Supreme Court to Reconsider Excommunication in Dawoodi Bohra Community: Central Board of Dawoodi Bohra Community vs. State of Maharashtra (2023)

Date of the Judgment: February 10, 2023
Citation: 2023 INSC 108
Judges: Sanjay Kishan Kaul, J., Sanjiv Khanna, J., Abhay S. Oka, J., Vikram Nath, J., and J.K. Maheshwari, J.
Can a religious community’s practice of excommunication override the fundamental rights of its members? The Supreme Court of India is set to revisit this complex issue, specifically concerning the Dawoodi Bohra community. This case examines whether the community’s right to manage its own religious affairs, including excommunication, infringes upon the constitutional rights of individuals, particularly their right to live with dignity. The five-judge bench, composed of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari, has referred the matter to a larger bench for further deliberation.

Case Background

The case originates from a writ petition filed by the Central Board of Dawoodi Bohra Community challenging the constitutional validity of the Bombay Protection of Excommunication Act, 1949 (the Ex-communication Act). This Act aimed to invalidate excommunication within any community, defining it as the expulsion of a member, depriving them of legally enforceable rights. The petitioners argued that excommunication is an integral part of their religious practice and should be protected under Articles 25 and 26 of the Constitution, which guarantee religious freedom.

In a prior judgment, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, a Constitution Bench of the Supreme Court had upheld the Dawoodi Bohra community’s right to excommunicate its members, striking down the Ex-communication Act as a violation of Article 26(b). However, the present case seeks a reconsideration of that ruling, especially in light of evolving interpretations of constitutional morality and fundamental rights.

The State of Maharashtra, in the interim, enacted the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 (the Social Boycott Act), which repealed the Ex-communication Act. Despite this repeal, the Supreme Court has deemed it necessary to examine the core issue of whether the practice of excommunication is constitutionally valid, particularly in the context of individual rights and constitutional morality.

Timeline:

Course of Proceedings

Initially, the writ petition was filed in 1986, and a Division Bench later directed it to be listed before a seven-judge bench. However, a Constitution Bench in 2004 decided that the matter should be heard by a five-judge bench. This bench was tasked with determining whether the previous decision in Sardar Syedna required reconsideration. The enactment of the Social Boycott Act, which repealed the Ex-communication Act, added another layer of complexity to the case, prompting the court to re-evaluate the core constitutional questions.

Legal Framework

The case revolves around the interpretation of several key constitutional provisions and statutes:

• Article 25 of the Constitution of India: Guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, and health. Clause (2)(b) allows the State to make laws for social welfare and reform.
• Article 26 of the Constitution of India: Grants religious denominations the right to manage their own affairs in matters of religion, subject to public order, morality, and health.
• The Bombay Protection of Excommunication Act, 1949:
  • Section 2(a): Defines “community” as a group connected by religion, birth, conversion or religious rites, including a caste or sub-caste.
  • Section 2(b): Defines “ex-communication” as the expulsion of a person from a community, depriving them of legally enforceable rights.
    
    “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.
  • Section 3: States that no excommunication of a member of any community shall be valid.
    
    “Notwithstanding anything contained in any law,   custom   or   usage   for   the   time   being   in force, to the contrary, no ex­communication of a member of any community shall be valid and shall be of any effect.”
• The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016: Repealed the Ex-communication Act.

Arguments

The petitioners argued that the practice of excommunication within the Dawoodi Bohra community is a matter of religion protected under Article 26(b) of the Constitution. They contended that even if the Ex-communication Act is repealed, the core issue of whether excommunication falls within the ambit of “matters of religion” needs to be decided. They further argued that the religious head of the community also acts as a trustee of community property, performing both religious and non-religious functions.

The petitioners also submitted that even if excommunication is considered a matter of religion, it must yield to social reform legislations protected by Article 25(2) of the Constitution. They asserted that the rights under Article 26 are subject to morality, which includes constitutional morality, encompassing principles of justice, liberty, equality, and fraternity. They cited cases like Manoj Narula v. Union of India, State (NCT of Delhi) v. Union of India & Anr., Navtej Singh Johar & Ors. v. Union of India, and Indian Young Lawyers Association & Ors. v. State of Kerala & Ors. (Sabrimala Temple 5JJ), arguing that practices that undermine liberty and equality cannot be tolerated. They further contended that the practice of excommunication violates Articles 17, 19(1)(a), 19(1)(c), 19(1)(g), 21, and 25 of the Constitution.

