SUI- REME COURT REPORTS (1962) SUPP.

S'ARDAR SYEDNA l'AHER SAIFUDDIK SAHEB v.

THE STATE OF BO'.\IBAY (B. P. SillA c. J., A. K. SARKAR, K. c. DAS

GUP'l'A, N. RAJAOOPALA AYYANOAU and J. R. Mun110LKAR, JJ.)

Excommunication, Pretenlion of-Enactment-Conalituticnal rolidity-Fundamrntal rights of membua of Dawoodi Bohra r.cmmunity and its religious Brad, if infringtd-Bomhay l:'reten:ion of Excommunication Act, I949(Bom. 42 oJ 1949), sa.

2, J-l'o1.stitution of ft, dia, Arts. 25, 26, 17.

By s.3 of the Bombay Prevention of Excommunication Act, 1949 (Born. 42 of 1949), it is provided thal "Norwithstanding anything contained _in al\Y law, custom or usage for the time being in force, to the contrary, no t'xcommunication of a mem bcr of any community shall be valid and shall be of any effect." The preamble to the Act stated, inter alia, that in keeping with the changing times and in the public intrrcst, it was expedient to stop the practice of excommunication prevalent in certain con1munitics and the definition of the word "community'' contained ins. 2 of the Act included the reJig; ous denomination of Dawoodi Bohras.

The pietilioner, who wou the religi ous head ,, f the Dawoodi Bohra community and trustee of its property, challenged the constilutional validiry of the Act on the ground thot it violated its fundamental rights guaranteed by Arts. 25 and 26 of the Corutitution. Reliance was placed on behalf of the petitioner on the decision of Judicial Committee of the Privy Council in Ila.an Ali v. Mansoor Ali,

(1947) L.R.75 I.A. I, to which he was a party, as rognising his right a.< the 5lst Dai-ul-Mutlaq of the community to excommunicate any of its membcn under prescribed limits,

/leld, (Per Sarkar, Das Gupta and Mudholkar, JJ., Sinha, C. J., diaaenting), that the impugned Act violated Arts. 25 and 26 of the Cons1itution and was, therefore, void.

It was evident from the religious faith and :enets of the Dawoodi Bohra community that the exercise of the power ol excommunication by its religious head on religioua grounds formed part of the management of its affairs In matters of religion and the impugned Act in making even ruch excommunication invalid infringed the right of the community under Art. 26(b) of the Constitution.

H1J1G11 .41i v. .llaM<JOrali, (1947) L. R. 75 I. A. I, nfc:ncd to.

It is well settled that that Arts. 25 and 26 of the Constitution protect not merely religious doctrines and belif'fs but also acts done in pursuance of religion and thus bUarante rituals and observances, ceremonies and modes of worship which are integral parts of religion. What is essential p_art of a religion or whatts religious practice has to be judgerl m the light of its doctrine and such practices as arc regarded by the community as a part of iis religion must also be included in them.

Commissioner of Hindu Religious Endowments, Madras

v. Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt, [I 954] S. C. R. 1005, Mahant Jagannath Ramanuj Das v. The State of Orissa, [1954] S.C.R. 1046, Sri Venkataramana Devaru v.

State of Mysore,· [1958] S.C.R. 891 and Durgah Committee, Ajmer v. Sye~ Hussain Ali, [1962] 1 S.C.R, 383, relied on.

The fundamental right under Art. 26(b) is not subjected to preservation of civil rights and its only limitations are those expressly mentioned by the Article itself i e. public order, morality and health and those mentioned by cl. 2 of Art. 25 as has been held by this court. The fact that in the instant case civil rights of an excommunicated person would bC affected by the exercise of the fundamental right under Art, 26(b) 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 Art. 25(2) (a.) nor could it be said to be a law "providing for social welfare.and reform" within the meaning of Art. 25(2)(b) of the Constitu tion. It barred excommunication even on religious ground'' 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 v. State of Mysore, [1958] S.C.R. 895, referred to.

Tahu Saifuddin v. Tyebbhai Moo.aji, A. I. R. 1953 Born. 183, disapproved.

Per Sinha, C. J.-It was not <0rrcct to say that the Privy Council in Hasana/i v. Mansoorali, held that the right or the Dai-ul-M4tlaq 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 conccm of the rourts, 1thosctouching the civil rights of the members of the community were justiciable

i'nd liable to interference by the lislat4rc l\nd the judiciary.

Sa1dar Syedf!a Toher Saijuddin

Saheb

Tiu State of Bombay

B•Jt11 S,;1J11a TIM Seiftll/J1n

8oltt6

' Tiii s,_,, •I B -'•J

498 SUPREME COURT REPORTS [1962] SUPP

The impuRned Act, thcreforr. in seeking to protrct the civil right.s .of the members of the community was within the saving prov1S1om of Art. 2.5(2)(b) of th• constitution sir.cc the right of'.' rel.igious denomination under Art. 26(b) was subject to legtslatton under Art. 25(2)(b) of the Constitutio~

Sri Venkataramana Demro v. Sta'I of Myaort, [1958] S.C.R, 895, relied on.

Tht Commiasiuntr o/ llindu Religioua End<>u•ment8, Mad, raa v. Sri Lakahmindm Thirtha Swamiar of Sri ShT1ir Mutt, [1954] S.C.R. Hi05, considered.

Th< Durgah Committee, Ajmer v. Syed Huaaain Ali, [1962] I S.C.R. 383, referred to.

Case-law discussed.

The Act had for its purpose the fulfilment of individuat liberty of conscience uaranieed by Art 25(1) and sought to implement Art. 17 of the Con"itution in attempting to save an excommunicated person from virtually becoming an untouchable in his community and its constitutional validity could not, therefore, he questioned.

Held, further. that the Act in pith and substance fell within Eniries 1 and 2 of List Ill of the Legislative Listi of the Constimtion Act of 1935, and there could be no doubt as to the con1pettn( y of the Lrgislature in rnarting it.

Per Avyangar, J-The right of Dai-ul-Mutlaq to exercise the right of exc0mmuniration against a member of the drnomination as recogni.ed by the Privy Council in lltJMJnali v . .Jfan&00rali, could not be in doubt.

A denomination under Art. 26 and its members under Art. 25 have the right to ensure ill existence by maintaininc discipline and ensu1ing adherence to its tenet& and practices bv such suitable action as excommunicatibn of those who denied the fundamental bases of the religion. The consequence of such action must n"cessari1y involve the exclusion of an excommunicated person from participation in the religious

life of the denomination including the use of places of wonhip or burial grounds dedicated for the use of the members and vested in the religious head as trustee for the denomination.

Dill v. Wataon, (1836) 3 Jones Rep. (Ir. Ex.) 4S aad Jl'rt• Church o/ Scotlallcl v. Ovcrlou, [I~] A. C. 515, referred to.

It was not correct to say, in view of the ddinition of the word 'excomm11nication' contained in the Act., that it merely sought to save the civil righu of ·~ e_xcommun~ted penon and had no concern with ~C011111llUl•cat100 .., reh'IOllfi

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 impo tent to protect itself against dissidents and schismatics and thereby contravened Art. 25 and 26 of the Constitution, The impugned Act cannot also to sustained as a measure of social welfare and reform under Art. 25 (2) (b) or under Art. l 7 of the Constitution.

Venkatarama Devaru v. State of Mysore, [1958] $.C.R. 895, distinguished.

The expression "laws providing: for social welfare and reform" in Art. 25(2: (b) of the Constitution was not intended to enable the legislature to "reform" a religion out of exis .. tence or identity. The activities referred to in Art. 25(2)(a) are obviously not of the essence of the religion nor was Art. 25(2)(b) intended to cover the essentials of a religion which are protected by Art. 25(1).

Faith in the Dai-uJ.Mutlaq being an essenti:.1 part of the creed of the denominatio;; that held it together, the impugned Act clearly contravened Art. 25(1) of the Constitu tion by tnking away his po\ver of excomunicate by which he kept the denomination together and maintained the purity of its fellowship.

OmGINAL JURISDICTION: Petition No. 128 of 1958.

Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.

K. JI!. Munshi, R.J. Jo.•M, G.K. Jfunshi, T.S.N.

Diwariji, J.B. Dadachanji, S. N. Andtey, Rameshim.r Nath and P. L. Vohra, for the petitioner.

JI .C. Set, alvad, Attorney General o.f India, C.K.

Daphtary, SolicitorGenerol of l"1dio. H.N .. Sanyal, Additional Solicitor General of lndhi, B. {{en and R.H. Dhehar, for the respondent.

l.N. Shroff, for the intervener.

1962. January 9~Sinha. C.J., delivered his own Judgment. The Judgment of Sarkar, Das Gupta

and Mudholk!t.r, JJ., was delivered by Das Gupta, J.

AyY&ngar J. delivered a separate Judgment.

Sardaf' Syulna TalMr Saifudd;•

Saheb

•• 11,, Slatt of s.., q,

sw,,, s_,,4114 'Tlt.t Saifllddin

Sah.b

•• 7),, 8'4u of B , m1a_,

SinAa C.J.

SUPREME COURT REPORTS (1962] SUPP.

