Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.740 OF 1986
Central Board of Dawoodi Bohra Community
& Anr. … Petitioners
v.
The State of Maharashtra & Anr. ... Respondents
with
CRIMINAL APPEAL NO. 39 OF 1991
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
In Writ Petition (C) No.740 of 1986, the preliminary issue is
1.
whether the view taken by a Constitution Bench of this Court in
the case of Sardar Syedna Taher Saifuddin Saheb v. State of
1
, requires reconsideration.
Bombay
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Date: 2023.02.10
14:42:01 IST
Reason:
1 (1962) Suppl. (2) SCR 496 : AIR 1962 SC 853
1
1
2. In the case of Sardar Syedna , the jurisdiction of this
Court under Article 32 of the Constitution of India was invoked
for challenging the constitutional validity of the Bombay
Protection of Excommunication Act, 1949 (for short, ‘the Ex
communication Act’). Section 3 of the Excommunication Act
provided that notwithstanding anything contained in any law,
custom or usage for the time being in force to the contrary, no ex
communication of a member of any community shall be valid and
shall be of any effect. Under the Excommunication Act, the term
‘community’ was defined to mean a group, the members of which
are connected together by reason of the fact that by birth,
conversion or the performance of any religious rite, they belong to
the same religion or religious creed and includes caste or sub
caste. Under clause (b) of Section 2 of the Excommunication Act,
‘excommunication’ was defined as the expulsion of a person
from any community of which he is a member depriving him of
rights and privileges which are legally enforceable by a suit of
civil nature by him or on his behalf as such member.
st
3. Sardar Syedna Taher Saifuddin Saheb, who was the 51
DaialMutlaq and the head of the Dawoodi Bohra community,
challenged the Excommunication Act on the ground that the
2
same infringes the fundamental rights guaranteed under Articles
25 and 26 of the Constitution of India. The said petition was
placed before a Constitution Bench. The Constitution Bench, by a
majority, held that excommunication amongst the Dawoodi
Bohras forms an integral part of the management of the
community. Therefore, interference with the right to ex
communicate amounts to interference with the right of the
community to manage its own affairs in matters of religion. This
Court held that as the Excommunication Act invalidates ex
communication on any ground whatsoever including religious
grounds, it must be held to be in clear violation of the right of the
Dawoodi Bohra community guaranteed under Article 26 (b) of the
Constitution of India. Therefore, this Court proceeded to hold
that the Excommunication Act is void, being in violation of
Article 26 of the Constitution of India.
4. The prayer in the present writ petition filed by the Central
Board of Dawoodi Bohra Community represented by its Secretary
is for issuing a writ of mandamus directing the State Government
to give effect to the provisions of the Excommunication Act after
reconsidering the decision of this Court in the case of Sardar
1 th
Syedna . “Rule nisi” was issued in the petition on 25 August
3
th
1986. On 18 March 1994, a Division Bench directed that the
nd
petition be listed before a Bench of seven Judges. The 2
rd
Respondent – Syedna Mufaddal (53 DaialMutlaq) made an
application seeking a direction that the petition should be listed
before a Division Bench. The writ petition was listed before a
th
Constitution Bench. By the judgment and order dated 17
2
December 2004 , the Constitution Bench partly allowed the
nd
application filed by the 2 Respondent. Paragraph 14 of the said
order read thus:
In the facts and circumstances of this case,
“14.
we are satisfied that the matter should be placed
for hearing before a Constitution Bench (of five
Judges) and not before a larger Bench of seven
Judges. It is only if the Constitution Bench doubts
the correctness of the law laid down in Sardar
Syedna Taher Saifuddin Saheb case [1962 Supp (2)
SCR 496 : AIR 1962 SC 853] that it may opine in
favour of hearing by a larger Bench consisting of
seven Judges or such other strength as the Chief
Justice of India may in exercise of his power to
frame a roster may deem fit to constitute.
”
In terms of the aforesaid order, Writ Petition with the
5.
connected Criminal Appeal has been placed before this Bench. In
the meanwhile, there was a subsequent event in the form of the
enactment of the Maharashtra Protection of People from Social
Boycott (Prevention, Prohibition and Redressal) Act, 2016 (for
2 2005 (2) SCC 673
4
short, ‘the Social Boycott Act’). By clause (c) of Section 20 of the
Social Boycott Act, the Excommunication Act was repealed.
