autonomy was introduced in the provinces for the
first time the Muslims soon began to realize the separate
representation was not going to be an effective safeguard
for the protection of their interests […]”
[Emphasis supplied]

28. Similarly, Tajamul Hussain also emphatically voiced:47
“Mr. President, Sir, reservation of seats in any shape or
form and for any community or group of people is, in
my opinion, absolutely wrong in principle. Therefore
I am strongly of opinion that there should be no
reservation of seats for anyone and I, as a Muslim,
speak for the Muslims. There should be no reservation
of seats for the Muslim community. (Hear, Hear). I would
like to tell you that in no civilised country where there is
parliamentary system on democratic lines, there is any
reservation of seats. […]”
[Emphasis supplied]

29. Eventually, the Constituent Assembly dropped the proposals to grant
varied rights to linguistic and religious minorities, and retained only

45 Christina George, “Begum Aizaz Rasul: The only Muslim Woman to oppose minority reservations in
the Constituent Assembly” The Indian Express, (14 February, 2018), available at https://indianexpress.
com/article/gender/begum-aizaz-rasul-the-only-muslim-woman-to-oppose-minority-reservations-in-the-
constituent-assembly-5057096/.
46 Constituent Assembly Debate, Speech by Mohammad Ismail Khan, (26 May 1949).
47 Constituent Assembly Debate, Speech by Tajamul Hussain, (26 May 1949).
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Articles 29 and 30 to assuage their concerns. These two Fundamental
Rights under Part III nonetheless represent a watershed moment in
the jurisprudence of minority rights worldwide.

B. The Constitutional scheme
30. The majority of minority rights within the Indian Constitution are
encapsulated in Part III under the sub-section on ‘Cultural and
Educational Rights’. This section includes: (i) the right of any section
of citizens with a distinct language, script, or culture to conserve the
same under Article 29; and (ii) the right of linguistic and religious
minorities to establish and administer educational institutions of their
choice under Article 30.
31. This focus on cultural and educational rights does not diminish
the broader protections offered by the Constitution, which includes
positive discrimination and affirmative action. Notable amongst these
are Articles 15 and 16, which provide reservations to ensure equality
of opportunity, and Articles 25 to 28, for the safeguard of religious
freedoms. In addition, Articles 350A and 350B were incorporated
shortly after independence in 1956 to further protect linguistic
minorities. These provisions established administrative shields to
support language rights and ensure their preservation within the
broader framework of the Indian State.
32. Given this context, Article 29 protects linguistic minorities and their
right to conserve their languages,and Article 30 bestows positive
rights to religious and linguistic minorities,allowing them to establish
and administer educational institutions. These provisions read as
follows:
“29. Protection of interests of minorities.—
(1) Any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script
or culture of its own shall have the right to conserve the
same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State or receiving
aid out of State funds on grounds only of religion, race,
caste, language or any of them.”
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“30. Right of minorities to establish and administer
educational institutions.—
(1) All minorities, whether based on religion or language,
shall have the right to establish and administer educational
institutions of their choice.
(1A) In making any law providing for the compulsory
acquisition of any property of any educational institution
established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by
or determined under such law for the acquisition of such
property is such as would not restrict or abrogate the right
guaranteed under that clause.
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational institution
on the ground that it is under the management of a minority,
whether based on religion or language.”
33. Other provisions in the Constitution of India,such as Article 19, for
instance, also provide a similar freedom to establish educational
institutions. However, the distinguishing and unique nature of Article 30
lies in its broader protection against State intervention. The interplay
of these Articles has been thoroughly examined by an eleven-judge
bench of this Court in TMA Pai (supra):
“18. With regard to the establishment of educational
institutions, three articles of the Constitution come into
play. Article 19(1)(g) gives the right to all the citizens to
practise any profession or to carry on any occupation,
trade or business; this right is subject to restrictions that
may be placed under Article 19(6). Article 26 gives the right
to every religious denomination to establish and maintain
an institution for religious purposes, which would include
an educational institution. Article 19(1)(g) and Article
26, therefore, confer rights on all citizens and religious
denominations to establish and maintain educational
institutions. There was no serious dispute that the majority
community as well as linguistic and religious minorities
would have a right under Articles 19(1)(g) and 26 to
establish educational institutions. In addition, Article 30(1),
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in no uncertain terms, gives the right to the religious and
linguistic minorities to establish and administer educational
institutions of their choice.”
34. The distinction between broader rights such as Article 19 and
Article 30, is thus clearly visible. Though Article 19 grants all
citizens the right to establish institutions, it does not indemnify these
institutions from State intervention in their administration and allows
reasonable restrictions in the interests of the public. In contrast,
Article 30 provides a specific right for religious minorities to establish
and administer educational institutions without significant State
interference. Additionally, whereas Articles 25 to 28 grant general
rights to religious denominations, Article 30 specifically protects the
rights of religious minorities.

B.1. Relevant case laws on the interpretation of Article 30
35. While the judicial interpretation of the scope and nuances of Article
30 will be discussed later in relevant parts of the judgement, a
brief note of the landmark edicts that have been enumerated on
this provision can be laid out. Over the course of several decades,
through multiple judicial pronouncements and interpretations, the
Supreme Court has held that the right provided under Article 30
is not absolute. An eleven-judge bench in TMA Pai (supra) and
a seven-judge bench in P.A. Inamdar v. State of Maharashtra,48
have held that while the minority community possesses the right
to administer the educational institutions, the State may impose
reasonable regulations for the benefit of these institutions. Similarly,
five-judge benches in Islamic Academy of Education v. State of
Karnataka49 and St. Stephen’s College v. University of Delhi50
have held that the State can prescribe general rules regarding
merit in admissions. This view was seconded in Secy., Malankara
Syrian Catholic College v. T. Jose,51 which held that general
regulations regarding service conditions of employees could also
be imposed.

48 P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537.
49 Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697.
50 St. Stephen’s College v. University of Delhi (1992) 1 SCC 558.
51 Secy., Malankara Syrian Catholic College v. T. Jose & Ors. (2007) 1 SCC 386.
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36. In that sense, several judicial pronouncements have sought to
explain the scope of Article 30 and clarify the extent of the protection
granted.

B.2. Statutory Scheme
37. Apart from constitutional guarantees and rights, the Indian Parliament
has also adopted several legislations to protect the rights of minorities.
The National Commission for Minorities was established as a statutory
body under the aegis of the National Commission for Minorities
Act, 1992. Section 9(1) of the Act mandates the Commission to
perform various functions, including, but not limited to, monitoring
the implementation of safeguards for minorities, as provided in the
Constitution, and laws enacted by Parliament and State Legislatures.
The Commission is also responsible for making recommendations to
the Central and State Governments for the effective implementation
of these safeguards to protect minority interests. Additionally, it is
tasked with addressing specific complaints regarding the deprivation
of minority rights and safeguards and addressing such matters with
the appropriate authorities.
38. A significant development which flows from Article 30 is also the
enactment of the NCMEI Act,which governs minority educational
institutions. The NCMEI Act was enacted in 2005 to, inter alia,
engender the rights of a minority educational institution to seek
recognition as an affiliated college to a Scheduled University and to
provide a forum for dispute resolution. In this manner, the NCMEI
Act gave greater credence to Article 30 and aided its efficient
implementation.
39. In 2006, the NCMEI Act was amended, and the scope of the
Commission was expanded further. In addition to protecting the rights
of minority educational institutions, the Commission was now endowed
with the power to determine and declare whether an institution is a
minority institution. Under Section 2(f), minorities have been defined
in the NCMEI Act as: “a community notified as such by the Central
Government.” Employing this definition, the Central Government
has so far notified Muslims, Christians, Sikhs, Buddhists, Parsis and
Jains as minority communities.52

52 Ministry of Human Resource Development, No. F.7-5/2005-MC(P) (Notified on 18 January, 2005)
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40. Having examined the development of minority rights, as well as the
Constitutional and Statutory scheme, it is pertinent at this juncture,
to briefly touch upon the history of AMU and analyze the events
leading to the instant matter.

C. Brief history of AMU
41. The history of AMU begins after the founding of the Muhammaden
Anglo-Oriental (MAO) College at Aligarh in 1875 by Sir Syed Ahmad
Khan. It seems that by the year 1895, MAO College had begun to
experience considerable decline. It faced governmental pressure
to increase student fees and make examinations more difficult,
leading to a decrease in student enrolment and endowments.53
The death of Sir Syed in 1898 further intensified the situation,
creating a sense of distrust among the benefactors of the college
and a power vacuum.54
42. History further suggests that in 1898, the Sir Syed Memorial Fund
was created with the goal of raising funds to pay off the debts of the
College and to create an endowment to establish a university. The
then Lieutenant Governor of the North-Western Provinces is said to
have promised aid and support in the management of the College,
provided that there was a stable governing body for the same directly
under government supervision. The record further indicates that, by
1903, the fund collection drive had raised enough money to meet
the College’s needs and restore its stability.55
43. At the ‘All India Muhammadan Educational Conference’ in
Calcutta, the idea of establishing a university in Aligarh sparked
significant deliberations and gained momentum. Some proposed
a pan-India, affiliating university,56 while others advocated for a

available at https://www.education.gov.in/sites/upload_files/mhrd/files/Notification18012005.pdf; Ministry
of Minority Affairs, S.O. 267(E) (Notified on 27 January, 2014) available at https://ncm.nic.in/legislations/
Gazette_JainInclusion_27Jan2014.pdf.
53 Theodore Beck, “The Principal’s Annual Report for 1898—99” (‘Principal’s Report), (1898—99),
Muhammadan Anglo-Oriental College Magazine (Aligarh) (MAOCM), and Aligarh Institute Gazette
(Aligarh) (AIG), New Series VII, No. 11 (15 July 1899) (At this time the two journals were temporarily
merged).
54 Shamim Akhtar, “Aligarh: From College to University” Proceedings of the Indian History Congress
(2018-19) Vol. 79, pp. 623.
55 Muhammadan Anglo-Oriental College Magazine (Aligarh) MAOCM, VII, (January 1899), pp. 15-21.
56 Rafiuddin Ahmad, ‘The Proposed Muslim University in India’, The Nineteenth Century, XLIV (1898),
915-21.
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university completely in line with Muslim ideals, with mandatory
religious instruction and administration in consonance with Islamic
principles.57
44. However, nothing tangible happened on the ground level for
multifarious reasons. In early 1910, efforts to establish a university
at Aligarh resurfaced. Once the requisite funds had been collected, a
committee was established to draft the constitution for the proposed
university, designating the Viceroy as the chancellor and placing
governance in the hands of a Muslim Court of Trustees. The matter
of affiliation was cursorily mentioned only in the context of the powers
of approval by various authorities. Finally, after long drawn-out
negotiations between relevant stakeholders, in September 1920, the
Aligarh Muslim University Act, 1920 (AMU Act, 1920) was passed
by the Central Legislature of British India.

C.1. Features of the AMU Act, 1920
45. The AMU Act, 1920 which came into force with effect from
29.07.1920, comprising 40 sections and 23 statutes, was a
comprehensive piece of legislation that meticulously regulated
various aspects of AMU. The Statement of Objects and Reasons
accompanying the Act clearly articulated its purpose: “to incorporate
this University, to indicate its functions, to create its governing
bodies and to define their functions.” In essence, the AMU
Act, 1920 was focused on establishing the University and making
it operational by setting up its Governing Bodies and outlining their
respective functions.
46. Broadly, there were four important Governing Bodies, i.e., the
Executive Council, the Academic Council, the Court, and other
Officers such as the Lord Rector, Vice Chancellor, Pro-Vice
Chancellor, etc
47. Without expressing any opinion on the interpretation of its provisions
or the legislative policy of the AMU Act, 1920,we deem it fit to
encapsulate some relevant provisions.
48. In this light, the role and authority of the Lord Rector was delineated
in Section 13, which states as follows:

57 Theodore Beck, supra note 53; MAOCM and AIG, supra note 53.
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“13. (1) The Governor General shall be the Lord Rector
of the University.
(2) The Lord Rector shall have the right to cause an
inspection to be made by such person or persons as he
may direct, of the University, its buildings, laboratories,
and equipment, and of any institution maintained by the
University, and also of the examinations, teaching and other
work conducted or done by the University, and to cause an
inquiry to be made in like manner in respect of any matter
connected with the University. The Lord Rector shall, in
every case, give notice to the University of his intention to
cause an inspection or inquiry to be made and the University
shall be made entitled to be represented thereat.
(3) The Lord Rector may address the Vice-Chancellor with
reference to the result of such inspection and inquiry, and
the Vice-Chancellor shall communicate to the Court the
views of the Lord Rector with such advice as the Lord
Rector may be pleased to offer upon the action to be
taken thereon.
(4) The Court shall communicate through the Vice-
Chancellor to the Lord Rector such action, if any, as it
is proposed to take or has been taken upon the result of
such inspection or inquiry.
(5) Where the Court does not, within reasonable time,
take action to the satisfaction of the Lord Rector, the Lord
Rector may, after considering any explanation furnished
or representation made by the Court issue such directions
as he may think fit, and the Court shall comply with such
directions.”
49. Similarly, the authority and responsibility of the AMU Court was
stated under Section 23:
“23. (1) The Court shall consist of the Chancellor, the
Pro-Chancellor and the Vice Chancellor for the, time
being, and such other persons as may be specified in
the Statutes:
Provided that no person other than a Muslim shall be a
member thereof.
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(2) The Court shall be the supreme governing body of the
University and shall have the power to review the acts of
the Executive and the Academic Councils (save where such
Councils have acted in accordance with powers conferred
on them under this Act, the Statutes or the Ordinances)
and shall exercise all the powers of the University not
otherwise provided for by this Act, the Statutes and the
Ordinances and the Regulations.
(3) Subject to the provisions of this Act, the Court shall
exercise the following powers and perform the following
duties, namely:—
(a) of making Statutes and of amending or repealing the
same;
(b) of considering Ordinances;
(c) of considering and passing resolutions on the annual
report, the annual accounts and the financial estimates;
(d) of electing such persons to serve on the authorities of
the University and of appointing such officers as may be
prescribed by this Act or the Statutes; and
(e) of exercising such other powers and perform such
other duties as may be conferred or imposed upon it by
this Act or the Statutes.”
50. The Executive Council, under Section 24, was touted to be the
executive body of the University. With its constitution, term of office
of members and powers and duties prescribed by the AMU Statutes.
Similarly, the Academic Council, being the academic body of AMU,
would have the control and general regulation and be responsible for
the maintenance of standards of instruction and for the education,
examination, discipline and health of students, apart from the
conferment of degrees.
51. The power to make the AMU Statutes was set out in the following
manner under Section 27:
“27. Subject to the provisions of this Act, the Statutes may
provide for all or any of the following matters, namely: -
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(a) The conferment of honorary degrees and the
appointment of Patrons, Vice-patrons and Rectors;
(b) The institution of Fellowships, Scholarships, Exhibitions,
Medals and Prizes;
(c) The terms of office, and the method and conditions of
appointment of the officers of the University;
(d) The designations and powers of officers of the
University;
(e) The constitution, powers and duties of the authorities
of the University;
(f) The classification and mode of appointment of teachers
of the University;
(g) The institution and maintenance of Halls;
(h) The constitution of Provident and Pension Funds for
the benefit of the officers, teachers and servants of the
University;
(i) The maintenance of a register of registered graduates;
(j) The instruction of Muslim students in the Muslim religion
and theology;
(k) The establishment of Intermediate colleges and schools;
and
(l) All matters which by this Act are to be or may be
prescribed by Statutes.”
52. In similar parlance, the power to make Ordinances was incorporated
within Section 29:
“29. Subject to the provisions of this Act and the Statutes,
the Ordinances may provide for all or any of the following
matters namely: -
(a) The courses of study to be laid down for all degrees,
diplomas and certificates of the University;
(b) The conditions of the award of fellowships, scholarships,
studentships, exhibitions, medals and prizes;
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(c) The conditions under which students may be admitted
to the degree or diploma courses and to the examinations
of the University and shall be eligible for degrees and
diplomas;
(d) The admission of students to the University;
(e) The terms of office and terms and management of
appointment and duties of Examining Bodies, Examiners,
and Moderators and the conduct of examinations;
(f) The conditions of residence of students of the University,
and the levying of fees for residence in Halls;
(g) The conditions under which women may be exempted
from attendance at lectures and tutorial classes;
(h) The fees to be charged for courses of study in the
University and for admission to the examinations, degrees,
and diplomas of the University;
(i) The maintenance of discipline among the students of
the University;
(j) The regulation and management of any Intermediate
colleges and schools maintained under Section 12; and
(k) All matters which by this Act or the Statutes are to be
or may be provided for by the Ordinances.”

C.2. Features of the 1951 Amendment Act
53. With the dawn of independence, the AMU Act was amended in 1951
through Act No. LXII of 1951 (1951 Amendment Act). A significant
change was the replacement of the Lord Rector, previously held by
the Governor General, with the position of ‘Visitor’.At that time,the term
‘Governor General’ had pertinently been substituted by ‘President of
India’ vide the Adaptation of Laws Order, 1950. Section 13 delineated
the authority of the Visitor, and was thus amended as follows:
“13. (1) The President of India shall be the Visitor of the
University.
(2) The Visitor shall have the right to cause an inspection
to be made by such person or persons as he may direct,
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of the University, its buildings, laboratories, and equipment,
and of any institution maintained by the University, and also
of the examinations, teaching and other work conducted
or done by the University, and to cause an inquiry to be
made in like manner in respect of any matter connected
with the University.
(2A) The Visitor shall in every case give notice to University
of his intention to cause an inspection or inquiry to be made,
and the University be entitled to appoint representative
who shall have the right to be present and be heard at
such inspection or inquiry.; and
(3) The Visitor may address the Vice-Chancellor with
reference to the result of such inspection and inquiry, and the
Vice-Chancellor shall communicate to the Executive Council
the views of the Visitor with such advice as the Visitor may
be pleased to offer upon the action to be taken thereon.
(4) The Executive Council shall communicate through the
Vice-Chancellor to the Visitors such action, if any, as it
is proposed to take or has been taken upon the result of
such inspection or inquiry.
(5) Where the Executive Council does not, within
reasonable time, take action to the satisfaction of the
Visitor, the Visitor may, after considering any explanation
furnished or representation made by the Executive Council
issue such directions as he may think fit, and the Executive
Council shall comply with such directions.
(6) Without prejudice to the foregoing provisions section,
the Visitor may, by order in writing, annul any proceeding
of the University which is not in conformity with this Act,
the Statutes or the Ordinances: Provided that before
making any such order, shall call upon the University
to show cause why such an order should not be made,
and, if any cause is shown within a reasonable time, shall
consider the same.”
54. The AMU Court under Section 23 embodied the following:
“23. (1) The Court shall consist of the Chancellor, the
Pro-Chancellor and the Vice Chancellor and the Pro-Vice
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Chancellor (if any) for the, time being, and such other
persons as may be specified in the Statutes.
(2) The Court shall be the supreme governing body of the
University and shall have the power to review the acts of
the Executive and the Academic Councils (save where such
Councils have acted in accordance with powers conferred
on them under this Act, the Statutes or the Ordinances)
and shall exercise all the powers of the University not
otherwise provided for by this Act, the Statutes and the
Ordinances and the Regulations.
(3) Subject to the provisions of this Act, the Court shall
exercise the following powers and perform the following
duties, namely:—
(a) of making Statutes and of amending or repealing the
same;
(b) of considering Ordinances;
(c) of considering and passing resolutions on the annual
report, the annual accounts and the financial estimates;
(d) of electing such persons to serve on the authorities of
the University and of appointing such officers as may be
prescribed by this Act or the Statutes; and
(e) of exercising such other powers and perform such
other duties as may be conferred or imposed upon it by
this Act or the Statutes.”
55. It would be relevant to also note the amendment made to Statute
making power under Section 27:
“27. Subject to the provisions of this Act, the Statutes may
provide for all or any of the following matters, namely:
(a) the constitution, powers and duties of the authorities
of the University;
(b) the election and continuance in office of the members
of the said authorities, including the continuance in office
the filling of vacancies of members, and all other matters
relative to those authorities for which it may be necessary
or desirable to provide;
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Aligarh Muslim University v. Naresh Agarwal & Ors.

(c) the appointment, powers, and duties of the officers of
the University;
(d) the constitution of a pension or provident fund and the
establishment of an insurance scheme for the benefit of the
officers, teachers and other employees of the University;
(e) the conferment of honorary degrees;
(f) the institution of fellowships, scholarships, studentships
exhibitions, medals and prizes;
(g) the withdrawal of degrees, diplomas, certificates and
other academic distinctions;
(h) the establishment and abolition of Faculties,
Departments, Halls, Colleges and other institutions;
(i) the conditions under which Colleges and institutions.
may be admitted to privileges of the University and for the
withdrawal of such privileges;
(j) the establishment of High Schools and other institutions
in accordance with the provisions of section 12; and
all other matters which by this Act are to be or may be
provided by the Statutes.”
56. Similar amendment was carried out to the Ordinance making power
under Section 29, which was to the following effect:
“29. (1) Subject to the provisions of this Act and the
Statutes, the Ordinances may provide for all or any of the
following matters, namely:
(a) the admission of students to the University and their
enrolment as such;
(b) the courses of study to be laid down for all degrees,
diplomas and certificates of the University:
(c) the award of degrees, diplomas, certificates and other
academic distinctions, the qualifications for the same
and the means to be taken relating to the granting and
obtaining of the same;
(d) the fees to be charged for courses of study in the
University and for admission to the examinations, degrees,
diplomas of the University; and
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(e) the conditions of the award of fellowships, scholarships,
studentships, exhibitions, medals and prizes;
(f) the conduct of examinations, including the terms of office
and manner of appointment and the duties of examining
bodies. examiners and moderators:
(g) the maintenance of discipline among the students of
the University:
(h) the conditions of residence of the students of the
University;
(i) the special arrangements, if any, which may be made for
the residence, discipline and teaching of women students
and the prescribing for them of special courses of studies;
(j) the giving of religious instruction;
(k) the emoluments and the terms and conditions of service
of teachers of the University;
(l) the maintenance of High Schools and other institutions
in accordance with the provisions of section 12;
(m) the supervision and inspection of Colleges and other
institutions admitted to the privileges of the University
under section 12A; and
(n) all other matters which by this Act or the Statutes, are
to be or may be provided for by the Ordinances.
(2) The Ordinances in force immediately before the
commencement. of the Aligarh Muslim University
(Amendment) Act, 1951, may be amended, repealed or
added to at any time by the Executive Council provided that-
(i) No ordinance shall be made affecting the conditions of
residence or discipline of students except after consultation
with the Academic Council;
(ii) No ordinance shall be made-
(a)affecting the admission or enrolment of students or
prescribing examinations to be recognised as equivalent
to the University examinations, or
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(b)affecting the conditions, mode of appointment or duties
of examiners or the conduct or standard of examinations
or any course of study, -
unless a draft of such Ordinance has been proposed by
the Academic Council.
(3) The Executive Council shall not have the power to
amend any draft proposed by the Academic Council
under the provisions of sub section (2) but may reject
the proposal or return the draft to the Academic Council
for reconsideration, either in whole or in part together
with any amendments which the Executive Council may
suggest.
(4) Where the Executive Council has rejected the draft
of Ordinance proposed by the Academic Council, the
Academic Council may appeal to the Central Government
and the Central Government may, by order, direct that
the proposed Ordinance shall be laid before the next
meeting of the Court for its approval and that pending
such approval it shall have effect from such date as may
be specified in the order:
Provided that if the Ordinance is not approved by the Court
at such meeting, it shall cease to have effect.
(5) All Ordinances made by the Executive Council shall be
submitted as soon as may be, to the Visitor and the court,
and shall be considered by the Court at its next meeting
and the Court shall have power, by a resolution passed
by a majority of not less than two-thirds of the members
voting, to cancel any Ordinance made by the Executive
Council, and such Ordinance shall, from the date of such
resolution. cease to have effect,
(6) The Visitor may, by order, direct that the operation
of any Ordinance shall be suspended until he has had
an opportunity of exercising his powers of disallowance,
and any order of suspension under this sub-section shall
cease to have effect on the expiration of one month from
the date of such order or on the expiration of fifteen. days
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from the date of consideration of the Ordinance by the
Court, whichever period expires later.
(7) The Visitor may, at any time after an Ordinance has
been considered by the Court, signify to the Executive
Council his dis-allowance of such Ordinance, and from
the date of receipt by the Executive Council of intimation
of such disallowance, such Ordinance shall cease to have
effect.”

C.3. Features of the 1965 Amendment Act
57. The Act was further amended by the Act No. 19 of 1965 (1965
Amendment Act). Most significantly, it revised the powers of the
Court. Section 23 was accordingly amended as follows:
“23. (1) The Court shall consist of the Chancellor, the Pro-
Chancellor and such other persons as may be specified
in the Statutes:
(2) The functions of the Court shall be-
(a) to advise the Visitor in respect of any matter which
may be referred to the Court for advise;
(b) to advise any other authority of the University in respect
of any matter;
(c) to perform other such duties and exercise such other
powers as may be assigned to it by the Visitor or under
this Act.”
58. Further, Section 28 was amended in terms of a shift in Statute
making power:
“286. (1) The first Statutes are those set out in the Schedule.
(2) The Executive Council may make new or additional
Statutes or may amend or repeal the Statutes; but
every new Statute or addition to the Statutes or any
amendment or repeal of a Statute shall require the
previous approval of the Visitor who may sanction or
disallow it or return it to the Executive Council for further
consideration.”
[2024] 11 S.C.R. 1789

Aligarh Muslim University v. Naresh Agarwal & Ors.

59. Having now outlined the legal history of the AMU Act, 1920 as
amended till 1965 and the sequence of relevant events, we now
turn to the verdict rendered by the five-judge Constitution Bench in
Azeez Basha (supra), which constitutes the sine qua non of the
present reference.

D. Challenge to the constitutionality of the 1951 and 1965
Amendment Acts
60. Shortly after the amendment in 1965, the constitutionality of the 1951
and 1965 Amendment Acts was challenged before this Court, which
led to the decision in Azeez Basha (supra). The constitutionality of
these statutory enactments was primarily examined on the anvil of
Article 30 of the Constitution of India, to determine whether AMU
could fulfil the litmus test of being a minority educational institution.

D.1. Contentions proffered by the parties therein

D.1.1. Contentions of the Petitioners
61. Briefly, the Petitioners in Azeez Basha (supra) contended that:
a. AMU was established by the Muslim minority and therefore,
the Muslims had the right to administer it. Insofar as the 1951
and 1965 Amendment Acts take away or abridge any part of
that right, they are ultra vires Article 30(1).
b. Article 26 would not apply to educational institutions for there is
a specific provision in Article 30(1) with respect to educational
institutions and therefore, institutions for charitable purposes in
Article 26 (a) refer to institutions other than educational ones.
c. Article 14 of the Constitution was violated because the terms
of the Act establishing Benares Hindu University (BHU) were
not the same as the terms of the AMU Act, 1920. Further,
other universities, such as Delhi, Agra, Allahabad, Patna, and
Benares, have a certain elective element, unlike AMU.
d. Article 19 of the Constitution was violated because the 1965
Amendment Act deprived Muslims of their right to manage
AMU and of the right to hold the property vested in AMU by
the AMU Act, 1920.
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e. Vide the 1965 Amendment Act, the Muslim minority was deprived
of their property, under Article 31(1), as the composition of the
Court was changed from the terms of the 1920 Act.
f. The 1951 and 1965 Amendment Acts violated Articles 25 and
29 of the Constitution.

D.1.2. Contentions of the Respondents
62. Conversely, the Respondents submitted that:
a. AMU was established in 1920 by the AMU Act, 1920 and
this establishment was not by the Muslim minority, but by the
Government of India (GoI) by virtue of a Statute. Thus, the
Muslim minority could not claim any Fundamental Right to
administer AMU under Article 30(1).
b. Since AMU was established by the GoI, the Parliament had
the right to amend that Statute as it thought fit. There was no
question of taking away the right to administer under the 1951
and 1965 Amendment Acts, as the Muslim minority never had
the right of administration.
c. Though the Court of AMU was to be composed entirely of
Muslims, under the AMU Act, 1920, they were not given the
right to administer the university. It was to be administered by
the authorities established under the AMU Act, 1920.

D.2. Issues formulated
63. While this Court in Azeez Basha (supra) did not explicitly outline
the issues, a plain reading of the decision reveals the following key
issues that were broadly addressed:
a. Whether a ‘university’ established prior to the Constitution
coming into force could be construed to be an educational
institution included within the ambit of Article 30?
b. What is the meaning of the term ‘establish’ in Article 30 and
whether AMU was established by the Muslim minority?
c. Whether AMU was administered by Muslims?
d. Whether the 1951 and 1965 Amendment Acts were violative of
other Articles contained in Part III of the Constitution?
[2024] 11 S.C.R. 1791

Aligarh Muslim University v. Naresh Agarwal & Ors.

D.3. Key holdings in Azeez Basha (supra)
64. In the decision of Azeez Basha (supra), the Constitution Bench
adjudicated that AMU was not a minority institution for the purposes
of Article 30(1) of the Indian Constitution. Since the conclusion of
this case forms the bedrock of the present challenge, it is essential
to discuss the key holdings of this judgment.
65. In this regard, the Court held that to be a minority institution under
Article 30, such an institution must have been both established and
administered by the minority community. In other words, it noted that
the test provided under Article 30 is conjunctive, and an institution
cannot enjoy autonomy to such an extent unless it satisfies both the
prongs of establishment as well as administration by the minority
community. This Court thus opined that:
“19. […] The Article in our opinion clearly shows that
the minority will have the right to administer educational
institutions of their choice provided they have established
them, but not otherwise. The article cannot be read, to
mean that even if the educational institution has been
established by somebody else, any religious minority would
have the right to administer it because, for some reason
or other, it might have been administering it before the
Constitution came into force. The words “establish and
administer” in the article must be read conjunctively and
so read it gives the right to the minority to administer an
educational institution provided it has been established
by it […]”
66. Having held so, this Court then proceeded to analyze each issue
separately.

D.3.1 Whether universities established pre-Constitution could be
included within the ambit of Article 30?
67. This Court in Azeez Basha (supra) firstly observed that the term
‘educational institution’ in the Constitution had a wide expanse,
and that universities, which would be institutions that could confer
degrees, would be covered under the wide import of this term.
It further observed that though some private universities in pre-
Constitution India did not have government recognition, this would
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not disentitle them from being covered under the category of an
‘educational institution’.
68. Further, relying on the decision in In re the Kerala Education Bill,58
it held that if Article 30 were to be interpreted such that it covered
only educational institutions established after the coming into force
of the Constitution, it would rob Article 30 of its very meaning. In
this vein, it held as follows:
“19. … The words “establish and administer” in the article
must be read conjunctively and so read it gives the right
to the minority to administer an educational institution
provided it has been established by it. In this connection
our attention was drawn to In re; The Kerala Education
Bill, 1957 where, it is argued, this Court had held that the
minority can administer an educational institution even
though it might not have established it. In that case an
argument was raised that under Article 30(1) protection
was given only to educational institutions established
after the Constitution came into force. That argument
was turned down by this Court for the obvious reason
that if that interpretation was given to Article 30(1) it
would be robbed of much of its content. … It is true that
at p. 1062 the Court spoke of Article 30(1) giving two rights
to a minority i.e. (i) to establish and (ii) to administer. But
that was said only in the context of meeting [t]he argument
that educational institutions established by minorities before
the Constitution came into force did not have the protection
of Article 30(1). We are of opinion that nothing in that case
justifies the contention raised of behalf of the petitioners
that the minorities would have the right to administer an
educational institution even though the institution may not
have been established by them. …”
[Emphasis supplied]

D.3.2 What is the meaning of the term ‘establish’ and whether AMU
was ‘established’ by the Muslim community?

58 In re the Kerala Education Bill, 1957,1958 SCR 995.
[2024] 11 S.C.R. 1793

Aligarh Muslim University v. Naresh Agarwal & Ors.

69. The Court in Azeez Basha (supra) interpreted the term ‘establish’
in Article 30 to mean ‘to bring into existence.’ To determine whether
AMU was established by the Muslim community, the Court examined
the legal framework for the establishment of a university. It was
found that prior to independence, a private individual could create a
university independently, with State intervention only required for the
purposes of recognition of the degree conferred. In this context, it
observed that though Muslims had the option to establish a university
without any state involvement, they opted for State intervention to
secure degree recognition. Consequently, this Court concluded that
AMU was established vide the AMU Act, 1920, which was enacted by
the then Parliament. It therefore held that AMU was established by
an act of the Central Legislature and not by the Muslim community:
“22. There was nothing in 1920 to prevent the Muslim
minority, if it so chose, to establish a university; but if it
did so the degrees of such a university were not bound
to be recognised by Government. It may be that in the
absence of recognition of the degrees granted by a
university, it may not have attracted many students, and
that is why we find that before the Constitution came into
force, most of the universities in India were established
by legislation. […] It is clear therefore that even though
the Muslim minority could have established at Aligarh in
1920 a university, it could not insist that degrees granted
by such a university should be recognised by Government.
Therefore, when the Aligarh University was established
in 1920 and by Section 6 its degrees were recognised
by Government, an institution was brought into existence
which could not be brought into existence by any private
individual or body for such individual or body could not
insist upon the recognition of the degrees conferred by
any university established by it. The enactment of Section
6 in the 1920. Act is a very important circumstance which
shows that the Aligarh University when it came to be
established in 1920 was not established by the Muslim
minority, for the minority could not insist on the recognition
by Government of the degrees conferred by any university
established by it.”
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“26. […] But if the M.A.O. College was to be converted
into a university of the kind whose degrees were bound
to be recognised by Government, it would not be possible
for those who were in-charge of the M.A.O. College to do
so. That is why the three institutions to which we have
already referred approached the Government to bring into
existence a university whose degrees would be recognised
by Government. The 1920 Act was then passed by the
Central Legislature and the university of the type that was
established thereunder, namely, one whose degrees would
be recognised by Government, came to be established.
It was clearly brought into existence by the 1920 Act
for it could not have been brought into existence
otherwise. It was thus the Central Legislature which
brought into existence the Aligarh University and
must be held to have established it. It would not be
possible for the Muslim minority to establish a university of
the kind whose degrees were bound to be recognised by
Government and therefore it must be held that the Aligarh
University was brought into existence by the Central
Legislature and the Government of India. If that is so,
the Muslim minority cannot claim to administer it, for
it was not brought into existence by it. […]”
[Emphasis supplied]

D.3.3 Whether AMU was ‘administered’ by the Muslim community?
70. This Court in Azeez Basha (supra) then examined the AMU Act,
1920 in greater detail and determined that the Act did not grant
administrative control of the University to the Muslim community.
It observed that members of the AMU Court were elected by
individuals who made donations exceeding INR 500, a category
which included non-Muslims as well. Furthermore, the Lord Rector,
who was the Governor-General, held overriding powers concerning
administrative matters. Additionally, various bodies, such as the
Executive Council and the Academic Council, possessed significant
authority over the University’s affairs. Based on this analysis, the
Court concluded that AMU did not meet the administrative criteria
required by Article 30 and, therefore could not be recognized as a
minority institution:
[2024] 11 S.C.R. 1795

Aligarh Muslim University v. Naresh Agarwal & Ors.

“28. It appears from para 8 of the Schedule that even
though the members of the Court had to be Muslims,
the electorates were not exclusively Muslims. For
example, sixty members of the Court had to be elected
by persons who had made or would make donations
of five hundred rupees and upwards to or for the
purposes of the University. Some of these persons were
and could be non-Muslims. Forty persons were to be
elected by the Registered Graduates of the University,
and some of the Registered Graduates were and could be
non-Muslims, for the University was open to all persons of
either sex and of whatever race, creed or class. Further
fifteen members of the Court were to be elected by the
Academic Council, the membership of which was not
confined only to Muslims.”
“29. Besides there were other bodies like the Executive
Council and the Academic Council which were concerned
with the administration of the Aligarh University and there
was no provision in the constitution of these bodies which
confined their members only to Muslims. It will thus be
seen that besides the fact that the members of the
Court had to be all Muslims, there was nothing in the
Act to suggest that the administration of the Aligarh
University was in the Muslim minority as such. Besides
the above, we have already referred to Section 13 which
showed how the Lord Rector, namely, the Governor-
General had overriding powers over all matters relating
to the administration of the University. Then there was
Section 14 which gave certain over-riding powers to the
Visiting Board. The Lord Rector was then the Viceroy
and the Visiting Board consisted of the Governor of
the United Provinces, the members of his Executive
Council, the Ministers, one member nominated by
the Governor and one member nominated by the
Minister in charge of Education. These people were
not necessarily Muslims and they had overriding
powers over the administration of the University. Then
reference may be made to Section 28(2)(c) which laid
down that no new statute or amendment or repeal of an
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existing statute, made by the University, would have any
validity until it had been approved by the Governor-General-
in-Council who had power to sanction, disallow or remit
it for further consideration. Same powers existed in the
Governor-General-in-Council with respect to ordinances.
Lastly reference may be made to Section 40, which gave
power to the Governor-General-in-Council to remove any
difficulty which might arise in the establishment of the
University. These provisions in our opinion clearly
show that the administration was also not vested in
the Muslim minority; on the other hand it was vested
in the statutory bodies created by the 1920 Act, and
only in one of them, namely, the Court, there was
a bar to the appointment of any one else except a
Muslim, though even there some of the electors for
some of the members included non-Muslims. We are
therefore of opinion that the Aligarh University was
neither established nor administered by the Muslim
minority and therefore there is no question of any
amendment to the 1920 Act being unconstitutional
under Article 30(1) for that Article does not apply at
all to the Aligarh University.”
[Emphasis supplied]

D.3.4 Whether any other Articles of Part III were violated?
71. This Court analysed the 1951 and 1965 Amendment Acts in
consonance with other Articles enshrined in Part III of the Constitution,
and arrived at the following conclusions:
a. Article 26(a) also bestows the right to ‘establish and maintain’.
However, since AMU was not established by the minority, the
right to maintain does not arise.
b. Article 26(c) and (d) provides the right to acquire and keep
assets. However, the assets of AMU vest in the University and
not in the Muslim minority, following the passing of the AMU
Act, 1920.
c. Articles 25 and 29 are not affected in any manner by either of
the Amendment Acts.
[2024] 11 S.C.R. 1797

Aligarh Muslim University v. Naresh Agarwal & Ors.

d. Article 14 of the Constitution is not violated as there exists
a difference in the administrative structure of one university
when compared with another. This cannot be construed to be
discriminative and is a matter of legislative policy.
e. The right to form associations as espoused under Article 19 is
not affected by the Amendment Acts.
f. Article 31(1) is also not violated, since the property vested in
AMU is not the property of the Muslim minority. It was voluntarily
vested in AMU by MAO College and the Muslim University
Association. The money of the Muslim University Foundation
Committee was also voluntarily surrendered to the Government
to facilitate the establishment of AMU through the AMU Act,
1920. Thus, at the time of coming into force of the Constitution,
no right of the Muslim minority existed in property vested with
AMU, and it cannot be said that the Amendments deprived the
Muslim minority of the same.

E. History of discordance with Azeez Basha
72. Having analysed Azeez Basha (supra), it is imperative to also take
into account the decisions proffered by this Court in other relevant
cases to holistically understand the background of the reference
before this Court. Post the decision in Azeez Basha (supra) came
the 1972 Amendment Act vide Act No. 34 of 1972 (1972 Amendment
Act), introducing several significant changes.
73. Thereupon, the first discordant note was struck by a two-judge bench
of this Court in Anjuman-e-Rahmaniya v. District Inspector of
Schools.59 That was a case where this Court was considering the
minority status of an institution established by a society registered
under the Societies Registrations Act, 1860. The question raised
therein pertained to whether such registration would be determinative
against the minority status of this institution. In this regard, this Court
broadly formulated the following two issues for adjudication:
i. Whether Article 30(1) of the Constitution envisages an institution
which is established by minorities alone without the participation
for the factum of establishment from any other community?

59 Anjuman-e-Rahmaniya v. District Inspector of Schools, W.P.(C) No. 54-57 of 1981.
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ii. Whether soon after the establishment of the institution if it is
registered as a society under the Societies Registration Act,
1860, its status as a minority institution changes in view of the
broad principles laid down in Azeez Basha (supra)?
74. The Court then doubted the correctness of Azeez Basha (supra)
and referred the case to the Chief Justice for placement before a
seven-judge bench, as several jurists including Mr. Seervai had
expressed their doubts on the correctness of the said decision. The
bench considered it appropriate, in a way, to direct constituting of a
larger bench to consider the entire aspect fully.
75. The issue pertaining to the correctness of such reference made by
the two-judge bench, has been dealt with greater detail in paragraphs
83 to 99 of this judgement. Almost immediately thereafter, came
the 1981 Amendment Act, through Act No. 62 of 1981 (1981
Amendment Act), which finalized the current framework of the
AMU Act and reversed some of the changes introduced by the
1972 Amendment Act.
76. Almost two decades after the reference in Anjuman (supra), came
the magnum opus decision of the eleven-judge bench of this Court
in TMA Pai (supra).In this case, the Court was tasked with analysing
the different facets of Article 30, including the extent of intervention
permissible by the State and the meaning of the term ‘minority’.
Notably, the Court framed a question similar to the reference in
Anjuman (supra) but held that the question is to be decided by a
regular bench:
“Q. 3. (a) What are the indicia for treating an educational
institution as a minority educational institution? Would
an institution be regarded as a minority educational
institution because it was established by a person(s)
belonging to a religious or linguistic minority or its being
administered by a person(s) belonging to a religious or
linguistic minority?
This question need not be answered by this Bench, it will
be dealt with by a regular Bench.”
[Emphasis supplied]
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77. Soon thereafter, vide an order dated 11.03.2003, a two-judge
bench finally disposed of the petitions that remained pending in
Anjuman (supra), with the broad directions that:
“These matters are covered by the decision of a Constitution
Bench of this Court in Writ Petition No. 317/1993-T.M.A.
Pai Foundation & Ors. Etc. Vs. State of Karnataka & Ors.
Etc. and connected batch decided on 3·1 11 October, 2002.
All statutory enactments, orders, schemes, regulations will
have to be brought in conformity with the decision of the
Constitution Bench of this court in T.M.A. Pai Foundation’s
case decided on 31.10.2002. As and when any problem
arises the same can be dealt with by an appropriate Forum
in an appropriate proceeding.
The Writ Petitions are disposed of according[ly].”
78. Hence, though Anjuman (supra) was disposed of, the correctness
of Azeez Basha (supra) was left to be answered. Ultimately, the
question of the minority status of AMU was raised again in the present
batch of appeals in the 2019 Reference Order, which arose out of a
challenge laid to different judgements rendered by the High Court of
Judicature at Allahabad,holding that in view of Azeez Basha (supra)
AMU is not a minority institution. A three-judge bench of this Court
therefore examined the trajectory of judicial decisions and noted
that the correctness of Azeez Basha (supra) remains undecided.
This Court also noted that apart from Azeez Basha (supra), two
other aspects required an authoritative pronouncement: (i) The
decision in Prof. Yashpal (supra), wherein this Court had held that
a private university can only be established by a separate Act or by
a compendious Act where the legislature specifically provides for the
establishment of the said university; and (ii) The 2010 Amendment of
the NCMEI Act, prior to which, the definition of minority educational
institutions excluded a university. However, the 2010 Amendment
thereafter deleted this exclusion. Accordingly, for an authoritative
pronouncement of these issues, the case was referred to the present
seven-judge bench of this Court. The relevant part of the 2019
Reference Order is extracted below:
“8. The said facts would show that the correctness of the
question arising from the decision of this Court in S. Azeez
Basha (supra) has remained undetermined.
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9. That apart, the decision of this Court in Prof. Yashpal
and another vs. State of Chhattisgarh and others2 and
the amendment of the National Commission for Minority
Educational Institutions Act, 2004 made in the year 2010
would also require an authoritative pronouncement on the
aforesaid question formulated, as set out above, besides
the correctness of the view expressed in the judgment
of this Court in S. Azeez Basha (supra) which has been
extracted above.
10. Ordinarily and in the normal course the judicial discipline
would require the Bench to seek a reference of this matter
by a Five Judges Bench. However, having regard to the
background, as stated above, when the precise question
was already referred to a Seven Judges Bench and was,
however, not answered, we are of the view that the present
question, set out above, should be referred to a Bench of
Hon’ble Seven Judges.
11. Consequently, and in the light of the above, place these
matters before the Hon’ble the Chief Justice of India on
the administrative side for appropriate orders.”
79. Having understood the background of the challenge and the reference
before this seven-judge bench, we shall now turn to the submissions
made by the parties in support of their stance on the matter.

II. Contentions of the parties

Appellant’s submissions:
80. Dr. Rajeev Dhavan, Mr. Kapil Sibal, Mr. Salman Khurshid, Mr. Nikhil
Nayyar, and Mr. Shadan Farasat, Learned Senior Advocates,
appeared for AMU. Their contentions are detailed hereinbelow:
a. In the context of Article 30,the term ‘minority’ means a community
that constitutes less than fifty percent of the population in the
State where the educational institution is situated. This standard
was laid down in TMA Pai (supra). Per this standard, Muslims
are a minority in the State of Uttar Pradesh. Moreover, the
status of Muslims as a minority was evident even before the
Constitution came into force, as they were already being afforded
reservation in legislative organs.
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b. To claim protection under Article 30, the minority community
is only required to prove that it established the institution.
The question of administration, on the other hand, is not
relevant in determining the minority character of an institution.
It is a right that flows once the institution is established as a
minority institution, thus making it a consequence and not a
pre-requisite. In other words, the test under Article 30 is not
conjunctive, and the claimant is not required to necessarily
prove that the institution was being administered by the
minority community.
c. The word ‘establish’ should be interpreted widely since it is the
only protection available to minorities. ‘Establishment’, under
Article 30, is the meeting of minds of the community for the
purpose of taking forward the idea that ultimately results in
the university being set up. Thus, the genesis of the institution
must be considered while examining the word ‘established.’
In contrast, the word ‘established’ used in the AMU Act, 1920
refers to recognition for incorporation and is not the same as
the term ‘establish’ used in Article 30.
d. The term ‘administration’ does not mean cent percent control
over the institution by the minority community. The State can
prescribe reasonable regulations for the management of minority
institutions. Administration merely requires overall control. The
minority community, in this regard, has the choice to ask others
to administer on their behalf.
e. Under Article 30, the term ‘establish’ requires the genesis of the
institution to be linked to the minority community. AMU meets
this criterion since it originated as MAO College, which was
established and administered by Muslims. The desire to convert
MAO College to AMU came from the Muslim community, having
gathered funds from the Muslim community. Further, AMU was
established with the desire of the Muslim community to have
their own university. Therefore, AMU can be said to have been
established by the Muslim community.
f. The establishment of AMU was an exercise completed by the
Muslim community, and the AMU Act, 1920 merely conferred
statutory recognition to such an establishment. It was not a
creation of the Statute but was rather an acknowledgement
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by a Statute. Merely because a university was incorporated
through State action cannot confer or take away from its nature,
as every juristic entity is a creation of State action.
g. The administration of AMU was also under the control of
Muslims. All members of the AMU Court were required to
be Muslims, and its powers were further strengthened by
the 1981 Amendment Act. The administration, which entails
overall control, remains with the Muslim community. Even if
it were determined that external members had administrative
roles, it would not jeopardize the university’s minority status.
This is because the Muslim community retains the right to
reclaim administrative control, as Fundamental Rights cannot
be waived.
h. Lastly, the Union of India (UOI) cannot be allowed to challenge
its own statutory enactment, i.e., 1981 Amendment Act. Such
a summersault in its stance cannot be permitted merely
because of a change in the political regime. Furthermore, the
UOI has not substantiated the reason for such a volte-face.
Thus, its approach lacks bona fides,and the UOI, particularly
the Attorney General for India, is obligated to defend such an
act of Parliament. Hence, it cannot take a stand against the
minority status of AMU.

Respondents’ submissions:
81. Mr. R. Venkataramani, Learned Attorney General for India, Mr.
Tushar Mehta, Learned Solicitor General of India, Mr. K. M. Nataraj
and Mr. Vikramjit Banerjee, Learned Additional Solicitor Generals
of India, Mr. Rakesh Dwivedi, Mr. N. K. Kaul, Mr. G. K. Kumar,
Mr. Vinay Navare, Mr. Sridhar Potaraju and Ms. Archana P. Dave
Learned Senior Advocates, appeared on behalf of the Respondents.
Their arguments are detailed hereinbelow:
a. A bench of two judges could not have directly referred the matter
to a bench composed of seven judges in Anjuman (supra) and
as such, the reference itself ought to be construed as bad in
law. Further, the reference only sought clarity on the definition
of a minority institution under Article 30 of the Constitution
and did not include examination of whether AMU is a minority
educational institution.
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b. Challenging the locus standi of the Appellant, it was argued
that Muslims do not constitute a minority community. For a
community to be a minority, it should not just be numerically less
than the majority but should also be politically non-dominant.
Per this test, Muslims were a numerically larger group than
the pre-independence dominant class, i.e., Christians. Hence,
Muslims do not have the locus to invoke Article 30. In any case,
the institutions that were formed prior to the coming of the
Constitution cannot claim minority status because there was no
such Fundamental Right when such institutions were created.
c. To claim protection under Article 30, the minority community
must prove that the institution was both established and is
being administered by the community. Merely proving that the
minority community established the institution is not enough to
claim the status of a minority institution.
d. The word ‘establish’ in Article 30 means bringing an institution
into existence. For this, the Court must see if the institution in its
legally operational form could have existed ‘but for’ the Statute.
If the Statute accorded legal operationalization to the institution,
the establishment would be attributed to the legislature and not
the minority community.
e. The de facto position of the minority’s role in administration
is irrelevant to determining administration by a minority. The
Court must see various relevant indicia of administrative control,
including who controls the decisions regarding admission, levy
of fees, governing council, the appointment of staff, disciplinary
powers, and ordinances and statutes.
f. The meaning of ‘establish’ in Article 30 is bringing an institution
into existence. AMU was brought into existence by the then
Central Legislature, through the AMU Act, 1920. The Constituent
Assembly Debates also do not expressly identify AMU as a
minority institution within the ambit of Article 30. This indicates
that the drafters intended to establish the university’s national
character. To this day, the UOI contributes over a thousand
crores to AMU, which has resulted in a complete metamorphosis
of the university. Finally, the Preamble to the AMU Act, 1920
reflects that AMU was brought into existence by the Act and
not by the Muslim community.
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g. The AMU Court only has residuary powers, not administrative
powers. There is no majority of Muslims in the AMU Court, as
only 32 out of 180 or more members are Muslims. Except for
the AMU Court, no other body or authority is required to be
Muslim. Moreover, various administrative functions are vested
with bodies such as the Executive and Academic Councils
and the Visitor, which are characteristically governmental or
external. Even if there are a few Muslim members present in
any of the bodies, it was simply an initiative by the State to instil
confidence in the community and to ensure their participatory
role without giving them any significant control. Hence, AMU is
not being administered by the Muslim community.
h. The contention that the Attorney General for India must
defend the 1981 Amendment Act is flawed, especially when
the same does not exist in the eyes of law—the same having
been struck down by the Allahabad High Court. Regardless,
the present dispute is not limited to inter se the parties, but
involves questions of constitutional interpretation and national
importance. Hence, the primary duty of the UOI is to assist
the Court and not to defend an amendment in the Act, which
is per se unconstitutional.

III. Issues for determination
82. Thus, in our considered opinion, the instant reference,based on
the question of the tests required to be fulfilled by an institution,
for seeking protection under Article 30 of the Constitution of India,
can be broken down into the following segmented questions of law
and fact:

Prefatory issues
I. What are the requisite parameters of reference to a larger bench?
What matters were intended to be addressed by the larger
bench, in Anjuman (supra);What are the facets required to be
considered by a regular bench for making a reference is made
to a larger bench; What are the powers entrusted to the Chief
Justice of India in such circumstances?
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II. Whether Appellant has the locus standi to bring the present
challenge?
It is essential to examine whether the Appellant can invoke
Article 30 in the first place. In this regard, various sub-issues that
may arise are: (a) Can Article 30 be invoked by institutions set
up before the Constitution?;(b) Is it necessary for the whole of
the minority community to file the claim, or can an individual or
group of individuals also bring a claim?; and (c) Would Muslims
be considered a ‘minority’?

Questions on constitutional interpretation
III. What are the tests to seek protection under Article 30 of the
Constitution?
It is necessary to examine the requirements that must be met
for claiming protection under Article 30. The relevant question
in this regard is whether the expressions ‘establishment’ and
‘administration’ should be read conjunctively or disjunctively?
IV. What is the meaning of the term ‘establish’ in Article 30?
Article 30 does not define the term ‘establish’. The pertinent
questions are: (a) What is the scope and meaning of this
term?; (b) Can a university be established without statutory
intervention? If not, whether the recognition of a university by a
Statute amounts to establishment by the Legislature? and (c) Is
there any conflict in the opinions of this Court in Azeez Basha
(supra) vis-à-vis Prof. Yashpal (supra) and the provisions of
the NCMEI Act?
V. What is the meaning of the term ‘administer’ in Article 30?
Akin to the term ‘establish’, the term ‘administer’ is also not
defined. It is necessary to understand its meaning, along with its
scope. In other words, the question is whether the presence of
members of the non-minority community within the management
would necessarily mean that the minority community is not
administering the institution?
VI. Whether AMU satisfies the test of ‘establish’ and ‘administer’
and is thus entitled to the protection under Article 30?
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VII. Whether the Union of India is obligated to defend the AMU
Amendment Act, 1981?

IV. Analysis

Prefatory Issues

F. Issue I: What are the requisite parameters of reference to
a larger bench?
83. The issue concerning the power of a regular bench to refer a matter
to a larger bench must be examined in light of the order passed in
Anjuman (supra), which opined that Azeez Basha (supra) required
reconsideration by a larger bench and proceeded to refer it to a seven-
judge bench. To this end, the Respondents have vehemently contended
that such reference was bad in law and should be declared so.
84. In this vein, we have identified two key aspects of this issue: (i) what
were the issues identified in Anjuman (supra) which were intended
for the larger bench to address; and (ii) whether the manner of
making such a reference was legally sound.

F.1. Issues that were intended to be addressed by the larger
bench
85. At the outset, it is crucial to determine whether the bench in Anjuman
(supra) intended to restrict the reference in such a way that the
seven-judge bench would only analyse the criteria necessary for
an institution to qualify as a minority institution under Article 30
of the Constitution. For the sake of clarity and despite the risk of
repetition, we find it essential to put forth the relevant extract from
the observations made in Anjuman (supra):
“After hearing counsel for the Parties, we are clearly
of the opinion that this case involves two substantial
questions regarding the interpretation of Article 30(1)
of the Constitution of India. The present institution was
founded in the year 1938 and registered under the Societies
Registration Act in the year 1940. The documents relating
to the time when the institution was founded clearly
shows that while the institution was established mainly
by the Muslim community but there were members 5
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from the non-Muslim community also who participated
in the establishment process. The point that arises is as
to whether Act. 30(1) of the Constitution envisages an
institution which is established by minorities alone without
the participation for the factum of establishment from any
other community. On this point, there is no clear decision
of this court. There are some observations in S. Azeez
Basha & ors. Vs. Union of India 1968(1) SCR 333, but
these observations can be explained away: Another point
that arises is whether soon after the establishment of the
institution if it is registered as a Society under the Society
Registration Act, its status as a minority institution changes
in view of the broad principles laid down in S. Azeez
Basha’s case. Even as it is several jurists including Mr.
Seervai have expressed about the correctness of the
decision of this court in S. Azeez Basha’s case. Since
the point has arisen in this case we think that this is
a proper occasion when a larger bench can consider
the entire aspect fully. We, therefore, direct that this
case may be placed before Hon. The Chief Justice for
being heard by a bench of at least 7 judges so that S.
Azeez Basha’s case may also be considered and the
points that arise in this case directly as to the essential
conditions or ingredients of the minority institution
may also be decided once for all. A large number
of. jurists including Mr. Seervai, learned counsel for the
petitioners Mr. Garg and learned counsel for respondents
and interveners Mr. Dikshit and Kaskar have stated that
this case requires reconsideration. In view of the urgency
it is necessary that the matter should be decided as early
as possible we give liberty to the counsel for parties to
mention the matter before Chief Justice.”
[Emphasis supplied]

86. A plain reading of these observations reveals that the two-judge
bench in Anjuman (supra) doubted the correctness of the decision
in Azeez Basha (supra) and the principles enunciated therein. The
bench while questioning the holding in Azeez Basha (supra), also
borrowed strength from the views expressed by some jurists.
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87. In Azeez Basha (supra), the issue pertained to the constitutional
validity of the AMU 1951 and 1965 Amendment Acts. While questioning
the correctness of the decision in Azeez Basha (supra), it is evident
that the reference in Anjuman (supra) also insinuated that potential
errors may have occurred in the analysis of the constitutionality of
those enactments. The reference seeking to re-open the issues settled
in Azeez Basha (supra), thus, necessarily means not only to re-
examine the correctness of that decision but also an attempt to revisit
the constitutionality of the AMU 1951 and 1965 Amendment Acts.
88. Importantly, the key term used in the reference order in Anjuman
(supra) is ‘and’, which is clearly used to state that both ‘Azeez
Basha’s case may also be considered’ and ‘the ingredients of a
minority institution’ should be examined definitively. Such an analysis
would also have to consider the question posed in TMA Pai (supra)
under 3(a) regarding the criteria required for an institution to qualify
as a ‘minority institution’ under Article 30 of the Constitution, and
consequently, as to whether, AMU fulfils such criteria or not.
89. We therefore find it difficult to align ourselves with the opinion
expressed by Hon’ble the Chief Justice, according to which the
reference before us was limited to determining only the criteria an
educational institution must meet under Article 30 of the Constitution.
However, given the Hon’ble Chief Justice’s decision to further refer
the matter pertaining to AMU to a regular bench, we have confined
our views to discerning the relevant indicia under Article 30, so as
to avoid binding or influencing the regular bench that will ultimately
decide the factual issues.

