CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY & ANR. versus THE STATE OF MAHARASHTRA &ANR. on 10 February 2023

CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY& ANR.

V.

THE STATE OF MAHARASHTRA &ANR.

(Writ Petition (Civil) No. 740 of 1986)

FEBRUARY 10, 2023

[SANJAY KISHAN KAUL, SANJIV KHANNA,ABHAY S. OKA, VIKRAM NATH ANDJ. K. MAHESHWARI, JJ.]

Bombay Protection of Ex-communication Act, 1949 – The Act,1949 provided that ex-communication of a member of any communityshall be invalid and shall be of no effect – Head of the DawoodiBohra community challenged the Act on grounds that it infringedon fundamental rights guaranteed u/Arts.25 and 26 of theConstitution – A Constitution Bench of Supreme Court (of fiveJudges) in the case of Sardar Syedna, by majority, held that ex-communication amongst the Dawoodi Bohras forms an integral partof the management of the community and therefore, interferencewith the right to ex-communicate amounts to interference with theright of the community to manage its own affairs in matters ofreligion – The Supreme Court held that as the Ex-communicationAct invalidates excommunication on any ground whatsoeverincluding religious grounds, it must be held to be in clear violationof the right of the Dawoodi Bohra community guaranteed u/Art.26(b)of the Constitution – Present writ petition filed seekingreconsideration and overruling of that decision and for issuing awrit of mandamus directing the respondent-State to give effect tothe provisions of the Act, 1949 – Meanwhile, the MaharashtraProtection of People from Social Boycott Act repealed the Ex-communication Act – Whether the view taken by Constitution Benchin the case of Sardar Syedna requires reconsideration – Held: Theexercise of balancing the rights under Art.26(b) with other rightsunder Part III and in particular Art.21 was not undertaken by the

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AConstitution Bench in the case of Sardar Syedna – This question issubstantially in issue before the Bench of nine Judges in SabrimalaTemple Review -9JJ – Moreover, the question of whether protectioncan be given by Art.26(b) to the practice of ex-communication alsois to be tested on the touchstone of the concept of ConstitutionalBmorality as the said right is subject to morality – Thus, these questionsare the two main grounds on which the said decision may needreconsideration 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 theCpresent writ petition – Present writ petition, thus, deserves to betagged with Review Petition pending before the Bench of nineHon’ble Judges – Registry to seek appropriate directions in thisbehalf from Hon’ble the Chief Justice of India – Constitution ofIndia – Arts. 25 and 26 – Maharashtra Protection of People fromDSocial Boycott (Prevention, Prohibition and Redressal) Act, 2016.Constitution of India – Interpretation of Constitutionalprovisions – Approach to be adopted – Held: Constitution is a livinginstrument – The originalist interpretation rendered to provisionsof the Constitution decades back, cannot continue to be valid forEall times to come if the Constitution is to continue as a livinginstrument with continued relevance – Interpretation of law mustkeep pace with changing needs of society.

Constitution of India – Arts. 25 and 26 – Morality in theFcontext 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 ofGSardar Syedna held that the Bombay Protection of Ex-communication Act, 1949 was void being in violation of Article26(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 DawoodiH

Conclusion

Bohra community. The provisions of the Ex-communication Actwere applicable to the practice of ex-communication prevailingin different religions, castes or sub-castes, whereas the findingsrendered by the majority view are only in respect of the right ofthe head of the Dawoodi Bohra community to ex-communicate amember of the community. Thus, the Ex-communication Act inits entirety could not have been declared void. Therefore, evenassuming that the view taken by the Constitution Bench is correct,the question which certainly survives for consideration is whetherthe 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 DawoodiBohra Community to ex-communicate its members is non-justiciable being protected under the umbrella of clause (b) ofArticle 26. This issue requires examination in the present-daycontext. [Para 20][307-H; 308-A]

Approach to be adopted:

2. While interpreting the Constitutional provisions, onemust remember that the Constitution is a living instrument. Theoriginalist interpretation rendered to the provisions of theConstitution decades back, cannot continue to be valid for alltimes to come if the Constitution is to continue as a livinginstrument with continued relevance. Constitutional law hasdeveloped a great deal during the last few decades. The conceptof freedom has undergone changes and in the 21[st]century, societylooks completely different from what it looked in the last century.Thus, the interpretation of law must keep pace with changingneeds 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. Allfour clauses (a), (b,), (c) and (d) of Article 26 are also made ABC

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Aspecifically subject to public order, morality and health. Thus,the right of the religious denomination to manage its own affairsin matters of religion is always subject to morality. As far as theconcept of morality contemplated by Articles 25 and 26 isconcerned, much water has flown after the decision in the case ofBSardar Syedna where the argument that Article 26(b) is subjectto morality was not at all considered as it was not canvassed andpressed at the time of hearing. Thus, the question whetherConstitutional morality can be equated with equality, fraternityand non-discrimination needs consideration. [Para 24][310-B-E]

