SUI- REME COURT REPORTS (1962) SUPP v. THE STATE OF BO'.\IBAY

Judgment

-The right of Dai-ul-Mutlaq to exercise the right of exc0mmuniration against a member of the drno mination 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 consequ ence 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, refer red 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 1962 Sardaf' Syulna TalMr Saifudd;• Saheb •• 11,, Slatt of s..,q, 2 S.C.R. SUPREME COURT REPORTS 499 grounds entailing~ under the laws of the denomination, depri vation 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· tnking away his po\ver of excomunicate by which he tion by 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, Solicitor·Generol 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. 11161 sw,,, s_,,4114 'Tlt.t Saifllddin Sah.b •• 7),, 8'4u of B ,m1a_, SinAa C.J. 600 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 n·fer· red to a.~ the Act) on the ground that the provisions of the Act infringe Arts. 25 and 26 of the Consti tution. The sole respondent in this oaso is the State of Bombay. The petition is founded on 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 (exec·utor) 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 perse Imam Tyeb (the 21st llfam) went r.ution seolu'sion and that an Iman from his line "'ill appear, it being their belief that an I man always to his exists although at times he may ho iovi&ihle believers, while in seclusion ; that owing to tho impen, ling seolusion of Imam {Imam Tyeb) his predecassor, tho :!0th Imam, clir~cted 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 Muh~ir {a dignitary ranking next to a Mazoon) to carry on the Duu·a.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 the 2 lst 196! S ardar S.JlldnO Toher Saifudd.in . ~alub ••

1.'he State of Bombay Sinha C.J. 2S.C.R. SUPREME COURT REPORTS 501

known ·as Dai-ul-Mutlaq. The petitioner, as the Head Priest of the community of Dawoodi Bohras, is the vice gerent of Imam on Earth in seclusion. The petitioner is a citizen of India. As Dai-ul Mutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastic11l powers as religious leader of It is the right and privilege of the community. the petitioner as Dai-ul-Mntlaq to regulate the ex ercise 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 excommunica tion. This power of excommunication is not an ab solute, arbitrary and untrammelled power, but has to be exercised according to the usage and tenets of the community. Save in exceptional circum stances, 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 pro involves exclusion from perly and legally effected 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 t·o the conditions oflcgal exercise of that power, to ex communicate 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 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 man agtoment 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 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. right of 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 excom munication 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 It is submitted by tho pttitioner Constitution. 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 Consti tution, has become void under Art. 13 of Constitution. Tho petitioner claims that not withstanding the provisions of the Act, he, as the religious loader and Dai-ul-MuUaq of the commu nity, is entitled to cxcomm~icatc any member of the Da.woodi Bohr& community for an offence, which according to his religious justifies expulsion; and insofar as tho Act interferes with the said right of the petitioner, it is ultra virea Legislature. The Act is also challenged on the ground of legislative incompetence of the 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 Govern ment of India. Act, 1935. Barda< Sydrul T al&er Salfw/dl1t SoJieb v, Tiu Stale of B1111Hr1' Sinha c.J, 2 s.c.R. SUPREME COURT REPORTS 503 judgment of 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 ·judgment dated J.C. Shah, J., who. by his 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 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 this Court, and ultimately filed the appeal, being Civil Appeal No. 99 of 1954. During the pendency of the appeal, the plaintiff.respon dent 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 petitioner's position and his the challenge to to excommunicate as the head of the Dawoodi Bohra community is violat.ive of the peti tioner's guaranteed rights under Arts. 25 and 26 of that it the Constitution. It is, therefore, claimed

8.,o S)'Mno ro1in BaifvdJi• Solwb v. 11.SW.•fBW.,, SW. C • .1. 504 SUPREME COURT REPORTS [1962] SUPP. annexure B to its public is inoumbont upon the respondent, in cha.raoter, to forbea.r from enforcing the provisions the petitioner. By the peti of the Act against tioner's attorney's lettl'r, petition, July 18, 1958, the petitioner respondent the unconstitu pointed out requested tho latter to tionality of thf' Act and desist from enforcing tho provisions of tho Act against the petitioner or against the Dawoodi Bohra community. In the premises, a. writ of .Mandamus the nature of Mandamus or other or a writ in appropriate writ, qirection or order under Art. 32 the Constitution was prayed for against the respondent restraining it, its officers, servants and from enforcing the provisionH of the Act. agents 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 that the petitioner not having taken any effect 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 that the tba State, as defined