Introduction
For over fifty years, the question of whether Aligarh Muslim University (AMU) qualifies as a minority institution under Article 30(1) of the Indian Constitution has sparked legal controversy, constitutional debate, and no small amount of political heat. At the centre of this long-running debate lies a 1967 Supreme Court decision of S. Azeez Basha v. Union of India, which held that AMU was not a minority institution because it was established by a parliamentary statute, the Aligarh Muslim University Act, 1920. Since it was “created” by legislation and not directly by the Muslim community, the Court reasoned that AMU couldn’t claim the protections Article 30 affords to minority-run institutions. This reasoning shaped the conversation around AMU’s status ever since.
However, the Supreme Court revisited Azeez Basha in Aligarh Muslim University v. Naresh Agarwal & Ors. in November 2024. While the final word on AMU’s status has been left to a smaller bench for factual determination, the Constitution Bench made one thing clear, Azeez Basha’s logic that a statute-led incorporation strips an institution of its minority character was wrong in principle and is no longer good law. In doing so, the Court also laid down a set of indicia (basically, clues or criteria) to help future courts determine whether a particular institution was in fact established by a minority.
These indicia are definitely a step away from the rigid formalism of Azeez Basha and offer a more flexible, perhaps more realistic, framework. However, I argue in this piece that while the Court’s approach seems far more grounded than before, it also raises some new problems of its own. More fundamentally, I contend that the vagueness inherent in these indicia reflects law’s structural inability to provide determinate answers to complex social questions such as the AMU issue. To develop this argument, I proceed in three parts. First, I outline the key jurisprudence on Article 30 and the historical context of the AMU dispute, leading up to the reasoning in Azeez Basha. Second, I examine the Naresh Agarwal judgment, focusing on the Court’s reinterpretation of “establishment” and the indicia it introduced. Finally, I offer a critique of these indicia, pointing to challenges in their application and the uncertainties they may create going forward. I also go beyond these particular indicia to examine how this case exemplifies law’s inherent limitations in addressing linguistic vagueness when tackling social phenomena.
The Ghost of Azeez Basha
To understand what the Supreme Court did in Naresh Agarwal, it would help us to take a step back and trace how the jurisprudence around Article 30(1) has evolved. Article 30(1) guarantees minorities the right to “establish and administer” educational institutions of their choice. This deceptively short clause has generated a surprisingly large amount of litigation and a very layered doctrine. A reason for this could be that the Constituent Assembly never clearly defined what it means for a minority to “establish” or “administer” an educational institution. Nor did they settle who exactly counts as a founder. Instead, the debates focused on more rights-based questions, how to protect cultural and linguistic identity across India’s diverse communities [Para 7.69.91, 7.69.195, 7.69.198], how to ensure state aid is not distributed unfairly [Para 7.69.33, 7.69.115], and whether these protections should be enforceable as fundamental rights [Para 7.69.177, 7.69.200]. This lack of definitional clarity necessitated later interpretation by courts.
Starting from In re Kerala Education Bill (1957), and later in decisions like St. Xavier’s College and T.M.A. Pai Foundation, the Supreme Court clarified that Article 30 applies even to institutions founded before the Constitution came into force. It also emphasised that the rights to “establish” and “administer” are distinct, though connected, minorities must first establish the institution to then claim the right to administer it. At the same time, the Court accepted that the State can regulate aspects like academic standards, provided those regulations don’t strip the institution of its minority character or core administrative autonomy. Over time, this made Article 30 a kind of “special right” which offered minority educational institutions greater independence than other institutions, even in the face of growing state interference.
However, things became more complicated when it came to Aligarh Muslim University. The specific controversy began with a series of post-Constitution amendments to the Aligarh Muslim University Act, 1920, i.e., the statute that had formally transformed the pre-existing Muhammadan Anglo-Oriental (MAO) College into a university. In 1951, the Act was amended to remove mandatory religious instruction, and the requirement that the University’s governing body (the ‘Court’) be entirely Muslim. This was done to bring the university in line with constitutional secularism and eligibility for state aid. Then came the 1965 amendment, which went even further by significantly reducing the powers of the Court and shifting control toward the Executive Council and the government-appointed ‘Visitor.’