CConclusion:

4.1. The exercise of balancing the rights under Article 26(b)with other rights under Part III and in particular Article 21 wasnot undertaken by the Constitution Bench in the case of SardarDSyedna. This question is substantially in issue before the Benchof nine Judges in Sabrimala Temple Review -9JJ. Moreover, thequestion of whether the protection can be given by Article 26(b)to the practice of ex-communication also is to be tested on thetouchstone of the concept of Constitutional morality as the saidEright is subject to morality and this is an important and emergentissue. Thus, making these questions, two main grounds on whichthe said decision may need reconsideration by a larger Bench.[Para 32][315-A-C]

4.2. Sabrimala Temple–5JJ decision was subjected to aFreview. This Court dealt with the review (Sabrimala TempleReview–5JJ). The majority opinion contains questions formulatedfor referring it to a larger Bench. Accordingly, the review petitionwas listed before a nine-Judge Bench. The Bench of nine-Judges(Sabrimala Temple Review –9 JJ) framed seven questions of law,Gout of which questions 3 and 4 also arise for consideration in thepresent writ petition. The decision which will be rendered by thenine-Judge Bench will have a direct impact on the questions whicharise for determination in this writ petition. In the circumstances,the present writ petition deserves to be tagged with Review H

Petition (Civil) No.3358 of 2018 pending before the Bench ofnine Hon’ble Judges. Accordingly, the Registry is directed toseek appropriate directions in this behalf from the Hon’ble ChiefJustice. [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 WaterTransport Corporation Ltd. & Anr. v. Brojo NathGanguly & Anr. 1986 (3) SCC 156: [1986] 2 SCR 278– relied on.

Sardar Syedna Taher Saifuddin Saheb v. State ofBombay [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 LawyersAssociation & Ors. v. State of Kerala & Ors. 2019 (11)SCC 1: [2018] 9 SCR 561; Kantaru Rajeevaru v. IndianYoung Lawyers Association & Ors. (Sabarimala TempleReview–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. (SabrimalaTemple Review– 9 JJ) 2020 (3) SCC 52 andCommissioner, Hindu Religious Endowments, Madrasv. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[1954] SCR 1005 –referred to.

Hasanali & Ors. v. Mansoorali & Ors.1947 SCCOnLine PC 63 – referred to.

Case Law Reference

[1962] Suppl. 2 SCR 496[2014] 9 SCR 965

referred toreferred to

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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

ESiddharth Bhatnagar, Sr. Adv., Sanklap Goswami, Azhar Alam,Ms. B. Vijayalakshmi Menon, Mrs. Manik Karanjawala, Ms. NandiniGore, Jatin Mongia, Ms. Tahira Karanjawala, Ms. Niharika Karanjawala,Arjun Sharma, Ms. Neha Khandelwal, Sarthak Gaur, Karanveer SinghAnand, Ritwik Mohapatra, Ms. Pracheta Kar, Aditya Sidhra, NadeemAfroz, Vardaan Wanchoo for M/s. Karanjawala & Co., Advs. for theFPetitioners.

Tushar Mehta, S.G., Fali S Nariman, Dariaus Khambata, PravinH Parekh, D. J. Khambata, Parag Tripathi, Sr. Advs., SiddharthDharamdhikari, Kanu Agrawal, Aaditya Aniruddha Pande, SameerGParekh, Subhash Sharma, Abeezar Faizullabhoy, D.P. Mohanty, MurtazaKachwala, Ms. Sonal Gupta, M. Algaus Shaikh, Prateek Khandelwal,Ms. Manju Bajaj, Ms. Prerna Amitabh, Mustafa Maimoon, AmmarFaizullabhoy for M/s. Parekh & Co., Sandeep Narain, Moinuddin AlgausShaikh, Ms. Kanak Malik for M/s. S. Narain & Co., Ms. DeepanwitaHPriyanka, Advs. for the Respondents.

CENTRAL BOARD OF DAWOODI BOHRA COMMUNITYv. THE STATE OF MAHARASHTRA

The Judgment of the Court was delivered by ABHAY S. OKA, J.

FACTUAL ASPECTS

1. In Writ Petition (C) No.740 of 1986, the preliminary issue iswhether the view taken by a Constitution Bench of this Court in thecase of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay[1],requires reconsideration.

2. In the case of Sardar Syedna[1], the jurisdiction of this Courtunder Article 32 of the Constitution of India was invoked for challengingthe constitutional validity of the Bombay Protection of Ex-communicationAct, 1949 (for short, ‘the Ex- communication Act’). Section 3 of theEx-communication Act provided that notwithstanding anything containedin 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 andshall be of any effect. Under the Ex-communication Act, the term‘community’ was defined to mean a group, the members of which areconnected together by reason of the fact that by birth, conversion or theperformance of any religious rite, they belong to the same religion orreligious creed and includes caste or sub- caste. Under clause (b) ofSection 2 of the Ex-communication Act, ‘ex-communication’ was definedas the expulsion of a person from any community of which he is a memberdepriving him of rights and privileges which are legally enforceable by asuit of civil nature by him or on his behalf as such member.

