Central Board Of Dawooodi Bohra ... vs The State Of Maharashtra

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

1. In Writ Petition (C) No.740 of 1986, the preliminary issue is

whether the view taken by a Constitution Bench of this Court in

the case of Sardar Syedna Taher Saifuddin Saheb v. State of

Bombay1, requires reconsideration.

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

2. In the case of Sardar Syedna1, 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.

3. Sardar Syedna Taher Saifuddin Saheb, who was the 51 st

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

Syedna1. “Rule nisi” was issued in the petition on 25 th August 3 1986. On 18th March 1994, a Division Bench directed that the

petition be listed before a Bench of seven Judges. The 2 nd

Respondent – Syedna Mufaddal (53rd Dai­al­Mutlaq) made an

application seeking a direction that the petition should be listed

before a Division Bench. The writ petition was listed before a

Constitution Bench. By the judgment and order dated 17 th

December 20042, the Constitution Bench partly allowed the

application filed by the 2nd Respondent. Paragraph 14 of the said

order read thus:

“14. In the facts and circumstances of this case, 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.”

5. In terms of the aforesaid order, Writ Petition with the

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

taken in the case of Sardar Syedna1 needs reconsideration.

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 submission is that the 2nd Respondent – Syedna Mufaddal (53rd

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

of this Court in the cases of Manoj Narula v. Union of India3,

State (NCT of Delhi) v. Union of India & Anr.4 and Navtej

Singh Johar & Ors. v. Union of India 5 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.

v. State of Kerala & Ors.6 (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

5JJ6, the word ‘morality’ found in Article 26 would subsume

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

has flown after Sardar Syedna1 and therefore, it requires

reconsideration.

11. Shri Tushar Mehta, the learned Solicitor General of India,

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 &

Ors.7 (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

Association & Ors.8 (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

for the 2nd 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.

13. He submitted that the decision in the case of Sardar

Syedna1 was noted by the Constitution Bench in the case of

(Sabarimala Temple 5JJ) 6. He relied upon the decision of the

Bench of seven Judges of this Court in the case of

Commissioner, Hindu Religious Endowments, Madras v. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt9. He

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.

14. Shri Dariaus J. Khambata, the learned senior counsel while

supplementing the submissions made by Shri Fali S. Nariman

stated that the judgment in the case of Sardar Syedna1 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.

3. Notwithstanding anything contained in any 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

16. Now, we advert to the findings recorded by the Constitution

Bench in the case of Sardar Syedna1. 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.

17. Ayyangar, J. in his elaborate opinion concluded that:

(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

25. In the case of Sri Shirur Mutt9, 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.

Puttaswamy & Anr. v. Union of India & Ors. 10, 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 society. We describe the Constitution as a living 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.

Brojo Nath Ganguly & Anr.11, 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.

23. The Constitution Bench in the case of Navtej Singh Johar5

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

the 21st 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

24. The freedom of conscience guaranteed under clause (1) of

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

Syedna1. Moreover, in the case of Sardar Syedna1, 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

hearing. In the case of Navtej Singh Johar 5, this Court held

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

Bench in the case of Sabrimala Temple 5JJ 6. 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;

26. Nariman, J in paragraph 176.7, stressed that the term

‘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.

27. In his opinion rendered in Sabrimala Temple–5JJ 6, 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)

28. The question is whether the exclusionary practice which

prevails in the Dawoodi Bohra community of ex­communicating

its members will stand the test of Constitutional morality? As

observed by Das Gupta, J. in the case of Sardar Syedna1, 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.12, in paragraph 4, has dealt with the

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

the case of Sardar Syedna1 to the power to ex­communicate a

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

the case of Sardar Syedna1. In paragraph 164, Nariman, J.

records that there is a need to look into the finding recorded by

the majority view in the case of Sardar Syedna1 on the

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.

Chandrachud, J. (as then he was) in Sabrimala Temple– 5 JJ 6.

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 with Article 25(1). In any case, the fundamental right under Article 26 will have to be balanced with the rights of others contained in Part III as a matter of harmonious construction of these rights as was held in Shri Venkataramana Devaru, AIR 1958 SC 255 :

1958 SCR 895. But this would only be on a case­to­case basis, without necessarily subjecting the fundamental right under Article 26 to other fundamental rights 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.

31. Even assuming that the ex­communication of members of

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

32. To conclude, prima facie, we find that the exercise of

balancing the rights under Article 26(b) with other rights under

Part III and in particular Article 21 was not undertaken by the

Constitution Bench in the case of Sardar Syedna1. 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.

33. Sabrimala Temple–5JJ 6

decision was subjected to a

review. This Court dealt with the review (Sabrimala Temple

Review – 5JJ.7). 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

Bench. By the order dated 10 th February 2020, the Bench of

nine­Judges (Sabrimala Temple Review –9 JJ.8) framed seven

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?

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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.

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