n No 128 of 1958
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
KM Munshi R J Joshi GK Munshi TSN Diwanji JB Dadachanji SN Andley Rameshwar Nath and P L Vohra for the petitioner
M C Setalvad Attorney General of India CK Daphtary Solicitor General of India HN Sanyal Additional Solictor General of India B Sen and R H Dhebar for the respondent
I N Shroff for the intervener
January 9 Sinha
CJ delivered his own Judgment
The Judgment of Sarkar Das Gupta and Mudholkar JJ was delivered by Das Gupta J Ayyangar J delivered a separate Judgment
500 SINHA C J
By this petition under article 32 of the Constitution the petitioner who is the 51st Dai ul Mutlaq and head of the Dawoodi Bohra Community challenges the constitutionality of the Bombay Prevention of Excommunication Act 1949 Bombay Act XLII of 1949 hereinafter referred to as the Act on the ground that the provisions of the Act infringe articles 25 and 26 of the Constitution
The sole respondent in this case is the State of Bombay
The petition is founded on the following allegations
The Dawoodi Bohra Community consist of Muslims of the Shia sect holding in common with all members of that sect the belief that there is one God that Mohammed is His Prophet to whom He revealed the Holy Koran that Ali the son in law of Mohammed was the Wasi executor of the Prophet and that the said Ali succeeded the Prophet by Nas e Jali
The Dawoodi Bohras believe that the said Ali was succeeded by a line of Imams each of whom in turn was appointed by Nas e Jali by his immediate predecessor
The Shia sect itself became divided into two sub sects known respectively as Ismailis and Isna Asharia
The Dawoodi Bohras belong to the former sect and believe that owing to persecution Imam Type the 21st Imam went into seclusion and that an Iman from his line appear it being their belief that an Iman always exists although at times he may be invisible to his believers while in seclusion that owing to the impending seclusion of the 21st Imam Imam Tyeb his predecessor the 20th Imam directed his Hujjat a dignitary ranking next to an Imam one Hurra tul Malaka to appoint a Dai a Mazoon a dignitary next to a Dai and a Mukasir a dignitary ranking next to a Mazoon to carry on the Dawal mission of the Imam so long as the Imam should remain in seclusion and to take and receive from the faithful an oath of allegiance
The Dais are 501 known as Dai ul Mutlaq
The petitioner as the Head Priest of the community of Dawoodi Bohras is the vice gerent of Imam on Earth in seclusion
The petitioner is a citizen of India
As Dai ul Mutlaq and the vicegerent of Imam on Earth in seclusion the Dai has not only civil powers as head of the sect and as trustee of the property but also ecclesiastical powers as religious leader of the community
It is the right and privilege of the petitioner as Dai ul Muntlaq to regulate the exercise of religious rights in places where such rights and ceremonies are carried out and in which religious exercises are performed
In his capacity as the Dai ul Mutlaq that is to say as religious leader as well as trustee of the property of the community one of his duties is to manage the properties which are all under his directions and control
He has also the power of excommunication
This power of excommunication is not an absolute arbitrary and untrammelled power but has to be exercised according to the usage and tenets of the community
Save in exceptional circumstances expulsion from the community can be effected only at a meeting of the Jamat after the person concerned has given due warning of the fault complained of and an opportunity of mending and after a public statement of the grounds of expulsion
The result of excommunication properly and legally effected involves exclusion from the exercise of religious rights in places under the trusteeship of the Dai ul Mustlaq
The petitioner claims that as the head of the Dawoodi Bohra community and as Dai ul Mutlaq he has the right and power in a proper case and subject to the conditions of legal exercise of that power to excommunicate a member of the Dawoodi Bohra community and this power of excommunication is an integral part of the religious faith and belief of the Dawoodi Bohra community
The petitioner further affirms that the exercise of the right of 502 excommunication is a matter of religion and that in any event the right is an incident of the management of the affairs of the Dawoodi Bohra community in matters of religion
He also asserts that the Dawoodi Bohra community constitutes a religious denomination within the meaning of article 26 of the Constitution the said right of the petitioner to excommunicate a member of the community for reasons of which the petitioner is the sole judge in the exercise of his position as the religious head is a guaranteed right under articles 25 and 26 of the Constitution
The Bombay Legislature enacted the Act which came into force on November 1 1949
The petitioner asserts that the Act violates his right and power as Dai ul Mutlaq and religious leader of the Dawoodi Bohra community to excommunicate such members of the community as he may think fit and proper to do the said right of excommunication and the exercise of that right by the petitioner in the manner aforesaid are matters of religion within the meaning of article 26b of the Constitution
It is submitted by the petitioner that the said Act violates or infringes both the articles 25 and 26 of the Constitution and to that extent after the coming into force of the Constitution has become void under article 13 of the Constitution
The petitioner claims that notwithstanding the provisions of the Act he as the religious leader and Dai ul Mutlaq of the community is entitled to excommunicate any member of the Dawoodi Bohra community for an offence which according to his religious sense justifies expulsion and insofar as the Act interferes with the said right of the petitioner it is ultra vires the Legislature
The Act is also challenged on the ground of legislative incompetence of the then Legislature of Bombay inasmuch as it is contended that such a power is not contained in any of the entries in the Seventh Schedule of the Government of India Act 1935
503 One Tayebhai Moosaji Koicha Mandivala instituted a suit being suit No 1262 of 1949 in the High Court of Judicature at Bombay praying inter alia for a declaration that certain orders of excommunication passed by the petitioner against him prior to the enactment of the Act were void and illegal and of no effect and that the plaintiff continued to remain a member of the Dawoodi Bohra community
The said suit was heard by JC Shah J who by his judgment dated February 21 1952 held that the Act was not inconsistent with article 26 of the Constitution and was not ultra vires the Legislature of the Province of Bombay
The petitioner being dissatisfied with the judgment of the learned Judge preferred an appeal that came up for hearing before the Court of Appeal composed of Chagla C J and Bhagwati J
By its judgment dated August 26 1952 the Court of Appeal upheld the judgment of the learned single Judge though on different grounds
The petitioner obtained leave from the High Court to appeal to this Court and ultimately filed the appeal being Civil Appeal No 99 of 1954
During the pendency of the appeal the plaintiff respondent aforesaid died and an application made on behalf of his heirs for being brought on the record was not granted by the High Court of Bombay
This Court dismissed the said appeal on the ground that the plaintiff having died the cause of action did not survive
The petitioner further alleges that parties inimical to him and to the Dawoodi Community have written scurrilous articles challenging and defying the position power or authority of the petitioner as the religious head of the community the challenge to the petitioner s position and his power to excommunicate as the head of the Dawoodi Bohra community is violative of the petitioner s guaranteed rights under articles 25 and 26 of the Constitution
It is therefore claimed that it 504 is incumbent upon the respondent in its public character to forbear from enforcing the provisions of the Act against the petitioner
By the petitioner s attorney s letter annexure B to the petition dated July 18 1958 the petitioner pointed out to the respondent the unconstitutionality of the Act and requested the latter to desist from enforcing the provisions of the Act against the petitioner or against the Dawoodi Bohra community
In the premises a writ of Mandamus or a writ in the nature of Mandamus or other appropriate writ direction or order under article 32 of the Constitution was prayed for against the respondent restraining it its officers servants and agents from enforcing the provisions of the Act
The answer of the State of Bombay the sole respondent is contained in the affidavit sworn to by Shri VN Kalghatgi Assistant Secretary to the Government of Bombay Home Department to the effect that the petitioner not having taken any proceedings to excommunicate any member of the community had no cause of action or right to institute the proceedings under article 32 of the Constitution that it was not admitted that the Dai ul Mutlaq as the head of the community has civil powers including the power to excommunicate any member of the community that alternatively such power is not in conformity with the policy of the State as defined in the Constitution that the petitioner as the head of the community may have the right to regulate religious rights at appropriate places and occasions but those rights do not include the right to excommunicate any person and to deprive him of his civil rights and privileges and that in any event after the coming into effect of the impugned Act the petitioner has no such rights of excommunication that it was denied that the right to excommunicate springs from or has its foundation in religion and religious doctrines tenets and faith of the Dawoodi Bohra community that at 505 any rate it was denied that the right to excommunicate was an essential part of the religion of the community that alternatively assuming that it was part of a religious practice it runs counter to public order morality and health
It was also asserted that the impugned Act was a valid piece of legislation enacted by a competent legislature and within the limits of article 25 and 26 of the Constitution and that the right to manage its own affairs vested in a religious community is not an absolute or untrammelled right but subject to a regulation in the interest of public order morality and health
It was denied that the alleged right of the petitioner to excommunicate a member of the community is guaranteed by articles 25 and 26 of the Constitution
In the premises it was denied that the petitioner had any right to the declaration sought or the relief claimed that the provisions of the Act should not be enforced
At a very late stage of the pendency of the proceedings in this Court in April 1961 one Kurbanhusein Sanchawala of Bombay made an application either for being added as a party to the Writ Petition or alternatively for being granted leave to intervene in the proceedings
In his petition for intervention he stated that he was a citizen of India and was by birth a member of the Dawoodi Bohra community and as such had been taking an active part in social activities for bettering the conditions of the members of the community
He asserted that members of the community accepted that up to the 46th Dai ul Mutlaq there was no controversy that each one of them had been properly nominated and appointed but that a controversy arose as regards the propriety and validity of the appointment of the 47th Dia ul Mutlaq which controversy continued all along until the present time so that opinion is divided amongst the members of the Dawoodi Bohra community as to the validity of appointments and 506 existence of Dai ul Mutlaq from the 47th to the 51st Dai ul Mutlaq including the present petitioner
The intervener also alleged that but for the impugned Act the petitioner would have lost no time in excommunicating him
In the premises he claims that he is not only a proper but necessary party to the writ Petition
He therefore prayed to be added as a party respondent or at any rate granted leave to intervene at the hearing of the Writ Petition
We have to dispose of this petition because no orders have been passed until the hearing of the main case before us