F.2. Manner of making reference to a larger bench
90. The two-judge bench in Anjuman (supra), after expressing doubt
about the correctness of Azeez Basha (supra) and its principles,
referred the matter for reconsideration to a larger bench. Additionally,
the bench in Anjuman (supra) specifically stated that the larger
bench reviewing Azeez Basha (supra)—a decision by a five-
judge bench—should consist of seven judges. The decision further
directed that the matter be placed before the Hon’ble Chief Justice
for appropriate directions.
91. Such a reference, to our mind, is not consistent with the established
norms of judicial propriety. There are several reasons which
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substantiate this school of thought. For instance, Order VII Rule 2
of the Supreme Court Rules, 1966 as applicable during the time of
the reference stated:
“Where in the course of the hearing of any cause, appeal
or other proceeding, the Bench considers that the matter
should be dealt with by a larger Bench, it shall refer
the matter to the Chief Justice, who shall thereupon
constitute such a Bench for the hearing of it.”
[Emphasis supplied]

92. In this regard, it is imperative to refer to the findings of the Constitution
Bench in Central Board of Dawoodi Bohra Community and another
v. State of Maharashtra and another,60 which while adjudicating
the correctness of previous decisions on the Bombay Prevention
of Excommunication Act (Act 42 of 1949), also laid down pertinent
principles on the procedure for making references. The decision
in Dawoodi Bohra (supra) essentially clarified the framework
concerning how a reference should be made, particularly when a
bench of lesser strength doubts the correctness of a decision by a
larger or co-equal bench. It held that:
“12. Having carefully considered the submissions made
by the learned senior counsel for the parties and having
examined the law laid down by the Constitution Benches
in the above said decisions, we would like to sum up the
legal position in the following terms :-
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot doubt the
correctness of the view of the law taken by a Bench of
larger quorum. In case of doubt all that the Bench of
lesser quorum can do is to invite the attention of the
Chief Justice and request for the matter being placed
for hearing before a Bench of larger quorum than the
Bench whose decision has come up for consideration.
It will be open only for a Bench of coequal strength to

60 (2005) 2 SCC 673.
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express an opinion doubting the correctness of the
view taken by the earlier Bench of coequal strength,
whereupon the matter may be placed for hearing before
a Bench consisting of a quorum larger than the one
which pronounced the decision laying down the law
the correctness of which is doubted.
(3) The above rules are subject to two exceptions:
(i) The above said rules do not bind the discretion of
the Chief Justice in whom vests the power of framing
the roster and who can direct any particular matter
to be placed for hearing before any particular Bench
of any strength; and
(ii) In spite of the rules laid down hereinabove, if the matter
has already come up for hearing before a Bench of larger
quorum and that Bench itself feels that the view of the law
taken by a Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way of exception
(and not as a rule) and for reasons given by it, it may proceed
to hear the case and examine the correctness of the previous
decision in question dispensing with the need of a specific
reference or the order of Chief Justice constituting the Bench
and such listing. Such was the situation in Raghubir Singh
and Ors. and Hansoli Devi and Ors. (supra)”
[Emphasis supplied]

93. The principles enunciated in Dawoodi Bohra (supra) re-enforce
the provisions of the Supreme Court Rules referred to earlier, and
also reiterate the well-established principles based upon doctrines
of predictability, consistency, finality and the principle of stare
decisis. The two-judge bench in Anjuman (supra), ought to have
understood and applied the law,consistent with these principles. The
two-judge bench in Anjuman (supra) being of lesser strength than
the five-judge bench in Azeez Basha (supra), lacked the authority
to explicitly question the correctness of Azeez Basha (supra) and
refer the matter to a seven-judge bench.
94. In Anjuman (supra), the bench not only referred the matter but also
specified the numerical strength of the bench to which it should be
referred, with a further direction that the matter be placed before the
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Chief Justice for the limited purpose of notifying the composition of
the seven-judge bench. With utmost respect at our command, we
do not appreciate as to how a two-judge bench could dictate its
viewpoint to the Chief Justice of India. This, to our mind, effectively
impaired the Chief Justice’s authority as the master of the roster.
Allowing such a practice would enable benches of lesser strength,
such as a two-judge bench, to undermine the decisions of larger
benches, potentially even an eleven-judge bench. This would also
place the Chief Justice in an untenable position, who would be bound
by a judicial order while acting in an administrative role, leading to
procedural complications and embarrassment.
95. We reiterate that such actions completely undermine the principle of
stare decisis, a well-established doctrine that mandates the consistent
application of legal principles once pronounced by authoritative
courts. This principle is rooted in the idea that once a court has
determined a rule applicable to a specific set of circumstances, it
should be followed in all future cases involving substantially similar
facts.61 Stare decisis et non quieta movere—which means to stand
by things decided and not disturb settled matters. Accordingly, the
importance of precedents and stare decisis as fundamental features
of our legal system requires that law laid down by higher courts be
followed by coordinate or co-equal benches, and most certainly by
smaller benches and subordinate courts.
96. The very purpose of these principles is to ensure predictability and
stability in judicial decisions, thereby upholding the Rule of Law. It
is trite law that when legal precedents are consistently followed, the
law remains stable and strengthened, rather than being disrupted at
every opportunity.62 Consistency and finality in judicial orders foster
greater confidence and trust in the judicial system, which is the
need of the hour. The mere fact that another interpretation may be
possible does not warrant unsettling well-established law that has
long governed the field.63 Deviation from these long-settled principles,
leads to a situation marred by uncertainty and instability, vitiating
any sense of finality.

61 Krishen Kumar v. Union of India (1990) 4 SCC 234.
62 State of Uttar Pradesh v. Ajay Kumar Sharma (2016) 15 SCC 292
63 Shanker Raju v. Union of India (2011) 2 SCC 132
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97. In this light, we respectfully disagree with the opinion of Hon’ble the
Chief Justice that the reference in Anjuman (supra) passes muster.
Such a reading risks opening the floodgates to further complexity
and disruption, where smaller benches could disregard established
principles and overturn decisions of larger benches. This would
erode the concept of well-settled principles and destabilize the legal
framework, as each judgment would strive to chart new directions,
undermining legal certainty and continuity. Ironically, the reference in
Anjuman (supra) strikes through the very core of Dawoodi Bohra
(supra) and the law laid therein.
98. We thus have no hesitation in holding that it is the Chief Justice of
India alone, who is the custodian of the authority to determine the
composition of benches, and, in public or national interest, place a
matter before any bench he deems appropriate, even in the absence
of any reference. That being so, the 2019 Reference Order issued by
a three-judge bench, which included the then Chief Justice of India,
cannot be faulted. Consequently, based on that order, we consider it
appropriate to proceed with the determination of some of the issues
concerning the constitutional challenge.
99. We also respectfully disagree with the opinion of Hon’ble the Chief
Justice in paragraph 39 of his draft judgement, according to which,
Anjuman (supra) has merely ‘doubted’ and not ‘disagreed’ with
Azeez Basha (supra). It seems to us that the terms ‘doubt’ and
‘disagree’ broadly carry similar connotations. It is difficult to doubt
a judicial opinion unless we disagree with the correctness of its
contents and substance. Similarly, a disagreement would originate
only when such opinion is shrouded with doubts on law or on facts.

G. Issue II: Whether the Appellant has the locus standi to
bring the present challenge?
100. The Respondents have countered the Appellant’s locus standi
to invoke Article 30. They have argued that there was no such
Fundamental Right available at the time when AMU was established. It
is their assertion that since Fundamental Rights are not retrospectively
applicable, and considering AMU was established before the
Constitution, it cannot claim protection under Article 30. In addition,
the Respondents have challenged the Appellant’s locus on the ground
that Muslims did not constitute a ‘minority’ in 1920.
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Aligarh Muslim University v. Naresh Agarwal & Ors.

101. The Appellant has controverted the Respondents’ objections by
arguing that even pre-Constitution institutions can invoke the right
under Article 30 and that Muslims did indeed constitute a minority in
the State of Uttar Pradesh at the relevant time because they were
numerically lesser when compared to other communities. Accordingly,
the Appellant contended that it has the locus standi to enforce the
right granted by Article 30.
102. These contentions thus merit a determination as to whether a claim
can be brought under Article 30 in the first place.

G.1. Locus of pre-Constitution institution
103. It is a settled principle of law that Fundamental Rights are not
retrospectively applicable.64 The Constitution of India was framed
in a social context that marked a significant departure from an
exacting colonial regime to a system based on rights and self-
governance. Hence, the legal milieu in these two regimes inevitably
differed, with the Constitution imposing more stringent restrictions
on governmental actions. Consequently, if the previous actions of
the colonial government were to be tested on the touchstone of the
Constitution, nearly all such acts would need to be overturned.
104. Such a wholesale invalidation of past actions would have far-reaching
consequences. It could undermine the stability of the legal system,
as people’s lives and rights—such as property rights, contractual
relationships, etc.—have been shaped by those earlier actions.
Hence, the social and economic disruption resulting from such a
scenario would be severe. Furthermore, the retrospective application
of Fundamental Rights could also lead to a legal quagmire, where
Courts would be crippled with cases in which relevant documents
and evidence might no longer be available. Moreover, such an
unscrambling of the egg might nearly be impossible in some instances,
such as cases of criminal convictions from decades ago.
105. The non-retrospective application of Fundamental Rights therefore
is a pragmatic principle aimed at ensuring effective governance in
society without being hindered by ghosts from the past.

64 Sushila Rao, “The Doctrine of Eclipse in Constitutional Law: A Critical Reappraisal of its Contemporary
Scope and Relevance” National Law School of India Review, (2006) Vol. 18 No. 1 pp. 49.
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106. At this point, it is essential to distinguish between retrospective
and retroactive laws. A retrospective law imposes new obligations
or rights on transactions that have already been completed. In
contrast, retroactive legislation applies to ongoing transactions,
affecting obligations that arise after the law’s enactment, even if
the transactions began beforehand.65 For example, if a law prohibits
houses from having more than two floors and requires existing
houses exceeding this limit to be demolished, it is retrospective. If
the law only affects houses under construction when it comes into
force, it is retroactive.
107. While the retrospectivity of Fundamental Rights is generally restricted,
their application on transactions that arose before and continued
post-1950 are not. The temporal boundary in the application of
Fundamental Rights prevents pre-Constitution violations from being
agitated, and it does not proscribe institutions created before the
Constitution to plead their rights post its enactment. If we were
to hold otherwise, it would lead to an untenable situation where a
significant portion of the population or institutions with a long history
would be excluded from the protection of Fundamental Rights simply
because they existed before 1950.
108. Similarly,practices prevailing before 1950 but prohibited afterwards
must be struck down if it does not align with the constitutional ethos.
The significance of 26.01.1950 lies in its role as a golden date for
eradicating unconstitutional practices and safeguarding the rights
guaranteed under Part III of the Constitution. It would then accordingly
follow that if an institution was established and administered by
minorities as on 26.01.1950, such an institution would be entitled
to seek protection under Article 30.
109. We cannot therefore accept the Respondent’s contention that the
Appellant’s claim should be disallowed merely because Article 30
did not exist at the time AMU was established. Applying such an
interpretation would be absurd and legally unjust. While certain
institutions might have been set up during the pre-Constitutional
era, the Court cannot turn a blind eye to their rights that are duly
protected by the Constitution.

65 SEBI v. Rajkumar Nagpal (2023) 8 SCC 274, para 98-102.
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110. In this regard and especially in the context of Article 30, we find
more than adequate support from a five-judge bench decision of this
Court in Right Rev. Bishop S.K. Patro v. State of Bihar,66 which
relied on the opinion proffered by the seven-judge bench in Kerala
Education Bill (supra) and held:
“7. […] The guarantee of protection under Article 30 is
not restricted to educational institutions established
after the Constitution: institutions which had been
established before the Constitution and continued to
be administered by minorities either based on religion
or language qualify for the protection of the right of
minorities declared by Article 30 of the Constitution.
In Re the Kerala Education Bill, 1957 [(1959) SCR 995]
Das, C.J., observed at p. 1051:
“There is no reason why the benefit of Article 30(1)
should be limited only to educational institutions
established after the commencement of the Constitution.
The language employed in Article 30(1) is wide enough
to cover both pre-constitution and post-constitution
institutions. It must not be overlooked that Article 30(1)
gives the minorities two rights, namely, (a) to establish,
and (b) to administer, educational institutions of their
choice. The second right clearly covers pre-constitution
schools just as Article 26 covers the right to maintain
pre-constitution religious institutions.”
[Emphasis supplied]

111. In conclusion, while Fundamental Rights cannot be applied
retrospectively to disrupt pre-constitutional practices, the Appellant
is not barred from asserting a claim under Article 30 as long as
the necessary conditions of this provision are met. Individuals or
institutions who qualify to be protected through a Fundamental Right
as of 26.01.1950 are entitled to enforce these rights under Article 32.
Therefore, the Appellant’s locus standi cannot be dismissed on this
basis.

66 Right Rev. Bishop S.K. Patrov. State of Bihar (1969) 1 SCC 863
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112. In addressing the issue of locus, two more key questions arise:
(i) whether a small group of individuals from a community can
bring a claim under Article 30, as opposed to requiring the entire
community to assert the claim collectively?; and (ii) whether the
Muslim community in the present case were presumed to be a
‘minority’ at the time AMU was established? Each of these points
are analysed separately below.

G.2. Locus of individuals from the minority community
113. The Respondents have countered the Appellant’s locus on the
ground that they cannot plead the right under Article 30 since they
are not the representative of the entire Muslim community. Hence,
it is essential to analyse whether Article 30 can be invoked by a few
individuals of the minority community.
114. Under the Indian Constitution, the framework of rights can be broadly
divided into three classes based on who holds the right and who
can exercise it:
a. The first category, known as ‘individual rights’, encompasses
rights available to all individuals and can be claimed by them.
An example of such a right is the right to privacy, which pertains
to all individuals and can be asserted by any individual.
b. The second category, termed ‘group rights’ in India, consists
of rights available to individuals,provided they belong to a
specified group. An example of such a right could be the right of
reservation provided to individuals belonging to certain classes.
In this regard, this Court has held:
“407. Unless the creamy layer is removed, OBCs cannot
exercise their group rights. The Union of India and other
respondents argued that creamy layer exclusion is wrong
because the text of the Ninety-third Amendment bestows
a benefit on “classes”, not individuals. While it is a group
right, the group must contain only those individuals
that belong to the group. I first take the entire lot of
creamy and non-creamy layer OBCs. I then remove the
creamy layer on an individual basis based on their income,
property holdings, occupation, etc. What is left is a group
that meets constitutional muster. It is a group right that
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must also belong to individuals, if the right is to have
any meaning. If one OBC candidate is denied special
provisions that he should have received by law, it is
not the group’s responsibility to bring a claim. He
would be the one to do so. He has a right of action
to challenge the ruling that excluded him from the
special provisions afforded to OBCs. In this sense,
he has an individual right. Group and individual rights
need not be mutually exclusive. In this case, it is not
one or the other but both that apply to the impugned
legislation.” 67
[Emphasis supplied]

As elucidated in the extract above, such group rights are
possessed by an individual, and such individual can assert their
claim to exercise these rights. The individual does not need
to demonstrate that the group as a whole is affected and may
exercise such rights in their singular capacity.
c. The third category, which we would like to refer to as collective
rights, includes rights that belong to groups as a whole and can
only be exercised by those groups collectively. An example of
such a right could be the right of a country to vote in the UN
General Assembly.68 Such rights belong to the entire nation
as a community and are not contingent on whether individual
citizens of the nation are individually exercising this right.
Another example of such a category is the right of a country
to be free from intervention by other countries, which also
belongs to and is to be exercised by the nation as a whole.69
Unlike the previous two categories, the bearer of these rights
is a collective unit and not individual constituents. Accordingly,
the right can be claimed by the community at large or by an
individual representing the entire community.
115. Based on the foregoing discussion, we believe that the right
ensconced under Article 30 belongs to the second category, namely,

67 Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, para 407.
68 Charter of United Nations (signed on 26 June, 1945) Art. 27.
69 Lukas Meyer et. Al. (ed.), Rights, Culture, and the Law, Oxford University Press (2003) pp. 181.
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it is granted to a minority community at large but can be exercised
by an individual or a group of individuals. This right does not fit into
the first category because Article 30 specifically aims to uplift and
protect certain minority communities, making membership in such a
community a necessary pre-condition. At the same time, however,
it is also distinct from the third category because the protection
envisaged in Article 30 is toward individuals belonging to such a
community and not the entire community as one single entity. Thus,
while the right exists for the benefit of the whole community, it can be
exercised qua its individual members rather than requiring collective
action by the whole community.70
116. Having said that, it is important to emphasize that the technical
issue of who can invoke Article 30 should not be used to oust the
claim at the threshold. Procedure, ultimately, is the handmaiden of
justice. This is especially true for contentions regarding locus and
who can invoke a particular provision, especially when there is public
interest at stake. Unless there is a risk of collusion between the
parties or the Court believes that the interest of all the stakeholders
might not be adequately represented and there might be some
‘invisible victims’, the Court typically refrains from scrutinizing who
has invoked the constitutional provision and whether the claimant
represents the entire community. Constitutional Courts are envisaged
as liberal platforms where vital questions regarding the violation of
Fundamental Rights can be analysed without being bogged down
by procedural technicalities. In that sense, the substance of the
claim usually takes precedence over its form, instead of the form
foreclosing the substance at the very outset.
117. The locus standi of the Appellant is thus not undermined on this
count as well.

G.3. What is a ‘minority’ community?
118. Since during the course of hearing, or otherwise, the Respondents
have not provided any reliable figures or substantial evidence to
counter the Appellant’s position, it appears that it is not necessary
to determine this issue at this stage, when only legal issues are
being resolved.

70 Right Rev. Bishop S.K. Patro,supra note 66.
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119. Having answered the prefatory issues of locus and maintainability,
we now proceed to delve into the contours of Article 30 of the
Constitution and make an endeavor to explain the true meaning of
the expressions ‘establish’ and ‘administer’.

Questions regarding constitutional interpretation

H. Issue III: What are the tests to seek protection under Article
30?
120. When posed with the question of whether the prongs of ‘establishment’
and ‘administration’ ought to be construed conjunctively or disjunctively
in determining whether it is a minority institution, the Appellant sought
to contend that minority administration of their institution is merely
discretionary and that they are not bound to satisfy the twin test.
They instead urged that the prong of administration, would not be
a prerequisite for determining the minority status of an educational
institution.
121. The Respondents, on the other hand, assailed that for an institution to
claim the protection proffered under Article 30, the minority community
would have to demonstrate the two prongs of ‘establishment’ and
‘administration’ of the institution conjunctively.
122. Having considered the rival submissions tendered by the parties as
well the language of the provision itself, it is evident that ‘establishment’
and ‘administration’ are qualitatively distinct: while the former deals
with the history of the institution, the latter deals with the control over
the institution, at present. Accordingly, ‘establishment’ is temporally
fixated, while ‘administration’ requires analysis over a continuous
span of time, both during and post-establishment.
123. Of these two aspects, the necessity of the prong of establishment
is not in dispute. Both parties agree that an institution must be
established by the minority community. This issue is also largely
settled by various judicial precedents of this Court, which have held
that establishment by minority is a necessary pre-requisite for claiming
the right under Article 30.71 The question, however, has been raised

71 Kerala Education Bill, 1957, supra note 58; State of Kerala vs. Very Rev. Mother Provincial, (1970) 2
SCC 417, para 8; S.P. Mittal vs. Union of India, (1983) 1 SCC 51, para 137; Dayanand Anglo Vedic (DAV)
College Trust and Management Society v. State of Maharashtra,(2013) 4 SCC 14.
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in regard to the administration prong. The Respondents have argued
it to be a pre-requisite for invoking Article 30, while the Appellant
has argued it to be the result of such an invocation.
124. We find that both the Appellant and Respondents are right, but
only to the extent that administration is both a pre-requisite and
the result. In this respect, it mirrors its counterpart,Article 29,under
the section ‘Cultural and Educational Rights’. Article 29 makes the
distinctiveness of culture a pre-requisite for invoking its provision, and
once invoked, it bestows the right to conserve such distinctiveness.
Similarly, Article 30 outlines administration by the minority community
as a pre-requisite for invoking the provision, ultimately granting
the right to continue such administration free from unreasonable
government interference.
125. There are multifarious reasons behind upholding administration as
a pre-requisite rather than merely a right or result. First, if Article 30
were contingent only on the establishment by the minority community,
it would render the provision susceptible to significant misuse. In a
bid to attain special protection under Article 30, majority communities
could purchase or takeover institutions established by minorities and
then administer such institutions with reduced State interference in
perpetuity. This will potentially lead to all communities ultimately
enjoying the special right guaranteed by Article 30, denuding the
very purpose of this Article.
126. Second, it is clear that Article 30 carves out an exception to the general
power of the Government to regulate and intervene in educational
institutions. It has also been defined broadly, extending to all religious
and linguistic minorities, potentially encompassing a significant portion
of India’s population. If not interpreted narrowly,Article 30 would
undermine governmental control over educational institutions and
compromise the quality of higher education.
127. Therefore,if the institutions not administered by minorities were
also brought under the purview of Article 30, it could face misuse
by institutions camouflaging as minority institutions when, in reality,
they are not. I find support to this view in A.P. Christian Medical
Educational Society v. Govt. of A.P.,72 which held:

72 A.P. Christian Medical Educational Society v. Govt. of A.P & Anr. (1986) 2 SCC 667, para 8.
[2024] 11 S.C.R. 1821

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“8. […] The government, the University and ultimately
the court have the undoubted right to pierce the
‘minority veil’ — with due apologies to the corporate
lawyers — and discover whether there is lurking
behind it no minority at all and in any case, no minority
institution. The object of Article 30(1) is not to allow
bogies to be raised by pretenders but to give the minorities
‘a sense of security and a feeling of confidence’ not merely
by guaranteeing the right to profess, practise and propagate
religion to religious minorities and the right to conserve
their language, script and culture to linguistic minorities,
but also to enable all minorities, religious or linguistic,
to establish and administer educational institutions of
their choice. These institutions must be educational
institutions of the minorities in truth and reality and
not mere masked phantoms […] What is Important
and what Is imperative is that there must exist some real
positive index to enable the institution to be identified as
an educational institution of the minorities […].”
[Emphasis supplied]

128. Several other existing case laws support the notion that administration
too, ought to be regarded as a pre-requisite. For instance, In
St. Stephen’s College (supra), a five-judge bench of this Court
analysed the facets regarding both establishment and administration
of St. Stephen’s College under the Delhi University Act,to conclude
whether it could be characterised as a minority institution. In DAV
College (supra) a two-judge bench reiterated the principle that
administration has to be exercised by the minority community. This
view was also reinforced by another two-judge bench in T. Varghese
George v. Kora K. George.73 Similarly, in Manager, Rajershi
Memorial Basic Training School v. State of Kerala,74 the Kerala
High Court held that an institution merely being founded by a member
of a minority community is insufficient, and it has to be administered
by the minority community in question.

73 Dr. T. Varghese George v. Kora K. George and Ors.,(2012) 1 SCC 369.
74 Manager, Rajershi Memorial Basic Training School v. The State of Kerala and Anr.,1972 SCC OnLine
Ker 111, para 4.
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129. All of these cases support the legal principle that for an institution
to claim protection under Article 30, it should have a ‘real positive
indicia’ and must not be a mere sham. It is, therefore, permissible
to ‘pierce the veil’ in order to ascertain the real character of the
institution,as the minority status cannot be bestowed on illusionary
claims.
130. Lastly, it is an established principle of statutory interpretation that
a provision has to be read as a whole, and the accompanying text
may be employed in interpreting the meaning of another clause.75
This principle is particularly relevant in the present case, as Article
30(1A) specifically defines an institution “referred to in Clause 1”
and mentions it to be an institution that is both established ‘and’
administered by a minority:
“(1A) In making any law providing for the compulsory
acquisition of any property of an educational institution
established and administered by a minority, referred
to in clause (1), the State shall ensure that the amount
fixed by or determined under such law for the acquisition
of such property is such as would not restrict or abrogate
the right guaranteed under that clause.”
[Emphasis supplied]

131. Since the term ‘and’ has been consciously employed instead of ‘or’, it
is clear that the text of the provision itself envisages the conditions to
be read conjunctively. To hold to the contrary would require reading
down an original provision of the Constitution, which the Court must
refrain from doing.
132. Considering that institutions claiming any benefit under Article
30 must satisfy this two-pronged test, it is trite to say that the
terms ‘establishment’ and ‘administration’ under Article 30 are
conjunctive.

I. Issue IV: What is the meaning of ‘establish’ in Art. 30?
133. The Appellant has argued that the term ‘establish’ in Article 30 means
who ‘founded’ the institution. It is their assertion that if the genesis

75 Justice GP Singh, Principles of Statutory Interpretation, Lexis Nexis (2016), 14th edn.
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of the institution can be traced back to the minority community, the
institution would satisfy the test of being a minority institution.
134. Per contra, the Respondents ascribe a different meaning to the term
‘establish’ and argue that the Court must evaluate as to who created
the institution. If the institution owes its existence to the Statute, then
it would mean that the institution was established by the Legislature
and not by the minority community.
135. In due consideration of these opposing views, the central issue for
our determination,therefore would be to ascertain the meaning of the
term ‘establish’ in Article 30 and determine what the relevant indicia
should be, in order to determine on facts as to whether or not an
institution is established by the minority community.
136. Previously, a six-judge bench of this Court had conducted a similar
exercise in State of Kerala v. Very Rev. Mother Provincial76 and
defined the term establish as the ‘bringing into being of an institution’:
“8. Article 30(1) has been construed before by this Court.
Without referring to those cases it is sufficient to say that
the clause contemplates two rights which are separated in
point of time. The first right is the initial right to establish
institutions of the minority’s choice. Establishment here
means the bringing into being of an institution and it
must be by a minority community. It matters not if a
single philanthropic individual with his own means, founds
the institution or the community at large contributes the
funds. The position in law is the same and the intention
in either case must be to found an institution for the
benefit of a minority community by a member of that
community. It is equally irrelevant that in addition to the
minority community others from other minority communities
or even from the majority community can take advantage
of these institutions. Such other communities bring in
income and they do not have to be turned away to enjoy
the protection”
[Emphasis supplied]

76 Mother Provincial, supra note 71, para 8.
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137. Hence, as rightly held by this Court, the term ‘establish’ means bringing
the institution into existence for the benefit of the minority community.
However, we must ask ourselves as to when an institution can be
said to have come into existence, and what it means to establish it
for the benefit of the community. Each of these prongs have been
analysed separately below.

I.1. Bringing into existence—meaning and factors
138. In this regard, the Appellant and Respondents both suggested that
an institution comes into existence at a single point in time but
disagreed on what that exact point should be. The Appellant suggested
looking back into the genesis of the institution to determine when
it was ‘founded’ or when the idea was conceived. In contrast, the
Respondents argued against going back in time and instead urged
that the institution should be considered established the moment
it was operationalized. According to them, if the institution was
operationalized by virtue of a statute, then it was established at that
specific point by the Legislature.
139. To clarify these divergent views, it might be helpful to consider
analogous situations. For instance, if the question is about when a
photograph taken with an analogue camera comes into existence,
one perspective would argue that it is created when the photograph
is clicked, while the other would assert that it only exists when
the photo is finally printed on paper. Similarly, in the context of a
melody, one side might argue that it comes into existence when it is
composed, whereas the other side could contend that it only comes
into being when it is finally performed. Or in the context of art, one
perspective could be that a painting comes into existence when the
idea is conceived, and the other side could be that it is only when
it is fully completed.
140. We believe that both sides are partly right and partly wrong. They
are right in considering both the genesis of the institution and the
point of sanction by the statute for operationalizing the institution
as relevant factors to determine establishment. However, they are
incorrect in asserting that coming into existence is an event frozen at
a single point in time. Instead, we believe that coming into existence
operates in a continuum, which requires the analysis of the entire
gamut of relevant factors that brought the institution into being. The
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essence of existence—be it that of an educational institution or a
photograph, melody, or an art as instantiated above—is a multi-
faceted and an ontological question that cannot be answered by
artificially fixating it at a specific time with a bright-line test. Since
there are several factors that contribute towards the existence of the
educational institution, at no point can we say that the institute came
into existence as soon as one specific factor was fulfilled. Such an
exercise would highlight one factor while discounting the importance
of others, which would be arbitrary and irrational. Instead, the correct
approach requires an appraisal of the entirety of facts—i.e., the origin,
the point of finality, and the whole process in between—to reach an
understanding about the establishment.
141. Hence, while the parties are right in pointing out the relevant factors
of genesis and the statutory sanction, the analysis of who establishes
the educational institution has to go beyond them to cover all aspects
holistically. Since these factors would be a question of fact that would
differ from case to case, giving a laundry list of all such aspects would
be erroneous in law. However, to determine whether the minority
community has established the institution or not, a few illustrative
factors that the Courts have considered in the past include:
a. The genesis of the institution and who conceptualized the idea;
b. The gathering of resources and who provided the requisite
finances for creating the institution;77
c. Who contributed towards the infrastructure of the institution to
provide it with a physical existence;78
d. The framing of charter documents and who imparted the purpose
to the institution;79
e. In case government approvals were required, who made
the initial efforts in taking those permissions and fulfilling the
necessary compliances; and
f. Post the approval of the government, who undertook the initial
steps in forming the administrative bodies,80 hiring teachers,

77 Right Rev. Bishop S.K. Patro, supra note 66, para 15-16.
78 St. Stephen’s College, supra note 50, para 31.
79 Ibid, para 35.
80 Ibid, para 35-40.
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admitting students, passing the first statutes and ordinances,
ensuring regular compliances, etc., for operationalizing the
institution.

I.1.1. Caveat to these factors
142. In regard to these factors and any additional ones that may be
relevant based on the specifics of each case, there are two important
qualifications to note. First, as was previously stated, none of these
factors individually would be determinative of the minority status;
the analysis must be holistic, and the factum of existence must be
seen in a continuum instead of fixating on one factor and point of
time. In several instances, Courts have clarified that the absence of
certain factors, such as the institution not being constructed by the
minority community81 or receiving external financial assistance,82 does
not negate the minority character of the institution. These decisions
reiterate that the presence or absence of a single factor should not
alter the Court’s overall conclusion.
143. Second, the analysis concerning who fulfils each individual factor
should not aim at creating absolutes, i.e., the Court must not mandate
that the minority community must be single-handedly responsible
for fulfilling the role prescribed by that factor. It could be the case
that the community takes aid of external parties for setting up the
institution, but still takes the lead role in such establishment. If we
were to hold that such aid would take away the minority character
of the institution, we would, in effect, be laying down a requirement
that the community must work in silos and that no member
belonging to any other community should provide any assistance
in achieving its purpose. This would squarely contravene the very
spirit of our Constitution, which permits—or rather encourages—
other communities to work in tandem with minority communities
for their upliftment. In a cohesive society like ours, cooperation for
mutual development is a shared moral responsibility. Hence, the

81 Rt. Rev. Dr. Aldo Maria Patroni v. Assistant Educational Officer, 1973 SCC OnLine Ker 60, para 7;
A. Raju and Ors. v. Manager, Nallor Narayana L.P. Basic School & Ors., 2019 SCC OnLine Ker 16483,
para 6-7; T.M.A. Pai,supra note 3, para 11.
82 Right Rev. Bishop S.K. Patro, supra note 69, para 16; Dipendra Nath Sarkar v. State of Bihar & Ors.,
1960 SCC OnLine Pat 205, para 14.
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mere presence of external aid is a factor which would not obviate
the minority character of the institution
144. That being said, the converse must also hold true. If the leading role
in establishing an institution is played by an external party, mere
contributions from a member of the minority community would not
be sufficient to attribute the establishment itself to the minority. To
hold otherwise would expose the protection given under Article 30
to potential misuse, allowing institutions established by the majority
community to claim minority status based on some insignificant
contribution from the minority community. The test should therefore
rather focus on who takes a leading and decisive role in fulfilling the
relevant criteria for establishing an institution.
145. To determine whether the minority community established the
institution, the Court should thus examine whether it was indeed
that community which brought the institution into existence. This
involves assessing who played the leading role from the institution’s
inception, through the process of making its creation a reality, and
finally, in making it operational.
146. Having understood the meaning of ‘bringing into existence’, we shall
now revisit the Respondent’s argument that if an institution is being
created by Statute, then it cannot be said to have been brought
into existence by the minority community since in that, case it is the
Legislature which establishes the university. This particular element
requires some detailed analysis, not only because it was vehemently
argued by both sides but also because,as confirmed by this Court
in Prof Yashpal (supra), a University can only be created by or
under a Statute.
147. Having said that, if we were to hold that statutory intervention means
that the Parliament ‘establishes’ the university and not the minority
community (as was held in Azeez Basha (supra)), it would mean
that the minority community would never be able to qualify the
‘establishment’ prong under Article 30. This would concomitantly
lead to the conclusion that minorities can never establish a university
under this provision. Such a conclusion would run contrary to the
amendment to the NCMEI Act, which includes universities also under
the ambit of minority educational institutions. Therefore, to render
quietus to this issue, we shall discuss whether the Statute does, in
fact, bring an institution into existence.
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I.1.2. Statutory intervention and establishment of an institution
148. In this regard, it is important to note that statutory intervention exists
as a sliding scale, which can differ based on the kind of institution.
Broadly, there are three such categories of institutions: first, those
which are ‘registered in accordance’ with the statute; second, which
are ‘recognized’ by the statute; and third, which are ‘created by’ the
statute. Each of these are analysed separately below.

I.1.2.1. Registered in accordance with the statute
149. To establish an institution as a juristic entity, it is possible that the
minority community uses a form of organization provided under a
statutory framework. For instance, to establish an institution as a
company, the community might utilize the provisions of the Companies
Act, 2013; for a society,it would perhaps be the Cooperative Societies
Act, 1912, and so on. In case such a statutory framework is used by
the community, the question arises who truly brings the institution
into existence—the community or the statute that is used to create
the institution?
150. This question is no longer res integra and has been effectively
answered in Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye,83
wherein this Court held:
“20. A “company” is not “established” under the
Companies Act. An incorporated company does
not “owe” its existence to the Companies Act. An
incorporated company is formed by the act of any seven
or more persons (or two or more persons for a private
company) associated for any lawful purpose subscribing
their names to a memorandum of association and by
complying with the requirements of the Companies Act
in respect of registration. Therefore, a “company” is
incorporated and registered under the Companies Act
and not established under the Companies Act. Per
contra, the Companies Act itself establishes the National
Company Law Tribunal and the National Company Law
Appellate Tribunal, and these two statutory authorities owe
their existence to the Companies Act.”
[Emphasis supplied]

83 Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye and Ors. (2010) 4 SCC 378, para 20.
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151. Hence, as rightly held in the aforementioned case, using a statutory
framework does not necessarily mean that the organization is
established by the statute. If that were so, all companies under
Companies Act, 2013 would become government companies, leading
to an absurd consequence that does not hold water.
152. The Statutes that are used merely as a tool by the minority community
to register their institution under the statutory framework do not thus
take away the community’s role in bringing the institution into existence.

I.1.2.2. Recognized under the Statute
153. The second kind of Statutes are those that provide recognition to
already existing institutions. This is usually true for Statutes providing
affiliation to colleges with universities. Once the college affiliates
itself to a university, it will have to fulfil the statutory requirements
prescribed under the relevant statute of the university. Would such a
statutory intervention then mean that the institution has been brought
into existence by that Statute?
154. This question has also been lucidly answered by this Court in
Executive Committee of Vaish Degree College v. Lakshmi Narain,84
where a similar contention was raised that after being affiliated with
the university, Vaish Degree College became a statutory body that
was created by the statute. Rejecting this view, the Court held that:
“Here a distinction must be made between an institution
which is not created by or under a statute but is
governed by certain statutory provisions for the proper
maintenance and administration of the institution. There
have been a number of institutions which though not created
by or under any statute have adopted certain statutory
provisions, but that by itself is not, in our opinion, sufficient
to clothe the institution with a statutory character. […]
It is, therefore, clear that there is a well-marked distinction
between a body which is created by the statute and a
body which after having come into existence is governed
in accordance with the provisions of the statute. In other
words the position seems to be that the institution

84 Executive Committee of Vaish Degree College and Anr. v. Lakshmi Narain and Ors. (1976) 2 SCC 58,
para 10.
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concerned must owe its very existence to a statute
which would be the fountainhead of its powers. The
question in such cases to be asked is, if there is no
statute would the institution have any legal existence.
If the answer is in the negative, then undoubtedly it is
a statutory body, but if the institution has a separate
existence of its own without any reference to the statute
concerned but is merely governed by the statutory
provisions it cannot be said to be a statutory body[…].”
[Emphasis supplied]

155. Hence, if an institution possesses legal existence independent of the
statute, then the Statute merely recognizes an existing institution and
does not ‘establish’ it. This kind of Statute also does not take away the
role of the minority community in bringing the institution into existence.
Accordingly, just because a college is affiliated with a university and
follows its statutory requirements, it would not deprive the institution of
its minority character. This was also stated in St. Stephens (supra),
where this Court held:
“41. It was contended that St. Stephen’s College after
being affiliated to the Delhi University has lost its
minority character. The argument was based on some
of the provisions in the Delhi University Act and the
Ordinances made thereunder. It was said that the
students are admitted to the University and not to
the College as such. But we find no substance in the
contention. In the first place, it may be stated that the
State or any instrumentality of the State cannot deprive the
character of the institution, founded by a minority community
by compulsory affiliation since Article 30(1) is a special
right to minorities to establish educational institutions of
their choice […]”
“45. From these and other relevant provisions of the
Act and Ordinances, we have not been able to find
any indications either in the general scheme or in other
specific provisions which would enable us to say that the
College is legally precluded from maintaining its minority
character. That in matters of admission of students to
Degree courses including Honours courses, the candidates
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have to apply to the College of their choice and not to
the University and it is for the Principal of the College or
Dean of Faculties concerned to take decision and make
final admission. It is, therefore, wrong to state that there
is no admission to the College but only for the University.
The procedure for admission to Post Graduate courses
is of course, different but we are not concerned with that
matter in these cases.”
[Emphasis supplied]

156. It may also be relevant at this stage to examine instances of such
universities, which, under law, are mandated to be operationalized
by a Statute. We may,in this regard,usefully refer to the University
Grants Commission Act, 1956 (UGC Act) which provides as follows:
“22. Right to confer degrees—
(1) The right of conferring or granting degrees shall
be exercised only by a University established or
incorporated by or under a Central Act, a Provincial Act
or a State Act or an institution deemed to be a University
under Section 3 or an institution specially empowered by
an Act of Parliament to confer or grant degrees.
(2) Save as provided in sub-section (1), no person or
authority shall confer, or grant, or hold himself or itself out
as entitled to confer or grant, any degree.
(3) For the purposes of this section, “degree” means any
such degree as may, with the previous approval of the
Central Government, be specified in this behalf by the
Commission by notification in the Official Gazette.
23. Prohibition of the use of the word “University” in certain
cases.—
No institution, whether a corporate body or not, other
than a University established or incorporated by or
under a Central Act, a Provincial Act or a State Act shall
be entitled to have the word “University” associated
with its name in any manner whatsoever:
Provided that nothing in this section shall, for a period of
two years from the commencement of this Act, apply to an
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institution which, immediately before such commencement,
had the word “University” associated with its name.”
[Emphasis supplied]

157. Since the UGC Act mandates that degrees can be conferred only
by those universities that are established ‘by or under’ a statute, it
is a necessary corollary that the university must be operationalized
by a statute itself in order to validly confer the degrees. Given that
the legal existence in this context flows directly from the statute, the
question thus arises: does this mean that the minority community does
not bring such universities into existence, and that they are instead
established by the legislature? Indeed, Azeez Basha (supra) says
so. Contrarily, the NCMEI Act,as amended from time to time,enables
a minority community to establish a university on its own. There being
an apparent inconsistency between the two, the question that arises
for further consideration is as to which perspective accurately reflects
the correct position—Azeez Basha (supra) or the NCMEI Act?

Azeez Basha (supra) v. the NCMEI Act: The curious case of bringing
universities into existence
158. In this regard, one needs to note the nuance between legal recognition
and other facets of existence. As was discussed before, existence
covers other aspects apart from legal sanction. Especially for
universities, this Court, in the case of Prof. Yashpal (supra), held
that the Statute shall not give legal sanction unless it is satisfied that
there exist enough infrastructural facilities within the institution:
“44. […] When the Constitution has conferred power
on the State to legislate on incorporation of university,
any Act providing for establishment of the university
must make such provisions that only an institution in
the sense of university as it is generally understood
with all the infrastructural facilities, where teaching
and research on a wide range of subjects and of a
particular level are actually done, acquires the status
of a university. […]”
45. The State Legislature can make an enactment providing
for incorporation of universities under Entry 32 of List II
and also generally for universities under Entry 25 of List III.
The subject “university” as a legislative head must be
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interpreted in the same manner as it is generally or
commonly understood, namely, with proper facilities
for teaching of higher level and continuing research
activity. An enactment which simply clothes a proposal
submitted by a sponsoring body or the sponsoring
body itself with the juristic personality of a university
so as to take advantage of Section 22 of the UGC
Act and thereby acquires the right of conferring or
granting academic degrees but without having any
infrastructure or teaching facility for higher studies
or facility for research is not contemplated by either
of these entries. Sections 5 and 6 of the impugned
enactment are, therefore, wholly ultra vires, being a fraud
on the Constitution.”
46. […] In the absence of any campus and other
infrastructural facilities, UGC cannot take any measures
whatsoever to ensure a proper syllabus, level of teaching,
standard of examination and evaluation of academic
achievement of the students or even to ensure that the
students have undergone the course of study for the
prescribed period before the degree is awarded to them.”
[Emphasis supplied]

159. Similarly, while Regulation 3.1 of the University Grants Commission
(Establishment of and Maintenance of Standards in Private Universities)
Regulations, 2003 also states that universities have to be established
by a statute, the very definition of the term ‘private university’ in
Regulation No. 2.1 clarifies that the university is established albeit
‘through’ the legislation, but ‘by’ a private body:
“3.1. Each private university shall be established by a
separate State Act and shall conform to the relevant
provisions of the UGC Act, 1956, as amended from time
to time.”
“2.1. “Private university” means a university duly
established through a State / Central Act by a
sponsoring body viz. a Society registered under the
Societies Registration Act 1860, or any other corresponding
law for the time being in force in a State or a Public Trust or
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a Company registered under Section 25 of the Companies
Act, 1956.”
[Emphasis supplied]

160. In addition to these provisions, it is also imperative to take into
consideration that the role of sponsoring bodies is explicated in further
detail in various state legislations. For instance, the Uttar Pradesh
Private Universities Act, 2019, sets out in detail the steps that the
sponsoring body must take to receive sanction for establishing a
university. The body is required to create an endowment fund,
possess certain specified areas of land, construct buildings, install
equipment, appoint professors, plan curriculum and other activities,
make rules for the functioning of the university, and comply with
other norms.85 Subsequently, such a body is then required to apply
for the sanction by furnishing the requisite details.86 Only once the
government is satisfied with the necessary compliances by the
sponsoring body, does it grant the sanction and incorporates it under
the statute.87 Therefore, even though the final legal existence is
sanctioned through the statute, it is the private body which initiates
and fulfils other essential roles.
161. A similar situation existed in India prior to independence. During
this pre-independence era, the very nature of universities was in a
state of flux. Up until the 1920s, universities primarily functioned as
administrative units rather than teaching institutions. Accordingly,
they were established by the State as government bodies to
exercise control over all the colleges in the respective provinces.
This factum is acknowledged by the Saddler Commission of
1917-19, which noted:
“These territorial limits have been deemed necessary in the
past, mainly for the following reasons. In the first place, the
functions of the older universities in India have demanded
them. So long as each of these universities is engaged,
subject to Government control, in administrative rather
than teaching functions, it necessarily follows that its

85 Uttar Pradesh Private Universities Act, 2019, Section 3.
86 Ibid, Section 4.
87 Ibid, Section 7.
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boundaries should be as far as possible co-terminous
with those of a province […] The self-contained provincial
university affords some administrative conveniences.
Because it exercises direct control over Government
colleges, gives grants-in-aid to others, and is deeply
interested in the secondary school system, Government
is necessarily hampered in carrying out these duties if the
affiliation and inspection of colleges within its area and
the recognition of schools situated within its territorial
jurisdiction are in any respect under the authority or
in the hands of another Government and university.”88
[Emphasis supplied]

162. However, in order to expand the scope of education and to
accommodate growing demand, there was a legitimate need to
change the role of the university from mere administrative bodies
to institutions of learning. Hence, while there was hitherto monopoly
exercised by government universities,89 it permitted private players to
approach the government and seek the setting up of a university. As
recognized by the Saddler Commission, BHU was the first of its kind.
163. In due parlance, the University Commission Report of 1929 also
acknowledged this change, and it was noted that various learning
universities had come into being.90 In order to establish a university
whose degree would be recognized by the government, they were
required to be established through a statute.91 Universities that were
established in native states were also created through the sanction of
the ruler.92 Even though some native groups did establish universities

88 M.E. Sadler, Calcutta University Commission 1917-1919, Chapter XXIX.
89 Henry Sharp, “The Development of Indian Universities” Journal of the Royal Society of Arts, (1925),
Vol. 73, No. 3778 pp. 523.
90 Indian Statutory Commission, Interim Report- Review of Growth of Education in British India, Calcutta,
Government of India, central Publication Branch (1929) pp. 123, available at https://archive.org/details/
dli.csl.1000/page/n157/mode/2up?view=theater
91 Dr. Vishwanath Pandey (editor), Founder of Banaras Hindu University: Pandit Madan Mohan Malviya,
Publication Cell, Banaras Hindu University (2006), pp. 19, available at https://web.archive.org/
web/20120412191310/http://www.bhu.ac.in/MMMMM.pdf .
92 The Handbook of Indian Universities, published by Inter University Board India (1928), pp. 255,
available at https://archive.org/details/handbookofindian029307mbp/page/n269/mode/2up?view=theater;
Syed Akbar, “Controversy over Osmania University Centenary as Firman says it was founded in
1918, The Indian Express (23 November, 2017) available at https://timesofindia.indiatimes.com/city/
hyderabad/controversy-over-osmania-university-centenary-as-firman-says-it-was-founded-in-1918/
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without the statute, their degrees were not recognized, consequently
leading to them being less attractive centres of learning.93
164. That means that while universities were still required to seek a
government’s sanction for recognition of degrees, the statutes were
limited to their legal existence. There are other essential components
as well, to determine the status of a university. As was also briefly
explicated in Prof. Yashpal (supra),94 a university in essence, is also
an organized body that serves as a centre of higher education by
linking students and teachers. For it to exist in that form, it is necessary
for someone to ideate, plan, gather the resources, take approvals,
and functionalize the institution once the sanction is received.95 This
materiality was also briefly alluded to by the University Commission
of 1948, when it said that:
“The Annamalai University owes its inception to the
generosity of the late Annamalai Chettiar of Chettinad.
The Banaras and the Aligarh Universities have had large
endowments given by princes and commoners. The Calcutta
University has had endowments given by such eminent
persons as P.C. Ray, Rash Behari Ghose and Tarakanath
Palit; while Bombay has had large endowments from the
Singhania and Tata Trusts besides endowments from
several other philanthropic citizens; the University of Nagpur
has had a large endowment under the Laxminarayan Trust,
Fund and the Madras University has for the first time been
given a generous endowment by Dr. Alagappa Chettiar.
The new university at Saugor owes its existence to
a donation of Rs. 2,000,000 from Sir Hari Singh Gaur
which is regarded as a first instalment.”
[Emphasis supplied]

165. Hence, even when the legal existence—i.e., the authority to grant
degrees—comes from an external body or legislature, it is an important
but not the sole facet that constitutes a University. Further, the
legislative object and intent of such a Statute would be a determinative

articleshow/61762699.cms.
93 Indian Statutory Commission, supra note 90, pp. 121.
94 Prof. Yashpal, supra note 4, para 20-22.
95 Dr. Vishwanath Pandey, supra note 91.
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factor in ascertaining the nature of the University. If it were solely
responsible for the creation of the university, the statute might
assume a size larger than the University. Instead, since the concept
of a university encompasses numerous other factors beyond legal
sanction, these factors also contribute to its existence, and the statute
is one of them. Consequently, the presence of this external factor
does not render the entire existence attributable to the Legislature.
166. It seems to us that when the UGC Act or colonial laws mandated
universities to be created by statutes, those who intended a university,
including the minority community, were not absolved from complying
with other relevant factors so as to bring the university into being. We
therefore do not find any conflict between the amended provisions
of the NCMEI Act, UGC Act, and the holding in Prof. Yashpal
(supra). Each holds its own independent and distinct field and
operates validly within that sphere. The minority community thus
can establish a university under Article 30,96 provided it fulfils the
norms of the UGC—i.e., gets legal sanction to create the university
through a statute. To the extent that Azeez Basha (supra) holds to
the contrary, it deserves to be modified and clarified.
167. Having held so,we will now analyse the third category of institutes,
which are ‘created by’ the legislature itself.
I.1.2.3. Created by the statute
168. The previous section showed that an institution would not owe its
existence to the legislature itself, provided that other facets apart from
legal operationalization are fulfilled by another body. However, it may
also happen that the Government itself may fulfil the other aspects by
perhaps ideating the institution, providing funds and infrastructure for
its set-up, making its charter documents, and finally operationalizing
it through different bodies. In case the leading role in the different
factors instantiated in paragraph 141 of this judgement is played by
the Legislature itself or through the Executive Government, then it
will be said to have brought the institution into existence and not any
private individual or community.
169. The distinction between the second and third categories of institutions
(i.e., those recognized by statute versus those created by statute)
is thus one of degree and a matter of fact. While both types of

96 Uttar Pradesh Private Universities Act, 2019, Section 2(p).
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institutions may appear on paper to be established under a statute,
only a thorough analysis of their backgrounds can illuminate whether
they belong to the second category—i.e., where the statute merely
operationalizes the institution or to the third category—where their
very existence is attributable to legislative action. Depending on such
analysis, the Court can conclude whether the institution meets the
establishment prong under Article 30 or not.
170. To sum up the entire discussion on the spectrum of legislative
interference pictorially:

I.2. Establishment shall be for the benefit of the community
171. There can hardly be any quarrel that, for fulfilling the establishment
prong, it is not sufficient that the institution was brought into existence
by the community, but it must be further proved that it was for
the benefit of that community. For this purpose, it is essential to
analyse the overall functioning of the institution and the primary
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objective for which it has been established. For instance, where
the institution admits members of other communities; also teaches
secular courses;97or if it is working merely as a commercial entity that
does not admit students of its own community; or working primarily
towards the development of its community, it would be antithetical
to the very purpose of Article 30 to grant such an institution minority
status.
172. This has been clarified by various judgements of this Court, which
held that the purpose of Article 30 is to ensure the upliftment of the
minority community by providing them with a congenial atmosphere
for education.98If the institution is not aligned with this purpose, it
would not be covered under the purview of Article 30 and would not
enjoy extra administrative autonomy, even if its existence is owed
to a minority community.
173. To conclude the discussion on the meaning of ‘establish’, for an
institution to fulfil the establishment prong under Article 30, it is
necessary for it to have been brought into existence by the minority
community and must be working towards the benefit of that community.

J. Issue V: What is the meaning of ‘administer’ in Article 30?
174. The parties are not unanimous on the meaning of the term ‘administer’
as contained in Article 30 of the Constitution. The Appellant sought
to assail that the term ‘administer’ essentially refers to who has
overall control over the university. The parties argued that the mere
fact that the State regulates the institution does not take away the
‘administration’ from the community. The Respondents, on the other
hand, proffered that the ‘administer’ prong requires the minority
community to control essential factors of the institution, such as
admission to the institution, fee structure, appointment of teachers, etc.
175. Before venturing onto understanding what is included in administration,
it is necessary to first understand what it does not include. Various
judicial precedents, including the decision in TMA Pai (supra), have

97 In Re: The Kerala Education Bill, supra note 58; para 23; Rev. Father W. Proost and Ors. v. State of Bihar
and Ors. [1969] 2 SCR 73, para 8; Ahmedabad St. Xaviers College Society and Anr. v. State of Gujarat
and Anr., AIR 1974 SC 1389, para 10.
98 In Re: The Kerala Education Bill, supra note 58; Para 32; P.A. Inamdar, supra note 48, para 97.
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held that the term ‘administration’ does not include maladministration.
In other words, while the minority community has the right to administer
the institution, the regulatory measures imposed by the State that
merely regulate the educational standards are not included within
the right of ‘administration’.99
176. To this end, the State has the power to prescribe, inter alia: compliance
requirements of the government for granting recognition to the
university, if they largely and substantially leave unimpaired the
right of administration in regard to internal affairs of the institution;100
general laws of the land applicable to all persons, such as laws
relating to taxation, sanitation, social welfare, economic regulation,
public order and morality, or general regulations regarding welfare
of students and teachers;101 regulations requiring transparency and
merit in admission procedure;102 regulations restricting charging of
capital fee;103 regulations which mandate that there is a govt. nominee
in admission process, that fix merit criteria for minority students,
or which mandate that the vacant seats shall go to non-minority
students;104 etc.
177. Similarly, this Court has held that in a minority institution, there can
be a sprinkling of outsiders in administration, and the mere presence
of members of the non-minority community does not take away the
minority character of the institution.105
178. However, at the same time, there is a core part of ‘administration’
that should remain in control of the minority community. As has
been discussed before during the discussion on the conjunctive
and disjunctive nature of the test incorporated within the text of

99 Very Rev. Mother Provincial, supra note 71, para 9-10; Gandhi Faiz-e-am-College v. University of
Agra and Anr. (1975) 2 SCC 283, para 40; Kolawana Gram Vikas Kendra v. State of Gujarat and Anr.
(2010) 1 SCC 133.
100 All Saints High School v. Govt. of A.P. and Ors. (1980) 2 SCC 478, para 5.
101 TMA Pai Foundation, supra note 3, para 136 and 161; P.A. Inamdar, supra note 48. Para 94;Secy.,
Malankara Syrian Catholic College, supra note 51.
102 TMA Pai Foundation, supra note 3, para 161; Christian Medical College Vellore Assn. v. Union of India
(2020) 8 SCC 705.
103 P.A. Inamdar, supra note 48, Para 140; Modern School v. Union of India and Ors. (2004) 5 SCC 583;
Father Thomas Shingare and Ors. v. State of Maharashtra and Ors. (2002) 1 SCC 758.
104 Andhra Kesari College of Education v. State of A.P. (2019) 9 SCC 457, para 6.9.
105 In Re: Kerala Education Bill, supra note 58; Society for Unaided Private Schools of Rajasthan v. Union
of India (2012) 6 SCC 1, para 57.
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Article 30 (Issue III), this is necessary to prevent the potential
misuse of this provision. The question that now arises is when
would ‘administration’ be said to have been taken away from the
minority community?
179. To this end, the very concept of ‘administration’ is inherently fluid,
and a specific definition is likely to be under inclusive. Determining
whether a minority community exercises control over an institution
is a factual question that varies from case to case. Although there
is no definitive test to ascertain whether administration lies with the
minority community, various judicial precedents provide indicators
that may be considered relevant.
180. Similar to the test to determine ‘establishment’, these indicators
alone may not conclusively establish whether the administration
rests with the minority community. Instead, a cumulative and
holistic analysis of these factors can assist the court in making its
determination.
181. To instantiate, illustrative factors which are likely to take away
administration of minority community from the institution include,
inter alia:
i. Management staff is not answerable to the founders, or an
external person has veto over their selection.106 The lack of
control over such selection would have significant weight since
it is a post of prime importance around which administration
revolves, i.e., he/she is the hub on which all spokes of the
institution’s wheels are set around.107
ii. There are outside authorities in the governing body of the
managing committee 108 with wide powers over the other
members;109

106 Very Rev. Mother Provincial, supra note 71, para 19.
107 Secy., Malankara Syrian Catholic College, supra note 51, para 22-28; Board of Secondary Education and
Teachers Training v. Jt. Director of Public Instructions (1998) 8 SCC 555, para 3; Ivy C.Da. Conceicao
v. State of Goa and Ors. (2017) 3 SCC 619, para 16; The Manager, Corporate Educational Agency v.
James Mathew and Ors. (2017) 15 SCC 595; R. Sulochana Devi v. D.M. Sujatha & Ors. (2005) 9 SCC
335, para 26.
108 Dr. T. Varghese George, supra note 73, para 37.
109 All Saints High School, supra note 100.
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iii. Minority community does not have any right over determining
the overall fee structure of the institution;110
iv. Minority community does not have the final say over
administration, such that over the management committee
comprising of members of the minority community, there is an
appeal to an outside member;111
v. Minority community does not have any say over the medium
of instruction;112
vi. Regulation prescribes reservation for unaided minority
institutions;113
vii. Minority community does not have the right to choose the
governing body and to choose teachers or admit students;114
viii. Removal of an employee requires the approval of an outside
member who has the discretion to withhold such consent;115
ix. The minority community does not have a say in appointment
of administrative authorities of the university such as the Vice
Chancellor, Pro-Vice Chancellor, Registrar etc.;
x. The minority institution entirely depends on government aid; and
xi. The minority community does not have the right to deploy
properties and assets for the benefit of the institution.116
182. It thus emerges that the minority community must largely be free
from external control and must have broad autonomy to mould the
institution’s functioning and administration per their idea of what would

110 Icon Education Society v. State of M.P. and Ors., 2023 SCC OnLine SC 289; Islamic Academy of
Education v. State of Karnataka and Ors., 2003 6 SCC 697; Cochin University of Science & Technology
and Anr. v. Thomas P. John and Ors. (2008) 8 SCC 82, para 16.
111 Lilly Kurian v. Sr. Lewina and Ors., AIR 1979 SC 52.
112 State of Karnataka and Anr. v. Associated Management of English Medium Primary & Secondary
Schools and Ors. (2014) 9 SCC 485.
113 Society for Unaided Private Schools of Rajasthan v. Union of India and Anr. (2012) 6 SCC 1, para 62;
Pramati Educational & Cultural Trust and Ors. v. Union of India and Ors. (2014) 8 SCC 1, para 55.
114 Dr. T. Varghese George, supra note 73, para 19.
115 G. Vallikumari v. Andhra Education Society (2010) 2 SCC 497, para 17; Frank Anthony Public School
Employees’ Assn. v. Union of India and Ors. (1986) 4 SCC 707, para 18.
116 Ahmedabad St. Xavier’s College Society, supra note 97, para 19.
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be best for the community.117 If the long-term administrative factors
and the day-to-day sundry decisions do not lie with the community,
it would mean that the institution is being administered by an outside
authority and not by the minority community. As already elucidated,
while the minority community can be subjected to general regulations
regarding the betterment of such management, and while there can
be a sprinkling of outsiders, administration itself cannot be taken
away from the minority community. This is perhaps best explained
in Gandhi Faiz-e-am-College v. University of Agra,118 where this
Court held:
“16. The discussion throws us back to a closer study
of Statute 14A to see if it cuts into the flesh of the
management's right or merely tones up its health and
habits. The two requirements the University asks for are
that the managing body (whatever its name) must take
in (a) the Principal of the College; (b) its senior most
teacher. Is this desideratum dismissible as biting into
the autonomy of management or tenable as ensuring
the excellence of the institution without injuring
the essence of the right? On a careful reflection and
conscious of the constitutional dilemma, we are inclined
to the view that this case falls on the valid side of the
delicate line. Regulation which restricts is bad; but
regulation which facilitates is good. Where does this
fine distinction lie? No rigid formula is possible but a
flexible test is feasible. Where the object and effect is
to improve the tone and temper of the administration
without forcing on it a stranger, however superb his
virtues be, where the directive is not to restructure
the governing body but to better its performance
by a marginal catalytic induction, where no external
authority’s fiat or approval or outside nominee is
made compulsory to validate the Management Board
but inclusion of an internal key functionary appointed
by the autonomous management alone is asked for,

117 St. Stephen’s College, supra note 50, para 46.
118 Gandhi Faiz-e-am-College, supra note 99, para 16.
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the provision is salutary and saved, being not a diktat
eroding the freedom of the freedom.”
[Emphasis Supplied]

183. Notably, for such administration to lie with the community, it is not
enough if the decisions are taken by a member of such a community.
If these decisions lie with the community but there is an outside
authority with the power to change these decisions, it would imply
that the minority community does not have pervasive control over
the administrator,and its status is merely that of a paper tiger.119
Conversely, if there are outside authorities and the minority community
does not have the power to oversee or reverse the decisions of such
authorities, it would again imply that control lies externally. In other
words, the administration shall cover both the active and the reactive
aspects, such that the minority community can take active steps to
effect changes in the institution without outside restriction and can
also veto decisions taken or changes made from the outside.
184. Consequently, in order to satisfy the requirements of Article 30, a
minority community must retain both de jure and de facto control
over the institution. It is insufficient for the community to simply
have a minority member appointed by the majority for administrative
roles; this does not confer genuine control. If the minority member’s
position can be revoked at any time by the majority, the real power
of administration does not lie with the minority community. Allowing
Article 30 protection under such circumstances would create legal
unpredictability, as non-minority institutions could temporarily appoint
minority members to exploit the benefits. To meet the administration
test, the minority community must therefore first have visible de jure
control over the institution.
185. Similarly, mere de jure control over the institution may not be sufficient
on its own. It is possible that, to secure protection under Article 30, a
minority community might be nominally granted administrative power
while actual control is exercised behind the scenes by individuals
outside the community. Such a scenario would amount to a façade of
minority administration, failing to satisfy the test of genuine physical

119 Lilly Kurian, supra note 111.
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control over the management. Thus, the need arises for both aspects
of control over the educational institution.
186. To summarize, the test for administration under Article 30 involves
identifying who holds effective and overall control within the
institution. While external authorities may assist in its administration,
the decisive influence and control must rest with members of the
minority community. To meet this test, the minority community
must exercise both active and reactive control, ensuring that
administrative powers are genuinely held in both de jure and de
facto terms.

