(a) "Pluralism is the keystone of Indian culture and religious tolerance is the bedrock of Indian Secularism. It is based on the…

(a) The statement and its constitutional basis

• Source of the statement: it echoes the Supreme Court's description of Indian secularism as sarva dharma sama bhava, equal respect for all religions, as in S.R. Bommai v Union of India (1994). Secularism is part of the basic structure (Kesavananda Bharati (1973); Bommai).
• Constitutional provisions:
• the Preamble ("secular", inserted in 1976, although the idea was present from 1950);
• equality and non-discrimination on grounds of religion (Arts 14, 15, 16);
• freedom of conscience and the right freely to profess, practise and propagate religion (Art 25);
• freedom of religious denominations to manage their affairs (Art 26);
• no tax for the promotion of any religion (Art 27);
• no religious instruction in wholly State-funded institutions (Art 28);
• minority cultural and educational rights (Arts 29–30);
• no exclusion from electoral rolls on the ground of religion (Art 325);
• the fundamental duties to promote harmony and to value composite culture (Art 51A(e), (f)).

Where the statement holds: pluralism and tolerance

• Equal treatment of all faiths: the State has no official religion and treats all faiths equally. Freedom of conscience also protects non-believers.
• ***Bijoe Emmanuel v State of Kerala* (1986):** students who were Jehovah's Witnesses could not be expelled for standing respectfully but not singing the national anthem. The Court said that "our tradition teaches tolerance".
• ***Aruna Roy v Union of India* (2002):** teaching about the value of all religions does not violate secularism.
• ***M. Siddiq v Mahant Suresh Das* (Ayodhya, 2019):** the Places of Worship Act, 1991 was described as protecting the secular features of the Constitution.

Why freedom of religion is not absolute

• Limits within Art 25: the right is subject to public order, morality, health and the other Fundamental Rights. The State may:
• regulate secular activities associated with religion (Art 25(2)(a));
• enact social welfare and reform laws, including throwing open Hindu religious institutions to all classes (Art 25(2)(b)).
• The essential religious practices test: only essential practices are protected.
• It originated in Commissioner, HRE v Sri Lakshmindra Thirtha Swamiar (Shirur Mutt, 1954).
• In Durgah Committee, Ajmer v Syed Hussain Ali (1961), the Court excluded superstitious accretions.
• In Commissioner of Police v Acharya Jagadishwarananda Avadhuta (2004), the Tandava dance in public was held not essential to the Ananda Margis.
• In Ismail Faruqui v Union of India (1994), a mosque was held not essential to the practice of Islam, so it could be acquired.
• No right to convert: the right to propagate does not include a right to convert another person (Rev. Stainislaus v State of MP (1977)).
• Practices inconsistent with equality:
• ***Shayara Bano v Union of India* (2017):** instant triple talaq was set aside. The plurality held it manifestly arbitrary under Art 14, and Kurian Joseph J held it not essential to Islam.
• ***Indian Young Lawyers Association v State of Kerala* (2018):** the exclusion of women from Sabarimala was struck down. The questions raised were referred to a nine-judge bench (Kantaru Rajeevaru, 2019–20).

Critical examination

• Theology is not the Constitution's concern: the claim that "all religions are equally good and efficacious pathways" is a theological proposition. The Constitution does not certify the truth of any religion. Its commitment is to equal citizenship and equal liberty, including for atheists.
• The model is principled distance, not separation: Indian secularism is not a "wall of separation". The State funds and administers temples, reforms personal laws, and protects minorities. Rajeev Bhargava calls this "principled distance". Critics see inconsistency, because some personal laws have been reformed and others have not (Art 44, the Uniform Civil Code; Sarla Mudgal v Union of India (1995)).
• Courts as theological arbiters: the essential practices test makes judges decide religious doctrine. It is criticised for this, and the conflict between denominational autonomy and individual dignity remains unsettled. The split verdict on the hijab issue (Aishat Shifa v State of Karnataka (2022)) is pending before a larger bench.
• Conclusion: the statement correctly captures the pluralist spirit and the qualified nature of religious freedom. Its constitutional core, however, is equal liberty and non-discrimination, not the equal efficacy of all faiths.

(b) Constitutional provisions

• Supreme Court judges (Art 124(2)): appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President deems necessary. The CJI must always be consulted for judges other than the CJI.
• High Court judges (Art 217(1)): appointed by the President after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court.
• Transfers (Art 222): the President may transfer a High Court judge after consultation with the CJI.
• Additional and ad hoc judges: additional judges (Art 224) and retired judges sitting as ad hoc judges (Art 224A). Ad hoc appointments were revived in Lok Prahari v Union of India (2021) to address pendency.