THE BROAD QUESTIONS
FOR CONSIDERATION
6. As the Excommunication Act has been repealed, the
question which arises for consideration is whether anything
survives in the writ petition for a decision on merits. If we come
to the conclusion that the writ petition still survives for
consideration, the question which will arise is whether the view
1
taken in the case of needs reconsideration.
Sardar Syedna
SUBMISSIONS
7. We have heard the parties on the aforesaid questions. Shri
Siddharth Bhatnagar, the learned senior counsel representing
the petitioners pointed out that the Constitution Bench has held
that the practice of Baraat/excommunication in the Dawoodi
Bohra community falls within the ambit of “matters of religion”
under clause (b) of Article 26 of the Constitution of India. He
urged that even if the Excommunication Act is repealed, the
question whether the practice of excommunication falls within
the ambit of “matters of religion”, needs to be decided. His
5
nd rd
submission is that the 2 Respondent – Syedna Mufaddal (53
DaialMutlaq) is not only the religious Head but also the Trustee
of the community property. Therefore, he has to perform acts
that are not wholly religious. His submission is that even
assuming that the practice of excommunication is considered a
matter of religion, it must yield to the legislations on social
reforms which are protected by Article 25(2) of the Constitution of
India. He urged that the rights guaranteed under Article 26 are
subject to morality. He submitted that the concept of morality
under Articles 25 and 26 would subsume within itself the
concept of Constitutional morality. He relied upon the decisions
3
of this Court in the cases of Manoj Narula v. Union of India ,
4
State (NCT of Delhi) v. Union of India & Anr. and Navtej
5
Singh Johar & Ors. v. Union of India and submitted that the
concept of Constitutional morality has been elaborated under
these decisions. He also pressed into service a decision of this
Court in the case of
Indian Young Lawyers Association & Ors.
6
v. State of Kerala & Ors. (Sabrimala Temple 5JJ), which
according to him, holds that practices destructive of liberty and
3 2014 (9) SCC 1
4 2018 (8) SCC 501
5 2018 (10) SCC 1
6 2019 (11) SCC 1
6
those which make some citizens less equal than others cannot be
countenanced. He would also submit that Article 26 cannot
override the protections afforded under other provisions of Part III
of the Constitution of India. His submission is that the practice of
excommunication in the Dawoodi Bohra community is violative
of Articles 17, 19(1)(a), 19(1)(c) and 19(1)(g), 21 and 25 and
therefore, it cannot enjoy the protection of Article 26 of the
Constitution of India.
8. The learned senior counsel also urged that the Social
Boycott Act does not afford any protection against ex
communication as it seeks to prohibit the social boycott of a
member of the community by the Khap Panchayat of the
community. He submitted that a member of the Dawoodi Bohra
community who is already excommunicated, will not be a
member of the community within the meaning of the Social
Boycott Act. Therefore, the Social Boycott Act gives no protection
to the members of the Dawoodi Bohra community from the
unjust and illegal practice of excommunication.
9. He urged that as held in the case of Sabrimala Temple
6
, the word ‘morality’ found in Article 26 would subsume
5JJ
within itself the concept of Constitutional morality and takes
7
colour from the ideals of justice, liberty, equality and fraternity
on which our Constitution has been founded. He urged that the
practice of Baraat is regressive, which resulted in practically civil
death of the person excommunicated. Therefore, the practice of
Baraat will have to be held as contrary to Constitutional morality.
10. He urged that even the issue whether any protection is
afforded by Article 17 to an excommunicated person belonging
to the Dawoodi Bohra community needs examination. He
submitted that though Article 26 has not been expressly made
subject to other provisions of Part III, in the event of its conflict
with Articles 14, 19 and 21, it must give way to these three
Articles unless the conflict can be reconciled. In other words, he
submitted that the rights of a religious denomination under
Article 26 cannot be determined in isolation and interpreted in a
manner that renders the rights guaranteed to its members under
other provisions of Part III nugatory. He urged that much water
1
has flown after Sardar Syedna and therefore, it requires
reconsideration.