K. Issue VI: Whether the Union of India is obligated to defend
the AMU Amendment Act, 1981?
187. Before parting, we would like to fairly acknowledge that both sides
to the present dispute, aggressively argued on the issue as to
whether the UOI could be allowed to change its stance and challenge
its own statute. While the Appellant urged that the UOI and the
Learned Attorney General for India are obliged to defend the 1981
Amendment Act, the Respondent maintained that such support would
run antithetical to constitutional values.
188. We have pondered over the submissions and are of the view that
the controversy has been rendered academic. In our considered
opinion, all the legal issues, including those relating to constitutional
interpretation have already been answered effectively. In all fairness,
the parties also rendered their full assistance in the context of the
factual issues as well, especially in terms of whether or not AMU is
entitled to the protection of Article 30 of the Constitution. This second
limb of the controversy however, will be resolved by the Regular
Bench, and to this extent we are respectfully in tandem with the
opinion rendered by Hon’ble the Chief Justice of India.

V. Areas of divergence
189. In light of the above discussion, we find ourselves at variance with
Hon’ble the Chief Justice of India on the following issues:
189.1. Whether the opinion of the seven-judge bench in Kerala
Education Bill (supra) which according to Hon’ble the Chief Justice,
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was followed by a six-judge Constitution bench in Rev. Sidhajbhai
Sabhai v. State of Bombay,120 has been overlooked in Azeez
Basha (supra)?
a. In Kerela Education Bill (supra), this Court, in no uncertain
terms opined that: (i) “there is no reason why the benefit of
Article 30(1) should be limited only to educational institutions
established after the commencement of the Constitution. The
language employed in Article 30(1) is wide enough to cover
both pre-Constitution and post-Constitution institutions.”; and
(ii) “Article 30(1) gives two rights to the minorities, (1) to
establish and (2) to administer educational institutions of their
choice. The right to administer obviously cannot include the
right to maladminister. The minority cannot surely ask for aid or
recognition for an educational institution run by them in unhealthy
surroundings, without any competent teachers, possessing any
semblance of qualification, and which does not maintain even a
fair standard of teaching or which teaches matters subversive
of the welfare of the scholars…”
b. In Sidhajbhai Sabhai (supra), the challenge was laid to a
government order directing that “80% of the total number of
seats in non-Government Training Colleges should be reserved
for School Board teachers deputed by the Government…” In
this regard, the six-judge Constitution Bench held that “unlike
Article 19, the fundamental freedom under Clause (1) of Article
30, is absolute in terms; it is not made subject to any reasonable
restrictions of the nature the fundamental freedoms enunciated
in Article 19 may be subjected to. All minorities—linguistic or
religious—have, by virtue of Article 30(1), an absolute right to
establish and administer educational institutions of their choice;
and any law or executive direction which seeks to infringe the
substance of that right under Article 30(1) would to that extent
be void. This, however, is not to say that it is not open to the
State to impose regulations upon the exercise of this right...”
c. What comes to light in Sidhajbhai Sabhai (supra) is that
the bench therein did not rely upon the opinion delivered by

120 Rev. Sidhajbhai Sabhai v. State of Bombay,1963 (3) SCR 837.
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the seven-judge bench in Kerala Education (Bill) and rather
distinguished it, as the latter was relied on by the State. The
Constitution bench in Sidhajbhai Sabhai (supra) thus took
pains to explain that the opinion in Kerala Education Bill
(supra) was distinguishable and that it “is not an authority for
the proposition submitted by the Additional Solicitor General that
all regulative measures which are not destructive or annihilative
of the character of the institution established by the minority,
provided the regulations are in the national or public interest,
are valid…”
d. We now turn to examine whether the five-judge bench in Azeez
Basha (supra) failed to follow the principles opined in Kerala
Education Bill (supra) or those laid down by the six-judge
bench in Sidhajbhai Sabhai (supra). In so far as Kerala
Education Bill (supra) is concerned, Azeez Basha (supra)
categorically holds that the protection of Article 30(1) was not
restricted only to educational institutions established after the
Constitution came into force. Such a restrictive interpretation
was held to be contrary to the opinion delivered in Kerala
Education Bill (supra) and was bolstered with strong language
that “if that interpretation was given to Article 30(1) it would
be robbed of much of its content’.” The bench further held
that the expressions ‘establish’ and ‘administer’ must be read
conjunctively, in response to a plea that even if an educational
institution was not established by minorities, it could still be
administered by them under the ambit of Article 30. This view,
which has been consistently affirmed in the later decisions as
well, in our considered opinion, is the correct interpretation of
Article 30(1).
e. As regard to Sidhajbhai Sabhai (supra) it was neither cited
nor was particularly relevant in the context of the controversy
that arose for consideration in Azeez Basha (supra).
f. Most pertinently, the decision in Sidhajbhai Sabhai (supra) is
no longer a good precedent, to the extent of disapproval of its
view by the 11-judge bench in TMA Pai (supra), in this regard.
g. We therefore see no discordance between Kerala Education
Bill (supra) and Sidhajbhai Sabhai (supra) on the one hand
and Azeez Basha (supra) on the other.
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189.2. Is there any conflict between Azeez Basha (supra) and the
principles enunciated in TMA Pai (supra)?
a. A conjoint reading of paragraphs 106 to 108 of the draft
judgement circulated by Hon’ble the Chief Justice, gives an
impression that Azeez Basha (supra) has had some collision
with the subsequent eleven-judge Constitution bench in TMA Pai
(supra). In this regard, Hon’ble the Chief Justice has relied on
paragraph 70 (the majority opinion by Chief Justice Kirpal, as his
Lordship then was). We are, however, unable to find any such
perceived conflict between the two decisions. TMA Pai (supra)
considered the scope of regulating the right of administering
government aided private minority institutions from paragraph
82 onwards. Pursuantly, in paragraph 93, the bench therein
formulated the following questions:
“93. Can Article 30(1) be so read as to mean that it
contains an absolute right of the minorities, whether
based on religion or language, to establish and administer
educational institutions in any manner they desire, and
without being obliged to comply with the provisions of
any law? Des Article 30(1) give the religious or linguistic
minorities a right to establish an educational institution that
propagates religious or racial bigotry or ill will amongst the
people? Can the right under Article 30(1) be so exercised
that it is opposed to public morality or health? In the
exercise of its right, would the minority while establishing
educational institutions not be bound by town planning
rules and regulations? Can they construct and maintain
buildings in any manner they desire without complying with
the provisions of the building by-laws or health regulations?”
b. After due discussion and a detailed reference to Kerala
Education Bill (supra) and Sidhajbhai Sabhai (supra),
the Constitution Bench in TMA Pai (supra) answered these
questions in paragraph 107 which reads as follows:
“107. The aforesaid decision does indicate that the right
under Article 30(1) is not so absolute as to prevent the
government from making any regulation whatsoever.
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As already noted hereinabove, in Sidhajbhai Sabhai's
case, it was laid down that regulations made in the true
interests of efficiency of instruction, discipline, health,
sanitation, morality and public order could be imposed. If
this is so, it is difficult to appreciate how the government
can be prevented from framing regulations that are in
the national interest, as it seems to be indicated in the
passage quoted hereinabove. Any regulation framed
in the national interest must necessarily apply to all
educational institutions, whether run by the majority or
the minority. Such a limitation must necessarily be read
into Article 30. The right under Article 30(1) cannot be
such as to override the national interest or to prevent the
government from framing regulations in that behalf. It is,
of course, true that government regulations cannot
destroy the minority character of the institution or
make the right to establish and administer a mere
illusion; but the right under Article 30 is not so
absolute as to be above the law. It will further be
seen that in Sidhajbhai Sabhai’s case, no reference
was made to Article 29(2) of the Constitution. This
decision, therefore, cannot be an authority for the
proposition canvassed before us.”
[Emphasis supplied]

c. It may thus be seen that the decision in Sidhajbhai Sabhai
(supra), which holds that the “fundamental freedom under
Clause (1) of Article 30, is absolute in terms; it if; not made
subject to any reasonable restrictions” has in fact been expressly
disapproved by TMA Pai (supra). In essence, Sidhajbhai
Sabhai (supra) has thus lost its binding nature,in that context.
189.3. Whether a two-judge bench would be competent to make a
reference to a larger bench of seven-judges? Whether the Constitution
bench in Dawoodi Bohra (supra) has been correctly construed by
Hon’ble the Chief Justice of India in his opinion?
a. In order to avoid any repetition, we wish to mention here that
an elaborate answer to the aforesaid question has been given
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under ‘Issue I’ from paragraphs 83 to 99 of our judgement.
In essence, the reference by the two-judge bench to a larger
bench of seven-judges is totally impermissible; such a recourse
is directly in the teeth of the dictum of the Constitution bench
in Dawoodi Bohra (supra).Such an attempt by a two-judge
bench is hit by: (i) the doctrine of predictability; (ii) the doctrine
of finality; (iii) the principle of judicial propriety; and (iv) the
doctrine of stare decisis.
b. Further, there is no substantial difference between ‘doubting’ a
larger bench or ‘disagreeing’ with such a judgement. ‘Doubt’ and
‘disagreement’ both originate from a tentative opinion which is in
conflict with the reasons already assigned by the larger bench.
There cannot be disagreement without doubting the correctness
and there cannot be a doubt unless you disagree with the reasons.
c. Most importantly, entertaining a reference by a two-judge bench
doubting a larger bench would dilute the authority and position
of the Chief Justice of India as enjoyed upon Article 145 read
with Order VII Rule 2 of the Supreme Court Rules, 1966, as
was then applicable.

189.4. What is the true import of Entry 63 of List I of the Constitution?
a. The Seventh Schedule derives its relevance from Article 246 of
the Constitution. This provision is included in Chapter I of Part
XI of the Constitution, which deals with the relationship between
the Union and the State and defines their legislative relations.
b. It may be seen that Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in
the Seventh schedule, known as the Union List. In this vein,
Entry 63 of List I reads as follows:
“63. The institutions known at the commencement of
this Constitution as the Benares Hindu University, the
Aligarh Muslim University and the Delhi University; the
University established in pursuance of article 371E; any
other institution declared by Parliament by law to be an
institution of national importance.”
[Emphasis supplied]
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c. Entry 63 has two significant components which we can broadly
label as procedural and substantive. The former, i.e., the
procedural feature, flows from Article 246 and reiterates that
the Parliament is the sole Competent Authority for legislating
to declare any other institution to be an institution of National
Importance
d. The first component of Entry 63 is a substantive part, which is
a constitutional declaration of BHU and AMU, to be institutions
of National Importance. The opening part of Entry 63 manifestly
indicates that the Constituent Assembly was determined to
confer such an elevated status on both, BHU and AMU.
e. The second component of Entry 63 on the other hand, permits
the Parliament to declare any other institution also to be an
institution of national importance. It seems from the language
of Entry 63 that the Parliament has no power to take away the
status of an institute of national importance conferred upon BHU
or AMU, save and except by following the route of an amendment
to the Constitution itself. Though the Parliament can declare
any other institution as an institution of National Importance
through the route of Article 246; such plenary legislative power
cannot be invoked to take away the status of an institution of
National Importance, accorded by the Constitution.
190. Having delineated the issues of disagreement with the opinion of
Hon’ble the Chief Justice, we may hasten to add that one of the
conclusions assigned in Azeez Basha (supra), is such that it deserves
to be revisited. We say so for the reasons that:
a. In this regard, Azeez Basha (supra) rightly holds that the
expression ‘educational institutions’ is of very wide import and
would also include universities. It has correctly understood
that a religious minority has the right to establish a university
under Article 30(1). Azeez Basha (supra) is also right in
observing that there was no law in India before the Constitution
came into force, which prohibited any private individual or
body from establishing a university. Azeez Basha (supra)
further holds that no private individual or body could, prior
to 1950, insist that the degrees of any university established
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by them must be recognised by government. This position
continued even after the enactment of University Grants
Commission Act, 1956.
b. Azeez Basha (supra) however, seems to be erroneous to
the extent it holds that since Section 6 of the Aligarh Muslim
University Act, 1920 (AMU Act, 1920) provided that the degrees
conferred by the university would be recognised by government,
consequently, “an institution was brought into existence which
could not be brought into existence by a private individual or
body…” Azeez Basha (supra) might therefore not be correct in
its entirety and as a general principle of law, to hold that even if
the AMU Act, 1920 was passed as a result of the efforts of the
Muslim minority it “does not mean that the Aligarh University
when it came into being under the 1920 Act was established
by the Muslim minority”.
c. In this context, it is our considered opinion that the establishment
of a university, whether as a minority institution or as a
religion neutral institution of high standard, is a complex and
mixed question of law and fact. The legislative intent behind
the establishment of a university or an institution will have a
significant role in determining the status of such an institution.
For instance, if the Preamble or the Statement of Objects and
Reasons of a Statute explicitly states that the University or the
institution concerned is intended to be established and shall
be administered by a minority community, we see no reason
as to why such a University or institution would be denuded of
its minority character merely because it was created through
legislative means.
d. Conversely, if the Legislature by itself (particularly, post-
Constitution) decides to establish an institution where besides
preserving the culture, values, traditions, language and
conventions of a religious or linguistic minority community, it
promotes other streams of education without any barrier to
children belonging to other religions, it will be highly debatable
to discern whether such a university can take refuge under the
protective umbrella of Article 30.
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191. Having laid down the broad principles to be followed to determine
as to whether AMU qualifies as a minority institution within the
meaning of Article 30, we leave it for the regular bench to determine
such status, in light of the parameters laid down in our opinion.
We, therefore,do not deem it appropriate to express any final
view as to whether or not AMU is a minority institution within the
meaning of Article 30 of the Constitution. Accordingly, we refrain
ourselves from determining the factual issue enumerated as ‘Issue
No. VII’.

VI. Conclusion
192. Thus, drawing upon the comprehensive analysis presented in the
preceding sections, we thus hold that:
a. There is no conflict between the seven-judge bench opinion in
Kerala Education Bill (supra) and the five-judge Constitution
Bench in Azeez Basha (supra) on the other.
b. The six-judge Constitution Bench in Sidhajbhai Sabhai (supra),
laying down that the right under Article 30 is absolute and
unconditional, is not the correct principle of law; the judgement
is no more binding in nature and stands effectively overruled in
TMA Pai (supra), to that extent. Consequently, Azeez Basha
(supra) does not suffer from any legal infirmity on the premise
that it did not cite or follow Sidhajbhai Sabhai (supra).
c. There is no substantial difference between ‘doubting’ or
‘disagreeing’ with a judgement. That being so, the reference by
a two-judge bench in Anjuman (supra) doubting the correctness
of the five-judge bench in Azeez Basha (supra) and referring
it to a seven-judge bench suffers from multiple illegalities,
including judicial impropriety.
d. In view of the dictum of the Constitution Bench in Dawoodi
Bohra (supra), a two-judge bench has no authority whatsoever
to doubt or disagree with a judgement of the larger bench, and
directly refer the matter to a bench having a numerically greater
strength than the matter so doubted. The reference by the two-
judge bench in Anjuman (supra) is nothing but a challenge
to the authority of the Chief Justice of India being the master
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of the roster and in derogation of the special powers enjoyed
upon under Article 145 of the Constitution read with Order VII
Rule 2 of the Supreme Court Rules, 1966 (as was applicable).
Consequently, the said reference is not maintainable. However,
the subsequent reference dated 12.02.2019, in which the
then Hon’ble Chief Justice of India was the presiding judge, is
maintainable.
e. The reference in Anjuman (supra) to a seven-judge bench for
the reconsideration of the five-judge decision in Azeez Basha
(supra) is bad in law and ought to be set aside.
f. The Constitution Bench in Azeez Basha (supra),when it
holds that since Section 6 of the AMU Act, 1920 stipulates
that degrees conferred by AMU would be recognised by the
Government, it could not have been ‘brought into existence
by a private individual or body’, is seemingly incorrect. Accordingly,
and for the reasons assigned in paragraphs 190(b) and (c),the
said decision to that extent is hereby modified and clarified.
g. The minority institutions established in the pre-Constitution era
are also entitled to the protection conferred by Article 30.
h. Educational institutions, with reference to Article 30 include
universities as well.
i. In order to seek protection under Article 30 of our Constitution,
the minority institution must satisfy the conjunctive test, namely
that it was established by a minority community and has been/
is being administered by such a community.
j. The true import and meaning of the expressions ‘establish’ and
‘administer’, which comprise the very core of Article 30, are to
be construed and understood strictly in accordance with the
indicia in paragraphs 141 and 181.
k. The question pertaining to whether AMU satisfies the above-
mentioned test of ‘establish’ and ‘administer’ so as to seek
protection of Article 30 of the Constitution, and which will
concomitantly entail a mixed question of facts and law, will be
determined by a Regular Bench.
193. The reference is answered in the above terms. Ordered accordingly.
[2024] 11 S.C.R. 1855

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Dipankar Datta J.

Prologue
1. There is a saying, “the past refuses to lie buried”. Possibly, no other
case would demonstrate the validity of this statement more poignantly.
2. A Constitution Bench of 5 (five) Judges of this Court delivered its
verdict in the celebrated case of Union of India vs. Tulsiram Patel1
on 11th July, 1985, i.e., a little less than 40 (forty) years back. As the
youngest member of the bench, Hon’ble M.P. Thakkar, J. (as His
Lordship then was) expressed lament in the following words:
“178. A benevolent and justice-oriented decision of a
three-Judge Bench of this Court, rendered ten years back
in a group of service matters, [D.P.O., Southern Railway
v. T.R. Challappan, (1976) 3 SCC 190], is sought to be
overruled by the judgment proposed to be delivered by
my learned Brother Madon, J., with which, the majority
appear to agree. Challappan having held the field for
such a long time, it would have been appropriate if a
meeting of the Judges constituting the Bench had been
convened to seriously deliberate and evolve a consensus
as to whether or not to overrule it. A ‘give’ and ‘take’ of
ideas, with due respect for the holders of the opposite
point of view (in a true democratic spirit of tolerance),
with willingness to accord due consideration to the same,
would not have impaired the search for the true solution.
Or hurt the cause of justice. The holders of the rival view
points could have, perhaps, successfully persuaded and
converted the holders of the opposite point of view. Or
got themselves persuaded and converted to the other
point of view.
179. Brother Madon, J., to whom the judgment was
assigned by the learned Chief Justice, also appears to
suffer heart-ache on the same score, for, in his covering
letter dated July 6, 1985 forwarding the first instalment of
142 pages he says:

1 (1985) 3 SCC 398
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‘...I regret to state that the draft judgment could not be
sent to you earlier. The reason was that as we did not
have a meeting to discuss this matter, I did not know
what would be the view of my other Brothers on the
large number of points which fall to be determined in
these cases, except partly in the case of two of my
Brothers with whom by chance I got an opportunity
to discuss certain broad aspects....’
If only there had been a meeting in order to have a
dialogue, there might have been a meeting of minds, and
we might have spoken in one voice. Failing which, the
holders of the dissenting view point could have prepared
their dissenting opinions. That was not to be. On the other
hand, it has so transpired, that, the full draft judgment
running into 237 pages has come to be circulated in the
morning of July 11, 1985, less than 3 hours before the
deadline for pronouncing the judgment. There is a time
compulsion to pronounce the judgment, on 11th July, 1985,
as the learned Chief Justice who has presided over the
Constitution Bench is due to retire on that day, and the
judge-time invested by the five Judges would be wasted if
it is not pronounced before his retirement. The judge-time
would be so wasted because the entire exercise would
have to be done afresh. The neck-to-neck race against
time and circumstances is so keen that it is impossible to
prepare an elaborate judgment presenting the other point
of view within hours and circulate the same amongst all
the Judges constituting the Bench in this important matter
which was heard for months, months ago. I am, therefore,
adopting the only course open to me in undertaking the
present exercise.
180. ‘Challappan’, in my opinion, has been rightly decided.
And there is no compulsion to overrule it— ***”
I regret to find myself in the same unenviable position Hon’ble M.P.
Thakkar, J. was placed in Tulsiram Patel (supra).
3. Hearing of these appeals and petitions commenced on 9th January,
2024. Spread over 8 (eight) days of marathon hearing, learned
senior counsel/counsel advanced erudite arguments in respect of
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a reference which this Bench of 7 (seven) Judges has been called
upon to answer. Judgment was reserved on 1st February, 2024. The
task of authoring the judgment had not been assigned to me, which
obviously left me with no other option but to wait for the draft opinion
to reach my residential office. While the wait continued, it is only on
17th October, 2024 that the draft opinion authored by the Hon’ble
the Chief Justice of India2, being the presiding Judge of the Bench,
numbering 117 pages was placed on my desk. Aware of the deadline
of 10th November, 2024 (the day the HCJI would demit office) within
which the final judgment had to be pronounced, the task of reading
the learned dissertation started right away squeezing out time from
the long hours that had to be spent in getting ready for the matters
on board for each day and in conducting proceedings in court. No
sooner had I completed reading the draft opinion, came a revised
draft opinion of the HCJI spread over almost the equal number of
pages. It reached my residential office in the evening of 25th October,
2024, i.e., on the eve of the short Diwali break. Inter alia, there was
one very significant change in the revised draft. While in the first
draft “the test laid down” by a Constitution Bench of 5 (five) Judges
of this Court in S. Azeez Basha and Anr. vs. Union of India3 “to
determine if an educational institution is entitled to the guarantee
under Article 30(1)” of the Constitution of India4 was proposed to be
overruled, in the revised draft the view taken in Azeez Basha (supra)
“that an educational institution is not established by a minority if it
derives its legal character through a statute” has been proposed to
be overruled. The effect of the revised draft opinion of the HCJI is
the defenestration of the view taken in Azeez Basha (supra) that
Aligarh Muslim University5 is not a minority institution. Such view
has stood its ground for the last more than 50 (fifty) years. It is the
only decision of this Court where Article 30(1) was considered and
law laid down keeping establishment and administration of a pre-
independence era university in perspective as distinguished from
schools and colleges, which have been the subject matter of other
Constitution Bench decisions. Utilising the short Diwali break, the

2 HCJI, hereafter
3 (1968) 1 SCR 833
4 Constitution
5 “AMU” or “University”, hereafter, depending upon the context
1858 [2024] 11 S.C.R.

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draft opinions were read many times over together with perusal of
the materials on record to decide whether the erudite opinion of the
HCJI commended acceptance by me. On 2nd November, 2024, came
another few pages from the office of the HCJI containing corrections
effected in quite a few of the paragraphs of the revised draft opinion
in track changing mode with paragraph 72 being altogether deleted.
4. Difficult though it is to disagree with any opinion penned by the HCJI,
which has always been a product of thorough research and high
intellect and is thoughtfully expressed, I could not persuade myself
to completely agree with the opinion expressed in the revised drafts
and the whole of the proposed conclusions recorded therein. This
is when I had decided to pen my own opinion encapsulating my
thoughts in brief having regard to the very short time at my disposal.
5. While on the task of preparing the draft opinion and completing it for
circulation, arrived separate draft opinions of Hon’ble Surya Kant,
J. and Hon’ble Satish Chandra Sharma, J. on 6th November, 2024.
Rummaging through the draft opinions penned by Their Lordships, I
felt inclined to substantially agree with the thoughts and conclusions
expressed therein. However, in view of disagreements on a couple of
points, coupled with my inability to be ad idem with the noteworthy
progressive approach of the HCJI, writing a separate opinion (which
was already in progress and was nearing completion) seemed all
the more the better, the safer and the easier option.
6. I do not grudge getting very little time to express my views in the
manner I would have wished to express. Had it not been a race
against time to circulate the opinion by 6th November, 2024, the limit
I had set for myself and assured to the HCJI, the opinion could have
been much better articulated and more compact. But my pain is truly
reflected in the passage from Tulsiram Patel (supra)quoted above
and how, despite all the advancements in the justice delivery system
that we proudly boast of having introduced, in a way history seems to
have repeated itself. Here, a Constitution Bench of 7 (seven) Judges
had apparently embarked on a voyage to interpret Article 30(1) of
the Constitution navigating through considerable weight of materials
without any physical or virtual meeting of the members of the Bench
post-reservation of judgment, not to speak of meeting of minds, either
immediately after hearing was concluded or even 9 (nine) months
thereafter (either collectively or even in small groups of four-five) to
explore which acceptable direction should the outcome sail. A common
[2024] 11 S.C.R. 1859

Aligarh Muslim University v. Naresh Agarwal & Ors.

venue for a purposeful and effective dialogue where members of the
bench could freely express their points of view, an attempt to share
thoughts and to exchange opinions, a ‘give’ and ‘take’ of ideas, in
true democratic spirit to build up a consensus - all these seem to
have taken a backseat, having regard to the immense pressure of
work which we, the HCJI and the other Judges on the bench, have
undertaken during the time ever since the judgment was reserved.
Judicial and administrative works of varied nature, which I need not
dilate here, also weighed me down to such an extent that sending a
request to the HCJI for a meeting of all the colleagues at this stage
would have been too late to make a difference (if at all it were to
happen). Alas, without any insightful and constructive discussion of
the rival contentions in the presence of all the members comprising
this Bench of 7 (seven) Judges, it is only individual opinions of 4 (four)
Judges that could be crafted and circulated for perusal and approval.
7. That being said, after circulation of my draft opinion, all the Judges
forming the quorum had the occasion to meet together for a little
while on 7th November, 2024, when it emerged that the opinion of the
HCJI, as circulated, had the concurrence of 3 (three) Judges6 and I
was part of the minority trio (3 out of 7) with a distinct perspective.
As the narrative would reveal, my view diverges from the other 2
(two) Judges in the minority.
8. Since it was revealed in the aforesaid meeting that my view did not
align with the majority, my draft opinion warranted certain changes
and such changes have been incorporated in this final opinion without
changing the core foundation thereof.

The Reference
9. This Constitution Bench of 7 (seven) Judges has been constituted
by the HCJI pursuant to a reference made by a bench of 3 (three)
Judges of this Court vide order dated 12th February, 20197 in Aligarh
Muslim University vs. Naresh Agarwal and Ors.8 Though the said
order is ostensibly the referral order necessitating constitution of
this Bench, in reality, the reference has its roots in an order dated

6 majority opinion, hereafter
7 Civil Appeal No. 2286/2006
8 (2020) 13 SCC 737
1860 [2024] 11 S.C.R.

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26th November, 1981 passed by a bench of 2 (two) Judges of this
Court in Anjuman-e-Rahmania and Ors. vs. Distt. Inspector of
School and Ors.9. I am inclined to the view, based on my reading
of the orders in Anjuman-e-Rahmania (supra) and Aligarh Muslim
University (supra), that the former order could well qualify as the
referral order for the reference and the latter the re-referral order
for the re-reference (to be referred hereafter as such for clarity).
The reasons, therefor, are not far to seek and would unfold as one
proceeds to read this opinion.
10. At the outset, I find it significant to record that this Bench has been
addressed by at least half a dozen senior counsel/counsel on why
the decision in Azeez Basha (supra) ought to be reconsidered and
overruled. In the context of the decision dated 5th January, 200610
rendered by the High Court of Judicature of Allahabad11 in an intra-
court appeal12, the issue assumes some importance and it is indeed
essential to consider whether Azeez Basha (supra) should at all be
reconsidered merely because of the two referral orders coupled with
the fact that the issues are before a Constitution Bench of 7 (seven)
Judges of which the HCJI is the presiding Judge. If the orders of
reference are found to be ex facie flawed and non-est, as the learned
Solicitor General and other senior counsel who addressed the Bench
on behalf of the respondents have urged us to hold, the re-reference
would be plainly incompetent.
11. In the cacophony of dissonant notes, one ought not to forget that the
hallmark of a judicial pronouncement is its stability and finality. I am
reminded of what the HCJI speaking for the bench in Supertech Ltd.
vs. Emerald Court Owner Residents Association13 said, - “judicial
verdicts are not like sand dunes which are subject to the vagaries
of wind and weather”.There cannot be any doubt that this Court has
extensive powers to correct an error or to review its decision, but
such correction / review ought not to be at the cost of the doctrine of
finality. An issue of law can be overruled by a subsequent decision
but a decision on questions of fact should not be reopened once it

9 Writ Petition (Civil) Nos. 54-57 of 1981
10 2006 SCC OnLine All 2207
11 High Court, hereafter
12 Special Appeal No. 1324/2005
13 (2023) 10 SCC 817
[2024] 11 S.C.R. 1861

Aligarh Muslim University v. Naresh Agarwal & Ors.

has been finally sealed in proceedings relating to the same subject
matter.
12. Also, the doctrine of stare decisis has to be given due credence.
Hon’ble H.R. Khanna, J (as His Lordship then was) while being part
of a Constitution Bench and agreeing with the majority opinion in
Maganlal Chhaganlal (P) Ltd. vs. Municipal Corpn. of Greater
Bombay,14 made telling observations reading as follows:
“22. I must also utter a note of caution against the tendency
to lightly overrule the view expressed in previous decisions
of the Court. It may be that there is a feeling entertained
by certain schools of thought, to quote the words of
Cardozo, that
‘... the precedents have turned upon us and are
engulfing and annihilating us — engulfing and
annihilating the very devotees that worshipped at their
shrine. So the air is full of new cults that disavow the
ancient faiths. Some of them tell us that instead of
seeking certainty in the word, the outward sign, we
are to seek for something deeper, a certainty relative
and temporary, a writing on the sands to be effaced
by the advancing tides. Some of them even go so far
as to adjure us to give over the vain quest, to purge
ourselves of these yearnings for the unattainable
ideal, and to be content with an empiricism that is
untroubled by strivings for the absolute.’ (See page
9 Selected Writings of Benjamin Nathan Cardozo by
Margaret E. Hall.)
At the same time, it has to be borne in mind that certainty
and continuity are essential ingredients of rule of law.
Certainty in law would be considerably eroded and suffer
a serious set back if the highest court of the land readily
overrules the view expressed by it in earlier cases, even
though that view has held the field for a number of years.
In quite a number of cases which come up before this
Court, two views are possible, and simply because the
Court considers that the view not taken by the Court in

14 (1974) 2 SCC 402
1862 [2024] 11 S.C.R.

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the earlier case was a better view of the matter would not
justify the overruling of the view. The law laid down by this
Court is binding upon all courts in the country under Article
141 of the Constitution, and numerous cases all over the
country are decided in accordance with the view taken
by this Court. Many people arrange their affairs and large
number of transactions also take place on the faith of the
correctness of the view taken by this Court. It would create
uncertainty, instability and confusion if the law propounded
by this Court on the basis of which numerous cases have
been decided and many transactions have taken place is
held to be not the correct law. This Court may, no doubt,
in appropriate cases overrule the view previously taken by
it but that should only be for compelling reasons.
***”
(emphasis supplied)

Sadly, these are dicta which very few tend to remember not to speak
of applying the same.
13. I have noted that as per the draft opinion of the HCJI, the question as
to whether AMU “is a minority educational institution must be decided
based on the principles laid down in this judgment”. In view of such
proposed order, and since it is also the majority opinion now and thus
final, it is a foregone conclusion that history would be rewritten and
declaration of AMU by this Court as a minority educational institution
is only a matter of time.
14. Not only is Azeez Basha (supra) a judicial verdict more than half a
century old on the status of AMU vis-à-vis minority rights, but it has a
strong foundational basis and is anchored in robust legal reasoning.
It has withstood, so to say, the vagaries of wind and weather and
stands tall as a pyramid in the desert. The decision was rendered by
Judges of the pre-independence era who, apart from being no less
knowledgeable than us, were people having grown up while India
was struggling for independence and (must have) witnessed such
struggle from close quarters. I cannot lay claim to match their wisdom
and experience; but without being unduly overawed by the stature
of the Judges on the bench and viewing the reasons assigned in
Azeez Basha (supra) for not declaring AMU as a minority educational
[2024] 11 S.C.R. 1863

Aligarh Muslim University v. Naresh Agarwal & Ors.

institution, a University which was established in 1920 and whose
status from inception till the Constitution came into effect has remained
unchanged, I consider it prudent to say that the view taken therein, in
the given facts and circumstances, is indeed a plausible view which
demands due deference rather than the view being overruled at this
distance of time. A relook at it for recasting of the opinion cannot be
resorted to, as I presently propose to demonstrate,without throwing
asunder all the established doctrines in the wake of referral orders
which themselves bear the mark of invalidity on their foreheads.
15. However, before I venture to consider the orders of reference/re-
reference, a glance at what Azeez Basha (supra) decided would
not be inapposite.
16. In Azeez Basha (supra), this Court considered the legal sustainability
of the 1951 and 1965 amendments to the Aligarh Muslim University
Act, 192015. These amendments were challenged as violative of
the Fundamental Rights enumerated, inter alia, under Articles 26
and 30 of the Constitution. In such decision, it was held by this
Court both on facts as well as law that AMU cannot be declared a
minority institution. It was held that AMU was not established by a
minority community, as it was the creature of a statute. The right
under Article 30(1) was interpreted so as to give the linguistic and
religious minorities the right to administer the institutions which were
established by the minority community. Building on this argument,
the Court further stated that a minority would not enjoy the rights of
administering the institution not established by it, merely because
it might have been administering it before the Constitution came
into force. The phrase “establish and administer” in Article 30 has
to be read conjunctively and there is no precedent which holds
that it can be read disjunctively. The Court further went on to hold
that in 1920, there was nothing to stop the Muslim community from
establishing a university if they so desired. The nucleus of AMU
was Mohammedan Anglo-Oriental College16, an institution under
the Allahabad University. The conversion of MAO College to AMU
was not undertaken or effectuated by the Muslim community, but by
the force of statute. Therefore, this Court declared that AMU was
established by the Central Legislature of British India.

15 AMU Act, hereafter
16 MAO College, hereafter
1864 [2024] 11 S.C.R.

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17. Through Azeez Basha (supra), this Court distinguished its earlier
Constitution Bench decision in Re: Kerala Education Bill.17 An
argument was raised therein that only minority institutions established
post the commencement of the Constitution could be granted the
protection under Article 30(1). This Court in Re: Kerala Education
Bill (supra) held that any institution, whether established before or
after the commencement of the Constitution,could be afforded the
protection under Article 30(1) as Article 30(1) would lose much of its
content if interpreted so narrowly. But it was pointed out that in Re:
Kerala Education Bill (supra), this Court never held that the terms
“administer” and “establish” can be read disjunctively.
18. The decision in Azeez Basha (supra) was doubted in Anjuman-
e-Rahmania (supra), and was referred to a bench of 7 (seven)
Judges for reconsideration. That proceeding germinated from an
unconnected writ petition filed by an institution registered under the
Societies Registration Act, 186018 and was hardly related to the issue
of the minority character of AMU. In fact, the question of law arising
for decision in the writ petition under Article 32, briefly captured in
the order dated 26th November, 1981, would show that there was
no factual similarity with that in Azeez Basha (supra).
19. It is, therefore, considered proper to read the referral order in its
entirety for facility of proper understanding of what the bench of 2
(two) Judges in Anjuman-e-Rahmania (supra) had in mind and
what was the ultimate direction. The said order reads as follows:
“After hearing counsel for the Parties, we are clearly
of the opinion that this case involves two substantial
questions regarding the interpretation of Article 30(1)
of the Constitution of India. The present Institution was
founded in the year 1938 and registered under the
Societies Registration Act in the year 1940. The documents
relating to the time when the institution was founded
clearly shows that while the institution was established
mainly by the Muslim community but there were members
from the non-muslim community also who participated
in the establishment process. The point that arises is as

17 1959 SCR 995
18 Societies Act, hereafter
[2024] 11 S.C.R. 1865

Aligarh Muslim University v. Naresh Agarwal & Ors.

to whether Act. 30(1) of the Constitution envisages an
institution which is established by minorities alone without
the participation for the factum of establishment from any
other community. On this point, there is no clear decision
of this court. There are some observations in S. Azeez
Basha & ors. Vs. Union of India 1968 (1) SCR 333, but
these observations can be explained away. Another point
that arises is whether soon after the establishment of the
institution if it is registered as a Society under the Society
Registration Act, its status as a minority institution changes
in view of the broad principles laid down in S. Azeez Basha’s
case. Even as it is several jurists including Mr. Seervai
have expressed about the correctness of the decision of
this court in S. Azeez Basha’s case. Since the point has
arisen in this case we think that this is a proper occasion
when a larger bench can consider the entire aspect fully.
We, therefore, direct that this case may be placed before
Hon. The Chief Justice for being heard by a bench of at
least 7 judges so that S. Azeez Basha’s case may also be
considered and the points that arise in this case directly
as to the essential conditions or ingredients of the minority
institution may also be decided once for all. A large number
of jurists including Mr. Seervai, learned counsel for the
petitioners Mr. Garg and learned counsel for respondents
and interveners Mr. Dikshit and Kaskar have stated that
this case requires reconsideration. In view of the urgency
it is necessary that the matter should be decided as early
as possible we give liberty to the counsel for parties to
mention the matter before Chief Justice.”
(emphasis supplied)

20. Ever since the mid-fifties of the last century, the entire functional
strength of Judges of the Supreme Court of India has never assembled
to decide any case. The last time the entire strength of 8 (eight) Judges
did assemble was in 1954, when the Constitution Bench decided two
writ petitions under Article 32 of the Constitution in M. P. Sharma vs.
Satish Chandra.19 It is well known that while discharging its judicial

19 (1954)1 SCC 385
1866 [2024] 11 S.C.R.

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duties, owing to administrative exigency and practical expedience,
the Supreme Court of India functions through separate benches.
Although voices of the benches could be different on a common point
of law, yet, the reasons and the ultimate conclusions are treated as
the view-point of the Supreme Court. No matter the strength, all these
voices bear the symbol of the Supreme Court. It is also well known
that it is the power of the Chief Justice of India, on the administrative
side, to determine appropriate numerical strength of the benches.
However, the mere fact of this Bench having a numerical strength
of 7 (seven) Judges and presided over by none other than the Chief
Justice of India does not necessarily make it competent to decide
the re-reference, if the orders of reference/re-reference are found to
be seriously flawed and no such reference/re-reference should have
or could have been made in the first place. I presently proceed to
assign my view-point in support of my conclusion that the reference
as well as the re-reference is incompetent.
21. The discussion on why the order in Anjuman-e-Rahmania (supra)
is completely flawed and, thus, should not have any bearing on the
re-reference must start with the decision in Lala Shri Bhagwan vs.
Shri Ram Chand.20 Deprecating the approach of a Single Judge of the
relevant high court, who had taken upon himself the task of deciding
whether earlier decisions of Division Benches of the same high
court ought to be reconsidered and revised based on his perception
that such decisions stood impliedly overruled by a decision of this
Court, Hon’ble P.B. Gajendragadkar, CJ. (as His Lordship then was)
speaking for a bench of 3 (three) Judges observed:
“18. *** It is hardly necessary to emphasise that
considerations of judicial propriety and decorum require
that if a learned Single Judge hearing a matter is inclined
to take the view that the earlier decisions of the High
Court, whether of a Division Bench or of a Single Judge,
needed to be reconsidered, he should not embark upon
that enquiry sitting as a Single Judge, but should refer the
matter to a Division Bench or, in a proper case, place the
relevant papers before the Chief Justice to enable him to
constitute a larger Bench to examine the question. That

20 [1965] 3 SCR 218
[2024] 11 S.C.R. 1867

Aligarh Muslim University v. Naresh Agarwal & Ors.

is the proper and traditional way to deal with such matters
and it is founded on healthy principles of judicial decorum
and propriety. It is to be regretted that the learned Single
Judge departed from this traditional way in the present
case and chose to examine the question himself.”
22. It is true that this Court had the occasion to make the above
observations arising out of the concern that the healthy principles
of judicial decorum and propriety had not been followed by a Single
Judge of a high court who had departed from the traditional way.
However, what is significant and follows from the above passage
is that a Single Judge, even if he is not in agreement with the view
of a Division Bench which is binding on him, cannot refer the case
straightaway to a larger bench; at the most, he may refer the case
to a Division Bench or, in a proper case, direct placing of the papers
before the Chief Justice to take a call on whether constitution of a
larger bench is warranted or not. A Single Judge cannot decide the
case himself by not following the binding decision of the Division
Bench, with which he disagrees or has a doubt about its correctness.
The position of law that emerges is that constitution of the bench,
whether it be a combination of 2 (two), 3 (three) or more, must be
left to the Chief Justice. However, there could be no valid reason as
to why what was observed in the aforesaid excerpt by His Lordship
would not proprio vigore apply to Judges of this Court too.
23. The principle is simple. Whether it be the Supreme Court, or the
high courts, it is beyond any shadow of doubt that a decision of a
bench of greater strength is binding on a bench of lesser strength.
Our system of administration of justice aims at certainty in the law
and that can be achieved only if Judges do not ignore decisions by
courts of coordinate authority or of superior authority. This is not to
say that the bench of lesser strength is denuded of the authority or
competence to distinguish the decision of greater strength based on
consideration of facts that are involved.
24. It has, however,been considered uniformly to be an act of breach
of judicial propriety and discipline if a bench of lesser strength [of
2 (two) Judges] casts doubt in respect of a decision rendered by
a bench of greater strength [of 5 (five Judges] and a request is
made to the Chief Justice of India to constitute a still larger Bench
[of 7 (seven Judges]. This concept was extensively ratiocinated
1868 [2024] 11 S.C.R.

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in Central Board of Dawoodi Bohra Community vs. State of
Maharashtra.21Hon’ble R.C. Lahoti, CJ. (as His Lordship then was),
speaking for the Bench held:
“12. Having carefully considered the submissions made
by the learned Senior Counsel for the parties and having
examined the law laid down by the Constitution Benches
in the abovesaid decisions, we would like to sum up the
legal position in the following terms:
(1) The law laid down by this Court in a decision delivered
by a Bench of larger strength is binding on any subsequent
Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent
from the view of the law taken by a Bench of larger quorum.
In case of doubt all that the Bench of lesser quorum
can do is to invite the attention of the Chief Justice and
request for the matter being placed for hearing before a
Bench of larger quorum than the Bench whose decision
has come up for consideration. It will be open only for a
Bench of coequal strength to express an opinion doubting
the correctness of the view taken by the earlier Bench of
coequal strength, whereupon the matter may be placed
for hearing before a Bench consisting of a quorum larger
than the one which pronounced the decision laying down
the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) the
abovesaid rules do not bind the discretion of the Chief
Justice in whom vests the power of framing the roster
and who can direct any particular matter to be placed
for hearing before any particular Bench of any strength;
and (ii) in spite of the rules laid down hereinabove, if the
matter has already come up for hearing before a Bench
of larger quorum and that Bench itself feels that the view
of the law taken by a Bench of lesser quorum, which view
is in doubt, needs correction or reconsideration then by
way of exception (and not as a rule) and for reasons given

21 (2005) 2 SCC 673
[2024] 11 S.C.R. 1869

Aligarh Muslim University v. Naresh Agarwal & Ors.

by it, it may proceed to hear the case and examine the
correctness of the previous decision in question dispensing
with the need of a specific reference or the order of the
Chief Justice constituting the Bench and such listing. Such
was the situation in Raghubir Singh 22 and Hansoli Devi23.”
(emphasis supplied)

25. In Hansoli Devi (supra), the Constitution Bench of 5 (five) Judges
followed the earlier decision of the Constitution Bench of 5 (five)
Judges in Pradip Chandra Parija vs. Pramod Chandra Patnaik.24
It was held in Pradip Chandra Parija (supra) that judicial discipline
and propriety demands that a bench of 2 (two) learned Judges
should follow a decision of a bench of 3 (three) learned Judges.
But if a bench of 2 (two) learned Judges concludes that an earlier
judgment of a bench of 3 (three) learned Judges is so very incorrect
that in no circumstances can it be followed, the proper course for
it to adopt is to refer the matter before it to a bench of 3 (three)
learned Judges setting out the reasons why it could not agree with
the earlier judgment and if the bench of 3 (three) learned Judges also
comes to the conclusion that the earlier judgment of a bench of 3
(three) learned Judges is incorrect, then a reference could be made
to a bench of 5 (five) learned Judges. In view of such decision, the
Constitution Bench in Hansoli Devi (supra) held the very reference
itself made by 2 (two) learned Judges to be improper.
26. Campaign for Judicial Accountability and Reforms vs. Union of
India 25 is also a Constitution Bench decision of recent origin of 5
(five) Judges. In a somewhat different context, the bench ruled that
“there cannot be any kind of command or order directing the Chief
Justice of India to constitute a particular Bench”.
27. These decisions of high authority seek to reinforce the principles of
judicial discipline, propriety and comity, which have been followed
by the courts since time immemorial. Permitting a bench of lesser
strength to doubt a decision given by a bench of greater strength

22 (1989) 2 SCC 754
23 (2002) 7 SCC 273
24 (2002) 1 SCC 1
25 (2018) 1 SCC 196
1870 [2024] 11 S.C.R.

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and to refer a given issue to a still larger bench would be in the
teeth of principles which are well-established and well-entrenched.
Doctrines of precedents and stare decisis provide a level of certainty to
individuals appearing before the court and bring a degree of objectivity
in a largely subjective decision-making process. The litigant needs to
have confidence that the legal position which has been chiselled on
the tapestry of law by legal precedents will not be unceremoniously
blown away through subsequent judicial commands, which could be
ill-advised, like the vagaries of wind and weather. It would behove
this Court to remember the legal maxim interest republicae ut sit
finis litium, i.e., it is in the interest of the State that there be an
end to litigation, and the importance of not disturbing legally sound
precedents without following the procedure established by law.
28. Although Pradip Chandra Parija (supra), Hansoli Devi (supra) and
Central Board of Dawoodi Bohra Community (supra) are later
decisions and were not in existence when the order in Anjuman-
e-Rahmania (supra) was made by the bench of 2 (two) Judges, it
matters little. The principle flowing from Lala Shri Bhagwan (supra)
bound the bench of 2 (two) Judges in Anjuman-e-Rahmania (supra).
The law laid down, in the decisions post Anjuman-e-Rahmania
(supra), is neither expressly nor even impliedly made to operate
prospectively. Besides, it seems elementary though it requires to
be restated that a bench sitting in a combination of 2 (two) Judges
is bound by what is laid down by a Constitution Bench of 5 (five)
Judges and should the bench of lesser strength have valid reasons
to disagree with the view expressed by the latter bench of 5 (five),
the former bench of 2 (two) cannot straightway make a reference
for being placed before a Constitution Bench of greater numerical
strength. I am left to wonder how the bench of 2 (two) Judges in
Anjuman-e-Rahmania (supra) could at all request that the case be
placed before a bench of at least 7 (seven) Judges. Without a doubt,
what the bench in Anjuman-e-Rahmania (supra) did was not only
plainly impermissible in law but the referral order answers the test
for holding a judgment per incuriam. If “doubting the correctness
of the opinion in Azeez Basha (supra), without disagreeing with it”
could permit the bench in Anjuman-e-Rahmania (supra) to request
the Chief Justice of India to place the matter for being heard by a
bench of 7 (seven) Judges and such a course of action were held to
be permissible and within the limits of Central Board of Dawoodi
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Bohra Community (supra), as proposed in the majority opinion
(paragraph 39 of the revised draft) - I am afraid, tomorrow, a bench
of 2 (two) Judges, referring to opinions of jurists [as in Anjuman-
e-Rahmania (supra)] could well doubt the ‘basic structure’ doctrine
and request the Chief Justice of India to constitute a bench of 15
(fifteen) Judges. The reasoning in the majority opinion, with due
respect, appears to be based on an incomplete reading of paragraph
12(2) of Central Board of Dawoodi Bohra Community (supra),
extracted supra. Though the second sentence of the said paragraph
is a bit ambiguous, but the same- read harmoniously with the other
sentences - would lead to the inevitable conclusion that even in case
of a doubt being expressed by a bench of 2 (two) Judges in respect
of the ratio laid down by a bench of 5 (five) Judges, the case on
a reference being made (with sufficient reasons) ought to be first
placed before a bench of 3 (three) Judges, and not to a bench of
either 5 (five) or 7 (seven) Judges. If, indeed, the proposed view in
the majority opinion were accepted, all the precedents referred to
above would stand overruled and a legal principle, which hitherto
no bench of this Court did, would be laid down and, in the process,
the floodgates for unmeritorious references opened. In my humble
view, that would be an incorrect and improper approach. Hence, for
the foregoing reasons and for all intents and purposes,the order of
reference in Anjuman-e-Rahmania (supra) must be regarded as
completely flawed and non-est.
29. One other interesting feature draws attention. The bench in Anjuman-
e-Rahmania (supra), perceiving the matter to be urgent, granted
liberty to the counsel for the parties to mention the matter before
the Chief Justice of India for an early decision but the file seems
to have gathered dust ever since. There is hardly any material on
record to suggest that either the incumbent Chief Justice of India or
any of the successive Chief Justices of India for the next 20 (twenty)
years, thought it fit to direct the office to dust the dust for a bench
of 7 (seven) Judges to be constituted to decide the issue that was
referred, assuming that question 3(a) formulated for an answer by the
Constitution Bench of 11 (eleven) Judges in T.M.A. Pai Foundation
and ors. vs. State of Karnataka and ors.26 was inspired by the
order in Anjuman-e-Rahmania (supra). Res ipsa loquitur!