Judicial evolution

• ***Union of India v Sankalchand Sheth* (1977): a transfer must be in the public interest, and consultation must be full and effective, but it does not** mean concurrence.
• ***S.P. Gupta v Union of India* (First Judges Case, 1981): "consultation" is not concurrence, and the executive has primacy**.
• ***SC Advocates-on-Record Association v Union of India* (Second Judges Case, 1993):**
• it overruled S.P. Gupta, and the CJI's opinion has primacy;
• that opinion is to be formed with the two senior-most judges, which created the collegium;
• the executive may return a name once, but a reiterated recommendation is binding.
• ***In re Special Reference No. 1 of 1998* (Third Judges Case):**
• for the Supreme Court, the collegium is the CJI and four senior-most judges;
• for High Court appointments, it is the CJI and two senior-most judges;
• for transfers, it is the CJI and four senior-most judges, after ascertaining the views of the Chief Justices of both High Courts and the Supreme Court judges who know those courts;
• transfers are made in the public interest, not as punishment. Judicial review is limited to the question whether the required consultation took place (K. Ashok Reddy v Government of India (1994)).
• NJAC:
• the 99th Amendment (2014) and the NJAC Act replaced the collegium with a six-member commission: the CJI, two senior judges, the Law Minister and two eminent persons, any two of whom could veto an appointment;
• in ***SCAoRA v Union of India* (Fourth Judges Case, 2015)**, a 4:1 majority, with Chelameswar J dissenting, struck them down for violating judicial independence, a basic feature, and revived the collegium;
• the Memorandum of Procedure (MoP) is to be revised to add transparency (Fifth Judges Case, 2016).

Present practice and concerns

• Process:
• the collegium recommends names;
• the Government obtains Intelligence Bureau inputs and may return a name once;
• a reiterated recommendation binds the Government.
• Since 2017, collegium resolutions have been published.
• Delays: the Court has fixed timelines for the executive (PLR Projects v Mahanadi Coalfields (2021)) and has taken up delays in processing recommendations.
• Persisting criticisms:
• opacity;
• "judges appointing judges";
• under-representation of women and other groups;
• an unfinalised MoP;
• selective delays by the executive.
• Way forward: a transparent MoP with objective criteria and time-bound processing would strengthen the system without compromising independence.

(c) Purpose and function

• Why these Articles exist: India is a federation with a strong Centre. Most central laws are executed by the States' administrations. Arts 256 and 257 ensure that State executive power does not frustrate the Union's laws or its executive functions.
• Art 256:
• the executive power of every State must be exercised so as to ensure compliance with laws made by Parliament and existing laws that apply in the State;
• the Union's executive power extends to giving such directions to a State as appear necessary for that purpose.
• Art 257:
• (1) State executive power must not impede or prejudice the exercise of the Union's executive power, and the Union may give directions for this;
• (2) the Union may direct the construction and maintenance of means of communication of national or military importance;
• (3) the Union may direct measures for the protection of railways;
• (4) extra costs incurred by the State in complying are to be paid by the Union.
• Related provisions:
• directions to States in an emergency (Art 353);
• directions for the welfare of Scheduled Tribes (Art 339(2));
• directions for instruction in the mother tongue (Art 350A).

Use

• Rarely invoked formally: the Articles are formally invoked rarely. Their shadow operates through advisories and directions under central laws.
• COVID-19: directions under the Disaster Management Act, 2005 during the pandemic were binding on States, whose executive power had to secure compliance with Parliament's law.
• Other areas: directions on internal security, railway protection and national highways.

Consequences of State defiance

• Art 365: where a State fails to comply with, or give effect to, directions given under any provision of the Constitution, it is lawful for the President to hold that a situation has arisen in which the State's government cannot be carried on in accordance with the Constitution. This opens the way to President's Rule under Art 356.
• **Judicial safeguards (S.R. Bommai v Union of India (1994)):**
• a proclamation under Art 356 is subject to judicial review;
• the Assembly should not be dissolved before parliamentary approval;
• Art 356 is a measure of last resort.
• Other routes: the Union may seek enforcement through the courts, or bring an original suit under Art 131. In practice, disputes are resolved politically.

Should the Articles be restructured?

• Arguments for retaining them:
• they are necessary for the uniform implementation of national laws, national security and disaster response;
• Dr Ambedkar defended them as needed in a Union where laws are executed through State machinery.
• Arguments for reform: they can be used to coerce opposition-ruled States.
• The Sarkaria Commission (1988) recommended that Art 365 be invoked only after the State is given a warning and an opportunity to explain, and after all other avenues are exhausted.
• The Punchhi Commission (2010) similarly favoured consultation and restraint.
• Suggested balance:
• keep the Articles;
• codify procedural safeguards, namely prior consultation through the Inter-State Council (Art 263), reasoned directions, and time to comply;
• treat Art 365 strictly as a measure of last resort.