Supreme Court of India
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY & ANR.versusTHE STATE OF MAHARASHTRA &ANR.
- Citation
- 2023 INSC 115
- Decided
- 10 February 2023
- Disposal
- Directions issued
- Bench
- SANJAY KISHAN KAUL
Holding
The Court held that the issues raised necessitate reconsideration by the nine‑Judge Bench and therefore directed the writ petition to be tagged with the pending review petition.
Summary
The Central Board of Dawoodi Bohra Community sought a mandamus directing the State of Maharashtra to enforce the Bombay Protection of Ex‑communication Act, 1949, challenging the Supreme Court's earlier decision in Sardar Syedna which held the Act void for violating Article 26(b). The Act had been repealed by the Maharashtra Protection of People from Social Boycott Act, 2016, raising the question of whether any issue remained for adjudication. The Court examined whether the Sardar Syedna judgment requires reconsideration, especially in light of the need to balance Article 26(b) with other fundamental rights and the concept of constitutional morality. It noted that the earlier bench had not addressed the interplay between religious freedom and rights such as Article 21, and that these questions are now before a nine‑Judge Bench in the Sabrimala Temple review. Consequently, the Court directed that the writ petition be linked with the pending review petition (Civil) No. 3358 of 2018 and sought appropriate directions from the Chief Justice.
Issues considered
- The view taken in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay requires reconsideration.
- Whether the practice of ex‑communication in other religions, castes or sub‑castes is constitutionally valid.
- Whether the power of the head of the Dawoodi Bohra community to ex‑communicate is non‑justiciable under Article 26(b).
- Whether Article 26(b) is subject to public order, morality and health, and specifically to constitutional morality.
- Whether the balancing of Article 26(b) with other fundamental rights, particularly Article 21, was undertaken.
- Whether the writ petition survives for consideration despite the repeal of the Ex‑communication Act.
Legislation cited
Subjects
ex‑communicationreligious freedomArticle 26(b)constitutional moralitySabarimala Temple reviewfundamental rightssocial boycottliving constitutionbalancing rightsreview petition
Judgment
[2023] 1 S.C.R. 293 293
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY A
& ANR.
V.
THE STATE OF MAHARASHTRA &ANR.
B
(Writ Petition (Civil) No. 740 of 1986)
FEBRUARY 10, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA,
ABHAY S. OKA, VIKRAM NATH AND
C
J. K. MAHESHWARI, JJ.]
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 D
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 ex-
communication amongst the Dawoodi Bohras forms an integral part
of the management of the community and therefore, interference E
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
F
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
G
Protection of People from Social Boycott Act repealed the Ex-
communication 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
H
293
294 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G Sardar Syedna held that the Bombay Protection of Ex-
communication 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
H
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 295
v. THE STATE OF MAHARASHTRA
Bohra community. The provisions of the Ex-communication Act A
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 B
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] C
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 non-
justiciable being protected under the umbrella of clause (b) of
Article 26. This issue requires examination in the present-day D
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 E
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 F
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]
G
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
H
296 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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
B 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]
C
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
D 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
E 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
F 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,
G 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
H
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 297
v. THE STATE OF MAHARASHTRA
Petition (Civil) No.3358 of 2018 pending before the Bench of A
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)
B
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 C
– 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;
D
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; E
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 F
[1954] SCR 1005 –referred to.
Hasanali & Ors. v. Mansoorali & Ors.1947 SCC
OnLine PC 63 – referred to.
Case Law Reference G
[1962] Suppl. 2 SCR 496 referred to Para 1
[2014] 9 SCR 965 referred to Para 7
H
298 SUPREME COURT REPORTS [2023] 1 S.C.R.
A [2018] 7 SCR 1 referred to Para 7
[2018] 7 SCR 379 followed Para 7
[2018] 9 SCR 561 referred to Para 7
B [2019] 17 SCR 599 referred to Para 11
2020 (3) SCC 52 referred to Para 11
[1954] SCR 1005 referred to Para 13
[2017] 10 SCR 569 relied on Para 21
C
[1986] 2 SCR 278 relied on Para 22
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
740 of 1986.