26 (2002) 8 SCC 481
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30. The contention that the said order in Anjuman-e-Rahmania (supra)
was acted upon and the bench in T.M.A. Pai Foundation (supra)
being called upon to address question 3(a) could be traced to the
order in Anjuman-e-Rahmania (supra),apart from being incorrect,
pales into insignificance for primarily two reasons. In T.M.A. Pai
Foundation (supra), initially 9 (nine) questions were framed,27 later
10 (ten) questions were framed 28and finally 11 (eleven) questions
were framed by the bench of 11 (eleven) Judges. Neither does one
find reference in the said orders framing questions to any decision/
order of this Court including Anjuman-e-Rahmania (supra) nor is
the order in Anjuman-e-Rahmania (supra) referred to in the entire
judgment in T.M.A. Pai Foundation (supra). To say that question
no. 3(a) was framed because of Anjuman-e-Rahmania (supra)
appears to be thoroughly misconceived. While T.M.A. Pai Foundation
(supra) did not answer question 3(a), the Regular Bench too was not
persuaded to decide the same as it appears from its order dated 11th
March, 2003 in Shahal H. Musaliar and Anr. vs. Union of India
and Ors.29 The proceedings in Anjuman-e-Rahmania vs. District
Inspector effectively stood closed by the order of this Court dated
11th March 2003.
31. Significantly, T.M.A. Pai Foundation (supra) came to be considered
by two more Constitution Bench decisions of this Court, viz. Islamic
Academy of Education vs. State of Karnataka30 and P.A. Inamdar
vs. State of Maharashtra31 not too long thereafter. The former
decision does record that the Constitution Bench of 5 (five) Judges
was constituted to clarify doubts/anomalies, if any, arising from varied
interpretation of the majority view in T.M.A. Pai Foundation (supra)
by the parties. The Constitution Bench of 7 (seven) Judges in the
latter decision has also recorded that post T.M.A. Pai Foundation
(supra), petitions flooded the high courts as well as this Court
to resolve issues which were not answered by the bench of 11
(eleven) Judges. Relevance of Islamic Academy of Education
(supra) and P.A. Inamdar (supra) lies in the fact that these decisions

27 (2002) 8 SCC 713
28 (2002) 8 SCC 712
29 Writ Petition (C) No.331 of 2005
30 (2003) 6 SCC 697
31 (2005) 6 SCC 537
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attempted to iron out creases arising from the decision in T.M.A. Pai
Foundation (supra). If indeed question 3(a) required an answer,
I would be persuaded to think that either Islamic Academy of
Education (supra) or P.A. Inamdar (supra) would have answered
it. That the Constitution Benches did not attempt to answer question
3(a) should leave none in doubt that the said question did not merit
an answer.
32. After the order dated 11th March 2003 of disposal in Shahal H.
Musaliar (supra),the matter lay dormant for a period of time; it was
resuscitated when AMU, through its Executive Council, passed a
resolution dated 19th May 2005, reserving 50% seats in postgraduate
programmes for Indian Muslims. This resolution was challenged
before the High Court invoking its writ jurisdiction. Both the Single
Judge and the Division Bench of the High Court held that the
reservation, sought to be made, could not be enforced. The Division
Bench, relying on Azeez Basha (supra), went even further than the
Single Judge and set aside the 1981 amendment to the AMU Act.
The Division Bench observed that the 1981 amendment sought to
side step Azeez Basha (supra) without removing the basis on which
Azeez Basha (supra) was rendered. The judgment of the Division
Bench was carried in appeal before this Court by AMU and it is on
such appeal that the re-referral order was passed by the bench of
3 (three) Judges, which I propose to note now.
33. On 12th February, 2019, the bench of 3 (three)Judges in Aligarh
Muslim University (supra),after noticing the aforesaid developments,
proceeded to hold that “the correctness of the question arising from
the decision of this Court in S. Azeez Basha (supra) has remained
undetermined”. The order that followed such observation reads as
under:
“9. That apart, the decision of this Court in Prof. Yashpal
and another vs. State of Chhattisgarh and others and
the amendment of the National Commission for Minority
Educational Institutions Act, 2004 made in the year 2010
would also require an authoritative pronouncement on the
aforesaid question formulated, as set out above, besides
the correctness of the view expressed in the judgment
of this Court in S. Azeez Basha (supra) which has been
extracted above.
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10. Ordinarily and in the normal course the judicial discipline
would require the Bench to seek a reference of this matter
by a Five Judges Bench. However, having regard to the
background, as stated above, when the precise question
was already referred to a Seven Judges Bench and was,
however, not answered, we are of the view that the present
question, set out above, should be referred to a Bench of
Hon’ble Seven Judges.
11. Consequently and in the light of the above, place these
matters before the Hon’ble the Chief Justice of India on
the administrative side for appropriate orders.”
34. Why I perceive the re-referral order to suffer from the same invalidity
and to be untenable is this. Apart from Anjuman-e-Rahmania (supra)
being non-est for the reason adverted to above, neither the bench
of 11 (eleven) Judges in T.M.A. Pai Foundation (supra) nor the
Regular Bench of 2 (two) Judges considered it necessary to answer
question 3(a). The order dated 11th March, 2003 observing that the
question could be answered should a problem arise in future did put
a quietus, for the time being, to question 3(a), as formulated, as well
as provided finality qua what was said about Azeez Basha (supra)
in Anjuman-e-Rahmania (supra). Once the issue attained finality,
in my respectful opinion, the bench of 3 (three) Judges could not
have reopened the same issue. It could be revisited in exceptional
circumstances and that too, in a manner known to law. No intra-court
appeal being available in the Supreme Court and in the absence of
any allegation of fraud having vitiated the process of decision making,
and there being no occasion for exercise of the inherent powers of
the Court, it would have been most appropriate for the bench of 3
(three) Judges on 12th February, 2019 not to refer to Azeez Basha
(supra) at all. What the bench of 3 (three) Judges did, so to say, was
sort of making an order as if it were exercising appellate jurisdiction
over the decision in T.M.A. Pai Foundation (supra), the order dated
11th March 2003, Islamic Academy of Education (supra) and P.A.
Inamdar (supra) [last two without being noticed]. Significantly, the
re-reference was made citing the necessity to consider the decision
in Prof. Yashpal vs. State of Chhattisgarh32 and the amendment

32 (2005) 5 SCC 420
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of the National Commission for Minority Educational Institutions Act,
200433 which, as per the majority opinion, have no real bearing with
regard to the issue under consideration. Indeed, even if the decision in
Prof. Yashpal (supra) and the 2004 Act were to make any difference
to the legal position, hitherto settled, reference to that limited extent
only could be justified with a call to answer question 3(a), extracted
supra, independently and without referring to Azeez Basha (supra).
35. An issue which has some bearing on the correctness or otherwise
of the decision in Azeez Basha (supra) [assuming that the order in
Anjuman-e-Rahmania (supra) was valid and did form the ground
for framing question 3(a)], if consciously has not been decided in
course of a previous round of litigation, would it give rise to an
occasion for a subsequent bench to hold that the issue should be
decided because it has not been decided? Exercise of jurisdiction
by a bench of lesser strength would not permit such an approach.
That the bench of 3 (three) Judges was presided over by none other
than the then Chief Justice of India did not make things better and
ameliorate the circumstances. With due respect and utmost humility
at my command, although the Chief Justice of India is primus inter
pares and on the administrative side has powers and authority which
no puisne Judge has, the Chief Justice of India while discharging
judicial functions on the bench with a puisne judge or judges may
not enjoy any power greater than what the puisne judge or judges
forming the quorum has/have in authoring judgments/ passing orders.
Therefore, the re-referral order merely by reason of the presence
of the Chief Justice on the bench did not get sanctified. It was not
that the bench of 3 (three) Judges were not alive to the settled law
and the principles of judicial propriety, discipline and comity; yet,
any doubt touching upon the correctness or otherwise of the view
expressed in Azeez Basha (supra), if at all, should not have been
sought to be resolved by referring the matter directly to a bench of
7 (seven) Judges. Such an order of reference, apart from being in
the teeth of Pradip Chandra Parija (supra), Hansoli Devi (supra)
and Central Board of Dawoodi Bohra Community (supra), could
not have been justified by reasoning that earlier, the issue had been
referred to a bench of 7 (seven) Judges. It was incumbent on the
bench while hearing Aligarh Muslim University (supra) to examine

33 NCMEI Act, hereafter
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whether the referral order made in Anjuman-e-Rahmania (supra)
was legal and valid. Answering the said question could have obviated
the need for a further referral. Nothing much turns on the fact that
all of us are now sitting in a combination of 7 (seven) Judges. The
Anjuman-e-Rahmania (supra) referral order being non-est, to my
mind, any order premised thereon is also non-est. At best, the bench
of 3 (three) Judges in Aligarh Muslim University (supra) could have
required a bench of 5 (five) Judges to reconsider whether question
3(a), which fell for consideration in T.M.A. Pai Foundation (supra),
does at all require an answer [not in the light of whatever Azeez
Basha (supra) had held while interpreting Article 30(1)] and only upon
formation of an opinion that it does, should the further referral been
made to a bench of 7 (seven) Judges to maintain judicial propriety,
discipline and comity. The course of action adopted in Aligarh
Muslim University (supra), thus, does not commend to me to be
in accordance with established principles of law and should have
well been avoided, being unnecessary. However, I repeat, any issue
arising out of the law laid down in Azeez Basha (supra) was not
open to be referred once again even after noticing that the earlier
endeavours to overturn Azeez Basha (supra) had proved abortive.
36. More often than not, this Court treats procedure as a hindrance
towards attaining justice rather than treating it as a guardrail to
ensure fairness and non-arbitrariness while conducting judicial
proceedings. It must be remembered that at times, leaving aside the
urge to render substantive justice without following the laid down
procedure, it is perhaps advisable to follow the procedure as the
means towards the end.
37. Thus, I have no hesitation in holding that the referral orders of this
Court are ex-facie not in accordance with law and there-reference
in itself is equally incompetent and unnecessary as well.
38. Notwithstanding what I have opined above in support of my viewpoint
that the referral orders are invalid and the references incompetent,
albeit for technical reasons, there is a weightier reason for declaring
the referral orders fragile. That is on the merits and I would immediately
proceed to say why.
39. Anjuman-e-Rahmania (supra) talked of two substantial questions
that arose before it. The first was, whether Article 30(1) of the
Constitution envisages an institution which is established by minorities
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alone without the participation for the factum of establishment from
any other community. This question was formulated recording that
there was no clear decision of this Court. Secondly, whether the
status of an institution as a minority institution, which soon after its
establishment is registered as a society under the Societies Act,
would change in view of the broad principles laid down in S. Azeez
Basha (supra). Aligarh Muslim University (supra) had the occasion
to observe that question 3(a) which was formulated for an answer in
T.M.A. Pai Foundation (supra) coincidentally reflected the questions
referred by Anjuman-e-Rahmania (supra).
40. In TMA Pai Foundation (supra), question 3(a) was:
“3(a) What are the indicia for treating an educational
institution as a minority educational institution? Would an
institution be regarded as a minority educational institution
because it was established by a person(s) belonging to a
religious or linguistic minority or its being administered by
a person(s) belonging to a religious or linguistic minority?”
41. To recount, the reference order duly took note of question 3(a)
and the fact that TMA Pai Foundation (supra) did not decide it.
Now, two questions arise: (i) whether there is any decision prior to
Anjuman-e-Rahmania (supra) which had directly decided the first
point? And (ii) whether the point touching the Societies Act, i.e., a
minority educational institution being registered under the Societies
Act could have any bearing on the question decided by Azeez Basha
(supra) by equating the former with a case where a university is
established by an enactment?
42. Insofar as the first question is concerned, State of Kerala vs. Very
Rev. Mother Provincial34, which is of course another decision of the
Constitution Bench of 6 (six) Judges of this Court rendered more than
half a century back, and has never been doubted by any subsequent
bench, provides the answer. The essence of the law laid down therein
is that the minority institution should have been established for the
benefit of a minority community by a member of that community.
Attention of the bench of 2 (two) Judges in Anjuman-e-Rahmania
(supra) was not invited to this direct answer to the question it posed

34 (1970) 2 SCC 417
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and one is left to wonder whether the reference would have at all
been made if Very Rev. Mother Provincial (supra) was cited. There
being no reference in Anjuman-e-Rahmania (supra) of Very Rev.
Mother Provincial (supra), a binding decision, certainly the said
decision of the Constitution Bench had not been placed before the
benchof 2 (two) Judges by the set of very learned senior counsel
appearing before it who agreed with the bench on the question of
(in)correctness of Azeez Basha (supra). Regarding the second
question, there cannot be any comparison of chalk and cheese. I
have no hesitation to hold that the case dealt with by Azeez Basha
(supra) and the one arising for decision in Anjuman-e-Rahmania
(supra) were fundamentally different and in stark contrast with each
other. Therefore, even on merits, there was no good reason to make
a reference for being placed before a bench of 7 (seven) Judges
which Anjuman-e-Rahmania (supra) ordered.
43. Now turning to Aligarh Muslim University (supra), I have been
unable to comprehend as to how question 3(a) could be said to
coincidentally reflect the questions referred by Anjuman-e-Rahmania
(supra). As evident from a bare reading of question 3(a), it had
two parts: the first is, what is the indicia for treating an educational
institution as a minority educational institution? Secondly, would an
institution be regarded as a minority educational institution because
it was established by a person(s) belonging to a religious/linguistic
minority or its being administered by a person(s) belonging to a
religious/linguistic minority?
44. In any event, qua question 3(a), why did the bench of 11 (eleven)
Judges in TMA Pai Foundation (supra) not consider necessary to
even attempt to answer it and relegate the same to the Regular
Bench of 2 (two) Judges? Was it too trivial a question not meriting an
answer or was there some other reason? Though the answer is not
too obvious, the answer to the second part of question 3(a) seems
to be firm and clear that the conjunction ‘and’ between ‘establish’ and
‘administer’ in Article 30(1) cannot be read as ‘or’ for the reasons
that I seek to highlight a little later.
45. If one were to form the opinion that the question as to indicia for
treating an educational institution as a minority educational institution
was traceable to Anjuman-e-Rahmania (supra), that can only
happen if the said order were misread or some additional words
were read into it.
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46. It is one thing to identify indicia, i.e., indicia that are already existing.
However, if indicia have to be formulated, i.e., created, by us in course
of these proceedings, are we not discrediting the earlier Constitution
Bench decisions on minority status vis-à-vis rights under Article
30(1) premised on an implicit indicia, though not expressly declared
as such? It is considered most inappropriate that the first part of
question 3(a) has engaged our attention in the present discussions
and deliberations.
47. I am firm in my conviction that the reference and the re-reference,
for all the reasons discussed above, do not require a decision.

Treating The Reference To Be Valid
48. Since the issue of correctness of the decision in Azeez Basha (supra)
has been argued before us and carries immense significance for the
future, I deem it proper to give due consideration to it treating the
reference to be valid and legal. The minority character of AMU as well
as the contours of rights under Article 30(1), assuming the same to be
under a cloud of uncertainty, needs to be cleared. Hence, in my own
way, I seek to bring clarity and finality to the issue through this opinion.
49. The majority opinion has sought to lay down the indicia and left it
for an appropriate bench to be constituted by the Chief Justice of
India for deciding whether AMU is a minority or not. Hon’ble Surya
Kant and Hon’ble Satish Chandra Sharma, JJ. also seem to have
proceeded to dispense with the factual inquiry of whether or not AMU
is a minority educational institution and focussed on the indicia to
determine the applicability of Article 30(1).
50. Respectfully, I cannot bring myself to traverse the same path. After
almost 9 (nine) months the judgment came to be reserved, it pricks
my conscience to send the matter back once again to an appropriate
bench; more so, after both sides have exhaustively addressed us on
the very issue as to whether AMU answers the characteristics of a
minority institution. In present times, when there is a lot of emphasis
on pendency of cases and expeditious disposal thereof, precious
judicial time would be wasted if the same issue has to be agitated
yet again when such time could be well utilised in answering other
pressing questions of law. I feel the urge to decide here and now,
based on whatever indicia we identify or formulate, as well as the
circumstances - antecedent, attending and surrounding – of the
1880 [2024] 11 S.C.R.

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relevant time, as to whether AMU is a minority educational institution
or not. I feel equipped to do so on account of extensive evidence
having already been led by both sides.

The Indicia
51. In the majority opinion, the indicia for treating an educational institution
as a minority educational institution are these:
I. Ideation of establishment: The brain behind the establishment of
the institution, as gauged from, inter alia, correspondence and
government resolutions, should be a member of the minority
community.
II. Purpose: The institution should have been established
predominantly for the benefit of the minority community, as
opposed to solely for their benefit.
III. Implementation: The implementation of the idea to establish
the institution, with respect to raising of funds, acquisition of
land, etc. has to be examined. State aid in the same, would not
adversely affect the minority status of the institution.
IV. Administration: The right to administer flows as a consequence
of the institution having been established by the minority. Thus,
it is not required that the institution be administered by the
minority, but what is essential is that the administrative structure
reflects the minority character of the institution.
52. Hon’ble Surya Kant, J. has, however, identified the indicia as follows:
I. Article 30(1) provides for a twin fold test – establishment and
administration.
II. Establishment is to be understood as coming into existence of
the institution, which is to be holistically gauged from examination
of factors, inter alia, who is responsible for the genesis of the
idea, accumulation of funds, framing of charter documents of
the educational institution, procuring of government approvals.
In such acts, the minority community must play a decisive role.
III. Incorporation of a university under a statute would not necessarily
mean that the institution is a creature of statute, unless it is
the Government which has played the decisive role in ideation,
funding, implementation and operationalising the institution.
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IV. Establishment has to be for the benefit of the minority community.
V. Administration, at its core, has to vest with the minority community.
This would include within its fold long term administrative roles
and day to day sundry decisions. The minority community
should thus be vested with both, de jure and de facto control.
53. Hon’ble Satish Chandra Sharma, J. has in His Lordship’s draft opinion
laid out a threefold indicia:
I. The minority community must play a predominant role, almost
to the point of exclusion of all other forces, in tangibly bringing
about the entirety of the institution into existence.
II. The purpose of the institution must be to predominantly serve
the interests of the minority community, irrespective of the form
of education provided.
III. The actual functional, executive, and policy administration should
rest with the minority community. The real decision making
authority of the institution should be the minority community.
54. While the majority opinion seems to have identified establishment as
the sole indicium, Hon’ble Surya Kant and Hon’ble Satish Chandra
Sharma, JJ. have laid equal stress on administration apart from
establishment as the indicia. Inasmuch as the broad criteria which
can be used to assess the status of an educational institution is
concerned, I express my agreement with the indicia laid out by
Their Lordships.
55. Taking a cue from the above indicia, what comes to mind is that a
seed, by itself, cannot germinate into a plant without being sown in
the soil. It is the farmer’s endeavours of watering, nourishing and
caring for the seed, not the sheer existence of the seed itself, which
results in the emergence of the tree. Similarly, mere ideation by
itself amounts to little if it is not backed by action or implementation.
Ideation and conceiving of an idea are mere seeds, while the work
of gathering resources, acquiring land, establishing an administrative
structure, recruiting teachers, and admitting students are akin to
the planting and nurturing required for those seeds to grow into a
flourishing tree. Educational institutions, like all other institutions, are
an outcome of the coalescence of resources, actions, and meticulous
planning by the people “establishing” it.
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56. Indicia is a term often used in various disciplines including law to
describe signs or symptoms that suggest the presence of something.
When we say that ‘x’ is the indicia of ‘y’, it could be so that ‘x’ could
be the definite indicium of ‘y’ (implying a comprehensive or exclusive
indicator); at the same time, it may not necessarily imply that ‘x’
is the only indicator of ‘y’ (exhaustiveness) or that ‘x’ guarantees
the presence of ‘y’ (certainty) or ‘x’ is unique to ‘y’ (specificity).
However, to suggest that, ‘x’ is the definite indicum of ‘y’, it may not
be appropriate in the present context where I can identify multiple
indicia for concluding whether AMU answers the characteristics of
a minority educational institution.
57. Certain broad indicia,which are universally applicable, may be
applied prospectively to facilitate identification of minority institutions.
However, any indicium or the indicia, as identified or formulated, for
treating an institution as a minority institution may not be exhaustive
so as to cater to all situations. Previous decisions of this Court, as
earlier discussed, have also determined the minority character of
educational institutions vis-à-vis Article 30, as per indicia tailored
to the specific factual matrices. It could be well-nigh difficult, if not
impossible, to fix indicia without regard to a whole lot of relevant
facts and circumstances, which might have escaped notice or may
not have been visualized. In my humble opinion, a flexible framework
rather than a rigid one-size-fits-all model is always desirable and
essential for accurately assessing minority institution status. Having
regard to special features that each minority institution is most likely
to have, a nuanced approach would be required to identify minority
institutions by balancing the general guidelines with unique institutional
circumstances. The indicia,which have been proposed,could partly
inform classification of minority institutions but a tailored evaluation is
all the more necessary to account for distinct characteristics which each
such institution is associated with; more so, when AMU is unique in
itself and its status is under consideration as a standalone institution.
58. Having clarified my stance on the general indicia which should
prospectively govern the evaluation of minority educational institutions,
I shall now endeavour to be punctilious in assessing the status of
AMU bearing in mind its unique institutional characteristics.
59. However, my consideration of the indicia must be preceded by this
philosophical musing. If, indeed, indicia for treating an educational
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institution as a minority educational institution have not been either
identified or formulated by any previous decision of this Court and
this is the first time an attempt to so identify/formulate is being
made, can the tests laid down in Azeez Basha (supra) which are
facts specific be held invalid? My answer would be in the negative.
60. Nonetheless, the search for the truth must continue appreciating all
the relevant factors.

Establishment of amu
61. AMU traces its origins to its institutional predecessor, MAO College
which was established on 08th January, 1877. The establishment of
MAO College was spearheaded by late Sir Syed Ahmed Khan35, a
national leader who envisioned the idea of a modern and Western
educational institution for the Muslim community, distinct from the
traditional madrasas, which otherwise prevailed. There is no contest
to the fact that that MAO College was established specifically for the
educational advancement of the Muslims; it is what comes thereafter
which is the point of contention and calls for being noticed, to the
extent relevant, and addressed.
62. Upon Sir Syed’s death in 1898, the Muslim community in his honour
started collecting funds with the goal to raise a sum of Rs 1,00,000/-
(Rupees one lakh only) so that MAO College could evolve into a
university. It is the appellants’ submission that over a period of 22
(twenty-two) years, the Muslim community, through the Muslim
University Association, collected a staggering sum of Rs 30,00,000/-
(Rupees thirty lakh only) which finally led the British Government to
agree with the demands for a university, leading to the establishment
of AMU in 1920.
63. Travelling down memory lane, one is bound to trace the emergence
of the movement for a Hindu university which, over a period of time,
took shape with the establishment of the Banaras Hindu University36
through a similar statute, viz. the Banaras Hindu University Act,
191537. Despite all the efforts of Sir Syed, who did not consider
Muslims to be in any way inferior, and the later endeavours to have

35 Sir Syed, hereafter
36 BHU, hereafter
37 BHU Act, hereafter
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a university established with full control being exercised by the
Muslim community, refusal of the imperial government to succumb to
the demand was a blow to the aspirations that many of the leaders
of the Aligarh movement harboured. There emerged two disputing
factions within the Aligarh movement – that of the Loyalists headed
by Aftab Ahmad Khan and the other by Maulana Mohammad Ali,
the latter being vexed with the increasing control of the imperial
government over the proposed AMU. Once the BHU Act had been
passed leading to establishment of the BHU, the Loyalists realised
that they were caught between the devil and the deep sea, i.e., they
either accede to the British envisioning of AMU, which was under
overwhelming government control, or they stick to their demands
and lose out on the proposed university altogether. Writ large was
the fact that since BHU had not been granted the right of affiliation,
it seemed to be inevitable that the proposed Muslim university will
also be governed by similar such provisions governing BHU. In a
decisive meeting of the Muslim University Association, the decision
was put to a vote and the Loyalists emerged the winner, leading to
the eventual walkout of the dissenting faction headed by Maulana
Mohammad Ali, who would go on to establish Jamia Milia Islamia.
A salient feature of Jamia was that it was independently funded and
thrived without any aid from the imperial government. Registered in
1939 as Jamia Milia Islamia Society, the institution was deemed to
be a University under section 3 of the University Grants Commission
Act, 195638 in 1962.
64. Much would turn on this piece of historical evidence while appreciating
whether AMU was an institution established by the Muslim community.
65. Further, in British India, the legislative framework governing
educational institutions was such that schools and colleges, such
as MAO College, could be established by private persons, but
universities in particular were exclusively within the domain of the
Governor General-in-Council39. Though there existed no legal bar to
the establishment of universities by private individuals or societies,
the British Government granted recognition only to degrees issued
by universities which were creatures of statute. It is the appellants’

38 UGC Act, hereafter
39 GGIC, hereafter
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submission that in such a context, the appellants had no recourse
but to obtain the concurrence of the British Government, if Sir
Syed’s dream was ever to be realised. It is pressed that the British
Government enacted the AMU Act only upon furnishing of adequate
funds by the Muslim community, and hence, though AMU was a
statutory institution, it was argued to be established by the Muslims,
for the Muslims.
66. Article 30(1) of the Constitution guarantees to minorities, religious and
linguistic, the right to establish and ad minister educational institutions
of their choice. The provision, at a glance, has the following three
components:
(i) Existence of a minority community – either religious or linguistic,
(ii) the minority community has the right to establish an educational
institution; and
(iii) the minority community has the right to administer an educational
institution.
67. It is no longer res integra that even institutions established prior to
the Constitution would be eligible to seek the protection of Article
30(1), as was expressed by this Court in Re: The Kerala Education
Bill, 1957 (supra) at p. 1051:
“There is no reason why the benefit of Article 30(1) should
be limited only to educational institutions established after
the commencement of the Constitution. The language
employed in Article 30(1) is wide enough to cover both
pre-constitution and post-constitution institutions. It must
not be overlooked that Article 30(1) gives the minorities
two rights, namely, (a) to establish, and (b) to administer,
educational institutions of their choice. The second right
clearly covers pre-constitution schools just as Article 26
covers the right to maintain pre-constitution religious
institutions.”
(emphasis supplied)
AMU, though established during pre-Constitution days, it was
contended that it is thus eligible to seek the protection of Article 30(1).
68. Having regard to such contention, it is necessary to examine the
aspect of establishment. To understand how and why AMU came to
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be established, a perusal of the Statement of Objects and Reasons
to the Act, and its Preamble, is necessitated:
“An Act to establish and incorporate a teaching and
residential Muslim University at Aligarh.”
“WHEREAS it is expedient to establish and incorporate a
teaching and residential Muslim University at Aligarh, and
to dissolve the Societies registered under the Societies’
Registration Act, 1860, which are respectively known as
the Muhammadan Anglo-Oriental College, Aligarh, and
the Muslim University Association, and to transfer to and
rest in the said University all properties and rights of the
said Societies and of the Muslim University Foundation
Committee.”
69. While on the subject, a study of contrasts would be of profit, if one
were to examine the founding Acts of one contemporary university,
i.e., the Annamalai University Act, 192840. It would also be of profit
to examine the Visva Bharati Act, 195141, which came to be enacted
immediately after India attained independence.
70. The 1928 Act records as follows:
“AND WHEREAS the Hon’ble Diwan Bahadur Sir S.R.M.
Annamalai Chettiyar has established and is maintaining
colleges at and near Chidambaram in which higher
instruction is imparted in English, Tamil and Sanskrit
studies;
AND WHEREAS the said Sir Annamalai Chettiyar has
agreed with the Local Government to hand over the
said institutions together with all the properties attached
thereto and further to give a sum of twenty lakhs of
rupees for the purposes of establishing and maintaining
at Annamalainagar a Teaching and Residential University
wherein he and his heirs shall be entitled to certain powers
and privileges;”
(emphasis supplied)

40 1928 Act, hereafter
41 1951 Act, hereafter
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71. The 1951 Act, similarly, pays homage and specifically recognises
its founder, ‘Kabiguru’ to millions of his ardent followers in his state
of birth and beyond, as follows:
“2. Declaration of Visva-Bharati as an institution of national
importance.—Whereas the late Rabindranath Tagore
(Thakur) founded an institution known as Visva-Bharati
at Santiniketan in the district of Birbhum in West Bengal
the objects of which are such as to make the institution
one of national importance, it is hereby declared that
the institution known as ‘Visva-Bharati’ aforesaid is an
institution of national importance and is as such hereby
constituted as a University.”
(emphasis supplied)
72. It is evident upon bare perusal of the above extracts that while
establishing the respective universities, which are obviously
statutory creations, the 1928 Act and the 1951 Act categorically
recognise establishment of the respective predecessor institution
by its founder. Annamalai University and Visva Bharati University
are synonymous with Sir Annamalai Chettiar and Gurudeb Rabindra
Nath Thakur, respectively; however, the AMU Act is woefully bereft
of the same or similar recognition. The AMU Act is conspicuously
silent on two major elements which the appellants argue was what
brought AMU into existence – the contributions of Sir Syed and that
of the donations collected en masse from the Muslim community
in order to establish the erstwhile MAO College. If the institution
was truly founded by the minority community, as contended by the
appellants, there is no reason why the Preamble would not have
been drafted in a similar manner so as to highlight the same. I
am unable to subscribe to the majority opinion of recognition of
the respective founders in the 1928 Act and the 1951 Act being
of no relevance.
73. It would be further apposite to examine the enactments establishing
two other minority universities. Firstly, the Sam Higginbottom
University of Agriculture, Technology and Sciences, Uttar
Pradesh Act, 2016, whose Preamble decisively recognises the
establishment of the said university by the minority Christian
community, as follows:
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“An Act to establish and incorporate a Teaching,
Research and Extension University with a view to
upgrade and reconstitute the existing Sam Higginbottom
Institute of Agriculture, Technology and Sciences
(Deemed-to-be- University), Allahabad, established
and administered by the Ecumenical Minority Christian
Society namely the Sam Higginbottom Educational and
Charitable Society, Higginbottom House, 4- Agricultural
Institute, Allahabad-211007, Registered under the Society
Registration Act, 1860 in the State of Uttar Pradesh, and
to provide for natters connected therewith or incidental
thereto.”
74. Secondly, the preamble of Era University, Lucknow, Uttar Pradesh
Act, 2016, unambiguously recognises the minority character of the
institution by stating that:
“Preamble
An Act to establish and incorporate a teaching University
sponsored by Era Educational Trust duly established
and administered by the members of Muslim Minority
community,
***
2. Definitions—In this Act, unless the context otherwise
requires
***
(t) ‘Trust’ means the Era Educational Trust, established
and administered by the members of Muslim Minority
community, in the year 1995 for imparting education,
having its office at 88, Victoria Street (Tulsi Das Marg),
Lucknow a ‘not for profit’ Trust registered in the office
of Sub-Registrar-I Lucknow under the Indian Trust Act,
1882.”
(emphasis supplied)
75. Thus, these enactments are in stark contrast to the AMU Act, insofar
as they categorically recognise the factum of establishment and
administration of the universities by the respective minority community.
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76. Proceeding further, section 7 of the AMU Act states that:
“The University shall invest and keep invested in securities
in which trust funds may be invested in accordance with
the law for the time being in force relating to trusts in
British India a sum of thirty lakhs of rupees as a permanent
endowment to meet the recurring charges of the University
other than charges in respect of Fellowships, Scholarships,
Prizes and rewards…”
(emphasis supplied)
Therefore, the sum of Rs 30,00,000/- (Rupees Thirty lakh only)
collected by donations across the country was not spent in the
establishment of AMU; rather, it was to be used as a fund to meet
recurring expenditure. The appellants have repeatedly underscored
the contribution made by the Muslim community, motivated to do the
same by a systematic and sustained effort on the part of Sir Syed, in
the setting up of AMU. The impact of such a monetary contribution
cannot be gainsaid, but can the same be equated to establishment of
AMU? I think not. The efforts of the Muslim community in leading to
the establishment of AMU were no doubt monumental in spearheading
the movement, and perhaps without such efforts AMU would never
have become a reality, but this cannot by any stretch of imagination
mean that the community itself established AMU.
77. There is no contest that MAO College was a minority institution,
but AMU would not be endowed with the same characteristic solely
on account of tracing its lineage from MAO College. The same
is evidenced by section 4 of the AMU Act, which is reproduced
hereinbelow:
“4. From the commencement of this Act-
(i) The Societies known as the Muhammadan Anglo-
Oriental College, Aligarh, and the Muslim University
Association shall be dissolved, and all property, moveable
and immoveable, and all rights powers and privileges of the
said Societies and all property, moveable and immoveable,
and all rights, powers and privileges of the Muslim
University Foundation Committee shall be transferred to
and vest in the University and shall be applied to the objects
and purposes for which the University is incorporated;
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(ii) All debts, liabilities and obligations of the said Societies
and Committees shall be transferred to the University and
shall thereafter be discharged and satisfied by it;
(iii) all references in any enactment to either of the said
Societies and Committee shall be construed as references
to the University;
(iv) any will, deed or other document, whether made or
executed before or after the commencement of this Act,
which contains any bequest, gift or trust in favour either
of the said Societies or of the said committee shall, on
the commencement of this Act, be construed as if the
University was therein named instead of such Society or
Committee;
(v) subject to any order which the Court may make, the
buildings which belonged to the Muhammadan Anglo
Oriental College, Aligarh, shall continue to be known and
designated immediately before the commencement of
this Act;
(vi) Subject to the provision of this Act, every person
employed immediately before the commencement of this
Act in the Muhammadan Anglo-Oriental College, Aligarh,
shall hold employment in the University by the same tenure
and upon the same terms and conditions and with the
same rights and privileges as to pension and gratuity as
he would have held the same under the Muhammadan
Anglo-Oriental College, Aligarh, if this Act had not been
passed;”
(emphasis supplied)
Thus, the societies, from which the appellants contend AMU inherited
its minority character, stood dissolved upon the AMU Act coming into
force. AMU was, thus, an institution unto itself, distinct from MAO
College. There was a clear and statutory break from the antecedent
history, and the character of AMU as it were, has to be examined
on its own merit.
78. The appellants have relied on a number of decisions to contend that
a university could also be a minority institution, foremost of which
[2024] 11 S.C.R. 1891

Aligarh Muslim University v. Naresh Agarwal & Ors.

was St. Stephen’s College vs. University of Delhi42. However, all
the precedents relied on, have as their focus of discussion colleges
and not universities. Though both are educational institutions which
come under the ambit of Article 30(1), they are not synonymous with
each other and are markedly different, particularly in one aspect, i.e.,
universities only can confer degrees while colleges cannot unless,
as in present days, a college is also deemed to be a university and
can award degrees. MAO College when it existed, established by
Muslim individuals, could not confer degrees and it was only Allahabad
University, of which MAO College was an affiliated college, that could
award degrees.
79. As rightly contended by the learned Attorney General, the private
individuals who had set up MAO College were not legislatively
competent to establish a university in the first place. Being devoid
of the authority to establish, the power to do which was the sole
preserve of the British Government, the establishment of AMU could
not possibly be owed to the Muslim community. An example of this
is section 6 of the AMU Act, which stated that degrees conferred by
AMU would be recognised by the Government. The provision states:
“6. Recognition of degrees. – The degrees, diplomas and
other academic distinctions granted or conferred to or
on persons by the University shall be recognised by the
Central and State Governments as are the corresponding
degrees, diplomas and other academic distinctions granted
by any other University incorporated under any enactment.”
As has been discussed, the only universities whose degrees were
recognised by the Government were those established by statute.
Degrees issued by private universities were not recognised by the
British Government. The degrees issued by AMU being officially
recognised, it could not, as a logical corollary, be said that AMU was
established by the Muslim community. The university being brought
into existence solely by virtue of the statute, its establishment could
not be owed to anything other than the statute.
80. Provisions of the AMU Act have been highlighted to show that bodies
such as the Court were to be comprised entirely of Muslim members.
However, such bodies could not be said to have established AMU.

42 (1992) 1 SCC 558
1892 [2024] 11 S.C.R.

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81. Black’s Law Dictionary43 defines ‘establish’ as:
“establish, vb. (14c) 1. To settle, make, or fix firmly; to
enact permanently <one object of the Constitution was to
establish justice>. 2. To make or form; to bring about
or into existence<Congress has the power to establish
Article III courts>. 3. To prove; to convince <the House
managers tried to establish the President’s guilt>.”
(emphasis supplied)
82. The appellants advocated for the verb “to establish” to be interpreted
widely so as to mean “to found”. While this Court has time and again
interpreted words of statutes in a liberal manner so as to align them
with legislative intent, the interpretation canvassed by the appellants,
insofar as “to establish” is to be equated with “to found”, demands
an implausibly expansive reading of Article 30(1). It is a primary rule
of interpretation that statutes must be interpreted as they are, and
auxiliary connotations must not be read into the provision, unless there
is reason established for doing so. The two words are very distinct
in their purport and understanding. The Constituent Assembly, in its
legislative wisdom, chose specifically to use the words ‘to establish”
in Article 30(1); interpreting it in a manner so wide as to change its
meaning altogether would be doing the Constitution and its framers
a disservice. A perusal of the decisions of this Court, which shall
be discussed henceforth, categorically evinces that this contention
is untenable in law.
83. In Very Rev. Mother Provincial (supra), this Court explained
‘establishment’ by categorically holding that it refers to the factum
of bringing into existence of the university, and not the founding of
the institution:
“8. Article 30(1) has been construed before by this Court.
Without referring to those cases it is sufficient to say that
the clause contemplates two rights which are separated in
point of time. The first right is the initial right to establish
institutions of the minority’s choice. Establishment here
means the bringing into being of an institution and it must
be by a minority community. It matters not if a single

43 9th Edition
[2024] 11 S.C.R. 1893

Aligarh Muslim University v. Naresh Agarwal & Ors.

philanthropic individual with his own means, founds the
institution or the community at large contributes the funds.
The position in law is the same and the intention in either
case must be to found an institution for the benefit of a
minority community by a member of that community. It is
equally irrelevant that in addition to the minority community
others from other minority communities or even from
the majority community can take advantage of these
institutions. Such other communities bring in income and
they do not have to be turned away to enjoy the protection.”
(emphasis supplied)
84. Hon’ble V.N. Khare, J. (as His Lordship then was) in T.M.A. Pai
Foundation (supra) observed as follows:
“254. The expression ‘to establish’ means to set up on
permanent basis. The expression ‘to administer’ means
to manage or to attend to the running of the affairs…”
(emphasis supplied)
85. This Court, in A.P. Christian Medical Educational Society vs. Govt.
of A.P.44, emphasized the importance of piercing the veil to gauge
whether an institution is truly a minority educational institution, by
stating as follows:
“8. It was seriously contended before us that any minority,
even a single individual belonging to a minority, could
found a minority institution and had the right so to do
under the Constitution and neither the government nor
the University could deny the society’s right to establish
a minority institution, at the very threshold as it were,
howsoever, they may impose regulatory measures in
the interests of uniformity, efficiency and excellence of
education. The fallacy of the argument insofar as the
instant case is concerned lies in thinking that neither the
government nor the University has the right to go behind
the claim that the institution is a minority institution and
to investigate and satisfy itself whether the claim is well-

44 (1986) 2 SCC 667
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founded or ill-founded. The government, the University
and ultimately the court have the undoubted right to pierce
the ‘minority veil’ — with due apologies to the corporate
lawyers — and discover whether there is lurking behind it
no minority at all and in any case, no minority Institution.
The object of Article 30(1) is not to allow bogies to be
raised by pretenders but to give the minorities ‘a sense
of security and a feeling of confidence’ not merely by
guaranteeing the right to profess, practise and propagate
religion to religious minorities and the right to conserve
their language, script and culture to linguistic minorities,
but also to enable all minorities, religious or linguistic, to
establish and administer educational institutions of their
choice. These institutions must be educational institutions
of the minorities in truth and reality and not mere masked
phantoms. They may be institutions intended to give the
children of the minorities the best general and professional
education, to make them complete men and women of
the country and to enable them to go out into the world
fully prepared and equipped. They may be institutions
where special provision is made to the advantage and for
the advancement of the minority children. They may be
institutions where the parents of the children of the minority
community may expect that education in accordance with
the basic tenets of their religion would be imparted by
or under the guidance of teachers, learned and steeped
in the faith. They may be institutions where the parents
expect their children to grow in a pervasive atmosphere
which is in harmony with their religion or conducive to
the pursuit of it. What is important and what is imperative
is that there must exist some real positive index to
enable the institution to be identified as an educational
institution of the minorities. We have already said that in
the present case apart from the half a dozen words ‘as
a Christian minorities’ institution’ occurring in one of the
objects recited in the memorandum of association, there
is nothing whatever, in the memorandum or the articles of
association or in the actions of the society to indicate that
the institution was intended to be a minority educational
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institution. As already found by us these half a dozen
words were introduced merely to found a claim on Article
30(1). They were a smoke-screen.”
(emphasis supplied)

86. It is thus evident that establishment is a question of fact and has
to be proved as such. The factum of establishment cannot, thus,
be solely determined by intention of the minority community alone;
rather, it has to be factually established in words and deeds and
functioning of the university.
87. Azeez Basha (supra) categorically dealt with the factum of AMU’s
establishment to conclude that AMU was not established by the
Muslim community, in the following manner:
“It is true, as is clear from the 1920-Act, that the nucleus
of the Aligarh University was the M.A.O. College, which
was till then a teaching institution under the Allahabad’
University. The conversion of that college (if we may use
that expression) into a university was however not by
the Muslim minority; it took place by virtue of the 1920-
Act which was passed by the Central legislature. There
was no Aligarh University existing till the 1920- Act was
passed. It was brought into being by the 1920-Act and must
therefore be held to have been established by the Central
Legislature which by passing the 1920-Act incorporated it.
The fact that it was based on the M.A.O. College, would
make no difference to the question as to who established
the Aligarh University. The answer to our mind as to who
established the Aligarh University is clear and that is that
it was the Central Legislature by enacting the 1920-Act
that established the said University.”
(emphasis supplied)
88. This Court in Azeez Basha (supra) having held,upon an exhaustive
analysis of the facts and circumstances presented before it, that AMU
was brought into existence by the Central Legislature by virtue of the
AMU Act, I see no infirmity warranting the view taken therein to be
overruled. And, this being the settled position for more than half-a-
century by now, it is not worthwhile to interfere with the same at this
distance of time notwithstanding the attempts to have it removed.
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Administration of amu
89. The other element enumerated under Article 30(1) is ‘administer’.
Administration, like establishment, is a question of fact. The minority
community needs to prove, through material evidence, the fact of
administration by the community.
90. Before delving into the factual scenario, it is necessary to grasp
what are the elements of administration. To fully appreciate what
administration entails, it would be opportune to go through treatises
and the previous articulations of this Court on the topic.
91. The eleventh edition of Black’s Law Dictionary defines the term
“administration” as:
administration, n. (14c) 1. The management or performance
of the executive duties of a government, institution, or
business; collectively, all the actions that are involved in
managing the work of an organization. 2. In public law,
the practical management and direction of the executive
department and its agencies….”
(emphasis supplied)

92. This Court in Ahmedabad St. Xavier’s College Society vs. State
of Gujarat45 has provided an unambiguous rubric to understand
what the “right to administer” entails:
“19. The entire controversy centres round the extent of the
right of the religious and linguistic minorities to administer
their educational institutions. The right to administer is
said to consist of four principal matters. First is the right
to choose its managing or governing body. It is said that
the founders of the minority institution have faith and
confidence in their own committee or body consisting of
persons elected by them. Second is the right to choose its
teachers. It is said that minority institutions want teachers
to have compatibility with the ideals, aims and aspirations
of the institution. Third is the right not to be compelled to
refuse admission to students. In other words, the minority
institutions want to have the right to admit students of their

45 (1974) 1 SCC 717
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choice subject to reasonable regulations about academic
qualifications. Fourth is the right to use its properties and
assets for the benefit of its own institution.”
(emphasis supplied)

93. The articulation of ‘right to administer’ provided by this Court in
the above mentioned decision is supplemented by the decision in
TMA Pai Foundation (supra),where this Court outlined what rights
constitute the right to administer and establish:
“50. The right to establish and administer broadly comprises
the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part
of any employees.”
94. What can be culled out from the above discussion is that
administration means carrying out all the functions, which are
essential for functioning of an institute. Even if some regulatory
interference by the State does exist, it cannot be said that the
community is not administering the institute merely because there
is some superficial interference in the working of the institution by
the State. Only when the State enjoys a deep and pervasive control
over the functioning of an institution, it can be said that the State
is administering the institution.
95. However, to substantiate the argument that a certain community has
been administering an institute, it has to be illustrated that the overall
governance of the institute is under the control of the community.
Administration vis-à-vis a university consists of making decisions with
regard to hiring of faculty, admitting and subjecting students to take
lessons and examinations, fee structures, disciplinary proceedings
for the teaching and non-teaching staff and other miscellaneous
day-to-day operations which are needed to keep the university
operating optimally.
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96. The test which needs to be satisfied in order to establish that a
university is administered by a minority community is the test of
ultimate control.
97. The administrative functions of AMU are broadly carried out by five
bodies:
a) Visitor (erstwhile Lord Rector);
b) Visiting Board;
c) Executive Council;
d) Academic Council; and
e) Court of AMU.
98. AMU Act, as it stood in 1920, prior to the amendments, did not
provide for a mechanism for Muslims to administer the University.
Section 13 of the AMU Act provided for the Governor General of
British India to be the Lord Rector (now Visitor). The Lord Rector
had been bestowed with the ultimate control and superintendence
of the University. Section 14 provided for the Visiting Board, which
was responsible for ensuring that the University is functioning in
accordance with the act, ordinances, and rules. The composition
of the Visiting Board did not reflect any special dispensation being
made for Muslim control over the board.
99. There have been extensive submissions on the nature of the Court
of AMU, and much reliance has been placed by the appellants on
section 23(2) of the AMU Act. According to the appellants, the Court
of AMU is the supreme governing body of the university. At first blush,
this submission by the appellants seems reasonable; however, on
closer examination of the statute, this submission cannot be accepted.
Section 23(2) gives only residuary powers to the Court of AMU over
matters not explicitly provided for in the AMU Act and rules of the
University. If sections 13 and 23 are read jointly, the clear picture
which emerges is that the Court of AMU is subservient to the Lord
Rector; as the Lord Rector had been given the power to overrule
the Court of AMU under section 13(5) of the Act.
100. Deep involvement of the State is demonstrated through the Governor-
General/Governor in all major activities of the University, such as
establishing colleges, promulgating ordinances, and superintendence
over the Executive and the Academic Councils.
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101. The governing structure of AMU gives me compelling indications to
hold that there is a deep and pervasive control of the State over the
administration of the University. The governance structure, funding,
admissions, and appointments in the University demonstrates an
involvement of the State which goes way beyond mere regulatory
oversight and into its absolute control over the administration of the
University.
102. Hence, I find myself being drawn to the irresistible conclusion that
AMU has not been administered by a minority community at any
point in time. The Act places the ultimate control of the University
with the Central Government and the Central Government and its
predecessor have been administering AMU since 1920.

Conjunctive Interpretation of Establish and Administer
103. Now that the two aspects of establishment and administration have
been examined individually, it is apposite to investigate whether the
two rights, as guaranteed by the Constitution, have to be read as
disjunctive or conjunctive rights. In view of the consensus on the
point that ‘and’ between ‘establish’ and ‘administer’ has to be read
and understood as ‘and’ and not ‘or’, the discussion is rendered
practically academic. However, some discussion on the topic is
considered worthwhile having regard to the re-referral order in Aligarh
Muslim University (supra).
104. The Constitutional Debates on the drafting of Article 30 have been
brought to the fore by the respondents, and while the provision
underwent multiple revisions, what remained constant was the use
of the word “and” in the phrase “establish and administer”. This is
also evident from the Hindi version of Article 30(1) in Devnagari
script, reading as follows:

A perusal of Article 30(1) in Hindi reveals that the conjunction used
to connect establish (स्थाापनाा) and administer (प्रशाासन) is “और”, i.e.,“and”
as opposed to the word “याा” which means “or”. It is well settled that
the word “and” connotes a conjunctive nature whereas the word
“or” connotes a disjunctive meaning. Though the terms can be, in
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exceptional circumstances, interchangeably interpreted with the aim
of fulfilling the legislative intent, there is nothing in the provision,
which impels us to read and understand the word other than what is
conveyed by its ordinary meaning. Therefore, this Court in multiple
decisions has interpreted the right to establish and administer as
conjunctive rights rather than disjunctive.
105. The perusal of the Hindi version also buttresses the position
that establishment has to only be read as so, rather than being
expansively interpreted as founding. This is evident from the use
of the word “स्थापना” by the Constitution framers, which means ‘to
establish’ rather than the use of the word “उद्भावना” which means
‘to conceive’ or ‘to found’. As discussed above, words have to be
interpreted literally, unless the context requires otherwise, which in
this case, it does not.
106. This Court,in Dayanand Anglo Vedic (DAV) College Trust and
Management Society vs. State of Maharashtra46, held that:
“34. After giving our anxious consideration to the matter
and in the light of the law settled by this Court, we have no
hesitation in holding that in order to claim minority/linguistic
status for an institution in any State, the authorities must
be satisfied firstly that the institution has been established
by the persons who are minority in such State; and,
secondly, the right of administration of the said minority
linguistic institution is also vested in those persons who
are minority in such State. The right conferred by Article 30
of the Constitution cannot be interpreted as if irrespective
of the persons who established the institution in the State
for the benefit of persons who are minority, any person,
be it non-minority in other place, can administer and run
such institution.”
(emphasis supplied)

107. A similar view was echoed by this Court in St. Stephen’s (supra),
wherein it was held that:

46 (2013) 4 SCC 14
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Aligarh Muslim University v. Naresh Agarwal & Ors.

“28. There is by now, fairly abundant case law on the
questions as to ‘minority’; the minority’s right to ‘establish’,
and their right to ‘administer’ educational institutions.
These questions have arisen in regard to a variety of
institutions all over the country. They have arisen in regard
to Christians, Muslims and in regard to certain sects of
Hindus and linguistic groups. The courts in certain cases
have accepted without much scrutiny the version of the
claimant that the institution in question was founded by a
minority community while in some cases the courts have
examined very minutely the proof of the establishment of
the institution. It should be borne in mind that the words
‘establish’ and ‘administer’ used in Article 30(1) are to
be read conjunctively. The right claimed by a minority
community to administer the educational institution depends
upon the proof of establishment of the institution. The
proof of establishment of the institution, is thus a condition
precedent for claiming the right to administer the institution.”
(emphasis supplied)
108. Finally, reference to Azeez Basha (supra) again, is considered
relevant. The argument raised before the Court was a bit different
in the sense that right to administer AMU was claimed by almost
abandoning the claim that AMU was established by the minority
community. It was held that:
“It is to our mind quite clear that Article 30(1) postulates that
the religious community will have the right to establish and
administer educational institutions of their choice meaning
thereby that where a religious minority establishes an
educational institution, it will have the right to administer
that. An argument has been raised to the effect that
even though the religions (sic, religious) minority may not
have established the educational institution, it will have
the right to administer it, if by some process it has been
administering the same before the Constitution came
into force. We are not prepared to accept this argument.
The Article in our opinion clearly shows that the minority
will have the right to administer educational institutions
of their choice provided they have established them, but
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not otherwise. The article cannot be read, to mean that
even if the educational institution has been established
by somebody else, any religious minority would have the
right to administer it because, for some reason or other, it
might have been administering it before the Constitution
came into force. The words ‘establish and administer’ in the
article must be read conjunctively and so read it gives the
right to the minority to administer an educational institution
provided it has been established by it. In this connection
our attention was drawn to In re: The Kerala Education
Bill,1957 [(159) SCR 995] where, it is argued, this Court
had held that the minority can administer an educational
institution even though it might not have established it.
In that case an argument was raised that under Article
30(1)protection was given only to educational institutions
established after the Constitution came into force. That
argument was turned down by this Court for the obvious
reason that if that interpretation was given to Article 30(1)
it would be robbed of much of its content. But that case in
our opinion did not lay down that the words ‘establish and
administer’ in Article 30(1) should be read disjunctively,
so that though a minority might not have established an
educational institution it had the right to administer it. It
is true that at p. 1062 the Court spoke of Article 30(1)
giving two rights to a minority i.e. (i) to establish and (ii) to
administer. But that was said only in the context of meeting
the argument that educational institutions established by
minorities before the Constitution came into force did not
have the protection of Article 30(1). We are of opinion that
nothing in that case justifies the contention raised of behalf
of the petitioners that the minorities would have the right
to administer an educational institution even though the
institution may not have been established by them. The
two words in Article 30(1) must be read together and so
read the Article gives this right to the minority to administer
institutions established by it. If the educational institution
has not been established by a minority it cannot claim the
right to administer it under Article 30(1).”
(emphasis supplied)
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109. The above passage has been quoted by the bench of 3 (three)
Judges in Aligarh Muslim University (supra). Having read the said
passage in between the lines, I have utterly failed to find any infirmity
in the process of reasoning by the Constitution bench while dealing
with the arguments that were raised before it.
110. In any event, leaving aside Azeez Basha (supra), it is amply clear that
this Court has consistently read Article 30(1) to provide conjunctive,
rather than separate and disjunctive, rights. The interpretation of
Article 30 in the manner sought to be projected in the majority
opinion, would mean that even an institution, though established
by the minority, but has never been administered by it would reap
the protection granted by Article 30(1). Such a result is exactly
what was warned against by this Court in A.P. Christian Medical
Educational Society (supra). The right to ‘administer’ accruing to
the minority community only upon the factum of ‘establish’ having first
been proven leaves but one with the unescapable conclusion, that
the right to establish and the right to administer are twin rights, and
cannot be read in isolation from one another. Any other interpretation
would lead to consequences that were far from what the Constituent
Assembly did intend.
111. The majority opinion, though extensive, seems to have created
an existential impasse, akin to the Chakravyuh orchestrated by
Dronacharya. While it is mentioned in paragraph 73 of the revised
draft opinion that “Article 30(1) cannot extend to a situation where
the minority community which establishes an educational institution
has no intention to administer it”, it has been opined at paragraph
156 (could also be 155) that “In the preceding sections we have
held that establishment by a minority is the only indicia for a minority
educational institution”. To my mind, these two positions create
an inherent contradiction which is as perplexing to solve as the
Chakravyuh was for Abhimanyu, inasmuch as it lays out mutually
exclusive positions of law which cannot possibly co-exist. In view
thereof, a question comes to my mind that if a minority community
establishes an educational institution and thereafter abandons its
administration to rank outsiders, can such an institution be said
to merit protection under Article 30(1), if establishment is the only
indicium, as held in the majority opinion? From the paradoxical legal
test laid out above, the answer remains elusive.
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Entry 63 of list I
112. There is yet another issue that demands attention: what is the impact
of including AMU in List I, Entry 6347 of the Seventh Schedule of
the Constitution, and what are the implications of its designation as
‘institution of national importance’?
113. Apart from AMU, BHU also finds pride of place in Entry 63. Respect
and honour, in equal measure, as well as equal status as institutions
of national importance were bestowed on these two universities
(having religious imprint in their respective titular description), which
were established by the end of the second decade of the century
in which India attained independence from colonial rule, mandating
that it is Parliament which can exercise its legislative authority over
them without any constraints or qualifications.
114. When the Constitution was being drafted, AMU was not remotely
relatable to being considered as a minority institution. The framers
of the Constitution proceeded on that basis and included AMU in
Entry 63 of List I not only as an institution in respect whereof laws
could be framed by the Parliament but also, by necessary implication,
designated AMU as an institution of national importance.
115. A brief reference to the Constituent Assembly Debates would be
apt at this stage. While deliberating on Entry 63 (originally Entry 40,
List I of the Seventh Schedule to the Draft Constitution of India), Mr.
Naziruddin Ahmad remarked:
“I have slightly altered my amendment to suit the change
introduced by Dr. Ambedkar in his own amendment. I
submit that Dr. Ambedkar’s amendment would unduly
enlarge the jurisdiction of the Centre and many things
which would be otherwise cognizable by the Provinces
would now, by virtue of the words which I seek to delete, be
included within the jurisdiction of the Centre. The Banares
Hindu University and the Aligarh Muslim University have
been regarded from their very inception as institutions of
a national character and importance and therefore they

47 63. The institutions known at the commencement of this Constitution as the Banaras Hindu University,
the Aligarh Muslim University and the Delhi University, and any other institution declared by Parliament
by law to be an institution of national importance.
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have been rightly regarded so far as national institutions
and they have been rightly placed under the jurisdiction
of the Union.”48
116. The foresight of the Constituent Assembly is, thus, evident in that
the Assembly aimed to preserve and reinforce the national and
secular character of AMU. By incorporating AMU within Entry 63 of
List I in the Seventh Schedule, the Assembly decisively entrenched
its secular and national identity through constitutional enactment.
Consequently, any remnants of affiliation to a specific community
were deliberately eliminated.
117. “Aligarh Muslim University is not a theological convent. It is a
university, and a university cannot function as a communal institution”,
observed Mr. M.C. Chagla [one of the most (if not the most) reputed
and respected Chief Justices of the High Court of Bombay] serving
as the Minister of Education, Government of India at the time, while
addressing Parliament during the debate on the AMU (Amendment)
Bill, 1965—a bill that was ultimately enacted by Parliament49. Excerpts
from Mr. Chagla’s speech in the Parliament50 read as under:
“In my opinion, the Aligarh Muslim University is a national
institution, an institution of national importance. There
are four Central universities: there is the Banaras Hindu
University; there is the Aligarh Muslim University; there
is the Delhi University; and there is the Visvabharati
University. All these institutions are institutions of national
importance. If you look at the Seventh Schedule entry
63 therein is very significant; entry 63 of List I of the
Seventh Schedule gives the power to the Parliament to
legislate […]
My submission to this House is that Aligarh University
has neither been established nor is being administered
by the Muslim Community. […] You had first the Muslim
college which was founded by Sir Syed Ahmed. Sir Syed
Ahmed has asked the British Government of those days

48 Constituent Assembly Debates, Volume 9, 30th August 1949 (9.127.209)
49 Lok Sabha Debates, Twelfth Session, Third Series Vol. XLIV – No. 9, 27th August 1965
50 Lok Sabha Debates, Twelfth Session, Third Series Vol. XLIV – No. 9, 27th August 1965
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to establish a university and the British Government
established the University. Therefore, the establishment
of the institution was by the legislature and not by the
community […] Now I cannot understand how it can be
said that the administration is in the hands of the minorities.
The administration of the University depends upon the
law. During the British times it depended upon this Act.
After independence it depends upon the Act, as had been
amended by the Parliament. Does Mr. Anthony suggest
that it is open to the Aligarh University or the Muslim
community to change the administration of the university
even to the slightest degree and go contrary to what the
Parliament has laid down? If the minority had the right
to administer the Aligarh University, then it can have any
administration it liked; it can change the administration
and it can close down the University; it can change the
constitution of the court or the Executive Council. Can it
do so? Even the constitution of the court, of the executive
council and of the academic council is regulated and not
by the minority committee but by the Parliament. There
is another aspect of the matter which Mr. Anthony has
completely forgotten. He has attached great importance to
the fact that under the Act of 1920, the British Government,
as a concession, said that the court shall consist wholly
of Muslims. Now everybody know that the University is
administered by the executive council and not by the court.
The court of course is the supreme authority and it is like
a show-piece. It meets once a year; lots of people come
there and make speeches and pass resolutions. But the
day-to day administration, selection, appointments, and
so on are carried on by the executive council and it is
significant that even in the British days it was not provided
that the executive council shall consist only of Muslims.
That clearly shows that the British Government did not
concede the argument. Although there is no Constitution
then the arguments is now advanced by Mr. Anthony
that the minority has a right to administer a particular
institution. I say that this institution was not established by
the minority; nor is it being administered by the minority
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community. That is the legal position as far as Article 30
is concerned.”51
(emphasis supplied)

118. Prof. Nurul Hasan, a reputed historian, followed in the footsteps of
Mr. M.C. Chagla as the Minister of Education. This is what Prof.
Hasan had to say in Parliament:
“**Regards the third objection that as a minority institution
it is only Muslims who should be on the Court and on the
Executive Council and they should have an exclusive hand in
the management of the University, hon Members are aware
of the writ which had been filed in the Supreme Court. It
has since been withdrawn. Mr. Chagla has expressed his
opinion on the legal aspect of the matter. He thinks that
this University was not established by the minorities, but
by Parliament and, therefore, this objection is not right. As
far as interpretation of the Constitution is concerned, I see
no reason to differ from the interpretation given by him. I
do feel, however, that the spirit underlying the Constitution
should not be lost sight of. As far as the objection that there
should be only Muslims, who should manage the affairs of
the University, is concerned, I know that one of our learned
colleagues, Shri P. N. Sapru, has been on the Executive
Council of the University for quite a number of years.”
119. The inclusion of AMU in Entry 63 of List I conferred upon it a
distinct status of being an “institution of national importance”. The
Constitution itself did not categorize AMU as either a minority
institution or otherwise. Following the adoption of the Constitution
in 1950, amendments were promptly enacted to the AMU Act in
1951 and again in 1965. These amendments were designed to align
with constitutional provisions and to reflect the status of AMU as an
“institution of national importance”.
120. Entry 63 grants exclusive legislative authority over the specified
universities therein to Parliament, and to any other institution declared
by Parliament by law to be an institution of national importance.