Shri Tushar Mehta, the learned Solicitor General of India,
11.
appearing for the State Government submitted that even if the
Excommunication Act has been repealed, the question whether
8
the practice of Baraat/excommunication is protected by Article
26(b) of the Constitution of India, survives for consideration. He
invited our attention to the order of this Court in the case of
Kantaru Rajeevaru v. Indian Young Lawyers Association &
7
Ors. (Sabarimala Temple Review – 5 JJ.). He submitted that
the Constitution Bench has held that freedom of religion
guaranteed under Articles 25 and 26 of the Constitution needs
authoritative pronouncement by a larger Bench of not less than
seven Hon’ble Judges. He invited our attention to the questions
formulated under the said order. He pointed out that on the basis
of the said order, a Bench of nine Judges in
Kantaru Rajeevaru
(Right to Religion; in Re – 9 JJ.) v. Indian Young Lawyers
8
Association & Ors. (Sabrimala Temple Review – 9 JJ) , has
framed seven issues and at least, the first three issues framed by
the said Bench will arise even in the present case. Therefore, he
urged that this petition be tagged along with the case before the
Bench of Hon’ble nine Judges.
12. Shri Fali S. Nariman, the learned senior counsel appearing
nd
for the 2 Respondent urged that in view of the repeal of the Ex
communication Act, nothing survives in the petition considering
7 2020 (2) SCC 1
8 2020 (3) SCC 52
9
the prayers made in the petition. He also invited our attention to
the fact that the second petitioner has died and there is no one to
represent the first petitioner which is an unregistered
organization.
He submitted that the decision in the case of
13. Sardar
1
Syedna was noted by the Constitution Bench in the case of
6
He relied upon the decision of the
(Sabarimala Temple 5JJ) .
Bench of seven Judges of this Court in the case of
Commissioner, Hindu Religious Endowments, Madras v. Sri
9
He
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt .
submitted that the issue of the interpretation of Article 26 has
been concluded. He lastly submitted that this case should not be
tagged with the review pending before the bench of Hon’ble nine
Judges and at the highest, it may be kept pending till the
disposal of the said case.
Shri Dariaus J. Khambata, the learned senior counsel while
14.
supplementing the submissions made by Shri Fali S. Nariman
1
stated that the judgment in the case of Sardar Syedna has
stood the test of time and there has been no contrary view taken
9 1954 SCR 1005
10
by any Bench. Therefore, no further orders are warranted in this
petition.
RELEVANT PROVISIONS
15. Before we deal with the submissions, a brief reference to the
Excommunication Act is necessary. Sections 2 and 3 thereof, are
material, which read thus:
“2. In this Act, unless there is anything
repugnant in the subject or context, –
(a) "community" means a group the members of
which are connected together by reason of the
fact that by birth, conversion or the
performance of any religious rite they belong to
the same religion or religious creed and
includes a caste or subcaste;
(b) "excommunication" means the expulsion of
a person from any community of which he is a
member depriving him of rights and privileges
which are legally enforceable by a suit of civil
nature by him or on his behalf as such
member.
Explanation. For the purposes of this clause a
right legally enforceable by a suit of civil nature
shall include the right to office or property or to
worship in any religious place or a right of
burial or cremation, notwithstanding the fact
that the determination of such rights depends
entirely on the decision of the question as to
any religious rites or ceremonies or rule or
usage of a community.
Notwithstanding anything contained in any
3.
law, custom or usage for the time being in
force, to the contrary, no excommunication of
11
a member of any community shall be valid and
shall be of any effect. ”
The Excommunication Act has been repealed by the Social
Boycott Act. At this stage, it is not necessary for us to go into the
question of the effect of the Social Boycott Act on the practice of
excommunication or “Baraat” prevailing in the Dawoodi Bohra
community.
THE FINDINGS RECORDED IN SARDAR SYEDNA
Now, we advert to the findings recorded by the Constitution
16.
1.
Bench in the case of Sardar Syedna The said decision contains
separate opinions of K.C. Das Gupta, J. for himself and J.R.
Mudholkar, J.; N. Rajagopala Ayyangar, J. and B. P. Sinha, C.J.
We may note here that B.P. Sinha, C.J. has written a dissenting
opinion. The other Hon’ble Judges took the view that the Ex
communication Act was void as it infringes the rights guaranteed
under Article 26(b) of the Constitution.