These changes were challenged in S. Azeez Basha v. Union of India (1967). The petitioners therein argued that the Muslim community had established AMU and retained the right to administer it under Article 30(1), which the amendments had violated. The Union government pushed back, saying that AMU came into existence through the 1920 Act of Parliament, not through any act of the Muslim community. Given this, the government argued, the institution could not in any way avail Article 30 at all. The case thus centred on the interpretation of the terms “established” and “administered” under Article 30(1).
The five-judge bench agreed with the government. In a judgment that would go on to define the issue for decades, the Court held that the words “establish and administer” in Article 30 had to be read together (p.847, Para H). The court reasoned that the right to administer an educational institution under Article 30(1) is not a standalone right but is a consequential right arising directly and exclusively from the act of establishing it. Consequently, it adopted a narrow, formalist interpretation of “establish” as meaning “bringing into legal existence” (p.851, Para D). Since AMU became a university through the 1920 Act, and not through a private initiative of the Muslim community, the Court concluded that the Central Legislature (and not the community) was the legal founder of the institution. The fact that the MAO College was a Muslim-led initiative didn’t change that conclusion (p.851, Para F). As a result, AMU was found ineligible for Article 30 protection, and the challenge to the 1951 and 1965 amendments failed. This reasoning created what many saw as a formalistic hurdle, once an institution required a legislative act to gain university status, it could no longer be said to have been “established” by a minority, even if it had been founded, funded, and nurtured by one.
Still, Azeez Basha never sat entirely comfortably in the broader scheme of Article 30 jurisprudence. In Anjuman-e-Rahmania (1981), a two-judge bench voiced its doubts about the ruling and referred the issue to a larger bench (though that reference was later set aside as procedurally flawed). Around the same time, Parliament passed the AMU (Amendment) Act, 1981, which sought to explicitly declare that AMU was “established by the Muslims of India.” This legislative fix, however, ran into another roadblock. In 2006, the Allahabad High Court struck it down in Naresh Agarwal, relying squarely on Azeez Basha and holding that Parliament couldn’t override a constitutional interpretation handed down by the Supreme Court.
That High Court ruling set the stage for the 2024 hearing before a seven-judge bench in Naresh Agarwal v. Union of India, finally giving the Court the chance to revisit Azeez Basha head-on, and to address the long-standing tension in the doctrine surrounding what it means to “establish” an institution under Article 30.
The Court’s Exorcism in Naresh Agarwal
In Aligarh Muslim University v. Naresh Agarwal, the Supreme Court finally confronted the elephant in the room that was the legacy of S. Azeez Basha. In doing so, the Court worked out a full scale recalibration of how Article 30(1) is to be understood. The most patent shift was the court’s categorical rejection of the idea that statutory incorporation necessarily destroys a minority community’s claim to having “established” an institution (see Para 161). In place of that rigidity, the Court offered a more grounded and contextual approach. This approach asks courts to “pierce the veil” of the statute and look at the real-world origins and character of the institution (Paras 85, 102).
The court also clarified that establishment is not the same as incorporation. The Court explained that to “establish” an institution under Article 30 means more than giving it legal form. Establishment, according to the Court, is the substantive process by which a minority community conceives of, organises, and brings an educational institution to life. This includes every step from generating the idea, raising funds, acquiring land, constructing facilities, and shaping the institution’s purpose, which is often preserving cultural identity or expanding access to education for the minority community. By contrast, the court read Incorporation as a legal requirement. Especially in the case of universities, it stated that a statute is necessary to grant the authority to confer degrees and to comply with regulatory frameworks. Nonetheless, the court clarified that the fact that Parliament passes such a law does not necessarily mean the community did not “establish” the institution in the first place. Drawing on analogies from corporate law (particularly Dalco Engineering), the Court observed that legal personality through incorporation does not override the question of who actually created and built the institution (Para 114). Just as a company can be “promoted” by a private actor and then incorporated later, so too can a university be established by a minority and later recognised by statute.
This reading of the court aligns with a more purposive and substantive interpretation of Article 30. It avoids penalising minorities for following legal formalities, and at the same time fits well within India’s distinctive model of secularism. Under this model, state engagement with religious or community institutions is not ruled out, but neither does it automatically erase those institutions’ foundational identity.