51 Lok Sabha Debates, Twelfth Session, Third Series Vol. XLV- No. 13, 2nd September 1965
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The scheme of Entry 63, which constitutionally designates AMU,
BHU and Delhi University as institutions of national importance, is
sufficient to indicate that AMU is not a minority institution. Absence
of specific names of universities other than the ones in Entry 63 or
anywhere else in the Constitution cements AMU’s distinctive status
as an institution of national importance, with its national and non-
minority character at the forefront. There could be other institutions of
national importance, even institutions which have minority character,
but such institutions being designated by ordinary laws would never
reach the elevated status of AMU.
121. As clearly distinguishable from other entries in the three lists forming
part of Schedule VII, which only provide the vast field of subjects
pertaining to which laws could be enacted by the Centre/the States,
it is essential to interpret Entry 63 of List I not merely as a field
over which Parliament has the authority to make a law but also
as a Constitutional provision of recognition of certain institutions
as ‘institutions of national importance’. The language of the Entry
explicitly designates these institutions with a unique status, thereby
affirming their designation as universities of national importance.
Thus, it would be inappropriate to construe this Entry solely as a
legislative subject without acknowledging its broader implications.
122. In light of the above, an institution having secular traits which was
designated as one of national importance by the framers of the
Constitution and enshrined in the Constitution adopted in 1950,
cannot be retroactively reclassified as a minority Muslim institution
in 2024 without violating the secular principles that underpin our
Constitution. Such a reclassification would fundamentally conflict with
the secular ethos embedded in our Constitutional framework, which
upholds the equal status of all institutions irrespective of religious
affiliation. The original intent was to recognize these institutions
for their national significance, and altering this status now would
undermine the foundational values of secularism and equality that
guide our Constitutional order.
123. Moreover, universities of national importance, such as AMU,
cannot be subordinated to the control of any minority community
or particular group. Their national character necessitates that they
remain under the jurisdiction of the Central Government to ensure
that their operations and management align with their designated
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national significance. This is crucial as the Central Government
provides full funding for these institutions, which is vital for their
continued existence. The control of the Central Government and
the Parliament’s jurisdiction to legislate on AMU could in a way be
terminated if the minority community is conceded the right to close
down AMU even. A ‘right to administer’ (although may not include
the ‘right to maladminister’) could include the ‘right not to administer’
and, thus, bring about a closure of AMU. This would not be in the
greater national interest.
124. AMU’s status having been firmly established upon the adoption of the
Constitution through its inclusion in Entry 63 of List I, any alteration
of AMU’s status—particularly as executed by the Amendment of
1981— is untenable. Any such modification must be effected through
an appropriate Constitutional amendment under Entry 63 of List I,
adhering to the procedure set forth in Article 368 of the Constitution
and such changes cannot be made merely by amending the relevant
statute, i.e., the AMU Act. Under these circumstances, the intention
of the framers of the Constitution to affirm the national and secular
character of AMU may not be altered, particularly not in the manner
proposed by the appellants.
125. None of us on the bench was born within a decade of India attaining
independence. What was the pre-independence scenario is, thus, not
known to any one of us. Whatever we know is through our ancestors
or books and treatises on the subject. We have not been trained to
decide any issue based on our personal knowledge. However, judicial
notice can of course be taken of facts specified in section 57 of the
Evidence Act, 1872 (currently, section 52 of the Bharatiya Sakshya
Adhiniyam, 2023) which would include matters of public history based
on appropriate books or documents of reference but the court, if it is
called upon by a person, may refuse to take judicial notice of any fact
unless and until such person produces any such book or document
as it may consider necessary to enable it do so. There is, however,
no such tether insofar as debates of the Constituent Assembly or
proceedings of Parliament are concerned. Judicial notice thereof can
be taken without any reservation and what have been debated, as
seen from documented records, are assumed to be correct. Does
that mean that the courts are bound to accept the contents of the
debates as portrayal of the correct position on facts? The answer
may not be in the affirmative in all cases. But, although courts are
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not bound to accept the speeches of members of the Constituent
Assembly or the members of the Parliament including ministers, made
on the floor of the Parliament, as unvarnished and unimpeachable
truth, the speeches are of sufficient persuasive value and if, the
factual accuracy of the contents of such speeches are not shown to
be questionable or incorrect, there is no reason as to why the court
should feel shy to rely on them. Mr. M.C. Chagla, followed by Prof.
Nurul Hasan, was emphatic on the floor of the Parliament that AMU
was not a minority institution. I have not been impressed upon to hold,
with reference to any credible material shown by the appellants, that
what the ministers said was factually incorrect, they were nowhere
near the truth or their speeches were ‘a long shot from reality’. Based
on post-independence events like these speeches as well as other
evidence that is available, which provide sufficient ground to hold
that AMU is not a minority institution, the voyage to change history
through a judicial pronouncement may not be continued further.
126. The discussion on this topic ought to end by quoting Sahibzada
Aftab Ahmad Khan, former Vice Chancellor of AMU52:
“It is only fair to observe that no other national institution
in India has shown such a liberal and catholic spirit in
actual practice as has been the consistent policy of this
institution from its start up to the present time. We have
always had a good number of Hindu students, and the first
graduate, in the late M.A.O. College, was a Hindu who
took his degree in 1880. Thus if there is any institution in
India, which can truly be called national and all-India in
character, it is this University which deserves the sympathy
and support not only of the Muslim community but of the
people of India as a whole.”

Applicability Of Prof Yashpal (Supra) And The Ncmei Act
127. In the revised draft opinion, it has been proposed to be held that
the decision in Prof Yashpal (supra) will not have a bearing on
the question referred herein, since the decision was rendered
in the context of universities existing only on paper, and thus,
mandated that institutions be established and incorporated so as

52 History of the Aligarh Muslim University, Khaliq Ahmad Nizami, p. 110, Idarah-i-Adbiyat-i-Delli, Delhi,
1995.
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to ensure their material existence. It has been opined by the HCJI
that the decision does not efface the distinction between the words
“established” and “incorporated”, with Article 30’s only indicia being
that of establishment.
128. With respect to the NCMEI Act, upon consideration of the original and
the post-amendment definition of a minority educational institution,it
has been proposed to be held that a statutory amendment cannot
determine the interpretation of Article 30(1). In other words, the issue
referred need not be decided on the basis of the amended definition
of minority educational institution.
129. The opinion on the applicability or relevance of the decision in Prof
Yashpal (supra) is accepted. However, the opinion on how the
NCMEI Act has to be read, in particular section 2(g), in the light of
the opinion earlier expressed that establishment is the only indicia
and not coupled with administration is difficult to accept for reasons
elaborated before.
130. However, since Prof Yashpal (supra) and the NCMEI Act are not
relevant for deciding the reference, it is an indicium that reference
to the same by the bench of 3 (three) Judges in Aligarh Muslim
University (supra) was redundant and constitutes another reason
for the re-reference to be held invalid.
131. Hon’ble Surya Kant J. has extensively dealt with the interplay among
the reference, NCMEI Act amendment, UGC Act, and the holding in
Prof Yashpal (supra). Azeez Basha (supra) holds that a university
established by the legislature cannot have the character of a minority
institution, however, the NCMEI Act provides for establishment of
minority universities; to compound matters, as per the UGC Act
degrees can only be conferred by universities that are established
“by or under” a statute. In Prof Yashpal (supra), this Court held
that a statute would not give legal sanction to a university unless
certain infrastructural facilities were already in place. To resolve this
apparent contradiction, His Lordship has clarified and modified Azeez
Basha (supra) to the extent that in the new legal regime a university
established “by or under” a statute can have a minority character as
long as it fulfils the requirements under the UGC Act. According to
His Lordship, a university could either be (i) recognised by statute,
(ii) brought into existence by statute, (iii) created by statute. It is
only if the university falls into the third category that it is prevented
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from assuming the character of a minority educational institution due
to it being a creature of statute. With this reasoning, His Lordship
has harmonised the amended portions of the NCMEI Act, the UGC
Act, and the holding of Prof. Yashpal (supra) while simultaneously
modifying Azeez Basha (supra) to that extent. Resultantly, a minority
community can establish a university under Article 30, if it complies
with the rigours of the UGC Act.
132. When Azeez Basha (supra) was decided, the UGC Act and the
NCMEI Act were not on the statute-book. Hence, the decision therein
was based on the facts and circumstances before the Court. The test
that was laid may not apply to present day facts and circumstances,
which are governed by the UGC Act and the NCMEI Act.

Concluding Remarks
133. Judges of the Supreme Court of India are no doubt the final arbiters
in resolving disputes and differences between the parties; however,
the recent judicial trend of eschewing all that is old, for the sake of
progress and constitutional dynamism, is disturbing. We, the Judges,
at times tend to forget the confines of our own jurisdiction and that
we too, like every other human, are fallible. We are meant to be
guided in our approach by Constitutional morality and the words of
the architects of the Constitution. Facilitating history to be re-written,
more than a century later by a judicial opinion, is not what we, as
Judges, are supposed to do. Additionally, in matters such as the one
under consideration, there is no warrant for the thought process to
gain ground that Judges of this Court who had authored opinions
in the relevant past were wrong and that the present generation of
Judges are correct. Judicial deference, in my view, ought to have
leaned towards the interpretation of Article 30(1) that has stood the
test of time for almost 75 (seventy-five) years since the Constitution
has been in existence.
134. It is doubtful whether any of us, as Judges,would lay a claim to be
omniscient. The limitations of a Judge’s expertise would negate any
assertion of authority in extra-legal areas as well as to claim special
knowledge of what the canvas was prior to 1920 when AMU came
to be established. Conscious as I am of my limitations, it would
be a misadventure on my part to agree with the majority opinion
and command the appropriate bench to determine whether AMU
was established by the minority community based on the indicium
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proposed therein, post-independence decisions of this Court and
liberal ideas of present times, without there being credible material of
proof that AMU, all along, was perceived as an educational institution
established ‘by the Muslim community’, as distinguished from ‘for the
Muslim community’, even during the pre-Constitution days. Whether
or not an educational institution has been established by a particular
community has to be judged bearing in mind all antecedent, attending
and surrounding circumstances of the relevant time. No one can
claim with certainty that the entirety of the dialogue/correspondence/
incidents/events, which did precede the establishment of AMU, have
been placed before us and that too with cent percent accuracy.
Such being the state of affairs, we ought not to substitute historical
facts by our appreciation of half-baked evidence. Notwithstanding
the knowledge, erudition and eminence that some of us have been
gifted with, I am sceptical as to whether any of us can claim to be
more learned than those who played significant roles in framing
of the Constitution. It is not as if they were wholly unaware of the
circumstances of the yesteryears. If ‘establish’ were to be read as
‘found’, there is no reason as to why the framers did not express
themselves differently by using ‘to found’ instead of ‘to establish’ or,
in the alternative, both - but one after the other.
135. Tinkering with understanding of a Constitutional provision, which has
been consistent and has stood the test of time since its inception, in
the name of interpretation and overruling of longstanding precedents
is too frequent an occurrence which judicial activism has brought
about, sometimes unnecessarily, in the past couple of decades. It
is time that we refrain from such an approach, unless absolutely
required, and allow the people’s will to prevail and the Constitution
to reign supreme.
136. Turning to the point of indicia, the tests employed for identifying
post-Constitution minority educational institutions cannot be the
same as for identification of pre-Constitution institutions, more
so when a college established by the minority is elevated to the
status of a university upon establishment and incorporation through
statute. There can be no dispute that an educational institution
undoubtedly established prior to the Constitution coming into force
by a minority community, either based on religion or language, and
administered as well by such community would be entitled to the
protection envisaged in Article 30(1). However, if there is a serious
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doubt as to who established the educational institution and how it
was established, question of piercing of the minority veil does not
arise in the absence of any concept of minority when the institution
came to be established. One has to understand, in this regard, the
purpose for which the minority community is sought to be extended
protection post-Constitution era. The dominant purpose is to protect
the minority from the domination of the majority. Until independence
of India was achieved, irrespective of whether a ‘native’ so called
was a Hindu or a Sikh or a Muslim or a Christian or a Jain or a
Buddhist or a Zoroastrian, each individual irrespective of his faith
was the subject of colonial rule with little freedom. The concept of
minority being totally absent in those days, extending the protective
umbrella of Article 30 to AMU by proposing to hold that establishment
by a minority is the only indicia for a minority educational institution
without any indicia as to administration of such institution would be
inherently contradictory to the terms of such article and susceptible
to invalidity. Formulating indicia now without there being a holistic
consideration of all relevant factors ought not to be embarked upon
by the Court as a task particularly when earlier benches, including
benches larger than this one, have jettisoned the issue.
137. Though schools, colleges and universities are all known to be
educational institutions, their purposes and direction are different.
Depending upon the areas of focus and emphasis, they vary in
importance too. Education remains largely incomplete without a
basic bachelor’s degree, which a student obtains by qualifying in the
relevant examination conducted by the university to which the college,
where he studied, is affiliated. One other major distinguishing feature
is the way each institution is created. In the days with which we are
concerned, a school or college could be privately created but not a
university. To ‘found’ an institution such as a school or a college or
a university cannot be equated with its ‘establishment’. Conscious of
such limitation, the argument of construing Article 30(1) in a manner
such that the verb ‘to establish’ does not call for being read in a
narrow and formalistic sense and in its expansive reading ought to
take within its fold ‘to found’ would only beg the question that AMU
was not established but, at best, found by the Muslim community.
138. The parties having agreed that the words ‘establish’ and ‘administer’
must be read conjunctively, there can be little doubt that administration
has to necessarily follow establishment. It is axiomatic that to enjoy
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the protection that Article 30(1) guarantees, the right of the minority
community to administer an educational institution can be claimed
only if the educational institution is established by it. Also, Article 30(1)
cannot extend to a situation where the minority community which
establishes an educational institution shows no or little intention to
administer it. This being the unequivocal position in law, it would
be an indicium as to whether the educational institution, apart from
being established by the minority, was or is being administered by
the minority.
139. For the purposes of Article 30, the right to establish and the right to
administer must go hand in hand. Once established, administration
of the institution begins. In order to attract the protection guaranteed
by Article 30, it would not be sufficient for the minority community
to say that though it might have established the institution, whether
to administer it or not is a choice given by the article itself so much
so that the administration can be wholly left to even a non-minority
community. Only those institutions which are established by the
minority community and are being administered by such community
may exercise their choice of whether to establish a school or a college
or a university as well as the manner and mode of management of
such institution. These are of course tests which need to be applied
to specific institutions which have not been brought into existence
through a statute. If any institution is a creature of a statute, various
other circumstances need to be holistically considered. Whether or
not AMU is a minority institution presents a unique case bearing no
similarity with any other pre-independence university.
140. Having regard to the state of affairs existing in India during the last
quarter of the nineteenth century and the first two decades of the
twentieth century, there can be no disagreement that both the Hindus
and the Muslims were aspiring to have universities to cater to the
needs of their respective communities. The imperial government,
however, was not prepared to give up an inch and hand over control
of the proposed universities to either community. The Hindus relented
and BHU came to be established in 1915. The Muslims too wished
to have a university but the degree of control sought to be exercised
by the imperial government brought about the rift, referred to earlier.
What followed was sort of a compromise. The Muslim community
relented in the same manner the Hindus had relented to get BHU
established, leading to the process for establishment of AMU. The
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Loyalists mixed priority with pragmatism. Prioritisation meant focus
on the most essential thing, i.e., establishment of AMU, and by
being pragmatic, they recognised their limitations of being unable to
administer a university. Once AMU came to be established through
statute and became a body corporate, there was a total relinquishment
of all claims. The land used for AMU was a public land; the funds
for AMU were sourced to public money; the person at the helm of
administration was the Rector, who was none other than the Governor
General; and the sum of Rs. 30 lakh that belonged to the Muslim
community and which they were prepared to spend for AMU was
kept as the reserve fund, etc.
141. Assuming that the verb ‘to establish’ could be read as ‘to found’,
although I found no warrant to so read, it is clear that the Muslim
community had no intention to administer AMU which was left to be
worked out as per the AMU Act.
142. There are a couple of other aspects, which must not escape notice.
143. First, AMU is a creature of a statute and is engaged in discharging
public duties. By passage of time, AMU happens to be one of the
foremost Central Universities in the country. It is, however, entirely
dependent on finances allocated by the Central Government. It
is mandatorily required to function as per the AMU Act as well as
provisions of other enactments. There can, thus, be no doubt that
AMU is an Article 12 authority. Being an Article 12 authority, it is
bound by all the articles in Part III of the Constitution which impose
duty upon it inter alia to ensure equality and fairness in all its
actions including Article 29(2). In the present context, Article 30(1)
cannot be divorced from Article 29(2). The scope of ‘choice’ of the
minority as in Article 30(1), if at all it has established AMU, could
diminish for an institution such as AMU, for, it is always subject to
the Constitutional provisions and the enactment that has created
it. Whatever the Constitution as well as the AMU Act now provides
or could provide in future, would represent the will of the people of
India, and not the will of the minority. It, therefore, admits of no doubt
that in administrative, functional and financial matters, the control
of AMU vests in assigned entities not designated by the minority
community. This being the status of AMU, it would be an indicium
of not being an educational institution over which and in respect
whereof the minority has a choice to administer it in the manner
the minority prefers.
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144. Secondly, regard must be had to how TMA Pai Foundation (supra)
answered questions 5(a), 5(b) and 5(c). The declaration of law seems
to be clear that the minority community administering an aided
minority educational institution does not enjoy full liberty to act as
per its choice in matters relating to admission of students. Admission
has to be on the basis of merit and it will also be permissible for the
Government to provide that consideration should be shown to the
weaker sections of the society.
145. Reservation is an element of substantive justice, and to deny it to the
SC/ST community, does not bode well for the compliance of Article
15. We should be careful not to abridge the rights enumerated in
Article 15 in our quest to expand and solidify the rights provided in
Article 30. The architects of the Constitution were acutely aware of
the stratified nature of our society. To minimise this stratification,
the framers made a concerted effort towards integrating various
communal identities into a composite national identity of “Indians”.
The immediacy of this exercise can be garnered from the preamble
to the Constitution, where we find the idea of fraternity, a brotherhood
of Indians.
146. The idea of substantive equality, which arose as a remedy to the
historical injustices suffered by the members of the SC/ST community,
was central to this new national identity. This national identity is
manifested in institutions such as AMU, which has pioneered the idea
that India and its institutions, belong, and are open to all Indians,
irrespective of caste, creed, religion, or sex. To remove an institution
like AMU from this national project would hurt India’s integrity and
the idea of fraternity among its citizens.
147. The appellants have argued that the Constitution is a living document
which needs to evolve with time and this Court has not only the power
but also the duty to read and interpret the Constitution to reflect the
aspirations of the people of this county. The doctrine of progressive
realisation of rights has been this Court’s north star for over several
decades. This Court has “found” rights which were not explicitly
set forth in Part III of the Constitution. For better or for worse, the
Constitution in the present form is substantially different than the
Constitution which was adopted by the Constituent Assembly. Hence,
there are no inherent or constitutional limitations before us to expand
the scope of Part III of the Constitution in suitably appropriate cases.
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148. However, that is quite different than what the appellants are asking us
to do in the present case. Acceptance of their arguments will result
in this Court engaging in historical revisionism. Anyone claiming that
historical facts can be changed by judicial fiat, is sorely mistaken.
Courts are the custodian of the “truth” and cannot create an alternative
version of the “truth”, which are not supported by historical facts. To do
so would be thoroughly unjust, arbitrary, and unreasonable. Allowing
Courts to create alternative facts in support of a pre-determined
conclusion would obliterate the creditability of this Court among the
citizenry. Facts cannot be created by the stroke of a pen, and to
attempt to do that, 100 years later, would be a misguided endeavour.

Conclusion
149. In the light of the above discussion, the claim of the appellants cannot
stand. AMU was neither established by any religious community,
nor is it administered by a religious community which is regarded
as a minority community; hence, AMU does not qualify as a minority
institution. Protection under Article 30(1) of the Constitution is, thus,
not available. This submission of the appellants has no historic, legal,
factual, or logical basis.
150. In terms of clause (5) of Article 145 of the Constitution, it is my firm
opinion that not only do the references not require an answer, it is
also declared that AMU is not a minority educational institution and
that the appeals seeking minority status for it should fail.

Acknowledgement
151. Before parting, I express my sincere appreciation for the members
of the bar who addressed this bench. Listening to their erudite
arguments was indeed enriching. Further, I express gratefulness
to my research assistants who worked tirelessly and burned the
midnight oil, in tandem with me, to help me win the race against
time. The scholarly contributions in books and treatises which were
consulted and the artificial intelligence systems now available, which
have opened up a whole new world, did provide me with valuable
guidance and inputs. The assistance and cooperation received from
this Court’s library also significantly enhanced this work and has made
my opinion richer. I, however, regret my inability to acknowledge the
contributors individually.
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Satish Chandra Sharma, J.

Table of contents
A. Preface
B. Undisputed Facts
C. Submissions of the parties
C.1. Appellants questioning the correctness of Azeez Basha
(1968) 1 SCR 833
C.2. Respondents defending the correctness of Azeez
Basha [supra]
C.3. Submissions in Rejoinder
D. Scope of proceedings
D.1. Petitions before the Court
D.2. The Anjuman reference
D.3. The present reference
D.4. The parameters on which reference can be made to
a larger bench
D.5. A holistic approach
E. Issues
F. Whether establishment is necessary
G. Meaning of “establishment” and the real positive indicia
behind

G.1. The existing jurisprudence of this Court
G.2. The founding moment or the genesis argument
G.3. Relevance of “choice” and “intent” in the question
of establishment
G.4. The nature of administration at the time of establishment
G.5. Locating the real positive indicia
H. The Azeez Basha judgment
H.1. The content of the judgment of Azeez Basha [supra]
H.2. The rationale behind the findings
I. Balancing conflicting narratives
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J. Pre-independence Universities and other institutions
K. The question of administration and the 1920 Act
L. ‘Incorporated’ or ‘established’ by or under a Statute
M. Evolution of AMU and the advent of the Constitution
M.1. The amendments made to the 1920 Act
M.2. The Constitution and the question of surrender of
rights
N. The De-facto and safe haven argument
O. The UGC Act and Yashpal
P. NCMEI Act and the amendment
Q. Conclusions

1. I have had the privilege and the honour of perusing the erudite and
illuminating opinions authored by Hon’ble Chief Justice, Dr. D.Y.
Chandrachud and Hon’ble J. Suryakant. Considering that the present
matter involved fundamental questions concerning interpretation of
the constitutional provisions and the judgments rendered by this
Hon’ble Court, I find it necessary to render the present opinion.

A. Preface
2. The present larger bench of seven Hon’ble Judges, had assembled
in order to adjudicate upon validity of some of the amendments made
to the Aligarh Muslim University Act, 1920 [hereinafter referred to as
the “AMU Act”], through the Aligarh Muslim University Amendment
Act, 1981 [hereinafter referred to as “1981 amendment(s)”] and
the notifications of the Admission Committee dated 10.01.2005,
Academic Council dated 15.01.2005 and the Executive Council dated
19.05.2005, providing for reservation to the extent of 50 per cent
of seats to be reserved for Muslims of India for admission to post
graduate programmes. While adjudicating the validity of the same,
various other connected questions of constitutional importance arise
which would be discussed in detail hereinunder.
3. The primary question that captures the attention of this Court in the
present proceedings is the form, content and application of Article
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291 and 302 of the Constitution of India, 1950 [hereinafter referred
to as “the Constitution”]. The judgments of this Hon’ble Court have
settled the law with regard to the effect of the application of Article
29 and 30, specifically the larger bench judgment in case T.M.A.
Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, which
is the locus classicus on the subject, rendered by a bench of eleven
Hon’ble Judges. A co-ordinate bench of seven judges has thereafter
distilled the position of law in P.A. Inamdar v. State of Maharashtra,
(2005) 6 SCC 537. The said judgments are a guiding light on the
subject and assist the Court in course of the present judgment.
4. While the said judgments amongst others, have cleared the air on
the broader interpretation of Article 29 and 30, the question which
concerns the present bench is of an atypical nuance, which requires
further elaboration and jurisprudential extraction. Considering the
unique position that the Aligarh Muslim University [hereinafter referred
to as “the AMU”] has in the history, the constitutional text and the
facts surrounding the birthing of the University itself, this Court was
required to interrogate certain aspects of Article 29 and specifically
Article 30, which have not necessarily arisen before this Court in
any previous case. The specific occasion on which issues of the
like arose was in the case concerning the AMU itself in S. Azeez
Basha v. Union of India, (1968) 1 SCR 833 (hereinafter referred
to as “Azeez Basha”), the correctness of which is a subject matter
of intense and rigorous debate before this Court in the present
proceedings.
5. Article 29 and 30, forming a part of the fundamental rights chapter
of the Constitution, represent an important constitutional guarantee

1 Article 29. Protection of interests of minorities—
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
2 Article 30. Right of minorities to establish and administer educational institutions.—
(1) All minorities, whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational
institution established and administered by a minority, referred to in clause (1), the State shall ensure
that the amount fixed by or determined under such law for the acquisition of such property is such as
would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority, whether based on religion or
language.
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available to the citizens of the country. It is a guarantee that embeds
cultural diversity, secularism and fairness on the canvas of the
Constitution. The judgment in TMA Pai [supra] describes India
as ‘a land of diversity – of different castes peoples, communities,
languages, religions and culture’. It was this inherent diversity that
perhaps led the Constitution makers to make specific provisions to
guard and celebrate the cultural, religious and linguistic diversity. The
Constitution thus provided minorities, based on religion or language,
the right to establish and administer, educational institutions of their
choice. The right was geared towards educational institutions as it
was felt that education forms the bedrock of the identity of the next
generation of individuals which would help preserve, protect and
further the cultural, religious and linguistic diversity.
6. This diversity is not a coincidence in India and is a product of inherent
genetic built of Indian society. The citizens of this land mass, which we
call India, or Bharat, are therefore inherently pluralistic and organically
imbibe within them the ideals of religious, cultural and linguistic diversity.
It is a function of this cultural synthesis that almost accidently and not
necessarily by design, the fundamental rights are also provided for in
the Constitution at two separate levels or units – the individual; and
the group. The rights against arbitrariness, for equality, freedom of
speech/ move freely/reside and settle/profession, freedom of life and
liberty, freedom of religion, etc. are granted at an individualistic level.
7. At the same time, the freedom of trade, freedom of association, rights
against untouchability, right to manage religious institutions and the
right establish and administer educational institutions, are granted
to group(s) or specific groups. The said individual rights and their
interplay with groups rights colour the palette of Indian constitutional
law and would assist the Court in chartering its future course.
8. The specific rights to the minorities under the Constitution, over
and above the existing individual and group rights available to all
citizens and/or groups which are agnostic to minority/non-minority
classification, are to be theorised within the distinctive context of
Indian nationhood. It is necessary to note that India is a “nation”, but
not in the euro-centric sense, which merges linguistic identity with a
colonial or medieval past. India is a continuum, it is a civilization that
has perpetuated its course through the annals of history, carrying
with it the lives and stories of every hue of human existence. India’s
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national identity merges many diverging groups, communities,
sects, etc. which often intersect with each other in varying fashions.
This diversity does not rob the country of a unified past, a shared
history and composite present. It is, in fact, this kaleidoscope of
intermingling and off-shooting cultures that builds the national identity
or the national character. The uniqueness of India, its nationalism,
its shared cultural history and the context in which the Constitution
came in to being, gives life to the provisions of Constitution. It is
with this broad understanding that this Court would seek to locate
the answers to the questions presented before it.

B. Undisputed Facts
9. There has been a considerable degree of contest over the facts that
may be germane in the present matter. The question of establishment
of the AMU and the facts surrounding it, the resultant AMU Act,
1920 [as it then stood] and the history of the Mahommedan Anglo-
Oriental College [hereinafter referred to as the “MAO College”]
have been presented by the parties in their own manner and style.
Without adverting to the contested facts or claims, the Court would
be benefitted by culling out the uncontested facts which are relevant
for the purposes of the present adjudication.
10. The history of modern higher education in India starts from the Charter
Act of 1813 of the British Crown which allocated funds for education
in British India, leading to the establishment of institutions like the
Hindu College in Calcutta in 1817. In 1854, an education policy of
the British for British India came in the form of the Wood’s Dispatch,
officially known as the “Despatch on Indian Education”. It was a
seminal educational policy document issued in 1854 by Sir Charles
Wood, the President of the Board of Control for India and marked a
significant step in the development of the modern education system
in India. The Dispatch advocated for the establishment of universities
in major cities and improvements in schools and specifically provided
that the “examinations for degrees will not include any subjects
connected with religious belief; and the affiliated institutions will
be under the management of persons of every variety of religious
persuasion.”
11. In 1857, Act II, XXII and XXVII were passed by the Imperial
Legislative Council [a representative body empowered by the British
Parliament to make laws for British India] to establish the first three
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Universities in India, namely Universities of Calcutta, Bombay and
Madras. Thereafter, Act XLVII of 1860, was passed by the Imperial
Legislative Council, which expanded the powers of the abovesaid
three Universities to grant degrees. As a matter of policy and practice,
the British Imperial power in India therefore, set-up Universities
through a legislative enactment and resultantly “recognised” such
Universities for the purposes the colonial power deemed fit. The
legislations mentioned above, provided the British officials significant
controlling and regulatory powers to administer the institutions. There
has been considerable emphasis on this aspect of the matter and
shall be discussed separately in a particular section of the judgment.
12. In 1870, a private committee was set up by the name of Committee
for the Better Diffusion and Advancement of Learning among the
Muhammadans of India, which submitted its report in 1872. The said
Report provided a roadmap for the Muhammadan Oriental College
as an institution to promote Western Arts and Sciences for the
education of Muslims in India. In 1873, on the said lines, a Scheme
was proposed for the MAO College.
13. On 24.05.1875, the opening ceremony of the MAO College was held
in Aligarh. On 08.01.1877, the foundation of the MAO College was laid
by Sir Syed. The Rules and Regulations for the Appointment of the
Trustees of the MAO College were passed in 1889. The said Rules
described the object of MAO College was “primarily the education of
Mahomedans and, so far as may be consistent therewith, of Hindus
and other persons.”
14. In 1902, the Report of the Indian Universities Commission was
published. The said report, with regard to MAO College, it was
specifically noted that “no obstacle should be placed in the
way of denominational colleges, it is important to maintain the
undenominational character of the Universities”. On 24.03.1904,
the Indian Universities Act (VIII of 1904) was passed which unified
the pre-existing legislation based University regime in British India,
repealed the previous Acts, and brought within its purview the five
Universities. It also reconstituted the then existing Governing Bodies
of the universities and gave statutory recognition to the ‘Syndicates’
in the said Universities.
15. From the late 1800s to 1910, several individuals associated with the
MAO College propounded various differing ideas for setting up of
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a “University”. In May 1911, representatives from the MAO College
met Harcourt Butler, Member of the Governor-General’s Council for
the setting up of a “University”. From 1911 till 1913-14, the prayer
was for the setting up of a predominantly “denominational” University
which would be recognised by the British Indian Government. The
stances of parties took a sharp turn on the passing of the Benaras
Hindu University Act, 1915 [hereinafter referred to as the “BHU Act”]
by the Imperial Legislative Council on 01.10.1915 leading to the
establishment of the Benares Hindu University [hereinafter referred
to as the “BHU”].
16. At the said time, as per the British officials in-charge, the “Benares
model” as it was then referred, had to be followed. It is sought to
be presented that once the movement to establish the BHU gained
prominence and acceptance, the tone and tenor of all sides changed.
17. Separately, there were also considerable disagreements within the
various groups of the minority community advocating for a University
over issues such as recognition by the British Indian Government and
extent of control that the British Indian Government would exercise
over any such proposed University. As the said matter also involves
minute machinations of the working of the colonial government and
the views and counter views of various personalities involved in the
process, the parties before this Court have sought to highlight one
aspect over the other. The various conflicting narratives of the process
shall be discussed separately in a particular section of the judgment.
18. On 10.04.1916, the informally formed ‘Moslem University Committee’,
which was requesting the British Government to form the University
by bringing in an enactment, by a Resolution observed that “it has
no other alternative at present, but to accept the principles of the
Hindu University Act…”. Once the deck was cleared for the in-
principle “acceptance” of having a University on the Benares model,
the discussions started on the actual draft of the Aligarh Muslim
University Bill.
19. Finally, on 27.08.1920, Sir Mian Muhammed Shafi, the education
member in the Imperial Legislative Council, introduced the Bill for
the establishment of a University and on the same day, sought to
refer the Bill to a Select Committee. On 08.09.1920, the Select
Committee submitted its Report. On 09.09.1920, Mr. Shafi moved
the report of the Select Committee on the Bill to establish AMU in
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the Indian Legislative Council. Finally, on 14.09.1920, the Aligarh
Muslim University Act, 1920 was passed.
20. Till the mid-1920’s almost a dozen Universities under legislative
enactments had been established in British India.3 On 23.03.1925,
an Inter-University Board was established to facilitate the exchange
of professors between these Universities, to serve as an authorised
channel of communication and facilitate the coordination of university
work, to assist Indian Universities to get recognition for their degrees
and diplomas in other countries, etc.
21. In 1935, the Government of India Act, 1935 was enacted by the
British Parliament which specifically included provisions relating
to the regulation of higher education. It divided legislative powers
between the Federal Government and Provincial Governments. In
matters related to higher education, both the central and provincial
legislatures had the authority to make laws. However, there was a
specific legislative entry with regard to “Benares Hindu University”
and “Aligarh Muslim University” which vested the Federal Legislature
with the exclusive legislative powers over the same under Entry 13,
List I, in S. 100, of the Government of India Act, 1935.
22. In 1944, the Central Advisory Board of Education made attempts to
formulate a national system of higher education and submitted the
“Sargent Report” which recommended the formation of a “University
Grants Committee” to coordinated Higher Education in India. In
pursuance to the same, in 1945, the Department of Education,
Health and Lands vide resolution dated June 4, 1945 established the
University Grants Committee to advise the government on the grants
to be given to the Central Universities [Delhi, Benares and Aligarh].
23. In 1947, the constitution of the Committee was amended and its
scope enlarged by the Department of Education Resolution to
empower the Committee to deal with all Universities in India. In
1948, the University Education Commission was set up under the
Chairmanship of S. Radhakrishnan “to report on Indian university
education and suggest improvements and extensions that might be

3. University of Calcutta; University of Bombay (now known as University of Mumbai); University of Madras;
Panjab University (Established as University College, Lahore. Later, raised to a level of University.);
University of Allahabad; University of Mysore; Banaras Hindu University; Patna University; Aligarh
Muslim University; University of Lucknow; University of Dhaka; Delhi University; Nagpur University.
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desirable to suit the present and future needs and aspirations of
the country”. The Commission submitted its Report, whereby it was
recommended to reconstitute the University Grants Committee, to
expand its membership, include experts on the panel, give powers
of visitation, distribution of grant-in aid, etc.
24. In 1951, the AMU Act was amended in order to bring it in line with the
Constitution [which came in to force in 1950]. This was simultaneous
with similar amendments being carried out to the BHU Act. The AMU
Act was further amended in 1965, 1972 and 1981. The content and
the purport of the amendments to the AMU Act over the years shall
be discussed in detail in a separate section of the judgment.
25. On 28.12.1952, the Government of India set up an ‘interim’ University
Grants Commission (hereinafter referred to as “UGC”) by resolution
to advise it on the allocation of grants-in-aid from public funds. On
03.03.1956, the University Grants Commission Act, 1956 [hereinafter
referred to as the “UGC Act”] was enacted thereby giving statutory
recognition to the UGC.
26. In 1968, the judgment in Azeez Basha [supra] was delivered which
held that the AMU was neither established nor administered by the
minority community. After the judgement in Azeez Basha [supra] was
delivered, the AMU was treated to be a free and open institution as
opposed to a minority educational institution. This position continued
until 1981 when the Parliament passed The Aligarh Muslim University
(Amendment) Act, 1981. This Act made several changes to the
provisions of the 1920 Act chief among which was an amendment
to Section 2(l) which now read as follows:
(l) “University” means the educational institution of their
choice established by the Muslims of India, which orginated
as the Muhammadan Anglo-Oriental College, Aligarh
and which was subsequently incorporated as the Aligarh
Muslim University.”
27. An addition was also made of clause 5(2)(c) dealing with the powers of
the University which gave the University power “to promote especially
the educational and cultural advancement of the Muslims of India”.
The word “established” was deleted from the long title of the Act
and it now read “An Act to incorporate a teaching and residential
Muslim University at Aligarh” as opposed to the unamended long title
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i.e., “An Act to establish and incorporate a teaching and residential
Muslim University at Aligarh”. The Act also empowered the Court of
the University to act as the Supreme Governing Body.
28. Consequent to this amendment, no issue arose till 2005, when the
Admissions Committee of the University took a decision at its meeting
of January 10, 2005 to reserve 50% of seats in the Post Graduate
Medical Courses for Muslims. The same was also accepted by the
Union of India on February 25, 2005. The Resolutions providing such
reservations and the 1981 amendments were challenged before a
Single Judge of the Hon’ble High Court of Judicature at Allahabad
[hereinafter referred to as the “Allahabad High Court” or “High Court”]
on the ground that the amendments amounted to an impermissible
legislative overruling of Azeez Basha [supra].
29. The Single Judge had read down Section 2(l) to mean that the word
“established” in that section would refer to the MAO college and
not the University. The learned Single Judge further held that the
amendment of 1981 did not turn the AMU into a minority institution
because Azeez Basha [supra] still held the field. Thereafter, appeals
were preferred before a division bench of the Hon’ble High Court.
30. The Ld. Division Bench rendered two separate judgements which
concurred entirely on all points of law raised before it. Briefly stated,
it was held that the core principle of the Azeez Basha [supra] was
that the minority community had requested the British Government to
establish the AMU because they wanted governmental recognition of
its degrees. It was held that this recognition of historical fact could not
be overcome by “an enforced declaration of substantial identity” as
given in section 2(l) and as sought to be done by removing the word
“establish” from the long title of the Act. Consequently, Section 5(2)(c)
was also struck down for being discriminatory since it privileged the
advancement of a particular section over others. It was further held
that the Parliament had no competence to enact the 1981 Act because
only a minority could create a minority institution, Parliament could not.
31. The decision of the High Court was challenged by the University in
a Special Leave Petition before this Court. The Union of India had
also challenged the decision of the High Court and had supported
the University’s stand. On April 24, 2006, a Division Bench of this
Court had directed status quo to be maintained in the proceedings
after Counsel for the University undertook not to implement the
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50% reservation policy until final disposal of the case. The question
regarding the status of the university was directed to be considered
before a larger bench.
32. Thereafter, the Union had sought to withdraw the appeal filed against
the judgement of the High Court on the ground that the historical
finding of fact in Azeez Basha [supra] could not have been set at
naught by an amending act of the Parliament. On February 2, 2019,
a bench of three judges of this Court had directed that the question of
correctness of the Azeez Basha [supra] decision should be referred
to a bench of Seven Judges. The reference was made directly to
seven judges because in the Bench’s view, the very same question
had been referred before in the case of Anjuman-e-Rahmania and
Others v. District Inspector of Schools and Others W.P. (C) 54-
57 of 1981. These writ petitions were heard and disposed of by the
Bench in TMA Pai Foundation v. Union of India, (2002) 8 SCC
481 but this question was left unanswered. The issue with regard to
the scope of the reference shall be discussed separately in detail.

C. Submissions of the parties
C.1. Appellants questioning the correctness of Azeez Basha
[supra]
33. It was submitted by Dr. Rajeev Dhawan, learned Senior Counsel,
appearing for the Aligarh Muslim University, that the order dated
26.11.1981 passed by this Court in the case of Anjuman-e-
Rahmaniya v. District Inspector of Schools, W.P.(C) No. No. 54-
57 of 1981 and the reference order dated 12.02.2019 in the present
batch of petitions creates several points of reference for this bench to
adjudicate upon, which include the correctness of judgment in Azeez
Basha [supra], impact of Prof. Yashpal v. State of Chhattisgarh,
(2005) 5 SCC 420, and those relating to National Commission for
Minority Educational Institutions Act, 2004 (‘NCMEI Act’). However,
no specific issues were spelt out in the order dated 12.02.2019.
34. In view of the above, Dr. Dhawan submitted that the issues are
required to be framed and then decided by this Bench. According
to him, following issues arise in the present matter:
a. Was Azeez Basha [supra] correctly decided, and whether it
suffers from internal contradiction and reasoning on facts and
on law?
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b. Does Azeez Basha [supra] need to be reconsidered in light of
earlier and subsequent decisions of this Court on Article 30(1)?
c. What is the effect of Azeez Basha [supra] on the future decisions
of the Hon’ble Allahabad High Court which applies Azeez Basha
[supra] in toto and strikes down the statutory amendments to
the Aligarh Muslim University Act 1920 (hereinafter referred to
as 1920 Act) through the 1981 Amendment Act as a usurpation
of judicial power?
d. What is the effect of NCMEI Act read with the University
Grants Commission Act, 1956 (‘UGC Act’)? Should Azeez
Basha [supra] be reconsidered in the light of the NCMEI Act
(as amended in 2010) and read with UGC Act as considered
in Yashpal supra?
e. Was Azeez Basha [supra] correct in accepting the antecedent
historical data on AMU’s Muslim character, but denying its
constitutional significance while deciding the issue of its minority
status, which is at the variance with St. Stephen’s College v.
University of Delhi, (1992) 1 SCC 558 [5-Judge Bench]; Rev.
Father W Proost v. State of Bihar, (1969) 2 SCR 73 [5-Judge
Bench]; and Right Rev. Bishop SK Patro v. State of Bihar,
(1969) 1 SCC 863 [5-Judge Bench]?
f. Is Azeez Basha [supra] contrary to the constitutional
dispensation on rights of minorities under Articles 29 and 30,
discerned before the Constituent Assembly Debates and
approved in TMA Pai?
35. Further, Dr. Dhawan raised a preliminary objection regarding change
of stand of the Union of India insofar as the validity of the 1981
Amending Act is concerned. Having once filed an appeal against
the impugned judgment of the Allahabad High Court, the decision to
withdraw the same by Union of India and adopting a stand, which is
contrary to the pleadings before the Hon’ble High Court is arbitrary,
unreasonable and lacks bonafides. Dr. Dhawan submitted that the
stance taken by Union of India presently is also contrary to its stance
in the case of Azeez Basha [supra], which should not be permitted
at this stage.
36. Dr. Dhawan interpreted Articles 26, 29 and 30 of the Constitution to
argue that there are three questions, answers to which determine the
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character of a particular institution i.e., whether a particular institution
is a minority institution or not: -
a. What is the origin of the institute?
b. Whether the minority community founded the institution or not?
c. Whether the community in question is minority, either linguistic
or religious, in the State or not?
37. Dr. Dhawan assailed the correctness of Azeez Basha [supra], by
making the following submissions. Firstly, it has been held that as
per the University Grants Commission Act, 1956, a university can
be established only by a statute (enacted either by the Parliament
or a State Legislature) and a university can also be of a minority
character. Also, that the university loses its minority character as
soon as it is established by a statute. Therefore, there is inherent
contradiction in the said judgment. Secondly, while Azeez Basha
[supra] recognizes the history, background and antecedent role
that the MAO College played in building this institution, the bench,
however, ignores it at the end in view of the existence of 1920 Act.
The said history and background ought to be appreciated as has
been done in case of St. Stephen’s [supra]. Thirdly, in this respect,
Azeez Basha [supra] completely ignores the purpose of the 1920
Act. The said judgment fails to correctly appreciate the salient features
of the 1920 Act which demonstrate the minority character of Aligarh
Muslim University. Furthermore, Azeez Basha [supra] adopts a
very narrow construction of the word “establish” used in Article 30 of
the Constitution and further, fails to give reasons to disregard other
meanings of the said term. Lastly, Azeez Basha [supra] wrongly
concludes that the educational institutions of the minorities converted
into, and incorporated as, a university by a statute loses or seizes to
retain its minority character. If a minority can establish a university
under Article 30(1), and if universities are required to be incorporated
under a statute for degrees to be recognised, then it must follow
that the minority community is entitled to seek incorporation of its
institution as a university.
38. Dr. Dhawan, relying upon the provisions of the 1920 Act, asserted
that that it clearly demonstrates the Muslim character of the Aligarh
Muslim University. It is further urged that the AMU is the alter ego
of MAO College has been recognized by various provisions of the
1920 Act. Dr. Dhawan emphasized that the then Imperial Legislature
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had incorporated various provisions in the 1920 Act which are clearly
intended for the benefit of the Muslim community. It is pointed out
that the administration of AMU has been vested with the Muslim
minority and that Muslim community had de jure and de facto control
over the management of AMU.
39. Dr. Dhawan asserted that the law laid down in Azeez Basha [supra]
ignored the earlier binding decisions of larger benches of this Hon’ble
Court and therefore is, per incuram. These include the law laid down
by a 7-judge bench in the case of In Re Kerala Education Bill,
1957, (1959) SCR 995 and also by a 6-judge bench in the case of
Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837.
40. Furthermore, in view of the subsequent decisions of this Hon’ble
Court also, the law laid down in Azeez Basha [supra] does not
hold the field anymore. Additionally, it is urged that so far as UGC
Act and NCMEI Act (as amended in the year 2010) are concerned,
Sections 2(f), 22 and 23 of the former Act read with Sections 2(g)
and 10 of the latter Act indicate that a university can only be
established by a statute and apart from them, only those institutions
can confer degrees which have been declared as ‘deemed to be
University’ under Section 3 of the UGC Act or which have been
specifically empowered as such by an Act of Parliament. A university
established by a statute cannot be kept out of the scope of Article 30
of the Constitution. If it is so kept out, then it would mean all tertiary
education, except private institutions, will not get the protection of
Article 30. As per Dr. Dhawan’s reading of Azeez Basha [supra],
every minority institution, once given a statutory recognition, will fall
outside the ambit of Article 30.
41. Dr. Dhawan referred to the amendments made to the 1920 Act in the
year 1981, which, as noted hereinabove, have already been struck
down by the Allahabad High Court by the impugned judgment. It is
submitted that the validity of the said amendment provisions need
not be examined by this Bench and can be later dealt with by the
regular bench. As per Dr. Dhawan, presently, the only issue which
may be decided is whether Azeez Basha [supra] was correctly
decided or not.
42. Dr. Dhawan, referring to the said provisions and the statutes annexed
to the 1920 Act, submitted that de jure the control of management of
the Aligarh Muslim University was and is with the Muslim Community.
[2024] 11 S.C.R. 1933

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Further, adverting to certain other facts such as that all Chancellors
till date have been Muslims and 34 out of 37 Vice-Chancellors have
been Muslims, it has been pleaded that de facto too, the administration
of the Aligarh Muslim University has been in the hands of the Muslim
community.
43. Mr. Kapil Sibal, learned senior counsel, appearing for the Old Boys’
Association, submitted that the judgment in Azeez Basha [supra]
failed to consider the history and genesis of the Aligarh Muslim
University in the right perspective. While determining the factum
of the establishment of the University, historical initiative, impetus,
promotion, and purpose behind the institution has to be given due
importance, which was not done in Azeez Basha [supra].
44. It is asserted that Azeez Basha [supra] wrongly concludes that the
University was established by the 1920 Act and therefore, it cannot be
considered a minority institution. The 1920 Act is not the establishing
factum of the University but only a recognition of such establishment,
which has been done by the Muslim community at the relevant time.
In order to highlight the history and purpose behind the institute, Mr.
Sibal relied upon letters exchanged between Sir Syed Ahmed Khan
and the relevant authorities of the Government and the debates
which took place when the Aligarh Muslim University Bill was being
discussed in the Imperial Legislature in the year 1920. In short, the
genesis, according to him, includes the following:
a. Inspiration or purpose to set up the institution is by the minority.
b. The steps taken for persuasion are by the minority.
c. The essential paraphernalia or initial funding should be by the
minority.
d. Persuading the authorities, by the minority, to accept that fact.
45. Mr. Sibal vehemently argued that the mere presence of “outsiders”
in the administration of a minority institution would not deprive the
institution from its minority status. He accepted that certain regulations
can be imposed by the State on such institution to maintain the
stands of excellence, however, those regulations would not affect the
minority status of the institution. In contrast, the right of a linguistic
or a religious minority under Article 30 to establish and administer
an institution “of their choice”, which cannot be subject to any
regulation, is absolute.
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46. Additionally, it is submitted that the only benefit to a particular institute
of having a minority character is that the institute has the right to
reserve a certain number of seats for students of the said minority
community. The said right should not be taken away in the case of
Aligarh Muslim University, where de facto, majority of students are
already of Muslim community.
47. Apart from adopting submission of Dr. Dhawan and Mr. Sibal,
Mr. Salman Khurshid, learned senior counsel, appearing for applicants
in I.A Nos. 5 & 6 of 2016 in Civil Appeal No. 2286 of 2006 i.e., AMU
Lawyers Forum and AMU Old Boys’ Association, Delhi Unit, submitted
that a moral reading of the Constitution needs to be adopted in the
present case. If that is so done, it will follow that the rights under
Part III of the Constitution of India are natural to or inherent in a human
being. Mr. Khurshid argued that the natural rights are inalienable
because they are inseparable from the human personality and have
been just preserved by the Constitution. In this context, the rights
under Article 30 that the minorities have, as individuals, existed even
prior to 1950. As such, these rights cannot be taken away by way
of an artificially restricted interpretation of a word like ‘establish’.
48. Mr. Shadan Farasat, learned counsel, appearing for the appellant
in CA 2316 of 2006 - Haji Muqeet Ali Qureshi vs Malay Shukla,
submitted that there is a difference between establishment of an
educational institution and the device to bring it into legal existence,
which the judgment in Azeez Basha [supra] fails to take note of.
The 1920 Act is a device to bring into legal existence the Aligarh
Muslim University, which was established by the Muslim Community.
Furthermore, the interpretation of Article 30 cannot depend on the
existence of a particular legal regime at any given point, which is
the UGC Act in the present case. Mr. Farasat relied upon the data
to show that de facto, the administration of the AMU has been with
persons, majority of whom belong to Muslim community and further
that, whether there is reservation of 50% for Muslim Community or
not will not make any real difference since the majority of students
also has been of Muslim Community.
49. Mr. M R Shamshad, learned counsel appearing for the applicants in
I.A. No. 563 of 2024 in Civil Appeal No. 2316 of 2006 i.e., Anjuman-e-
Rahmania, submitted that the applicant was the petitioner in WP Nos.
54-57 of 1981 titled as Anjuman-e-Rahmania v. Distt. Inspector of
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School in which the order dated 26.11.1981 was passed by Fazal
Ali J. questioning the correctness of the judgment in Azeez Basha
[supra]. In addition to what has already been argued, he submitted
that minorities in the country have group rights in the form of rights
under Articles 29 and 30 of the Constitution, which must be protected
as is done in the case of other group rights available to Scheduled
Castes, Scheduled Tribes, OBCs, etc.

C.2. Respondents defending the correctness of Azeez Basha
[supra]
50. Controverting the same, on behalf of the parties defending the
judgment of the High Court and the correctness of the judgment in
Azeez Basha [supra], Mr. R. Venkataramani, the learned Attorney
General, submitted that the power to establish a university is
traceable to Article 30 of the Constitution and because the Aligarh
Muslim University was a pre-constitutional university, the Muslim
community did not legally have the power to establish it. Only the
British Government could have established the University through an
act of the Legislature. He has also sought to distinguish the existence
of the University from its predecessor, the Mohammedan Anglo
Oriental College, as the enabling power to create such a college
came from the Societies Registration Act. Ld. Attorney General
argues that the words “educational institutions of their choice” used
in Article 30 do not by themselves confer a power of establishment
independent of legal competence to do so. The Ld. Attorney General
argued that Azeez Basha [supra] was correct insofar as it stated
that the AMU was not “established” by the Muslim community but
by an Act of Legislature.
51. Mr. Tushar Mehta, Solicitor General of India, raised a preliminary
objection challenging the very reference itself, holding that a bench of
two judges could not have directly referred the matter to seven judges
in Anjuman [supra]. The Solicitor General disputed the interpretation
of Azeez Basha [supra] put forward by the Appellants whereby it is
argued that Azeez Basha [supra] holds that universities established
by legislation can never be minority institutions. He accepted that
institutions incorporated by statute can also be minority institutions
but submitted that in such a case, the Legislature would include
provisions in the Act clarifying the minority character of the institution
and AMU Act makes no such provision. He gave the example of
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the pre-constitution Annamalai University Act, to indicate how the
British parliament recognised “founders” of universities, which were
eventually taken over by the then Government.
52. The Solicitor General made extensive reference to the provisions of
the 1920 Act to argue that the intent was in fact the opposite, that is
to have government control over the institution by controlling, inter
alia, the appointment of important office holders, the composition of
administrative bodies, the rule making power of the university etc.
53. The Solicitor General argued that the AMU, despite its name is not
really a Muslim University but rather a secular educational institution.
Reference was made to the secular nature of the education provided
therein, to the history of AMU as a national institution and the
correspondences between British officials prior to the passage of the
Act to show that their intent was to have significant control over the
administration of the educational institution sought to be established.
Reference was further made to the Parliamentary debates on the
amending acts of 1965 and 1981.
54. It was asserted, through various examples, that in a pre-constitutional
context, the British Government had the power to require a community
to establish a university on the Government’s own terms. It was
sought to be argued that the AMU was a secular institution and not
a denominational university as the proponents of AMU may have
wished for. It was argued that since there was no Article 30 at the said
time, there was no right to establish a university free of government
control while still seeking governmental recognition of degrees.
55. The Solicitor General took the Court through the history of
establishment of Universities in the country. It was argued that the
history of universities under British rule to show that government
control was a built-in feature so far as educational institutions were
concerned. Reference was made to the history of the split between
the AMU and the Jamia Milia Islamia to argue that the AMU chose to
remain under government patronage while the Jamia was established
as a “nationalist” college.
56. It was asserted that it was open to the AMU to remain a college and
be free of government control or to establish a university without
recognition of its degrees by the government but it chose not to
exercise these options. The substance of the submission was that
the right of administration was ‘surrendered’ when the proponents
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of the AMU accepted establishment by statute of the kind made by
the 1920 Act.
57. The Solicitor General made an attempt to distinguish the concept of
being established by an Act from the concept of being established
under an Act. The decision in Dalco Engineering Pvt. Ltd. v.
Satish Prabhakar Padhye, (2010) 4 SCC 378, was cited to urge
that the AMU owes the whole of its existence to a statute and
thus it cannot be said that the statute was a mere recognition of
an existing arrangement. It was argued that through the 1920 Act,
the establishment of the AMU was the fresh establishment of an
entirely new body.
58. It was argued that the rights of establishment and administration
are distinct and separate. Reference in this regard was made to
Re: Kerala Education Bill, 1957, [supra]. The thrust of the argument
was that the institution must be shown to have been established by the
minority community. Only when this preliminary fact is proved, would
“administration” come into the picture. According to him, the words
“establish and administer” must be read conjunctively i.e. there can
be no right of administration separate from establishment. The stand
that these words are conjunctive is common to all the Respondents.
He referred to the Constituent Assembly Debates and to amendments
carried out in the NCMEI Act by which the words “establish or
administer” were substituted with “establish and administer” in line
with the constitutional scheme and Azeez Basha [supra].
59. It is further argued that an overly-expansive reading of Article 30
would result in educational institutions using the ‘cloak’ of minority
to escape government regulations and therefore, there must be a
real positive index which connects the minority community to the
institution. Extensive reference is made to A.P. Christians Medical
Educational Society v. Government of Andhra Pradesh, (1986)
2 SCC 667 and St. Stephens College [supra] to show what might
be indicia of minority character of an institute.
60. The Solicitor General supported the interpretation of “establish” put
forth in Azeez Basha [supra], to assert that it was in line with the
constitutional intent of Article 30. Since the provision is intended
to give a right to specifically to minorities, it was argued that was
necessary to show that the institution must have been “actually,
tangibly and manifestly brought into being” by a minority.
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61. It was asserted that “establishment” is a question of fact and as
Azeez Basha [supra] decided this question of fact conclusively, it is
not open for the Legislature to reverse a factual finding by bringing
a legislation stating otherwise in the form of the 1981 amendment.
The Solicitor General, in response to the submissions made on the
stand of the Union of India, stated that the Union of India has been
consistent in its stand. It was stated that as per the Union of India,
the AMU was not a minority institution even during the hearing of
the case of Azeez Basha [supra]. It was further stated that a party
can always withdraw the appeal at its discretion and the Union of
India can always choose the assist the Court on a question of law.
62. Mr. K.M. Nataraj, learned Additional Solicitor General of India,
has submitted a short note wherein it was argued that the Muslim
minority surrendered their right to establish the college and opted
for the governmental establishment in order to have recognition
for its degrees. It was urged that the circumstances in which such
surrender was made cannot be gone into by the Court in exercise
of its power of judicial review while placing reliance on the judgment
in the case of Dir. of Endowments Gov. of Hyderabad v. Syed
Akram Ali, AIR 1956 SC 60. He distinguishes the observations
regarding impossibility of surrender of such rights made in the
case of Ahmedabad St. Xavier’s College Society v. State of
Gujarat, (1974) 1 SCC 717 by stating that the said observations
applied only in a post-constitutional context. He referred Black’s
Law Dictionary 6th Edition to argue that in Azeez Basha [supra],
the court correctly understood the meaning of ‘establish’. He further
relies on State of Kerala v. Very Rev. Mother Provincial, (1970)
2 SCC 417 to argue that the words ‘establish’ and ‘found’ have
the same meaning.
63. It was further submitted that in order to qualify as a minority educational
institution, an institution must be established for the betterment of
the minority community and the inclusion of any outsiders must be
merely incidental. It was argued that the administrative control must
lie with the minority and that on a cumulative understanding it should
be clearly visible that the institution in question is actually a minority
institution and to a masked phantom as warned of in A.P. Christians
Medical Educational Society v. Government of Andhra Pradesh,
(1986) 2 SCC 667. He finally submits that the AMU is an institution
of national character and hence, it cannot be a minority institution.
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64. Mr. Vikramjit Bannerjee, learned Additional Solicitor General of
India, briefly traced the history and purpose of incorporating Articles
25-30 from the Constituent Assembly Debates. It was argued that
the purpose of these provisions was to instil a sense of confidence
in the minorities with a final view to erasing the difference between
majority and minority altogether. In that view, allowing an institute of
national importance to be classified as a minority institution would
go against the principles behind Article 30. To support his stand,
he relied on Bal Patil v. Union of India, (2005) 6 SCC 690. It was
argued that the words “institution of national importance” in Entry
63 of List I must be read keeping in mind the principle of noscitur a
sociis which would indicate that the AMU is intended to be a secular
institution open to all.
65. Mr. Rakesh Dwivedi, learned Senior Counsel, submitted that
in the pre-constitution era, the sole prerogative of establishing
universities lay with the Governor-General-in-Council. He refers to
the establishment of a number of Universities during the time of
British time to show that all such Universities were established by
an Act of the Legislature. It was argued that the intent of a minority
in establishing a university was material factor because the ultimate
fact of establishment could be only through the Government. It was
argued that the Muslim community in the pre-constitution era did
not identify as minorities at all. Therefore, it was stated that if the
community itself did not accept a minority character, it was not open
to confer such a character on them through operation of Article 30
insofar as the AMU is concerned. It was argued that the numerical
inferiority is only one aspect of minority status. Other aspects would
include whether or not the community was dominant either socially or
politically and whether or not it considered itself a minority. He relied
on certain reports of the United Nations to reinforce the idea that
minority must be defined with respect to socio-political dominance.
66. Mr. Dwivedi referred to history of negotiations between the proponents
of a Muslim University and the British Government to argue that all
major demands of the community were rejected and administrative
control of the university by the government was a condition precedent
for approval. He also referred to the Constituent Assembly Debates
to argue that the understanding of the constitution makers was that
the AMU was an institution of a national character. It is argued that
there is a difference between a university established under an Act
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by private persons and a university established by an Act. He argued
that the AMU is established by the Act and not under the Act by the
Muslim community.
67. Mr Neeraj Kishan Kaul, Ld. Senior Counsel, took the stand that
the correctness of Azeez Basha [supra] had been referred only to
the limited extent of determining whether its holding of the words
“establish” and “administer” being conjunctive in Article 30 was correct
or not. He argued that the original reference order in Anjuman [supra]
only referred the question of whether an institution could be called a
minority institution even if certain non-minority individuals had been
involved in its establishment. He also relied on the reference order
dated 12.02.2019 to argue that the status of AMU had not been
referred as a question at all.
68. In support of the conjunctive nature of the words establish and
administer, Mr. Kaul relied on Hyderabad Asbestos Cement
Products v. Union of India, (2000) 1 SCC 426 and St. Stephens
[supra] and also on the 2010 amendments to the NCMEI Act referred
to above. It was argued that applying a disjunctive test would lead
to adverse consequences since it would enable institutions to claim
minority status even if they were never administered by minorities.
It is submitted that no adverse effect would be caused to the right
of minorities to establish universities as a result of Azeez Basha
[supra]. It was argued that any university which wanted a minority
status was free to do so and in the absence of action by the concerned
authorities could take advantage of the deeming provision under
the NCMEI Act.
69. Mr. Kaul argued that the creation of the AMU was the creation of a
new and distinct entity, not merely the incorporation of an existing
institution as a university. The old MAO college had been completely
dissolved and its assets and liabilities transferred to the University. It
was further stated that the Act used the words “an act to establish”
and it did not anywhere state that it was recognising an existing
institution.
70. Mr. Kaul defended the correctness of Azeez Basha [supra] by
submitting that it had correctly appreciated the antecedent history of
the MAO College and the AMU. He next referred to TMA Pai [supra]
and the five parameters of administrative control outlined therein
i.e. admissions, fees, governing body composition, appointment of
[2024] 11 S.C.R. 1941

Aligarh Muslim University v. Naresh Agarwal & Ors.

staff and disciplinary control over staff. On each of those criteria,
it was argued that the real control was with the government due
to the predominant role of the Visiting Board and the Lord Rector.
Mr. Kaul argued that the 1981 Act had been correctly struck down
by the Allahabad High Court since it did not take away the basis of
Azeez Basha [supra] and moreover because legal fictions could
not supplant historical facts.
71. Mr. Guru Krishna Kumar, Ld. Senior Counsel, made extensive reference
to the history of the AMU to argue that it was never established as
a minority institution but as an institution for general and secular
education. It was argued that the British Government was consistently
opposed to both, the possibility of a denominational character of the
university and the proposed power of the university to affiliate colleges.
It was argued that the word “Muslim” in the university’s name was
accepted more out of deference to local sentiment than as an indication
of minority character. He also drew the Court’s attention to the array
of powers exercised both by the Governor-General-in-Council as Lord
Rector and the Visiting Board over the University.
72. Mr. Guru Krishna Kumar argued that the fact that the Muslim
community approached the then Government for establishing a
university is insignificant, as it was not necessary. It was argued
that the minority community had the right to establish a college as
happened thereafter with the creation of the Jamia Milia Islamia
without government interference.
73. It was argued that the muslim community approached the Government
since they wanted governmental recognition of their degrees which
was possible only if university was established by the Government. He
gave examples of certain colleges to show how such colleges were
given legal recognition as Universities through Acts of Legislature.
By contrast the MAO college was instead dissolved by the 1920 Act
and a new entity created in its place.
74. Further, it was argued that the inclusion of the AMU as a specific entry
in List I of the Constitution is a clear indication of its All-India character.
Even if the university once had the trappings of a minority institution,
such inclusion crystallises the secular nature of the university and
erases all vestiges of control by one specific community. Reference
in this regard is made to M. Siddiq (Ram Janambhumi Temple
Reference-5J) v. Mahant Suresh Das, (2020) 1 SCC 1.
1942 [2024] 11 S.C.R.