The State of Maharashtra, represented by the Solicitor General, argued that despite the repeal of the Ex-communication Act, the question of whether excommunication is protected by Article 26(b) remains relevant. They highlighted the Supreme Court’s order in Kantaru Rajeevaru v. Indian Young Lawyers Association & Ors. (Sabarimala Temple Review – 5 JJ.), which called for an authoritative pronouncement on the freedom of religion by a larger bench.

The respondents argued that with the repeal of the Ex-communication Act, nothing survives in the petition. They also pointed out that the second petitioner had died, and the first petitioner was an unregistered organization without proper representation. They emphasized that the decision in Sardar Syedna has stood the test of time and that the interpretation of Article 26 has been concluded.

The respondents further argued that the judgment in Sardar Syedna was noted by the Constitution Bench in the case of (Sabarimala Temple 5JJ) and relied upon the decision of the seven-judge bench in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.

Issues Framed by the Supreme Court

The Supreme Court identified the following key issues for consideration:

1. Whether the view taken in the case of Sardar Syedna needs reconsideration.
2. Whether the practice of excommunication, even if considered a matter of religion, should yield to social reform legislations and constitutional morality.
3. Whether the rights of a religious denomination under Article 26 are subject to other provisions of Part III of the Constitution, particularly Article 21, apart from public order, morality, and health.
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution, and whether it includes Constitutional morality?
5. Whether the power of the head of the Dawoodi Bohra Community to excommunicate its members is non-justiciable being protected under the umbrella of clause (b) of Article 26.

Treatment of the Issue by the Court:

Authorities

The Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• The Court noted that the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962 Suppl. (2) SCR 496]* needs reconsideration as the said right is subject to morality which is understood as Constitutional morality.
• The Court relied upon Manoj Narula v. Union of India [2014 (9) SCC 1]*, State (NCT of Delhi) v. Union of India & Anr. [2018 (8) SCC 501]*, Navtej Singh Johar & Ors. v. Union of India [2018 (10) SCC 1]* and Indian Young Lawyers Association & Ors. v. State of Kerala & Ors. (Sabrimala Temple 5JJ) [2019 (11) SCC 1]* to emphasize the concept of constitutional morality.
• The Court referred to Kantaru Rajeevaru v. Indian Young Lawyers Association & Ors. (Sabarimala Temple Review – 5 JJ.) [2020 (2) SCC 1]* to emphasize that the freedom of religion needs authoritative pronouncement by a larger bench.
• The Court relied upon K. S. Puttaswamy & Anr. v. Union of India & Ors. [2017 (10) SCC 1]* and Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. [1986 (3) SCC 156]* to emphasize that the Constitution is a living instrument and its interpretation must evolve with changing times.
• The Court distinguished the reliance of the respondents on Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005]* by stating that the issue of the interpretation of Article 26 has not been concluded.
• The Court referred to Kantar Rajeevaru (Right to Religion; in Re – 9 JJ.) v. Indian Young Lawyers Association & Ors. (Sabrimala Temple Review – 9 JJ) [2020 (3) SCC 52]* to show the questions framed by the nine-judge bench, which are relevant to the present case.
• The Court referred to Hasanali & Ors. v. Mansoorali & Ors. [1947 SCC OnLine PC 63]* to highlight the effect of excommunication in the Dawoodi Bohra community.

What weighed in the mind of the Court?

The Supreme Court’s decision to refer the matter to a larger bench was significantly influenced by the following factors:

• Constitutional Morality: The Court emphasized that the concept of morality under Articles 25 and 26 of the Constitution is not limited to societal norms but includes constitutional morality, which encompasses the principles of equality, liberty, and fraternity.
• Interplay of Fundamental Rights: The Court recognized that the rights of religious denominations under Article 26 cannot be viewed in isolation and must be balanced with other fundamental rights, particularly the right to life and dignity under Article 21.
• Evolving Interpretation of the Constitution: The Court acknowledged that the interpretation of the Constitution must evolve with the changing needs of society and that the originalist interpretation of constitutional provisions is no longer sufficient.
• Impact of Excommunication: The Court noted that excommunication can have severe civic consequences, affecting a person’s fundamental right to live with dignity and lead a meaningful life.
• Need for a Larger Bench: The Court observed that the questions of law involved in the case are substantially in issue before a nine-judge bench in the Sabarimala Temple Review case, necessitating a comprehensive review by a larger bench.

