Summary
A 1986 writ petition sought a mandamus to enforce the Bombay Prevention of Excommunication Act, 1949 after reconsideration of the Constitution Bench decision in Sardar Syedna Taher Saifuddin Saheb, which struck the Act down under Article 26(b); the Act has since been repealed by the Maharashtra Social Boycott Act, 2016. A five-Judge Bench held that the petition survives because whether the Dawoodi Bohra power to excommunicate is protected by Article 26(b) must be examined in the present-day context, that Article 26 is subject to morality meaning constitutional morality, a point never argued in Sardar Syedna, and that the earlier Bench did not balance Article 26(b) against Article 21 and other Part III rights. As these questions overlap with those framed by the nine-Judge Bench in the Sabarimala review, the petition was tagged with that reference.
Issues
- Whether, after repeal of the Bombay Prevention of Excommunication Act, 1949, anything survives in a petition seeking reconsideration of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay.
- Whether the protection extended by that decision under Article 26(b) to the Dawoodi Bohra community's power of excommunication requires reconsideration in light of constitutional morality and the need to balance Article 26 with other fundamental rights, and if so by what Bench.
Provisions considered
- Articles 25 and 26(b), Constitution of IndiaThe right of a religious denomination to manage its own affairs in matters of religion is expressly subject to morality, which after Navtej Singh Johar and the Sabarimala decision means constitutional morality informed by equality, liberty, fraternity and dignity; Sardar Syedna did not consider this limb because it was not pressed, nor did it balance Article 26(b) with Article 21. (¶¶ 24, 25, 26, 27, 28, 30, 31, 32)
- Sections 2(a), 2(b) and 3, Bombay Prevention of Excommunication Act, 1949The Act invalidated excommunication from any community, not only the Dawoodi Bohras, yet Sardar Syedna declared it wholly void on findings confined to that community; its repeal by Section 20(c) of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 does not render the constitutional question academic. (¶¶ 2, 5, 15, 19, 20)
Held
- The Constitution is a living instrument and interpretations rendered decades ago cannot remain valid for all time; excommunication excludes a person from community property, mosques and burial grounds and may amount to civil death, so whether the practice withstands constitutional morality, and whether the community's right can be balanced with the excommunicated person's right to live with dignity under Article 21, are important and emergent questions that warrant reconsideration of Sardar Syedna by a larger Bench. (¶¶ 21, 22, 23, 28, 31, 32)
- The questions whether rights under Article 26 are subject to other provisions of Part III and what 'morality' in Articles 25 and 26 means are already before the nine-Judge Bench in the Sabarimala review, whose decision will directly bear on this petition. (¶¶ 33, 34, 35)
Result
Directions issued; Writ Petition (C) No. 740 of 1986 (with Criminal Appeal No. 39 of 1991) held to survive and directed to be tagged with Review Petition (C) No. 3358 of 2018 pending before the nine-Judge Bench; Registry to seek appropriate directions from the Chief Justice of India.