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75. It was urged that the 1981 amendment indirectly attempted to set
aside the judgement in Azeez Basha [supra] without removing the
basis of the judgement, which is impermissible. He adds that there
cannot be a legislative declaration of fact through an amending Act
which operates to set aside a finding of fact by the Supreme Court
and that the 1981 Amendment was bad on this count. He relied on
Indra Sawhney v. Union of India & Anr., (2000) 1 SCC 168 and
Mullaperiyar Environmental Protection Forum v. Union Of India
& Ors, (2006) 3 SCC 643.
76. Mr. Vinay Navare, Ld. Senior Counsel, submitted that the judgement
in Azeez Basha [supra] is not under challenge, only the principle laid
down therein. The findings arrived at in the said judgment cannot be
affected by the decision of the present Constitution Bench and only
the correctness of the legal principle is in question as a reference
does not decide the merits of a dispute inter se parties but only the
interpretation of a law.
77. It was argued that declaring the AMU to be a minority institution
would divest the Parliament of a large part of the power it could
otherwise have exercised under Entry 63 of List I. Since the AMU
is established by a special statute, it would be “State” within the
meaning of Article 12 and hence, cannot be a minority institution. He
relies on the judgement in Sukhdev Singh v. Bhagatram Sardar
Singh Raghuvanshi, (1975) 1 SCC 421.
78. It was argued that the 1981 amendment relying on the judgement
in Hotel and Catering Industry Training Board v. Automobile
Propriety Ltd, (1968) 1 WLR 1526. It was argued that the AMU
was created by a statute and not under a statute. It was argued that
to say that having been established by the Act, the AMU can be
governed only in terms of the Act and hence the minority community
can make no claim of having established the AMU since such claim is
precluded by the very provisions of the Act. It was argued that since
the institution was created by an Act, the words “of their choice” in
Article 30 would not be applicable.
79. Mr. Shridhar Potaraju, Ld. Senior Counsel, referred to the requirement
of publishing the university’s accounts in the official gazette and the
submission of the accounts originally to the Lord Rector and after
the 1981 amendment to the Parliament. On this basis he argues
that the AMU is an open and public university. It was argued that
[2024] 11 S.C.R. 1943

Aligarh Muslim University v. Naresh Agarwal & Ors.

the AMU itself never raised any questions about its character from
1950 until 2005, when for the first time it enacted reservations for
Muslims. Until 2005, the AMU was governed by the non-discrimination
requirement under Article 29(2) since AMU is under the financial
and administrative control of the Government, it is ‘State’ within the
meaning of Article 12 of the Constitution.
80. Ms. Archana Pathak Dave, Ld. Senior Counsel, submitted that the
insertion of Section 2(l) by the 1981 amendment was an impermissible
exercise of legislative overruling of a judgement. The question of
establishment having been settled in Azeez Basha [supra] it cannot
be reopened by an amendment act which seeks to take a contrary
view on facts.
81. Mr. Yatindra Sharma, Ld. Senior Counsel, reiterated that the university
was established and is being administered by the government and
not the Muslim community. He goes on to state that Muslims are in
fact not a minority in terms of Article 30 as the said Article applies
to electoral minorities i.e. those whose numbers are so few that
they cannot influence electoral outcomes. It was argued that even
assuming that the changes made in the 1981 amendment take
away the basis of Azeez Basha [supra], they are unconstitutional
for violating Articles 14, 15 and 29(2) of the Constitution.
82. Mr. Anirudh Sharma, learned counsel, submitted that Article 29(2)
would stand on higher footing as compared to Article 30(1) and
therefore once any institution is covered by Article 29(2), the general
right provided therein cannot be unsettled by the specific right under
Article 30(1). He has also attempted to distinguish the case of the
AMU from that of St. Stephens [supra] by arguing that there were
clear indicia of minority character in St Stephens College which are
not present in case of the AMU.
83. Mr. Vivek Sharma, learned counsel, briefly submitted and reiterated
that the administration of the AMU never vested in the Muslim
community and always lay with the government under the 1920 Act.
84. Mr. Nachiketa Joshi, learned counsel, submitted a note which
reiterates that it was the choice of the proponents of the AMU to seek
government recognition for the AMU’s degrees. To that end, they
accepted the establishment by the government instead of establishing
the university themselves. It was argued that therefore the benefit
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of Article 30 cannot be claimed since establishment by the minority
was missing. Further, the 1981 amendment was correctly struck
down by the Division Bench of the Allahabad High Court as it was
an attempt at legislative overruling of a judgement.
85. Mr. Sanjay Kumar Dubey, learned counsel, made reference to
the original 1920 legislative council debates to submit that Shri
Mohammed Shafi who had tabled the AMU bill had himself stated
that this was to be an All-India and national institution. In view of
the intent of the original movers of the Bill, the AMU cannot be said
to be a minority institution.

C.3. Submissions in Rejoinder
86. In rejoinder, Dr. Rajeev Dhawan, Ld. Senior Counsel, argued that both
sides to the dispute agree that the words ‘establish’ and ‘administer’
in Article 30(1) must be read conjunctively, and not disjunctively. It
was argued that it is also not in issue that the right to administer the
educational institution flows from the proof of establishment, although
they may exist in different points in time.
87. It was argued that the Respondents’ contention that AMU is a sui
generis institution is not a valid ground to avoid the reconsideration of
Azeez Basha [supra]. It was argued that every minority educational
institution is a standalone institution to serve unique needs of their
community, which includes catering to the educational needs of their
community, conserving their unique script or culture, and achieving
standards of excellence.
88. It is further urged that the minorities have been recognized in India
even before the Constitution came into force and therefore, to say
that Muslim community had no minority ‘group’ rights before 1950 is
fallacious. It is argued that there exists a constitutional premium, as
well as a statutory premium (for e.g., Central Educational Institutions
(Reservation in Admission) Act, 2006) which is attached to minority
exceptions and the minority dispensation. Therefore, it is not just
Article 30 which recognizes the minority rights, but if the whole
statutory dispensation analysed, it is clear that Parliament has
excepted the minorities from Articles 15(5) and 15(6).
89. Additionally, certain other factors have been suggested by Dr.
Dhawan, which may be determinative of minority character of a
particular institute, which are as follows:
[2024] 11 S.C.R. 1945

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a. Founders should belong to either religious or linguist community;
b. Historical antecedents of the institution which show the active
involvement, intention, and contributions of minority founders
or the community;
c. Founders’ intent to establish an institute should be bona fide,
and not devious or dubious and for the benefit of the minority
community;
d. Constitutional documents (such as statute, rules, or regulations)
read as a whole should show predominance of minority
character;
e. Administration of the institution if it is vested in the founders
or persons in whom the founders have faith and confidence;
f. Imparting of religious education, or providing for religious
instruction and worship
g. Symbols such as the name, architecture, motto, and such other
cultural symbols of the minority.
90. It is further submitted that declaration as to a particular institute bearing
national importance under Entry 63, List 1 and status as a minority
institution operate in different spheres. It is open for the Parliament to
declare an institution of national importance because of its academic
excellence, strategic and security interests, geographic location,
cultural or religious prominence, or even granting aid. Therefore, it is
argued that the reasons for granting the tag of ‘national importance’
may be varied and unrestricted, which are different than the factors
determinative of minority character of a particular institute. It was
argued that the declaration under Entry 63, List 1 shall always be
subject to the rights under Article 30.
91. Mr. Kapil Sibal, Ld. Senior Counsel, submitted in rejoinder that the
minority has a right under Article 30 to administer the institution
which it has established, which it may exercise or may not exercise.
It is not the duty of the said community to administer once it has
established. Therefore, in the present case, even if it is assumed
that the administration of AMU is not with the Muslim community, it
would not mean that the AMU will cease to be a minority institution
since it has been established as such by Muslim community.
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92. It was argued that to that extent, the judgment is Azeez Basha [supra]
has been decided wrongly. Further, it is urged that if right to administer
is exercised and if the Government interferes in such right, the
minority institute can challenge such interference on the ground of
it being violative of Article 30. Moreover, the Muslim minority wanted
to establish a university which could grant degrees of its own which
would have to be recognised by the Government. It was argued
that subscribing to a regulatory framework that would offer better
opportunities to students who enrolled with the institution, is a choice
that has no relation to the alleged surrender of minority status.
93. Mr. Shadan Farasat, learned counsel, compared the provisions of all
the Acts establishing the Universities, existing at the relevant time
to show that the denominational nature is evident from the level of
autonomy granted vis-a-vis, the non-denominational universities
of the relevant time and sought to argue that the provisions of the
AMU Act clearly depict the minority character of the institution even
at the time of inception.

D. Scope of proceedings
D.1. Petitions before the Court
94. Before adverting to the legal issues and the contentions raised in
the present proceedings, it would be appropriate to define the scope
of the present proceedings. The present set of the petition can be
divided in the following groups :
i. Batch of eight (8) civil appeals challenging the judgment of
Hon’ble Allahabad High Court dated 05.01.2006 [hereinafter
referred to as the “Impugned Order”] - Civil Appeal Nos. 2286,
2316, 2317, 2318, 2319, 2320, 2321 and 2861 of 2006;
ii. A transferred case involving a writ petition filed before the Hon’ble
Allahabad High Court seeking implementation of reservations
in terms of the Central Educational Institutions (Reservation in
Admissions) Act, 2006 - Transferred Case (Civil) No. 46 of 2023.
iii. A civil appeal challenging the judgment of the Hon’ble Allahabad
High Court dated 16.10.2015 that dismissed the prayer for quo
warranto regarding the appointment of the then Vice Chancellor
of Appellant-University - SLP(C) No. 32490 of 2015;
[2024] 11 S.C.R. 1947

Aligarh Muslim University v. Naresh Agarwal & Ors.

iv. A writ petition under Article 32 seeking a writ or direction to the
Appellant - University to follow the regulations laid by University
Grants Commission (‘UGC’) in 2010 on minimum qualifications
for appointment of teachers and academic staff - WP(C) No.
272 of 2016

D.2. The Anjuman reference
95. The Aligarh Muslim University Act, 1920 was amended in the
year 1965 following some disturbances at the campus. The said
amendment was challenged by way of writ petitions filed under Article
32 and disposed off by this Court by way of the judgment in Azeez
Basha [supra] [5 Hon’ble Judges]. The judgment dated 20.10.1967
held that the University was not established by the minority community
and therefore, it cannot be said to be an institution falling under the
expanse of Article 30 of the Constitution.
96. In 1981, Writ Petition No.54-51 of 1981 came up before a bench
of two Hon’ble Judges of this Court, which was titled Anjuman-e-
Rehmania & Ors v. Distt. Inspector of School & Ors. In the said
petition, this Court was confronted with a question, which is recorded
in its order dated 26.11.1981. The relevant portion is reproduced
hereunder: -
“The point that arises is as to whether Act. 30(1) of the
Constitution envisages an institution which is established
by minorities alone without the participation for the factum
of establishment from any other community. On this
point, there is no clear decision of this court. There are
some observations in S. Azeez Basha & ors. Vs. Union
of India 1968(1) SCR 333, but these observations can be
explained away. Another point that arises is whether soon
after the establishment of the institution if it is registered
as a Society under the Society Registration Act, its status
as a minority institution changes in view of the broad
principles laid down in S. Azeez Basha’s case. Even as
it is several jurists including Mr. Seervai have expressed
about the correctness of the decision of this court in S.
Azeez Basha’s case. Since the point has arisen in this
case we think that this is a proper occasion when a larger
bench can consider the entire aspect fully. We, therefore,
direct that this case may be placed before Hon. The Chief
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Justice for being heard by a bench of at least 7 judges so
that S. Azeez Basha’s case may also be considered and
the points that arise in this case directly as to the essential
conditions or ingredients of the minority institution may also
be decided once for all. A large number of jurists including
Mr. Seervai, learned counsel for the petitioners Mr. Garg
and learned counsel for respondents and interveners Mr.
Dikshit and Kaskar have stated that this case requires
reconsideration. In view of the urgency it is necessary
that the matter should be decided as early as possible
we give liberty to the counsel for parties to mention the
matter before Chief Justice.”
97. The question of law, as noticed above, was referred to bench of
seven Hon’ble Judges by a bench of two judges. It may be noted
that Hon’ble CJI at that time was not a part of this bench of two
Hon’ble Judges. The said group of matters in Anjuman [supra]
were placed before a bench of 11 Judges and was heard along with
other writ petitions which culminated into the judgment of TMA Pai
Foundation and Ors. v. State of Karnataka, (2002) 8 SCC 481.
98. The 11 Judges bench, inter alia, framed a question vide its order
dated 26.11.1981, which reads as under:
“3(a) What are the indicia for treating an educational
institution as a minority educational institution? Would
an institution be regarded as a minority educational
institution because it was established by a person(s)
belonging to a religious or linguistic minority or its being
administered by a person(s) belonging to a religious or
linguistic minority?”
99. Finally, the larger Bench in TMA Pai [supra] opined that “this question
need not be answered by this Bench, it will be dealt by a regular
Bench.” Thereafter, the group of matters in case of Anjuman [supra]
came to be disposed of vide order dated 11.03.2003

D.3. The present reference
100. Separately, the present proceedings arise out of the decisions/
resolutions of the Admission Committee dated 10.01.2005, the
Resolution Passed by the Academic Council dated 15.01.2005 and
the Resolution passed by the Executive Council dated 19.05.2005
[2024] 11 S.C.R. 1949

Aligarh Muslim University v. Naresh Agarwal & Ors.

which provided reservation to the extent of 50 per cent of seats to
be reserved for Muslims of India for admission to post graduate
programmes.
101. The Petitioners before the High Court of Judicature at Allahabad
[hereinafter referred to as the “Allahabad High Court” or “High
Court”] filed writ petitions against the said decisions, while also
challenging the amendment made to the AMU Act in 1981. The said
writ petition came to be decided by Ld. Single judge of the High
Court of Judicature at Allahabad vide Judgment and Order dated
04.10.2005. The said judgment was impugned before the Division
Bench of the Hon’ble High Court by way of Special Appeal 1321
of 2005 and connected matters, which was finally decided by the
judgment dated 05.01.2006, vide which the High Court dismissed
the appeals filed by the appellants therein. The appeals/special leave
petitions from the said order are under challenge before this Court.
102. On 12.02.2019, a three Judge Bench has referred the present
batch of appeals and petitions to a bench of seven Hon’ble Judges.
Considering the intense divergence of opinion on the reference order
and the resultant scope of the present proceedings, the said order
deserves to be quoted in extenso as under :
“3. The issue arising in S. Azeez Basha (supra) was
referred to a Seven (07) Judges Bench by an order of this
Court dated 26th November, 1981 passed in Writ Petition
(Civil) Nos. 54-57 of 1981 [Anjuman-e-Rahmania & Ors.
vs. Distt. Inspector of School & Ors.].
4. The aforesaid writ petitions i.e. Writ Petition (Civil) Nos.
54-57 of 1981 were heard along with other connected cases
{lead being Writ Petition (Civil) No.317 of 1993 (T.M.A. Pai
Foundation and others vs. State of Karnataka and others)]
by a bench of Eleven (11) judges, the judgment in which
cases is reported in (2002) 8 SCC 481.
5. The question 3(a) which was formulated for an answer
in T.M.A. Pai Foundation (supra) which coincidentally
reflects the questions referred by the order of this Court
dated 26th November, 1981 passed in Writ Petition (Civil)
Nos. 54-57 of 1981, is as follows:
“3(a) What are the indicia for treating an educational
institution as a minority educational institution? Would
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an institution be regarded as a minority educational
institution because it was established by a person(s)
belonging to a religious or linguistic minority or its
being administered by a person(s) belonging to a
religious or linguistic minority?
6. However, the Bench did not answer the question
stating that it will be dealt with by the Regular Bench.
7. The order of the Regular Bench passed on 11th March,
2003, which, for reasons that we need not dilate, did not
answer the aforesaid question 3(a) formulated in T.M.A.
Pai Foundation (supra).
8. The said facts would show that the correctness of
the question arising from the decision of this Court in
S. Azeez Basha (supra) has remained undetermined.
9. That apart, the decision of this Court in Prof. Yashpal
and another vs. State of Chhattisgarh and others 2 and
the amendment of the National Commission for Minority
Educational Institutions Act, 2004 made in the year 2010
would also require an authoritative pronouncement on the
aforesaid question formulated, as set out above, besides
the correctness of the view expressed in the judgment
of this Court in S. Azeez Basha (supra) which has been
extracted above.
10. Ordinarily and in the normal course the judicial discipline
would require the Bench to seek a reference of this matter
by a Five Judges Bench. However, having regard to the
background, as stated above, when the precise question
was already referred to a Seven Judges Bench and was,
however, not answered, we are of the view that the present
question, set out above, should be referred to a Bench of
Hon’ble Seven Judges.
11. Consequently and in the light of the above, place these
matters before the Hon’ble the Chief Justice of India
on the administrative side for appropriate orders.”
103. Considering the varying positions taken by various parties before
this Hon’ble Court, we have divided the sides in two categories –
the ones defending the judgment of the High Court and the ones
aggrieved by the judgment of the Hon’ble Court.
[2024] 11 S.C.R. 1951

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D.4. The parameters on which reference can be made to a
larger bench
104. The parties defending the judgment of the High Court were at pains
to assert that it would not be permissible for the other side to re-
agitate the factual findings and facts based legal controversies already
decided by a five-Judge bench in Azeez Basha [supra]. The parties
defending the judgment of the High Court assert that the lis between
the parties, as far as the minority status of the AMU is concerned,
stands settled by the judgment of Azeez Basha [supra] and cannot
be re-opened. As per the said set of submissions, this Court is merely
supposed to decide the question of law - Question 3(a), which was
formulated for an answer in T.M.A. Pai [supra] without deciding
status of the AMU. At the same time, the said parties urged the
Hon’ble Court to decide upon the validity of the amendments made
to the AMU Act in 1981 which were under challenge before the High
Court. The said parties further highlighted the manner in which the
matter was referred by the bench of two judges in Anjuman [supra]
directly to seven judges was incorrect as the said bench was bound
by a judgment of five judges in Azeez Basha [supra].
105. On the other hand, the parties challenging the judgment of the High
Court, pressed that correctness of the view expressed in the judgment
of this Court in Azeez Basha [supra] has been specifically referred
to a larger bench of seven judges and therefore, the said issue is
moot before this bench. The said parties requested this Court to lay
down the law Question 3(a), which was formulated for an answer
in T.M.A. Pai [supra] and decide thereupon whether the approach
adopted in the judgment of Azeez Basha [supra] was correct or
not. At the same time, the said parties urged the Hon’ble Court not
to decide upon the validity of the amendments made to the AMU
Act in 1981 which were under challenge before the High Court and
other decisions of the AMU authorities made in 2005 and leave the
same to be decided by a regular bench.
106. At first, it is important to clarify the issue raised by the parties with
regard to the reference order in Writ Petition (Civil) Nos. 54-57 of
1981 in Anjuman-e-Rahmania & Ors. v. Distt. Inspector of School
& Ors. The said bench of two Hon’ble Judges [without comprising
of the Hon’ble Chief Justice of India] referred the judgement of five
Hon’ble Judges in Azeez Basha [supra], directly to a bench of
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seven Hon’ble Judges. The reason that the Court in Anjuman-e-
Rahmania & Ors [supra] provides is that as per the judgement in
Azeez Basha [supra], if after the establishment of an institution, the
institution is registered as a society, its status as a minority institution
changes. It has been pointed out that the AMU and the decision in
Azeez Basha [supra], had nothing to do with a society or Societies
Registration Act as the AMU is governed by way of a standalone
legislation. The other reason the Court in Anjuman [supra] cites for
making a reference is the criticism of the judgement by jurists like
Mr. Seervai. It has been argued that while opinions of jurists hold
persuasive value, the same cannot be a ground for making reference
to a larger bench. The reference order in Anjuman [supra] does
not point towards a future or previous judgement of equal or larger
strength from Azeez Basha [supra], being contrary to the judgement
in Azeez Basha [supra]. In effect, a Bench of two hon’ble Judges
has directly referred to the correctness of a decision rendered by
five Hon’ble Judges to seven Hon’ble Judges, without the presence
of a Chief Justice despite being prima facie bound by the opinion
of the larger Bench.
107. A similar situation arose in relation to the judgment of this Court in
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962
Supp (2) SCR 496. In the said case, which concerned the powers
of excommunication of the head of Dawoodi Bohra community, a
five-Judge Bench of this Court, ruled by a majority of 4:1, that the
Bombay Prevention of Excommunication Act (Act 42 of 1949) was ultra
vires the Constitution as it violated Article 26(b) of the Constitution
and was not saved by Article 25(2).
108. Decades later, on 26-2-1986, a fresh petition was filed seeking
reconsideration and overruling of the decision of this Court in Sardar
Syedna [supra] and for issuing a writ of mandamus directing the
State of Maharashtra to give effect to the provisions of the Bombay
Prevention of Excommunication Act, 1949.
109. The said matter came up for hearing before a two-Judge Bench of
this Court which on 25-8-1986 directed “rule nisi” to be issued. On
18-3-1994 a two-Judge Bench directed the matter to be listed directly
before a seven-Judge Bench for hearing. On 20-7-1994 the matter did
come up before a seven-Judge Bench which adjourned the hearing
awaiting the decision in WP No. 317 of 1993 [T.M.A. Pai (supra)].
[2024] 11 S.C.R. 1953

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110. On 26-7-2004 IA No. 4 was filed on behalf of Respondent 2 seeking
a direction that the matter be listed before a Division Bench of two
Judges. Implicitly, the application sought a direction for non-listing
before a Bench of seven Judges and rather the matter being listed
for hearing before a Bench of two or three Judges as is the normal
practice of this Court. In the contents of the application reliance was
placed on the Constitution Bench decisions of this Court in Bharat
Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4
SCC 448 followed in four subsequent Constitution Bench decisions
namely Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002)
1 SCC 1; Chandra Prakash v. State of U.P., (2002) 4 SCC 234;
Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani, (2002) 10 SCC
437 and Arya Samaj Education Trust v. Director of Education,
(2004) 8 SCC 30.
111. The matter was ultimately placed before a bench of five Hon’ble
Judges in order to decide that whether the course adopted by the
two judge bench, doubting the correctness of a decision rendered
by five Hon’ble Judges, was correct. While examining the issue, this
Court highlighted the approaches available to the Court in a decision
reported in Central Board of Dawoodi Bohra Community and Anr.
v. State of Maharashtra and Anr, (2005) 2 SCC 673.
112. On the question of reference, the Court held that when a decision
delivered by a Bench of larger strength is binding on any subsequent
Bench of lesser or co-equal strength. A Bench of lesser quorum has
only two options :
a. invite the attention of the Chief Justice and request for the
matter being placed for hearing before an appropriate bench or;
b. place the matter before a Bench of coequal strength which
pronounced the decision laying down the law the correctness
of which is doubted.
The only exception to the above said rule is the discretion of the
Chief Justice in whom vests the power of framing the roster.
113. In extremely rare cases, if the matter has already come up for hearing
before a Bench of larger quorum and that Bench itself feels that the
view of the law taken by a Bench of lesser quorum needs correction
or reconsideration, then by way of an exception and for reasons given
by it, it may proceed to hear the case and examine the correctness
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of the previous decision in question dispensing with the need of
a specific reference or the order of Chief Justice constituting the
Bench and such listing. After discussing the said legal position, this
Court in Central Board of Dawoodi Bohra Community [supra],
crystallised the law as under :
“12. Having carefully considered the submissions made
by the learned senior counsel for the parties and having
examined the law laid down by the Constitution Benches
in the abovesaid decisions, we would like to sum up the
legal position in the following terms :-
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot doubt the
correctness of the view of the law taken by a Bench
of larger quorum. In case of doubt all that the Bench
of lesser quorum can do is to invite the attention of
the Chief Justice and request for the matter being
placed for hearing before a Bench of larger quorum
than the Bench whose decision has come up for
consideration. It will be open only for a Bench of
coequal strength to express an opinion doubting the
correctness of the view taken by the earlier Bench
of coequal strength, whereupon the matter may be
placed for hearing before a Bench consisting of a
quorum larger than the one which pronounced the
decision laying down the law the correctness of which
is doubted.
(3) The above rules are subject to two exceptions :
(i) The abovesaid rules do not bind the discretion
of the Chief Justice in whom vests the power
of framing the roster and who can direct any
particular matter to be placed for hearing before
any particular Bench of any strength; and
(ii) In spite of the rules laid down hereinabove,
if the matter has already come up for hearing
before a Bench of larger quorum and that Bench
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itself feels that the view of the law taken by a
Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way
of exception (and not as a rule) and for reasons
given by it, it may proceed to hear the case
and examine the correctness of the previous
decision in question dispensing with the need of
a specific reference or the order of Chief Justice
constituting the Bench and such listing. Such
was the situation in Raghubir Singh and Ors.
and Hansoli Devi and Ors. (supra)”
In understanding the correctness of the reference in Anjuman
[supra], the said finding in Central Board of Dawoodi Bohra
Community and Anr. [supra] is crucial.
114. Further, it has been held by this Court that reference to a larger
bench cannot be merely made for the asking or even because
another view appears to be a possible view. It in Govt. of A.P. v.
B. Satyanarayana Rao, (2000) 4 SCC 262, it was held as under :
“8. Learned counsel for the respondent attempted to
convince us that the decision in the case of State of A.P.
v. V. Sadanandam [1989 Supp (1) SCC 574 : 1989 SCC
(L&S) 511 : (1989) 11 ATC 391] has to be ignored on the
principle of per incuriam as certain relevant provisions of
the Rules were not considered in the said case, and in any
case this case requires to be referred to a larger Bench
of three Judges. The rule of per incuriam can be applied
where a court omits to consider a binding precedent of the
same court or the superior court rendered on the same
issue or where a court omits to consider any statute while
deciding that issue. This is not the case here. In State of
A.P. v. V. Sadanandam [1989 Supp (1) SCC 574 : 1989
SCC (L&S) 511 : (1989) 11 ATC 391] the controversy
was exactly the same as it is here and this Court after
considering para 5 of the Presidential Order of 1975 held
that the Government has power to fill a vacancy in a zone
by transfer. We, therefore, find that the rule of per incuriam
cannot be invoked in the present case. Moreover, a case
cannot be referred to a larger Bench on mere asking
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of a party. A decision by two Judges has a binding
effect on another coordinate Bench of two Judges,
unless it is demonstrated that the said decision by
any subsequent change in law or decision ceases
to laying down a correct law. We, therefore, reject the
arguments of learned counsel for the respondents.”
115. In Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative
Assembly (2020) 2 SCC 595, it was held as under :
“157. There is no doubt that the requirements under
Article 145(3) of the Constitution have never been
dealt with extensively and, more often than not, have
received mere lip service, wherein this Court has found
existence of case laws which have already dealt with
the proposition involved, and have rejected such
references. Normatively, this trend requires consideration
in appropriate cases, to ensure that unmeritorious
references do not unnecessarily consume precious
judicial time in the Supreme Court.
158. In any case, we feel that there is a requirement
to provide a preliminary analysis with respect to the
interpretation of this provision. In this context, we need
to keep in mind two important phrases occurring in Article
145(3) of the Constitution, which are, “substantial question
of law” and “interpretation of the Constitution”. By reading
the aforesaid provision, two conditions can be culled out
before a reference is made:
(i) The Court is satisfied that the case involves a
substantial question of law as to the interpretation
of this Constitution;
(ii) The determination of which is necessary for the
disposal of the case.
160. Any question of law of general importance
arising incidentally, or any ancillary question of law
having no significance to the final outcome, cannot
be considered as a substantial question of law. The
existence of substantial question of law does not
weigh on the stakes involved in the case, rather, it
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depends on the impact the question of law will have
on the final determination. If the questions having a
determining effect on the final outcome have already
been decided by a conclusive authority, then such
questions cannot be called as “substantial questions
of law”. In any case, no substantial question of law exists
in the present matter, which needs reference to a larger
Bench. The cardinal need is to achieve a judicial
balance between the crucial obligation to render
justice and the compelling necessity of avoiding
prolongation of any lis.”
116. Similarly in Joint Commissioner of Income Tax, Surat v. Saheli
Leasing & Industries Ltd., (2010) 6 SCC 384, it was held as under:
“(x) In order to enable the Court to refer any case to
a larger Bench for reconsideration, it is necessary
to point out that particular provision of law having a
bearing over the issue involved was not taken note
of or there is an error apparent on its face or that
a particular earlier decision was not noticed, which
has a direct bearing or has taken a contrary view.
Such does not appear to be the case herein. Thus, it
does not need to be referred to a larger Bench as in our
considered opinion it is squarely covered by the judgment
of this Court in Gold Coin [(2008) 9 SCC 622 : (2008)
304 ITR 308]”
117. In view of the above, the approach adopted in the reference order in
Anjuman [supra] was not wholly appropriate. However, considering
the fact that the present reference was made by a separate three
judge bench [which consisted of the then Hon’ble Chief Justice], it
would be apposite to not be whittled down by the error that may have
crept in Anjuman [supra] reference. As far the scope of the present
proceedings is concerned, the Court must adopt a sustainable and
consistent approach. In this regard, it is clear that this Court needs
to provide a clear understanding of the overlapping and intersecting
reference orders mentioned above.
118. The expanse and the width of the proceedings before a larger cannot
be whittled down by statute like reading of the reference order(s).
Order VI Rule 2 of the Supreme Court Rules, 2013 reads as under:
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“ORDER VI
CONSTITUTION OF DIVISION COURTS AND
POWERS OF A SINGLE JUDGE
2. Where in the course of the hearing of any cause, appeal
or other proceeding, the Bench considers that the matter
should be dealt with by a larger Bench, it shall refer the
matter to the Chief Justice, who shall thereupon constitute
such a Bench for the hearing of it.”
119. The terms “any cause” and “other proceedings” are of a very wide
import and the power of the Chief Justice of India, with regard to
references to larger benches has also been judicially re-iterated by
numerous constitution benches. A bench of nine Hon’ble Judges
in Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v. Indian
Young Lawyers Association, (2020) 9 SCC 121, has held as under :
“27. No matter is beyond the jurisdiction of a superior
court of record unless it is expressly shown to be so,
under the provisions of the Constitution. In the absence
of any express provision in the Constitution, this Court
being a superior court of record has jurisdiction in
every matter and if there is any doubt, the Court has
power to determine its jurisdiction [Delhi Judicial Service
Association v. State of Gujarat, (1991) 4 SCC 406] . It is
useful to reproduce from Halsbury’s Laws of England, 4th
Edn., Vol. 10, Para 713, relied upon in the aforementioned
judgments, which states as follows:
“713. … Prima facie, no matter is deemed to be
beyond the jurisdiction of a superior court unless
it is expressly shown to be so, while nothing is
within the jurisdiction of an inferior court unless it is
expressly shown on the face of the proceedings that
the particular matter is within the cognizance of the
particular court.”
Undoubtedly there is no bar on the exercise of jurisdiction
for referring questions of law in a pending review petition.
Therefore, the reference cannot be said to be vitiated for
lack of jurisdiction. This Court has acted well within its
power in making the reference.”
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D.5. A holistic approach
120. It is undoubtedly true that the correctness of the view expressed
in the judgment of this Court in Azeez Basha [supra] has been
specifically referred to a larger bench of seven judges. Further it
is correct that Court is supposed to decide the question of law -
Question 3(a), which was formulated for an answer in T.M.A. Pai
[supra].
121. The status of AMU is in question due to the amendments made to the
AMU Act in 1981 and the decisions of the AMU authorities in 2005.
The said changes, especially the legislative changes, have taken
place after the judgment in Azeez Basha [supra], and therefore, it
is imperative that this Court decides the questions arising therefrom.
The validity of the amendments made to the AMU Act in 1981 and
decisions of the AMU authorities made in 2005 may be left to be
decided by a regular bench.
122. This Court shall therefore decide the Question 3(a), which was
formulated for an answer in T.M.A. Pai [supra]. A decision on the
said question would naturally have an impact on the correctness, or
lack thereof, on the judgment of Azeez Basha [supra].
123. Once the correctness of the judgment in Azeez Basha [supra],
is under scanner and the Question 3(a) has been decided, the
regular bench may decide the status of the AMU especially with
regard to the question whether it was “established” by the minority
community or not, would have to be adjudicated. The decision on
the said question, would lay down the parameters of scope and
extent to which the Parliament could have amended the AMU Act.
Once the fate of the 1981 amendments to the AMU Act is decided,
the Court would adjudicate upon the validity of actions of the AMU
authorities in 2005.
124. In light of the above, despite the strong contest with regard to the
correctness of Anjuman [supra], this bench would be taking a
holistic approach to the present reference in deciding the questions
present before it.

E. Issues
125. In light of the above, the following issues would be decided by the
present reference :
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i. Whether the bench of two judges in Writ Petition No.54-51 of
1981 titled Anjuman-e-Rehmania & Ors v. Distt. Inspector of
School & Ors. could have referred to the matter to a bench of
seven Hon’ble Judges directly, without the Hon’ble Chief Justice
of India, being a part of the bench? [already decided above]
ii. Whether the “establishment” of an institution by the minority is
necessary for the said minority to claim right of administration? To
put it different, is “establish” and “administer” used disjunctively
or conjunctively in Article 30 of the Constitution?
iii. What is the meaning of the term “establish” in Article 30 of the
Constitution and what are the real positive indicia for determining
the question of establishment of an institution?
iv. What is the true meaning and purport of the judgment in Azeez
Basha [supra]?
v. What must be the approach of the court in balancing the
conflicting narratives of history presented before it in such cases?
vi. What was the legislative scenario governing the Universities in
India prior to the University Grants Commission Act, 1956 and
how does the same impact the judicial enquiry in the present
matter?
vii. Whether the Legislature using the terms “establish” and/
or “incorporate” in the Preamble of a legislation would be
determinative of the question of establishment?
viii. What is the impact of the Constitution coming into force and
the subsequent legislative amendments made to the AMU Act
on the present proceedings?
ix. Whether the presence of members of the minority community
in the governance of the institution, without any necessary
legal requirement for the same, would impact the question of
the institution falling under Article 30?
x. Whether Article 30 exists to protect institutions from
“majoritarianism by default” approach?
xi. Whether the UGC Act, 1956 and the judgement in Yashpal
[supra] impacts on the correctness of the judgment in Azeez
Basha [supra]?
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xii. Whether the NCMEI Act, 2004 impacts on the correctness of
the judgment in Azeez Basha [supra]?
126. The following issues and proceedings are however, left to be decided
by a regular bench:
i. Whether the AMU was “established” and “administered” by the
minority community and therefore entitled to claim protection
under Article 30?
ii. Whether the 1981 amendment to the AMU Act, 1920, was an
impermissible exercise of legislative power?
iii. Whether the Central Educational Institutions (Reservation in
Admissions) Act, 2006, would be applicable to the AMU?
iv. The civil appeal challenging the judgment of the Hon’ble
Allahabad High Court dated 16.10.2015 that dismissed the
prayer for quo warranto regarding the appointment of the then
Vice Chancellor of Appellant-University - SLP(C) No. 32490
of 2015;
v. The writ petition under Article 32 seeking a writ or direction
to the Appellant - University to follow the regulations laid by
University Grants Commission (‘UGC’) in 2010 on minimum
qualifications for appointment of teachers and academic staff
- WP(C) No. 272 of 2016.

F. Whether establishment is necessary
127. The first question that needs to be answered is whether an institution
needs to be “established” by the minority community in order to claim
protection/rights under Article 30? In other words, is it possible for
an institution to “acquire” the status of a minority institution without
being established as one? While there has not been much contest on
the aforesaid question, considering the fact that it has arisen before
this Court on numerous occasions and further was one of the factors
for the reference in Anjuman [supra], it would be appropriate that
the same is settled for posterity.
128. The first judgment which may provide some assistance in this regard
would be the landmark judgment in case of Re: Kerala Education Bill,
1957, 1959 SCR 995, rendered by a bench of seven judges wherein
this Court deliberated on the prerequisites for invoking Article 30 for
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the first time. The Court considered the argument presented by the
State’s counsel, which outlined three conditions necessary to avail
the protections and privileges under Article 30(1):
i. The presence of a minority community;
ii. The initiation of the right to establish an educational institution
by one or more members of that community ‘after the
commencement of the Constitution’;
iii. The establishment of the educational institution for the benefit
of members of the minority community.
During its examination of these arguments, the Court dismissed
the notion that the institution must be established only after the
commencement of the Constitution, affirming that institutions
established prior to this could still claim such rights. Additionally, the
Court clarified that admitting non-minorities into the institution would
not alter its minority character.
129. Moreover, while discussing the matter, the Court observed that
Article 30(1) confers two distinct rights upon minorities: the right to
establish and to administer. This clarification by the Court does not
negate the remaining arguments presented by the State, which assert
that the establishment of an institution by the minority is essential
to assert rights under Article 30. The relevant paragraph of the said
judgment, which has been read by both sides in the present case,
to further their respective arguments, deserves to be quoted in toto
as under:
“22. We now pass on to the main point canvassed before
us, namely, what are the scope and ambit of the right
conferred by Article 30(1). Before coming to grips with the
main argument on this part of the case, we may deal with
a minor point raised by learned counsel for the State of
Kerala. He contends that there are three conditions which
must be fulfilled before the protection and privileges of
Article 30(1) may be claimed, namely, (1) there must be
a minority community, (2) one or more of the members
of that community should, after the commencement of
the Constitution, seek to exercise the right to establish
an educational institution of his or their choice, and (3)
the educational institution must be established for the
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members of his or their own community. We have already
determined, according to the test referred to above, that
the Anglo-Indians, Christians and Muslims are minority
communities in the State of Kerala. We do not think that
the protection and privilege of Article 30(1) extend only to
the educational institutions established after the date our
Constitution came into operation or which may hereafter
be established. On this hypothesis the educational
institutions established by one or more members of
any of these communities prior to the commencement
of the Constitution would not be entitled to the benefits
of Article 30(1). The fallacy of this argument becomes
discernible as soon as we direct our attention to Article
19(1)(g) which, clearly enough, applies alike to a business,
occupation or profession already started and carried on
as to those that may be started and carried on after the
commencement of the Constitution. There is no reason
why the benefit of Article 30(1) should be limited
only to educational institutions established after the
commencement of the Constitution. The language
employed in Article 30(1) is wide enough to cover both
pre-Constitution and post-Constitution institutions. It
must not be overlooked that Article 30(1) gives the
minorities two rights, namely, (a) to establish, and (b)
to administer, educational institutions of their choice.
The second right clearly covers pre-Constitution
schools just as Article 26 covers the right to maintain
pre-Constitution religious institutions. As to the third
condition mentioned above, the argument carried to its
logical conclusion comes to this that if a single member of
any other community is admitted into a school established
for the members of a particular minority community, then
the educational institution ceases to be an educational
institution established by the particular minority community.
The argument is sought to be reinforced by a reference
to Article 29(2). It is said that an educational institution
established by a minority community which does not seek
any aid from the funds of the State need not admit a
single scholar belonging to a community other than that
for whose benefit it was established but that as soon as
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such an educational institution seeks and gets aid from
the State coffers Article 29(2) will preclude it from denying
admission to members of the other communities on
grounds only of religion, race, caste, language or any of
them and consequently it will cease to be an educational
institution of the choice of the minority community which
established it. This argument does not appear to us to
be warranted by the language of the article itself. There
is no such limitation in Article 30(1) and to accept this
limitation will necessarily involve the addition of the
words “for their own community” in the article which is
ordinarily not permissible according to well established
rules of interpretation. Nor is it reasonable to assume
that the purpose of Article 29(2) was to deprive minority
educational institutions of the aid they receive from the
State. To say that an institution which receives aid on
account of its being a minority educational institution must
not refuse to admit any member of any other community
only on the grounds therein mentioned and then to say
that as soon as such institution admits such an outsider
it will cease to be a minority institution is tantamount
to saying that minority institutions will not, as minority
institutions, be entitled to any aid. The real import of
Article 29(2) and Article 30(1) seems to us to be that
they clearly contemplate a minority institution with a
sprinkling of outsiders admitted into it. By admitting
a non-member into it the minority institution does
not shed its character and cease to be a minority
institution. Indeed the object of conservation of the
distinct language, script and culture of a minority may
be better served by propagating the same amongst
non-members of the particular minority community.
In our opinion, it is not possible to read this condition into
Article 30(1) of the Constitution.”
130. Thus, the judgement in Kerala Education Bill [supra] does not in
any way, detract from the position that the factum of establishment
by the minority community was a necessary pre-condition to claim
rights/protection under Article 30. There was specific emphasis laid
by both sides on the phrase ‘sprinkling of outsiders’ which shall be
further discussed in a subsequent portion of the judgment.
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131. The subsequent judicial decisions and the evolving jurisprudence
stemming from the rulings of this Court further solidify the legal
position articulated above. Another significant judgment pertinent
to the analysis of the rights conferred under Article 30, particularly
addressing the issue at hand, is the verdict in State of Kerala v. Very
Rev. Mother Provincial, (1970) 2 SCC 417. Rendered by a bench
of six Hon’ble Judges, this judgment emphasizes how the twin rights
of “establishment” and “administration” are sequential in nature under
Article 30(1). It elucidates that these rights are temporally distinct, with
the act of establishment preceding the entitlement to administration.
This interpretation is pivotal in comprehending Article 30(1) and
underscores that the right to “administer” an institution arises
subsequent to its “establishment” by the minority community. The
pertinent excerpts from this judgment are cited below for reference:
“8. Article 30(1) has been construed before by this Court.
Without referring to those cases it is sufficient to say
that the clause contemplates two rights which are
separated in point of time. The first right is the initial
right to establish institutions of the minority’s choice.
Establishment here means the bringing into being of
an institution and it must be by a minority community.
It matters not if a single philanthropic individual with his
own means, founds the institution or the community at
large contributes the funds. The position in law is the
same and the intention in either case must be to found
an institution for the benefit of a minority community by
a member of that community. It is equally irrelevant that
in addition to the minority community others from other
minority communities or even from the majority community
can take advantage of these institutions. Such other
communities bring in income and they do not have to be
turned away to enjoy the protection.
9. The next part of the right relates to the administration
of such institutions. Administration means “management
of the affairs” of the institution. This management must be
free of control so that the founders or their nominees can
mould the institution as they think fit, and in accordance
with their ideas of how the interests of the community in
general and the institution in particular will be best served.
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No part of this management can be taken away and
vested in another body without an encroachment upon
the guaranteed right.”
132. Therefore, the “administration” right is available to the minority
community which establishes the institution [or ‘their nominees’]
implying that “establishing” of institution by the minority is necessary.
There has been considerable emphasis on part of the Appellants with
regard to the use of the term “found” in the aforesaid paragraphs
which shall be discussed in the subsequent part of the judgment.
133. Thereafter, the judgement in S.P. Mittal v. Union of India, (1983) 1
SCC 51 rendered by a bench of five Hon’ble Judges, albeit without
much discussion on this specific issue, holds that the establishment
of an institution by a linguistic or religious minority is necessary for
claiming benefit under Article 30(1). The relevant paragraphs are
quoted as under :
“137. The impugned Act does not seek to curtail the rights
of any section of citizens to conserve its own language,
script or culture conferred by Article 29. In order to claim
the benefit of Article 30(1) the community must show :
(a) that it is a religious or linguistic minority, (b) that
the institution was established by it. Without satisfying
these two conditions it cannot claim the guaranteed
rights to administer it.
138. In Re Kerala Education Bill, 1957 [AIR 1958 SC
956 : 1959 SCR 995 : 1959 SCJ 321] Article 30(1) of the
Constitution which deals with the right of minorities to
establish and administer educational institutions, came
for consideration. The Kerala Education Bill, 1957, which
had been passed by the Kerala Legislative Assembly
was reserved by the Governor for consideration by the
President.
xxx
142. On an analysis of the two Articles, Article 29 and Article
30 and the three cases referred to above, it is evident
that the impugned Act does not seek to curtail the right
of any section of citizens to conserve its own language,
script or culture conferred by Article 29. The benefit of
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Article 30(1) can be claimed by the community only
on proving that it is a religious or linguistic minority
and that the institution was established by it.
In the view that we have taken that Auroville or the Society
is not a religious denomination, Articles 29 and 30 would
not be attracted and, therefore, the impugned Act cannot be
held to be violative of Articles 29 and 30 of the Constitution.”
134. More recently, in the judgement in Dayanand Anglo Vedic (DAV)
College Trust and Management Society v. State of Maharashtra,
(2013) 4 SCC 14, a Society claimed to have minority status in the
State of Maharashtra as it sought to encourage Hindi, which is a
linguistic minority in the said State. While examining the question
of law, the Court held that the establishment of an institution as a
minority institution is necessary to claim rights under Article 30. The
relevant portion of the said judgement is quoted as under:
“29. Similarly, in S.P. Mittal v. Union of India [(1983) 1 SCC 51 :
AIR 1983 SC 1], this Court held that in order to claim the
benefit of Article 30, the community must firstly show
and prove that it is a religious or linguistic minority; and
secondly, that the institution has been established by such
linguistic minority.
xxx
34. After giving our anxious consideration to the matter
and in the light of the law settled by this Court, we
have no hesitation in holding that in order to claim
minority/linguistic status for an institution in any
State, the authorities must be satisfied firstly that the
institution has been established by the persons who
are minority in such State; and, secondly, the right of
administration of the said minority linguistic institution
is also vested in those persons who are minority in
such State. The right conferred by Article 30 of the
Constitution cannot be interpreted as if irrespective
of the persons who established the institution in the
State for the benefit of persons who are minority,
any person, be it non-minority in other place, can
administer and run such institution.”
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135. The aforementioned legal position illustrates that this Court has
consistently embraced an approach which mandates the initial
establishment of an institution as a minority institution by the minority
community to assert minority status. This established legal principle
has attained the status of stare decisis, which is a fundamental pillar
of our legal framework.4 The doctrine of precedent serves to promote
certainty, stability, and continuity within our legal system, particularly
in matters concerning societal dynamics, religion, minority rights,
and fundamental freedoms.
136. The undoubted reaffirmation of this position is palpable in subsequent
judicial decisions, notably in the landmark case of TMA Pai [supra],
wherein the Court refrained from providing a response to question 3(a)
on the grounds that it did not warrant constitutional scrutiny by
11 Judges perhaps owing to the firmly established legal position.
Apart from the fact that TMA Pai [supra] is binding upon us being
a judgment delivered by a larger bench of this Court, neither of the
parties have argued that a divergent view ought to be taken in the
present case.
137. At this stage, another aspect of the matter may be noted. In the
formalised education sector, the majority of educational institutions
operating through private means are registered as societies under
various Acts. This encompasses a significant number of secular/non-
minority institutions established as such. Such institutions, whether
aided or unaided, in contrast to minority institutions, whether aided or
unaided, are subjected to a significantly higher degree of regulation
by the State in various aspects, including curriculum, admissions,
teacher appointments, and other factors. Consequently, it is evident
that private entities administering minority institutions enjoy a notably
higher degree of freedom from such regulation. Hence, there exists
a pronounced inclination on the part of non-minority institutions to
seek minority status.
138. In the backdrop of this clamour for minority status, if minority
status is deemed attainable without necessitating the factum of
establishment of an institution by the minority at its inception, it
may result in a widespread proliferation of institutions claiming to

4 Sakshi v. Union of India (2004) 5 SCC 518; Milkfood Ltd. v. GMC Ice Cream Private Ltd. (2004) 7 SCC 288;
Narinder Singh v. State of Punjab (2014) 6 SCC 466; Shah Faesal v. Union of India (2020) 4 SCC 1
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be minority institutions despite not being established as minority
institutions. This could be easily achieved by merely amending the
rules or Articles of Association of the society to create a semblance
of minority control. If the prerequisite of initial establishment by a
minority community is deemed dispensable for invoking protection
under Article 30, it would result in a creation of minority institutions,
in name only. On the said count as well, it is necessary to treat the
criterion of establishment by the minority community, as essential
to claim rights/protection under Article 30.