in the Constitution; 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 Sard11r S,..tna Taht1 Saifuddin Solr1b •• Tiu Stal• of Bomb47 Sinha C.J. 2 S.C.R. SUPREME COURT REPORTS 505 any rate, it was denied that the right to excommu· religion of the nicate was an essential part 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 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 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 declaration the petitioner had any right sought or the relief claimed that the provisions of the Act should not be enforced. right but • intervene At a very late stage of the pendency of th1; this Court, in April 1961, one proceedings Kurbanhusein Sanchawala of Bombay, made an applicatfon either for being added as a party to the Writ Petition or, alternatively, for being granted In hi;i in the proceedings. leilve to 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 506 SUI'REME COURT REPORTS [1962] SUPP. 11111 s.-.s,.a. TN S•ifud4in 8-•• n. s..u •f "-"' 8/Mo C . .J. existence of Dai·ul-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 peti tioner's claims, the intervener has raised the follow ing 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 in modern times and deserves to he of date abrogated and was rightly abrogate& by the said Act." I~ was further asserted that the alleged right of excommunication was opposed to the universally fundamentals of human rights as em· aooepted bodied in the "Universal Declaration of Human Rights." It Wiii! also &BSerted that the Act was p881led by a competent legislature and was in conso nance with the provisions of Arts. 25 and 26 of the intervener further cfoims that Coll8titution. The the rights to belief, faith and worship and the right to a decent burial were baaio human rights and were wholly right of inconsistent with 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

#1161. Saur S(l!doa Ta/u, Saifutltl1t1 Sall4b v. Thi Slate of Blllflba.1 Sinha C. J. ., 2 S.C.R. SUPREME COURT REPORTS 507 institutions for religious and charitable purposes the Almighty God and not in the peti vested in the members of the Dawoodi tioner, and that ·all 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 restric tion on a sec1tlar aspect of a religious practice. The the right of the intervener petitioner challenged to be added as the party. intervene or either to respondent. to the petition for rejoinder In his 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 those who did not was, therefore, asse.rted accept the headship of the Dai-ul-Mutlaq, including the petitioner, must go out of the community and the Dai·'ld· anyone openly defying· the authority of from the Mutlaq was liable to be excommunicated membership of the community, entailing loss of to such members. rights and privileges belonging that the practice of It was, therefore, claimed is, an essential and excommunication was, 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 denomina tion within the meaning of Art. 26 of the Constitu· tion; that as such a religious denomination it is J~t 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 nece~sary 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 excommuni cate 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. In~ofar 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. 2 S.C.R. SUPREME COURT REPORTS 509 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 Con~titution. 1962 Sardar ')ytdna Taher St1ifuddin Saheh v. Tnt State of Bomb•7 Sinla C. J. The learned Attorney-General for th<' respon dent contended on the other hand, that thu right to excommunicate, whiuh has be0n renden·r! · 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 deno mination 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 a~suming that excommunication was the Act would concerned with matters of religion, 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 reli gion. 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 resp~ct 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 excom munication touched oert~in religious matters, the Aot, co111onance with modern notions of human dignity insofar as it had abolisheJ it, was 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 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 compe tent to do so, as contended on behalf of the peti tioner. 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 ; [19f7] L.Jl. 75, J. A. J, (1) l 1962 Sartlor SyeJno To.her l!Satfuddi11 Salreb v. Thi Slal• of BM11"'1 Sinha a. J, 2 $.C.R. SUPREME COURT REPORTS 511 And whereas in keeping with the spirit of changing times and in the public interest it is expedient to stop the practice; it is hereby enacted is follows" Tue definition of "Community" as given in s. 2(a) 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 reli gious place or a right of burial or cremation, not withstanding 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, excommu nication of a member of a community has been invalid and of no effect, notwith declared to be standing any law, custom or usage to the contrary. Any act of excommunication, or any act in further ance 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 512 SUPREME OOURT REPORTS [1962] SUPP. 1H3 8•44' B(l!in• r .... s.v..uu. B.Wt •• r1u Sl•ll •/ B~ 8i•"4 c. J. 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 pro vided th~t 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 interfen·nces wi,h liberty of conscience, It. is also aimed at .ensuring faith and belief. 