S1:<HA, C. J.-By this petition under Art. 3~ of the Constitution, the petitioner, wh') is the 5lst Dai-ul-ltfutlaq and head of the Da.woodi Bohra Community. challenges the roustit u1 ic11al ity of the Bombay Prevention of Excommu11il'ation Act, 19.W (Bombay Act XLII of Hl49) (hereinafter nfer red to a.~ the Act) on the ground that the provisions of the Act infringe Arts. 25 and 26 of the Constitution. The sole respondent in this oaso is the State of Bombay.

The petition is founded on the following allegation&.

The Dawoodi Rohra Community consista of Muslims of the Shia sect, holdinl! in common with all members of that sect the heli< f that there is one God, that Mohamm•d is His Prophet to whom Ho revealed th" Holy Koran ; that Ali, the son-in-law of Mohammad, was the Wasi (executor) of the Prophet, and that the said Ali succeC'ded the Prophet by Nas-e-Jali.

Tho Dawoodi Bohras believe that th" said Ali was succeeded by a line of Imams, each of whom io turn was appointed by Nas-e-Jali by his lmmediat<> predecessor. The Shia sect itself l.ecame di"idPct into two sub-seota, known respectively as bmai/i.- and Ima Asharia. The Dawoodi Bllhras belong to the former sect, and believe that owing to perser.ution Imam Tyeb (the 21st llfam) went into seolu'sion and that an Iman from his line "'ill appear, it being their belief that an I man always exists although at times he may ho iovi&ihle to his

believers, while in seclusion ; that owing to tho impen, ling seolusion of the 2 lst Imam {Imam Tyeb) his predecassor, tho :!0th Imam, clircted hie Hujjat (a. dignitary ranking next to an Imam), on,.

Hurra-tul-.Malaka, to appoint a J)ai, a Mazoon (11 dignitary next ton Dai) and a Muhir {a dignitary ranking next to a Mazoon) to carry on the Duua.1 (miBBion) of tho /mJJm S•J long as th" Imam shoukf remain in seclusion, and to take antl receive from e faithful an oath of allegiance. The Doia are

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 ecclesiastic11l powers as religious leader of the community.

It is the right and privilege of the petitioner as Dai-ul-Mntlaq 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 relie:ious 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 81so 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 meetmg of the Jamat, after the person concerned has b•:en given due warning of the fault complained of and an opportunity of mending, and after a public statemeut 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-Mutlaq.

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 oflcgal 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

196!

S ardar S.JlldnO Toher Saifudd.in

. alub

•• 1.'he State of Bombay

Sinha C.J.

IHI S•d.B•- T•""s:tf-"itl .. . 1l1 Stou if B.,.b.i>

.... c.J.

502 SUPREllE COURT REPOR'.1'5 [1902] SUPP.

excommunication is a matter of religion, and tha.t, in any event, the right is an incident of the managtoment of the affairs of the Dawoodi Bohm community in matters of religion. He also aHserts that the Da.woodi Bohra. community constitutes a religious denomination within the. meaning of Art . 26 of thp 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 Arts. 25 and 26 of the Constitution.

The Bombay Legislature enacted the Act, which came into force on November l, 1049, The petitioner asserts that the Act violates bis right and pown, ai. Dai-ul-Mutlaq and religioll8 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 matU, rs of religion within the meaning of Art. 26( b) of the Constitution.

It is submitted by tho pttitioner that the said Act violates or infringes both the Arts. 25 and 26 of the Constitution, and to that extent., after the coming into force of tho Constitution, has become void under Art. 13 of the Constitution.

Tho petitioner claims that notwithstanding the provisions of the Act, he, as the religious loader and Dai-ul-MuUaq of the community, is entitled to cxcommicatc any member of the Da.woodi Bohr& community for an offence, which according to his religious sense justifies expulsion; and insofar as tho Act interferes with the said right of the petitioner, it is ultra virea 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 tho entries in the Seventh Schedule of the Government of India. Act, 1935.

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 excom munication passed by the petitioner against him prior to tho 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 J.C. Shah, J., who. by his judgment dated February 21, 1952, held that the Act was not inconsi11tent with Art. 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 1.lombay.

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 oommunity; the challenge to the petitioner's position and his power to excommunicate as the head of the Dawoodi Bohra community is violat.ive of the petitioner's guaranteed rights under Arts. 25 and 26 of the Constitution. It is, therefore, claimed that it

Barda< Sydrul T al&er Salfw/dl1t

SoJieb

v, Tiu Stale of B1111Hr1'

Sinha c.J,

8., o S)'Mno

ro1in BaifvdJi•

Solwb

v. 11.SW.•fBW.,,

SW. C • .1.

504 SUPREME COURT REPORTS [1962] SUPP.

is inoumbont upon the respondent, in its public cha.raoter, to forbea.r from enforcing the provisions of the Act against the petitioner. By the petitioner's attorney's lettl'r, annexure B to the petition, dated July 18, 1958, the petitioner pointed out to the respondent the unconstitutionality of thf' Act and requested tho latter to desist from enforcing tho provisions of tho 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, qirection or order under Art. 32 of the Constitution was prayed for against the respondent restraining it, its officers, servants and agents from enforcing the provisionH of the Act.

The answer of the State of Bombay, the sole respondent, is contained in the affidavit sworn to by Shri V.N. 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 Art. 32 of the Constitution; that it was not admitted that the Dai-ul-Mutlaq, as the bead 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 tba 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 tho 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 excommunir, a.te springs from or has its foundation in religion and religious doctrines, tenets and faith of the Dawoodi Bohra community that, a.t

any rate, it was denied that the right to excommu nicate was an essential part of the religion of the community; that, altcrnati vely, 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 Art. 25 and 26 of the Constitution; and that thP right to manage its own affairs vested in a feligious community is not an absolute or untrammelled right but subject to a regulation in the interest of public order, mprality and health. It was denied that the alleged right of the petitioner to excowmunicate a member of the community is guaranteed by Arts. 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 th1; proceedings in this Court, in April 1961, one Kurbanhusein Sanchawala of Bombay, made an applicatfon either for being added as a party to the Writ Petition or, alternatively, for being granted

leilve to intervene in the proceedings. In hi; i petition for intervention, he stated that he was a citizen of India and was by birth a member of the Dawoodi Bohra commun.ity and as such had been taking an active part in social activities for bettering the conditions of the members of the cummunity. He asserted that mem hers of the community accepted that up to the 46th Dai-ul- 11! utlaq 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-Jfut/, aq, which controversy conti.aued all along until the present time so that opinioa is divided amonzst the members of the Dawoodi Bohra commuuity as to the validity of appointments and

Sard11r S,..tna Taht1 Saifuddin

Solr1b

•• Tiu Stal• of Bomb47

Sinha C.J.

11111 s.-.s,.a.

TN S•ifud4in 8- •• n. s..u •f "-"'

8/Mo C . .J.

506 SUI'REME COURT REPORTS [1962] SUPP.

existence of Daiul-Mul/aq, from the 47th 'to the 6lst

Dai-tJl-Mutlaq, including the present petitioner. The intervener also alleged that but for the impugned Act, the petitioner woul<l have loH no time in excommunicating him. In the premises, he claims that he is not ooly a proper but necessary pa1 ty to the Writ Petition. Hi,, therefore, prayed to be added as a part) -respondent, or, at any rate, granted leave w intervene at the hearing of the Writ Petition. We have to dispose of this petition becaue no orders have been p8.88ed uLril the bee.ring of the main case before us. In answer to the petitioner's claims, the intervener has raised the following grounds, namely, that the Hoi, y Karan does not permit excommunication, which is against the spirit of Islam; that, in any event, the Dai-Ill 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 he abrogated and was rightly abrogate& by the said Act." I~ was further asserted that the alleged right of excommunication was opposed to the universally aooepted fundamentals of human rights as em bodied in the "Universal Declaration of Human Rights." It Wiii! also &BSerted that the Act was p881led by a competent legislature and was in consonance with the provisions of Arts. 25 and 26 of the Coll8titution. The intervener further cfoims that the rights to belief, faith and worship and the right to a decent burial were baaio human rights and were wholly inconsistent with the right of excommunication claimed by the petitioner, and that the practice of e:s:oommunication is opposed to publio order and morality; that the practice of e:s:communioation was a secul&r activity aSBociated

with religious practice and that the abolition of the said practice is within the saving cl. 2(a) of Art. 25 of the Constitution. It waa also asaerted that, under the lllohamadan Law, properties attached to

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 Art. 26 of the Constitution ; that is to say that Art. 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 sec1tlar 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 weJ:t) unsuitable for membership of the community. It was, therefore, asse.rted that those who did not accept the headship of the Dai-ul-Mutlaq, including the petitioner, must go out of the community and anyone openly defying the authority of the Dai'ld 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 Dawnodi Bohra community, which have been guaranteed by Art. 26 of the Constitution.

It has been argued 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 proPE?rty belonging to the community, is a religious denomination within the meaning of Art. 26 of the Constitu tion; that as such a religious denomination it is

1161.

Saur S(l!doa Ta/u, Saifutltl1t1

Sall4b

Thi Slate of Blllflba.1

Sinha C. J.