G. Meaning of “establishment” and the real positive indicia
behind

G.1. The existing jurisprudence of this Court
139. The two sides have diverged significantly on the aspect of the
meaning of the word “establish” occurring in Article 30. The parties
challenging the judgment of the High Court and the correctness of
the judgment in Azeez Basha [supra] have argued that the term
“establish” cannot have a strict meaning to signify ‘to bring into
existence’. They argue that the word has various other meanings
such as ‘to ratify’, ‘to found’, ‘to confirm’, or ‘to settle’, as defined
in numerous dictionaries or utilized in foreign legal contexts. They
further argue that the narrow interpretation of ‘establish’ solely as
‘to bring into existence’ lacks justification as it neglects to analyze
Article 30(1) within its context, i.e., the safeguarding of minority rights
and nullifies the effect of words ‘of their choice’ in Article 30(1). It
is further argued that the constrained interpretation of ‘establish’ is
against the judgments in Very Rev. Mother Provincial [supra],
which was endorsed by TMA Pai [supra] and argued for a broader
interpretation to the term ‘establish’, implicitly overturning the narrow
perspective of Azeez Basha [supra]. It was strenuously argued that
the establishment of an educational institution can be ascertained
from the ‘intention’ of the minority community “to found an institution”
of their choice and “for the benefit of a minority community by a
member of that community.”
140. The parties defending the judgment asserted that the meaning of the
word “establish” under Article 30 has indeed been understood by this
Court consistently to mean to bring into existence. They submit that
judgment in Azeez Basha [supra] correctly understands the word
“establish” in the common sense it connotes. They argue that any
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minority community seeking to claim rights under Article 30, needs to
necessarily prove that an institution in question was actually, tangibly
and manifestly brought into being by the minority. It was asserted
that the right under Article 30 and the factum of “establishment” is
not a function of the “intent” of the minority at the said time or the
“choice” of the minority at the said time and is a pure question of fact.
It was argued that question of “establishment” cannot be satisfied
by some limited effort or actions on part of the minority rather it has
to be established that the predominant character of the institution
and the predominant efforts in establishing the institution was of the
minority only. It was argued that to claim protection under Article 30(1)
an institution/university should be predominantly established by the
minority, for the minority and administered as a minority institution.
141. In understanding the meaning of the term “establish” occurring under
Article 30, the judgment in the case of St. Stephens [supra] rendered
by a bench of five Hon’ble Judges, is crucial. In the said case, the
dispute arose due to the College, affiliated with the University of
Delhi, had a practice of reserving a certain percentage of seats for
Christian students in admissions. Furthermore, St Stephens had
also formulated an admissions policy that was at variance with the
admission policy of the University as a whole. The circulars issued
by the University prescribing the admission schedule and procedure
were not being followed in St Stephens on the ground that it was a
minority educational institution which had the right to frame its own
policy for admissions. Certain students challenged the admission
policy of St. Stephens College for being divergent from the University
policy. They also challenged the preference given by the college to
Christian students. In response, the management of St Stephens
retired that as a minority institution, it had the right to administer its
own affairs, including the selection of students, to some extent. During
the arguments, a question arose as to the status of the institution
as a minority institution. The judgement points out towards what
has been subsequently referred to as the ‘real positive indicia’ for
any institution to claim to be an institution established by a minority.
The relevant paragraphs of the said judgment are quoted as under:
“28. There is by now, fairly abundant case law on the
questions as to “minority”; the minority’s right to “establish”,
and their right to “administer” educational institutions.
These questions have arisen in regard to a variety of
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institutions all over the country. They have arisen in regard
to Christians, Muslims and in regard to certain sects of
Hindus and linguistic groups. The courts in certain cases
have accepted without much scrutiny the version of the
claimant that the institution in question was founded by a
minority community while in some cases the courts have
examined very minutely the proof of the establishment
of the institution. It should be borne in mind that the
words “establish” and “administer” used in Article
30(1) are to be read conjunctively. The right claimed
by a minority community to administer the educational
institution depends upon the proof of establishment
of the institution. The proof of establishment of the
institution, is thus a condition precedent for claiming
the right to administer the institution. Prior to the
commencement of the Constitution of India, there was
no settled concept of Indian citizenship. This Court,
however, did reiterate that the minority competent to claim
the protection of Article 30(1) of the Constitution, and on
that account the privilege of establishing and maintaining
educational institutions of its choice, must be a minority of
persons residing in India. They must have formed a well
defined religious or linguistic minority. It does not envisage
the rights of the foreign missionary or institution, however,
laudable their objects might be. After the Constitution, the
minority under Article 30 must necessarily mean those who
form a distinct and identifiable group of citizens of India.
Whether it is “old stuff” or “new product”, the object of the
institute should be genuine, and not devious or dubious.
There should be nexus between the means employed
and the ends desired. As pointed out in A.P. Christians
Educational Society case [(1986) 2 SCC 667 : (1986) 2
SCR 749] there must exist some positive index to enable
the educational institution to be identified with religious or
linguistic minorities. Article 30(1) is a protective measure
only for the benefit of religious and linguistic minorities
and it is essential, to make it absolutely clear that no
ill-fit or camouflaged institution should get away with the
constitutional protection.
xxx
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Origin and Purpose of St. Stephen’s College
30. Surprisingly, the Delhi University in the pleading, has
neither denied nor admitted the minority character of the
College. But the counsel for the University have many
things to contend which will be presently considered.
Mr Gupta, counsel for the petitioner in T.C. No. 3 of 1980
has specifically urged that the College was established
not by Indian residents, but by foreign Mission from
Cambridge and therefore, it is not entitled to claim the
benefit of Article 30(1). From the counter-affidavit filed by
Dr J.H. Hala — the Principal of the College in W.P. Nos.
13213-14 of 1984 and from the publication of “The History
of the College” the following facts and circumstances could
be noted: The College was founded in 1881 as a Christian
Missionary College by the Cambridge Mission in Delhi in
collaboration with the Society for the Propagation of the
Gospel [SPG] whose members were residents in India.
The College was founded in order to impart Christian
religious instruction and education based on Christian
values to Christian students as well as others who may
opt for the said education. The Cambridge Brotherhood
with plans of establishing the Christian College in Delhi
sent the Cambridge Mission whose members were: Rev.
J.D. Murray, Rev. E. Bickarsteth, Rev. G.A. Lefroy, Rev.
H.T. Blackett, Rev. H.C. Carlyon and Rev. S.S. Allnutt. Of
the said members of the Cambridge Mission, Rev. Allnutt,
Rev. Blackett and Rev. Lefroy teamed up with Rev. R.R.
Winter of the SPG to establish the College. It will be
seen that Cambridge Mission alone did not establish the
College. The Cambridge Mission with the assistance of
the members of the SPG who were residents in India
established the College. The contention to the contrary
urged by Mr Gupta, counsel for the petitioner in T.C. No. 3
of 1980 is, therefore, incorrect. The purpose of starting
the College could be seen from the Report of 1878 to
the Cambridge Brotherhood and it states “the students
after leaving St. Stephen’s Mission School joined
non-Christian Colleges and lost touch with Christian
teachings … the case would be otherwise if we were
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able to send them from our school to a College, where
the teachings would be given by Christian professors
and be permeated with Christian ideas.” (F.F. Monk
in A History of St. Stephen’s College, Delhi, Calcutta,
1935, p. 3). In October 1879 the Cambridge Committee
expressed the desirability of imparting instruction also
in secular subjects. “It was also felt that the influence of
the missionaries would be greatly increased if they held
classes in some secular subjects and did not conform their
teachings to strict religious instruction”. (ibid p. 5)
Building
31. Originally, the College building was housed in hired
premises paid for by the SPG. A new building was
eventually constructed by the Society for the Propagation
of the Gospel wherein the foundation stone bore the
following inscription:
To the Glory of God
And the Advancement of Sound
Learning
And Religious Education
The new building of the College was eventually opened on
December 8, 1881, by Rev. Allnutt. On the said building on
the front of the porch, at the top of the parapet, a ‘cross’ in
bas-relief was placed and immediately under the bracket
the words “Ad Dei Gloriam” had been inscribed which have
since been adopted as the College motto.
32. Today the new College building in the University
campus has also a large ‘cross’ at the top of the main
tower and in the front porch is inscribed the St. Stephen’s
motto “Ad Dei Gloriam” to perpetuate and remind the
students the motive and objective of the College, namely,
“The Glory of God”.
33. There is also a chapel in the College campus where
religious instruction in the Christian Gospel is imparted for
religious assembly in the morning.
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34. It would thus appear that since its foundation in 1881,
St. Stephen’s College has apparently maintained its
Christian character and that would be evident from its very
name, emblem, motto, the establishment of a chapel and
its religious instruction in the Christian Gospel for religious
assembly. These are beyond the pale of controversy.
Constitution of the College
35. It is said that during the early part of the College
history, it was managed by the Mission Council — a totally
Christian body. Late in 1913 it was registered as a society
and a constitution was formulated on November 6, 1913
which was adopted by the SPG Standing Committee
and by the Cambridge Committee. The Constitution as it
stands today again maintains the essential character of
the College as a Christian College without compromising
the right to administer it as an educational institution
of its choice. The Constitution of the College consists
of Memorandum of the Society and Rules. Clause 2 of
Memorandum states that “the object is to prepare students
of the College for University degrees and examinations
and to offer instruction in doctrines of christianity which
instruction must be in accordance with the teachings of
the Church of North India”. Clause 4 sets out the original
members of the Society who were mostly Christians.
The composition of the Society also reflects its Christian
character inasmuch as the Bishop of the Diocese of Delhi
is the Chairman of the Society [Rule 1(a)]. Further, two
persons appointed by the Bishop of the Diocese of Delhi,
one of whom shall be a senior Presbyter of the Diocese,
shall be members of the Society [Rule 1(b)]. One person
to be appointed by the Church of North India Synodical
Board of Higher Education shall also be a member of the
Society [Rule 1(g)]. Similar is the position of a person to be
appointed by the Diocesan Board of Education [Rule 1(h)].
Two persons to be appointed by the Executive Committee
of the Diocese, one of whom shall be a Presbyter, shall also
be members of the Society [Rule 1(i)]. The composition
of the Society, therefore, indicates the presence of a
large number of Christian members of the Church of
North India on it.
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Management
36. The management of the College is being looked
after by the Supreme Council and the Governing Body.
The Supreme Council consists of some members of the
Society, all of whom must be members of the Church of
North India or some other church in communion therewith,
or any other duly constituted Christian church. They are:
(a) The Bishop of the Diocese of Delhi, who
shall be the Chairman.
(b) Two persons appointed by the Bishop of the
Diocese [under Rule 1(b)].
(c) The person appointed by the Church of North
India Synodical Board of Higher Education
[under Rule 1(g)].
(d) The person appointed by the Diocese Board
of Education [under Rule 1(h)].
(e) The Principal of the College (Member-
Secretary).”
37. Rule 3 of the Society provides that the Supreme Council
mostly looks after the religious and moral instruction to
students and matters affecting the religious character of
the College. The Principal of the College is the Member-
Secretary of the Supreme Council. Rule 4 provides that
the Principal shall be a member of the Church of North
India or of a Church that is in communion with the Church
of India. The Vice-Principal shall be appointed annually by
the Principal. He shall also be a member of the Church
of North India or of some other church in communion
therewith.
38. True, Rule 5 provides that the Supreme Council of
the College has no jurisdiction over the administration of
the College and it shall be looked after by the Governing
Body. But the Governing Body is not a secular body
as argued by learned counsel for the University. Rule
6 provides that the Chairman of the Society (Bishop
of Diocese of Delhi) shall be the Chairman of the
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Governing Body. The members of the Society as set
out in categories, (a), (b), (c), (d), (e), (f), (g), (h), (i), (j),
(k), (l) and (m) of clause (1) shall be the members of the
Governing Body. The Chairman and the Vice-Chairman of
the Governing Body shall be the members of the Church
of North India. Out of categories (a) and (m) in clause
(1), only category (k) may be a member of the teaching
staff who may not be a Christian. Two members referred
under category (l) to be appointed by the Delhi University
may not be Christian and likewise, under the category
(n) may not be Christian. But the remaining members
shall be Christians. Out of thirteen categories, only three
categories might be non-Christians and therefore, it makes
little difference in the Christian character of the Governing
Body of the College. A comparison of Statute 30(c) of the
Delhi University at pages 127-28 of Calendar Volume I
will show the difference between the Governing Body of
other colleges under the Statute as contrasted with St.
Stephen’s College.
Principal
39. It is again significant to note the difference between
the method of appointment of the Principal of St.
Stephen’s College and all other colleges. The Principal
of St. Stephen’s College is appointed by the Supreme
Council and he must be a Christian belonging to
Church of North India (Rule 4). He will exercise control,
and maintain discipline and regulation of the College. He
will be in complete charge of the admissions in the College
assisted by admission committee. But the Principals of
other affiliated colleges under Ordinance XVIII clause 7(2)
[page 335 Calendar Volume I] are to be appointed by the
Governing Body of the College.
40. The immovable property of the College shall
be vested in the Indian Church trustees, who shall
merely act as Trustees, and shall have no power of
management whatsoever. All other property connected
with the College shall be vested in the Society
(Rule 21).”
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142. During the examination of the particular college under consideration,
the Court observes that the institution was established by missionaries
with the primary purpose of providing Christian religious education -
as per paragraph 30. It also observes that the assets and property
of the college are legally owned by the church - as described in
paragraph 40. The Court also notes that at the time of its inception,
the college was under the exclusive management of a body composed
entirely of Christians - as outlined in paragraph 35. The Court notices
that the rules of the institution’s society stipulate that all members
must be appointed by Christian organizations - as mentioned in
paragraph 35. The Court lays specific emphasis on the fact that the
administration of the college is also entrusted to a body comprised
entirely of Christians - as indicated in paragraph 36. The Court
notes that the Principal of the college holds an ex-officio position
and is required to be a Christian - according to paragraph 39. As
far as historical factors are concerned, the Court notes that the
construction of the college building was commissioned by a minority
community and funded by them - as detailed in paragraphs 31-34.
In governance, the Court notes that both the Supreme Council and
the Governing Body of the college are predominantly constituted of
Christians, with 10 out of 13 members belonging to this religious
group - as per paragraphs 37-38.
143. As for St. Stephens [supra], both sides have placed considerable
reliance on the aforesaid paragraphs to further their respective
cases and see the facts surrounding the establishment of
AMU from a particular perspective. In any event, from the said
analyses in St. Stephens [supra], it is clear that the question of
establishment is not dependent on a singular factor, rather is a
culmination of various aspects surrounding the facts leading up to
the establishment of the institution and the form of the institution
itself. The factors that the Court found relevant in St. Stephens
[supra] form jurisprudential basis of the factual enquiry that
ought to be carried out by the Court in such matters. However,
the said enquiry cannot be straight-jacketed in all cases and the
Court ought to suitably modulate the approach suiting the needs
of the institution in question and the nature of the institution. In
simple words, a school or a college or a University may require a
significant difference in approach while adjudicating the question
of “establishment” by the minority community.
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144. The judgment in A.P. Christians Medical Educational Society v.
Government of Andhra Pradesh, (1986) 2 SCC 667 is another
specific case wherein the Court interrogated the essentials of an
institution claiming to be a minority institution. The Court guarded
against false schemes in order to claim protection under Article 30.
The relevant paragraphs of the said judgement are quoted as under:
“A brazen and bizarre exploitation of the naive and foolish,
eager and ready-to-be-duped, aspirants for admission to
professional collegiate courses, behind the smoke-screen
of the right of the minorities to establish and administer
educational institutions of their choice — is what this case
is about. A society styling itself as the ‘Andhra Pradesh
Christian Medical Educational Society’ was registered on
August 31, 1984. The first of the objectives mentioned in
the memorandum of association of the society was,
“to establish, manage and maintain educational and
other institutions and impart education and training
at all stages, primary, secondary, collegiate, post-
graduate and doctoral, as a Christian Minorities’
Educational Institution”.
Another object was
“to promote, establish, manage and maintain Medical
colleges, Engineering colleges. Pharmacy colleges.
Commerce, Literature, Arts and Sciences and
Management colleges and colleges in other subjects
and to promote allied activities for diffusion of useful
knowledge and training.”
Other objects were also mentioned in the memorandum
of association. All that is necessary to mention here is
that none of the objects, apart from the first extracted
object, had anything to do with any minority. Even the
first mentioned object did not specify or elucidate what was
meant by the statement that education and training at all
stages was proposed to be imparted in the institutions of
that society “as Christian Minorities’ Educational Institution”.
Apparently the words “as a Christian Minorities’ Educational
Institutions” were added in order to enable the society
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to claim the rights guaranteed by Article 30(1) of the
Constitution and for no other purpose. This will become
clearer and clearer as we narrate further facts.
xxx
7. Even while narrating the facts, we think, we have said
enough to justify a refusal by us to exercise our discretionary
jurisdiction under Article 136 of the Constitution. We do not
have any doubt that the claim of the petitioner to start
a minority educational institution was no more than
the merest pretence. Except the words, “as the Christian
Minorities’ Educational Institutions” occurring in one of the
objects of the society, as mentioned in the memorandum of
association, there is nothing whatever to justify the claim
of the society that the institutions proposed to be started
by it were ‘minority educational institutions’. Every letter
written by the society whether to the Central Government,
the State Government or the University contained false
and misleading statements. As we had already mentioned
the petitioner had the temerity to admit or pretend to
admit students in the first year MBBS course without
any permission being granted by the government for the
starting of the medical college and without any affiliation
being granted by the University. The society did this despite
the strong protest voiced by the University and the several
warnings issued by the University. The society acted in
defiance of the University and the government, in disregard
of the provisions of the Andhra Pradesh Education Act,
the Osmania University Act and the regulations of the
Osmania University and with total indifference to the
interest and welfare of the students. The society has
played havoc with the careers of several score students
and jeopardised their future irretrievably. Obviously the
so-called establishment of a medical college was in the
nature of a financial adventure for the so-called society
and its office bearers, but an educational misadventure
for the students. Many, many conditions had to be fulfilled
before affiliation could be granted by the University. Yet
the society launched into the venture without fulfilling a
single condition beyond appointing someone as Principal.
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No one could have imagined that a medical college could
function without a teaching hospital, without the necessary
scientific equipment, without the necessary staff, without
the necessary buildings and without the necessary funds.
Yet that is what the society did or pretended to do. We do
not have any doubt that the society and the so-called
institutions were started as business ventures with a
view to make money from gullible individuals anxious
to obtain admission to professional colleges. It was
nothing but a daring imposture and sculduggery. By
no stretch of imagination, can we confer on it the
status and dignity of a minority institution.
8. It was seriously contended before us that any minority,
even a single individual belonging to a minority, could found
a minority institution and had the right so to do under the
Constitution and neither the government nor the University
could deny the society’s right to establish a minority
institution, at the very threshold as it were, howsoever,
they may impose regulatory measures in the interests of
uniformity, efficiency and excellence of education. The
fallacy of the argument insofar as the instant case is
concerned lies in thinking that neither the government
nor the University has the right to go behind the claim
that the institution is a minority institution and to
investigate and satisfy itself whether the claim is well-
founded or ill-founded. The government, the University
and ultimately the court have the undoubted right to
pierce the ‘minority veil’ — with due apologies to the
corporate lawyers — and discover whether there is
lurking behind it no minority at all and in any case,
no minority institution. The object of Article 30(1) is
not to allow bogies to be raised by pretenders but to
give the minorities ‘a sense of security and a feeling
of confidence’ not merely by guaranteeing the right to
profess, practise and propagate religion to religious
minorities and the right to conserve their language,
script and culture to linguistic minorities, but also to
enable all minorities, religious or linguistic, to establish
and administer educational institutions of their choice.
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These institutions must be educational institutions of
the minorities in truth and reality and not mere masked
phantoms. They may be institutions intended to give the
children of the minorities the best general and professional
education, to make them complete men and women of
the country and to enable them to go out into the world
fully prepared and equipped. They may be institutions
where special provision is made to the advantage and for
the advancement of the minority children. They may be
institutions where the parents of the children of the minority
community may expect that education in accordance with
the basic tenets of their religion would be imparted by or
under the guidance of teachers, learned and steeped in the
faith. They may be institutions where the parents expect
their children to grow in a pervasive atmosphere which is
in harmony with their religion or conducive to the pursuit
of it. What is important and what is imperative is that
there must exist some real positive index to enable the
institution to be identified as an educational institution
of the minorities. We have already said that in the
present case apart from the half a dozen words ‘as
a Christian minorities’ institution’ occurring in one of
the objects recited in the memorandum of association,
there is nothing whatever, in the memorandum or the
articles of association or in the actions of the society
to indicate that the institution was intended to be a
minority educational institution. As already found by
us these half a dozen words were introduced merely
to found a claim on Article 30(1). They were a smoke-
screen.”
145. The jurisprudence in St. Stephens [supra] and A.P. Christians
Medical Educational Society [supra] requires a real positive indicia
for an institution to claim to have been established by a minority
community. Therefore, it is permissible to ‘pierce the veil’ in order
ascertain the real character of the institution and claims of minority
status cannot be bestowed on illusionary claims. This ruling serves as
a cautionary reminder that granting the right to administer educational
institutions without the prior establishment by minorities could result
in unwanted constitutional outcomes. The concerns expressed by
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the Court could materialize, potentially resulting in a widespread
“takeover” of institutions by groups claiming minority status through
creative interpretations to seek protection under Article 29 and 30.
146. After delving in to the finer details of the vexed constitutional question
and the meaning of the term “establish”, it would serve a salutary
purpose if one analyses the approach adopted by this Court as and
when any institution approached it. In the case of Rev. Father Proost
v. State of Bihar, (1969) 2 SCR 73, with a bench consisting of five
Judges, the Court acknowledges that the institution in question was
established by the Catholic minority before extending the safeguards
provided under Article 30. The relevant portion of the judgment is
as under:
“2. St. Xavier’s College was established by the Jesuits
of Ranchi. It was affiliated to Patna University in 1944.
The management of the College vests in a Governing
Body consisting of 11 members. They are:
“(i) The Superior Regular of Ranchi Jesuit Mission
— President exofficio.
(ii-v) Four Counsellors to the Superior Regular to be
nominated by the Jesuit Mission authorities.
(vi) The Principal of the College — Vice-President
and Secretary ex-officio.
(vii) One representative of the teaching staff of the
College elected by the members of the staff.
(viii) One representative of the Patna University.
(ix-xi) Three persons to represent Hindu, Muslim and
Aboriginal interests.”
The terms of service of religious staff are determined by
the Jesuit Mission Authorities, but those of the members
of the lay staff including their appointment are determined
by the Governing Body. All appointments to the teaching
staff, both religious and lay are reported to the Syndicate
of the Patna University. The object of founding the College
inter alia is “to give Catholic youth a full course of moral
and liberal education, by imparting a thorough religious
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instruction and by maintaining a Catholic atmosphere
in the institution”. The college is, however, open to all
non-catholic students. All non-catholic students receive a
course of moral science.
2. The College was thus founded by a Christian minority
and the petitioners claim they have a right to administer it
a constitutional right guaranteed to minorities by Article 30.
xxx
12. We are, therefore, quite clear that St. Xavier’s College
was founded by a Catholic Minority Community based
on religion and that this educational institution has the
protection of Article 30(1) the Constitution. For the same
reason it is exempted under Section 48-B of the Act. The
petition will therefore be allowed with this declaration but
in the circumstances of the case we make no order about
costs.”
147. In Right Rev. Bishop S.K. Patro v. State of Bihar, (1969) 1 SCC 863
[bench of five Judges], a challenge was laid to an order of the Deputy
Director of Education which imposed an obligation on the school to
constitute a managing committee to control, administer and manage
its affairs. During the discussion, the Court assessed various factors
and evidence to ascertain the institution’s status as a minority
establishment, highlighting the significance of the funding source
during its inception. The relevant paragraphs are quoted as under :
“8. It was the case of the State and the parties intervening
in the writ petition before the High Court that the school
was established by the Church Missionary Society, London,
which they claimed was a Corporation with an alien
domicile and “such a society was not a minority based on
religion or language” within the meaning of Article 30 of
the Constitution. On behalf of the appellants in the appeal
and the petitioners in the two writ petitions filed in this
Court, it is claimed that the School was started in 1854 by
the local Christian residents of Bhagalpur. They concede
that the Church Missionary Society of London did extend
financial aid in the establishment of the School, but they
contend that on that account, the School did not cease
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to be an educational institution established by a religious
minority in India.
9. There is on the record important evidence about
establishment in 1854 of the Lower Primary School at
Bhagalpur. It is unfortunate that sufficient attention was
not directed to that part of the evidence in the High Court.
The “Record Book” of the Church Missionary Association
at Bhagalpur which is Annexure ‘D’ to Writ Petition No.
430 of 1968 furnishes evidence of vital importance
having a bearing on the establishment of the School.
It contains copies of letters written from Bhagalpur and
minutes of meetings held and the resolutions passed by
the Local Council of Bhagalpur. On June 1, 1948, Rev.
Vaux informed the Calcutta Corresponding Committee
of the Church Missionary Society by a letter that if
the Calcutta Society were to establish a School at
Champanagar, “local assistance shall not be wanting
to the extent of 1000 or 1200 rupees a year, besides
providing a school house and residence for the master”,
and that “At first, for breaking up the fallow ground and
setting the school a going the presence of a Missionary
of tact and experience may be necessary”. On June 26,
1848, Rev. Vaux by another letter informed the Calcutta
Corresponding Committee that a special service was held
in the Church on June 22, 1848 and thereafter on Friday,
June 23, 1848, a meeting was held and contributions were
invited from persons present including Indian residents,
that monthly subscriptions of Rs 202 for the “salary of
masters” and other expenses were promised, and that
an amount of Rs 1647 was donated for building the
school and residence for the master; that the general
impression made was so favourable to the cause that he
felt justified in assuring the Calcutta Committee that the
local Committee were in a position to guarantee certain
requisites for making a commencement such as payment
of the salary of the School Master and Mistress and
the building of a house for their accommodation which
may afterwards be enlarged so as to form a suitable
residence for a Mission.
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10. By letter, dated July 10, 1848, the Secretary, Calcutta
Corresponding Committee, informed Rev. Vaux that they
were looking out for a prominent person to commence
missionary operations by opening a School “which is indeed
a common way of beginning a Mission.” In a letter, dated
December 22, 1848, written from Bhagalpur it was stated:
“The Society will provide for the Missionary’s
salary and trust that local funds will provide a
residence for him of a suitable kind. All other
Mission requirements, such as school teachers
etc. should be left to be provided on the spot.”
11. Then there are minutes of the resolutions passed
at a meeting held on October 24, 1849, by the Parent
Committee and another resolution, dated October 25, 1851,
of the Local Committee, to raise funds, and to determine
upon disbursements with the advice of the Missionary to
promote the objects of the Mission. In the minutes of the
meeting, dated October 25, 1851, it is recorded that a
statement of account of receipts and disbursements up
to September 30, 1851, including expenses of a boys’
school and salary of masters, “hire of school rooms and
furniture” and expenses of a girls’ school “including cost
of working materials up to date” was submitted.
xxx
15. It appears from this correspondence and the
resolutions and the discussions at the meetings that
a permanent home for the Boys’ School was set up
in 1854 on property acquired by local Christians and
in buildings erected from funds collected by them.
The institution along with the land on which it was
built and the balance of money from the local fund
were handed over to the Church Missionary Society
in 1856. It is also true that substantial assistance was
obtained from the Church Missionary Society, London.
But on that account, it cannot be said that the School
was not established by the local Christians with their
own efforts and was not an educational institution
established by a minority.”
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148. Thus, this Court affirmed that the protection afforded by Article 30
extends to institutions established before the Constitution following the
dictum in Kerala Education Bill [supra]. The Court scrutinized why
the institution in question merits recognition as a minority institution,
with particular emphasis on examining whether the minority was
predominantly involved in its establishment.
149. In D.A.V. College v. State of Punjab, (1971) 2 SCC 269, the Court
expressly notes that the institution in question was established by
a community which was minority within the confines of the State
of Punjab. Similarly, in Ahmedabad St. Xavier’s College Society
v. State of Gujarat, (1974) 1 SCC 717, J. H.R. Khanna’s opinion
notes that the college in question was established, at the time of its
inception, by the minority. Similarly, in Gandhi Faiz-e-am-College v.
University of Agra, (1975) 2 SCC 283, the Court, while extending
rights under Article 30, notes that the institution claiming protection
was expressly established by the minority.
150. The said approach has been consistently adopted over the past
five decades after the judgment in Azeez Basha [supra] [See Rt.
Rev. Msgr. Mark Netto v. State of Kerala, (1979) 1 SCC 23; Lily
Kurian v. Lewina, (1979) 2 SCC 124; Christian Medical College
Hospital Employees’ Union v. Christian Medical College Vellore
Association, (1987) 4 SCC 691; Al-Karim Educational Trust v.
State of Bihar, (1996) 8 SCC 330; Yunus Ali Sha v. Mohamed
Abdul Kalam, (1999) 3 SCC 676; Society of St. Joseph’s College
v. Union of India, (2002) 1 SCC 273; Secy., Malankara Syrian
Catholic College v. T. Jose, (2007) 1 SCC 386; Satimbla Sharma
v. St Paul’s Senior Secondary School, (2011) 13 SCC 760].
151. In P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, seven
Hon’ble Judges, were called upon to interpret the judgment in TMA
Pai [supra]. While the said inquiry primarily focused on the scope of
regulations viz aided/unaided minority institutions, nevertheless, the
bench reaffirmed the observations that the determination of whether
an institution qualifies as a minority institution, and its character at
the time of establishment, should be evaluated against the criterion
that it must be envisaged primarily as a minority institution placing
reliance on Kerala Education Bill [supra].
152. Through a survey of the case law cited above, it can be seen that
the Court has adopted a varied approach is determining the criteria
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for discerning the true character of an institution at the time of its
establishment. In order to arrive at a finding that an institution was
established by the minority for the purposes of Article 30, it has
been held that such institution must principally embody a minority
character and be instituted to safeguard the minority language,
culture, or religion. In some situations, there has also been a specific
emphasis on the source of funding being from the minority community
or the fact that the management of lands should eventually vest
with the minority. Further, the presence of some non-minorities in
administration has not been held detrimental if the actual authority
rests with the minority community.

G.2 The founding moment or the genesis argument
153. The Appellants have argued that the word “establish” is to be
interpreted broadly and would include the parallels drawn with generic
phrases such as “genesis of the institution” or the “founding moment
of the institution”. With regard to the claim that the word “establish”
and “found” can be used interchangeably thereby according it with a
wider and more generalised meaning, it can be noticed that the Court
as a matter lexical variation may have used the terms interchangeably,
however, the constitutional meaning of the term cannot be diluted
on that count. This is because the word “establish” as used in the
Constitution carries a specific meaning. The meaning of the terms
occurring in the Constitution ought to have a specific meaning
especially when the same occurs under Part III of the Constitution.
154. This Court has consistently held that when the words of a provision
are clear and there exists no ambiguity, the same ought to be
given their plain and simple meaning. The assertion on part of the
Appellant that “establish” ought to be given a wider meaning owing
to the context in which it occurs is also unmerited on the same
count. It must be noted that the right under Article 30 is an important
and exceptional right/protection extended by the Constitution to a
specific class, for a specific purpose, in a particular circumstance.
The extension of the same over and beyond what the Constitution
contemplates would dilute the constitutional guarantee itself and would
be counter-productive to the interests of the minorities themselves.
155. As held by this Court, the objective of Article 30 is not to
afford a false sense of security and confidence to pretenders
posing as minorities. It was for this reason that this Court in
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A.P. Christian Medical Educational Society [supra] cautioned
against what it referred to as masked phantoms. It is imperative
to interpret the Constitution in a manner that ensures the sacred
protection under Article 30 is extended only to institutions genuinely
representing the minority community, in substance and not merely
in appearance.
156. From the above it is amply clear that the meaning of the word
“establish” under Article 30 has indeed been understood by this
Court consistently to mean ‘to bring into existence’. The meaning of
“establish” in Black’s Law Dictionary 6th Edn. is as under:
“xxx
(3) To found, to create, to regulate; as: “Congress shall
have power to establish post-roads and post- offices.”
(4) To found, recognize, confirm, or admit; as: “Congress
shall make no law respecting an establishment of religion.”
(5) To create, to ratify, or confirm; as: “We, the people,”
etc., “do ordain and establish this constitution.”
To settle or fix firmly; place on a permanent footing; found;
create; put beyond doubt or dispute; prove; convince.
To bring into being; to build; to constitute; to create; to
erect; to form, to found; to found and regulate, to institute,
to locate; to make; to model; to organize; to originate; to
prepare; to set up.”
157. Similarly, the Webster’s Third New International Dictionary defines
“establish” as – “To bring into existence, create, make, start,
originate, found or build as permanent or with permanence in view”.
The P.Ramanatha Aiyer’s Law Lexicon defines it as – “To found,
recognize, confirm or admit, to make or form”. The Black’s Law
Dictionary, 9th edition defines it as – “to settle, make or fix firmly,
to enact permanently, to make, form or bring into existence.” The
Bouvier Law Dictionary defines it as – “Creation or authorization of
an operation or institution. Establishment is the act of creating or
recognizing in law or in fact any institution, office, place or person
so that the person or thing established has an authority or certain
privileges that are recognized by others”. The Oxford Dictionary of
English defines it as – “To set up on a firm or permanent basis, initiate
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or bring about.” The Collins English Dictionary and Thesaurus defines
it as – “To create or set up”. The common thread amongst all the
said definition is that “establish” refers to the creation or bringing in
to being of a body/institution. It refers to the action or process which
involves creation of a new entity. In light of these considerations, a
minority community seeking to assert rights under Article 30 must
substantiate that the institution in question was indeed physically,
demonstrably, and conclusively brought into existence by the minority.
158. The Appellants urged that the establishment is equivalent to a
‘founding moment’ in order to further their stance on the facts
surrounding MAO College and AMU. This fundamentally ignores the
understanding of “establishment” as establishment is not a moment
rather establishment is a process. A process consists of various factors
and forces at play, the culmination of which result in the creation
of the institution. A moment connotes a singular act or just an idea
which, in the opinion of this Court, would not suffice the enquiry under
Article 30. A process is a complex sequences of events and actions/
inactions on part of various stakeholders which were relevant in the
history of the institution at the point of establishment.
159. Further, in cases wherein there are multitude of forces and multiple
stakeholders involved during establishment of an institution, the
judicial inquiry would have to be suitably calibrated. The Court, in
such situations, ought to take a holistic view of the matter and decide
the question on totality of factors. The Court needs to weigh the
factors and contributory forces in the balance in order to ascertain
whether the minority community was the primary force behind the
bringing in to being of the institution.

G.3 Relevance of “choice” and “intent” in the question of
establishment
160. At this juncture, it is necessary to understand the meaning of the
term “choice” occurring in Article 30 of the Constitution. The term
choice, is representative of the decision of minority community as to
the nature of the institution it seeks to establish. The choice therefore
could be to establish a technical institution, an arts institution, an
institution for religious teaching or even a minority institution with
largely secular teaching. The “choice” is therefore operationalised
by the decision of the minority as to the kind of institution that the
minority seeks to establish.
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161. In Ahmedabad St. Xavier’s College Society and Ors. v. State of
Gujarat and Ors., (1974) 1 SCC 717, this Court refers to this aspect
of “choice” as under :
“96. xxx
Clause (1) of Article 30 also contains the words “of
their choice”. These words which qualify “educational
institutions” show the vast discretion and option which
the minorities have in selecting the type of institutions
which they want to establish. In case an educational
institution is established by a minority to conserve
its distinct language, script or culture, the right to
establish and administer such institution would fall
both under Article 29(1) as well as under Article 30(1).
The minorities can, however, choose to establish an
educational institution which is purely of a general secular
character and is not designed to conserve their distinct
language, script or culture. The right to establish and
administer such an institution is guaranteed by Article 30(1)
and the fact that such an institution does not conserve the
distinct language, script or culture of a minority would not
take it out of the ambit of Article 30(1).”
162. The “choice” therefore, is with regard to the type of the institution and
cannot be conflated with the “administration” of an institution. The
assertion that once the choice includes having secular education in
the institution, it would be necessary that non-minority persons are
appointed for the purposes of teaching and administration is only
partially correct. Indeed, when a minority seeks to provide secular
education it would have to appoint non-minority teachers and some
administration from outside the community, however, the same
cannot mean that even the major decision-making, managerial and
superior administrative setup can be “outsourced” by the minority.
The lower rungs of administration and the teaching staff may certainly
be of a non-minority character however, the higher echelons of
administration and policy decision making of the institution ought to
be in the hands of the minority community to claim minority status.
Further, the “intent” of the minority community unless expressed
and actually exercised as the “choice”, cannot govern the question
of establishment.
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163. The constitutionally sustainable approach qua the question of
“establishment” therefore, cannot hinge only upon the “intent” or
“choice” of the minority at the time. The intent and choice may be
relevant only to a limited extent and cannot be the controlling factors
in the judicial enquiry for determining the question of establishment.
The question of establishment is to be adjudicated from a multitude of
factors as noticed above and cannot be inferred from bald assertions
regarding the “wishes” or “choices” or “efforts” of a minority community.
164. The question of establishment would constitute a factual inquiry to
ascertain the predominant forces behind the bringing in to being of an
institution. Admittedly, the admission or taking help of other members
of other communities would not be fatal, but the prominence must
be of the minority community in major aspects of the institution.
The primary character of the institution and the predominant efforts
in its establishment ought to originate from the minority community
and must culminate [come in to being] through the said community.
The “choice” and “wishes” during the process of establishment – if
not accepted, would clearly indicate that the concerned minority
community was not the predominant force behind the institution.

G.4 The nature of administration at the time of establishment
165. The Appellants urge that it is open for a minority community, while
exercising its choice, to hire teacher and other administrative staff
from non-minority community while establishing a minority institution.
There cannot be any doubt with regard to the said proposition
however, while the teaching and administrative staff may be drawn
from any community, the Court needs to be ultimately ascertain
whether such a choice of having a secular staff was exercised by
the minority community or was enforced by other stakeholders who
were involved in the process of establishment. If the position is the
latter, the same would have a significant bearing on the adjudication
of the question at hand.
166. At this juncture, it is necessary to understand the meaning of the
term “administration” in Article 30. Further, it is important for the Court
to delineate the distinction between administrative and academic
setup in the concerned institution. The administrative and academic
authorities within an educational institution are functionally distinct.
The judgment of this Court in Ahmedabad St. Xavier’s College
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Society [supra], provides some assistance in this regard. The
relevant portion of the said judgement is quoted as under :
“19. The entire controversy centres round the extent of the
right of the religious and linguistic minorities to administer
their educational institutions. The right to administer is
said to consist of four principal matters. First is the right
to choose its managing or governing body. It is said
that the founders of the minority institution have faith and
confidence in their own committee or body consisting
of persons elected by them. Second is the right to
choose its teachers. It is said that minority institutions
want teachers to have compatibility with the ideals, aims
and aspirations of the institution. Third is the right not
to be compelled to refuse admission to students. In
other words, the minority institutions want to have the right
to admit students of their choice subject to reasonable
regulations about academic qualifications. Fourth is the
right to use its properties and assets for the benefit
of its own institution.
40. ….. The right to administer is the right to conduct and
manage the affairs of the institution. This right is exercised
through a body of persons in whom the founders of the
institution have faith and confidence and who have full
autonomy in that sphere. The right to administer is subject
to permissible regulatory measures. Permissible regulatory
measures are those which do not restrict the right of
administration but facilitate it and ensure better and more
effective exercise of the right for the benefit of the institution
and through the instrumentality of the management of
the educational institutions and without displacing the
management. If the administration has to be improved it
should be done through the agency or instrumentality of the
existing management and not by displacing it. Restrictions
on the right of administration imposed in the interest of
the general public alone and not in the interests of and for
the benefit of minority educational institutions concerned
will affect the autonomy in administration.
41. Autonomy in administration means right to administer
effectively and to manage and conduct the affairs of the
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institutions. The distinction is between a restriction on the
right of administration and a regulation prescribing the
manner of administration. The right of administration is
day to day administration. The choice in the personnel
of management is a part of the administration.”
167. Similarly, TMA Pai [supra] considered the essential elements of the
‘right to administer’ [although under the heading “Private unaided
non-minority educational institutions”] as follows:
“50. The right to establish and administer broadly comprises
the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part
of any employees.”
168. Therefore, “administration” and its link with the question of
establishment is to be ascertained by locating who exercised the
“choice” with regard the crucial aspects of an institution and to what
extent was the minority’s decision making expressed in the tangible
outcomes at the time of establishment. It is at this point that the
“choice” of the minority marries itself with the “administration” by
the minority community. As stated above, the choice can be said
to have been exercised by the minority community, if the minority
community is present in some higher echelons of the administrative
setup. Such positioning of the minority community would, in fact,
enable the community to exercise its “choice” as the said choice is
a function of the decision making of the minority community. If the
minority community is not the decision maker in offices of prominence
in the institution, the offices which hold the keys to giving character
to the institution, the claim of administration or establishment by the
minority community would fall flat.

G.5 Locating the real positive indicia
169. In light of the above, in discerning real positive indicia for adjudging
the question of establishment, there cannot be a rigid formula; rather,
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it would rely on various factors depending on the era, type, and nature
of the institution under consideration. The following broad parameters
can be culled out from the judgments and may be considered by the
Court while adjudicating the question of establishment :
i. Firstly, to claim “establishment”, the minority community must
actually and tangibly bring the entirety of the institution into
existence. The role played by the minority community must be
predominant, in fact almost complete to the point of exclusion
of all other forces. The indicia which may be illustrative and
exhaustive in this regard may be nature of the institution, the
legal/statutory basis required for establishing the institution,
whether the establishment required any “negotiation” with
outside forces, the role in acquiring lands, obtaining funds,
constructing buildings, and other related matters must have been
held completely minority community. Similarly, while teachers,
curriculum, medium of instruction, etc. can be on secular
lines, however, the decision-making authority regarding hiring
teachers, curriculum decisions, medium of instruction, admission
criteria, and similar matters must be the minority community.
The choice of having secular education in the institution must be
made expressly by the minority community, demonstrating the
link between institution and the persons claiming to establish it.
ii. Secondly, the purpose of the institution must have been to
predominantly serve the interests of the minority community
or the sole betterment of the minority community, irrespective
of the form of education provided and the mode of admission
adopted. Therefore, as per the choice of the minority community,
an institution may have secular education, but such secular
education and the resultant institution, must be predominantly
meant for the overall betterment of the minority community.
iii. Thirdly, the institution must be predominantly administered as
a minority institution with the actual functional, executive and
policy administration vested with the minority. The minority
community should determine the selection, removal criteria, and
procedures for hiring teaching, administrative staff, and other
personnel. The authority to hire and fire staff must be from the
minority community. Further, even if teaching or administrative
staff may include non-minority persons, the final authority
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exercising functional, directional, and policy control over these
authorities must be from the minority community. This ensures
that the thoughts, beliefs, and ideas of the minority community
regarding administration are implemented. This represents
the real decision-making authority of the institution being the
minority community.
170. In ascertaining the aforesaid, it would be open for the Court look at
the true purpose behind each of the above factors. The apprehensions
expressed in A.P. Christian Medical Educational Society [supra],
enable the Court to pierce the veil to determine answers to the
factors mentioned above.
171. It is reiterated that the factors mentioned above are not a straight-
jacket formula rather illustrative for the Court to develop on a case-to-
case basis. Additionally, factors such as incorporation under a statute
as opposed to establishment under a statute would be relevant. The
context may vary between pre-Constitution and post-Constitution
institutions. The interpretative exercise must be agnostic to generic
claims of a ‘narrow’ or ‘broad’ construction of constitutional terms. The
interpretation must be such that it serves the interests of minorities
by protecting genuine minority institutions.

H. The Azeez Basha judgment
H.1 The content of the judgment of Azeez Basha [supra]
172. The judgment of the constitution bench of this Court in Azeez
Basha [supra] is the cynosure of all eyes in the present case. The
parties attacking the judgment of the High Court assert that the
approach adopted by the Court in Azeez Basha [supra] to arrive at
the finding that the AMU was “neither established nor administered
by the Muslim minority” was fraught with errors. Apart from other
aspects discussed hereinabove, the judgment was questioned on
the ground that it made the rights under Article 30 illusionary as far
as Universities are concerned. It was argued that the judgment in
Azeez Basha [supra], despite accepting that a minority community
has the right to establish a ‘university’ under Article 30(1), held
that since a university is necessarily required to be established/
incorporated by or under a statute, Article 30(1) would not apply. It
was also argued that if a minority can establish a university under
Article 30(1), and if universities are required to be incorporated under
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a statute for degrees to be recognised, then it must follow that the
minority community is entitled to seek incorporation of its institution
as a university. It was argued that Azeez Basha [supra] holds that
a university incorporated by a statute would lose its status as a
minority institution and therefore, the reasoning is flawed.
173. The parties defending the judgment of the High Court, in this regard
assert that the understanding of the Appellants of the judgment in
Azeez Basha [supra] is incorrect as the judgment is not merely
premised on the fact that the AMU was established by way of a
statute rather the said judgment, in depth, studies the antecedent
facts prior to the establishment of the university and the nature of
the legislation establishing the university, to ascertain the character
of the university at the time of its initial establishment, and thereafter
arrives at a factual finding. It is argued that the findings of the
judgment in Azeez Basha [supra] are findings of fact at the time
of the establishment of the AMU in 1920 and do not lay down any
straightjacket formulation of law.
174. Before adverting the countering versions, it is necessary to study
the judgment in Azeez Basha [supra]. The judgement can be
divided in ten parts. In the first part, the Court notes the broad
parameters of challenge before it and the principal arguments by
both sides. The Court notes that amendments made to the AMU
Act, 1920 in the years 1951 and specifically 1965, were impugned
before it. The Court noted assertion of the Petitioners therein, to
the effect that, the AMU was established by the Muslim minority.
It was claimed that therefore, the Muslim minority possess the
right to administer it, and any provisions within the Acts of 1951
and 1965 that diminish or curtail this right are beyond the scope
of Article 30(1) and hence, invalid. The argument of the Union of
India at the said time was that the AMU was established by the
1920 Act and therefore, the Parliament possessed the authority
to amend that statute as deemed necessary for the advancement
of education. It was argued that the minority did not establish the
AMU and thus cannot assert the right to administer it. Furthermore,
it was contended that the provision in the 1920 Act, stipulating that
the Court of the AMU was to be composed entirely of Muslims, did
not confer any administration rights upon the Muslim community
and the administration remained under the jurisdiction of the secular
authorities established by the 1920 Act.
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175. The next part of the judgment notes in some detail the history prior
to the AMU coming in to being. The said portion is relevant as it
represents a specific, fact-based enquiry that the Court carried out.
The Court noted that it was “necessary to refer to the history” prior
to the establishment of the AMU in 1920 in order to “understand the
contentions raised on either side”. The Court notes the establishment
of the MAO College by efforts of Sir Syed Ahmad Khan. The Court
notes that the at the end of the 19th century, the idea of establishing
a Muslim University gathered strength and by 1911 some funds were
collected and a Muslim University Association was established. The
Court referred to the parleys that took place between the Association
and the Government of India, the condition to collect funds by the
Government, and the MAO College and its properties being vested
in the proposed university. The Court notes a variety of factors
which led to the establishment of the Aligarh University in 1920 by
the 1920 Act.
176. In the next part, the Court refers to the provisions of the 1920 Act to
ascertain the character of the AMU when it was established in 1920.
The Court refers to a large number of sections, including Section
23, which provided for the ‘Court’ to be a minority body [along with
the comment of the Select Committee on the same]. After a detailed
analysis of the provisions, Azeez Basha [supra] concludes that the
‘final power in almost every matter of importance’ was not with the
minority community.
177. Thereafter, the Court discusses the amendments made to the 1920
Act in 1951 and 1965. It specifically notes the amendments made to
Section 9 and Section 23 which deal with Islamic education and the
all-Muslim member ‘Court’, wherein the provisions were altered. It
noted that the amendments were made in 1951 to specifically bring
the 1920 Act in conformity with the provisions of the Constitution and
for the benefit of the University so that it could continue to receive aid
from the Government. For the 1965 amendments, it was noted that
the ‘Court’ under Section 23, ceased to be the supreme governing
body and the powers of the Executive Council were correspondingly
increased. The constitution of the ‘Court’ was drastically changed
making it largely a nominated body.
178. In the next portion, the Court discussed the legal challenge and
the position of law under the Constitution. The Court squarely
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rejects the argument that even though the religious minority may
not have established the educational institution, it will have the
right to administer it, if by some process it had been administering
the same before the Constitution came into force. It held that the
‘minority will have the right to administer educational institutions of
their choice provided they have established them, but not otherwise’
and that ‘words “establish and administer” in the Article must be
read conjunctively’. The Court then referred to certain observations
Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR
383, wherein it was held that even if it be assumed that a certain
religious institution was established by a minority community it may
lose the right to administer it in certain circumstances.
179. In the next part of the judgment, the Court contextualised the position
of educational institutions and specifically Universities in the pre-
Constitution and pre-UGC era. The Court notes that a University
and a college are different institutions and what distinguishes a
university from any other educational institution is that a university
grants degrees of its own while other educational institutions cannot.
Most critically, the Court noted that at the said time, there was no
prohibition against establishment of universities privately however, the
degrees of such a “University” would not be recognised by the then
British Indian Government. The non-recognition was non-justiciable
as establishment of a Government recognised was only through a
legislation and there existed no Article 30 or fundamental rights before
1950. The Court emphasized the importance of the recognition from
the then Government as it made the value of degree being awarded
by such an institution higher. The Court noted that it was only in
the year 1956, that the University Grants Commission Act, 1956,
prohibited establishment of a University without a statute.
180. In essence, in this critical part of the judgement, the Court noted the
two important considerations as under :
i. There was no law prohibiting establishment of a private
institution which grants degree without Government intervention
or legislation prior to 1956;
ii. The educational institution established with Government
intervention and legislation had a significant advantage of
British Government’s recognition to the degree granted by the
institution.
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It was this simple understanding of facts as prevalent in
pre-Constitution India, that formed the fulcrum of the judgment
in Azeez Basha [supra].
181. On the basis of the said observations, the Court held that the minority
community was not prevented in any manner in 1920 from establishing
a university if it was not interested in having such University and its
degrees recognised by the British Indian Government. The Court also
noted that in such a situation, the minority community could not insist
that degrees granted by such a university should be recognised by
Government. Therefore, on the said basis the Court remarked that
when the AMU was established, by virtue of Section 6 of the 1920
Act, its degrees were recognised by Government and in that manner,
an institution was brought into existence which could not be brought
into existence by any private individual or body.
182. In the next portion, the Court referred to the MAO College as the
‘nucleus’ of AMU – an expression which has caused considerable
controversy in the present proceedings. The Court thereafter notes
that the Central Legislature established the AMU through the 1920 Act
as the minority could not establish a university whose degrees were
bound to be recognised by Government and that one circumstance
was critical. The Court notes that the 1920 Act was passed as a
result of the efforts of the Muslim minority but it would not mean that
the AMU, as a University granting government recognised degrees
in 1920, was established by the Muslim minority.
183. In the next part, the Court renders its opinion on the meaning of
the word ‘establish’ to mean “to bring into existence”. On the basis
of the said meaning, the Court thereafter again ventured into the
history surrounding the establishment of the AMU. The Court notes
through a historical analysis that the minority community approached
the Government to bring into existence a university whose degrees
would be recognised by Government. It was thereafter that the
British Government took the decision to establish the university,
whose degrees it would recognise, in the only manner known to law
for establishing such a university at the said time – by passing a
legislation. The Court notes that the 1920 Act was then passed by the
Central Legislature and the university of that type was established.
184. Thus, the Court held that the University was brought into existence
by the 1920 Act for it could not have been brought into existence
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otherwise. Thus, the Court held that since AMU was not established
by the minority, and therefore, the amendments of 1951 and 1965
cannot be struck down as being unconstitutional under Art. 30(1).
185. Finally, the Court in Azeez Basha [supra], analyses various
provisions of the Act as it then existed and held that administration
was also not vested in the Muslim minority rather it was vested
in the statutory bodies created by the 1920 Act. It noted that only
the ‘Court’ was minority only body in 1920 [amended in 1951], but
the electors for some of the members included non-minorities. On
the totality of the factors, the Court held that AMU was neither
established nor administered by the minority. The remaining part
of the judgment considers the attack on other fundamental rights
like Article 26 and Article 19, which may not be germane to the
present enquiry.

H.2 The rationale behind the findings
186. This Court has consistently held that the text, context and the totality
of the factors, give actual meaning to a judgment. In P.S. Sathappan
v. Andhra Bank Ltd. & Ors., (2004) 11 SCC 672, this Court has
held as follows:
“144. While analyzing different decisions rendered by this
Court, an attempt has been made to read the judgments as
should be read under the rule of precedents. A decision, it
is trite, should not be read as a statute. 145. A decision is
an authority for the questions of law determined by it. While
applying the ratio, the court may not pick out a word or a
sentence from the judgment divorced from the context in
which the said question arose for consideration. A judgment
as is well-known, must be read in its entirety and the
observations made therein should receive consideration
in the light of the questions raised before it.”
In Goan Real Estate & Construction Ltd. & Anr. v. Union of
India, (2010) 5 SCC 388, it has been held as under :
“What is more important is to see the issues involved in a
given case, and the context wherein the observations were
made by the Court while deciding the case. Observation
made in a judgment, it is trite, should not be read in isolation
and out of context. It is the ratio of the judgment, and not
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every observation made in the context of the facts of a
particular case under consideration of the court, which
constitutes a binding precedent.”
187. The Court needs to conduct a careful exercise in ascertaining
the true purport and meaning of a judgement. Both sides in the
present case have to an extent tried to read the judgment in Azeez
Basha [supra] as per their own respective conveniences. As is the
case in any adversarial exercise, to an extent, the Court needs to
reconcile the varying approaches. The judgment in Azeez Basha
[supra] ought to be understood in the correct historical perspective
in order to ascertain if it lays down the proposition - that whenever
a University is established by way of an enactment, it cannot be a
minority institution.
188. From a proper reading presented above, it is incorrect to suggest
that the Court in Azeez Basha [supra] adopts an approach which
this Court has not adopted in future cases. It is also crucial to note
that apart from Azeez Basha [supra] this Court has, in no other
case, ever dealt with a situation where a University, which was
established by the Legislative Council during the British period, has
claimed minority status. In that sense, the judgment in Azeez Basha
[supra] and present bench are faced with a unique situation. It is
for this reason, the Court in Azeez Basha [supra] had to adopt a
suitably modulated approach.
189. The notion that Azeez Basha [supra] categorically prohibits
minorities from establishing universities due to statutory requirements
is unfounded. The judgment in Azeez Basha [supra] underscores
the importance of legislative intent and the specific provisions within
statutes in determining the character of an institution at the time of its
establishment. The AMU’s founding legislation, according to Azeez
Basha [supra], did not designate it as a minority institution, either
in character or administration.
190. Furthermore, the judgment in Azeez Basha [supra] correctly
emphasizes the absence of UGC regulations at the time of the
AMU’s establishment and underscores the need to consider historical
circumstances highlighting the supreme importance of Government
recognition of degrees at the said time. In essence, the judgement
in Azeez Basha [supra] provides crucial insights into the contextual
factors influencing the establishment of educational institutions,
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emphasizing the need for interpretative clarity while considering pre-
Constitution and pre-UGC institutions status as minority institutions,
especially Universities. It would be unfair to judge the approach of
a judgement rendered almost six decades back for the alleged lack
of verbosity.
191. The judgment in Azeez Basha [supra] does not preclude minorities
from establishing universities but rather highlights the importance of
legislative intent and statutory provisions in determining an institution’s
character. As a matter of law, it is within the purview of the Legislature
to enact legislation for the establishment of a minority university,
provided that such legislation fulfills the criteria of constituting a statute
for a minority university. In such a scenario, the concerned legislation
must incorporate provisions that clearly indicate the establishment of
the institution by the minority community and confer administrative
authority to the minority community.

