Editorial 1: Universities are different from religious institutions

Context

In the Aligarh Muslim University (AMU) case, the test that the claim of minority character must rest on an exclusive or near exclusive communal character of the institution is not a good sign.

Introduction

The M.A.O. College, established by Sir Syed in 1877, as also its outgrowth, the Aligarh Muslim University has been the finest constructive manifestation of Muslim educational and cultural activity after 1857. The Supreme Court of India in S. Azeez Basha (1967), without even giving the university an opportunity of being heard, had declared it to be an institution that was neither established nor administered by Muslims.

• Judgment overview: The seven-judge Bench judgment in the Aligarh Muslim University (AMU) case (2024) is in tune with the series of liberal and progressive decisions on minority rights by the top court in the last 75 years with the only aberration being Azeez Basha (1967), now comprehensively overruled.
• Aberration and overruling: The only aberration being Azeez Basha (1967), now comprehensively overruled.
• Unanimity among judges: But to say that the judgment is a 4:3 one may not be correct as on certain points one finds unanimity on the Bench.
• Views on Statutory Provisions: Even though dissenting judges such as in the 1967 judgment attached much importance to the statutory provisions of the Aligarh Muslim University Act, they were of the view that merely looking at the incorporating statute is not the appropriate test to determine the minority character of a university.

Dissent was not really dissent

• Uniqueness of the AMU Judgment (2024): The AMU judgment 2024 is unique where dissents were not really dissents in the broad interpretation of Article 30 of the Constitution — in terms of it extending protection to universities, pre-constitutional-era institutions, and non-waiver of fundamental rights.
• Justice Dipankar Datta’s admission: Justice Dipankar Datta himself admitted that he was in a minority within a minority as despite his substantial agreement with ‘thoughts and conclusions’ with the two dissenting judges, his views too differed with theirs.
• Validity of references: On the issue of the validity of the 1981 reference to seven judges, the judgment is 4:3.
  • But on the validity of the 2019 reference, the judgment is 6:1.
  • The former Chief Justice of India (CJI) D.Y. Chandrachud-led bench had a valid reference to answer.
• Constitutional interpretation: One may not have any quarrel with Justice Dutta’s appreciation of pre-Independence-era judges, including CJI K.N. Wanchoo, who was an ICS officer, but the Constitution cannot remain a living and transformative document if earlier judgments of a positivist era are not overruled.
  • The Supreme Court is not bound by its earlier judgments. Its jurisprudence improved when it overruled formalistic interpretations of ‘procedure established by law’ of A.K. Gopalan (1950) in Maneka Gandhi (1978).
  • Similarly, K.S. Puttaswamy (2017) saw the eight-judge Bench judgment in M.P. Sharma (1954) being overruled to declare the right to privacy as a fundamental right.
  • There is a long list of such overruled decisions.
• Agreement on minority character criteria: Even on the indicia to determine minority character, there was broad agreement among the seven judges, including Justice Datta, that a broader criterion is to be preferred with a flexible framework and a holistic approach.
  • There is unanimity in the judgments that minorities must prove ‘intent to administer’.
• Justice D.Y. Chandrachud’s observations: Justice D.Y. Chandrachud observed that the ‘right to administer is the consequence of establishment.
  • To do otherwise, would amount to converting a consequence to a pre-condition’.
  • He was simply following the ratio of Basha (1967); that if a minority has established an institution, it would get the consequential right to administer.

What is a Judicial Discipline and what are its limits?

• Judicial discipline has been rightly given prominence by the dissenting judges.
• But then, in deciding the contours of administration, how can they go beyond the 11-judge Bench judgment in T.M.A. Pai Foundation (2002) that limited it to selection of students, fixation of fee, choosing of governing bodies and right to discipline employees?
• The nine-judge Bench in Xaviers (1974) explicitly observed that ‘under the guise of exclusive right of management, minorities cannot decline to follow the general pattern.
• In Kerala Education Bill (1958), the Court had held that the dominant word in Article 30 is ‘choice’.
• Xaviers (1974) reiterated this choice, both in establishment as well as administration.