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 11HJ2 Sartiqr Syetfna I oh:~ Saifvddin. Saheb v. Tf.e "tote of Bom-~Y Sinha C. J. 2 S.C.R. SUPREME COURT REPORTS 513 authority as a condition precedent to launching a prosecution for an alleged .offence against the pro visions 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 Legisla tive 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 Legisla ture 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 con venient 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 ). That was a suit commenced befor.e the HuBeni (1 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 lH2 S•t!.r8..J.. 2'w s.v;;;;,. IMo6 v. n. Bkio •I B-J ~ sw..c. J. 514 SUPREME COURT REPORTS [1962] SUPP. In that case, the learned Judge prolonged hearing. 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 In that case, merubers of the Khoja community. 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, unrevealed line down to Agha Khan. Except for its historical aspect, the case does not deal with any mattt•r relevant to the present controversy. the hereditary succeesion of Imams in unbroken traced case. concerned '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 commu a.re nity, with which we m there was a case, In tomb, and was dispute as regards a mosque and a heard by Mart-en J., on the Original side in 1921. We a.re not conct•rned with the details of the contro versy in that case. llut the learned Judge has noticed the history of this community, with parti cular 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. '·• Sor.tar S11Jn. Tah11 Saifaidia 1962 s.,,,,, .. Tiu Stall of B""'6_, Sioluo C. J, 2 S.C.R. SUPREME COURT REPORTS 515 namely, by God to Prophet Mohammad, by the latter to the Imam, and by the Imam to the Dai-1tl-M utlaq. traces 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 in controversy. to excommunicate were directly 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 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 res~lt of those orders of excommu nication, 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, 1962 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 decla ration 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 uncons1i tutional 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 1962 Sardar Sytdna 1" aher Saifuddin Saheh •• Tiu S•ale of Bombay Si11ha C. J. 2 S.C.R. SUPREME COURT REPORTS 517 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, with out 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 peti tioner and the Dawoodi Bohra community were con cerned, 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 com munity 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 deno mination 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. 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 Lord ships 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 It now remains was competent to enact the Act. 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, whe ther citizen or non-citizen, the freedom of con science 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, poli~oa.l or other secular activity which may be associated with religious practice, (4) a law provi ding 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 the right of an organised as distini;:uished from, 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 corres to profess, practise ponding and everyone i9 guaranteed his freedoom of conscience. The rights of others, propagate his religion, 195! s.,._,s~ T ohw ~••/VUitt SaA 6 v. Tiu Stllll •f ~ Sinlro C. J. 2 S.C.R. SUPREME COURT REPORTS 519 question naturally arises : Can 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 com pelled, against his own judgment and belief, to hold any particular creed or follow a set of religi ous practices. The Constitution has left every person free in the matter of his relation to his Creator, It is, thus, dear that il per if he believes in one. son is left completely free to worohip God accor ding 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 restra ints, as aforesaid, imposed by the State in the inte rest 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 to practise and propagate his religion, subject to the limitations aforesaid. His right to practise his religion must also be subject to laws of reference to the country, validly passed with 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 r~gulating power of the State. For example, there may be religious practices of sacri fice of human beings, or sacrifice of animals in a. way deleterious to the well being of the com munity at large. It is open to the State ;,o intervene, by legislation, to restrict or to regµlate the extent of completely stopping deleterious practicel!. lt. must, therefore, be held the criminal guaranteod 19<2 v. 71. Stole of Bombay s .. ~. c. J. !i20 SUPREME COURT REPORTS [1962) SUPP. that though the freedom of conscience is guaran teed 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 profeas, practise and propagate religion is available not only to an individual. but !-<> the community at large, acting through its religious head; the petiti oner, 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 be liefs 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 ac cept, it might prescribe rituals and ?been:an oee ceremonies and modes of worship which ar~ regarded as integral parts of religion, and (I) [1954) S.C. R 1005, at p. ID24. 2 s.c.R. SUPREME COURT REPORTS 521 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 pur suance of a religion and this is made · clear by the use of the expression 'practice of religion' in Article 25." 