I. Balancing conflicting narratives
192. There is an inherent problem in the study of history. Since the events
in history that have already occurred can be highlighted or dimmed
depending upon the proclivities of the writer, the ‘correct’ version of
history often remains elusive. Many modern history writers adopt an
approach which is known as Complex Adaptive System, where the
world is seen as an unruly unorganised place in which the sequence
of events is complex and unpredictable. The events are characterised
by interactions between a host of factors including grand socio-
economic forces, geography, actions of persons in power, actions
of a random commoner, culture, ideology, technology, fluke etc. The
theory provides that history does not follow a predetermined path
and can go down multiple ones at the hands of any of the factors
mentioned above. While some outcomes remain to be more likely than
others, the theory remains that the world is made up of unintended
consequences, random shocks and cascading effects of significant
and insignificant events both.
193. Both sides in the present case have highlighted their own version
of history of the establishment of the AMU and sought highlight
specific events which, in their understanding, were crucial in the
eventual establishment of the AMU. The Appellants contended that
the AMU’s formation was fundamentally enabled by the proactive
involvement, demand, and contributions of the Muslim community.
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They argued that the 1920 Act essentially transformed the status of
‘MAO College’ from being affiliated with Allahabad University to an
independent entity named ‘Aligarh Muslim University’ primarily aimed
at imparting Muslim religious education and featuring a Department
of Islamic Studies.
194. The Appellants delineated the historical trajectory of AMU into three
distinct phases:
A. The period spanning from 1870 to 1877 witnessed the inception
of the idea among the Muslim community to establish a university
for the upliftment and progress of Muslims, leading to the
establishment of MAO College.
B. From 1877 to 1910, the Muslim community fervently advocated
for the conversion of MAO College into a university, eventually
securing tentative agreement from the Government.
C. The period from 1910 to 1920 saw concerted efforts by the
founders of the Muslim University to engage with the Government,
culminating in the successful conversion and incorporation of
MAO College into Aligarh Muslim University.
195. It was sought to be highlighted that Sir Syed Ahmad Khan envisioned
establishing a university in India akin to Oxford and Cambridge to
address the educational backwardness among Indian Muslims. In
order to achieve this goal:
i. On October 2, 1870, Sir Syed formed the Committee for
the Better Diffusion and Advancement of Learned among
Mohammadans of India. This committee aimed to understand
why Muslims were not pursuing Western education, identifying
reasons such as lack of religious education and non-involvement
of Muslims in educational decisions. Consequently, the idea
of an educational institution managed by and for Muslims with
religious instruction gained traction.
ii. In 1871, Sir Syed established the Mohammadan Anglo-Oriental
College Fund Committee to raise funds for the educational
institution. The committee’s objective was explicitly stated as
collecting funds for establishing a college, particularly for the
education of Muslims.
iii. The committee resolved to establish Madrasatul Uloom (an
Arabic term for educational institution) in Aligarh, which was
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inaugurated on May 24, 1875. This marked the initial step toward
realizing the vision of a university for the Muslim community.
iv. Subsequently, Madrasatul Uloom was established as the
Mohammedan Anglo-Oriental College (MAO College) on
January 8, 1877, as a registered society. During the laying of
the foundation stone, the College Fund Committee addressed
the Viceroy and Governor-General of India, expressing the
hope that the college would eventually evolve into a university
spreading the values of free inquiry, tolerance, and morality.
v. The Rules and Regulations of MAO College emphasized its
primary objective as the education of Muslims, while also
accommodating Hindus and other communities.
vi. Administration of MAO College was exclusively entrusted to the
Muslim community, as evidenced by various resolutions and
rules. The Select Committee for the Advancement of Muslim
Education, the Fund Committee, and the Trusteeship regulations
all mandated Muslim involvement in the institution’s governance.
196. The Appellants sought to highlight that in the second phase, the
MAO College expanded, and Sir Syed and the Muslim community
continued to seek government support for its “conversion” into a
university by placing reliance on the following :
i. Sir Syed pursued government support primarily because the
Muslim community viewed a degree as essential for success
and government employment. This viewpoint was documented
in Mr. Altaf Husain Hali’s biography of Sir Syed, “Hayat-i-Javed.”
Justice S Amir Ali also stressed the necessity for the proposed
university to be empowered to grant government-recognized
degrees.
ii. To further this goal, the College Fund Committee presented a
written address to the Viceroy on 18.11.1884, expressing the
hope that, with increased funds and completed schemes, they
would seek recognition as an independent university.
iii. After Sir Syed’s demise on 27.03.1898, a memorial fund was
established on 08.04.1901 to gather funds for elevating MAO
College to university status. This endeavor met with success,
with Rs. 1,27,000/- collected by 11.11.1901. Additionally,
Mr. Syed Jafar Husain initiated the ‘one rupee fund’ scheme,
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urging each Muslim to contribute at least one rupee towards the
proposed university, resulting in substantial funds being raised.
iv. Various representations were made to the government by
the MAO College management and members of the Muslim
community, including addresses to the Viceroy on 01.10.1906
and 22.04.1908, seeking assistance in establishing a Muslim
university. The 22.04.1908 address emphasized the alignment
of their goals with Sir Syed’s vision, with significant support from
figures like Mr. Justice Mahmood and Mr. Theodore Morison.
v. In 1910, the efforts of the Muslim community garnered in-
principle acceptance from the Government of India for the
conversion of MAO College into a Muslim University.
197. The Appellants pointed out that in the final phase, the Muslim
community continued to collect funds and negotiate with the
government to establish the university, highlighting the following :
i. In 1911, the internal Foundation Committee was formed to
establish a University, with the Raja Saheb of Mahmoodabad
as its President.
ii. On 18.07.1911, the Secretary of State approved in principle the
establishment of a university at Aligarh, subject to the provision
of adequate funds and control, based on the recommendation
of the Government of India dated 10.06.1911.
iii. The then Government of India, in its letter dated 31.07.1911 to
the Foundation Committee, specified that the university could
be established only through a bill in the Imperial Legislative
Council, expressing willingness to draft the proposed bill in
consultation with community representatives.
iv. A draft bill was prepared by the Constitution Committee in
August 1911.
v. Negotiations in November 1911 led to a dispatch from the
Government of India to the Secretary of State, highlighting
the significance of sanctioning a university at Aligarh for the
Muslim community.
vi. The negotiations continued, addressing issues such as
university affiliation, nomenclature, and the Chancellor’s role.
A letter dated 09.08.1912 from the Education Member of the
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Government acknowledged the community-led initiative and
the draft constitution’s intent.
vii. In 1915, the Muslim University Association, comprising entirely
of Muslim members, was founded to facilitate the conversion
of MAO College. The association’s efforts were detailed in the
MAO College Annual Report 1912-14, highlighting significant
funds raised.
viii. The Muslim Community successfully raised Rs. 30 lakhs for
the university, as required by the Government.
ix. After prolonged negotiations, the Muslim University Bill was
prepared in 1919 and referred to a Select Committee. The
committee’s report, submitted on 02.09.1920, underscored the
Muslim Community’s pivotal role in the university’s establishment
and administration.
x. The Aligarh Muslim University Bill, 1920 was debated in
the Indian Legislative Council and passed. The President
congratulated the Muslim community on its passage.
xi. Consequently, the Aligarh Muslim University Act, 1920
was enacted, with the Statement of Objects and Reasons
acknowledging the significant role of the Muslim community in
its establishment.
198. Apart from the above, the Appellants sought to highlight other aspects
to highlight minority character of the institution such as :
i. The historical background of the institution, as described above,
showcases the evolution MAO College into a full-fledged
university through the Aligarh Muslim University Act, 1920. This
journey reflects the concerted efforts of the Muslim community,
led by visionaries like Sir Syed Ahmad Khan, to address the
educational needs and aspirations of Indian Muslims.
ii. The architecture of AMU’s buildings, characterized by features
such as deep green color, domes, and Qur’anic inscriptions,
distinctly embodies its Islamic identity. Photographic evidence
presented to the Division Bench of the High Court further
underscores this Islamic architectural style.
iii. The emblem of AMU incorporates a Qur’anic verse, serving as
both its motto and a symbol of its Islamic heritage.
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iv. AMU boasts a University Mosque, a significant religious and
cultural landmark within its premises. The Amending Act of
1972 permits the establishment of halls, hostels, specialized
laboratories, and research units within a 25 km radius of the
University Mosque, highlighting its central importance.
v. The employment of Muezzins at AMU reflects its commitment
to Islamic traditions and practices, contributing to the religious
and spiritual ambiance on campus.
vi. Initially, AMU offered separate Departments of Studies for Sunni
Theology, Shia Theology, Islamic Studies, Arabic language and
literature, Persian, and Urdu. Over time, these departments have
expanded to include various disciplines, such as Islamic systems
of medicine, Philosophy (with a focus on Islamic Philosophy),
and a Center for Quranic Studies, reflecting the university’s
continued emphasis on Islamic scholarship and education.
vii. AMU has historically accommodated female students to
observe purdah (veiling) as per Islamic tradition. Photographs
documenting these accommodations provide tangible evidence
of the university’s efforts to create an inclusive and supportive
environment for its female students while respecting their
religious beliefs and practices.
199. On the contrary, the parties defending the judgment in Azeez Basha
[supra] and the judgment of the High Court, have sought to highlight
their own version of events prior to the establishment of the AMU in
order make a case that while the minority community was involved in
the process, the establishment of the University was at the primary
will and decision of the British Indian Government. The following
aspects were highlighted :
i. In 1873, Sir Syed Ahmad Khan proposed substituting the term
“college” with “university” in the name of MAO College. However,
the government responded by stating that if a “Mohammedan
University” were to be established, no financial aid would be
provided.
ii. It was brought to the fore that contributions from various sources,
including government officials and dignitaries, as well as the
donation of land by Lt. Governor Sir John Strachey, underscored
the national character of MAO College.
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iii. The college, initially dependent on government funds, struggled
with significant debt around the time of Sir Syed’s death in 1898.
iv. Efforts to establish a university at Aligarh continued, with
suggestions from individuals like Prof. Dr. Zia-ud-din, Justice
S. Amir Ali, Theodore Morison, Theodore Beck, and Maulvi
Rafi-u’d-din, aiming to model it after European universities and
offering a blend of Western and Oriental learning. However,
despite proposals for a predominantly minority university, the
demands were not fully accepted.
v. The Imperial Government insisted on substantial secular
control over the university’s establishment, as indicated in
correspondences between officials such as JP Hewitt, the
Secretary of State, and Sir Harcourt Butler. Despite proposals
for affiliating colleges outside Aligarh, such plans were rejected
to prevent potential overgrowth and competition with future
institutions.
vi. During meetings and conferences, the government’s proposal
for a university along the lines of the Benares Hindu University
was met with disappointment and protest, highlighting the
community’s desire for autonomy. Eventually, the Muslim
University Association voted to accept the government’s
proposal, aligning the university’s setup with that of the Benares
Hindu University.
vii. Discussions regarding government recognition of degrees
and control over examinations emphasized the need for
government oversight to maintain standards. Members of the
Regulations Committee agreed to government veto power over
the appointment of the University Vice Chancellor, citing the
university’s envisioned All India character and the desire to
avoid local prejudice.
viii. On October 10, 1917, H. Sharp, the Secretary of the Department
of Education in the Government of India, outlined several key
principles to consider regarding the organization of the proposed
university’s constitution. Firstly, he suggested following the
precedent set by the University of Benares, except for non-
essential changes or improvements. Secondly, he emphasized
not allowing adherence to the constitution of the Mahomedan
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Anglo-Oriental College as a basis for deviating from the
Benares model. Additionally, he highlighted various political
considerations, including the desire to establish Islamic colleges
affiliated with Aligarh, potential political movements centered
around Aligarh, and the desire for a network of recognized
Islamic schools. Other concerns included the desire for autonomy
from local government control, political representation within the
university’s governing bodies, the conferment of inexpensive
degrees to increase Muslim graduates, and the potential
elimination of European staff members. Sharp also addressed
specific aspects of the draft bill, such as the powers of the
Governor-General in Council, the role of the Visitor, and the
composition and powers of the Court, Senate, and Syndicate.
ix. On January 19, 1918, a letter from Sir E.D. Maclagan,
Secretary to the Government of India, highlighted the need
for any legislation to establish a Muslim University at Aligarh
to conform with the provisions of the legislation passed for the
Hindu University at Benares. The letter raised concerns about
certain provisions in the draft bill, including compulsory theology
instruction for Muslim students and the absence of provisions
regarding a Visitor’s control over statutes and regulations.
x. On December 19, 1918, a demi-official letter from Mr. Keane
mentioned the expectation of a liberal annual grant from the
Government of India to the proposed university, similar to the
grant given to the Benares Hindu University.
xi. On December 27, 1919, the Government of the United
Provinces provided its views on the draft constitution for the
proposed Muslim University at Aligarh. The Lieutenant-Governor
expressed concerns about granting the Court the power to
interpret statutes and suggested limiting the Court’s powers to
preserve the influence of the Governor-General.
xii. On March 12, 1920, Mr. H. Sharp’s letter to Kunwar Maharaj
Singh noted that the draft bill would allow the Governor-General
in Council to give instructions and compel the university to
follow them regarding the standard of university examinations.
xiii. On May 8, 1920, a telegram compared the Muslim University
draft bill with the Benares Hindu University Act, noting differences
in the publication of accounts, the approval process for
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alterations to statutes and ordinances, and the transfer of certain
powers from the Visitor to the Governor-General in Council.
The telegram emphasized the importance of retaining control
over these all-India universities under the Government of India.
xiv. On June 12-13, 1920, a meeting was held to discuss the
establishment of Aligarh Muslim University. A large number of
points were discussed at the meeting which ultimately ended
with the observation that BHU and AMU should be on equal
footing regarding their relations with the government.
xv. In a subsequent speech on September 9, 1920, Mr. Shafi
presented the report of the Select Committee on the AMU Bill
in the Indian Legislative Council. Amendments proposed during
the session, such as altering the tenure of key university officials
and modifying the ordinance-making process, were met with
objections. Concerns were raised about potential anomalies and
the balance of power between university bodies and government
authorities. Despite objections, the proposed amendments were
put to a vote and rejected by the council.
200. Significantly, another aspect that was highlighted by the parties
defending the judgment in Azeez Basha [supra] and the judgment
of the High Court, was about the two groups that emerged during
the ‘negotiations’ with the British Indian Government on the minority
side and the creation of the Jamia Milia Islamia. It was pointed out
as under :
i. Sir Syed’s original vision for AMU was deeply rooted in loyalty
to the British.
ii. The division within the Aligarh University movement stemmed
from the government’s refusal to grant the college authority to
affiliate with institutions outside Aligarh. Even prior to this, the
Ali brothers endeavored to remove pro-government influences
from the college administration.
iii. The rift intensified over the denial of affiliating powers to MAO
College, exacerbated by events like the annulment of the Bengal
partition, perceived by Mahomed Ali as a betrayal of Muslims.
iv. The factions emerged, with Maulana Aftab Ahmed Khan leading
those willing to accept the government’s terms (the loyalists),
including later Mohd. Shafi.
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v. Conversely, the opposition, led by Ali Brothers and Hasrat
Mohani, advocated for Muslim control of the university and
affiliation powers.
vi. The Ali brothers and their followers sympathized with Turkey and
opposed British actions during WWI. Mahomed Ali’s influence
over Aligarh students created challenges for MAO college’s
principal, Dr. Ziauddin.
vii. After the BHU Act, pressure mounted to accept the government’s
terms, leading to a split in the movement. Despite the University
Foundation Committee’s decision to accept government
proposals without conditions in April 1917, Mahomed Ali
remained opposed to the same.
viii. In 1920, negotiations between the Government and the Aligarh
group led to the introduction of the University Bill. Simultaneously,
Gandhiji’s involvement in the Khilafat movement aimed to
mobilize Muslims amidst anti-government sentiments during
the Non-cooperation movement started with the co-operation
from the Ali Brothers.
ix. The rapid introduction of the AMU bill was aimed to align Muslims
with the government amid growing anti-government sentiment.
Subsequently, the pro-Khilafat group urged the university to
reject government aid, prompting Maulana Mahomed Ali to
advocate for non-cooperation. On October 12, 1920, the Ali
brothers and Gandhiji urged the college to cease accepting
government aid. Aligarh students actively joined the non-
cooperation movement, threatening to nationalize the college.
x. Leaders supporting the non-cooperation movement assured
Aligarh students of the college’s transformation into a National
University, encouraging enrollment. The Deoband Theological
School issued a fatwa advising students to leave MAO College
and enroll in the proposed National University.
xi. On October 27, the Aligarh Board of Trustees directed Maulana
Mohammed Ali and his supporters to vacate college hostels,
leading to the college’s closure.
xii. Finally, on October 29, 1920, Maulana Mohammed Ali and his
followers left the college to establish Jamia Milia Islamia, aimed
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at countering government influence at AMU. Consequently, the
Ali Brothers established Jamia Milia Islamia as an independent
institution not subject to government control, contrasting with
AMU’s dependence on government support.
201. On the basis of the above, it was argued that the judgment in
Azeez Basha [supra] correctly recognises the historical context
of AMU’s establishment and the influence of British recognition on
its character. It was argued that the judgement in Azeez Basha
[supra] does not simplicitor conclude that statutory establishment
precludes minority status but examines the circumstances preceding
AMU’s founding to determine its nature as a government-supported
institution.
202. Keeping the above factors in mind, the Court must survey the
important events and incidents that led to the formation of the AMU.
In the conflict of narrative surrounding the century old history, the
Court cannot be swayed by one side of the story or the other. In
a complex historical context such as this, the Court must weigh
carefully the role played by the minority as against that played by the
government in establishment of the institution in order to determine
who is responsible for the positive fact of such establishment.
203. From a minute study of the aspects highlighted above, it is clear
that in some case, there may exist certain factors which point
towards efforts made by the minority community to claim to have
a denominational University. Further, clearly the real intention
of the minority community may indeed have been to have a
denominational University for its own use. However, as stated
above, intention and efforts are not the complete answer to the
question of establishment.
204. If in a given case, there may be other factual factors pointing towards
the contrary, highlighting that whatever the intention or the will of the
minority community might have been at the said time, in exchange or
during negotiations, if the resultant institution was effectively rendered
an open governmental institution [with limited minority aspects], then
Article 30 would be out of the picture. An institution with a limited
minority aspects/elements cannot be a minority institution. The
Court in such a situation, must balance the narratives on a weighing
scale and test which forces were stronger during the process of
establishment and the resultant institution.
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J. Pre-independence Universities and other institutions
205. At this juncture, it would be appropriate to refer to the position of
educational institutions, specifically Universities, prior to the advent
of the Constitution and the UGC Act, 1956. During the said time,
the British Indian Government, through legislations passed through
provincial legislatures, passed various enactments establishing
Universities in various zones/cities. The University of Calcutta, the
University of Bombay, the University of Madras, the Panjab University
and the University of Allahabad were established through legislations
in the 19th century.
206. At the same time, throughout this period, it is noteworthy that a
significant number of colleges and similar educational institutions were
established across the country, including those established by minority
communities. The said institutions did not aspire to attain “university”
status and were content with operating as affiliated colleges to the
Universities established by legislation by legislative bodies.
207. Parallelly, prior to the prohibition contained in the UGC Act, 1956,
there existed a period wherein the legal landscape lacked statutory
constraints preventing the establishment of universities without
specific legislative enactments. During this time, it was within
the prerogative of any collective body or individuals to establish
educational institutions in the nature of universities without legislative
intervention.
208. In fact, in the absence of a provision like Section 23 of the UGC
Act, 1956, it was open to such institutions to even adopt the titles
such as “university” or in some cases “vidyapeeth” or “jamia” asserting
their capability to grant degrees. This era witnessed the emergence
of numerous universities, predating independence, whose degrees
did not carry recognition from the British Government for eligibility in
employment within Crown services. Despite this absence of official
recognition, many of these institutions rose to prominence, eventually
becoming leading national educational establishments.
209. Therefore, the authorities behind the MAO College, had three options :
i. First, request the British Indian Government to establish a
university, with the classical British Indian Government’s control
as in case of other Universities, through a legislation passed
by the Imperial Legislative Council or Provincial Legislature.
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In the said eventuality, the advantage was that the institutions
degrees could be recognised by the British Indian Government
[and perhaps the world over] however, it would require foregoing
of the character and the control over the institution.
ii. Second, continue as the MAO College, affiliated to the
Universities already in existence, and persist as a college
only [without granting its own degrees] while preserving its
control and character as a denominational institution subject
to regulatory controls that came along with the affiliation with
a legislation-based University;
iii. Thirdly, the MAO College had the option to establish a university/
Vidyapeeth/jamia under its own name or any other name without
the need for government enactment, albeit without recognition
from the British Indian Government. The institution could have
chosen to maintain its character and avoid British governmental
control.
210. The history of the events as mentioned above, is witness to the
decisions taken and path chosen by the stakeholders and the same
would have a bearing on the issue whether the AMU was established
as a minority institution or not.

K. The question of administration and the 1920 Act
211. As stated above, “administration” and its link with the question of
establishment is to be ascertained by locating who exercised the
“choice” with regard the crucial aspects of an institution and to
what extent was the minority’s decision making expressed in the
tangible outcomes at the time of establishment. As stated above,
it is at this point that the “choice” of the minority marries itself with
the “administration” by the minority community. As stated above, the
choice can be said to have been exercised by the minority community,
if the minority community is present in some higher echelons of the
administrative setup. Such positioning of the minority community
would, in fact, enable the community to exercise its “choice” as
the said choice is a function of the decision making of the minority
community. If the minority community is not the decision maker in
offices of prominence in the institution, the offices which hold the
keys to giving character to the institution, the claim of administration
or establishment by the minority community would fall flat. It is in this
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Aligarh Muslim University v. Naresh Agarwal & Ors.

light that the AMU act, 1920 [and as it stood post the Constitution
coming into force], would have to be examined.
212. The AMU act, 1920, as enacted, is an interesting piece of legislative
drafting. The Act had 40 sections and created a unique machinery,
to administer the AMU. As discussed above, the establishment of
the university and the question thereof is also a function of nature
of the university established through the Act and the real controlling
authorities – both at executive level and staff level. The parties
doubting the judgment in Azeez Basha [supra], sought to highlight
some aspects of the 1920 Act in order to further their points.
213. It was pointed out that the Statement of Objects and Reasons and
preamble of the Act explicitly articulates its purpose to establish
and incorporate a teaching and residential Muslim University while
dissolving the Muhammadan Anglo-Oriental College, Aligarh, and
the Muslim University Association, transferring all their properties
and rights to the new university. It was pointed out that all assets,
rights, powers, and privileges of MAO College and its affiliate bodies
were fully transferred and vested in AMU. It was pointed out that
any references to MAO College or its affiliate bodies in previous
enactments or documents are construed as references to AMU. It
was pointed out that all employees and staff of MAO College were
automatically deemed as employees of AMU with the same tenure,
terms, rights, and privileges. It was pointed out that donations received
from the Muslim community, totaling thirty lakh rupees, were allocated
as the Reserve Fund to be managed by AMU.
214. It was pointed out that all students of MAO College became the
responsibility of AMU upon commencement, including the provision
of instruction as per the prospectus of Allahabad University. It was
pointed out that the First Statutes mandated that the Register of
registered graduates include those who had been educated for at
least two years at MAO College. Additionally, the Central Legislature
incorporated provisions in the AMU Act specifically benefiting the
Muslim community, such as the promotion of Oriental and Islamic
studies, instruction in Muslim theology and religion, and furtherance
of arts, science, and other branches of learning.
215. It was pointed out that the Act allowed for the establishment of
intermediate colleges and schools within the vicinity of MAO College
to provide instruction in Muslim religion and theology. It was pointed
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out that regarding administration, the Muslim community had both
de jure and de facto control over the management of AMU. It was
pointed out that the limitation of the membership to the ‘Court’ [which
is the supreme governing body] to Muslims is a significant aspect
in that regard.
216. It was highlighted that the Chancellor, Pro-Chancellor, and Vice-
Chancellor, being ex-officio members of the ‘Court’, had to be from
the minority community. It was pointed out that the powers vested
in the Court to appoint university officers and frame statutes for
the Executive and Academic Councils, and the predominance of
Muslims in elected university positions. It was pointed out that
additionally, the Act did not require the submission and approval
of certain statutes dealing with Muslim education. It was pointed
out that the presence of non-Muslims in governing bodies does
not diminish the minority character of the university, citing legal
precedents. It was pointed out that powers vested in the Lord Rector
and the Visiting Board under the Act do not affect the university’s
minority character and are merely ‘regulatory’ or ‘supervisory’ in
nature as would be in case of even present-day Universities and
their ‘Chancellors’.
217. The parties defending the judgment of the High Court pointed out
that the 1920 Act provides for government control over the AMU by
controlling, inter alia, the appointment of important office holders,
the composition of administrative bodies, the rule making power of
the university etc. It was pointed out that the Governor General-in-
Counsel was appointing authority at the time of inception for the
high positions of Chancellor, Pro-Chancellor, and Vice-Chancellor.
It was pointed out that powers of the University had 12 sub-clauses,
all of which were secular expect for one. It was pointed out that the
admissions in the University at the time of inception were made on
secular lines. It was pointed out that First Statutes of the University
were framed not by the ‘Court’ but by the British Indian Legislature
and the First Ordinances of the University at the time of inception
were also not framed by the minority rather were framed by the
non-minority authority of the Governor General-in-Council. It was
pointed out that Lord Rector had wide ranging powers and it was
the British Indian authorities that had effective, de-facto, policy level
control over the AMU and not the minority community at the time
of establishment.
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Aligarh Muslim University v. Naresh Agarwal & Ors.

218. It is critical to note that the 1920 Act and the nature thereof, also
bestows the AMU with its character at the time of inception. The said
character at the time of inception would be useful in ascertaining
if the institution was predominantly established for the minority
community with a ‘sprinkling of outsiders’ or not. It may be noted that
merely having a faculty or a portion thereof dedicated to a religious
discipline would not bestow a larger public entity like a University,
with its character. The leading Universities of the world today have
faculties for religious studies and enquiry5. The said faculties are
genuine centres of intellectual and theological enquiry and would also
interest persons from other religions in numerous cases. Therefore,
having a specific portion carved out in a larger University set-up would
not be the defining characteristic of the University. In fact, such a
dedicated Faculty in a University would indicate the wide-ranging
nature of studies the institution. Therefore, the regular bench must
examine if the AMU Act, 1920 [and how it stood after the advent
of the Constitution], is an enacting establishing an institution which
was predominantly minority in character.

L. ‘Incorporated’ or ‘established’ by or under a Statute
219. At this stage, this Court has to adjudicate another issue that touches
upon the question of establishment. It has been argued that the
1920 Act was a mere legislative “veneer” or a token recognition to
an already existing entity. On the other hand, it was countered by the
argument that there is a difference between a body which is created
under a statute as opposed to a body which the statute claims to
itself ‘establish’. On the basis of the same, it is urged that since the
AMU owed its very existence to a statute, it was established by the
statute only.
220. In this regard, the Court needs to clarify that a legislation [more so
a legislation in the pre-independence era] can never be considered
to be an inconsequential veneer or a mere recognition/token. A
legislation is the will of the sovereign reflected and enacted through
a dedicated body. A legislation is always of some consequence and
cannot be presumed to be of tertiary importance.

5 Oxford Centre for Hindu Studies (OCHS), Oxford Centre for Islamic Studies, Delhi University’s Centre for
Hindu Studies
2018 [2024] 11 S.C.R.

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221. Separately, the parties defending the judgment of the Azeez Basha
[supra], place heavy reliance on the judgment in Dalco Engineering
Pvt. Ltd. v. Satish Prabhakar Padhye, (2010) 4 SCC 378, and
others6 to assert that the use of the term ‘established’ in the phrase
‘established by or under an Act’ in any statutory enactment creates
a deeming fiction which would entail the coming into existence of
the entity so established a result of the statutory enactment alone.
222. While testing this argument, it is important to note that the judgment
in Dalco [supra], was dealing with entities and enactments such as
the State Bank of India Act, 1955 or the Life Insurance Corporation
Act, 1956 or the State Financial Corporations Act, 1951. The same
principle cannot ipso facto be lifted and applied in the context of
Article 30, especially when it concerns the fundamental rights of
citizens.
223. Crucially, as pointed out during arguments, there are other statutes,
enacted by the State Legislatures, which recognise the minority
character of the institutions through various provisions. In the said
statutes, the ‘establishment’ is done by and under the statute and
at the same time, the establishment of the previous institution is
recognised to be done by the minority community. For example, The
Sam Higginbottom University of Agriculture, Technology and Sciences,
Uttar Pradesh Act, 2016, in this preamble provides as under :
“An Act to establish and incorporate a Teaching,
Research and Extension University with a view to
upgrade and reconstitute the existing Sam Higginbottom
Institute of Agriculture, Technology and Sciences
(Deemed-to-be- University), Allahabad, established
and administered by the Ecumenical Minority Christian
Society namely the Sam Higginbottom Educational and
Charitable Society, Higginbottom House, 4- Agricultural
Institute, Allahabad-211007, Registered under the Society
Registration Act, 1860 in the State of Uttar Pradesh, and
to provide for natters connected therewith or incidental
thereto,”

6 Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421; Executive Committee of
Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58; S.S. Dhanoa v. MCD, (1981) 3 SCC 431;
CIT v. Canara Bank, (2018) 9 SCC 322
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Aligarh Muslim University v. Naresh Agarwal & Ors.

224. Similarly, The Era University, Lucknow, Uttar Pradesh Act, 2016, and
its Preamble provides as follows:
“Preamble
An Act to establish and incorporate a teaching University
sponsored by Era Educational Trust duly established
and administered by the members of Muslim Minority
community..”
225. At the same, time, there were other enactments which claimed to
have established and incorporated the Universities and still bestowed
them with minority characteristics. For example, in the North East
Adventist University Act, 2015, in the Preamble, provides as under:
“An Act to establish and incorporate an University in the
State, with emphasis on providing high quality education,
training and research in the fields of Physical Sciences,
Applied Sciences, Life Sciences, Health Sciences, Social
Sciences, Bio-Technology, Information Technology,
Engineering, Management, Commerce, Communication,
Law, Humanities, Languages, Performing Arts and other
allied areas, sponsored by the Medical Educational Trust
Association Surat of Seventh-day Adventists, and to provide
for matters connected therewith or incidental thereto.”
226. Similarly, the preamble of The Teerthanker Mahaveer University Act,
2008 reads as under:
“An Act to establish and incorporate a Jain Minority
Teaching University sponsored by Teerthanker Mahaveer
Institute of Management & Technology, Society, Moradabad
Uttar Pradesh and to provide for matters connected
therewith or incidental thereto.”
227. Therefore, the use of the phrase ‘establish and incorporate’ by the
Legislature may be relevant in the larger enquiry but cannot be said to
be determinative of the factum of establishment or not by the minority
community. The question of establishment is to be ascertained by
a multitude of factors, and especially in case of Universities – the
history of the establishment, the nature of the Act, the nature of the
University, etc. and the phrase ‘establish and incorporate’ would be
of limited importance only.
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228. Separately, it is noteworthy that there exist alternative paradigms of
universities established by legislative bodies7, which may claim to
be minority institutions.
229. The legislative frameworks of statute-based minority Universities were
highlighted before this Court, wherein the predominant character of
the University is minority-oriented with only peripheral non-minority
elements. Therefore, if the intention was to establish or incorporate
or recognise a minority University, the Legislatures have incorporated
suitable provisions to colour the University with a minority identity.
230. Furthermore, the abovementioned enactments and a perusal of
the same underscores that a considerable degree of autonomy
was retained by the sponsoring entity, with pivotal decision-making
powers vested therein and further in some cases, specific provisions
for providing religion-based reservations.
231. The Court may notice another aspect that the 1920 Act in its Preamble
provided that it was “An Act to establish and incorporate a teaching
and residential Muslim University at Aligarh”. The said recognition
is relevant but cannot be the sole basis of enquiry on either side.
A Legislature speaks through the enactment and not merely the
Preamble, therefore, the contents of the legislation would be primordial
source of information for the enquiry. The amendment made to the
1920 Act in 1981, and the deletion of the words ‘establish and’ from
the Preamble, cannot therefore alter the pre-existing, pre-occurred
factual situation. The regular bench, would therefore, have to analyse
the factual situation and arrive at a finding.

M. Evolution of AMU and the advent of the Constitution
M.1 The amendments made to the 1920 Act
232. The statute enacted in 1920 has gone through its own journey and
evolution. As far as the evolution of the 1920 Act is concerned,
both sides have illustrated the amendments made over the years.

7 The Integral University Act, 2004; The Teerthanker Mahaveer University, Uttar Pradesh Act, 2008; The
North East Adventist University Act, 2015; Sam Higginbottom University of Agriculture, Technology
and Sciences, Uttar Pradesh Act, 2016; The Era University, Lucknow, Uttar Pradesh Act, 2016; The
Mohammad Ali Jauhar University Act, 2005; The Aliah University Act, 2007; The Sri Guru Granth Sahib
World University Act, 2008; The Spicer Adventist University Act, 2014; The Khaja Bandanawaz University
Act, 2018; The Khangchendzonga Buddhist University, Sikkim Act, 2020; The Enteral University
(Establishment And Regulation) Act, 2008
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Aligarh Muslim University v. Naresh Agarwal & Ors.

The 1951 Amendment Act introduced notable alterations, including
the omission of Section 9 from the original 1920 Act, which had
sanctioned compulsory instruction in Muslim religion for Muslim
students. Further, an amendment to Section 8 allowed for religious
instruction for consenting students, aligning with Article 28(3) of the
Constitution, which prohibits such instruction in aided institutions. In
Section 5(12), which was the residuary clause, the portion dealing
with Islamic learning and Muslim theology, along with another portion,
was deleted. Importantly, the lynchpin of the case of the parties
challenging the judgment of the High Court and Azeez Basha [supra],
the proviso to Section 23(1) of the 1920 Act [as it then was], which
limited ‘Court’ membership to Muslims, was deleted by the 1951
Amendment Act. As per amendment to Section 15, Governor of the
State of Uttar Pradesh became the Chief Rector of the University.
233. The amendment in 1965, more than its content and changes, becomes
relevant because of the unusual sparring between two giants of
their respective fields – Retd. J. M.C. Chagla [the well-known Retd.
Chief Justice of the Bombay High Court and the Education Minister
in 1965] and Mr. Frank Anthony [a well-known educationist and
Senior Counsel before this Court]. The Bill was introduced in Lok
Sabha on 16.08.1965. On 27.08.1965, Mr. J. Chagla presented the
reasons behind the amendments. The amendments were thereafter
described and were sought to be justified in the context of the
occurrences at the University. It was stated that the amendment, to
at least some portions, was a temporary measure. Critically, Mr. J.
Chagla discussed the ‘character of the University’ during the said
debate. He asserted that the AMU was a ‘national institution’ of
‘national importance’ along the lines of the four Central Universities
as per Entry 63 of List I of Seventh Schedule. While emphasizing
the importance of intellectual enquiry qua Muslim culture in India at
the institution, Mr. J. Chagla highlighted that it was in the context
of national and secular India. He referred to the history of the AMU
in 1920 and the amendments made in 1951.
234. In response, on the same day, Mr. Anthony raised the issue how
the Government had on affidavit claimed that the Article 30 would
not apply to the AMU in the proceedings before the Supreme Court
[purportedly in a petition challenging the Ordinance preceding
the 1965 amendment]. Mr. Anthony, on 01.09.1965, made a detailed
speech claiming that the right under Article 30 has two elements –
2022 [2024] 11 S.C.R.

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establish and administer – which can be used disjunctively. In his
opinion, establishment was not a necessary pre-condition. Mr.
Anthony thereafter refers to his own understanding of history of the
AMU and refers to the MAO College as the ‘nucleus’ and asserted
that the 1920 Act vested administration with the minority community.
235. Mr. J. Chagla responded to this on 02.09.1965 quippingly claiming
that he was ‘no longer a practicing lawyer and perhaps my law has
become rather rusty. But still I know a little bit of law, particularly
constitutional law. I entirely disagree with him [Mr. Anthony]’. Mr. J.
Chagla stated that the AMU was neither established nor administered
by the Muslim community. He stated that the AMU was created by
a statute, the 1951 amendments and the presence of the AMU in
Entry 63, List I of Seventh Schedule makes the same crystal clear.
He further gave numerous examples of how the administration of the
institution was not technically with the minority community. He again
claimed that the AMU was a national institution and the sovereign
legislature had the right to amend the clause. He also remarked that
through history, the British ensured that the institution which was
financed by Indian money, was open to all communities.
236. The sparring between the two continued on 03.09.1965 as well.
Mr. Anthony clearly claimed that he equated establishment with
foundation and with ‘who founded it. If the minority community
founded it, then giving legislative recognition will merely be as I
said and I repeat, giving legislative sanction’. Mr. J. Chagla stated
that in law the Parliament cannot make a classification on the basis
of religion and therefore, both the AMU and the BHU enactments
were amended in 1951. Finally, on 06.09.1965, after short closing
speech by Mr. J. Chagla, the amendment was passed. The 1965
Amending Act effected a notable amendment by demoting the Court
from its status as the ‘supreme governing body’ of the University
to a consultative body for the Visitor of the University, namely, the
President of India.
237. The 1972 amendment made additions to the definition clause.
Critically, it added a clause to Section 5 which provides the University
with the power to promote the study of religion, civilisation and culture
of India. It amended Section 17 to provide that the Chancellor shall
be appointed by the Visitor in such manner as may be prescribed
by the Statutes and amended Section 19 made him the principal
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Aligarh Muslim University v. Naresh Agarwal & Ors.

executive and academic officer of the University, and shall exercise
general supervision and control over the affairs of the University and
give effect to the decisions of all the authorities of the University. The
powers of the ‘Court’ were revised but remained significantly curtailed.
238. The amendment in 1981 rescinded Section 23 to its position prior to
1965, which had resulted in the ‘Court’ being demoted to a consultative
body. It amended Section 17 to provide that the Chancellor to be
elected by the ‘Court’. The 1981 amendment deleted the portion in
Section 8 which restricted the University from adopting or imposing any
test of religious belief or profession for admissions or appointments
as teacher or other office. The 1981 amendment also made three
specific changes which are a subject matter of the present petitions
and deserve to be quoted in full :

Previous provision Amended provision
(1) “University” means the Aligarh (1) “University” means the
Muslim University educational institution of their
choice established by the Muslims
of India, which originated as the
Muhammadan Anglo-Oriental
College, Aligarh, and which was
subsequently incorporated as the
Aligarh Muslim University.
An Act to establish and incorporate An Act to incorporate a teaching
a teaching and residential Muslim and residential Muslim University
University at Aligarh. at Aligarh.
WHEREAS it is expedient to WHEREAS it is expedient
establish and incorporate a teaching to incorporate a teaching and
and residential Muslim University residential Muslim University
at Aligarh, and to dissolve the at Aligarh, and to dissolve the
Societies registered under the Societies registered under the
Societies Registration Act, 1860 Societies Registration Act, 1860
(21 of 1860), which are respectively (21 of 1860), which are respectively
known as the Muhammadan Anglo- known as the Muhammadan Anglo-
Oriental College, Aligarh, and the Oriental College, Aligarh, and the
Muslim University Association, and Muslim University Association, and
to transfer to and vest in the said to transfer to and vest in the said
University all properties and rights of University all properties and rights of
the said Societies and of the Muslim the said Societies and of the Muslim
University Foundation Committee; University Foundation Committee;
2024 [2024] 11 S.C.R.

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5. Powers of the University— The 5. Powers of the University— The
University shall have the following University shall have the following
power, namely:- power, namely:-
xxx xxx
2 (c) to promote especially the
educational and cultural advancement
of the Muslims of India;

239. From a perusal of the same, it is clear that through a legislative
device, the question as to who established the AMU, was sought
to be laid out. As stated above, the legislative declaration as to
the fact of establishment or incorporation, while relevant, cannot
be sole basis of the enquiry required under Article 30. Further, the
said amendments may have been without any controversy had the
fact as to who established the AMU in 1920 was not already finally
decided by this Court in Azeez Basha [supra]. The limitations
of the Legislatures, in rendering questions of fact decided by the
Court nugatory through a legislative device, would be decided by
the regular bench.

M.2 The Constitution and the question of surrender of rights
240. Once the amendments have been discussed, it is important to
note the coming in to force of the Constitution and the effect it had
on the rights claimed. The parties defending the judgment of the
High Court asserted, on the basis of Durgah Committee [supra],
and the reliance placed in Azeez Basha [supra], that the right to
administer was relinquished in 1920 itself and it cannot be revived
subsequent to the advent of the Constitution, as it was complete
at a juncture when fundamental rights were not operative. Further
it was argued that the fundamental rights surrendered prior to the
Constitution, cannot be revived after the advent of the Constitution
[See Sri Jagadguru Kari Basava Rajendraswami of Govimutt v.
Commr. of Hindu Religious and Charitable Endowments, (1964)
8 SCR 252; Rabindranath Bose v. Union of India, (1970) 1 SCC
84; Guru Datta Sharma v. State of Bihar, (1962) 2 SCR 292].
241. On the other hand, the parties challenging the judgment of the High
Court, placed reliance on St Xavier’s [supra] and KS Puttaswamy
(Privacy-9 J.) v. Union of India, (2017) 10 SCC 1, to assert that
the fundamental rights cannot be surrendered. It was also argued
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Aligarh Muslim University v. Naresh Agarwal & Ors.

that the events prior to 1920 and the establishment process which
culminated in to the 1920 Act, could not have taken away the minority
character in the name of legislative recognition as a University.
242. It is necessary to clarify at this juncture that it cannot be said that the
fundamental rights can be surrendered by one generation for it to
be extinguished from utilization by another generation. Fundamental
rights are the bedrock of the Constitution and the Republic and must
be perennial and continuing in nature.
243. Further, it is a well-established legal principle that fundamental rights
do not possess retrospective effect, and actions that were concluded
before the enactment of the Constitution cannot be revisited. In
Keshavan Madhava Menon v. State of Bombay, (1951) SCR 228,
it was noted as under:
“As already explained, Article 13(1) only has the effect
of nullifying or rendering all inconsistent existing laws
ineffectual or nugatory and devoid of any legal force
or binding effect only with respect to the exercise
of fundamental rights on and after the date of the
commencement of the Constitution. It has no retrospective
effect and if, therefore, an act was done before the
commencement of the Constitution in contravention of
any law which, after the Constitution, becomes void with
respect to the exercise of any of the fundamental rights,
the inconsistent law is not wiped out so far as the past act
is concerned, for, to say that it is, will be to give the law
retrospective effect.… So far as the past acts are concerned
the law exists, notwithstanding that it does not exist with
respect to the future exercise of fundamental rights.”
Similarly in Pannalal Binjraj v. Union of India, 1957 SCR 233 it
was noted that :
“It is settled that Article 13 of the Constitution has no
retrospective effect and if, therefore, any action was
taken before the commencement of the provisions of any
law which was a valid law at the time when such action
was taken, such action cannot be challenged and the law
under which such action was taken cannot be questioned
as unconstitutional and void on the score of its infringing the
fundamental rights enshrined in Part III of the Constitution”
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244. In the absence of any application of Article 30 in 1920, there was no
inherent fundamental right to establish a minority institution and neither
was there a requirement on the State to provide any recognition to
any institution. The argument of the parties defending the judgment
of the High Court claiming that the right was “surrendered” by the
minority community in 1920 is misplaced. It erroneously assumes
that there existed any right in the decade of 1910-1920 when the
events concerning establishment of the AMU took place. There is no
question of surrendering any right as no such right, even in context
of MAO College, ever existed as the British Indian Government was
a supreme Imperial power in the country and no person living in India
had any constitution-based rights nor was there any such concept.
The entirety of the landscape was a function of the largesse of the
Executive or the Legislative powers of the British Indian Government
and its bodies. Thus, the question of surrender is illusory and does
not arise in the present case.
245. Indeed, fundamental rights could not have been surrendered after
26.01.1950 however, if some events have already happened prior
to the same, it is not possible to re-interpret such factual events in
a different or a purportedly constitutionally compliant manner. The
facts of history cannot be changed by the advent of the Constitution.
246. It is important to clarify at this stage that the said proposition does not
entail that pre-Constitution enactments, even enactments providing
for taking over of institutions [religious or educational] by the then
Legislatures, would be free from the vice of unconstitutionality. The
said statutes would always be subject to the overarching constitutional
rights and subject to the rigours of Article 13. The present case
therefore, does not concern surrender of “rights” rather involves a
holistic survey of events leading up to the 1920 Act.

N. The De-facto and safe haven argument
247. It has also been argued by the parties challenging the judgment
of the High Court that de-facto, the important authorities like the
members of the ‘Court’ and the Vice-Chancellors of the University
have been from the minority community. On the basis of the same,
it is asserted that the while after 1951, there may not have been a
specific requirement for the ‘Court’ to be consisting of the minority
community, in reality, the members from the minority community
have been appointed in most cases. The same has been read to
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be a pointer towards the minority character of the institution. On the
other hand, the parties defending the judgment of the High Court
highlighted that once there exists no such requirement in law, it
would be erroneous to base a conclusion on the basis of practice.
248. As a matter of law, a practice or a chance occurrence would not be a
factor in deciding the nature of the institution and certainly not relevant
to decide the question of establishment. If the institution is not held
to have been established by a minority, if by some reason, persons
of one community have manned the positions in the administration in
an institution, the same would not ascribe character to the institution.
For example, if a secular institution was established by a group of
persons [which were not predominantly of the minority community],
if for some reasons, the Principal/Director of the institution has been
from one minority community, the said occurrence could not be said
to be enough to declare the institution to be a minority institution.
The de-facto position of the AMU, with regard to the electors in the
‘Court’, the ‘Court’ or the Vice-Chancellors, would therefore not be
the deciding factor for the purpose of the Article 30 question.
249. Apart from the above, it was also asserted that the AMU has, over
the years, provided the minorities a haven to gain knowledge in
the country, and declaration as a non-minority institution, would be
highly detrimental to the same. The said argument, apart from being
constricted in approach, is evidently contradictory.
250. The AMU, from the time of its establishment, has never had any sort
reservations on the basis of religion all the way up till 2005, which
was the first time the said exercise was sought to be carried out.
Further, the AMU, after the declaration in Azeez Basha [supra], at
least till 1981 and arguably even thereafter, was always considered to
be a non-minority institution. The contention that the AMU serves the
interests of the minority community and denial of the protection under
Article 30 would jeopardise the same, ignores the fact that the AMU,
without being recognized as a minority institution or implementing
religion-based reservations for an entire century, has served such
a purpose. Therefore, asserting minority status and advocating for
religious reservations based on the university’s historical contributions
to the minority community, appears to be self-contradictory.
251. At this juncture it is also important to deal with another submission to
the effect that ‘neutral’ institutions or non-minority institutions would
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in the natural course of things be-‘majoritarian’. It was asserted that
since such neutral institutions tend to be driven by the assumptions,
leanings, and priorities of the majoritarian groups/cultures, Article 30
contemplates constitutionally protecting certain educational spaces
from such ‘majoritarianism-by-default’, guarding their minority
character and priorities.
252. The said assertion completely misconstrues the purpose of Article 30
and the nature of non-minority or neutral institutions in the country.
The purpose of Article 30 is not to create ‘minority only’ ghettos
rather provide positive rights to the minorities to establish educational
institutions of their choice and kind. Article 30, as a feature of the
Constitution, provides important rights which function within the
larger penumbra of fundamental rights. There is substantial interplay,
intermixing and balancing of rights inter se within the fundamental
rights.
253. The Constitution, specifically under the fundamental rights chapter,
provides for other rights such as Article 14 [right against arbitrariness],
Article 15 [right to equality], Article 16 [right to equality in matters of
public employment], Article 19 [fundamental freedoms], Article 21 [right
to life and liberty and dignity], Article 21A [right to education], Article
25 [freedom of religion], Article 26 [freedom of religious institutions],
etc, all of which contain shades of protection, equality and freedoms,
available to minorities as well. Article 30, and the rights contained
thereunder, are therefore, not absolute and certainly do not exist in a
silo. The other fundamental rights under Chapter III of the Constitution
colour the interpretation of Article 30 and vice versa. In this regard,
certain paragraphs of the judgement in TMA Pai [supra] would be
crucial and require reproduction as under :
“148. Both Articles 29 and 30 form a part of the fundamental
rights chapter in Part III of the Constitution. Article 30 is
confined to minorities, be it religious or linguistic, and unlike
Article 29(1), the right available under the said article cannot
be availed by any section of citizens. The main distinction
between Article 29(1) and Article 30(1) is that in the former,
the right is confined to conservation of language, script
or culture. As was observed in Father W. Proost case
the right given by Article 29(1) is fortified by Article 30(1),
insofar as minorities are concerned. In St. Xavier’s College
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case it was held that the right to establish an educational
institution is not confined to conservation of language, script
or culture. When constitutional provisions are interpreted,
it has to be borne in mind that the interpretation should
be such as to further the object of their incorporation.
They cannot be read in isolation and have to be read
harmoniously to provide meaning and purpose. They
cannot be interpreted in a manner that renders another
provision redundant. If necessary, a purposive and
harmonious interpretation should be given.
xxx
137. It follows from the aforesaid decisions that even though
the words of Article 30(1) are unqualified, this Court has
held that at least certain other laws of the land pertaining
to health, morality and standards of education apply. The
right under Article 30(1) has, therefore, not been held
to be absolute or above other provisions of the law,
and we reiterate the same. By the same analogy, there
is no reason why regulations or conditions concerning,
generally, the welfare of students and teachers should not
be made applicable in order to provide a proper academic
atmosphere, as such provisions do not in any way interfere
with the right of administration or management under
Article 30(1).
138. As we look at it, Article 30(1) is a sort of guarantee or
assurance to the linguistic and religious minority institutions
of their right to establish and administer educational
institutions of their choice. Secularism and equality being
two of the basic features of the Constitution, Article
30(1) ensures protection to the linguistic and religious
minorities, thereby preserving the secularism of the country.
Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be framed
that will discriminate against such minorities with regard
to the establishment and administration of educational
institutions vis-a-vis other educational institutions. Any
law or rule or regulation that would put the educational
institutions run by the minorities at a disadvantage when
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compared to the institutions run by the others will have
to be struck down. At the same time there also cannot
be any reverse discrimination. It was observed in St.
Xavier’s College case at SCR p. 192 that: (SCC p. 743,
para 9)
“The whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality
between the majority and the minority. If the minorities
do not have such special protection they will be denied
equality.”
In other words, the essence of Article 30(1) is to ensure
equal treatment between the majority and the minority
institutions. No one type or category of institution should
be disfavoured or, for that matter, receive more favourable
treatment than another. Laws of the land, including
rules and regulations, must apply equally to the majority
institutions as well as to the minority institutions. The
minority institutions must be allowed to do what the non-
minority institutions are permitted to do.”
254. Article 30, therefore, is a reinstatement of constitutional values of
Chapter III, specifically in the context of educational institutions. It
is clear that the crux of Article 30(1) lies in its mandate to ensure
parity between non-minority [or ‘neutral’] institutions and minority
institutions. Its fundamental aim is to prevent any form of discrimination
or preferential treatment, thereby advocating for equal treatment
under the law for one and all. This provision underscores that no
specific category or type of institution should be disadvantaged or
unduly favoured over another within the legal framework.
255. In this light, and under the mandate of TMA Pai [supra], to assert
that the neutral institutions are majoritarian by nature, would be ignore
the mandate of other provisions of the Constitution which specifically
provide for equal treatment for all, protect secularism and diversity
and protect individuals and communities against arbitrariness.

O. The UGC Act and Yashpal
256. In relation to the UGC Act, the parties challenging the judgment
of the High Court relied upon Section 2(f), Section 3, Section 22,
and Section 23, read with the judgment in Prof. Yashpal v. State
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of Chhattisgarh, (2005) 5 SCC 420, to assert that universities are
necessarily created and chartered through legislative enactments.
As per the said provisions, the institutions established in that
manner only are legally authorized to utilize the term “University” in
their names and confer degrees. Taking this further, it was argued
that, if the judgement in Azeez Basha [supra], which holds that if
any institution is established by virtue of the statute, cannot be a
minority institution, because a University has to be established by
and under a statute, no University can ever be conferred the status
of a minority institution.
257. As already concluded hereinabove, the judgment in Azeez Basha
[supra] ought to be understood in its historical context and does
not lay down a proposition that whenever a University is established
by way of an enactment, it cannot be a minority institution. The
assertion that the establishment and incorporation of a university
through legislation inherently preclude it from being classified as a
minority institution is unfounded. Such a contention arises from a
misinterpretation of the decision in Azeez Basha [supra], which was
specific to a particular statute and addressed a legislative framework
predating the Constitution, enacted by a colonial authority.
258. It was noticed in Yashpal [supra] that a university lacking infrastructure
or educational facilities would still have the authority to grant degrees,
potentially resulting in significant disorder in coordinating and upholding
standards in higher education, which could detrimentally affect the
entire nation. Therefore, it was in the larger public interest that
this Court, held that the establishment of a university by the State,
exercising its sovereign power, ought to occur through a legislative
enactment. It held that insofar as private universities are concerned,
“established or incorporated” should be read conjunctively and further
that “a private university can only be established by a separate Act or
by one compendious Act where the legislature specifically provides
for establishment of the said university”.
259. It can be seen through various enactments 8 that universities
are established by the ‘sponsor’ who designs the administrative

8 See The Amity University Uttar Pradesh Act, 2005; The Galgotias University Uttar Pradesh Act, 2011; The
Bennett University, Greater Noida, Uttar Pradesh Act, 2016; The Mohammad Ali Jauhar University Act,
2005; The Era University, Lucknow, Uttar Pradesh Act, 2016; Maulana Azad University, Jodhpur Act, 2013.
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framework, considering the minimum requirements outlined in the
regulations. The “sponsor”, typically a society, also arranges the
necessary properties, including land and buildings. Subsequently, the
University may either be recognized as deemed to be a university
under Section 3 of the UGC Act, or it may be formally established and
incorporated on behalf of the sponsor through a statutory enactment.
260. As stated above, there exists substantial legislative frameworks
of minority Universities established by statute. The said statutes
highlight the predominantly minority orientation of these institutions
with peripheral non-minority elements. As stated above, the said
legislative enactments and their examination reveals that a significant
level of autonomy was retained by the sponsoring entity, with pivotal
decision-making authority vested therein. In some instances, specific
provisions were made for religion-based reservations as well through
the legislation itself. Therefore, the appropriate Legislature, in its
wisdom, can certainly establish, incorporate, or recognize a minority
University, and include appropriate provisions to imbue the University
with a minority identity. Therefore, the UGC Act or the judgment
in Yashpal [supra], in no manner, come to the aid of the parties
challenging the correctness of the judgment in Azeez Basha [supra].

P. NCMEI Act and the amendment
261. According to the parties challenging the judgement of the High
Court, the error that since a University requires a statute for
establishment and statutory establishment renders such University
to be non-minority, was furthered under the National Commission
for Minority Educational Institutions Act, 2004 (hereinafter referred to
as the “NCMEI Act”). The said enactment and its definition clause,
excluded universities from being certified as ‘Minority Educational
Institution’. From 2004-2010, the NCMEI Act defined the word “minority
educational institution” as under-
“(g) “Minority Educational Institution” means a college
or institution (other than a University) established or
maintained by a person of group of persons from amongst
the minorities;”
262. Subsequently in 2010, the said definition was amended on two
counts : one, the phrase other than a University was deleted and
two, the words established and administered was put in the clause
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taking cue from Article 30. The statement of the Hon’ble Minister
while moving the said amendment is illustrative in this regard. The
relevant portion is quoted as under :
“24.02.2009
THE MINISTER OF STATE IN THE MINISTRY OF HUMAN
RESOURCE DEVELOPMENT (SHRI M.A.A. FATMI):…
In Section 2 of the Bill, two amendments are proposed
in clause (g). First is to do away with the exclusion of
Universities in the definition of “Minority Educational
Institutions”. The second proposal is to substitute the
words “or maintained by” with the words “and administered
by”. The existing exclusion of a University from the
definition of a minority educational institution runs
counter to the law laid down by the Supreme Court
of India vide Azeez Basha V. Union of India (A.I.R.
1968) substitution of words “or maintained by” with
the words “and administered by” Several complaints
were received to the effect that non-minorities were
advertising the institutes as established by the
minorities. Through this amendment this defect is sought
to be removed by providing that the institutions should be
both established and administered by a person or group
of persons belonging to the same minorities. This will
also conform to the language used in Article 30 of the
Constitution.”
263. Therefore, the amendment in the NCMEI Act provides that
Universities can be considered under the provisions of the NCMEI
Act and further, there exists a twin requirement of “establishment”
and “administration” for claiming minority status in line with Azeez
Basha [supra].
264. According to the parties challenging the judgement of the High Court,
since the provisions of the NCMEI Act as amended in 2010 clearly
recognize that a University can be a minority institution in terms of
Article 30 and post Yashpal [supra], since a university can only
be established by a statute, the purported finding in Azeez Basha
[supra] that a university established and incorporated by a statute
cannot be held to be “established” by a minority community for the
purposes of Article 30, is erroneous.
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265. As stated above, the said assertion is also a product of the erroneous
understanding of the judgment in Azeez Basha [supra]. It is reiterated
that the judgement in Azeez Basha [supra] does not lay down a
proposition that established and incorporated by a statute cannot be
held to be “established” by a minority community for the purposes
of Article 30. The judgement in Azeez Basha [supra] ought to be
understood in its historical context and does not lay down a proposition
that if a University is established by way of a legislative enactment, it
cannot be a minority institution. In light of the above, the amendment
in the NCMEI Act does not come to the aid of the parties questioning
the correctness of the decision in Azeez Basha [supra].

Q. Conclusions
266. In light of the above, the following conclusions can be recorded :
i. The bench of two judges in Writ Petition No.54-51 of 1981 titled
Anjuman-e-Rehmania & Ors v. Distt. Inspector of School
& Ors. could not have referred the matter to a bench of seven
Hon’ble Judges directly, without the Hon’ble Chief Justice of
India, being a part of the bench.
ii. The “establishment” of an institution by the minority is necessary
for the said minority to claim right of administration under
Article 30. The words “establish” and “administer” are used
conjunctively in Article 30 of the Constitution.
iii. The term “establish” in Article 30 means “to bring into existence
or to create” and cannot be conflated with generic phrases
such as “genesis of the institution” or the “founding moment
of the institution”.
iv. The real positive indicia for determining the question of
establishment of an institution would have to be developed on a
case to case basis with the following broad parameters in mind :
i. Firstly, to claim “establishment”, the minority community
must actually and tangibly bring the entirety of the
institution into existence. The role played by the minority
community must be predominant, in fact almost complete
to the point of exclusion of all other forces. The indicia
which may be illustrative and exhaustive in this regard
may be the nature of the institution, the legal/statutory
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basis required for establishing the institution, whether
the establishment required any “negotiation” with outside
forces, the role in acquiring lands, obtaining funds,
constructing buildings, and other related matters must
have been held completely by the minority community.
Similarly, while teachers, curriculum, medium of instruction,
etc. can be on secular lines, however, the decision-making
authority regarding hiring teachers, curriculum decisions,
medium of instruction, admission criteria, and similar
matters must be the minority community. The choice of
having secular education in the institution must be made
expressly by the minority community, demonstrating
the link between institution and the persons claiming to
establish it.
ii. Secondly, the purpose of the institution must have been to
predominantly serve the interests of the minority community
or the sole betterment of the minority community,
irrespective of the form of education provided and the
mode of admission adopted. Therefore, as per the choice
of the minority community, an institution may have secular
education, but such secular education and the resultant
institution, must be predominantly meant for the overall
betterment of the minority community.
iii. Thirdly, the institution must be predominantly administered
as a minority institution with the actual functional, executive
and policy administration vested with the minority. The
minority community should determine the selection, removal
criteria, and procedures for hiring teaching, administrative
staff, and other personnel. The authority to hire and fire
staff must be from the minority community. Further, even
if teaching or administrative staff may include non-minority
persons, the final authority exercising functional, directional,
and policy control over these authorities must be from
the minority community. This ensures that the thoughts,
beliefs, and ideas of the minority community regarding
administration are implemented in reality. This represents
the real decision-making authority of the institution being
of the minority community.
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In ascertaining the above, it would be open for the Court to
look at the true purpose behind each of the above factors
and to pierce the veil.
iv. The notion that Azeez Basha [supra] categorically
prohibits minorities from establishing universities due
to statutory requirements is unfounded. The bench in
Azeez Basha [supra] and present bench are faced with a
unique situation and needs to adopt a suitably modulated
approach. The judgment in Azeez Basha [supra] does
not preclude minorities from establishing universities but
rather highlights the importance of legislative intent and
statutory provisions in determining an institution’s character.
v. The minority community may conceptualize the idea of
an institution and may advocate for the same, however,
if during exchange or negotiation, the actual institution
which was established had primacy of governmental efforts
and control, then such institution cannot be held to be
predominantly established by the efforts and actions of
the minority community.
vi. In the pre-independence and pre-UGC era, in the absence
of a provision like Section 23 of the UGC Act, 1956, it
was open for any institutions to adopt the titles such
as “university” or in some cases “vidyapeeth” or “jamia”
asserting their capability to grant degrees. The absence
of a legislative embargo from private establishment of
Universities prior to 1956 would be critical for the scope
of enquiry.
vii. The use of the phrase ‘establish and incorporate’ by the
Legislature may be relevant in the larger enquiry but cannot
be said to be conclusively determinative of the factum of
establishment or not by the minority community. If the
intention of the Legislature is to establish or incorporate
or recognise a minority University, the Legislatures have
incorporated suitable provisions to colour the University
with a minority identity.
viii. There were no rights, fundamental or otherwise, prior to
the Constitution coming into force and therefore, there is
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no question of surrendering any right. The British Indian
Government was a supreme Imperial power in the country,
and the question of surrender is illusionary and does not
arise in the present case. The coming into force of the
Constitution and fundamental right after 1950, cannot alter
the events that occurred during the decade of 1910-1920
which led to the establishment of the AMU.
ix. There is no legal requirement for the AMU ‘Court’ to be
manned by the people from the minority community ever
since 1951 and therefore, merely because de facto the
persons from the minority community may have manned the
posts in the institution, would not be relevant to adjudicate
the question.
x. The assertion that ‘neutral’ institutions or non-minority
institutions would in the natural course of things be
‘majoritarian’ or that Article 30 contemplates constitutionally
protecting certain educational spaces from such
‘majoritarianism-by-default’ tendencies, is wholly erroneous.
The purpose of Article 30 is not to create ‘minority only’
ghettos rather provide positive rights to the minorities to
establish educational institutions of their choice and kind.
xi. Article 30, as a feature of the Constitution, provides
important rights which function within the larger penumbra
of fundamental rights. There is substantial interplay,
intermixing and balancing of rights inter se within the
fundamental rights and Article 30 is not absolute and
certainly do not exist in a silo.
xii. The crux of Article 30(1) lies in its mandate to ensure parity
between non-minority [or ‘neutral’] institutions and minority
institutions. Its fundamental aim is to prevent any form of
discrimination or preferential treatment to non-minority
communities, thereby advocating for equal treatment
under the law for one and all. This provision underscores
that no specific category or type of institution should be
disadvantaged or unduly favoured over another within the
legal framework.
xiii. To assume that the minorities of the country require some
‘safe haven’ for attaining education and knowledge is
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wholly incorrect. The minorities of the country have not
just joined the mainstream but comprise an important
facet of the mainstream itself. The institutions of national
character of the country always serve the interests of the
minorities and are diverse centers of learning.
xiv. The UGC Act or the judgment in Yashpal [supra], in no
manner, comes to the aid of the parties challenging the
correctness of the judgment in Azeez Basha [supra].
xv. The amendment in the NCMEI Act does not come to
the aid of the parties questioning the correctness of the
decision in Azeez Basha [supra].
267. The reference is answered in the above terms. The matters may
be placed before an appropriate bench as per the prevailing rules.

Result of the case: Reference Answered.

†
Headnotes prepared by: Bibhuti Bhushan Bose