3. Sardar Syedna Taher Saifuddin Saheb, who was the 51[st]Dai-al-Mutlaq and the head of the Dawoodi Bohra community, challengedthe Ex-communication Act on the ground that the same infringes thefundamental rights guaranteed under Articles 25 and 26 of the Constitutionof India. The said petition was placed before a Constitution Bench. TheConstitution Bench, by a majority, held that ex-communication amongstthe Dawoodi Bohras forms an integral part of the management of thecommunity. Therefore, interference with the right to ex- communicateamounts to interference with the right of the community to manage itsown affairs in matters of religion. This Court held that as theEx-communication Act invalidates ex-communication on any groundwhatsoever including religious grounds, it must be held to be in clearviolation of the right of the Dawoodi Bohra community guaranteed underArticle 26 (b) of the Constitution of India. Therefore, this Court proceeded A

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Ato hold that the Ex-communication Act is void, being in violation of Article26 of the Constitution of India.

4. The prayer in the present writ petition filed by the CentralBoard of Dawoodi Bohra Community represented by its Secretary isfor issuing a writ of mandamus directing the State Government to giveBeffect to the provisions of the Ex-communication Act after reconsideringthe decision of this Court in the case of Sardar Syedna[1]. “Rule nisi”was issued in the petition on 25[th] August 1986. On 18[th] March 1994, aDivision Bench directed that the petition be listed before a Bench ofseven Judges. The 2[nd] Respondent – Syedna Mufaddal (53[rd]Dai-al-Mutlaq) made an application seeking a direction that the petitionCshould be listed before a Division Bench. The writ petition was listedbefore a Constitution Bench. By the judgment and order dated 17[th]December 2004[2], the Constitution Bench partly allowed the applicationfiled by the 2[nd] Respondent. Paragraph 14 of the said order read thus:

“14. In the facts and circumstances of this case, we are satisfiedDthat the matter should be placed for hearing before a ConstitutionBench (of five Judges) and not before a larger Bench of sevenJudges. It is only if the Constitution Bench doubts the correctnessof the law laid down in Sardar Syedna Taher Saifuddin Sahebcase [1962 Supp (2) SCR 496 : AIR 1962 SC 853] that it mayEopine in favour of hearing by a larger Bench consisting of sevenJudges or such other strength as the Chief Justice of India may inexercise of his power to frame a roster may deem fit to constitute.”

5. In terms of the aforesaid order, Writ Petition with the connectedCriminal Appeal has been placed before this Bench. In the meanwhile,Fthere was a subsequent event in the form of the enactment of theMaharashtra 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, theEx-communication Act was repealed.

GTHE BROAD QUESTIONS FOR CONSIDERATION

6. As the Ex-communication Act has been repealed, the questionwhich arises for consideration is whether anything survives in the writpetition for a decision on merits. If we come to the conclusion that the 1 (1962) Suppl. (2) SCR 496 : AIR 1962 SC 853H2 2005 (2) SCC 673

writ petition still survives for consideration, the question which will ariseis whether the view taken in the case of Sardar Syedna[1]needsreconsideration.

SUBMISSIONS

7. We have heard the parties on the aforesaid questions. ShriSiddharth Bhatnagar, the learned senior counsel representing thepetitioners pointed out that the Constitution Bench has held that thepractice of Baraat/ex-communication in the Dawoodi Bohra communityfalls within the ambit of “matters of religion” under clause (b) of Article26 of the Constitution of India. He urged that even if theEx-communication Act is repealed, the question whether the practice ofex-communication falls within the ambit of “matters of religion”, needsto be decided. His submission is that the 2[nd] Respondent – SyednaMufaddal (53[rd] Dai-al-Mutlaq) is not only the religious Head but also theTrustee of the community property. Therefore, he has to perform actsthat are not wholly religious. His submission is that even assuming thatthe practice of ex-communication is considered a matter of religion, itmust yield to the legislations on social reforms which are protected byArticle 25(2) of the Constitution of India. He urged that the rightsguaranteed under Article 26 are subject to morality. He submitted thatthe concept of morality under Articles 25 and 26 would subsume withinitself the concept of Constitutional morality. He relied upon the decisionsof this Court in the cases of Manoj Narula v. Union of India[3], 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 Constitutionalmorality has been elaborated under these decisions. He also pressedinto service a decision of this Court in the case of Indian Young LawyersAssociation & Ors. v. State of Kerala & Ors.[6] (Sabrimala Temple5JJ), which according to him, holds that practices destructive of libertyand those which make some citizens less equal than others cannot becountenanced. He would also submit that Article 26 cannot override theprotections afforded under other provisions of Part III of the Constitutionof India. His submission is that the practice of ex-communication in theDawoodi Bohra community is violative of Articles 17, 19(1)(a), 19(1)(c)

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Aand 19(1)(g), 21 and 25 and therefore, it cannot enjoy the protection ofArticle 26 of the Constitution of India.

