Why Supreme Court Must Review The AMU Judgment

The seven-judge bench fractured 4:3. The majority, led by the then Chief Justice D.Y. Chandrachud and joined by Justices Sanjiv Khanna, J.B. Pardiwala, and Manoj Misra, overruled Azeez Basha, held that statutory incorporation does not automatically strip an institution of its minority character, replaced Azeez Basha's framework with a new tripartite test of ideation, purpose, and implementation, and referred the actual factual determination of AMU's status to a regular bench. The three dissenters, Justices Surya Kant, Dipankar Datta, and Satish Chandra Sharma, each writing separately, held that Azeez Basha was correctly decided, and that AMU does not qualify as a minority institution. Surya Kant J and Sharma J went further and held that the reference to the seven-judge bench was itself procedurally impermissible. The majority will shape the law going forward. But the minority opinions, read together, constitute a sustained and serious argument that the majority got the foundational questions wrong, on procedure, on precedent, on history, and on constitutional architecture. That argument deserves a full hearing.

The Problem Before the Problem

Before reaching Article 30, both Surya Kant J and Sharma J identify something more fundamental. The entire seven-judge reference was, in their view, procedurally impermissible from the start.

In 1981, a two-judge bench doubted the correctness of the five-judge bench in Azeez Basha and referred the matter directly to a seven-judge bench. The Constitution Bench in Central Board of Dawoodi Bohra Community had already held clearly that a smaller bench cannot leapfrog the hierarchy this way. The route goes through the Chief Justice, who is master of the roster. The two-judge bench in Anjuman-e-Rahmaniya ignored this entirely. Surya Kant J is unsparing - such a reference violates the doctrine of predictability, the doctrine of finality, judicial propriety, and stare decisis simultaneously. Sharma J, in his conclusions, is equally direct, holding that the two-judge bench simply could not have made that reference without the Chief Justice being part of it.

Surya Kant J adds a point the majority does not satisfactorily answer. There is no meaningful distinction between "doubting" a larger bench decision and "disagreeing" with it. Both involve a tentative opinion in conflict with reasons already assigned by a larger bench. One cannot disagree without doubting and one cannot doubt without disagreeing. The verbal distinction the original reference tried to draw was always illusory.

The majority's answer is that a subsequent 2019 reference, in which the then Chief Justice was presiding, cured the defect. Surya Kant J is unconvinced, and the logic of his position is sound. A jurisdictionally infirm originating reference does not become valid simply because it was later acted upon. This is not a technicality. The stare decisis discipline that prevents smaller benches from unilaterally unsettling larger bench decisions is the foundation of Article 141, that keeps the Supreme Court's precedential architecture intact. Once that discipline is relaxed, any bench can potentially disrupt settled law.

The Conflict That Wasn't

The majority's substantive justification for overruling Azeez Basha rested on two alleged conflicts: that Azeez Basha had ignored the seven-judge bench in Kerala Education Bill, and that it had failed to follow the six-judge bench in Sidhajbhai Sabhai. Surya Kant J examines both and finds neither survives scrutiny.

On Kerala Education Bill, Azeez Basha had expressly followed it, holding that Article 30 protection extends to pre-Constitution institutions, precisely what Kerala Education Bill had said. There is no daylight between them. On Sidhajbhai Sabhai, the position is starker. That judgment was not cited in Azeez Basha because it was simply not relevant to the controversy before that bench. More critically, Sidhajbhai Sabhai's central holding, that Article 30 is absolute and unconditional, had been expressly disapproved by the eleven-judge bench in TMA Pai Foundation. It was already a dead precedent before Azeez Basha ever needed to engage with it. Azeez Basha thus cannot be faulted for not following a judgment a larger bench had already overruled.

Surya Kant J goes further. On the specific and narrow question of Section 6 of the AMU Act 1920, which provided for government recognition of AMU degrees, he agrees with the majority that Azeez Basha's reasoning needed modification and clarification. But modification is not overruling. The surgical correction the majority could have made did not require dismantling the entire edifice of a sixty-year constitutional precedent.