D (Under Article 32 of the Constitution of India)
With
Criminal Appeal No. 39 of 1991
E Siddharth Bhatnagar, Sr. Adv., Sanklap Goswami, Azhar Alam,
Ms. B. Vijayalakshmi Menon, Mrs. Manik Karanjawala, Ms. Nandini
Gore, Jatin Mongia, Ms. Tahira Karanjawala, Ms. Niharika Karanjawala,
Arjun Sharma, Ms. Neha Khandelwal, Sarthak Gaur, Karanveer Singh
Anand, Ritwik Mohapatra, Ms. Pracheta Kar, Aditya Sidhra, Nadeem
F Afroz, Vardaan Wanchoo for M/s. Karanjawala & Co., Advs. for the
Petitioners.
Tushar Mehta, S.G., Fali S Nariman, Dariaus Khambata, Pravin
H Parekh, D. J. Khambata, Parag Tripathi, Sr. Advs., Siddharth
Dharamdhikari, Kanu Agrawal, Aaditya Aniruddha Pande, Sameer
G Parekh, Subhash Sharma, Abeezar Faizullabhoy, D.P. Mohanty, Murtaza
Kachwala, Ms. Sonal Gupta, M. Algaus Shaikh, Prateek Khandelwal,
Ms. Manju Bajaj, Ms. Prerna Amitabh, Mustafa Maimoon, Ammar
Faizullabhoy for M/s. Parekh & Co., Sandeep Narain, Moinuddin Algaus
Shaikh, Ms. Kanak Malik for M/s. S. Narain & Co., Ms. Deepanwita
H Priyanka, Advs. for the Respondents.
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 299
v. THE STATE OF MAHARASHTRA
The Judgment of the Court was delivered by A
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 B
case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay1,
requires reconsideration.
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 Ex-communication C
Act, 1949 (for short, ‘the Ex- communication Act’). Section 3 of the
Ex-communication 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 Ex-communication Act, the term
‘community’ was defined to mean a group, the members of which are D
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 Ex-communication Act, ‘ex-communication’ was defined
as the expulsion of a person from any community of which he is a member E
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 51st
Dai-al-Mutlaq and the head of the Dawoodi Bohra community, challenged
the Ex-communication Act on the ground that the same infringes the F
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 ex-communication 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 G
own affairs in matters of religion. This Court held that as the
Ex-communication 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
H
300 SUPREME COURT REPORTS [2023] 1 S.C.R.
A to hold that the Ex-communication 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
B effect to the provisions of the Ex-communication Act after reconsidering
the decision of this Court in the case of Sardar Syedna1. “Rule nisi”
was issued in the petition on 25th August 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 (53 rd
Dai-al-Mutlaq) made an application seeking a direction that the petition
C should be listed before a Division Bench. The writ petition was listed
before a Constitution Bench. By the judgment and order dated 17th
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
D 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
E 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,
F 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 short, ‘the Social Boycott Act’).
By clause (c) of Section 20 of the Social Boycott Act, the
Ex-communication Act was repealed.
G THE BROAD QUESTIONS FOR CONSIDERATION
6. As the Ex-communication 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
1
(1962) Suppl. (2) SCR 496 : AIR 1962 SC 853
2
H 2005 (2) SCC 673
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 301
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
writ petition still survives for consideration, the question which will arise A
is whether the vi ew taken i n the case of Sardar Syedna 1 needs
reconsideration.