8. The learned senior counsel also urged that the Social BoycottAct does not afford any protection against ex- communication as it seeksto prohibit the social boycott of a member of the community by the KhapBPanchayat of the community. He submitted that a member of theDawoodi Bohra community who is already ex-communicated, will notbe a member of the community within the meaning of the Social BoycottAct. Therefore, the Social Boycott Act gives no protection to the membersof the Dawoodi Bohra community from the unjust and illegal practice ofex-communication.C

9. He urged that as held in the case of Sabrimala Temple 5JJ[6],the word ‘morality’ found in Article 26 would subsume within itself theconcept of Constitutional morality and takes colour from the ideals ofjustice, liberty, equality and fraternity on which our Constitution has beenfounded. He urged that the practice of Baraat is regressive, which resultedDin practically civil death of the person excommunicated. Therefore, thepractice of Baraat will have to be held as contrary to Constitutionalmorality.

10. He urged that even the issue whether any protection is affordedby Article 17 to an ex-communicated person belonging to the DawoodiEBohra community needs examination. He submitted that though Article26 has not been expressly made subject to other provisions of Part III, inthe event of its conflict with Articles 14, 19 and 21, it must give way tothese three Articles unless the conflict can be reconciled. In other words,he submitted that the rights of a religious denomination under Article 26cannot be determined in isolation and interpreted in a manner that rendersFthe rights guaranteed to its members under other provisions of Part IIInugatory. He urged that much water has flown after Sardar Syedna[1]and therefore, it requires reconsideration.

11. Shri Tushar Mehta, the learned Solicitor General of India,appearing for the State Government submitted that even if theGEx-communication Act has been repealed, the question whether thepractice of Baraat/ex-communication is protected by Article 26(b) ofthe Constitution of India, survives for consideration. He invited ourattention to the order of this Court in the case of Kantaru Rajeevaru v.Indian Young Lawyers Association & Ors.[7] (Sabarimala TempleH7 2020 (2) SCC 1

Review – 5 JJ.). He submitted that the Constitution Bench has heldthat freedom of religion guaranteed under Articles 25 and 26 of theConstitution needs authoritative pronouncement by a larger Bench ofnot less than seven Hon’ble Judges. He invited our attention to thequestions formulated under the said order. He pointed out that on thebasis of the said order, a Bench of nine Judges in Kantaru Rajeevaru(Right to Religion; in Re – 9 JJ.) v. Indian Young LawyersAssociation & Ors.[8] (Sabrimala Temple Review – 9 JJ), has framedseven issues and at least, the first three issues framed by the said Benchwill arise even in the present case. Therefore, he urged that this petitionbe tagged along with the case before the Bench of Hon’ble nine Judges.

12. Shri Fali S. Nariman, the learned senior counsel appearing forthe 2[nd] Respondent urged that in view of the repeal of the Ex-communication Act, nothing survives in the petition considering the prayersmade in the petition. He also invited our attention to the fact that thesecond petitioner has died and there is no one to represent the firstpetitioner which is an unregistered organization.

13. He submitted that the decision in the case of Sardar Syedna[1]was noted by the Constitution Bench in the case of (Sabarimala Temple5JJ) [6]. He relied upon the decision of the Bench of seven Judges of thisCourt in the case of Commissioner, Hindu Religious Endowments,Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[9].He submitted that the issue of the interpretation of Article 26 has beenconcluded. He lastly submitted that this case should not be tagged withthe review pending before the bench of Hon’ble nine Judges and at thehighest, it may be kept pending till the disposal of the said case.

14. Shri Dariaus J. Khambata, the learned senior counsel whilesupplementing the submissions made by Shri Fali S. Nariman stated thatthe judgment in the case of Sardar Syedna[1]has stood the test of timeand there has been no contrary view taken by any Bench. Therefore, nofurther orders are warranted in this petition.

RELEVANT PROVISIONS

15. Before we deal with the submissions, a brief reference to theEx-communication Act is necessary. Sections 2 and 3 thereof, are material,which read thus:

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A“2. In this Act, unless there is anything repugnant in the subjector context, –

(a) “community” means a group the members of which areconnected together by reason of the fact that by birth, conversionor the performance of any religious rite they belong to the sameBreligion or religious creed and includes a caste or sub-caste; (b) “ex-communication” means the expulsion of a person fromany community of which he is a member depriving him of rightsand privileges which are legally enforceable by a suit of civil natureby him or on his behalf as such member.