Reinterpreting Establishment through the New ‘Indicia’
Acknowledging the historical and factual complexity that surrounds claims under Article 30(1), the Supreme Court in Naresh Agarwal laid down a set of guiding indicia to help future courts assess whether a minority community can be said to have “established” an institution. These indicia are put forward in Paragraphs 135 to 138 of the judgment, and are to act as a holistic framework (instead of a checklist) for evaluating establishment claims. The Court emphasised that these indicia require courts to step back and look at the full picture, weighing documentary evidence (preferably primary sources) to arrive at a reasoned conclusion (Para 141). The burden of proof, however, lies squarely with the institution claiming Article 30 protection (Para 142).
The first indicum concerns the genesis of the idea. It asks, Where did the intellectual and organisational impetus for the institution originate? The Court emphasised that this aspect of origin must be traceable to the minority community itself. Evidence such as community-led correspondence, planning documents, or records of internal resolutions would be particularly necessary to establish that the initial momentum came from within the group (Para 135). The second indicium concerns the purpose of the institution. As per this indica, it is necessary that the institution must have been founded primarily to serve the educational or cultural interests of the minority. A secular curriculum or open admissions policy cannot defeat such a claim, so long as the underlying intent of creating the institution was community-oriented; and this is something that can be substantiated through contemporary statements of purpose, proposals, or other documentation of the founding vision (Para 136).
From purpose, the Court shifted to implementation (the third indicum), which asks who undertook the actual and material work of setting up the institution. This involves examining who raised the funds, acquired the land, constructed the buildings, and secured necessary permissions. If these burdens were primarily shouldered by the minority community, that would strongly support the finding of “establishment”. On the other hand, the Court also clarified that receiving government assistance, particularly after the institution has been set up, would not automatically undermine the minority claim. For the court, what requires the most careful scrutiny is the extent of state involvement at the very stage of creation. It is found that the state played a dominant role from the outset, the community’s claim to establishment may be weakened (Para 137). Lastly, while Article 30(1) separately guarantees the right to administer, the Court noted that the institution’s current administrative structure can provide inferential insight into its origins (Para 138). While this is not an independent indicum, it nonetheless will guide the reasoning of courts in applying the three indicia. If there is little or no minority representation in governance, or if the community appears to have willingly surrendered control early on, this could suggest that the institution was never truly minority-established to begin with (Para 139). This is especially relevant for pre- Constitution institutions, whose governance models may have evolved under historical pressures or state interventions (Para 140).
From Formalism to Factual Fog?
The Naresh Agarwal judgment marks a welcome shift away from the rigid formalism of Azeez Basha, particularly in its embrace of a more substantive and contextual approach to Article 30(1). Even so, the indicia-based framework introduced by the Court reveals deeper problems that extend beyond judicial craftsmanship to the very nature of law as an institution. There is clear vagueness in terms and phrases used in these indicia, which make the process of resolution of a minority character question more onerous and uncertain for future courts. For instance, phrases like “predominantly for the benefit,” “core of the responsibility,” and “predominant role” are without a clear definition and open for further argumentation in courts. Nonetheless, this is not merely an oversight that better judicial drafting could remedy, but rather exemplifies law’s structural inability to provide determinate answers to complex social questions involving inherently vague concepts.
This limitation reflects what scholars of linguistic philosophy have identified as the fundamental challenge that vagueness poses to legal systems. As Alex Silk has observed, the implications of vague language on legal practice may be far more intractable than typically assumed. The problem is not simply that courts need clearer guidance (though they certainly do!), but that law as an institutional framework lacks the semantic resources to eliminate vagueness from concepts that are inherently contextual and gradable.
Consider the Court’s first indicum concerning “genesis of the idea.” The requirement that intellectual and organisational impetus be traceable to the minority community itself immediately raises the problem of borderline cases that resist clear categorisation. What constitutes sufficient traceability? If prominent community members conceive an educational project but seek broad-based support from other communities and the state, at what point does the idea cease to originate primarily from the minority? These questions involve what Timothy Endicott describes as the “sorites-susceptible” nature of vague legal predicates, where small changes in the underlying facts can lead to seemingly arbitrary shifts in legal classification, yet no bright-line rule can capture the full range of relevant considerations.
The challenge runs also in the second indicum’s focus on “purpose.” The Court’s requirement that institutions be founded primarily to serve the educational or cultural interests of the minority gives rise to the problem of borderline cases where no amount of factual investigation can yield a determinate answer. An institution might serve minority interests while also advancing broader educational goals, or it might begin with community-focused purposes that evolve over time in response to changing social needs. As Silk observes, such cases present what he terms “contextual indecision,” i.e. situations where the linguistic conventions of the law leave multiple interpretations equally viable.