Das Gupta, J. concluded that:
(a)The exercise of the power of excommunication on
religious grounds forms a part of the management of the
community through its religious head;
12
(b)The Excommunication Act takes away the freedom
conferred by clause (b) of Article 26 on the head of the
Dawoodi Bohra community to excommunicate its
members on religious grounds;
(c) Though, it is true that the excommunication of a
member of the community will affect many of his civil
rights, the rights conferred by clause (b) of Article 26
have not been made subject to the other fundamental
rights. Therefore, the fact that the civil rights of a person
are affected by the exercise of the rights under clause (b)
of Article 26, is of no consequence;
(d)Prohibiting excommunication on religious grounds, pure
and simple, cannot be considered to promote social
welfare and reform. Therefore, the law which invalidates
excommunication on religious grounds, cannot be
considered to be a measure of social welfare and reform
as contemplated by clause (2)(b) of Article 25; and
(e) Though, in the counter affidavit filed by the State
Government, reliance was placed on the fact that Article
13
26(b) is subject to morality, the said argument was not
pressed into service.
Ayyangar, J. in his elaborate opinion concluded that:
17.
(a)Though, it was argued that a law preventing ex
communication is a measure of social reform, it was not
suggested that the practice of excommunication offended
public order, morality, health or any other part of the
Constitution;
(b)Though, the right under Article 26(b) is subject to public
order, morality or health, it was not suggested that the
practice of excommunication offended public order,
morality or health;
(c) The denomination within the meaning of Article 26 and
the members of the denomination are entitled to ensure
the continuity of the denomination and such continuity is
possible only by maintaining the bond of religious
discipline which would secure the continued adherence of
its members to certain essentials like faith, tenets and
practices;
14
(d)The right guaranteed under clause (1) of Article 25 is not
confined to freedom of conscience as it also includes the
right to practice religion;
(e) By the phrase “law providing for social welfare and
reforms”, it was not intended to enable the legislature to
reform a religion out of existence or identity. Clause (2)(b)
of Article 25 does not cover the basic essentials of the
creed of a religion which are protected by clause (1) of
Article 25;
(f) The power of excommunication for the purpose of
ensuring the preservation of the community has a prime
significance in the religious life of every member of the
group; and
(g)The legislation which penalizes the power to ex
communicate even when exercised for the purposes of
preservation of the community cannot be sustained as a
measure of social welfare or reform without eviscerating
the right guaranteed under clause (1) of Article 25,
thereby rendering the protection illusory.
15
18. In his dissenting opinion, B.P. Sinha, C.J., came to the
following conclusions:
(a)The expressions ‘matters of religion’ and ‘activities
associated with religious practice’ in clause (b) of Article
26 do not cover exactly the same ground. The activities
associated with the religious practice may have serious
ramifications, such as economic and financial;
(b)The autonomy that a religious denomination enjoys
under clause (b) of Article 26 is in matters of religion.
Article 26 itself indicates that a religious denomination
has to deal not only with matters of religion but also with
other matters such as managing property owned and
possessed by the religious community;
(c) The matters of religion under clause (b) of Article 26 are
subject not only to public order, morality and health but
also to legislation contemplated by clause (2)(b) of Article
9
25. In the case of Sri Shirur Mutt , it is distinctly laid
down that clause (b) of Article 26 must be read subject to
clause (2)(b) of Article 25; and
16
(d)The right of excommunication vested in the head of the
community is not purely a religious matter. Therefore,
the Excommunication Act is valid as it does not infringe
the right conferred by clause (b) of Article 26.
WHETHER THE WRIT PETITION
SURVIVES FOR
CONSIDERATION
19. By a majority, the Constitution Bench held that the Ex
communication Act was void being in violation of Article 26(b) of
the Constitution. We must note here that considering the
definition of ‘community’ under Section 2(a) of the Ex
communication Act, the applicability thereof was not confined
only to the Dawoodi Bohra community. The provisions of the Ex
communication Act were applicable to the practice of ex
communication prevailing in different religions, castes or sub
castes. The findings rendered by the majority view are only in
respect of the right of the head of the Dawoodi Bohra community
to excommunicate a member of the community. With the
greatest respect to the Constitution Bench, while recording a
finding regarding violation of Article 26(b) only in relation to
Dawoodi Bohra community, the Excommunication Act in its
entirety could not have been declared void. Therefore, even
17
assuming that the view taken by the Constitution Bench is
correct, the question which certainly survives for consideration is
whether the practice of excommunication prevailing in other
religions, castes or subcastes is constitutionally valid.
