From Assembly to Courtroom: The Fading Promise of Articles 26 and 28

How judicial shifts altered the constitutional promise of religious and educational autonomy for minorities

– Dr. M. Iqbal Siddiqui

Articles 26 and 28, alongside Article 30, of the Indian Constitution were designed to safeguard religious freedom and minority educational autonomy, echoing the vision of a pluralistic democracy presented by the Constituent Assembly. For Muslims, these provisions have been vital to preserving religious and cultural identity through institutions such as madrasas and Aligarh Muslim University (AMU).

The Constitutional Framework: Articles 26 and 28 at a Glance

• Article 26 grants religious denominations the freedom to establish and maintain institutions for religious and charitable purposes, manage their own religious affairs, and administer property, subject to public order, morality, and health.
• Article 28 prohibits religious instruction in institutions wholly funded by the state, while allowing religious instruction in institutions administered by religious groups, provided they are not fully state-maintained.

During the Constituent Assembly debates, leaders like Dr B.R. Ambedkar, Maulana Abul Kalam Azad, and Tajamul Hussain advocated robust protections for religious autonomy and minority education, particularly to preserve Islamic studies, Urdu language, and cultural identity. These provisions, especially in tandem with Article 30, were envisioned as safeguards for educational pluralism. The Assembly intended to allow religious communities to flourish within a secular framework, free from excessive state interference.

The Doctrinal Shift: From Assembly Vision to Judicial Discretion

This foundational vision was soon challenged by judicial interpretations. In State of Bombay v. Narasu Appa Mali (1952), the Bombay High Court held that personal laws were not subject to fundamental rights scrutiny, allowing state intervention in practices deemed socially regressive. This judgment created a precedent for judicial incursion into religious autonomy. Notably, it impacted Muslim personal law in areas such as marriage, divorce, and inheritance by rendering these domains vulnerable to reform through state legislation, thus narrowing the protective scope originally envisioned by the Constitution.

The watershed moment came with The Shirur Mutt Case (1954), where the Supreme Court introduced the ERP doctrine. The Court ruled that only practices deemed “essential” to a religion would receive constitutional protection under Article 26, while secular aspects – such as temple administration – could be regulated. Although Shirur Mutt involved a Hindu institution, the doctrine soon extended to Islam and other faiths, thereby authorising courts to define religious practices – a role not anticipated by the Assembly.

It was in this context that the Supreme Court of India, in its 1994 judgment in Ismail Faruqui v. Union of India – commonly referred to as the Ayodhya Acquisition case – held that a mosque (masjid) is not an essential part of the practice of Islam.

ERP doctrine (Essential Religious Practices): Judicial Gatekeeping

The ERP doctrine has become a cornerstone of religious freedom jurisprudence in India. However, its application has been inconsistent and often reflects majoritarian biases. In Durgah Committee v. Syed Hussain Ali (1961), the Court ruled that certain Sufi practices at Ajmer Dargah were not essential to Islam, thereby permitting state regulation.

This judicial approach continued in Shayara Bano v. Union of India (2017), where the Supreme Court struck down instant triple talaq on grounds of gender justice. While hailed by some as progressive, the decision also drew criticism as judicial overreach, raising important questions: Can the state reform religion without compromising religious identity? And can individual rights be protected without undermining community autonomy?

Impacts on Muslim Educational Autonomy

Although Article 30 explicitly protects the rights of minorities to establish and administer such institutions, courts have often imposed regulatory conditions that curtail autonomy.

In St. Stephen’s College v. University of Delhi (1992), the Supreme Court upheld minority rights but imposed conditions on admissions and compliance with university standards. In T.M.A. Pai Foundation v. State of Karnataka (2002), the Court ruled that minority institutions must conform to state educational standards, resulting in stricter oversight of all religious institutions, including madrasas.

The Muslims perceive these interventions as attempts to oversee religious education. For madrasa-dependent students – often from marginalised backgrounds – such regulations threaten accessible, religiously relevant education.

The AMU Case and Its Flashpoint Status

As of 2025, the pending judicial verdict on AMU’s minority status epitomises the broader tension between constitutional protections and increasing state oversight. Revoking this status could substantially limit the university’s ability to prioritise Muslim students and Islamic studies – core to its founding ethos. The roots of this dispute lie in the Supreme Court’s ruling in Azeez Basha v. Union of India (1968), where the Court held that AMU was not a minority institution since it was established by an Act of Parliament rather than directly by the Muslim community. This judgment denied AMU the protections of Article 30 and has remained a contentious precedent. Its revival in current litigation reopens fundamental debates on the scope of minority rights in institutional governance.