1962 Sardar s_,.ina T alur 8 atfuddin Bala~b v. The Stolt oj BombaJ Sinha C. ~'· 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' reli gion of the community with which we are concer ned 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 other as 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 prac tices 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 denomi nation itself to determine what are essentially reli- 522 SUPREME OOURT REPORTS [1962] SUPP. 19~2 s.,u,8~ T.,,,. S•iJuiiin S1/v6 v. n, Bui. of B•rnb•7 Sio4a O. J. gious practices and what a.re not. Tu this connec tion, 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 deno mination 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 out side 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 m~mbcl's and the penalties attached to infringement of those rules, mana~ing property owned and posse&~e<I by the rcli6ious com· munity, etc., etc. We have thl'rcfore, to draw a . line of demarcation between pra~tices 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 institution' a.t several may touch the religious 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-:?!• 2 S.C.R. SUPREME COURT REPORTS !i23 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 deci sions of this Court in The Commissioner, Hindu Reli gious 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 : 196' S ardor Syedn• T aher Saifuddin Sah•6 v. Th• St•t• of Bornb•.1 Sinh1 C. J. "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 religi ous form and may make a claim for being treated as religious practices within the mean ing of Art. 26. Similarly, even practices though religious may have sprung fro"'! merely super stitious beliefs and may in that sense be ex traneous 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 deno mination is a quasi-personality, which has to ensure its continuity and has, therefore, to lay down rules for observance by mPmuers of its community, in order to maintain proper and strict and, [1954] S.C.R. 1005, 1028-29 12\ (3) l1958J S.C.R. 895. (I) [196211 S.C.R. 383. 1962 s..u.s.u.. T•lw SOiji; UJio s."'1> v. 771. Si.ii of &mi><> S;.lto C. J. 524 SUPREME OOURT REPORTS (1962] SUPP. In discipline, .has to lay down sanctions; the right to excommunicate a recusa.nt member is an illust ration of that sanction. 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 justici abl~. A matter which is purely rcligio11s could not come within the purview of the Courts. That con clusion 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 bury ing the dead in the community burial ground and other rights to property belonging to the commu nity, which are all disputes of a civil nature and are In the case before not purely religious matters. their Lordships of the Privy Council, their Lordships into the regularity of the proceedings enquired resulting in the excommunication challenged in that case, and they held that the plaintiff had not been It cannot, therefore, be asserted validly expelled. that tho Privy Council held the matter of excommu nication 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 In this connet·tion, it has to h<• he conijtitutional. (I) [1~~7] LR. i5 i.A.1, 14.15. 2 S.C.R. SUPREME COURT REPORTS 525 1962 Sardar SJedna Ta~er S.zifudd. n Saheb ,._ The Stale of Bomba, Sinha C •. J. 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 reli gious 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 compe tent to do so, as to what are the religious matters in which the Dai-ul-Mutlaq functions according to his I am only concnned with the civil religious sense. aspect of the controversy relating to . the constitu tionality 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 com petent 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 excommunica I am only concerned with the civil rights bf tion. 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 J9b2 S••w Sy<"'• Tolw Saifo<Jd;• Sa/u/J v. 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 th~t 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 sub ject 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 r~ad 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 re svrve. As already slated, public institu tions would m<>an not merely temples de dil'ate<l to the public as a whole but also those founded for the benefit of sections thereof, temples and denominational 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 the words actuallv used in the in a. Court <;f law, what is statute ; a.n<l unexpn ssPd has Lho same value &B what is uniutende<l. We mu~t therefore hold that denorninat.ional within Art. 25 (2j(b)." institutions that """' aJ,.,, :~s in the present C'ase, rofereneo I 1! was made to the eu rlicr <lcdsior1 vf thiR Court in (I) ll9',l!J •; C:. R.1!'15. 1962 S ardar Syadna Taller Saifuddin Sahib v. The State of Bombay Sinka C. j. 2 S.C.R. SUPREME COURT REPORTS 527 The Commissioner, Hindu Religfrms Endowments, Mad ras 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 distin ctly 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 excom munication is that no other member of the com munity 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 fulfil ment 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 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 pro perty. 