20. Even if the Excommunication Act has been repealed, the
issue remains whether the power of the head of Dawoodi Bohra
Community to excommunicate its members is nonjusticiable
being protected under the umbrella of clause (b) of Article 26.
This issue requires examination in the present day context.
Therefore, the argument that nothing survives on merits in the
petition, cannot be accepted.
APPROACH TO BE ADOPTED
21. While interpreting the Constitutional provisions, we must
remember that the Constitution is a living instrument. In
paragraph 262 of the decision of this Court in the case of
K. S.
10
Puttaswamy & Anr. v. Union of India & Ors. , this Court
observed thus:
………………………………………………….
“262.
Hence, it would be an injustice both to the
draftsmen of the Constitution as well as to
the document which they sanctified to
constrict its interpretation to an originalist
10 2017 (10) SCC 1
18
interpretation. Today's problems have to be
adjudged by a vibrant application of
constitutional doctrine and cannot be frozen
by a vision suited to a radically different
We describe the Constitution as a living
society.
instrument simply for the reason that while it is
a document which enunciates eternal values for
Indian society, it possesses the resilience
necessary to ensure its continued relevance. Its
continued relevance lies precisely in its ability to
allow succeeding generations to apply the
principles on which it has been founded to find
innovative solutions to intractable problems of
their times. In doing so, we must equally
understand that our solutions must
continuously undergo a process of re
engineering. ”
(emphasis added)
The originalist interpretation rendered to the provisions of the
Constitution decades back, cannot continue to be valid for all
times to come if the Constitution is to continue as a living
instrument with continued relevance.
22. In paragraph 26 of the decision of this Court in the case of
Central Inland Water Transport Corporation Ltd. & Anr. v.
11
Brojo Nath Ganguly & Anr. , this Court held thus.:
“ 26. The law exists to serve the needs of the
society which is governed by it. If the law is to
play its allotted role of serving the needs of the
society, it must reflect the ideas and ideologies of
that society. It must keep time with the
11 1986 (3) SCC 156
19
heartbeats of the society and with the needs
and aspirations of the people. As the society
changes, the law cannot remain immutable.
The early nineteenth century essayist and
wit, Sydney Smith, said: “When I hear any
man talk of an unalterable law, I am
convinced that he is an unalterable fool.” The
law must, therefore, in a changing society
march in tune with the changed ideas and
ideologies. Legislatures are, however, not best
fitted for the role of adapting the law to the
necessities of the time, for the legislative
process is too slow and the legislatures often
divided by politics, slowed down by periodic
elections and overburdened with myriad other
legislative activities. A constitutional
document is even less suited to this task, for
the philosophy and the ideologies underlying
it must of necessity be expressed in broad and
general terms and the process of amending a
Constitution is too cumbersome and time
consuming to meet the immediate needs. This
task must, therefore, of necessity fall upon
the courts because the courts can by the
process of judicial interpretation adapt the
law to suit the needs of the society.”
(emphasis added)
In view of what is held above, the role of the Constitutional
Courts to interpret the Constitution considering the changing
needs of the society assumes importance.
5
23. The Constitution Bench in the case of
Navtej Singh Johar
emphasized that the principle of transforming Constitutionalism
20
also places upon the judicial arm a duty to ensure that a sense of
transformation is ushered consistently in the society by
interpreting and enforcing the Constitutional as well as other
provisions of law. Constitutional law has developed a great deal
during the last few decades. The interpretation of various
provisions of the Constitution made by this Court decades back
has undergone a drastic change. For example, the narrow
interpretation given to Article 21 in the ‘A.K. Gopalan’ era is no
longer valid. The concept of freedom has undergone changes. In
st
the 21 Century, society looks completely different from what it
looked in the last century. We see a change in the sociocultural
ethos of society. Thus, the interpretation of law must keep pace
with changing needs of society.