SUBMISSIONS
7. We have heard the parties on the aforesaid questions. Shri
Siddharth Bhatnagar, the learned senior counsel representing the B
petitioners pointed out that the Constitution Bench has held that the
practice of Baraat/ex-communication 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
Ex-communication Act is repealed, the question whether the practice of C
ex-communication falls within the ambit of “matters of religion”, needs
to be decided. His submission is that the 2nd Respondent – Syedna
Mufaddal (53rd Dai-al-Mutlaq) 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 ex-communication is considered a matter of religion, it D
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 E
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 India5 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 F
5JJ), which according to him, holds that practices destructive of liberty
and 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 ex-communication in the G
Dawoodi Bohra community is violative of Articles 17, 19(1)(a), 19(1)(c)
3
2014 (9) SCC 1
4
2018 (8) SCC 501
5
2018 (10) SCC 1
6
2019 (11) SCC 1
H
302 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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
B Panchayat of the community. He submitted that a member of the
Dawoodi Bohra community who is already ex-communicated, 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
ex-communication.
C
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 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
D 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 ex-communicated person belonging to the Dawoodi
E 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
F 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
G Ex-communication Act has been repealed, the question whether the
practice of Baraat/ex-communication 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
7
H 2020 (2) SCC 1
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 303
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
Review – 5 JJ.). He submitted that the Constitution Bench has held A
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
B
(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 C
nd
the 2 Respondent urged that in view of the repeal of the Ex-
communication Act, nothing survives in the petition considering 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. D
1
13. He submitted that the decision in the case of Sardar Syedna
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 Mutt 9. E
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
F
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 by any Bench. Therefore, no
further orders are warranted in this petition.
RELEVANT PROVISIONS
G
15. Before we deal with the submissions, a brief reference to the
Ex-communication Act is necessary. Sections 2 and 3 thereof, are material,
which read thus:
8
2020 (3) SCC 52
9
1954 SCR 1005 H
304 SUPREME COURT REPORTS [2023] 1 S.C.R.
A “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
B religion or religious creed and includes a caste or sub-caste;
(b) “ex-communication” 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.
C
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
D 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 ex-communication
of a member of any community shall be valid and shall be of any
E effect.”
The Ex-communication 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
ex-communication or “Baraat” prevailing in the Dawoodi Bohra
F 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
G 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.
H
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 305
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
Das Gupta, J. concluded that: A
(a) The exercise of the power of ex-communication on religious
grounds forms a part of the management of the community
through its religious head;
(b) The Ex-communication Act takes away the freedom B
conferred by clause (b) of Article 26 on the head of the
Dawoodi Bohra community to ex-communicate its members
on religious grounds;
(c) Though, it is true that the ex-communication of a member
of the community will affect many of his civil rights, the C
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
(d) Prohibiting ex-communication on religious grounds, pure and
simple, cannot be considered to promote social welfare and
reform. Therefore, the law which invalidates
ex-communication on religious grounds, cannot be
considered to be a measure of social welfare and reform
E
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
26(b) is subject to morality, the said argument was not
pressed into service. F
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 ex-communication offended
G
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
H
306 SUPREME COURT REPORTS [2023] 1 S.C.R.
A practice of ex-communication 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
B 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;
(d) The right guaranteed under clause (1) of Article 25 is not
C 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)
D 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 ex-communication for the purpose of ensuring
the preservation of the community has a prime significance
E
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
F measure of social welfare or reform without eviscerating
the right guaranteed under clause (1) of Article 25, thereby
rendering the protection illusory.
18. In his dissenting opinion, B.P. Sinha, C.J., came to the following
conclusions:
G
(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;
H
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 307
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
(b) The autonomy that a religious denomination enjoys under A
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;
B
(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
C
(2)(b) of Article 25; and
(d) The right of ex-communication vested in the head of the
community is not purely a religious matter. Therefore, the
Ex-communication Act is valid as it does not infringe the
right conferred by clause (b) of Article 26.
D
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 E
‘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 F
only in respect of the right of the head of the Dawoodi Bohra community
to ex-communicate 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
Ex-communication Act in its entirety could not have been declared void.
Therefore, even assuming that the view taken by the Constitution Bench G
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.