The third indicum concerning implementation also faces similar structural challenges. Determining who “primarily shouldered” the burden of establishment requires courts to weigh incommensurable factors: financial contributions against labour, early visionary leadership against sustained administrative effort, community enthusiasm against institutional expertise. These multidimensional comparisons resist the kind of precise calibration that legal determinacy would seem to require. The Court’s acknowledgment that government assistance “particularly after the institution has been set up, would not automatically undermine the minority claim” attempts to provide guidance, but ultimately pushes the vagueness problem back one level: courts must now determine when assistance is “after” setup versus “during” establishment, and what degree of state involvement becomes “dominant.”
What makes this analysis particularly concerning is that these are not problems that better judicial training or more sophisticated legal doctrine can readily solve. Endicott’s analysis suggests that while epistemicist theories of vagueness might maintain that there are always determinate (if unknowable) facts about borderline cases, this provides little practical guidance for legal systems that must render actual decisions. Whether a judge believes that there is a true answer about whether AMU was primarily established by Muslims or believes instead that such questions admit of genuine indeterminacy, the practical challenge remains the same: how should legal institutions proceed when faced with cases that resist clear classification?
The implications extend beyond these specific indicia to a more fundamental question about law’s epistemic limitations in dealing with constitutional questions like the AMU issue. Legal systems are premised on the idea that they can provide determinate, principled answers to disputes. Yet as Naresh Agarwal shows us, many of the most important social and political questions that come before courts involve concepts that are irreducibly vague. Law cannot eliminate this vagueness through more precise drafting because the underlying social realities are themselves fluid and contextual.
Outside of these theoretical issues, there are other practical implications for institutions seeking to establish their Article 30 status post this judgement. The Court emphasises that these indicia require “holistic” analysis based on primary materials and documentary evidence. But institutions established decades or centuries ago may face insurmountable evidentiary challenges not because their claims lack merit, but because the passage of time has obscured the very evidence that would establish their minority character. The burden of proof requirement, while seemingly reasonable, may systematically disadvantage historically marginalised communities whose institutional records were less likely to be preserved or whose claims to establishment were never properly documented by formal legal processes.
More troubling still is the possibility that the indicia framework may create perverse incentives for strategic behavior. Future minority communities seeking to establish institutions may feel compelled to maintain extensive documentation of their community- focused purposes, to minimize state cooperation, and to preserve governance structures that signal their minority character. Law’s attempt to capture authentic minority establishment may thus encourage increasingly artificial performances of minority identity.
The Naresh Agarwal judgment, despite its sophisticated reasoning and sensitivity to historical context, cannot transcend these structural limitations. Its indicia framework represents not a solution to the problem of vagueness in constitutional law, but rather an acknowledgment that legal institutions must somehow continue functioning despite their inability to provide determinate answers to the questions society asks them to resolve.
Conclusion
The Supreme Court’s decision in Naresh Agarwal reflects both advancement and constraint. I believe that the Supreme court did well in moving away from the rigid approach of Azeez Basha and adopting a contextual test that brings Article 30 jurisprudence closer to the social and historical realities of minority establishment. The indicia framework gives structure to judicial inquiry while retaining sensitivity to the social complexity of minority character issues.
However, the ruling also highlights law’s difficulty in handling vague concepts. Expressions such as “purpose,” “predominant,” and “primarily” reveal the tension between fluid social realities and the legal demand for determinate categories. This tension derives from the structural limits of legal reasoning itself, rather than from any judicial drafting flaws in the judgement. Even so, law (and the judgement) retains value beyond precise answers. Courts set expectations, create space for reasoned dialogue, and offer procedures for collective resolution. The indicia framework, despite its vaguemess, can still guide judges toward relevant factors and enrich public conversation on minority rights.
Rather than settling Article 30 disputes, the judgment opens a continuing engagement with conceptual vagueness. Future benches addressing AMU’s status will shape its immediate application, while the broader challenge lies in building practices that function effectively within conditions of uncertainty. The case ultimately illustrates law’s dual role: doctrinal innovation alongside recognition of its own boundaries.