MORALITY IN THE
CONTEXT OF ARTICLES 25
AND 26
The freedom of conscience guaranteed under clause (1) of
24.
Article 25 is subject to public order, morality and health. All four
clauses (a), (b,), (c) and (d) of Article 26 are also made specifically
subject to public order, morality and health. Thus, the right of
the religious denomination to manage its own affairs in matters
of religion is always subject to morality. As far as the concept of
21
morality contemplated by Articles 25 and 26 is concerned, much
water has flown after the decision in the case of
Sardar
1 1
Syedna . Moreover, in the case of Sardar Syedna , the
argument that Article 26(b) is subject to morality, was not at all
considered as it was not canvassed and pressed at the time of
5
hearing. In the case of , this Court held
Navtej Singh Johar
that when this Court deals with the issue of morality, it must be
guided by the concept of Constitutional morality and not by
societal morality. Moreover, notion of morality evolves with time
and is not static. The question whether Constitutional morality
can be equated with equality, fraternity and nondiscrimination
needs consideration.
25. The concept of morality as contemplated by Articles 25 and
26 was considered in greater detail by another Constitution
6
Bench in the case of Sabrimala Temple 5JJ . There were four
separate opinions rendered by the Constitution Bench. Dipak
Misra, C.J., who wrote the opinion for himself and A. M.
Khanwilkar, J. and Dr. D. Y. Chandrachud, J. (as then he was),
in their separate opinions concurred on the interpretation of the
concept of morality under Articles 25 and 26 of the Constitution.
They also dealt with the issue of the interplay between the rights
22
under Article 26 and the other rights under part III of the
Constitution. The conclusions in the separate opinions of Dipak
Misra, C.J. and Dr. D.Y. Chandrachud, J. can be summarized as
under:
(a)The expression ‘morality’ used in Articles 25 and 26 has an
overarching position similar to public order and health;
(b)The term ‘morality’ cannot be viewed with a narrow lens so
as to confine the definition of morality to what an individual
or a religious sect may perceive to mean. Morality naturally
implies Constitutional morality and any view that is
ultimately taken by the Constitutional Courts must be in
conformity with the basic tenets of Constitutional morality.
‘Morality’ for the purposes of Articles 25 and 26 must mean
that which is governed by fundamental Constitutional
principles;
(c) The expression ‘subject to’ is in nature a condition and
therefore, public order, morality and health control Article
26;
(d)There is no convincing reason to allow provisions of Article
26 to tread in isolation. Even if Article 26 is not specifically
23
made subject to other fundamental rights, there would still
be a ground to read both together so that they can exist in
harmony. Absence of specific words in Article 26 making it
subject to other fundamental rights cannot allow freedom of
religious denomination to exist in an isolated silo; and
(e) The freedom of religious denominations under Article 26
must be read in a manner that requires the preservation of
equality, and other individual freedoms which may be
impacted by unrestricted exercise;
Nariman, J in paragraph 176.7, stressed that the term
26.
‘morality’ refers to that which is considered abhorrent to civilized
society, given the mores of the time, by reason of harm caused by
way, inter alia, of exploitation and degradation.
6
27. In his opinion rendered in Sabrimala Temple–5JJ , Dr.
D.Y. Chandrachud, J.(as he then was) has dealt with the
engagement of essential religious practices with Constitutional
values. While dealing with the said issue, in paragraph 289, he
has observed thus:
“ 289. For decades, this Court has witnessed
claims resting on the essentiality of a practice
that militate against the constitutional protection
of dignity and individual freedom under the
24
Constitution. It is the duty of the courts to
ensure that what is protected is in conformity
with fundamental constitutional values and
guarantees and accords with constitutional
morality. While the Constitution is solicitous
in its protection of religious freedom as well
as denominational rights, it must be
understood that dignity, liberty and equality
constitute the trinity which defines the faith
of the Constitution. Together, these three
values combine to define a constitutional order of
priorities. Practices or beliefs which detract from
these foundational values cannot claim
legitimacy.”
(emphasis added)
The question is whether the exclusionary practice which
28.
prevails in the Dawoodi Bohra community of excommunicating
its members will stand the test of Constitutional morality? As
1
observed by Das Gupta, J. in the case of Sardar Syedna , the
excommunication of a member of the community affects many of
his civil rights. The Privy Council, in the case of Hasanali &
| Ors. v. Mansoorali | & Ors. |
|---|
effect of excommunication in Dawoodi Bohra community.