Jt s .. u. s,..,, T•~ .CIU/uJdin

Balltb

•• Tlw BloU •! 8-6•7

SWl4 C. J.

508 SUPREME OOURT REPORTS [1962] SUPP.

entitled to ensure its continuity by maintaininir the bond of religious unity and dicipline, which woulrl secure th~ continued acceptllnce by its adherents of certain e&lential tenets, doctrines and practices; the right to 8Uch coutinuty involves the right to enforce discipline, if necesary by taking the extreme step of excommunication; that the petitioner as the religious head of the denominatio!l is invested with certain powers, including the right to excommunicate dissidents, which power is a matter of religion within the meaning of Art. 26(b) of the Constitution that the impugned Act, insofar as it takes away the pown to fnforce religious disoipline 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 commuity dedicated to religious use, violates the fundamental rights of the petitioner guaranteed under Art. 26.

In this connection, reliance was placed on the decision of this Court in The Commis sion£r, Hindu Religious Endowmt:nts, Mr'llras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt('), 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 pursu. ance of such religious opinion, and that it is the denomination itself which has a right to dt1termine what are eBSential parts of its religion, as protected by the provisions of Arts. :!5 and 26 of the Constitu tion. It was further contended that the riirht to worship in the mosque belonging to the C'.lmmunity and of burial in the graveyard dedicated to the community were religious rights which could not be enjoyed by a person who had b:ien rightly excommunicated.

Inofar as the Act took away the right of the petitioner as the head of the com munity 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- ( J) [ l~J S.C.R. 1005.

nity for religious purposes, had the effect of depriving the petitioner of his right ns the religious head to regulate the right to the us~ of funds and property dedicated to religious uses of the community. It has also beeu contr>nded that religious reform, if that is the intention of the impmmed Act, is outside the ambit of Art. 25('!) (b) of the Contitution.

The learned Attorney-General for th<' respondent contended on the other hand, that thu right to excommunicate, whiuh has be0n rendenr! i11 va.lid by the impugned Act, WilS not a matter of religion within the meaning of Art. :!G\b) of the Con; tibtion; that what the Act really intended was to put a stop to the practice inrlulgcd in by a caste or a denomination to deprive its membJr~ of their cidl rights

as such members, as distinguished from matters of religion, which were withir1 th•.\ protection of Art. :.!5 and 2G.

Altern 1tively, it WilS al; o argued that even asuming that excommunication was concerned with matters of religion, the Act would not be void becaius it was a matter of reform in thil interest of public welfare. It was also argued that there was no evidence on the record to show that ex:communication 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 qllestions of civil natur~. a dispute in respct of which was within the cvgnizance of the Civil ()ourts. rhe legislation in questio:1, in its real aspects, was a matter of social welfare and soci d reform and n'.>t within the prohibitioni of Art. 2.5( I) or Art. 26.

E1:commllnication involving deprivation. of rights of worship or burial and the like wcr•• not matters of religion witliin the meaning of Art. 2G(b), and Ii.tally, Art. 26(b) waa controlled by Art. 25(2) (b) uf th3 Constitution, and, th'.Jrefore, even if excommunication touched oertin religious matters, the Aot, insofar as it had abolisheJ it, was in co111onance with modern notions of human dignity

Sardar ')ytdna Taher St1ifuddin

Saheh v.

Tnt State of Bomb•7

Sinla C. J.

s., .. 8,.,,..

T- SaifutUi•

So.lib

'v.

T.\t S 1<14 of Bomb•J

BW..C, J,

510 SUPREME CO~TREPORTS [1962] SUPP.

and individual liberty of action even in matters of religiouR opinion and faith and practice.

Shri Shroff, appearing for the intervener, attempted to reopen tho question whether the

titioner as Dai-ul-Mutlaq, assuming that he had been properly elected as such, had tho power to excommunicate, in spite of the decision of their Lordships of the Judicial Committee of tho Privy Council in HatJan Ali v. Man..'>001" Ali ( ').

He also supported the provisions of the impugned Act on the grou11d that they were in furtherance of public order. As we are not here directly concerned with tho question whether or not the petitioner as tho head of the religi0us community had thP power to excommunicate, we did not hear Mr. Shroff at any length with reference to that qu!'stion. We shall proceed to determin the controversy in this c11se on the aseumption that the petitioner bad that power.

We are only directly concemrd with the questions whether the provisions of the Act, insofar as they have rrndered invalid the practice of excommunica tion, are unconstitutional as infringing Art. 26(b}, 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 c0ntroversy, we have first tO' determine the ambit and effect of tho impugned Act. The Bombay Prevention of Excommunication Act (Bombay Act XLII of 1919) is an Act to prohibit excommunication in the province of Bombay. Its preamble, which shortly states the background of the le;; islation, is in these terms :

"Whereas it has come to the notice of Government that the fractice prevailing in certain communities o excommunicating its members is often followed in a manlier whi<.h result.a in the deprivation of legitimate right. and privileges of it8 members ;

(1) [19f7] L.Jl. 75, J. A. J,

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" Tue definition of "Community" as given in s. 2(a) 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. "Excommuni

cation" has been defined. by s. 2 (b) as meaning "the expulsion of a person fl'Om 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 nclude 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 riteH or ceremonies or rule or usage of a community. By s. 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 puni8hment, 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 s. 4, as aforesaid.

Sections 5 and 6 lay down the procedure for the trial of an offence under the' Act, the limit of time

Sartlor SyeJno To.her l!Satfuddi11

Salreb

Thi Slal• of BM11"'1

Sinha a. J,

1H3

8•44' B(l!in• r .... s.v..uu.

B.Wt

•• r1u Sl•ll •/ B~

8i•"4 c. J.

512 SUPREME OOURT REPORTS [1962] SUPP.

within which the prosecution must be launched and the necessity of previous sanction of the authority

indicated therein.

These, in short, are tho provisions of the impugned Act. It will be noticed that the Act is a culmination of tho hietory of social reform which began more than a century ago with the fnactmt'nt of s. 9 of Regulation YJI cf 1832 of the :Bengal Code, which provided, i11ter alia. that the J:rn s of Hindus and M'ijslims shall nl>t be permitted to ope rate 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 tlio [ndia Act (XXI of 1850)-known as the Caste Disabilities Removal Act-which provided tht a person shall not be dcprivt-d of his rights or property hy reason of his or her renouncing or exclusion from tho communion of any religion or being dPprivcd of "~&te, and that an:v 011ch forfeiture shall not be enfNr<d as the law in the Court8. The impugned Act, \], us, has given full dfect to modern notions of individual freedom to choose one's way of life and to do away with all those unduc and outmoded interfennces wi, h 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 'Ul he did not interfere with similar rights of others. The legislature had to take the logical final step of creating a now offene<• 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 subs ta.nee, has added a new offence to the penal law of the country by i:enalising any action which has the effect of depriving a pPrson of his human dignity and rights appurtenant thereto. It also adds to the. provisions of the Criminal Proced11 .. r Code and has jQsistod upon the previous sanction of the prescribed

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 Arts. 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 ca.se in relation to some aspects of Skia I mami Ismailis is that of the Advocate General ex relation Dave Muhammad v. Muhammad Husen HuBeni (1). That was a suit commenced befor.e 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 Kkoja community, against 'the defendants representing tbe 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 Kkoja community of Bombay in the hands of the treasurer and the accountant, respectively called

Lifukki and Kamaria, and other cognate reliefs not relevent 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

(I) (m75) 2 Born. H.C.R. 323

11HJ2

Sartiqr Syetfna I oh:~ Saifvddin.

Saheb

Tf.e "tote of Bom-~Y

Sinha C. J.

lH2

S•t!.r8..J.. 2'w s.v;;;;,.

IMo6

v. n. Bkio •I B-J

~ sw..c. J.

SUPREME COURT REPORTS [1962] SUPP.

prolonged hearing. In that case, the learned Judge went into a. detailed history of the several sects amongst Muslims, including the Shia I mami I smaili8, with pa.rtioula.r reference to the Aga Khan and his relation with the Ja.mat of the Klwjas of Bombay.

In that case it was la.id down that there was no public property impressed with a trust, either expreas or impli<'d, for the benefit of the whole Klwja oommunity and that Aga. Khan, as the spiritual head of the Klwjas was entitled to determine on religious grnnnds who shall or shall not remain merubers 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 Shi.as.

He discuEsed the origin of the 1 wiailis as an offshoot of the Sh-ia,'J, and traced the hereditary succeesion of the unrevealed Imams in unbroken line down to Agha Khan.

Except for its historical aspect, the case does not deal with any mattt•r relevant to the present controversy.

'l'he next reported case which was brought to our notice is thl' case of the Advocate Grneml of Bombay v. Yusufalli Ebrahim (I). That was a case directly in relation to the Dawoodi Bohra community, with which we a.re concerned m this case.

In that case, there was a dispute as regards a mosque and a tomb, and was heard by Mart-en J., on the Original side in 1921.

We a.re not conct•rned with the details of the controversy in that case. llut 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 ma.jorit.} of th<" community and the minority arose on the question of the regularity of the succession of the 4 7th Dai in 1810. The learned Judge has pointed out that fae powers of the Dai are at least thrice de legated,

(I) (l!rl2) 2! Born. L.R. !OW.