In answer to the petitioner s claims the intervener has raised the following grounds namely that the Holy Koran does not permit excommunication which is against the spirit of Islam that in any event the Dai ul Mutlaq had no right or power to excommunicate any member of the community and alternatively that such a right assuming that it was there was wholly out of date in modern times and deserves to be abrogated and was rightly abrogated by the said Act
 It was further asserted that the alleged right of excommunication was opposed to the universally accepted fundamentals of human rights as embodied in the Universal Declaration of Human Rights
 It was also asserted that the Act was passed by a competent legislature and was in consonance with the provisions of articles 25 and 26 of the Constitution
The intervener further claims that the rights to belief faith and worship and the right to a decent burial were basic human rights and were wholly inconsistent with the right of excommunication claimed by the petitioner and that the practice of excommunication is opposed to public order and morality that the practice of excommunication was a secular activity associated with religious practice and that the abolition of the said practice is within the saving cl 2a of article 25 of the Constitution
It was also asserted that under the Mohamadan Law properties attached to 507 institutions for religious and charitable purposes vested in the Almighty God and not in the petitioner and that all the members of the Dawoodi Bohra community had the right to establish and maintain such institutions in consonance with article 26 of the Constitution that is to say that article 26 guarantees the right of the denomination as a whole and not an individual like the petitioner
It was also asserted that the provisions of the Act prohibiting excommunication was in furtherance of public order and morality and was just and reasonable restriction on a secular aspect of a religious practice
The petitioner challenged the right of the intervener either to intervene or to be added as the party respondent
In his rejoinder to the petition for intervention the petitioner further alleged that the practice of excommunication was essential to the purity of religious denominations because it could be secured only by removal of persons who were unsuitable for membership of the community
It was therefore asserted that those who did not accept the headship of the Dal ul Mutlaq including the petitioner must go out of the community and anyone openly defying the authority of the Dai ul Mutlaq was liable to be excommunicated from the membership of the community entailing loss of rights and privileges belonging to such members
It was therefore claimed that the practice of excommunication was and is an essential and integral part of the religion and religious belief faith and tenets of Dawoodi Bohra community which have been guaranteed by article 26 of the Constitution
It has been urged on behalf of the petitioner in support of the petition that the Dawoodi Bohra community of which the petitioner is the religious head as also a trustee in respect of the property belonging to the community is a religious denomination within the meaning of article 26 of the Constitution that as such a religious denomination it is 508 entitled to ensure its continuity by maintaining the bond of religious unity and discipline which would secure the continued acceptance by its adherents of certain essential tenets doctrines and practices the right to such continuity involves the right to enforce discipline if necessary by taking the extreme step of excommunication that the petitioner as the religious head of the denomination is invested with certain powers including the right to excommunicate dissidents which power is a matter of religion within the meaning of article 26b of the Constitution that the impugned Act insofar as it takes away the power to enforce religious discipline and thus compels the denomination to accept dissidents as having full rights as a member of the community including the right to use the properties and funds of the community dedicated to religious use violates the fundamental rights of the petitioner guaranteed under article 26
In this connection reliance was placed on the decision of this Court in The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 which it is contended has laid down that the guarantee under the Constitution not only protects the freedom of opinion but also acts done in pursuance of such religious opinion and that it is the denomination itself which has a right to determine what are essential parts of its religion as protected by the provisions of articles 25 and 26 of the Constitution
It was further contended that the right to worship in the mosque belonging to the community and of burial in the graveyard dedicated to the community were religious rights which could not be enjoyed by a person who had been rightly excommunicated
Insofar as the Act took away the right of the petitioner as the head of the community to excommunicate a particular member of the community and thus to deprive him of the use of the funds and property belonging to the commu 509 nity for religious purposes had the effect of depriving the petitioner of his right as the religious head to regulate the right to the use of funds and property dedicated to religious uses of the community
It has also been contended that religious reform if that is the intention of the impugned Act is outside the ambit of article 252 b of the Constitution
The learned Attorney General for the respondent contended on the other hand that the right to excommunicate which has been rendered invalid by the impugned Act was not a matter of religion within the meaning of article 26b of the Constitution that what the Act really intended was to put a stop to the practice indulged in by a caste or a denomination to deprive its members of their civil rights as such members as distinguished from matters of religion which were within the protection of article 25 and 26
Alternatively it was also argued that even assuming that excommunication was concerned with matters of religion the Act would not be void because it was a matter of reform in the interest of public welfare
It was also argued that there was no evidence on the record to show that excommunication was an essential matter of religion
The right to worship at a particular place or the right of burial in a particular burial ground were questions of civil nature a dispute in respect of which was within the cognizance of the Civil Courts
The legislation in question in its real aspects was a matter of social welfare and social reform and not within the prohibitions of article 251 or article 26
Excommunication involving deprivation of rights of worship or burial and the like were not matters of religion within the meaning of article 26b and finally article 26b was controlled by article 252 b of the Constitution and therefore even if excommunication touched certain religious matters the Act insofar as it had abolished it was in consonance with modern notions of human dignity 510 and individual liberty of action even in matters of religious opinion and faith and practice
Shri Shroff appearing for the intervener attempted to reopen the question whether the petitioner as Dai ul Mutlaq assuming that he had been properly elected as such had the power to excommunicate in spite of the decision of their Lordships of the Judicial Committee of the Privy Council in Hasan Ali vs Mansoor Ali 1
He also supported the provisions of the impugned Act on the ground that they were in furtherance of public order
As we are not here directly concerned with the question whether or not the petitioner as the head of the religious community had the power to excommunicate we did not hear Mr Shroff at any length with reference to that question
We shall proceed to determine the controversy in this case on the assumption that the petitioner had that power
We are only directly concerned with the questions whether the provisions of the Act insofar as they have rendered invalid the practice of excommunication are unconstitutional as infringing article 26b and enacted by a legislature which was not competent to do so as contended on behalf of the petitioner
We will therefore confine our attention to those questions
Keeping in view the limited scope of the controversy we have first to determine the ambit and effect of the impugned Act
The Bombay Prevention of Excommunication Act Bombay Act XLII of 1949 is an Act to prohibit excommunication in the province of Bombay
Its preamble which shortly states the background of the legislation is in these terms Whereas it has come to the notice of Government that the practice prevailing in certain communities of excommunicating its members is often followed in a manner which results in the deprivation of legitimate rights and privileges of its members 511 And whereas in keeping with the spirit of changing times and in the public interest it is expedient to stop the practice it is hereby enacted is follows
The definition of Community as given in section 2a would include the Dawoodi Bohra community because admittedly its members are knit together by reason of certain common religious doctrines
and admittedly its members belong to the same religion or religious creed of a section of the Shia community of Muslims
The term community includes a caste or a sub caste also
Excommunication has been defined by section 2 b as meaning the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature  and the explanation to the definition makes it clear that the rights and privileges within the meaning of the definition 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 such right depends entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community
By section 3 excommunication of a member of a community has been declared to be invalid and of no effect notwithstanding any law custom or usage to the contrary
Any act of excommunication or any act in furtherance of excommunication of any member of a community has been made a penal offence liable to a punishment on conviction of fine which may extend to one thousand rupees
The explanation has made it clear that any person who has voted in favour of a decision of excommunication at a meeting of a body or an association of a particular denomination is deemed to have committed the offence made punishable by section 4 as aforesaid
Sections 5 and 6 lay down the procedure for the trial of an offence under the Act the limit of time 512 within which the prosecution must be launched and the necessity of previous sanction of the authority indicated therein
These in short are the provisions of the impugned Act
It will be noticed that the Act is a culmination of the history of social reform which began more than a century ago with the enactment of section 9 of Regulation VII of 1832 of the Bengal Code which provided inter alia that the laws of Hindus and Muslims shall not be permitted to operate to deprive the parties of any property to which but for the operation of such laws they would have been entitled
Those provisions were subsequently incorporated in the India Act XXI of 1850 known as the Caste Disabilities Removal Act which provided that a person shall not be deprived of his rights or property by reason of his or her renouncing or exclusion from the communion of any religion or being deprived of caste and that any such forfeiture shall not be enforced as the law in the Courts
The impugned Act thus has given full effect to modern notions of individual freedom to choose one s way of life and to do away with all those undue and outmoded interferences with liberty of conscience faith and belief
It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others
The legislature had to take the logical final step of creating a new offence by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct
The Act in substance has added a new offence to the penal law of the country by penalising any action which has the effect of depriving a person of his human dignity and rights appurtenant thereto
It also adds to the provisions of the Criminal Procedure Code and has insisted upon the previous sanction of the prescribed 513 authority as a condition precedent to launching a prosecution for an alleged offence against the provisions of the Act
In my opinion therefore the enactment in pith and substance would come within Entries 1  2 of List III of the Concurrent Legislative List of the Constitution Act of 1935