Paragraph 4 reads thus:
| “4. | The appellants would limit the effect of |
|---|---|
| excommunication, whatever steps might have | |
| been taken to bring it into being, to complete |
| 12 | 1947 SCC OnLine PC 63 |
|---|
25
| social ostracism. There is nothing, they say, | |||
|---|---|---|---|
| to show that it excluded from rights of | |||
| property or worship. Their Lordships do not | |||
| find themselves able to accept this limitation. | |||
| The Dai is a religious leader as well as being | |||
| trustee of the property of the community, and | |||
| in India exclusion from caste is well known. | |||
| There is at least one case in which it is recorded | |||
| that certain persons applied to the King to | |||
| intercede with the thirtythird Dai, complaining | |||
| that in consequence of excommunication they | |||
| were kept from the mosques and places where | |||
| true believers met; and no instance has been | |||
| cited where excommunicated persons freely | |||
| exercised their religious rights. Indeed, the | |||
| complaint in the cases brought to their | |||
| Lordships' attention as regards which relief is | |||
| claimed for the appellants or those whom they | |||
| are said to represent is that they were wrongly | |||
| excommunicated, not that if rightly | |||
| excommunicated they were wrongly deprived of | |||
| their religious rights. | Excommunication, in | ||
| their Lordships' view, if justified, necessarily | |||
| involves exclusion from the exercise of | |||
| religious rights in places under the | |||
| trusteeship of the head of the community in | |||
| which religious exercises are performed | .” |
(emphasis added)
A person who is excommunicated by the community, will
not be entitled to use the common property of the community
and the burial/cremation grounds of the community. In a sense,
such a person will virtually become untouchable (being banished
or ostracized) within the community. In a given case, it will result
in his civil death. It can be argued that the concept of
26
Constitutional morality which overrides the freedom conferred by
clause (b) of Article 26, will not permit the civil rights of ex
communicated persons which originate from the dignity and
liberty of human beings to be taken away. The concepts of
equality, liberty and fraternity are certainly part of our
Constitutional morality. Basic ideas enshrined in our
Constitution are part of Constitutional morality. The conscience
of our Constitution is Constitutional morality. Hence, it is
contended that excommunication or ostracisation is anathema
to the concepts of liberty and equality. It is against the anti
discriminatory ethos which forms a part of Constitutional
morality. Therefore, the Constitutional Court ought not to
tolerate anything which takes away the right and privilege of any
person to live with dignity as the concept of Constitutional
morality does not permit the Court to do so. Therefore, in our
view, the protection under Article 26(b) granted by the decision in
1
the case of to the power to excommunicate a
Sardar Syedna
member of the Dawoodi Bohra community, needs reconsideration
as the said right is subject to morality which is understood as
Constitutional morality. This issue will require examination by a
larger Bench.
27
29. The concurring opinions rendered by Dr. D.Y.
Chandrachud, J. and Mr. R.F. Nariman, J. extensively refer to
1
the case of Sardar Syedna . In paragraph 164, Nariman, J.
records that there is a need to look into the finding recorded by
1
the majority view in the case of on the
Sardar Syedna
applicability of clause (2)(b) of Article 25 in some future cases.
INTERPLAY BETWEEN THE
OTHER FUNDAMENTAL RIGHTS
UNDER PART III AND ARTICLE
26
30. We have already referred to the opinion of D.Y.
6
Chandrachud, J. (as then he was) in Sabrimala Temple– 5 JJ .
