The Supreme Court’s AMU Minority Status Judgement: A Note On Datta J.’s Theory of Implied and Express Indicia

Rajyavardhan Singh*

Minority institutions in India are educational establishments established and administered by religious or linguistic minorities. To be designated as one, applicants submit an application to the relevant authority, i.e., typically established by the state government. Recently, the Supreme Court, in Aligarh Muslim University Through its Registrar Faizan Mustafa v. Naresh Agarwal, in a seven-judge Constitutional bench, overruled S. Azeez Basha v. Union of India and held that an institution must meet both requirements—"established" and "administered"—and therefore be read conjunctively, not disjunctively, to qualify as a "minority institution" under Article 30(1) of the Constitution. The Court rejected the assertion that an institution cannot possess a minority character if it originates from a legal statute. Additionally, the Court established specific indicia to assess whether an institution (including a university) could be recognised as a minority institution.

The judgment aimed to address the specific indicia for determining minority status, which had remained an unresolved question since the reference in T.M.A. Pai Foundation v. State of Karnataka. Question 3(a) formulated in T.M.A. Pai Foundation asked:

"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 because it is administered by a person(s) belonging to a religious or linguistic minority?"

Regrettably, despite being formulated, the question was left unanswered by both the Constitutional Bench in T.M.A. Pai and the Regular Bench that followed on March 11, 2003 (see Order referring the AMU minority case to a larger bench). Thus, the correctness of the question arising from S. Azeez Basha had remained unanswered. In this very pursuit, the majority opinion in the AMU case established three specific tests as indicia for ascertaining minority status: First, tracing the genesis of the institution by identifying the origin of the idea and preliminary sources indicating involvement of the minority community involvement in the ideation of the institution; Second, determining the purpose of establishing the institution; Third, examining steps for implementation, such as funding sources and land acquisition. For further clarity regarding “administration”, the majority noted that it is not "necessary to prove that administration vests with the minority to prove that it is a minority educational institution." Instead, administration follows establishment and is therefore a consequence, not a precondition (the test, therefore, is whether the administration affirms the minority character of the institution).

While much has been written about the judgment (see here, here, here, and here), one aspect that has largely gone unnoticed is Justice Datta's dissenting opinion and his theory of express and implied indicia. He argues that the indicia for determining minority status laid down in the majority opinion should apply prospectively, not retrospectively. This would mean that institutions established before the AMU judgment should not be assessed based on the indicia provided in the CJI's majority opinion. According to him, there was already an implied indicia for determining minority institutions in the past, which the Court is now replacing with an express indicia. Moreover, considering the specific context of AMU, he also contends that tests employed for identifying post-Constitution minority educational institutions cannot be the same as those employed for the identification of pre-Constitution institutions, especially when a college established by the minority is elevated to the status of a university upon establishment and incorporation through a statute. Thereby, implying that such a transformation fundamentally alters the institution's legal character, necessitating a more distinct evaluative framework, that accounts for the role of legislative enactment in its governance and administration.

Critical Significance In Engaging With Datta J.’s Dissent

While dissenting opinions occupy a peculiar position—not  being binding precedent yet being potentially influential for future judicial reasoning—Justice Datta's dissent in AMU v. Naresh Agarwal demands academic scrutiny with particular urgency. His theoretical innovation remains conspicuously unexamined in jurisprudential discourse, as no other judge engaged with the application of the majority established indicia. Thereby, his opinion created an analytical vacuum that risks allowing problematic reasoning to gain traction through uncritical acceptance.

The significance of this void becomes particularly acute when situated within the context of Question 3(a) from T.M.A. Pai Foundation, a fundamental constitutional inquiry that remained unresolved for over two decades until the present judgment. Justice Datta's dissent, therefore, does not merely offer an alternative opinion; it goes on a step further to provide a theoretical framework that, if left uninterrogated, could substantially reconfigure how Article 30 protections are understood and applied across India's educational landscape. The intellectual danger, thus, lies in the dissent’s methodological approach.

Below, I argue that Justice Datta’s theory of implied and express indicia introduces a novel constitutional hermeneutic—one where the timing of an institution’s establishment dictates which interpretive criteria apply, effectively creating two distinct classes of minority institutions with differing constitutional protections. This bifurcation, however, lacks any textual basis in Article 30(1), which imposes no temporal constraints or historical contingencies on its protective scope. By introducing this distinction, the dissent follows a line of reasoning that risks complicating rather than clarifying the framework governing minority institutions.

Logical Inconsistency In Datta J.’s Position

Against Justice Datta’s position, I propose that drawing such a temporal distinction serves little purpose, as it freezes constitutional identity in time—an approach that is logically untenable. Moreover, his concern that prior Constitution Bench decisions might be discredited because of the new express indicia seems misplaced, as the Court is merely giving a concrete form to principles that were always latent in the constitutional text and structure. Thus, the timing of judicial articulation or recognition per se should become inconsequential.