'•

namely, by God to Prophet Mohammad, by the latter to the Imam, and by the Imam to the Dai-1tl-M utlaq.

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 v. Mansoorali (').

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 Ilurhanpur, 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 Bohi'a community until we come to the 5lst 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 reslt 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- _M u!laq.

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

(I} [1947) L.R. 75, l.A. J,

Sor.tar S11Jn.

Tah11 Saifaidia s.,,,,, ..

Tiu Stall of B""'6_,

Sioluo C. J,

Sortl•r Syttltu T alur Soijud<I. n

SaJi.b

Y, TM Stal# of Homli,:l

Sinlu C, J.

516 SUPREME OOUl{T REPOHTS [106!:?] SUPP.

leader but also a trustee of the property of the community. After examining the evidence in that ease, their Lordships held that thoi persons alleged to have been excommunicated had not been validly

expelled from the community.

The judgment of the Privy Council W&ll given on Decembt•r, I, 1947. Within two years of that judgment the impugned Act was pa88ed, 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 othPr in 1948, soon after the judgmPnt of the Privy Council.

The suit was, inJ, er alia, for a declaration that the orders of excommunication were vdd in view of the Act. A number of issuea were raised at the trial, which was heard by Shah J.

Two questions, by way of preliminary iBBnes, with which we are immediately concerned in the present proceedings, were raised before the learned Judge of the Bombay High Court, namely : (I) Was the Act within the legislative competence of the Legislature of 'the Province

ol Bombay?

(2) Wh11ther after the coming into force of the Constitution, the Act was invalid in view of Arts. 25 and 26 of the Constitution?

The learned Judge, after an elaborate exami naLion of the Constitution Act of 1935, came to the conclusion that the Bombay Legislature wae compe

tent to enaot the Act, and that it was not uncons1itutional even after the coming into eff., ct of the Constitution because it was not inconsistent with the provisions of Arte. 25 and 26. An appt>al was taken to the Court of Appeal, which waa heard by Chagla C. J. and Bhairwati J.

The Court of

Appeal upheld the decision of Shah J. The matter was brought up on appeal to this Court in Civil Appeal 99 of 195!. During the pendency of the appeal in this Court, the plaintiff died and it was held, without deo_iding 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 5lst 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 ; n the nature of mandamus or other appropriate wrl~. direction or order under Art. 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, ao the religious leader and

/)ai-ul-Mut/, aq 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 an 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 Art. 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

v. Mansoorali (1 ), to excommunicate a particplar member of the community for reasons and in the

(l) (1947) L.R. 75 A. I. I.

Sardar Sytdna 1" aher Saifuddin

Saheh

•• Tiu S•ale of Bombay

Si11ha C. J.

lHI s.-s ......

Tws, Jf.M;.

8.W

Y. n. SW. .J B.U,

~-.c.1.

518 SUPREME OOURT REPORTS [1962] SUPP.

manner indicated in th" judgment of their Lordships of the Privy Council.

But what is contended is that, as a re8ult of the enactment in question,

excommuniMtion has been completely banned by the Legislature, which was competent to do so, and that the ba.n in no way infringes ArtR. 25 and

l!6 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 ma.in 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 Arts. 25 a.nd 26 of the Constitution.

Art. 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,

polioa.l or other secular activity which may be associated with religious practice, (4) a law providing for social welfare and reform, and (5) any la.w that m11.y be mado by the State regulating or re&- tricting the activities aforesaid or providing for social welfare and reform. I have omitted reference to the provisions of Explanations I and II and other pn.rte of Art. 25 which are not material to our present purpose. It is noteworthy that the right guaranteed by Art. 25 is an individual right as distini;:uished from, the right of an organised body like a religious denomination or any section thereof, dealt with by Art. 26. ffpnce, 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 i9 guaranteed his freedoom of conscience.

The

question naturally arises : Can an individuul 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 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, dear that il person is left completely free to worohip God according to the dictates of his conscience, and that his right to .worship as he pleased is unfettered so long a.s 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 anv other. person. Thus, though his religious beliefs itre entirely his own and his freedom to hold those beliefs is. absolute, he ha.a not the absolute right to act in any way he

pleased in exercise of his religious beliefs. He ha.a been guaranteod 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

lika, restricting religious practices, would come within the rgulating 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 ;, o intervene, by legislation, to restrict or to regµlate to the extent of completely stopping such deleterious practicel!. lt. must, therefore, be held

195!

s.,._, s~ T ohw ~••/VUitt

SaA 6

Tiu Stllll •f ~

Sinlro C. J.

19<2

71. Stole of Bombay

s .. ~. c. J.

!i20 SUPREME COURT REPORTS [1962) SUPP.

that though the freedom of conscience is guaranteed to every individual so that he may hold any

beliefa he likes, his actions in pursuance of those buliefs may be liable to restrictions in the interest of the community 'Lt large, as may be determined 1iy common consent, that is to say, by a competent

l"gislature. It wl\8 on such humanitarian grounds, and for the purpose of social reform, that eo ca.lied

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 devada8i, or of ostracising a person from all social contact!' and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.

But it has been contended on behali of the petitioner that the right guaranteed, under Art. ~5, to freedom of conscience and the freedom to profeas, practise and propagate religion is available not only to an individual. but !-<> the community at large, acting through its religious head; the petitioner, as such a religious head has, therefore, the right to oxcommunica.te, according to the tenets of his religion, any person who goes against the beliefs and practices 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 tipon the interpretations of Arts. 25 and 26 (vide The Commissioner, Hindu Religious EndowrMnts, Madras

v. Sri Laksh11tindra Thirtha Swamiar of Sri Shirur Muu) ('):

" A religion may not only lay down a oode of ethical rules for its followers to accept, it might prescribe rituals and ?been:an oee ceremonies and modes of worship whichar~ regarded as integral parts of religion, and

(I) [1954) S.C. R 1005, at p. ID24.

these forms and observances might extend even to matters of food and dress.

fhe 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 kl contended on behalf of the petitioner that this practice of ex-communication is a part of tht' religion of the community with which we are concerned in the present controversy, Art. 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 "

(Art. :!6(b) ).

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 26( b) and "activities assoeiated 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 otheras recoimised by Art. 25(2)(a). Such activities, as are contemplated by the clause aforesaid cover a field much wider than that covered by either Art. 25(1) or Art. 26(b). 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 essen tially 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-

Sardar s_,.ina T alur 8 atfuddin

Balab

The Stolt oj BombaJ

Sinha C. ~'

19~2

s., u,8~ T.,,,. S•iJuiiin

S1/v6

v. n, Bui. of B•rnb•7

Sio4a O. J.

SUPREME OOURT REPORTS [1962] SUPP.

gious practices and what a.re not.

Tu this connection, reliance is placed on thP. following observations of this Court in the leading case, afornsa.id, of The Commissione1, Hindu Religious Endowmen/8, Madra.~

v. Sri Lakshminrlra Thirlhtt Swamiar of Sri Shirur ltfutt ('):

"As we have already indicated, freedom of religion in our Constitutio11 is not confinf'd to religious belie fa only; it extends to religious practices a.a well subject to the restrictions which the Constitution itself has laid down.

Under Art. 26( b ), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding aA to what rites and ceremonies arc cssrntial according to tho 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 complrt~ autonomy which a religious denomination enjoyA under Art. 2tJ(b) iH in 'matters of religion', which has been interpreted as including rites and ceremonies which are esst'ntia.I according to the tenets of the religion.

Now, Art. 26(b) it8elf would seem to in<licate that a religious denomination ha8 to rleal. not only with matters of religion, but other matters connected with rdigion, like laying down rult>s am! regulations for the conduct of its mmbcl's and the penalties attached to infringement of those rules, manaing property owned and posse&e<I by the rcli6ious com munity, etc., etc.

We have thl'rcfore, to draw a . line of demarcation between pratices consisting of rites and ceremonies connect..d \\'ith the particular kind of worship, whith is the ten<'t of the religious community, and practici>s in other m'ltkrs which may touch the religious institution' a.t several

point~, but which are not intimat<'ly l'Onccrned with rites and ceremonies the pcrforman .. c of which is an

(I) (1954] S.CR. 1005. 1028-:?!•

essential part of the religion. In this connection, the following observations of this Court in The Durgah Committee, Ajmer v. Syed Hussain Al'i (') which were made with reference to the earlier decisions of this Court in The Commissioner, Hindu Religious Endou:ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (')and in Sri Venkataramana Devaru v. The State of Mysore('), that "matters of religion" in Art. 26(h} inr.bde evf'n practices which are rega1ded by thEI ommnnity 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 ncte of caution and observe that in order that the practices in qiJestion 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 Art. 26. Similarly, even practices though religious may have sprung fro"'! 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 Art. 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 mPmuers of its community, and, in order to maintain proper and strict

(I) [196211 S.C.R. 383.

12\ [1954] S.C.R. 1005, 1028-29

(3) l1958J S.C.R. 895.

196'

S ardor Syedn• T aher Saifuddin

Sah•6

Th• St•t• of Bornb•.1

Sinh1 C. J.

1962 s..u.s.u..

T•lw SOiji; UJio

s."'1>

771. Si.ii of &mi><>

S;.lto C. J.