It is true that excommunication does not in terms figure as one of the entries in any one of the three lists
The legislative competence of the Bombay Legislature to enact the Act has not been seriously challenged before us and therefore no particular argument was addressed to us to show that the legislation in question could not be within the purview of Entries 1  2 of List III aforesaid
What was seriously challenged before us was the constitutionality of the Act in the light of the Constitution with particular reference to articles 25  26 and I shall presently deal with that aspect of the controversy
But before I do that it is convenient to set out the background of the litigation culminating in the present proceedings
The first reported case in relation to some aspects of Shia Imami Ismailis is that of the Advocate General ex relation Dave Muhammad vs Muhammad vs Husen Huseni 1
That was a suit commenced before the coming into existence of the Bombay High Court on the Equity Side of the late Supreme Court instituted by an information and bill filed by the relators and plaintiffs representing a minority of the Khoja community against the defendants representing the majority of that community
The prayer in the action was that an account be taken of all property belonging to or held in trust for the Khoja community of Bombay in the hands of the treasurer and the accountant respectively called Mukhi and Kamaria and other cognate reliefs not relevant to the present controversy
In that case which was heard on the Original side by Arnould J judgment was delivered in November 1866 after a 514 prolonged hearing
In that case the learned Judge went into a detailed history of the several sects amongst Muslims including the Shia Imami Ismailis with particular reference to the Aga Khan and his relation with the Jamat of the Khojas of Bombay
In that case it was laid down that there was no public property impressed with a trust either express or implied for the benefit of the whole Khoja community and that Aga Khan as the spiritual head of the Khojas was entitled to determine on religious grounds who shall or shall not remain members of the Khoja community
In that case the learned Judge with reference to authoritative texts went into the detailed history of the two sects of the Sunnis and Shias
He discussed the origin of the Ismailis as an offshoot of the Shias and traced the hereditary succession of the unrevealed Imams in unbroken line down to Agha Khan
Except for its historical aspect the case does not deal with any matter relevant to the present controversy
The next reported case which was brought to our notice is the case of the Advocate General of Bombay vs Yusufalli Ebrahim 1
That was a case directly in relation to the Dawoodi Bohra community with which we are concerned in this case
In that case there was a dispute as regards a mosque and a tomb and was heard by Marten J on the Original side in 1921
We are not concerned with the details of the controversy in that case
But the learned Judge has noticed the history of this community with particular reference to the position of the Dai ul Mutlaq and how the differences between the majority of the community and the minority arose on the question of the regularity of the succession of the 47th Dai in 1840
The learned Judge has pointed out that the powers of the Dai are at least thrice delegated 515 namely by God to Prophet Mohammad by the latter to the Imam and by the Imam to the Dai ul Mutlaq
The more directly in point is the litigation which was concluded by the judgment of their Lordships of the Judicial Committee of the privy Council in the case of Hasanali vs Mansoorali 1
In that case the powers of the Dai ul Mutlaq to excommunicate were directly in controversy
The petitioner was the first defendant in that action which had been commenced in October 1925 and was decided by the judgment of the Subordinate Judge of Burhanpur dated January 2 1931
That decision was reversed by the Judicial Commissioner of Central Provinces  Berar later the High Court at Nagpur by his judgment dated October 25 1934
That judgment was taken on appeal to the Privy Council and the judgment of the Privy Council very succinctly traces the history of the Dawoodi Bohra community until we come to the 51st Dai who was the first defendant in that action and is the petitioner before us
In that case certain orders of excommunication were under challenge
As a result of those orders of excommunication the plaintiffs had been obstructed in and prevented from entering the property in suit for the purposes of worship burial and resting in the rest house
In that case their Lordships did not uphold the claim of the Dai ul Mutlaq that he had unrestricted power of excommunication though they found that he could be regarded as Dai ul Mutlaq
As regards the power to excommunicate it was held that though the power was there it was not absolute arbitrary and untrammelled and then their Lordships laid down the conditions for the valid exercise of that power
The effect of a valid excommunication in their Lordships  view was exclusion from the exercise of religious rights in places under the trusteeship of the head of the community because the Dai was not only a religious 516 leader but also a trustee of the property of the community
After examining the evidence in that case their Lordships held that the persons alleged to have been excommunicated had not been validly expelled from the community
The judgment of the Privy Council was given on December 1 1947
Within two years of that judgment the impugned Act was passed and soon after a suit on the Original side of the Bombay High Court was commenced being suit No 1262 of 1949
That was a suit by a member of the Dawoodi Bohra community who had been excommunicated by the petitioner functioning as the Dai ul Mutlaq by two orders of excommunication one passed in 1934 and the other in 1948 soon after the judgment of the Privy Council
The suit was inter alia for a declaration that the orders of excommunication were void in view of the Act
A number of issues were raised at the trial which was heard by Shah J Two questions by way of preliminary issues with which we are immediately concerned in the present proceedings were raised before the learned Judge of the Bombay High Court namely 1 Was the Act within the legislative competence of the Legislature of the Province of Bombay  2 Whether after the coming into force of the Constitution the Act was invalid in view of articles 25 and 26 of the Constitution The learned Judge after an elaborate examination of the Constitution Act of 1935 came to the conclusion that the Bombay Legislature was competent to enact the Act and that it was not unconstitutional even after the coming into effect of the Constitution because it was not inconsistent with the provisions of articles 25 and 26
An appeal was taken to the Court of Appeal which was heard by Chagla C J and Bhagwati J
The Court of 517 Appeal upheld the decision of Shah J
The matter was brought up on appeal to this Court in Civil Appeal 99 of 1954
During the pendency of the appeal in this Court the plaintiff died and it was held without deciding the merits of the controversy that the suit giving rise to the appeal in this Court had abated by reason of the fact that the plaintiff had died and the cause of action being personal to him was also dead
The Order of this Court dismissing the appeal as not maintainable is dated November 27 1957
This Writ Petition was filed on August 18 1958 by the petitioner as the 51st Dai ul Mutlaq and head of the Dawoodi Bohra community for a declaration that the Act was void so far as the petitioner and the Dawoodi Bohra community were concerned and that a writ of mandamus or a writ in the nature of mandamus or other appropriate write direction or order under article 32 of the Constitution be issued restraining the respondent its officers servants and agents from enforcing the provisions of the Act against the petitioner or the Dawoodi Bohra community or in any manner interfering with the right of the petitioner as the religious leader and Dai ul Mutlaq of the Dawoodi Bohra community to excommunicate any member of the community for an offence which the petitioner in the exercise of his religious sense as the religious head of the community may determine as justifying such as expulsion
It is not disputed that the petitioner is the head of the Dawoodi Bohra community or that the Dawoodi Bohra community is a religious denomination within the meaning of article 26 of the Constitution
It is not even disputed by the State the only respondent in the case that the petitioner as the head of the community had the right as found by the Privy Council in the case of Hasanali vs Mansoorali1 to excommunicate a particular member of the community for reasons and in the 518 manner indicated in the judgment of their Lordships of the Privy Council
But what is contended is that as a result of the enactment in question excommunication has been completely banned by the Legislature which was competent to do so and that the ban in no way infringes articles 25 and 26 of the Constitution
I have already indicated my considered opinion that the Bombay Legislature was competent to enact the Act
It now remains to consider the main point in controversy which was as a matter of fact the only point urged in support of the petition namely that the Act is void in so far as it is repugnant to the guaranteed rights under articles 25 and 26 of the Constitution
article 25 guarantees the right to every person whether citizen or non citizen the freedom of conscience and the right freely to profess practise and propagate religion
But this guaranteed right is not an absolute one
It is subject to 1 public order morality and health 2 the other provisions of Part III of the Constitution 3 any existing law regulating or restricting an economic financial political or other secular activity which may be associated with religious practice 4 a law providing for social welfare and reform and 5 any law that may be made by the State regulating or restricting the activities aforesaid or providing for social welfare and reform
I have omitted reference to the provisions of Explanations I and II and other parts of article 25 which are not material to our present purpose
It is noteworthy that the right guaranteed by article 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof dealt with by article 26
Hence every member of the community has the right so long as he does not in any way interfere with the corresponding rights of others to profess practise and propagate his religion and everyone is guaranteed his freedom of conscience
The 519 question naturally arises Can an individual be compelled to have a particular belief on pain of a penalty like excommunication One is entitled to believe or not to believe a particular tenet or to follow or not to follow a particular practice in the matters of religion
No one can therefore be compelled against his own judgment and belief to hold any particular creed or follow a set of religious practices
The Constitution has left every person free in the matter of his relation to his Creator if he believes in one
It is thus clear that a person is left completely free to worship God according to the dictates of his conscience and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints as aforesaid imposed by the State in the interest of public order etc
A person is not liable to answer for the verity of his religious views and he cannot be questioned as to his religious beliefs by the State or by any other person
Thus though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute he has not the absolute right to act in any way he pleased in exercise of his religious beliefs
He has been guaranteed the right to practise and propagate his religion subject to the limitations aforesaid
His right to practise his religion must also be subject to the criminal laws of the country validly passed with reference to actions which the Legislature has declared to be of a penal character
Laws made by a competent legislature in the interest of public order and the like restricting religious practices would come within the regulating power of the State
For example there may be religious practices of sacrifice of human beings or sacrifice of animals in a way deleterious to the well being of the community at large
It is open to the State to intervene by legislation to restrict or to regulate to the extent of completely stopping such deleterious practices