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Explanation.- For the purposes of this clause a right legallyenforceable by a suit of civil nature shall include the right to officeor property or to worship in any religious place or a right of burialor cremation, notwithstanding the fact that the determination ofDsuch rights depends entirely on the decision of the question as toany religious rites or ceremonies or rule or usage of a community.

3. Notwithstanding anything contained in any law, custom or usagefor the time being in force, to the contrary, no ex-communicationof a member of any community shall be valid and shall be of anyEeffect.”

The Ex-communication Act has been repealed by the SocialBoycott Act. At this stage, it is not necessary for us to go into the questionof the effect of the Social Boycott Act on the practice ofex-communication or “Baraat” prevailing in the Dawoodi BohraFcommunity.

THE FINDINGS RECORDED IN SARDAR SYEDNA

16. Now, we advert to the findings recorded by the ConstitutionBench in the case of Sardar Syedna[1.]The said decision containsGseparate 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 herethat B.P. Sinha, C.J. has written a dissenting opinion. The other Hon’bleJudges took the view that the Ex- communication Act was void as itinfringes the rights guaranteed under Article 26(b) of the Constitution.

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Das Gupta, J. concluded that:

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(a) The exercise of the power of ex-communication on religiousgrounds forms a part of the management of the communitythrough its religious head; (b)The Ex-communication Act takes away the freedomconferred by clause (b) of Article 26 on the head of theDawoodi Bohra community to ex-communicate its memberson religious grounds; B

(c) Though, it is true that the ex-communication of a memberof the community will affect many of his civil rights, theCrights conferred by clause (b) of Article 26 have not beenmade subject to the other fundamental rights. Therefore,the fact that the civil rights of a person are affected by theexercise of the rights under clause (b) of Article 26, is of noconsequence; D

(d) Prohibiting ex-communication on religious grounds, pure andsimple, cannot be considered to promote social welfare andreform. Therefore, the law which invalidatesex-communication on religious grounds, cannot beconsidered to be a measure of social welfare and reformas contemplated by clause (2)(b) of Article 25; and E

(e) Though, in the counter affidavit filed by the StateGovernment, reliance was placed on the fact that Article26(b) is subject to morality, the said argument was notpressed into service.

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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 notsuggested that the practice of ex-communication offendedpublic order, morality, health or any other part of theConstitution; G

(b) Though, the right under Article 26(b) is subject to publicorder, morality or health, it was not suggested that the H

[2023] 1 S.C.R.

Apractice of ex-communication offended public order, moralityor health;

(c) The denomination within the meaning of Article 26 and themembers of the denomination are entitled to ensure thecontinuity of the denomination and such continuity is possibleBonly by maintaining the bond of religious discipline whichwould secure the continued adherence of its members tocertain essentials like faith, tenets and practices; (d)The right guaranteed under clause (1) of Article 25 is notconfined to freedom of conscience as it also includes theCright to practice religion; (e)By the phrase “law providing for social welfare andreforms”, it was not intended to enable the legislature toreform a religion out of existence or identity. Clause (2)(b)Dof Article 25 does not cover the basic essentials of the creedof a religion which are protected by clause (1) of Article25; (f)The power of ex-communication for the purpose of ensuringthe preservation of the community has a prime significanceEin 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 ofpreservation of the community cannot be sustained as aFmeasure of social welfare or reform without evisceratingthe right guaranteed under clause (1) of Article 25, therebyrendering the protection illusory.

18. In his dissenting opinion, B.P. Sinha, C.J., came to the followingconclusions:G

(a) The expressions ‘matters of religion’ and ‘activitiesassociated with religious practice’ in clause (b) of Article26 do not cover exactly the same ground. The activitiesassociated with the religious practice may have seriousramifications, such as economic and financial;H

CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY

v. THE STATE OF MAHARASHTRA [ABHAY S. OKA, J.]

(b) The autonomy that a religious denomination enjoys underclause (b) of Article 26 is in matters of religion. Article 26itself indicates that a religious denomination has to deal notonly with matters of religion but also with other matterssuch as managing property owned and possessed by thereligious community;

(c) The matters of religion under clause (b) of Article 26 aresubject not only to public order, morality and health but alsoto legislation contemplated by clause (2)(b) of Article 25.In the case of Sri Shirur Mutt[9], it is distinctly laid downthat clause (b) of Article 26 must be read subject to clause(2)(b) of Article 25; and (d)The right of ex-communication vested in the head of thecommunity is not purely a religious matter. Therefore, theEx-communication Act is valid as it does not infringe theright conferred by clause (b) of Article 26.