It was held that though Article 26 is not specifically made subject
to other fundamental rights, there would still be a ground to read
both together so that they can exist in harmony. The freedom of
religious denominations cannot exist in isolation. Nariman, J. in
his opinion has also dealt with this issue. In note 59 appended to
paragraph 176.7, he observed that:
“ (59). We were invited by the learned Amicus
Curiae, Shri Raju Ramachandran, to read the
word “morality” as being “constitutional morality”
as has been explained in some of our recent
judgments. If so read, it cannot be forgotten that
this would bring in, through the back door, the
other provisions of Part III of the Constitution,
28
| which Article 26 is not subject to, in contrast<br>with Article 25(1). In any case, the fundamental<br>right under Article 26 will have to be balanced<br>with the rights of others contained in Part III<br>as a matter of harmonious construction of<br>these rights as was held in Shri<br>Venkataramana Devaru, AIR 1958 SC 255 :<br>1958 SCR 895. But this would only be on a<br>casetocase basis, without necessarily<br>subjecting the fundamental right under<br>Article 26 to other fundamental rights<br>contained in Part III.” | |
|---|---|
| (emphasis added) | |
Thus, Nariman, J. was of the view that there may be a need
to balance rights under Article 26(b) with the other fundamental
rights under Part III of the Constitution without necessarily
subjecting the fundamental rights under Article 26 to other
fundamental rights contained in Part III.
Even assuming that the excommunication of members of
31.
the Dawoodi Bohra community is always made on religious
grounds, the effect and consequences thereof, on the person ex
communicated needs to be considered in the context of
justiciable Constitutional rights. The excommunication will have
many civic consequences which will, prima facie, affect his
fundamental right to live with dignity and the right to lead a
meaningful life guaranteed by Article 21. Therefore, the question
29
is whether the said right of the community to excommunicate its
members can be balanced with the other fundamental rights
under Part III of the Constitution and in particular, Article 21.
CONCLUSIONS
To conclude, prima facie, we find that the exercise of
32.
balancing the rights under Article 26(b) with other rights under
Part III and in particular Article 21 was not undertaken by the
1
Constitution Bench in the case of Sardar Syedna . This
question is substantially in issue before the Bench of nine Judges
in Sabrimala Temple Review 9JJ . Moreover, the question
whether the protection can be given by Article 26(b) to the
practice of excommunication is to be tested on the touchstone of
the concept of Constitutional morality as the said right is subject
to morality. This is an important and emergent issue. These are
the two main grounds on which the said decision may need
reconsideration by a larger Bench.
6
33. Sabrimala Temple–5JJ decision was subjected to a
review. This Court dealt with the review
(Sabrimala Temple
7
Review – 5JJ. ). The majority opinion contains questions
30
formulated for referring it to a larger Bench. Question Nos. 5.1 to
5.3 are relevant which reads thus:
“5.1.(i) Regarding the interplay between the
freedom of religion under Articles 25 and 26 of
the Constitution and other provisions in Part
III, particularly Article 14.
5.2.(ii) What is the sweep of expression “public
order, morality and health” occurring in
Article 25(1) of the Constitution.
5.3.(iii) The expression “morality” or
“constitutional morality” has not been defined
in the Constitution. Is it overarching morality
in reference to Preamble or limited to religious
beliefs or faith. There is need to delineate the
contours of that expression, lest it becomes
subjective.”
Accordingly, the review petition was listed before a nineJudge
th
Bench. By the order dated 10 February 2020, the Bench of
8
nineJudges ( framed seven
Sabrimala Temple Review –9 JJ. )
questions of law, out of which questions 3 and 4 are relevant for
our purposes read thus:
“3. Whether the rights of a religious
denomination under Article 26 of the
Constitution of India are subject to other
provisions of Part III of the Constitution of
India apart from public order, morality and
health?
31
4.What is the scope and extent of the word
‘morality’ under Articles 25 and 26 of the
Constitution of India and whether it is meant
to include Constitutional morality?”
34. In view of the discussion made above, questions 3 and 4
formulated by the nineJudge Bench also arise for consideration
in the present writ petition. The decision which will be rendered
by the nineJudge Bench will have a direct impact on the
questions which arise for determination in this writ petition.
35. In the circumstances, we are of the view that the present
writ petition deserves to be tagged with Review Petition (Civil)
No.3358 of 2018 pending before the Bench of nine Hon’ble
Judges. We, accordingly direct the Registry to seek appropriate
directions in this behalf from the Hon’ble Chief Justice.
…....…………………J.
(Sanjay Kishan Kaul)
…....…………………J.
(Sanjiv Khanna)
…….…………………J.
(Abhay S. Oka)
…....…………………J.
(Vikram Nath)
…….…………………J.
(J. K. Maheshwari)
New Delhi;
February 10, 2023.
32