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 1152
**Judges:** Sanjay Kishan Kaul, J., Sanjiv Khanna, J., Abhay S. Oka, J., Vikram Nath, J., and J.K. Maheshwari, J.
Can the practice of excommunication within a religious community be protected under the right to manage religious affairs, even if it infringes upon the fundamental rights of individuals? The Supreme Court of India is set to revisit this complex issue concerning the Dawoodi Bohra community. This case examines the balance between religious freedom and individual rights, particularly the right to live with dignity. The five-judge bench, led by Justice Abhay S. Oka, has referred the matter to a larger bench, highlighting the need to reconcile religious practices with constitutional values.

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 Excommunication 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 the Act infringed upon their fundamental rights under Articles 25 and 26 of the Constitution, which guarantee religious freedom and the right to manage religious affairs.

In a previous judgment, **Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962)**, a Constitution Bench of the Supreme Court had held that excommunication is an integral part of the Dawoodi Bohra community’s religious management. The Court had then struck down the Excommunication Act as a violation of the community’s right under Article 26(b) of the Constitution. The current petition seeks a reconsideration of this decision, especially in light of subsequent legal developments and a growing emphasis on constitutional morality.

The petitioners contend that the practice of excommunication, known as “Baraat” within the Dawoodi Bohra community, is regressive and results in the virtual civil death of the excommunicated person. They argue that this practice violates fundamental rights such as Articles 17 (abolition of untouchability), 19(1)(a) (freedom of speech and expression), 19(1)(c) (right to form associations), 19(1)(g) (right to practice any profession), 21 (protection of life and personal liberty), and 25 (freedom of religion). The petitioners also assert that the concept of morality under Articles 25 and 26 should include constitutional morality, which prioritizes justice, liberty, equality, and fraternity.

Timeline

Course of Proceedings

Initially, the writ petition was filed challenging the constitutional validity of the Excommunication Act. After the Supreme Court’s decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, the petitioners sought a writ of mandamus to enforce the Excommunication Act. The case was referred to a seven-judge bench, then to a five-judge Constitution Bench, which determined that if the five-judge bench doubted the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb, it may refer the matter to a larger bench. Subsequently, the Excommunication Act was repealed by the Social Boycott Act, leading to questions about the maintainability of the writ petition.

Legal Framework

The core legal provisions at play in this case include:

• **Article 25 of the Constitution of India:** Guarantees freedom of conscience and free profession, practice, and propagation of religion, subject to public order, morality, and health. Article 25(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:** Defined “community” and “excommunication,” and invalidated excommunication of a member of any community. Section 3 of the Excommunication Act stated:

  “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.”

• **The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016:** Repealed the Excommunication Act and seeks to prohibit social boycotts.

The interplay between these provisions, particularly the extent to which religious freedom can override individual rights and the interpretation of “morality” within the context of Articles 25 and 26, forms the crux of the legal debate.

Arguments

The petitioners argued that even with the repeal of the Excommunication Act, the question of whether excommunication is protected under Article 26(b) remains. They submitted that the practice of excommunication violates fundamental rights and that the concept of morality under Articles 25 and 26 should include constitutional morality, which prioritizes justice, liberty, equality, and fraternity. They relied on 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)**, to support their claim that constitutional morality should prevail over religious practices that are discriminatory and violate fundamental rights.

The petitioners also argued that the Social Boycott Act does not protect against excommunication as it is aimed at social boycotts by Khap Panchayats, and an excommunicated person is no longer considered a member of the community under the Act. They also submitted that Article 26 cannot override other provisions of Part III of the Constitution.

The State of Maharashtra, represented by the Solicitor General, supported the petitioners’ argument that the issue of whether excommunication is protected by Article 26(b) survives the repeal of the Excommunication Act. They referred to the order in **Kantaru Rajeevaru v. Indian Young Lawyers Association & Ors. (Sabarimala Temple Review – 5 JJ.)** and submitted that the questions formulated by the nine-judge bench in **Kantar Rajeevaru (Right to Religion; in Re – 9 JJ.) v. Indian Young Lawyers Association & Ors. (Sabrimala Temple Review – 9 JJ)**. are relevant to the current case.