The Court’s reasoning was heavily influenced by the need to align religious practices with constitutional values, ensuring that individual rights are not overridden by religious customs. The emphasis on constitutional morality and the interplay of fundamental rights indicates a move towards a more inclusive and rights-based approach.

The Court considered alternative interpretations, particularly the argument that the repeal of the Ex-communication Act rendered the petition moot. However, it rejected this view, recognizing that the core constitutional questions regarding the practice of excommunication and its impact on fundamental rights remain unresolved. The Court also considered the argument that the decision in Sardar Syedna had stood the test of time, but found that the evolving understanding of constitutional morality and fundamental rights necessitated a re-evaluation.

The Court’s decision was to refer the matter to a larger bench for a comprehensive review. This decision was reached after considering the various arguments, relevant legal provisions, and the need to align religious practices with constitutional values.

The Court provided the following reasons for its decision:

• The decision in Sardar Syedna did not adequately consider the concept of constitutional morality.
• The decision in Sardar Syedna did not undertake the exercise of balancing the rights under Article 26(b) with other fundamental rights, particularly Article 21.
• The interpretation of the Constitution must evolve with the changing needs of society.
• The questions of law involved in the case are substantially in issue before a nine-judge bench in the Sabarimala Temple Review case.

The Court quoted the following from the judgment:

“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.”

“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.”

“Practices or beliefs which detract from these foundational values cannot claim legitimacy.”

There were no dissenting opinions in this case. All five judges concurred on the need to refer the matter to a larger bench.

The Supreme Court’s analysis focused on the interplay between the rights of religious denominations and the fundamental rights of individuals, particularly the right to live with dignity. The Court emphasized the importance of constitutional morality, which includes principles of equality, liberty, and fraternity. The Court’s decision to refer the matter to a larger bench indicates a significant step towards re-evaluating the balance between religious freedom and individual rights in India.

The potential implications for future cases include a possible redefinition of the scope of religious freedom under Article 26, particularly in relation to practices that may infringe upon individual rights. The emphasis on constitutional morality could lead to greater scrutiny of religious practices that are seen as discriminatory or exclusionary.

The Court did not introduce any new doctrines but emphasized the need to apply existing constitutional principles in a dynamic and evolving manner. The Court highlighted the importance of constitutional morality, which is not a new principle but an interpretation of the existing provisions of the Constitution, and stressed that it is an overarching principle that must guide the interpretation of all constitutional provisions.

Key Takeaways

• The Supreme Court has referred the issue of excommunication in the Dawoodi Bohra community to a larger bench.
• The Court emphasized that the interpretation of religious freedom must be balanced with constitutional morality and individual rights.
• The concept of morality under Articles 25 and 26 includes constitutional morality, which encompasses equality, liberty, and fraternity.
• The Court recognized that excommunication can have severe civic consequences, affecting an individual’s fundamental right to live with dignity.
• The decision highlights the need for a dynamic interpretation of the Constitution that evolves with the changing needs of society.

Directions

The Court directed the Registry to seek appropriate directions from the Hon’ble Chief Justice to tag the present writ petition with Review Petition (Civil) No.3358 of 2018 pending before the Bench of nine Hon’ble Judges.

Development of Law

The ratio decidendi of this case is that the Supreme Court has determined that the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay requires reconsideration in light of evolving interpretations of constitutional morality and the interplay between Article 26 and other fundamental rights, particularly Article 21. The Court also held that the concept of morality under Articles 25 and 26 includes constitutional morality, which encompasses equality, liberty, and fraternity. The Court has not changed the previous position of law but has stated that the previous position of law needs reconsideration.

Conclusion

The Supreme Court’s decision to refer the matter of excommunication in the Dawoodi Bohra community to a larger bench signifies a crucial step in the ongoing dialogue between religious freedom and individual rights in India. By emphasizing constitutional morality and the need to balance religious practices with fundamental rights, the Court has set the stage for a potentially transformative re-evaluation of the legal landscape surrounding religious autonomy and individual liberties. The outcome of this case will have far-reaching implications for religious communities and their members, underscoring the importance of aligning religious practices with the core values of the Indian Constitution.