It must therefore be held 520 that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large as may be determined by common consent that is to say by a competent legislature
It was on such humanitarian grounds and for the purpose of social reform that so called religious practices like immolating a widow at the pyre of her deceased husband or of dedicating a virgin girl of tender years to a god to function as a devadasi or of ostracising a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo were stopped by legislation
But it has been contended on behalf of the petitioner that the right guaranteed under article 25 to freedom of conscience and the freedom to profess practise and propagate religion is available not only to an individual but to the community at large acting through its religious head the petitioner as such a religious head has therefore the right to excommunicate according to the tenets of his religion any person who goes against the beliefs and practice connected with those beliefs
The right of the petitioner to excommunicate is therefore a fundamental right which cannot be affected by the impugned Act
In this connection reference was made to the following observations in the leading judgment of this Court bearing upon the interpretations of articles 25 and 26 vide The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 A religion may not only lay down a code of ethical rules for its followers to accept it might prescribe rituals and observances ceremonies and modes of worship which are regarded as integral parts of religion and 521 these forms and observances might extent even to matters of food and dress
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression practice of religion  in Article 25
 On the strength of those observations it is contended on behalf of the petitioner that this practice of ex communication is a part of the religion of the community with which we are concerned in the present controversy article 26 in no uncertain terms has guaranteed the right to every religious denomination or a section thereof to manage its own affairs in matters of religion article 26b
Now what are matters of religion and what are not is not an easy question to decide
It must vary in each individual case according to the tenets of the religious denomination concerned
The expression matters of religion in Art 26b and activities associated with religious practice do not cover exactly the same ground
What are exactly matters of religion are completely outside State interference subject of course to public order morality and health
But activities associated with religious practices may have many ramifications and varieties economic financial political and other as recognised by article 252a
Such activities as are contemplated by the clause aforesaid cover a field much wider than that covered by either article 251 or article 26b
Those provisions have therefore to be so construed as to create no conflict between them
We have therefore to classify practices into such as are essentially and purely of a religious character and those which are not essentially such
But it has been contended on behalf of the petitioner that it is for the religious denomination itself to determine what are essentially reli 522 gious practices and what are not
In this connection reliance is placed on the following observations of this Court in the leading case aforesaid of The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 As we have already indicated freedom of religion in our Constitution is not confined to religious beliefs only it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down
Under article 26b therefore a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters
 It should be noted that the complete autonomy which a religious denomination enjoys under article 26b is in matters of religion  which has been interpreted as including rites and ceremonies which are essential according to the tenets of the religion
Now article 26b itself would seem to indicate that a religious denomination has to deal not only with matters of religion but other matters connected with religion like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules managing property owned and possessed by the religious community etc etc
We have therefore to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship which is the tenet of the religious community and practices in other matters which may touch the religious institutions at several points but which are not intimately concerned with rites and ceremonies the performance of which is an 523 essential part of the religion
In this connection the following observations of this Court in The Durgah Committee Ajmer vs Syed Hussain Ali 1 which were made with reference to the earlier decisions of this Court in The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 2 and in Sri Venkataramana Devaru vs The State of Mysore 3 that matters of religion in article 26b include even practices which are regarded by the community as part of its religion may be noted Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of article 26
Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself
Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under article 26 may have to be carefully scrutinised in other words the protection must be confined to such religious practices as are an essential and an integral part of it and no other
 But then it is contended that a religious denomination is a quasi personality which has to ensure its continuity and has therefore to lay down rules for observance by members of its community and in order to maintain proper and strict 524 discipline has to lay down sanctions the right to excommunicate a recusant member is an illustration of that sanction
In this connection it was contended that the Privy Council had laid down in the case of Hasanali vs Mansoorali 1 that the power of excommunication was a religious power exercisable by the Dai
In my opinion those passages in the judgment of the Privy Council do not establish the proposition that the right which the Privy Council found inhered in the Dai was a purely religious right
That it was not a purely religious right becomes clear from the judgment of the Judicial Committee of the Privy Council which laid down the appropriate procedure and the manner of expulsion which had to be according to justice equity and good conscience and that it was justiciable
A matter which is purely religious could not come within the purview of the Courts
That conclusion is further strengthened by the consideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community which are all disputes of a civil nature and are not purely religious matters
In the case before their Lordships of the Privy Council their Lordships enquired into the regularity of the proceedings resulting in the excommunication challenged in that case and they held that the plaintiff had not been validly expelled
It cannot therefore be asserted that the Privy Council held the matter of excommunication as a purely religious one
If it were so the Courts would be out of the controversy
The same argument was advanced in another form by contending that excommunication is not a social question and that therefore article 252b could not be invoked in aid of holding the Act to be constitutional
In this connection it has to be 525 borne in mind that the Dai ul Mutlaq is not only the head of the religious community but also the trustee of the property of the community in which the community as a whole is interested
Even a theological head has got to perform acts which are not wholly religious but may be said to be quasi religious or matters which are connected with religious practices though not purely religious
Actions of the Dai ul Mutlaq in the purely religious aspect are not a concern of the courts but his actions touching the civil rights of the members of the community are justiciable and not outside the pale of interference by the legislature or the judiciary
I am not called upon to decide nor am I competent to do so as to what are the religious matters in which the Dai ul Mutlaq functions according to his religious sense
I am only concerned with the civil aspect of the controversy relating to the constitutionality of the Act and I have to determine only that controversy
It has further been argued on behalf of the petitioner that an excommunicated person has not the right to say his prayers in the mosque or to bury his dead in the community burial ground or to the use of other communal property
Those may be the result of excommunication but I am concerned with the question whether the Legislature was competent and constitutionally justified in enacting the law declaring excommunication to be void
As already indicated I am not concerned in this case with the purely religious aspect of excommunication
I am only concerned with the civil rights of the members of the community which rights they will continue to enjoy as such members if excommunication was held to be invalid in accordance with the provision of the Act
Hence though the Act may have its repercussions on the religious aspect of excommunication in so far as it protects the civil rights of the members of the community 526 it has not gone beyond the provisions of article 252b of the constitution
Then it is argued that the guaranteed right of a religious denomination to manage its own affairs in matters of religion article 26b is subject only to public order morality and health and is not subject to legislation contemplated by article 252b
This very argument was advanced in the case of Shri Venkataramana Devaru vs The State of Mysore1
At page 916 this argument has been specifically dealt with and negatived
This Court observed as follows The answer to this contention is that it is impossible to read any such limitation into the language of Art252b
It applies in terms to all religious institutions of a public character without qualification or reserve
As already stated public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof and denominational temples would be comprised therein
The language of the Article being plain and unambiguous it is not open to us to read into it limitations which are not there based on a priori reasoning as to the probable intention of the Legislature
Such intention can be gathered only from the words actually used in the statute and in a Court of law what is unexpressed has the same value as what is unintended
We must therefore hold that denominational institutions are within article 252b
 In that case also as in the present case reference was made to the earlier decision of this Court in 527 The Commissioner Hindu Religious endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 but the latter decision had explained the legal position with reference to the earlier decision and after examining the arguments for and against the proposition at pages 916 918 it has been distinctly laid down that article 26 b must be read subject to article 25 2 b of the Constitution
It has further been contended that a person who has been excommunicated as a result of his non conformity to religious practices is not entitled to use the communal mosque or the communal burial ground or other communal property thus showing that for all practical purposes he was no more to be treated as a member of the community and is thus an outcast
Another result of excommunication is that no other member of the community can have any contacts social or religious with the person who has been excommunicated
All that is true
But the Act is intended to do away with all that mischief of treating a human being as a pariah and of depriving him of his human dignity and of his sight to follow the dictates of his own conscience
The Act is thus aimed at fulfilment of the individual liberty of conscience guaranteed by article 25 1 of the Constitution and not in derogation of it
In so far as the Act has any repercussions on the right of the petitioner as trustee of communal property to deal with such property the Act could come under the protection of article 26 d in the sense that his right to administer the property is not questioned but he has to administer the property in accordance with law
The law in the present instance tells the petitioner not to withhold the civil rights of a member of the community to a communal property
But as against this it is argued on behalf of the petitioner that his right to excommunicate is so bound up with religion that it is protected by cl