524 SUPREME OOURT REPORTS (1962] SUPP.

discipline, .has to lay down sanctions; the right to excommunicate a recusa.nt 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 v. 1lfan.<oorati: (I) that the pol'.er of excommunication was a religious power oxerciseable by the Dai. In my opinion, those pa.tis'.lges in the judgment of the Privy Council do not establish the proposition that the right which the Privy Council found inhered iD the Dai was a purely roligious right. That it was not a purely religious right becomes clear from the judgment of tho 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 justiciabl~. A matter which is purely rcligio11s could not come within the purview of the Courts. That conclusion is further strengthened by the <'-Oneideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from tho 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 tho Privy Council held the matter of excommunication as a purely religiollll one. If it were so, the Courts would be out of the controversy.

The same argument was advancotl in another form by contending that excommunication is not a social question and that, therefore, Art. 2.~U)(b) could not be inl'okorl in aitl of holding the Act to he conijtitutional. In this connettion, it has to h<•

(I) [1~~7] LR. i5 i.A.1, 14.15.

borne in mind that the' Dai-uLMutlaq is not only the head of the religious comminuty but also the tmstee of the property of the community in which the , community as a whole is inter<'sted. 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 a.re connected with religious practices, though not purely religious. Actions of the Dai-ul-Jfutk'q 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 justidable and not outside the pale of interference by the legislatnre or the ju<liciary.

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 concnned 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 reRult of excommunication, but I am concerned with the question whether the Legislature was competent and constitutionally justified in enacting the la'v 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 bf the members of the community, which riizhts they will continue to enjoy as such members if excom munication 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

Sardar SJedna

Taer S.zifudd. n

Saheb ,._ The Stale of Bomba,

Sinha C •. J.

J9b2 S••w Sy<"'• Tolw Saifo<Jd;•

Sa/u/J

Tlr.S..,.afB..,..,

sv.~. c. J.

526 SUPH.EME COURT ItEPORTS [1962) SUP.P.

it has not gone beyond the provisions of Art. :!5(2J(b) of the constitution.

Then it i8 argued tht the 1:,1t1ara11tecd right of I\ religious de1wmination to mauage its own affairs in mattns nf rPligi<•n (Art. 2fl(b) ) is subject only tu public cmkr, murnlity and health and is not subject to legislation contemplated by Art. 25(2)(b).

This very argument was advanced in the case of Slin' Venk11tummana IJevuru. v. 'l'he StalR. of Jfysore(').

At page !JI (i this argument ha8 been specifically dealt with and negatived.

This Court observed as follows :

"Thl' answer to this contrnti(ln is that it is impossible to rad any such limitation into tlw language of Art.25(2)(b). It applit's in u:rms to all religious institutions of a

public character without qualification or resvrve. As already slated, public institutions would m<>an not merely temples dedil'ate<l to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples wou Id be com prised therein. The Jang uage of tho Article being plain and unambiguous, it is not open to us to read into it limitatiun8 which aro not there, baaed on a priori reasoning as to the probable intention of the Legislature.

Sunh intention can be gathered only from the words actuallv used in the statute ; a.n<l in a. Court <; f law, what is

unexpn ssPd has Lho same value &B what is uniutende<l.

We mut therefore hold that denorninat.ional institutions aro within Art. 25 (2j(b)."

I 1! that """' aJ,.,, :s in the present C'ase, rofereneo was made to the eu rlicr <lcdsior1 vf thiR Court in

(I) ll9', l!J •; C:. R.1!'15.

The Commissioner, Hindu Religfrms Endowments, Madras v. Sri Lalcshmindra Thirtha Swamiar of Sri Shirur Mutt (I), but the latter decision has 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 Art. 20 ( b) must be read subject to Art. ~5 (2) (b) of the Constitution,

It has further been contended that a person who has been excommunicated as a result of bis non-conformity to religious practices is not entiled to use the communal mosque or tho 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 guaran

teed by Art. 25 (I) 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 ccme under the protection of Art. 26 ( d), in the sense that his right to administer the property is not questioned, but he has to administer the property in accodance 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 Art. 26, and is thus completely out of the

(1) [1954] s.<;:.R. lOOs; 1028-29;

S ardar Syadna Taller Saifuddin

Sahib

The State of Bombay

Sinka C. j.

1962 s..i. s,,.i ...

Ta°"' SciJ1 t/din

Saiub

.I v. 1'1at 8101, of Bomha,

Sit1hc. C. J.

528 SUPREME COURT REPORTS (1962] SUPP.

regulation of law, in accordance with the provisions of cl. (d) of that Article. But, I am not satisfi<>d 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 ca.e of Hnali v. Jfa118QOrali (1) on which great reliance was placed on behalf of the petitioner.

On the eocial 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 Art. 17 of the Constitu ti on, by w hioh untoucbability has been aboliFhed 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 senRe, is it.a logical corollary and must, therefore, be upheld.

In my opinion, it has not been established that the Act has been p&SSed by a h:izislature which was u0t competent to legislate on the subjPct, or that it infringes any of the provisions of the Constitution. This petition must, therrfore, fa.ii.

r., ,,,,,, ./.

DAS GuPTA, J.-In our opinion this petition should succeed.

The '(>f'titioner is the head of the Dawoodi Bohras who form one of the several sub-sects of the Shia sect of Musalma.ns. Dawoodi Dohras believe that since the 21st Imam went to

8ecluion the right~ powt'r and authority of the Imam hac been rightfully exercised by.the Daul J[utalq, as the vice-reent of the Jam m. scl~810n.

One of such rights 18 the exercuw. of d1.so1plmary powers including the right to excommumcate any

(I) [1947] L, R. 75 I. A. I.

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 oourts in a oase which went up to the Privy Council.

But since the decision of the Privy Council in that case, viz., Hasanali .v. 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 5Jst Dai-ul-Mutlaq of the community was also upheld in that case and is no long'lr in dispute. The Privy Council bad 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 oases of excommunication and also a document composed about 1200 A.D. 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 Bombaystepped in to prevent, as mentioned in the preamble, the practice of excommunication "which

(I) ( 1947) L.R. 751.A. !.

SardJ.r S7ein4 Talier 'aifudtlirt

Salub

v. 1 he State of Bomb0:,1

J)as Gupta J.

Sar!W 87.d•• Toh.r Sai/uddi• Sud .. no sui. eJ n •• n1.7

D., Gy14 J.

530 SUPREME OOURT REPORTS (1962] St1PP,

results in the deprivation of legitimate rights and privileges of" members of certain religious communities and enacted the Bombay Act No. XLII of 194!1 .

It is a short Act of six sections. Section 3tho mn.in 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 proptrty 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 quest ion 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 (•xtend to one thousand rupees.

Faced with the position that the legislation wholly destroys his right of excornmuniCllting any member 9f the Dawoodi Bohra. community, the Dai has presented this petition under Art. 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 praotioea right guaranteed by Art. 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 Art.

26. Therefore, says he, the Act is void and prays for a. declaration that the Act is void and the

issue of an appropriate writ restraining the respondent, the State of Bombay, its officers, servants and agents from enforcing the provisions of the Aot ag11inst the petitioner and/or 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. Thie, however was not pressed at the time of the hearing.

The respondent contends that neither the right guaranteed under Art. 25 nor that under Art. 26(b) is contravened by the impugned Aot.

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, 0xcept that the learned counsel for the intervener wanted to reopen the question whether the petitioner as the head of the Dawoodi Bohra communityhad the power to excommunicate. As already stated, however, this question is hardly oplm to dispute in the face of the decision of the Privy Council in H<tmnali v. jJfansoorali (')and the point was not pressed.

The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court

(I)

(1947) L. R. 75 I. A. I,

19'2

rardar Sy1Jna Ta!ier Saifuddin

SaA.b

•• TM Stall of Bombay

Das Gupt(J,

l:J11ttlo• Sy1J111J T ohtr Saif11d,.i11

:>aJub

Y. 7Ji. SloU "f Bomb'.1

DdS Gupta J.

532 SUPREME COURT REPORTS [1962] SUPP

in the Commissioner, Hindu &l.igi<Yus A'11Jowment8 .Madras v. Sri lalr.1hm.irul, ra 'l'hirtha Swa11tiar of Sri Shirur Matt (1) ; Maha11t Jugcmrwth Rarrumuj Da8 v, 'l'he State of Ori.sa (') ; Sri Venk1ttama11u De:varu v. The State of Mysore (•); Durgah Committee;

Ajmer v. Syed Hussain Ali(') and several other ca& s and the main prinoipl1>s underlyin!? these provisions have by thcse decisions been placed beyond controversy.

The first is that the protection of thePe articles is not limited to matters of doctrine or belief they Pxtend also to acts done in pursuance of rP!igion 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 rellgious practice has to be decided by the courts with reference to the doctrine of a pi.rtieular religion and include practices which are regarded hy tho community as a part of its religion.

B fore however we can give a proper answer to th" two questions raised, viz., (i) Has the impugmd Act interfered with a right freely to practise religion and (ii) H~ it interfered with the right of tho Dawoodi Bohra Community to manage its own affairs in matters of religion; it is necessary to examine firt the place of excommunication in the Jifr, of a rflligious community. Much valuablt> information about this is furnished by an article in the Encyclopaedia of the Social Sciences from the pen of Prof. Hazeltine. "Ettommunication," BRYS Prof.