20. Even if the Ex-communication Act has been repealed, the
issue remains whether the power of the head of Dawoodi Bohra H
308 SUPREME COURT REPORTS [2023] 1 S.C.R.
A Community to ex-communicate its members is non-justiciable 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
B
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:
C “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
interpretation. Today’s problems have to be adjudged by a
vibrant application of constitutional doctrine and cannot be
D 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
E 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.”
F (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.
G
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.:
10
2017 (10) SCC 1
11
H 1986 (3) SCC 156
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 309
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
“26. The law exists to serve the needs of the society which is A
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 heartbeats of the
society and with the needs and aspirations of the people.
As the society changes, the law cannot remain immutable.
B
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 C
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
D
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 E
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 F
assumes importance.
23. The Constitution Bench in the case of Navtej Singh Johar5
emphasized that the principle of transforming Constitutionalism 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 G
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
H
310 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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 socio-cultural ethos of society. Thus, the
interpretation of law must keep pace with changing needs of society.
MORALITY IN THE CONTEXT OF ARTICLES 25
B 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
C 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 1. 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
D
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
E non-discrimination 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
F 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 under Article 26 and the other rights under part III of the
Constitution. The conclusions in the separate opinions of Dipak Misra,
G
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
H so as to confine the definition of morality to what an individual
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 311
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
or a religious sect may perceive to mean. Morality naturally A
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;
B
(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 C
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 D
(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;
E
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. F
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 G
protection of dignity and individual freedom under the
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 H
312 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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.”
B
(emphasis added)
28. The question is whether the exclusionary practice which
prevails in the Dawoodi Bohra community of ex-communicating its
members will stand the test of Constitutional morality? As observed by
C Das Gupta, J. in the case of Sardar Syedna1, the ex-communication 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 ex-communication in Dawoodi
Bohra community. Paragraph 4 reads thus:
D “4. The appellants would limit the ef fect of
excommunication, whatever steps might have been taken
to bring it into being, to complete social ostracism. There
is nothing, they say, to show that it excluded from rights of
property or worship. Their Lordships do not find themselves
E 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 thirty-third Dai, complaining that
in consequence of excommunication they were kept from the
F 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
G 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
12
H 1947 SCC OnLine PC 63
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 313
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
head of the community in which religious exercises are A
performed.”
(emphasis added)
A person who is ex-communicated by the community, will not be
entitled to use the common property of the community and the burial/ B
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 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 C
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 ex-communication or ostracisation is anathema to the D
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 E
the case of Sardar Syedna1 to the power to ex-communicate 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.
29. The concurring opinions rendered by Dr. D.Y. Chandrachud, F
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. G
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
H
314 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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:
B
“(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,
C 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
D 255 : 1958 SCR 895. But this would only be on a
case-to-case basis, without necessarily subjecting the
fundamental right under Article 26 to other fundamental
rights contained in Part III.”
E (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.
F
31. Even assuming that the ex-communication 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
ex-communication will have many civic consequences which will, prima
G
facie, affect his fundamental right to live with dignity and the right to
lead a meaningful life guaranteed by Article 21. Therefore, the question
is whether the said right of the community to ex-communicate its
members can be balanced with the other fundamental rights under Part
III of the Constitution and in particular, Article 21.
H
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY 315
v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]
CONCLUSIONS A
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
B
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 ex-communication 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. C
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 formulated for referring it to a
larger Bench. Question Nos. 5.1 to 5.3 are relevant which reads thus: D
“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 E
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 F
subjective.”
Accordingly, the review petition was listed before a nine-Judge
Bench. By the order dated 10th February 2020, the Bench of nine-Judges
(Sabrimala Temple Review –9 JJ.8) framed seven questions of law, G
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? H
316 SUPREME COURT REPORTS [2023] 1 S.C.R.
A 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 nine-Judge Bench also arise for consideration in the
B 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.
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
C 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.
D Bibhuti Bhushan Bose Directions issued.
(Assisted by : Sanika Thakare, LCRA)
E
F
G
H
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