b of article 26 and is thus completely out of the 528 regulation of law in accordance with the provisions of cl
d of that Article
But I am not satisfied on the pleadings and on the evidence placed before us that the right of excommunication is a purely religious matter
As already pointed out the indications are all to the contrary particularly the judgment to the Privy Council in the case of Hasanali vs Mansoorali 1 on which great reliance was placed on behalf of the petitioner
On the social aspect of excommunication one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community and if that is so the Act in declaring such practices to be void has only carried out the strict injunction of article 17 of the Constitution by which untouchability has been abolished and its practice in any form forbidden
The Article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law
The Act in this sense is its logical corollary and must therefore be upheld
In my opinion it has not been established that the Act has been passed by a legislature which was not competent to legislate on the subject or that it infringes any of the provisions of the Constitution
This petition must therefore fail
DAS GUPTA J
In our opinion this petition should succeed
The petitioner is the head of the Dawoodi Bohras who form one of the several sub sects of the Shia sect of Musalmans
Dawoodi Bohras believe that since the 21st Imam went to seclusion the rights power and authority of the Imam have been rightfully exercised by the Dai ul Imam as the vice regent of the Imam in seclusion
One of such rights is the exercise of disciplinary powers including the right to excommunicate any 529 member of the Dawoodi Bohra community
The existence of such a right in the Dai ul Mutlaq who is for the sake of convenience often mentioned as the Dai was questioned before the courts in a case which went up to the Privy Council
But since the decision of the Privy Council in that case viz Hasanali vs Mansoorali 1 that question may be taken to have been finally settled and it is no longer open to dispute that the Dai as the head of the Dawoodi Bohra community has the right to excommunicate any member of the community
The claim of the present petitioner to be the 51st Dai ul Mutlaq of the community was also upheld in that case and is no longer in dispute
The Privy Council had also to consider in that case the question whether this power to excommunicate could be exercised by the Dai in any manner he liked and held after consideration of the previous cases of excommunication and also a document composed about 1200 AD that normally members of the community can be expelled only at a meeting of the Jamat after being given due warning of the fault complained of and an opportunity of amendment and after a public statement of the grounds of expulsion
 Speaking about the effect of excommunication their Lordships said Excommunication  necessarily involve exclusion from the exercise of religious rights in places under the trusteeship of the head of the community in which religious exercises are performed
 The present petitioner it may be mentioned was a party to that litigation
This decision was given on December 1 1947 shortly after that the Bombay Legislature it may be mentioned that there is a large concentration of Dawoodi Bohras in the State of Bombay stepped in to prevent as mentioned in the preamble the practice of excommunication which 530 results in the deprivation of legitimate rights and privileges of members of certain religious communities and enacted the Bombay Act No XLII of 1949
It is a short Act of six sections
Section 3 the main operative section invalidates all excommunication of members of any religious community
Excommunication is defined in section 2 to mean 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 a civil nature by him or on his behalf as such member
The explanation to the definition to this section makes it clear that a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit even though the determination of such right may depend entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community
Section 4 makes a person who does any act which amounts to excommunication or is in furtherance of the excommunication liable to punishment which may extend to one thousand rupees
Faced with the position that the legislation wholly destroys his right of excommunicating any member of the Dawoodi Bohra community the Dai has presented this petition under article 32 of the Constitution
He contends that the Act violates the fundamental right of the Dawoodi Bohras including himself freely to practise religion according to their own faith and practice a right guaranteed by article 25 of the Constitution and further that it violates the right of the Dawoodi Bohra community to manage its own affairs in matters of religion guaranteed by article 26
Therefore says he the Act is void and prays for a declaration that the Act is void and the 531 issue of an appropriate writ restraining the respondent the State of Bombay its officers servants and agents from enforcing the provisions of the Act against the petitioner andor any other member of the Dawoodi Bohra community
It may be mentioned that in the petition the legislative competence of the Bombay legislature to enact the Bombay Prevention of excommunication 1949 was also challenged
This however was not pressed at the time of the hearing
The respondent contends that neither the right guaranteed under article 25 nor that under article 26b is contravened by the impugned Act
Briefly stated the respondent s case is that the right and privilege of the petitioner as Dai ul Mutlaq to regulate the exercise of religious rights do not include the right to excommunicate any person so as to deprive him of his civil rights and privileges
It was denied that the petitioner s power to excommunicate was an essential part of the religion of the Dawoodi Bohra community and that the right has its foundation in religion and religious doctrines tenets and faith of the Dawoodi Bohra community
It was also denied that the right to excommunicate is the religious practice and it was further pleaded that assuming that it was a religious practice it was certainly not a part of religion of the Dawoodi Bohra community
The same points were urged on behalf of the intervener except that the learned counsel for the intervener wanted to reopen the question whether the petitioner as the head of the Dawoodi Bohra community had the power to excommunicate
As already stated however this question is hardly open to dispute in the face of the decision of the Privy Council in Hasanali vs Mansoorali 1 and the point was not pressed
The content of articles 25 and 26 of the Constitution came up for consideration before this Court 532 in the Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt 1 Mahant Jagannath Ramanuj Das vs The State of Orissa 2 Sri Venkatamana Devaru vs The State of Mysore 3 Durgah Committee Ajmer vs Syed Hussain Ali 4 and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy
The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances ceremonies and modes of worship which are integral parts of religion
The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion
Before however we can give a proper answer to the two questions raised viz i Has the impugned Act interfered with a right freely to practise religion and ii Has it interfered with the right of the Dawoodi Bohra Community to manage its own affairs in matters of religion it is necessary to examine first the place of excommunication in the life of a religious community
Much valuable information about this is furnished by an article in the Encyclopaedia of the Social Sciences from the pen of Prof Hazeltine
Excommunication says Prof Hazeltine in one or another of the several different meanings of the term has always and in all civilizations been one of the principal means of maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity
 Druids in old Britain are said to have claimed the power to exclude offenders from sacrifice
The early Chiristian Church exercised 533 this power very largely and expelled and excluded from the Christian association those members who proved to be unworthy of its aims or infringed its rules of governance
During the middle ages the Pope used this power frequently to secure the observance of what was considered the proper religious rights and practices of Christianity by excommunicating even the kings of some European countries when they introduced or tried to introduce different forms of divine worship
The power was often used not perhaps always fairly and justly as a weapon in the struggle for the principle that the Church was above the State
Impartial historians have recognised however that many of the instances of excommunication were for the purpose of securing the adherence to the orthodox creed and doctrine of Christianity as pronounced by the Catholic Church
Vide The Catholic Encyclopedia Vol
V articles on England and Excommunication
Turning to the Canon law we find that excommunication may be inflicted as a punishment for a number of crimes the most serious of these being heresy apostasy or schism
Canon 1325 section 2 defines a heretic to be a man who while remaining nominally a Christian pertinaciously denies or doubts any one of the truths which must be believed de fide divina et catholica if he falls away entirely from the Christian faith he is an apostate finally if he rejects the authority of the Supreme Pontiff or refuses communion with the members of the Church who are subject to him he is a schismatic
Vide Canon Law by Bouscaren and Ellis
Among the Muslims also the right of excommunication appears to have been practised from the earliest times
The Prophet and the Imam had this right and it is not disputed that the Dais have also in the past exercised it on a number of 534 occasions
There can be little doubt that heresy or apostasy was a crime for which excommunication was in force among the Dawoodi Bohras also
It may be pointed out in this connection that excommunication in the case of Hasanali vs Mansoorali 1 which was upheld by the Privy Council was based on the failure to comply with the tenets and traditions of the Dawoodi Bohra community and certain other faults
According to the petitioner it is an integral part of the religion and religious faith and belief of the Dawoodi Bohra community that excommunication should be pronounced by him in suitable cases
It was urged that even if this right to excommunicate is considered to be a religious practice as distinct from religious faith such religious practice is also a part of the religion of the Dawoodi Bohra community
It does appear to be a fact that unquestioning faith in the Dai as the head of community is part of the creed of the Dawoodi Bohras
It is unnecessary to trace the historical reason for this extraordinary position of the Dai as it does not appear to be seriously disputed that the Dai is considered to be the vice regent of Imam so long as the rightful Imam continues in seclusion
Mention must be made in this connection of the Mishak which every Dawoodi Bohra takes at the time of his initiation This includes among other things an oath of unquestioning faith in and loyalty to the Dai
It is urged therefore that faith in the existence of the disciplinary power of the Dai including his power to excommunicate forms one of the religious tenets of this community
The argument that article 25 has been contravened by the impugned Act is based mainly on this contention and the further contention that in any case excommunication is a religious practice in this community
As regards article 26b the argument is that excommunication among the 535 Dawoodi Bohras forms such an integral part of the management of the community by the religious head that interference with that right cannot but amount to an interference with the right of the community to the manage its own affairs in matters of religion
Let us consider first whether the impugned Act contravenes the provisions of article 26 b
It is unnecessary for the purpose of the present case to enter into the difficult question whether every case of excommunication by the Dai on whatever grounds inflicted is a matter of religion
What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine similar to what is considered heresy apostasy or schism under the Canon Law or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general excommunication cannot but be held to be for the purpose of maintaining the strength of the religion