Hazeltinl', "in one or another of the severid different meanings of the term has always and in all civilizations been one of the prinoipa.l means of mi.intaing discipline within religio11s organizations and hence of prcs<'rving and strengthening their solidarit);·" Druids in old Britain are aid to bavo claimed the power to exclude offenders from sa.orifirc. The early Chiristian Church exerci8C'd

•I i145+JS, C.R. 1001. (3, Ll95A) S.C.R. 895 .

(2) [ 19541 S.C, R 1046 (4)

[1"6211S.C.R.383.

this power very largely a.nd 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 p_ower 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 ir. troduce different forms of di vine 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 a hove the State.

Impartial historians have recogni8ed, however, that many of the instances of excommunication were for the purpose of securing the adherence to the orthodox creed and doctrine of Chiristianity as pronounced by the Catholic Church. (Vide The Catholic Ency lopaedia, Vol. V, articles on England and Excommunication).

Turning to the Canon law we find that t"xcomrnunication 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 catholioo ; 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 h'Lve been prl\ctised from the earliest times.

The Prophet and tho Imam, had this right ; and it is not disputed that the Dais have also in the past exercised it on a number of

Sardor yedna Ta'lur Snifutldin

Saiieb

•• Tile State of B•mboJ - Das Gupta J

IHS

s.•s~ Tu.rs~

•• 'l'lll si.1 .. 1 &ooilu

I)., a..;1a J.

534 SUPREME OOURT REPORTS [19e2] SUPP.

occe.sions. There can be little doubt that heresy or aposte.sy was a crime for which excommunication was in force among the Dawoodi Bohre.s also. It may be pointed out in this connection that

excounication in the ce.se of llaaanali v.

Ma1MOOrnli (1) which '\\-a.& upheld by the Privy Council) we.s based on the failure to comply with the tenets and traditions of the Da.woodi Bohra community and certain other faults.

According to the petitioner it is "an integral pa.rt 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 religioua practice a.s 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 faot that unquestioning faith in the Dai e.s 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 a.a it doe.a not appear to be seriously disputed that the Dai is considered to be the vice-regent of Imam so long a.s the rightful Imam continues in seclusion.

Mention must be ma.de in thie connection of the Mi.!Mk which every Dawoodi Bohra takes at the time of his initiation, This includes among other things, an oath of ULquestioning faith in and loyalty to the Dai. It is urged t.herefore that faith in the existence of the discipisnary power of the Da.i including his power to excommunicate forms one of the reiigiOUB tenets of this community. The argu ment that Art. 25 has been contraveneb 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 rega.rda Art. 26(b) the argument is that excommunication among the

(I) 1947) L, 11.. 75 LA. I.

Dawoodi Bohras forms suoh 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 t-o the manage its own affairs in matters of religion.

 Let us consider first whether the impugned Act contravenes the provisions of Art. 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 genaral excommunication cannot but be held to be for th~ 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 Art. 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 deno mination is possessed of properties and the neces sary 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

IH2

Sardar 8.11.W.

T airer Seifud4in

Sahtb

v, T/v SWe of B,..6•y

Dn Gu/JI• J,

l9i2

SudP .':J'y1tb•• Ta/J,,. SaijudJitJ

Snh.b

Thi StGll uf Bombay

Das Gup1a J.

536 SUPREME COURT REPORTS (1962] SUPP.

would have the power to take a.way in this manner the ci1il rights of any person. The right given under ,\rt. 26 (b) has not however bef.n made subject lo prPBPrvation of civil rights. The expreSB limitation in Art. 26 itself is that this right under the scYeral clauses of the art iclo will exist subject to public order, morality and health. It has l>Eoen held by this Cou1t in Sri Venkaiaramana Demru v. 'J'lte Siate of Mysore (') that the ri!!ht undor Art.

21i(b) is subject further to cl. 2 of Art. 25 of the Constitution.

'Ve shall prest>ntly consider whether these limitations on the rights of a religious community to manage its own affairs in matters of rcliizion can come ti> the help of the impugned Act. It is clear however that apart from these limitations the Con~· titution has not imposod any limit on tho right of a religious community to manage ill! own affair~ in matters of religion.

The fact that civil rights of a person aro affected by the 1•xt>rcise of thiH funda ·

mntal right under Art. 26(b) is therefore of no consequence. Nor is it possible to say th:it excommunication is prrjudicial to public order, morality and health.

Though there was a statement in paragraph l 0 of the rospondent's counter affidavit that ''the religious practice, which runs counter to the public order, morality and health must give way before tlle good of th1' people of the 8t>lte", the learned Attorney-Gtueral did not advance any argument in support of tlii8 plea.

It, remain• to consider whether the impugned Act comes within the saving provisions embodied in

cl. 2 of Art. :25.

Tho clauae is in these words :-

".l\' ot hi11g in thiB Article shall affect tho operation of auy c:tiAting law or prevent the State from maki11g any hw--

( l) ~19511J S. C R. ~15

(a) regulating or restrioting any eoonomio, finanoial, political or other secular activity which may bE1 associated with religious practice ;

(b) providing for social welfare and reform or the throwing open of Hindu religicus institutions of a. public character to all

classes and sections of Hindus."

Quite olearly, 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 Da.woodi 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 ha.rs such excommunication merely might conceivably come within the saving provisions of cl. 2(b) of Art. 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 excomm11:n!cation on any. ground whatsoever, including religious grounds, 1t must be held to be in clear violation of the right of the Dawoo<li Bohra community under Art. 26(b) of the Constitution .

IH2

Sardar s, eJna Tait tr Sai/udtlin.

Sah.b

•• Th, Stai. of Bombay

DasJ.

1'62 s., a. SJ<du T.i.. Blli}wJditl

8.W'

•• TL•,,.. of B..,.i,'!1

Dr.sJ.

538 SUPREME COURT REPORTS [1962] SUPP.

It is unnecessary te consider the other attack on the basis of Art. 25 of tho Constitution.

Our conclusion i8 that the Act is void being in violation of Art. ~6 of the Constitution. The contrary view taken by the Bombay High Court in Taker SaYuddin v. 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 m1mdam1tS on tho respondent, the tate of Bombay, not t-0 enforce the provisions of the Act.

The petitioner will get his costs.

AYYANOAR, J.-1 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 denomirmtion" within the opening words of Art. 26 of tho Constitution. There are a few further matters 11 hich were not in controversy on tho basis of which the contentions urged in support of the petition have to be viewed. These might now be briefly stated :

(ll It was the accepted tenet of the Dawoodi Bohra faith that G,1<1 always had and still 1'as a representative .on uuth through whom His commands are conveyed to His people. That repre eentative was the Imam. The Dai was the repre sentative of the Imam and conveyed God's mC1Sage 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 a.a follows : The Dai-the Imam-

(1> A.l.R. 1953 Dom •. 183-

. , . , f:

,.,

the Holy Prophet-and the one God (See Per M!\rten J. in Advocate General of Bambay v. Y'U, svfalli

Ebrahim (').

(2) The position and status of .the petitioner as the Daiul Mutlaq was not contested since the same had been upheld by the Privy Council the decision reported as Hasanali v. Manumali (').

(3) It was not in dispute that subject to cer tain !imitations and to the observance of particular formalities which were pointed out by the Privy Council in the decision just referred to, that the Dai-vLMutlaq has the power of excommunication and indeed, as observed by Lord Porter in that judgment, "the right of excommunication by a Dai-ul-1liutlaq w"s not so strenuously contested as were the limits within which it is confined.''

(4) The Dai-ul-Miitlaq was not merely a reli gious leader-the religious head ofthedenomination but was the trustee of the property of the community.

(5) The previous history of the community shows that excommunicated persons WPre deprived of the exercise of religious rights. It was contended before the Privy Council that the effect of an excommunication was ii1 the nature merely of social ostracism but this was reje'cted 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 v11-lidity of Bombay Act 42of1949 (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:

(!) 24 Born. L.R. 1060.

(2) [1947] L.R. 75 I.A. I.

Sordar Sylfha Taha1 Saijuddin

Salub

TM State of Bomba'

A,, ongar.T.

19'3

San!Gr s,.a...

Tolll<Sai/odd111 s.w

•• 711 SIMI of 8-MJJ

A:n-1•'

540 SUPREME COURT REPORTS [1!16~) SUPP.

"25. (I) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscienoo and the right freely to pro

fess, practice 11nd propagate religion. ( 2) Nothing in this article shall affect operation of any existing la\l or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be 11SSoci11ted with religious practice ; ( b) providing for social welfare and reform or the throwing open of Hindu religioua institutions of 11 public character to all classes and sections of Hindus . .Kxplanation I.-The wearing and carrying of kirparu shall be deemed to be included in the profeesion of' the Sikh religion.

Explanation IL-In sub-clause (b) of clause (2), the reference to Hindus shall be consr.rucd as including a reforence to persons profeBSing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed aooordingly

26. Eubjeot to public order, morality and health, every religious denomination or any section thereof shall have the right-

( a) to establish and mainta.in institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and iinmova.ble property ; and ( d) to administer 8uth property in accordance with lo.w."