Focus on the incorporating Act

• Importance of the Incorporating Act: Dissenting judges attached much importance to the incorporating Act.
• Justice M.H. Beg’s view in Xaviers (1974): Justice M.H. Beg in Xaviers (1974) was categorical that “If the object of an enactment is to compel a minority Institution, even indirectly, to give up the exercise of its fundamental rights, the provisions which have this effect will be void or inoperative against the minority Institution”.
• Acknowledgment of the founder’s name: The CJI was right that mere acknowledgment of the founder’s name in itself in the statute cannot be the determining factor.
• Governmental Control in Minority Institutions: If the ‘overriding governmental control’ test of dissenting judges is applied on their own examples of institutions, it would become clear that in comparison to AMU, they have much tighter governmental control, including the power to dissolve such minority universities.
  • India’s courts have been permitting governmental regulations to maintain efficiency and standards and not as a yardstick to determine minority character.
  • Greater governmental control is basically allowed in the interests of non-minorities who receive education in such minority institutions and those who are affected by the administrative decisions of minority management.

What was the Justice Datta’s unprecedented approach?

• Justice Datta, who alone held both the references as non est or invalid, in an unprecedented manner, not only answered the reference but also decided the matter himself by applying the indicia given by the majority as well as minority judges leaving nothing for the three judges’ Bench.
• This was also after observing in paragraph 13 that “it is foregone conclusion that history would be rewritten and declaration of Aligarh Muslim University by this court as a minority educational institution is only a matter of time”.
• If he himself was correct in applying the indicia and reached a definite conclusion, why was he so sure that a three-judge Bench would reach a different finding?
• A reference Bench generally avoids pre-judging the outcome of a matter by the regular Bench.

Test of Minority Dominance and Exclusive Character

• The dissenting judges also emphasised the test of minority dominance to such an extent that a minority university cannot get minority character just because being a university, it accepted its governance structure being similar to that of other universities.
• The test that the claim of minority character must rest on exclusive or near exclusive communal character of the institution is not a good sign.
• Universities are different from religious institutions and the expectation of liberal institutions of secular education to indulge in ghettoisation is contrary to the vision of Article 30.

Where there was erring

• Justice Dutta’s incorrect view on ₹30 lakh funding: Justice Dutta’s view that ₹30 lakh was not raised for establishing the AMU is factually incorrect.
  • There is a letter dated August 9, 1912 from Harcourt Butler, Member of the Governor-General in the Council, making this a condition precedent for the incorporation of the university.
• Overlooked clauses in the dissolution provision: Justice Dutta has overlooked some crucial clauses of the dissolution provision which retained the continuity with the M.A.O. College.
  • The AMU inherited all debts, liabilities, privileges, and rights of M.A.O. College.
  • Since Justice Dutta himself has accepted M.A.O. College as a minority institution, in terms of Section 4, the AMU automatically inherited its character.
• Error on minority surrendering the Right to Administer: Where the majority went wrong was on the question of the minority surrendering its right to administer because the apex court in Basheshar Nath (1959) had held that a waiver of fundamental rights is constitutionally impermissible.
  • Dissenting judge Justice S.C. Sharma himself ruled out the possibility of such surrender.
  • In the context of Article 30, Justices Y.V. Chandrachud and K.K. Mathew were of the opinion, in Xaviers (1974), that these rights cannot either be ‘bartered or surrendered’.

Conclusion

In no other case on Article 30 has the Supreme Court done this kind of minute scrutiny as in the AMU cases — in 1968 and 2024. The former CJI has rightly held that a minority institution too can be an ‘institution of national importance’ because minorities are an integral part of the nation and may establish great institutions. Sir Anthony Patrick MacDonnell, Lt. Governor of the North West Province and Oudh in 1896, rightly predicted the future character of M.A.O. College when he said, “It is not too much to hope that this College will grow into the Mahomedan University of the future; that this place will become the Cardova of the East, and that in these clusters Mahomedan genius will discover, and under the protection of the British Crown, work out that social, religious and political regeneration, of which neither Stamboul, nor Meca, afford a prospect.” The AMU has lived up to this expectation.

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Editorial 2: India needs a globally recognised public policy school

Context

The structure of India’s political and institutional landscape is why there is no such school till now.

Introduction

Why is it that the world’s largest democracy has yet to produce a world-class public policy institution? The United States and Europe boast of institutions such as the John F. Kennedy School of Government (Harvard Kennedy School) and the London School of Economics which train leaders who shape not only national but global governance. Yet, India, with its complex democratic structure and urgent developmental challenges, sends its finest to be trained abroad. This is not for lack of policy schools — India has many — but it has to do with the structure of India’s political and institutional landscape.