The respondents argued that the repeal of the Excommunication Act renders the petition infructuous. They contended that the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay has stood the test of time and that the issue of the interpretation of Article 26 has been concluded. They relied on the decision in **Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt** to argue that the interpretation of Article 26 has been settled. They also submitted that the case should not be tagged with the review pending before the nine-judge bench.

Issues Framed by the Supreme Court

The Supreme Court framed the following broad questions for consideration:

1. Whether anything survives in the writ petition for a decision on merits after the repeal of the Excommunication Act.
2. If the writ petition survives, whether the view taken in the case of Sardar Syedna Taher Saifuddin Saheb needs reconsideration.

Treatment of the Issue by the Court

The following table demonstrates how the Court dealt with the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court analyzed the submissions and authorities, and came to the following conclusions:

The Court also analyzed how the authorities were viewed:

• Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962]: The Court noted that the decision in this case did not consider the concept of constitutional morality and the interplay between Article 26(b) and other fundamental rights. The Court found that the protection granted by this decision to the power to excommunicate needed reconsideration.
• Indian Young Lawyers Association & Ors. v. State of Kerala & Ors. (Sabrimala Temple 5JJ) [2019]: The Court relied on this case to emphasize that the word ‘morality’ found in Article 26 would subsume within itself the concept of Constitutional morality.

What weighed in the mind of the Court?

The Supreme Court’s decision to refer the matter to a larger bench was primarily influenced by the need to reconcile religious practices with constitutional values, particularly the concept of constitutional morality and the interplay between Article 26(b) and other fundamental rights. The Court emphasized that the interpretation of constitutional provisions must evolve with the changing needs of society. The Court also highlighted that the decision in Sardar Syedna Taher Saifuddin Saheb did not consider the concept of constitutional morality and the interplay between Article 26(b) and other fundamental rights, particularly Article 21.

The Court noted that the practice of excommunication has significant civil consequences, impacting the fundamental right to live with dignity, and that this right needs to be balanced with the rights of religious denominations under Article 26. The Court observed that the concept of morality under Articles 25 and 26 should include constitutional morality, which prioritizes justice, liberty, equality, and fraternity. The Court also stated that the questions formulated by the nine-judge bench in the Sabarimala Temple Review cases are relevant to the current case.

The Court emphasized that the Constitution is a living instrument and that its interpretation should not be constricted to an originalist interpretation. The Court also highlighted the importance of the courts to adapt the law to suit the needs of the society.

Logical Reasoning

Key Takeaways

• The Supreme Court has indicated that the practice of excommunication within the Dawoodi Bohra community may not be absolutely protected under Article 26(b) of the Constitution.
• The concept of “constitutional morality” will play a crucial role in determining the validity of religious practices that infringe upon fundamental rights.
• The Court emphasized the need for a balance between the rights of religious denominations and the fundamental rights of individuals, particularly the right to live with dignity under Article 21.
• The interpretation of constitutional provisions must evolve with the changing needs of society.
• The decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay is set for reconsideration by a larger bench.

Directions

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

Development of Law

The ratio decidendi of this case is that the Supreme Court has found it necessary to reconsider the extent of protection given to the practice of excommunication under Article 26(b) of the Constitution, particularly in light of the concept of constitutional morality and its interplay with other fundamental rights. The Court has indicated that the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay needs to be revisited, marking a potential shift in the legal position on religious freedom and individual rights.

Conclusion

The Supreme Court’s decision to refer the case to a larger bench underscores the importance of balancing religious freedom with individual rights and the evolving nature of constitutional interpretation. The Court’s emphasis on constitutional morality and its potential to override religious practices that infringe upon fundamental rights could have significant implications for similar cases in the future. The case highlights the ongoing dialogue between religious freedom and the constitutional values of equality, liberty, and fraternity.