I would add that these Articles embody the principle of religious toleration that haij been the

characteritic feature of Indian civilization from the start of history, the instances and periods wht>n this feature wss absent being merely temporary aberrations. Besides, they SC'rve to emphasize the secular nature of Indian Democracy which the founding fathers consider('d •lwuld be the very basis of the Constitution.

I now proceed to the details of the provisions of the impugned Act whkh are stated to infrin11e the rights guaranteed by these two Artiles.

The preamble to the impugned Act recites :

"\Vhereas it has come to the not.ice of Go.-ernment that the practice prevailing in certain communi.tics of excommunicating its members is often followed in a manner which results in the deprivation of legitim1te 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 effed."

Scrtion 4 pena. lises any person who does "any

a.ct which amounts to or is in furtherance of the excommunication" and subjects him to criminal

Serda,. Syednc Toher 8 2fuiiin

Sahib

' Tt, e State of Bom~•Y

Ay>angar J.

Sardar Sv1dna T aher B aifttddin

Sa/i, b

Thi Stau of Bombay

A.yJangar .J.

SUPREME COURT REPORTS [1962] SUPP.

proceeaings as regards which provision fo made in

s~. 5 and 6.

Secti')n 2 contains two definitions : '(1) of the word "community" which would include the religious denominatiun of Dawoodi Bohras, and

(2) of "excommunication" as mean ing:

"the expulsion of a person from any coµimunity 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 beha If as such member ; Explanation.-For tho purposes of elause a right legally enforceable by a suit of civil nature shall include the right to office or property or to worship

tn any religious place or a right of burial or cremation, notwithstanrling the fact that the determination of MUC'h right dends entirely on the decision of the 'question as to any religious rite~ or ceremonies or rule or usa.ge of a commu hity." The question t0 consider is whether a Jaw which penaliees excommunication by a religious denomination or by its head whether or not the excommunication be for non.eonformity to the bas.ic.essentials of the religion of that clenumination and effects the nullification cf such cxcommunica tion a9 regards.the rights of the person excommunicated would or would nc, t, in fringe the rights guaranteed by , Arts. 25 and 2G.

First as to Art. 25, as regards d. ( J) it was not in dispute that the guarantee un<lur it protected not 'merely freedom to entertain religious beliefs but also acts do11e in pursuance d that religion, this being made clear by the use of the expression

2 S.C.R.

SUPREME COURT REPORTS 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 waH 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 Art.26.

Th~ Dai-uZ.Mutlaq is its spiritual leader, the reli gious 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 a.re the bonds of the union which binrls them together as one community. As l::lmith B. said in Dill v. Watson(') in a passage quoted by Lord Halsbury in Free Church of Scotland v. Over Wun (') :

"In the absence of conformity to essentials, the denomination would r1ot be an entity cemented into solidity by harmonious uniformity of opinion, it would be a m9re incongruous heap of, as it were, gra.ins of sand, thrown together without being united, each of the so intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass ; fraught with nothing but interna.1, dissimilitude, and mutual and reciprocal contra.diction and dissension."

(l) (1836) 2 Jones Rep. (Ir. E'-) 48,9(

(2) [1904] A.O. 515, at p. 616.

196&

Hardar Sytdna Tahar Satfuidin

Saheb

The State of Bombay

Ayyangar J.

Sert. S.11ino 1 ... r 8•i/udd1"

Solttb

v. 71, ~"''' oJ Bombay

A:n-t•J.

544 SUPREME OOURT REPORTS [1962] SUPP.

A denomination within Art. 26 and persons who are members of that denomination are under Art. 2:i entitled to ensure the continuity of the denomination a.nd such continuity is possible only by maintaininp: the bond of religious disripline which would secure the continued adherence of its mem hers to certain eSSPntia.ls like faith. doctrine. tenets and pra.ctic<'s. The right to such continued existenoo involv1•s the right to maintain discipline by ta.king suitable action inter alia of excommunicating those who deny the fundamental baaes of the religion. 'J,'he consequencCB of the exercise of that power vested in the denomination or in its head-a power which is essential for ma.intaing the exist<'nce and unity of denomination must necessarily be the exclusion of the person excommunicated from participation in th!l religious life of the denomination, which would include the use of places of worship or consecrated pla.CCB for burial dedicated for the use of the members of the denomination a.nd which a.re vested in the religious head as a trustre for the rlenomination. 'Jhe learned Attomey-enera.I who appeared for the rPBpondent submitted three points : (I) A11Suming that excommunication was part of the religious practice of the denomination, still there was no avermPnt in the petition that the civil results flowing from excommunication in the shape of exclusion from \he beneficial use of denominational property was itself a. matter of religion. In other words, t.here 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 "6xcommunication" defined by the Aot des.ls with rights of civil na.turtl

a11 distin!!llished from relieious or social rights or obligations and a. la.w dealing with the ch ii consequence of a.n excommunication does not violate the

freedm protected by Art. 25 or Art. 26. (3) Even on the ha.sis that the civil consequences of a.n excommunication are a. matter of religion, still it is a.

measure of social reform and as such the legislation would be saved by the words in Art. 25(2)(b).

I am unable to a<'cept any of these contentions as correct.

(1) First I do not agree that the pleadings do not sufficiently raise the point th1tt if excommunication was pa1 t of the "practice of a religion" the conS!'quences that flow tlierefrt•m were not also part of the "practice of religion". 'Ihe position of the Dai as the religious head of the denomination not being disputed and his po\Ver to excommunicate 11, Jso

not being in dispute and it also being admitd 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 tho 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 denominati•rnal property. If the pruperty belongs to <L community and if a person by excommunication ceased to be a member of that community, it i8 a little difficult to see how his right to the •njoyment 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 is conceded that t.he right guaranteed by Art. 25 (1) is not eonfined to freedom of conscience in the sense of th" right to hol<l a belief and to 'propagate that belief, hut 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.

(~) I Ahal! rP.serve for later consideration the point about the legislation being saved as a matter

Satdar Syldna Tollw Bil(fuddlo

SaMb

Tiu Stak of Bdmlay

A_,,..,.,. J,

1~62

Bar®r S;!t(l ..

Tolt<s:::luddin

Th Si.u of &,.lay

A J!l""l"' J •

546 SUPREAm OOURT REPORTS [1962) SUPP.

of social reform under Art. 25(2)(b), and continue to deal with the argument that the impugnerl enactment was va.lirl since it dealt only with the consequences on the civil rights, of persons excommunice.ted. It has, however, to be pointed out that though in t.he definition of "excommunication" under s. 2(b) of the impugned Act the consequences on the civil rights of the excommunicated persons is set out, that i8 for the purpose of defining e.n "excommunication". What I desire to point 011t is that it is not as if the impugned enactment saves only the civil coneequences of an excommunication not interfering with ot.her con8equenclll! of an excommunication falling within the definition.

Taking tho case of the Dawoodi Bohra cnmmunit.y, if the Uai Pxcommunicatl'd a per8on on the ground of forswearing the basic tmets of that religious community the Dai wonk! be committing an offence under 8. 4, becaU8c the consequences according t.o the law of that religious denomination would be the exclusie>n from civil rights of thn excommunicated

person.

The learned AttorncyGtneral is therefore not ri;; ht in the submiBBion that the Act is conceru<d .nnly with the civil rights of the excommunioatcd pereon. On the other barn!, it would he correct to say that the Act iB concerned with excommunications which might havo religious significance hut which also operate to deprive persons of their civil rights.

Article 26 confers on every roligionA donomination two rights which a.re relevant in the presont context, by cl. (b)-"to manage its own affair" in matters of religion" -and by the last clause-cl. (d) -"to administer such property" which the denomination owns or ha.s acquired ( vido cl. (c) ) "in accordance with law." In considering the scope of Art. ~6 one he.s to hl'ar in mind two baic postulates : First that a religious denomination is posseseed of prop;>rty whioh is dedicated for definite uses and which under Art. 26 (d) the religious

;' I

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 whieh Art. 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 admittedly vested in the Dai a3 the religious head of the denomination. Article 26 (d) speaks of the administration of the property being in accordance with law and t.110 learned Attorney-General suggested that a valid law could be enacted which would permit the di version 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 Art. 26(d).

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, ancl in pasHing it might be observed that even in cases of an apostate according to the principles governing the Dawoodi Bohra denomination there is no ipso f<6cto loss of rights, only apostasy is a ground for excommunication which however eould take place. without service of notice or an enquiry. It could not be contended that an apostate would-lw ntitled to the beneficial use of property, dedif'nted to the Dawoodi Bohra <:ommm1ity lw it th<' mosque where worship goes on or other types of property like consecrated burial grounds ete. It \rnuld Le obvious that if the Dai permitkd the use of the property by an apostate without excommnnic:iting him he would be committing a dereliction of his dnty as the supreme head

Sardar Sytdna T ah.r Saifuddin

Soheb

The Slate of Bmba/

A.uan1ar r

Iff 2

IJ_.,,...

T. a.ijW/ftl

&Ai6

•• Tiu Sl4U •J •..U9

~ .. ,,.