The executive has the reins

• Thriving Public Polices: Public policy institutions thrive only when they influence power and decision-making.
  • However, in India, there are limited access points for public policy commentators, academics, and civil society groups to influence policy.
• Centralisation of decision-making power: This is because much of the decision-making power is vested in the executive and operationalised primarily through the political elite, government officials, and bureaucrats rather than through a deliberative legislative process.
• Limited Oversight by the Legislature: over the executive, leading to a fundamentally different policy ecosystem than in other major democracies.

Comparison with the U.S.

• U.S. congressional power: In the U.S., Congress’ power to craft legislation independently of the executive creates space for a thriving policy ecosystem based on analysis, debate, and expertise, with each public representative providing a possible entry point into the deliberative process.
• Decentralised policy ecosystem in the U.S.
  This decentralised process sustains a vibrant ecosystem of policy schools, think tanks, and advocacy groups, that can secure funding and find paying clients because their analysis and expertise can meaningfully influence lawmaking.

Challenges in India

• Centralisation of power in India: But in India, the centralisation of power within the executive — and of party leadership within political parties — diminishes the influence of these groups unless they have access to top leadership and are aligned with their political priorities.
• Weak formalisation of the Indian state: The weak formalisation of the Indian state further creates a disconnect between politics and policy, relegating policy discourse to a downstream role rather than making it constituent of the larger political platform.
• Limited influence of policy professionals in India: Consequently, policy professionals lack the top-tier influence of other countries.

The power factor and where the wind blows

• Tied to who is in power: Further, influence on decision-making is closely tied to who is in power. The executive’s ability to realign the public sphere when power changes hands is more extreme in India than in more institutionalised democracies.
• Fragility in public life: This creates fragility in public life, where those central to decision-making can find themselves sidelined when regimes change.
• Stabilisation in institutionalised democracies: In more institutionalised democracies, think tanks, media, and civil society groups can maintain relative influence regardless of who is in power, which helps stabilise the policy ecosystem.

What are the unique challenges in India?

• Unique factors in India: These factors are unique to India among other large democracies and demand a different approach to policy education.
• Need for a tailored Public Policy School: To create a top-tier public policy school in India, we must design an institution suited to our political reality — where power is informal, personalised, and heavily dependent on executive control.
• Equipping Students with Policy Expertise and Power Dynamics Understanding
  Such an institution must serve dual purposes:
  • first, equipping students with both traditional policy expertise and an understanding of India’s unique power dynamics; and
  • second, facilitating a more stable policy ecosystem.

Curriculum Design for Indian Context

• Navigating informal networks and power structures: Unlike western policy schools that focus on formal institutions and assume straightforward paths to influence, an Indian institution must teach students to navigate a complex web of informal networks, regional power structures, and social dynamics.
• Mapping how power works: The curriculum must go beyond traditional policy education to map how power actually works — through relationships, caste hierarchies, regional elites, and grassroots movements.
• Learning beyond policy theory: Students need to learn not just policy theory but also how to be effective in a system where power is opaque and unevenly distributed, where idealism must meet pragmatism and the ability to adapt to local conditions to create real change.

Emphasising Empathy in Development Leadership

• Cultivating empathy for the people: Most importantly, to truly train development leaders who want to do good for their country, the school must select for, and cultivate, empathy for the people of our country.
• Avoiding top-down diktats: Too often, empathy for the lived reality of people’s lives is overlooked and leads to top-down diktats that can wreak havoc in people’s lives.

Way Forward: The need for space

• Political pegitimacy and influence tied to the executive: Finally, the current situation where political legitimacy and influence are tied too closely to the executive leads to sycophancy, opportunism, and instability.
• Facilitating broad institutional space: A school focused on nation-building must thus facilitate a broad institutional space in which legitimacy and influence would be based on the depth and the quality of public interventions instead of proximity to power.
• Need for structural reforms: At its deep end, this would require a series of structural reforms in our politics and governance, but a foundation could be built through diverse partnerships and the identification of nation-builders across the political spectrum and sectors.
• Building a cross-sectoral network: Such a network cutting across politics, bureaucracy, civil society, academia, think tanks, and media would provide depth as well as opportunities for influence and collaboration across all regimes.

Conclusion

By creating this non-partisan, yet politically aware, space, the institution could nurture development professionals who maintain relevance despite regime changes. This would create more stable channels for policy input, improving the quality of public debate and governance in India. It is this dual role that would allow the school and its graduates to influence power instead of operating at lower levels. Such an institution would set an example for other developing nations and gain global prominence by demonstrating that effective policy education must arise from local realities rather than mirror western models.