If there was no real conflict between these decisions, the predicate for overruling Azeez Basha collapses entirely. The majority overruled a sixty-year constitutional precedent to resolve a doctrinal tension that, on careful reading, did not actually exist.

"Establish" Cannot Mean "Found"

At the heart of the majority's new framework is an expansive reading of "establish" in Article 30(1), treated as broad enough to encompass conceiving, campaigning for, and taking steps toward an institution, even if its actual legal existence came through parliamentary statute. Both Dipankar Datta J and Satish Chandra Sharma J take direct issue with this.

Datta J's point is textual and precise. If the framers had meant "to found," they would have said "to found." The Constitution says "to establish." These are not synonyms. To establish is to bring into formal legal existence. To found is to conceive, to originate, to be the moving spirit behind. The framers were precise people who did not accidentally use one word when they meant another. Reading "establish" as "found" does not expand a constitutional right. It rewrites a constitutional text. He asks: if "establish" were meant to be read as "found," why did the framers not use "to found" instead, or use both words together? The silence is telling.

Sharma J adds a structural dimension. Schools and colleges could be privately created in the pre-independence era. Universities could not. In the absence of the UGC Act, which came only in 1956, establishing a university required state action as a matter of legal necessity. To treat a university brought into existence through parliamentary statute on the same footing as a privately established college, for the purpose of determining minority character, is to ignore a foundational distinction in how these institutions came into being. The very nature of a university in that era made state action not incidental but constitutive. Sharma J also makes a point about legislative intent: where a legislature intends to establish or recognise a minority university, it incorporates suitable provisions to colour the institution with a minority identity. The AMU Act 1920 contains no such provisions.

Datta J draws the BHU-AMU parallel with considerable force. The Hindu community too had aspirations for a university and negotiated with an imperial government unwilling to surrender control. The Hindus relented and BHU was established in 1915 on the government's terms. The Muslims sought something similar and AMU came into being in 1920 on comparable terms. In both cases there was what Datta J calls a total relinquishment of control. The Governor-General became the Rector of AMU. Public land was used. Public money was deployed. The thirty lakhs the Muslim community had committed was not spent on establishing the university but kept as a reserve fund. Nobody seriously argues that BHU is a Hindu institution. The parallel with AMU is, on the historical record, uncomfortably close.

History Cannot Be Reconstructed by Indicia

The majority replaces Azeez Basha with the ideation-purpose-implementation test. A regular bench must now determine, from a historical record over a century old, whether the idea for AMU originated with the Muslim minority, whether it was established predominantly for that community's benefit, and whether implementation steps were taken by community members.

Datta J's response is the most philosophically searching part of the entire minority. Courts are custodians of truth, not manufacturers of it. No one can claim with certainty that the entirety of the correspondence, negotiations, and incidents that preceded AMU's establishment have been placed before the Court with complete accuracy. Asking a bench sitting in 2025 to reconstruct who "established" an institution founded in 1920, using a freshly minted test, on inevitably incomplete historical evidence, is not constitutional interpretation. It is, as Datta J calls it without apology, historical revisionism. Facts cannot be created by the stroke of a pen, and to attempt to do so a hundred years later is a misguided endeavour.

He raises a deeper conceptual problem. The category of minority in the constitutional sense did not exist before 1950. Article 30's protective logic was designed for a post-Constitution world where defined minorities needed shelter from majoritarian democratic pressure. Before independence, every Indian, Hindu or Muslim, was a subject of colonial rule. The concept of a minority being protected from a majority had no operative constitutional meaning in that context. Extending Article 30 backwards to an institution whose founding predates the very constitutional category it is now being asked to inhabit stretches the provision well beyond its purpose.