It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community through its religious head of its own affairs in matters of religion
 The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds
It therefore clearly interferes with the right of the Dawoodi Bohra community under cl
b of article 26 of the Constitution
That excommunication of a member of a community will affect many of his civil rights is undoubtedly true
This particular religious denomination is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such property
It might be thought undesirable that the head of a religious community 536 would have the power to take away in this manner the civil rights of any person
The right given under article 26 b has not however been made subject to preservation of civil rights
The express limitation in article 26 itself is that this right under the several clauses of the article will exist subject to public order morality and health
It has been held by this Court in Sri Venkataramana Devaru vs The State of Mysore 1 that the right under article 26b is subject further to cl 2 of article 25 of the Constitution
We shall presently consider whether these limitations on the rights of a religious community to manage its own affairs in matters of religion can come to the help of the impugned Act
It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion
The fact that civil rights of a person are affected by the exercise of this fundamental right under article 26b is therefore of no consequence
Nor is it possible to say that excommunication is prejudicial to public order morality and health
Though there was a statement in paragraph 10 of the respondent s counter affidavit that the religious practice which runs counter to the public order morality and health must give way before the good of the people of the State the learned Attorney General did not advance any argument in support of this plea
It remains to consider whether the impugned Act comes within the saving provisions embodied in cl 2 of article 25
The clause is in these words Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law 537 a regulating or restricting any economic financial political or other secular activity which may be associated with religious practice b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Quite clearly the impugned Act cannot be regarded as a law regulating or restricting any economic financial political or other secular activity
Indeed that was not even suggested on behalf of the respondent State
It was faintly suggested however that the Act should be considered to be a law providing for social welfare and reform
 The mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss does not offer sufficient basis for a conclusion that it is a law providing for social welfare and reform
 The barring of excommunication on grounds other than religious grounds say on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of cl 2b of article 25
But barring of excommunication on religious grounds pure and simple cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dai s power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform
As the Act invalidates excommunication on any ground whatsoever including religious grounds it must be held to be in clear violation of the right of the Dawoodi Bohra community under article 26b of the Constitution
538 It is unnecessary to consider the other attack on the basis of article 25 of the Constitution
Our conclusion is that the Act is void being in violation of article 26 of the Constitution
The contrary view taken by the Bombay High Court in Taher Saifuddin vs Tyebbhai Moosaji 1 is not correct
We would therefore allow the petition declare the Act to be void and direct the issue of a writ in the nature of mandamus on the respondent the State of Bombay not to enforce the provisions of the Act
The petitioner will get his costs
AYYANGAR J I agree that the petition should succeed and I generally concur in the reasoning of Das Gupta J by which he has reached this conclusion
In view however of the importance of the case I consider it proper to state in my own words the grounds for my concurrence
It was not in dispute that the Dawoodi Bohras who form a sub sect of the Shia sect of Muslims is a religious denomination within the opening words of article 26 of the Constitution
There are a few further matters which were not in controversy on the basis of which the contentions urged in support of the petition have to be viewed
These might now be briefly stated 1 It was the accepted tenet of the Dawoodi Bohra faith that God always had and still has a representative on earth through whom His commands are conveyed to His people
That representative was the Imam
The Dai was the representative of the Imam and conveyed God s message to His people
The powers of the Dai were approximated to those of the Imam
When the Imam came out of seclusion the powers of the Dai would cease
The chain of intercession with the Almighty was as follows The Dai the Imam 539 the Holy Prophet and the one God See Per Marten J in Advocate General of Bombay vs Yusufalli Ebrahim 1
2 The position and status of the petitioner as the Dai ul Mutlaq was not contested since the same had been upheld by the Privy council the decision reported as Hasanali vs Mansoorali 2
3 It was not in dispute that subject to certain limitations and to the observance of particular formalities which were pointed out by the Privy Council in the decision just referred to that the Dai ul Mutlaq has the power of excommunication and indeed as observed by Lord Porter in that judgment the right of excommunication by a Dai ul Mutlaq was not so strenuously contested as were the limits within which it is confined 4 The Dai ul Mutlaq was not merely a religious leader the religious head of the denomination but was the trustee of the property of the community
5 The previous history of the community shows that excommunicated persons were deprived of the exercise of religious rights
It was contended before the Privy Council that the effect of an excommunication was in the nature merely of social ostracism but this was rejected and it was held to have a larger effect as involving an exclusion from the right to the enjoyment of property dedicated for the benefit of the denomination and of worship in places of worship similarly dedicated or set apart
The validity of Bombay Act 42 of 1949 which I shall hereafter refer to as the impugned Act has to be judged in the light of these admitted premises
Articles 25 and 26 which are urged as violated by the impugned Act run 540 25
1 Subject to public order morality and health and to the other provisions of this Part all persons are equally entitled to freedom of conscience and the right freely to profess practice and propagate religion
2 Nothing in this article shall affect operation of any existing law or prevent the State from making any law a regulating or restricting any economic financial political or other secular activity which may be associated with religious practice b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause b of clause 2 the reference to Hindus shall be construed as including a reference to persons professing the Sikh Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly
Subject to public order morality and health every religious denomination or any section thereof shall have the right a to establish and maintain institutions for religious and charitable purposes b to manage its own affairs in matters of religion c to own and acquire movable and immovable property and d to administer such property in accordance with law
 541 I would add that these Articles embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history
the instances and periods when this feature was absent being merely temporary aberrations
Besides they serve to emphasize the secular nature of Indian Democracy which the founding fathers considered should be the very basis of the Constitution
I now proceed to the details of the provisions of the impugned Act which are stated to infringe the rights guaranteed by these two Articles
The preamble to the impugned Act recites Whereas it has come to the notice of Government that the practice prevailing in certain communities of excommunicating its members is often followed in a manner which results in the deprivation of legitimate rights and privileges of its members And whereas in keeping with the spirit of changing times and in the public interest it is expedient to stop the practice it is hereby enacted as follows   Section 3 is the operative provision which enacts 3
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
 Section 4 penalises any person who does any act which amounts to or is in furtherance of the excommunication and subjects him to criminal 542 proceedings as regards which provision is made in sections 5 and 6
Section 2 contains two definitions 1 of the word community which would include the religious denomination of Dawoodi Bohras and 2 of excommunication as meaning 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 Explanation
For the purposes of 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 such right depends entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community
 The question to consider is whether a law which penalises excommunication by a religious denomination or by its head whether or not the excommunication be for non conformity to the basic essentials of the religion of that denomination and effects the nullification of such excommunication as regards the rights of the person excommunicated would or would not infringe the rights guaranteed by articles 25 and 26
First as to article 25 as regards cl 1 it was not in dispute that the guarantee under it protected not merely freedom to entertain religious beliefs but also acts done in pursuance of that religion this being made clear by the use of the expression 543 practice of religion
No doubt the right to freedom of conscience and the right to profess practise and propagate religion are all subject to public order morality or health and to the other provisions of this Part but it was not suggested that subject to an argument about the matter being a measure of social reform the practice of excommunication offended public order morality or health or any other part of the Constitution
Here is a religious denomination within Art26
The Dai ul Mutlaq is its spiritual leader the religious head of the denomination and in accordance with the tenets of that denomination he had invested in him the power to excommunicate dissidents
Pausing here it is necessary to examine the rational basis of the excommunication of persons who dissent from the fundamental tenets of a faith
The identity of a religious denomination consists in the identity of its doctrines creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community
As Smith B said in Dill vs Watson 1 in a passage quoted by Lord Halsbury in Free Church of Scotland vs Overtoun 2 In the absence of conformity to essentials the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion it would be a mere incongruous heap of as it were grains of sand thrown together without being united each of these intellectual and isolated grains differing from every other and the whole forming a but nominally united while really unconnected mass fraught with nothing but internal dissimilitude and mutual and reciprocal contradiction and dissension
 544 A denomination within article 26 and persons who are members of that denomination are under in article 25 entitled to ensure the continuity of the denomination and such continuity is possible only may by maintaining the bond of religious discipline which would secure the continued adherence of its members to certain essentials like faith doctrine tenets and practices
The right to such continued existence involves the right to maintain discipline by taking suitable action inter alia of excommunicating those who deny the fundamental bases of the religion
The consequences of the exercise of that power vested in the denomination or in its head a power which is essential for maintaing the existence and unity of denomination must necessarily be the exclusion of the person excommunicated from participation in the religious life of the denomination which would include the use of places of worship or consecrated places for burial dedicated for the use of the members of the denomination and which are vested in the religious head as a trustee for the denomination