Politically, this has triggered protests from Muslim organisations. Socially, it has reignited debates about the purpose of secularism in India – whether it is to neutralise religion or to allow communities to coexist with dignity. Morally, the case challenges the state’s commitment to pluralism and cultural justice.

Political, Social and Moral Dimensions of Judicial Intervention

• Political: Rulings such as Shayara Bano and AMU have been used by ruling parties to project reformist credentials, while Muslim leaders argue that these rulings dilute constitutional safeguards.
• Social: Judicial interventions have escalated communal tensions. Hashtags like #SaveAMU and #MinorityRights trend alongside narratives advocating national integration.
• Moral: The judiciary’s role as arbiter of religious practices raises ethical dilemmas. Minority scholars argue that essentialism in religion is complex, and courts should not standardise fluid traditions like Islamic jurisprudence, which includes different interpretations like Sunni, Shia, to be major schools.

Emerging Challenges to Minority Education: Threats and Safeguards

The trajectory of judicial interpretations and state interventions suggests a pivotal moment in the future of minority education in India. The foundational constitutional promise of pluralism and autonomy must contend with the current trends of centralisation and regulatory encroachment.

1. Constitutional Rededication: India must revisit the Constituent Assembly’s vision, which understood education as a vital expression of cultural identity. Reinforcing Article 30’s autonomy clauses and respecting Articles 26 and 28 in their original spirit is imperative.
2. Decentralised Educational Framework: Future policies must empower communities to design curricula that balance religious instruction with modern subjects. Madrasas, for instance, can integrate vocational training and civic education while maintaining theological integrity.
3. Technology and Modernisation: Minority institutions need support – not restriction – to digitise, modernise, and expand. Grants, teacher training, and access to online resources can enhance quality without cultural dilution.
4. Judicial Restraint and Scholarly Involvement: Courts must move towards inclusive jurisprudence, inviting community scholars to aid in understanding religious practices. The ERP doctrine, if retained, should be applied with humility and cultural empathy.
5. Policy Safeguards Against Politicisation: The future also requires vigilance against political narratives that stigmatise minority education. Policies must be based on constitutional values rather than electoral expediency.
6. Emerging Threats to Minority Education: There are growing concerns about targeted reforms and administrative pressures aimed at standardising education across the board. These include:

• Revocation of Minority Status: As seen in the AMU case, denying minority status can strip institutions of their autonomy.
• Unified Curriculum Impositions: Efforts to impose standardised national curricula risk erasing cultural and religious content vital to minority identities.
• Funding Restrictions: States like Uttar Pradesh and Assam have introduced audits and eligibility conditions that have led to the discontinuation or denial of grants to certain madrasas, citing non-compliance with modern curriculum norms.
• Compliance Pressures and Monitoring: Regulatory frameworks increasingly require minority institutions to submit frequent compliance reports, face audits, and meet infrastructural norms that may not account for their socio-cultural context. While intended to ensure transparency, this heightened oversight can place disproportionate burdens on smaller institutions and is sometimes perceived as targeted scrutiny.

If approached inclusively, minority educational institutions can continue to be pillars of empowerment, cultural resilience, and national integration. Regular consultations between state bodies and minority educational boards can pre-empt misunderstandings and build trust.

Preserving India’s Constitutional Pluralism

From Shirur Mutt to Shayara Bano and the ongoing AMU case, the judiciary’s interpretation of Articles 26 and 28 has shifted from safeguarding constitutional protections to assuming a gatekeeping role. While occasionally driven by reformist intent, these legal trends risk sidelining minority communities by subordinating their religious autonomy to a dominant vision of constitutional morality.

Maulana Abul Kalam Azad, during the Constituent Assembly debates, envisioned India as a garden of diverse cultures and faiths – united not by uniformity but by mutual respect. His passionate advocacy for religious and educational autonomy laid the foundation for a pluralistic democracy.

To preserve this founding vision, India must resist homogenisation and reaffirm its constitutional commitment to diversity. Judicial restraint, inclusive governance, and cultural empathy are not just ideals – they are necessary for a nation where every community can live with dignity, identity, and freedom.