Bombay Protection of Ex-communication Act, 1949 – The Act, 1949 provided that ex-communication of a member of any community shall be invalid and shall be of no effect – Head of the Dawoodi Bohra community challenged the Act on grounds that it infringed on fundamental rights guaranteed u/Arts.25 and 26 of the Constitution – A Constitution Bench of Supreme Court (of five Judges) in the case of Sardar Syedna, by majority, held that excommunication amongst the Dawoodi Bohras forms an integral part of the management of the community and 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 – The Supreme Court held that as the Ex-communication Act invalidates excommunication 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 u/Art.26(b) of the Constitution – Present writ petition filed seeking reconsideration and overruling of that decision and for issuing a writ of mandamus directing the respondent-State to give effect to the provisions of the Act, 1949 – Meanwhile, the Maharashtra Protection of People from Social Boycott Act repealed the Excommunication Act – Whether the view taken by Constitution Bench in the case of Sardar Syedna requires reconsideration – Held: The exercise of balancing the rights under Art.26(b) with other rights under Part III and in particular Art.21 was not undertaken by the 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 of whether protection can be given by Art.26(b) to the practice of ex-communication also is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality – Thus, these questions are the two main grounds on which the said decision may need reconsideration by a larger Bench – The Bench of nine-Judges (Sabrimala Temple Review –9 JJ) framed seven questions of law, out of which questions 3 and 4 also arise for consideration in the present writ petition – Present writ petition, thus, deserves to be tagged with Review Petition pending before the Bench of nine Hon’ble Judges – Registry to seek appropriate directions in this behalf from Hon’ble the Chief Justice of India – Constitution of India – Arts. 25 and 26 – Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. Constitution of India – Interpretation of Constitutional provisions – Approach to be adopted – Held: Constitution is a living instrument – The originalist interpretation rendered to 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 – Interpretation of law must keep pace with changing needs of society.
Constitution of India – Arts. 25 and 26 – Morality in the context of Arts. 25 and 26 – Discussed.
While passing directions, the Court
HELD: Whether the writ petition survives for consideration:
1.1. By a majority, the Constitution Bench in the case of Sardar Syedna held that the Bombay Protection of Excommunication Act, 1949 was void being in violation of Article 26(b) of the Constitution. However, 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, whereas the findings rendered by the majority view are only in respect of the right of the head of the Dawoodi Bohra community to ex-communicate a member of the community. Thus, the Ex-communication Act in its entirety could not have been declared void. Therefore, even assuming that the view taken by the Constitution Bench is correct, the question which certainly survives for consideration is whether the practice of ex-communication prevailing in other religions, castes or sub-castes is constitutionally valid. [Para 19][307-E-H]
1.2. Even if the Ex-communication Act has been repealed, the issue remains whether the power of the head of Dawoodi Bohra Community to ex-communicate its members is nonjusticiable being protected under the umbrella of clause (b) of Article 26. This issue requires examination in the present-day context. [Para 20][307-H; 308-A]
Approach to be adopted:
2. While interpreting the Constitutional provisions, one must remember that the Constitution is a living instrument. 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. Constitutional law has developed a great deal during the last few decades. The concept of freedom has undergone changes and in the 21stcentury, society looks completely different from what it looked in the last century. Thus, the interpretation of law must keep pace with changing needs of society. [Paras 21 and 23][308-B-C, F-G; 310-A-B]
Morality in the context of Articles 25 and 26:
3. 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 morality contemplated by Articles 25 and 26 is concerned, much water has flown after the decision in the case of Sardar Syedna where 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. Thus, the question whether Constitutional morality can be equated with equality, fraternity and non-discrimination needs consideration. [Para 24][310-B-E] Conclusion:
4.1. 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 Syedna. This question is substantially in issue before the Bench of nine Judges in Sabrimala Temple Review -9JJ. Moreover, the question of whether the protection can be given by Article 26(b) to the practice of ex-communication also is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality and this is an important and emergent issue. Thus, making these questions, two main grounds on which the said decision may need reconsideration by a larger Bench. [Para 32][315-A-C]
4.2. Sabrimala Temple–5JJ decision was subjected to a review. This Court dealt with the review (Sabrimala Temple Review–5JJ). The majority opinion contains questions formulated for referring it to a larger Bench. Accordingly, the review petition was listed before a nine-Judge Bench. The Bench of nine-Judges (Sabrimala Temple Review –9 JJ) framed seven questions of law, out of which questions 3 and 4 also arise for consideration in the present writ petition. The decision which will be rendered by the nine-Judge Bench will have a direct impact on the questions which arise for determination in this writ petition. In the circumstances, 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. Accordingly, the Registry is directed to seek appropriate directions in this behalf from the Hon’ble Chief Justice. [Paras 33, 34 and 35][315-C-D, G; 316-B-C]
Navtej Singh Johar & Ors. v. Union of India 2018 (10) SCC 1: [2018] 7 SCR 379 – followed.
K. S. Puttaswamy & Anr. v. Union of India & Ors. 2017
(10) SCC 1: [2017] 10 SCR 569; Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. 1986 (3) SCC 156: [1986] 2 SCR 278 – relied on.
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496; Manoj Narula v. Union of India 2014 (9) SCC 1: [2014] 9 SCR 965; State (NCT of Delhi) v. Union of India & Anr. 2018 (8) SCC 501: [2018] 7 SCR 1; Indian Young Lawyers Association & Ors. v. State of Kerala & Ors. 2019 (11) SCC 1: [2018] 9 SCR 561; Kantaru Rajeevaru v. Indian Young Lawyers Association & Ors. (Sabarimala Temple Review–5 JJ.) 2020 (2) SCC 1 : [2019] 17 SCR 599; Kantaru Rajeevaru (Right to Religion; in Re – 9 JJ.) v. Indian Young Lawyers Association & Ors. (Sabrimala Temple Review– 9 JJ) 2020 (3) SCC 52 and
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] SCR 1005 –referred to.
Hasanali & Ors. v. Mansoorali & Ors.1947 SCC
OnLine PC 63 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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