Justice Datta, clarifying his stance on the general indicia that should prospectively govern minority institution assessments, states in paragraph 57:

“Certain broad indicia, which are universally applicable, may be applied prospectively to facilitate identification of minority institutions. However, any indicium or 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 with which each such institution is associated; more so, when AMU is unique in itself and its status is under consideration as a standalone institution.”

If we accept Justice Datta's premise that each institution requires a "tailored evaluation," then drawing a temporal line between implied and express indicia becomes all the more untenable (Note: this is not to suggest that tailored evaluation itself is flawed; rather, the simple point being that drawing this temporal line undercuts the very ‘flexible framework’ he advocates for). This is because the creation of this temporal line freezes constitutional identity in time, disregarding the dynamic and context-sensitive approach necessary for interpreting constitutional guarantees effectively. The idea that new express indicia should apply only prospectively, while pre-existing institutions be assessed under implied criteria, introduces a rigidity that undermines the very principle of nuanced evaluation.

I submit that if an institution does indeed require a “tailored evaluation” based on its unique circumstances, then constraining it to an implied criteria merely due to its time of establishment defeats the very purpose of such an evaluation. A truly nuanced evaluation should consider all relevant criteria, whether implied or express, that help understand the institution's minority character. Further, these express indicia must be understood as merely formal articulations of principles that help identify minority character. Excluding their application from pre-existing institutions would needlessly narrow the scope of analysis, limiting the tools necessary for an accurate evaluation.

Hence, I conclude that (1) the very nature of what constitutes a minority institution’s special features is independent of when these features are judicially recognised; because (2) the characteristics that make an institution ‘minority’ in character do not change simply because they were explicitly articulated by a court at a particular point in time; (3) if express indicia are helpful in evaluating minority character for new institutions, they logically must also be relevant for understanding the minority character of existing institutions, as the fundamental nature of minority character does not change based on when it is evaluated (e.g., if the indicia of establishment and administration apply to a newly established Christian university, they must equally apply to older institutions like Loyola College, which was founded in 1925); (4) this implicit and express division misapprehends the nature of constitutional interpretation. As constitutional interpretation often involves clarifying and refining principles grounded in the text and values underlying the Constitution, rather than inventing entirely new ones (eg. how Indra Sawhney v. Union of India clarified the scope of reservations under Article 16(4), rather than introducing ‘creamy layer’ as a new concept). Similarly, the articulation of specific indicia for identifying minority institutions must be understood as a process of clarification rather than innovation.

A Misguided Pre-Post Constitution Distinction

Having shown that drawing temporal distinctions in evaluating minority character might be an unsound approach, I now argue why pre-Constitution and post-Constitution institutions should be treated alike. Additionally, I briefly address the contention that institutions incorporated through statutes should be assessed under the same framework.

Justice Datta justifies his view that pre-Constitution institutions should be evaluated differently in paragraph 136:

“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 an institution would be inherently contradictory to the terms of such article and susceptible to invalidity.”

The argument that pre-constitutional institutions should be evaluated differently from post-constitutional ones, in many regards, overlooks historical reality. Minority consciousness and the need for educational autonomy did not suddenly materialise with the adoption of the Constitution. A good example of this is the founding of institutions such as St. Stephen's College (established in 1881), which exemplifies how minority communities sought to preserve their cultural and religious identities well before 1950 (see the Singh Sabha Movement). Thus, the absence of a formal constitutional definition of "minority" in pre-independence India does not negate the existence of distinct community identities or their educational endeavours.

Similarly, the question of statutory incorporation requires careful analysis. The argument that an institution loses its minority character merely because it is incorporated through a statute once again introduces an unnecessary rigidity that serves no constitutional purpose. Institutions frequently evolve in their legal status, but this should not mean they forfeit their fundamental character. AMU’s transformation from a college to a university through the AMU Act, 1920, was solely intended to grant legal recognition to an existing community-run institution, and not to erase its minority identity.

Conclusion

In conclusion, I submit that (1) Justice Datta’s delineation of a temporal distinction between implied and express indicia contradicts the foundational premise of constitutional law—that principles are not created ex nihilo but are instead discerned through an evolving jurisprudential process; (2) the insistence on a pre-post Constitution distinction operates on a demarcation that finds no support in either doctrinal consistency or historical fidelity, as it ignores the socio-political consciousness of diverse communities before the advent of constitutionalism in India; and (3) the underlying assumption that statutory creation necessarily entails state control to the exclusion of community identity—is, at best, an unexamined assertion and, at worst, a fundamental mischaracterisation of the jurisprudence surrounding Article 30.

To this end, the retrospective-prospective binary collapses upon closer scrutiny. If express indicia merely gives form to what was always embedded in the constitutional structure, then their application to pre-existing institutions is neither an exercise in judicial overreach nor an encroachment upon settled entitlements. It is, instead, a logical extension of the Court’s duty to ensure that constitutional guarantees remain dynamic yet consistent. To argue otherwise, would be conflating the refinement of doctrine with its redefinition—a category error that constitutional adjudication must resolutely avoid.

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*Rajyavardhan Singh is a student at Rajiv Gandhi National University of Law, Punjab