WHETHER THE WRIT PETITION SURVIVES FORCONSIDERATION

19. By a majority, the Constitution Bench held that the Ex-communication Act was void being in violation of Article 26(b) of theConstitution. We must note here that considering the definition of‘community’ under Section 2(a) of the Ex- communication Act, theapplicability thereof was not confined only to the Dawoodi Bohracommunity. The provisions of the Ex- communication Act were applicableto the practice of ex- communication prevailing in different religions,castes or sub- castes. The findings rendered by the majority view areonly in respect of the right of the head of the Dawoodi Bohra communityto ex-communicate a member of the community. With the greatest respectto the Constitution Bench, while recording a finding regarding violationof Article 26(b) only in relation to Dawoodi Bohra community, theEx-communication Act in its entirety could not have been declared void.Therefore, even assuming that the view taken by the Constitution Benchis correct, the question which certainly survives for consideration iswhether 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, theissue remains whether the power of the head of Dawoodi Bohra A

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ACommunity to ex-communicate its members is non-justiciable beingprotected under the umbrella of clause (b) of Article 26. This issue requiresexamination in the present day context. Therefore, the argument thatnothing survives on merits in the petition, cannot be accepted.

APPROACH TO BE ADOPTEDB

21. While interpreting the Constitutional provisions, we mustremember that the Constitution is a living instrument. In paragraph 262of 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 theConstitution as well as to the document which theysanctified to constrict its interpretation to an originalistinterpretation. Today’s problems have to be adjudged by avibrant application of constitutional doctrine and cannot beDfrozen by a vision suited to a radically different society. Wedescribe the Constitution as a living instrument simply for the reasonthat while it is a document which enunciates eternal values forIndian society, it possesses the resilience necessary to ensure itscontinued relevance. Its continued relevance lies precisely in itsEability to allow succeeding generations to apply the principles onwhich it has been founded to find innovative solutions to intractableproblems of their times. In doing so, we must equally understandthat our solutions must continuously undergo a process of re-engineering.”

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The originalist interpretation rendered to the provisions of theConstitution decades back, cannot continue to be valid for all times tocome if the Constitution is to continue as a living instrument withcontinued relevance.

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22. In paragraph 26 of the decision of this Court in the case ofCentral Inland Water Transport Corporation Ltd. & Anr. v. BrojoNath Ganguly & Anr.[11], this Court held thus.:

10 2017 (10) SCC 1H11 1986 (3) SCC 156

“26. The law exists to serve the needs of the society which isgoverned by it. If the law is to play its allotted role of serving theneeds of the society, it must reflect the ideas and ideologies ofthat society. It must keep time with the heartbeats of thesociety 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 amconvinced that he is an unalterable fool.” The law must,therefore, in a changing society march in tune with thechanged ideas and ideologies. Legislatures are, however,not best fitted for the role of adapting the law to thenecessities of the time, for the legislative process is tooslow and the legislatures often divided by politics, sloweddown by periodic elections and overburdened with myriadother legislative activities. A constitutional document iseven less suited to this task, for the philosophy and theideologies underlying it must of necessity be expressed inbroad and general terms and the process of amending aConstitution is too cumbersome and time- consuming tomeet the immediate needs. This task must, therefore, ofnecessity fall upon the courts because the courts can bythe process of judicial interpretation adapt the law to suitthe needs of the society.”

In view of what is held above, the role of the Constitutional Courtsto interpret the Constitution considering the changing needs of the societyassumes importance.

23. The Constitution Bench in the case of Navtej Singh Johar[5]emphasized that the principle of transforming Constitutionalism also placesupon the judicial arm a duty to ensure that a sense of transformation isushered consistently in the society by interpreting and enforcing theConstitutional as well as other provisions of law. Constitutional law hasdeveloped a great deal during the last few decades. The interpretationof various provisions of the Constitution made by this Court decadesback has undergone a drastic change. For example, the narrowinterpretation given to Article 21 in the ‘A.K. Gopalan’ era is no longer ABC

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Avalid. The concept of freedom has undergone changes. In the 21[st] 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, theinterpretation of law must keep pace with changing needs of society.

MORALITY IN THE CONTEXT OF ARTICLES 25BAND 26

24. The freedom of conscience guaranteed under clause (1) ofArticle 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 topublic order, morality and health. Thus, the right of the religiousCdenomination to manage its own affairs in matters of religion is alwayssubject to morality. As far as the concept of morality contemplated byArticles 25 and 26 is concerned, much water has flown after the decisionin the case of Sardar Syedna[1]. Moreover, in the case of SardarSyedna[1], the argument that Article 26(b) is subject to morality, was notat all considered as it was not canvassed and pressed at the time ofDhearing. In the case of Navtej Singh Johar [5], this Court held that whenthis Court deals with the issue of morality, it must be guided by theconcept of Constitutional morality and not by societal morality. Moreover,notion of morality evolves with time and is not static. The question whetherConstitutional morality can be equated with equality, fraternity andEnon-discrimination needs consideration.