The learned Attorney General who appeared for the respondent submitted three points 1 Assuming that excommunication was part of the religious practice of the denomination still there was no averment in the petition that the civil results flowing from excommunication in the shape of exclusion from the beneficial use of denominational property was itself a matter of religion
In other words there was no pleading that the deprivation of the civil rights of a person excommunicated was a matter of religion or of religious practice
2 The excommunication defined by the Act deals with rights of civil nature as distinguished from religious or social rights or obligations and a law dealing with the civil consequence of an excommunication does not violate the freedom protected by article 25 or article 26
3 Even on the basis that the civil consequences of an excommunication are a matter of religion still it is a 545 measure of social reform and as such the legislation would be saved by the words in article 252b
I am unable to accept any of these contentions as correct
1 First I do not agree that the pleadings do not sufficiently raise the point that if excommunication was part of the practice of a religion the consequences that flow therefrom were not also part of the practice of religion
The position of the Dai as the religious head of the denomination not being disputed and his power to excommunicate also not being in dispute and it also being admitted that places of worship and burial grounds were dedicated for the use of the members of the denomination it appears to me that the consequence of the deprivation of the use of these properties by persons excommunicated would be logical and would flow from the order of excommunication
It could not be contested that the consequence of a valid order of excommunication was that the person excommunicated would cease to be entitled to the benefits of the trusts created or founded for the denomination or to the beneficial use or enjoyment of denominational property
If the property belongs to a community and if a person by excommunication ceased to be a member of that community it is a little difficult to see how his right to the enjoyment of the denominational property could be divorced from the religious practice which resulted in his ceasing to be a member of the community
When once it conceded that the right guaranteed by article 25 1 is not confined to freedom of conscience in the sense of the right to hold a belief and to propagate that belief but includes the right to the practice of religion the consequences of that practice must also bear the same complexion and be the subject of a like guarantee
2 I shall reserve for later consideration the point about the legislation being saved as a matter 546 of social reform under article 252b and continue to deal with the argument that the impugned enactment was valid since it dealt only with the consequences on the civil rights of persons excommunicated
It has however to be pointed out that though in the definition of excommunication under section 2b of the impugned Act the consequences on the civil rights of the excommunicated persons is set out that is for the purpose of defining an excommunication
What I desire to point out is that it is not as if the impugned enactment saves only the civil consequences of an excommunication not interfering with other consequences of an excommunication falling within the definition
Taking the case of the Dawoodi Bohra community if the Dai excommunicated a person on the ground of forswearing the basic tenets of that religious community the Dai would be committing an offence under section 4 because the consequences according to the law of that religious denomination would be the exclusion from civil rights of the excommunicated person
The learned Attorney General is therefore not right in the submission that the Act is concerned only with the civil rights of the excommunicated person
On the other hand it would be correct to say that the Act is concerned with excommunications which might have religious significance but which also operate to deprive persons of their civil rights
Article 26 confers on every religious denomination two rights which are relevant in the present context by cl
b to manage its own affairs in matters of religion and by the last clause cl
d to administer such property which the denomination owns or has acquired vide cl
c d in accordance with law
 In considering the scope of article 26 one has to bear in mind two basic postulates First that a religious denomination is possessed of property which is dedicated for definite uses and which under article 26 d the religious 547 denomination has the right to administer
From this it would follow that subject to any law grounded on public order morality or health the limitations with which article 26 opens the denomination has a right to have the property used for the purposes for which it was dedicated
So far as the present case is concerned the management of the property and the right and the duty to ensure the proper application of that property is admitedly vested in the Dai as the religious head of the denomination
Article 26 d speaks of the administration of the property being in accordance with law and the learned Attorney General suggested that a valid law could be enacted which would permit the diversion of those funds to purposes which the legislature in its wisdom thought it fit to appropriate
I feel wholly unable to accept this argument
A law which provides for or permits the diversion of the property for the use of persons who have been excluded from the denomination would not be a law contemplated by article 26d
Leaving aside for the moment the right of excommunicated persons to the enjoyment of property dedicated for the use of a denomination let me take the case of a person who has renounced that religion and in passing it might be observed that even in cases of an apostate according to the principles governing the Dawoodi Bohra denomination there is no ipso facto loss of rights only apostasy is a ground for excommunication which however could take place without service of notice or an enquiry
It could not be contended that an apostate would be entitled to the beneficial use of property dedicated to the Dawoodi Bohra community be it the mosque where worship goes on or other types of property like consecrated burial grounds etc
It would be obvious that if the Dai permitted the use of the property by an apostate without excommunicating him he would be committing a dereliction of his duty as the supreme head 548 of the religion in fact an act of sacrilege besides being guilty of a breach of trust
I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property belonging to the denomination by an apostate it would be a wholly unauthorised diversion which would be a violation of article 26d and also of article 26c not to speak of article 251
The other postulate is the position of the Dai as the head of the religious denomination and as the medium through which spiritual grace is brought to the community and that this is the central part of the religion as well as one of the principal articles of that faith
Any denial of this position is virtually tantamount to a denial of the very foundation of the faith of the religious denomination
The attack on the constitutionality of the Act has to be judged on the basis of these two fundamental points
The practice of excommunication is of ancient origin
History records the existence of that practice from Pagan times and Aeschyles records The exclusion from purification with holy water of an offender whose hands were defiled with bloodshed
 Later the Druids are said to have claimed the right of excluding offenders from sacrifice
Such customary exclusions are stated to have obtained in primitive semitic tribes but it is hardly necessary to deal in detail with this point because so far as the Muslims and particularly among the religious denomination with which this petition is concerned enough material has been set out in the judgment of the Privy Council already referred
Pausing here it might be mentioned that excommunication might bear two aspects 1 as a punishment for crimes which the religious community justifies putting one out of its fold
In this connection it may be pointed out that in a theocratic State the punitive aspect of excommunication 549 might get emphasized and might almost take the form of a general administration by religious dignitaries of ordinary civil law
But there is another aspect which is of real relevance to the point now under consideration
From this point of view excommunication might be defined as the judicial exclusion from the right and privileges of the religious community to whom the offender belongs
Here it is not so much as a punishment that excommunication is inflicted but is used as a measure of discipline for the maintenance of the integrity of the community for in the ultimate analysis the binding force which holds together a religious community and imparts to it a unity which makes it a denomination is a common faith common belief and a belief in a common creed doctrines and dogma
A community has a right to insist that those who claim to be within its fold are those who believe in the essentials of its creed and that one who asserts that he is a member of the denomination does not at least openly denounce the essentials of the creed for if everyone were at liberty to deny these essentials the community as a group would soon cease to exist
It is in this sense that it is a matter of the very life of a denomination that it exercises discipline over its members for the purpose of preserving unity of faith at least so far as the basic creed or doctrines are concerned
The impugned enactment by depriving the head of the power and the right to excommunicate and penalising the exercise of the power strikes at the very life of the community by rendering it impotent to protect itself against dissidents and schismatics
It is thus a violation of the right to practice religion guaranteed by article 251 and is also violative of article 26 in that it interfers with the rights of the Dai as the trustee of the property of the denomination to so administer it as to exclude dissidents and excommunicated persons from the beneficial use of such property
550 It is admitted however in the present case that the Dai as the head of the denomination has vested in him the power subject to the procedural requirements indicated in the judgment of the Privy Council to excommunicate such of the members of the community as do not adhere to the basic essentials of the faith and in particular those who repudiate him as the head of the denomination and as a medium through which the community derives spiritual satisfaction or efficiency mediately from the God head
It might be that if the enactment had confined itself to dealing with excommunication as a punishment for secular offences merely and not as an instrument for the self preservation of a religious denomination the position would have been different and in such an event the question as to whether articles 25 and 26 would be sufficient to render such legislation unconstitutional might require serious consideration
That is not the position here
The Act is not confined in its operation to the eventualities just now mentioned but even excommunication with a view to the preservation of the identity of the community and to pervent what might be schism in the denomination is also brought within the mischief of the enactment
It is not possible in the definition of excommunication which the Act carries to read down the Act so as to confine excommunication as a punishment of offences which are unrelated to the practice of the religion which do not touch and concern the very existence of the faith of the denomination as such
Such an exclusion cannot be achieved except by rewriting the section
The next question is whether the impugned enactment could be sustained as a measure of social welfare and reform under article 25 2 b
The learned Attorney General is no doubt right in his submission that on the decision of this Court in the 551 Mulki Temple case Venkataramana Devaru vs State of Mysore1 the right guaranteed under article 26b is subject to a law protected by article 252b The question then before the Court related to the validity of a law which threw open all public temples even those belonging to a religious denomination to every community of Hindus including untouchable   and it was held that notwithstanding that the exclusion of these communities from worship in such a temple was an essential part of the practice of religion of the denomination the constitutionality of the law was saved by the second part of the provision in article 252b reading the throwing open of Hindu religious institutions of a public character to all classes and section of Hindus