Sharma J's indicia framework is the most granular account of what genuine minority establishment actually requires. The community's role must be predominant and near-exclusive, covering ideation, land acquisition, funding, construction, curriculum decisions, hiring authority, and real administrative control. Where establishment required negotiation with an imperial government that retained ultimate control at every significant point, the resulting institution cannot honestly be described as the minority's creation. He adds that where the actual institution established had primacy of governmental effort and control, even if the minority community had conceptualised the idea and advocated for it, the institution cannot be held to have been predominantly established by that community.

The Constitutional Architecture the Majority Skips

Surya Kant J raises a point about Entry 63 of List I of the Seventh Schedule that the majority does not adequately address. The Constituent Assembly itself constitutionally designated both BHU and AMU as institutions of national importance. This is not a parliamentary declaration. Parliament can add other institutions to this category under the second component of Entry 63 but cannot, without a constitutional amendment, remove the status the Constituent Assembly has already conferred. AMU carries a constitutional identity that is distinct from and prior to any claim it might make under Article 30. The majority's framework, which treats AMU's character as an open factual question for a regular bench, sits uneasily with a constitutional text that has already given AMU a specific and elevated designation.

Datta J builds on this through Article 12. AMU is unambiguously a State within the meaning of Article 12. It is entirely dependent on Union finances, governed by the AMU Act, and bound by all fundamental rights obligations including Article 29(2), which prohibits denial of admission on grounds of religion. An institution that is simultaneously a constitutional public authority bound by Article 29(2) and a minority institution claiming the autonomy Article 30 confers creates a structural tension the majority does not resolve. It simply sends it downstream to the regular bench.

He takes the point further through Article 15 and the SC/ST reservation question. If AMU acquires minority status, the reservation entitlements of Scheduled Caste and Scheduled Tribe students in its seats come under direct pressure. Reservation is not a concession. It is an instrument of substantive equality, a correction for the deepest historical injustices the Constitution sought to address. The framers who designed Article 30 were the same people who designed Article 15 and were acutely aware of both. To expand Article 30 in a way that contracts the reach of Article 15 is to pit two constitutional commitments against each other in a way the framers did not intend.

Sharma J adds that Article 30 is not an absolute right and does not exist in a silo. It operates within the larger penumbra of fundamental rights where Articles 14, 15, 19, 21, and 29(2) all have claims. The purpose of Article 30 is to ensure parity, to prevent discrimination against minorities in establishing educational institutions, not to create constitutionally protected enclaves from which the broader obligations of the constitutional order can be excluded. A neutral institution is not a majoritarian institution by default. The minorities of Bharat are not a beleaguered remnant requiring separate educational safe havens. They are, as Sharma J observes, an integral and important part of the national mainstream.

What the Regular Bench Inherits

The bench that must now decide AMU's actual status faces a genuinely difficult task. It must apply the majority's ideation-purpose-implementation framework to a historical record that is over a century old, partially documented, and deeply disputed. It must navigate the unresolved collision between Article 30(1) and Article 29(2). It must reckon with AMU's Article 12 status and its implications for reservation. And it must do all of this in the shadow of a 4:3 verdict whose procedural foundations two of the three dissenters found impermissible.

Three judges, writing separately, arrived at the same destination by different routes. The reference was procedurally suspect. The conflict that justified overruling Azeez Basha was, on careful reading, imaginary. The word "establish" cannot be stretched to mean "found" without rewriting the constitutional text. The majority's new test is historically unworkable. And AMU's institutional character, shaped by statute, constitutional designation, complete state dependence, and Article 12 status, does not fit comfortably into the minority institution template now being applied to it.

A 4:3 verdict that overrules sixty years of precedent on the strength of a questionable reference, to resolve a conflict the dissenters find non-existent, using a test they consider historically unworkable, is not a judgment that should ordinarily be allowed to settle as a precedent. The three dissents are reasoned serious arguments that the majority got the foundational questions wrong. That argument deserves to be heard, and before the regular bench is constituted, a review of the judgment is warranted.

Author is an Advocate practicing in the Supreme Court of India.

[The opinions expressed in this article are those of the author.]