54i SUPREME OOURT REPORTS (1962] SUPP.

of the religion-in fact an a.ct of sa.crilege besides being guilty of a breaoh 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 Art. 26(d) and also of Art. 26(c), not to speak of Art. 25(1). The other postulate is the position of the Dai as the head of the religious denomination and BS the medium through whic.b spiritual grace is brought to the community and that this is the central pa.rt 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 a.re said to have claimed the right of excluding offenders from sacrifice. Such customary exclusions are stated to have obtained in primitirn semitic tribes but it is hardly mcessar y to deal in detail with this point, because so far as the Muslims, a11d particularly among tho religious denomination with which this petition iH concerned, enough material bas been eet out in the judgment of the Privy Council already referred.

Pausing here, it might he mentioned that excommunication might bear two aspects : ( l) as a

punishment for crimes which the religious com munity justifies putting one out of its fold.

In this connection it may be pointed out that in a theo era.tic State the punitive aspect of excommunication

2 S.O.R. SUPREME OOURT REPORTS 549

might get emphasized and might almost take the form of a gener&l administration by religious dignitaries of ordinary civil law. But there is another aspect which is of real relevance to. the point now under considera.tion. 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 an&lysis the binding force which bolds 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 essen tials of the creed, for if everyone were at liberty to deny these essentials, the community as a group would soon ceae 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 practise religion guaranteed by Art. 25( I). and is also violative of Art. 26 in that it interfers with the rights of the Dai as the trustee of the property of the denominar tion to so administer it as to exclude dissidents and excommunicated persons from the beneficial use of such_ property.

Stir.iMS,.....

r.1ur5n

y, Tiu St•u •J Bomioy

A"""t.,. I.

1162 s ... s ....

T ... sij/Jdi• aau

y, n, si.11qf a-HJ

..,,,...,., J.

550 SUPREME COURT REPORTS [1962] SUPP.

It is admitted b owever in the present caae th&t the D&i as the bead of the denomination has vested in him the power, subject to the procedur&l requirement. indicated in the judgment of the Privy Counoil, to excommunicate such of the members of the community &s do not adhere to the basic easentials of the faith and in particular those who repudiate him as the bead 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 itaelf to dealing with excommunication

as a punishment for 11eoular offences merely and not as an instrument for the self preservation of a religious denomination the .position would have been different and in such &n event the question as to whether Arts. 25 and 26 would be sufficient to render such legisl&tion unconstitutional might require serious consideration. That is not the posit.ion here. The Act is not confined in its operation to the eventualities just now mentioned but even excommunication with a view to the preeervation 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 p088ible, in the definition of excommunioation which the. Aot carries, to read down the Act so as to confine excommunication as & punishment of offences which &re unrelated to the pr&etice of the religion w hicb do not touch and

concem the very existence of the faith of the denomination as such. Such &n exclusion oannot be achieved except by rewriting the section.

3. The next question is whether the impugned enactment could be sustained as a measure of social welfare and reform under Art. 25 (2) (b).

The learned Attorney-General is, no doubt, right.in his submission that on the decision of this Court in the

28.C.R.

SUPREME COUR'l' REPORTS 551

ll!ulki Temple case-(T'enkat11mmana Devaru v. State of Jfysore( 1), the right guara.nteed under Art. 26(b) is subject to a law protected by Art. 25(:l)(b) The question then before the CoUit related to the validity or a law which threw open all public temples, even those belonging to5 "a religious denomination" to "every community of Hindus including 'untouchables' " and it was held that, notwithstanding that the exclusion of these communities from worship in such a temple was an {'Sscntial part of the "practice of religion" of the denomination, the constitutionality of the lw was saved by the second part of the provision in Art. 25(2)(b) 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 Art. 25(2)(b) could be invoked to protect the validity of a law which was "a measure of social welfare and reform" notwithstanding that it involved au abrogation of the whole or part of the essentials of a religious belief or of a religious practice.

I foe! unable to accept the deduction as flow ii; g from the Mulki Temple case.

That d£cision proceeded on two bases : (l) As regards the position of "untouchables", Art. 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 'Unt.ouchability' 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 untoucha bles 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-

(lJ (19581 s.c.R. 895.

ll02

Sartkr Syedna T ahtr Saifuddin

Saheb

The 1.'itate of BombaJ

Ayy4ng'ir J.

552 SRUPEME OOURT REPORTS [1962] SUPP.

1"2 tions to all cl&lll!es and sections of Hindus" in Art. ~- s~ 25(2)(b), and effect had to be given to the wide 7tiw ff; fj"" language in which this provision waa couched. In "· the face of the language used, no distinction could n. B,_. •f B.,.~ be drawn betwetJn beliefs that were basic toa religion,

,,,,;;;;; J. or religious practices that were considered to be

eesential by a religious sect, on tho 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 consideratious arise when one has to deal with legislation which is claimed to be merely a measure "providing for social w.Jifare and reform". To 11ta.rt with, it has to ho admitted that this phrase is, as contrasted with the eecond portion of Art. 25(2)(b), far from precise and is flexible in its content. In this connection it has to be borne in mind that limita.tion11 imposed on religioua practices on the ground of public order, morality or health have already been saved

by the opening words of Art. 25( I) and the saving would ooyer beliefs and practices even though considered e11110ntial or vita.I by those profeasing 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 eeeential praotiC011 of religion which &re guaranteed by the operative portion of Art. 25(1) for two reaeone : (I) To read the saving as covering

even the ha.sic l!llllential practices of religion, would in effect nullify and render moaninglesa the entire guarantee of religious freedom-a.freedom not merely to profeu, but to practice religion, for very few pieoes of legislation for abrogating religious practices oould fail to be subsumed under the caption of "a provision for 110cial welfare or reform". (2) H the phrase just quoted was intended to have suoh a wide operation as cutting at even the -ntials guaranteed by Art. 26(1), there

would have been no 1rned for the special provision as to "throwing open of Hindu religious instituticns"to all dass''" a.nd sections of Hindus since the legislation contemplated by this provision would be par excellenc<0 one of social reform.

In my view by the phrase "laws providing for social welfare aud reform" it was not intended to enable the legislature to "reform", a religion out of exietence or identity. Article 25 (2)(a) having provided for legislation dealing with "economic, financial, political or secular activity which may be associated with religious practices", the succeeding cl; mse 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 Art. 25(~}(a) are obviously not of the essence of the religion, similarly the saving in Art. 25(2)(b) is not intended to cover the basic essentials of the creed of a religion which is protected by Art. 25( I).

Coming back to the facts of the present petition, the position of the Dai-ul-ltfutlaq, 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 persolljl

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 evillcerating the

I.HZ

S111iar s,.a.

TdlMr SoijvMin

~--,, Tire St"" of Bn.H, J

~•.-arJ ..

lN2

!i"rdar s,.'"4 T• Soifa"1i• SdH

T, no, Stai. of Biid.,

Jonu"'JI IJ.

554 SUPREME COURT REPORT8 [I!lti2J SUPP. guarantee under Art. 2.i (I) and rcnderini: thll protection illusory.

Jn my view th" petitio1vr iH entitled to the relief that he seeks and the petition will accordingly be allowed.

}fr Conn : In Ae<ordaiwe with the majority view of this Court, the vetition is allowed. The petitioner is entitled to his costs.

Petition all<JWed. ---

THE JOMMA MASJID, .MERCARA

KODIMANIANDRA DE\'IAH (J. L. KAPUR, M. HIDAYA.TULJ, AH, J. C. SHAH and T. L. VENKA1'ARA.:l!A AJYAH, JJ.)

Tran"fer of Proptrty-Sa/e by ret-ersioner for co11airkration -Fra"Udu/, e.nt or errc>nt:ou.9 repre.lienlati()tz--f'rr.~1 nt transferable

int1.ret, tl1ou9h in/act sprs ,'."ucce~, inni.t .. S11bRr.quenlacquiaition of title-Ejfect-Rult of "''"N><i-11'1.tn lcr uc resort'd to Transfer of Property Act, 18$2(4 of 18821, •· 6(a).

Intuprtlalion of Statute-( 'onsiruing of aertion-1/ nP111 rrvrda wuld be read 1"nto it-11/u.atration to a section When rou/d be ustd lo enlarge the language-If admissiilt ,,, construi1ig a section.

M and S claiming t0 be revenioners to the estate of N sold the property in dispute to G predecessor-in-interest of the re.pondents. The sale dred recited that the property belongcrl to the joint family of two brothers N and B, and on the death of N it was inherited by his widow and on her death it had devolved upon them as reversioners to the stato. G sued to recover possession of the propcrties. The suit was contested by the wiclow of B(brother of N) claiming that the property was the self acquired pnpcrty of her hushand. During the pendency of the litiFatio' the widow died, and G applied to the revenue authoritin to transfer the 'pattas' in his name.

The appellants intervened alleging that the property was gifted to them by the widow, and S one of the reversioners had also executed a release of the said property for a consideration.

This objection was rejected. The appellants then sued for posac!Sion of a half share in the properties held by the widow of B, relying upon the gift by the widow, and the deed of surrender by S one of the two reversioners to the estate of N.

They contended that the Vendors of the property to G had