The learned Attorney General sought support from this ruling for the proposition that article 252b could be invoked to protect the validity of a law which was a measure of social welfare and reform notwithstanding that it involved an abrogation of the whole or part of the essentials of a religious belief or of a religious practice
I feel unable to accept the deduction as flowing from the Mulki Temple case
That decision proceeded on two bases  1 As regards the position of untouchables article 17 had made express provision stating  Untouchability  is abolished and its practice in any form is forbidden
The enforcement of any disability arising out of Untouchability  shall be an offence punishable in accordance with law and that had to be recognised as a limitation on the rights of religious denominations however basic and essential the practice of the exclusion of untouchables might be in its tenets or creed
2 There was a special saving as regards laws providing for throwing open of public Hindu Religious Institu 552 tions to all classes and sections of Hindus in article 252b and effect had to be given to the wide language in which this provision was couched
In the face of the language used no distinction could be drawn between beliefs that were basic to a religion or religious practices that were considered to be essential by a religious sect on the one hand and on the other beliefs and practices that did not form the core of a religion or of the practices of that religion
The phraseology employed cut across and effaced these distinctions
But very different considerations arise when one has to deal with legislation which is claimed to be merely a measure providing for social welfare and reform
To start with it has to be admitted that this phrase is as contrasted with the second portion of article 252b far from precise and is flexible in its content
In this connection it has to be borne in mind that limitations imposed on religious practices on the ground of public order morality or health have already been saved by the opening words of article 251 and the saving would cover beliefs and practices even though considered essential or vital by those professing the religion
I consider that in the context in which the phrase occurs it is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of article 251 for two reasons 1 To read the saving as covering even the basic essential practices of religion would in effect nullify and render meaningless the entire guarantee of religious freedom a freedom not merely to profess but to practice religion for very few pieces of legislation for abrogating religious practices could fail to be subsumed under the caption of a provision for social welfare or reform
2 If the phrase just quoted was intended to have such a wide operation as cutting at even the essentials guaranteed by article 251 there 553 would have been no need for the special provision as to throwing open of Hindu religious institutions to all classes and sections of Hindus since the legislation contemplated by this provision would be par excellence one of social reform
In my view by the phrase laws providing for social welfare and reform it was not intended to enable the legislature to reform a religion out of existence or identity
Article 25 2a having provided for legislation dealing with economic financial political or secular activity which may be associated with religious practices the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion
Just as the activities referred to in article 252a are obviously not of the essence of the religion similarly the saving in article 252b is not intended to cover the basic essentials of the creed of a religion which is protected by article 251
Coming back to the facts of the present petition the position of the Dai ul Mutlaq is an essential part of the creed of the Dawoodi Bohra sect
Faith in his spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit
The power of excommunication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity
The purity of the fellowship is secured by the removal of persons who had rendered themselves unfit and unsuitable for membership of the sect
The power of excommunication for the purpose of ensuring the preservation of the community has therefore a prime significance in the religious life of every member of the group
A legislation which penalises this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the 554 guarantee under article 251 and rendering the protection illusory
In my view the petitioner is entitled to the relief that he seeks and the petition will accordingly be allowed
BY COURT In accordance with the majority view of this Court the petition is allowed
The petitioner is entitled to his costs
Petition allowed


Summary:
section 3 of the Bombay Prevention of Excommunication Act 1949 Bom
42 of 1949 it is provided that Notwithstanding anything contained in any law custom or usage for the time being in force to the contrary no excommunication of member of any community shall be valid and shall be of any effect
 The preamble to the Act state inter alia that in keeping with the changing times and in the public interest it was expedient to stop the practice of excommunication prevalent in certain communities and the definition of the word community contained in section 2 of the Act included the included the religious denomination of Dawoodi Bohras
The petitioner who was the religious head of the Dawoodi Bohra community and trustee of its property challenged the constitutional validity of the Act on the ground that it violated its fundamental rights guaranteed by articles 25 and 26 of the Constitution
Reliance was placed on behalf of the petitioner on the decision of Judicial Committee of the Privy Council in Hasan Ali vs Mansoor Ali 1947 L R 75 IA 1 to which he was a party as recognising his right as the 51st Dai ul Mutlaq of the community to excommunicate any of its members under prescribed limits
 Held Per Sarkar Das Gupta and Mudholkar JJ Sinha C J dissenting that the impugned Act violated articles 25 and 26 of the Constitution and was therefore void
It was evident from the religious faith and tenets of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the impugned Act in making even such excommunication invalid infringed the right of the community under article 26b of the Constitution
Hasan Ali vs Mansoorali 1947 L R 75 I A 1 referred to
497 It is well settled that that articles 25 and 26 of the Constitution protect not merely religious doctrines and beliefs but also acts done in pursuance of religion and thus guarantee rituals and observances ceremonies and modes of worship which are integral parts of religion
What is essential part of a religion or what its religious practice has to be judged in the light of its doctrine and such practices as are regarded by the community as a part of its religion must also be included in them
Commissioner of Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt   Mahant Jagannath Ramanuj Das vs The State of Orissa 1954 SCR 1046 Sri Venkataramana Devaru vs State of Mysore  and Durgah Committee Ajmer vs Syed Hussain Ali   relied on
The fundamental right under article 26b is not subjected to preservation of civil rights and its only limitations are those expressly mentioned by the Article itself ie public order morality and health and those mentioned by cl 2 of article 25 as has been held by this court
The fact that in the instant case civil rights of an excommunicated person would be affected by the exercise of the fundamental right under article 26b can therefore be of no consequence nor could it be said that excommunication was prejudicial to public order morality and health
The impugned Act did not fall within article 252a nor could it be said to be a law providing for social welfare and reform within the meaning of article 252b of the Constitution
It barred excommunication even on religious grounds and could not be said to promote social welfare and reform even though it sought to prevent consequent loss of civil rights
Sri Venkataramana Devaru vs State of Mysore   referred to
Taher Saifuddin vs Tyebbhai Moosaji A I R  disapproved
Per Sinha C J
It was not correct to say that the Privy Council in Hasanali vs Mansoorali held that the right of the Dai ul Mutlaq to excommunicate a member of the community was a purely religious matter
The Dai was not merely the head of a religious community but also the trustee of its property
While his actions in the purely religious aspect could be no concern of the Courts those touching the civil rights of the members of the community were justiciable and liable to interference by the legislature and the judiciary
498 The impugned Act therefore in seeking to protect the civil rights of the members of the community was within the saving provisions of article 252 b of the constitution since the right of a religious denomination under article 26b was subject to legislation under article 252b of the Constitution
Sri Venkataramana Devaru vs State of Mysore   relied on
The Commissioner of Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt   considered
The Durgah Committee Ajmer vs Syed Hussain Ali   referred to
Case law discussed
The Act had for its purpose the fulfilment of individual liberty of conscience guaranteed by Art 251 and sought to implement article 17 of the Constitution in attempting to save an excommunicated person from virtually becoming an untouchable in his community and its constitutional validity could not therefore be questioned
Held further that the Act in pith and substance fell within Entries 1 and 2 of List III of the Legislative Lists of the Constitution Act of 1935 and there could be no doubt as to the competency of the Legislature in enacting it
Per Ayyangar J The right of Dai ul Mutlaq to exercise the right of excommunication against a member of the denomination as recognised by the Privy Council in Hasanali vs Mansoorali could not be in doubt
A denomination under article 26 and its members under article 25 have the right to ensure its existence by maintaining discipline and ensuring adherence to its tenets and practices by such suitable action as excommunication of those who denied the fundamental bases of the religion
The consequence of such action must necessarily involve the exclusion of an excommunicated person from participation in the religious life of the denomination including the use of places of worship or burial grounds dedicated for the use of the members and vested in the religious head as trustee for the denomination
Dill vs Watson 1836 3 Jones Rep Ir exhibit 48 and Free Church of Scotland vs Overtoun  referred to
It was not correct to say in view of the definition of the word excommunication  contained in the Act that it merely sought to save the civil rights of an excommunicated person and had no concern with excommunication on religious 499 grounds entailing under the laws of the denomination deprivation of civil rights
The impugned Act by depriving the Dai of the right to excommunicate and making its exercise a penal offence struck at the very life of the denomination and rendered it impotent to protect itself against dissidents and schismatics and thereby contravened article 25 and 26 of the Constitution
The impugned Act cannot also to sustained as a measure of social welfare and reform under article 252b or under article 17 of the Constitution
Venkatarama Devaru vs State of Mysore   distinguished
The expression laws providing for social welfare and reform in article 2521 of the Constitution was not intended to enable the legislature to reform a religion out of existence or identity
The activities referred to in article 252a are obviously not of the essence of the religion nor was article 252b intended to cover the essentials of a religion which are protected by article 251
Faith in the Dai ul Mutlaq being an essential part of the creed of the denomination that held it together the impugned Act clearly contravened article 251 of the Constitution by taking away his power of excommunicate by which he kept the denomination together and maintained the purity of its fellowship