25. The concept of morality as contemplated by Articles 25 and26 was considered in greater detail by another Constitution Bench in thecase of Sabrimala Temple 5JJ [6]. There were four separate opinionsrendered by the Constitution Bench. Dipak Misra, C.J., who wrote theFopinion for himself and A. M. Khanwilkar, J. and Dr. D. Y. Chandrachud,J. (as then he was), in their separate opinions concurred on theinterpretation of the concept of morality under Articles 25 and 26 of theConstitution. They also dealt with the issue of the interplay between therights under Article 26 and the other rights under part III of theConstitution. The conclusions in the separate opinions of Dipak Misra,GC.J. and Dr. D.Y. Chandrachud, J. can be summarized as under:

(a) The expression ‘morality’ used in Articles 25 and 26 has anoverarching position similar to public order and health; (b)The term ‘morality’ cannot be viewed with a narrow lensHso as to confine the definition of morality to what an individual

or a religious sect may perceive to mean. Morality naturallyAimplies Constitutional morality and any view that is ultimatelytaken by the Constitutional Courts must be in conformitywith the basic tenets of Constitutional morality. ‘Morality’for the purposes of Articles 25 and 26 must mean that whichis governed by fundamental Constitutional principles; B

(c) The expression ‘subject to’ is in nature a condition andtherefore, public order, morality and health control Article26; (d)There is no convincing reason to allow provisions of Article26 to tread in isolation. Even if Article 26 is not specificallymade subject to other fundamental rights, there would stillbe a ground to read both together so that they can exist inharmony. Absence of specific words in Article 26 making itsubject to other fundamental rights cannot allow freedomof religious denomination to exist in an isolated silo; and C

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(e) The freedom of religious denominations under Article 26must be read in a manner that requires the preservation ofequality, and other individual freedoms which may beimpacted 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, giventhe mores of the time, by reason of harm caused by way, inter alia, ofexploitation 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 ofessential religious practices with Constitutional values. While dealingwith the said issue, in paragraph 289, he has observed thus:

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“289. For decades, this Court has witnessed claims resting on theessentiality of a practice that militate against the constitutionalprotection of dignity and individual freedom under the G

Constitution. It is the duty of the courts to ensure that whatis protected is in conformity with fundamental constitutionalvalues and guarantees and accords with constitutionalmorality. While the Constitution is solicitous in its H

Aprotection of religious freedom as well as denominationalrights, it must be understood that dignity, liberty and equalityconstitute the trinity which defines the faith of theConstitution. Together, these three values combine to define aconstitutional order of priorities. Practices or beliefs which detractfrom these foundational values cannot claim legitimacy.”

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(emphasis added)

28. The question is whether the exclusionary practice whichprevails in the Dawoodi Bohra community of ex-communicating itsmembers will stand the test of Constitutional morality? As observed byCDas Gupta, J. in the case of Sardar Syedna[1], the ex-communication ofa member of the community affects many of his civil rights. The PrivyCouncil, in the case of Hasanali & Ors. v. Mansoorali & Ors.[12], inparagraph 4, has dealt with the effect of ex-communication in DawoodiBohra community. Paragraph 4 reads thus:

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“4. The appellants would limit the effect ofexcommunication, whatever steps might have been takento bring it into being, to complete social ostracism. Thereis nothing, they say, to show that it excluded from rights ofproperty or worship. Their Lordships do not find themselvesEable to accept this limitation. The Dai is a religious leaderas well as being trustee of the property of the community,and in India exclusion from caste is well known. There is atleast one case in which it is recorded that certain persons appliedto the King to intercede with the thirty-third Dai, complaining thatin consequence of excommunication they were kept from theFmosques and places where true believers met; and no instancehas been cited where excommunicated persons freely exercisedtheir religious rights. Indeed, the complaint in the cases brought totheir Lordships’ attention as regards which relief is claimed forthe appellants or those whom they are said to represent is thatGthey were wrongly excommunicated, not that if rightlyexcommunicated they were wrongly deprived of their religiousrights. Excommunication, in their Lordships’ view, ifjustified, necessarily involves exclusion from the exerciseof religious rights in places under the trusteeship of the H12 1947 SCC OnLine PC 63

head of the community in which religious exercises areperformed.”

(emphasis added)

A person who is ex-communicated by the community, will not beentitled to use the common property of the community and the burial/cremation grounds of the community. In a sense, such a person willvirtually become untouchable (being banished or ostracized) within thecommunity. In a given case, it will result in his civil death. It can beargued that the concept of Constitutional morality which overrides thefreedom conferred by clause (b) of Article 26, will not permit the civilrights of ex- communicated persons which originate from the dignityand 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, itis contended that ex-communication or ostracisation is anathema to theconcepts of liberty and equality. It is against the anti- discriminatoryethos which forms a part of Constitutional morality. Therefore, theConstitutional Court ought not to tolerate anything which takes away theright and privilege of any person to live with dignity as the concept ofConstitutional morality does not permit the Court to do so. Therefore, inour view, the protection under Article 26(b) granted by the decision inthe case of Sardar Syedna[1]to the power to ex-communicate a memberof the Dawoodi Bohra community, needs reconsideration as the saidright 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,J. and Mr. R.F. Nariman, J. extensively refer to the case of SardarSyedna[1]. In paragraph 164, Nariman, J. records that there is a need tolook into the finding recorded by the majority view in the case of SardarSyedna[1]on the applicability of clause (2)(b) of Article 25 in some futurecases.

INTERPLAY BETWEEN THE OTHER FUNDAMENTALRIGHTS 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 A

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Athough Article 26 is not specifically made subject to other fundamentalrights, there would still be a ground to read both together so that theycan exist in harmony. The freedom of religious denominations cannotexist in isolation. Nariman, J. in his opinion has also dealt with this issue.In note 59 appended to paragraph 176.7, he observed that:

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“(59). We were invited by the learned Amicus Curiae, Shri RajuRamachandran, to read the word “morality” as being “constitutionalmorality” as has been explained in some of our recent judgments.If so read, it cannot be forgotten that this would bring in, throughthe back door, the other provisions of Part III of the Constitution,Cwhich Article 26 is not subject to, in contrast with Article 25(1).In any case, the fundamental right under Article 26 will haveto be balanced with the rights of others contained in PartIII as a matter of harmonious construction of these rightsas was held in Shri Venkataramana Devaru, AIR 1958 SCD255 : 1958 SCR 895. But this would only be on acase-to-case basis, without necessarily subjecting thefundamental right under Article 26 to other fundamentalrights contained in Part III.”

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Thus, Nariman, J. was of the view that there may be a need tobalance rights under Article 26(b) with the other fundamental rights underPart III of the Constitution without necessarily subjecting the fundamentalrights under Article 26 to other fundamental rights contained in Part III.

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31. Even assuming that the ex-communication of members of theDawoodi Bohra community is always made on religious grounds, theeffect and consequences thereof, on the person ex- communicated needsto be considered in the context of justiciable Constitutional rights. Theex-communication will have many civic consequences which will, primaGfacie, affect his fundamental right to live with dignity and the right tolead a meaningful life guaranteed by Article 21. Therefore, the questionis whether the said right of the community to ex-communicate itsmembers can be balanced with the other fundamental rights under PartIII of the Constitution and in particular, Article 21.H

CONCLUSIONS

32. To conclude, prima facie, we find that the exercise of balancingthe rights under Article 26(b) with other rights under Part III and inparticular Article 21 was not undertaken by the Constitution Bench inthe case of Sardar Syedna[1]. This question is substantially in issue beforethe Bench of nine Judges in Sabrimala Temple Review -9JJ. Moreover,the question whether the protection can be given by Article 26(b) to thepractice of ex-communication is to be tested on the touchstone of theconcept of Constitutional morality as the said right is subject to morality.This is an important and emergent issue. These are the two main groundson 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 formulated for referring it to alarger Bench. Question Nos. 5.1 to 5.3 are relevant which reads thus:

“5.1.(i) Regarding the interplay between the freedom of religionunder Articles 25 and 26 of the Constitution and other provisionsin Part III, particularly Article 14.

5.2. (ii) What is the sweep of expression “public order, moralityand health” occurring in Article 25(1) of the Constitution.

5.3. (iii) The expression “morality” or “constitutional morality” hasnot been defined in the Constitution. Is it overarching morality inreference to Preamble or limited to religious beliefs or faith. Thereis need to delineate the contours of that expression, lest it becomessubjective.”

Accordingly, the review petition was listed before a nine-JudgeBench. By the order dated 10[th] February 2020, the Bench of nine-Judges(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 Article26 of the Constitution of India are subject to other provisions ofPart III of the Constitution of India apart from public order, moralityand health?

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A4.What is the scope and extent of the word ‘morality’ under Articles25 and 26 of the Constitution of India and whether it is meant toinclude Constitutional morality?”

34. In view of the discussion made above, questions 3 and 4formulated by the nine-Judge Bench also arise for consideration in theBpresent writ petition. The decision which will be rendered by thenine-Judge Bench will have a direct impact on the questions which arisefor determination in this writ petition.

35. In the circumstances, we are of the view that the present writpetition deserves to be tagged with Review Petition (Civil) No.3358 ofC2018 pending before the Bench of nine Hon’ble Judges. We, accordinglydirect the Registry to seek appropriate directions in this behalf from theHon’ble Chief Justice.

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Bibhuti Bhushan Bose

(Assisted by : Sanika Thakare, LCRA)

Directions issued.

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