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; 1962 s..i. s,,.i ... Ta°"' SciJ1 t/din Saiub v. 1'1at 8101, of Bomha, .I Sit1hc. C. J. 528 SUPREME COURT REPORTS (1962] SUPP. regulation of law, in accordance with the provi sions 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 excommunica tion 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 H~nali 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 excom municated 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 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 Imam went to 8eclu~ion the right~ powt'r and authority of the Imam ha~c been rightfully exercised by.the Da~·ul­ J[utalq, as the vice-re~ent of the J~am m. s~cl~810n. One of such rights 18 the exercuw. of d1.so1plmary powers including the right to excommumcate any the 21st (I) [1947] L, R. 75 I. A. I. 1962 SardJ.r S7ein4 Talier 'aifudtlirt Salub v. 1 he State of Bomb0:,1 J)as Gupta J. 2 S.C.R. SUPREME COURT REPORTS 529 member of the. Dawoodi Bohra community. The existence of such a right in the Dai-ul. Mutlaq who is for the sake of convenience often mentioned as the Dai was questioned before the 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 mem bers 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 op portunity of amendment, and after a public state ment of the grounds of expulsion." Speaking about the effect of excommunication their Lordships said :-"Excommunication .................. necessarily involve exclusion from the exercise of religious rights in places under the trusteeship of the head of the community in which religious exercises are performed." The present petitioner, it may be mentioned, was a party to that litigation. This decision was given on December, 1, 1947; shortly after that, the Bombay Legislature-it may be mentioned that there is a large concentration of Dawoodi Bohras in the State of Bombay stepped in to prevent, as mentioned in the pre amble, the practice of excommunication "which (I) ( 1947) L.R. 751.A. !. 1162 .. 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 com munities and enacted the Bombay Act No. XLII of 194!1 . It is a short Act of six sections. Section 3- tho mn.in operative section-invalidates all excom munication 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 propt·rty 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 deter mination 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 the Act violates the fundamental right of the Dawoodi including himself, Bohras, to practise religion according to their own faith and praotioe a 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 freely 19'2 rardar Sy1Jna Ta!ier Saifuddin SaA.b •• TM Stall of Bombay Das Gupt(J, 2 s.c.R. SUPREME COURT REPORTS 531 issue of an appropriate writ restraining the res pondent, the State of Bombay, its officers, servants and agents from enforcing the provisions of the Aot ag11inst the petitioner and/or any other mem ber 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 excom municate 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 community·had 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 Consti tution came up for consideration before this Court (I) (1947) L. R. 75 I. A. I, 1912 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 Rarrum·uj 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 thc·se decisions been placed beyond contro versy. 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.rti eular religion and ·include practices which are rega rded 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 impug md 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 in matters of religion; it is necessary to affairs examine fir~t the place of excommunication in the Jifr, of a rflligious community. Much valuablt> infor mation 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 sa.orifirc. The early Chiristian Church exerci8C'd the power to exclude offenders •I· i145+JS,C.R. 1001. (3, Ll95A) S.C.R. 895 . (2) (4) [ 19541 S.C, R 1046 [1"6211S.C.R.383. .. 1962 Sardor ~yedna Ta'lur Snifutldin Saiieb •• -Das Gupta J Tile State of B•mboJ 2 S.C.R. SUPREME COURT REPORTS 533 to be this power very largely a.nd expelled and excluded those members from the Christian association, unworthy who proved its aims governance. . rules infringed 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 wor ship. 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 to the the purpose of securing the adherence orthodox creed and doctrine of Chiristianity as pronounced by the Catholic Church. (Vide The Catholic Ency lopaedia, Vol. V, articles on England and Excommunication). law we Turning to the Canon 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 ex communication 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 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 exco~unication in 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 excommuni cation 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 is considered to be the vice-regent of the Dai 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 excom munication 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. IH2 Sardar 8.11.W. T airer Seifud4in Sahtb v, T/v SWe of B,..6•y Dn Gu/JI• J, SUPREME COURT REPORTS 2 c.s.R. Dawoodi Bohras forms suoh an integral part of the management of the community by the religious 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. li35 · 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 the Dai on whatever of excommunication by 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 religious grounds. It excommunicate even on 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 l9i2 SudP .':J'y1tb•• Ta/J,,. SaijudJitJ Snh.b Y. 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 ci1·il rights of any person. The right given under ,\rt. 26 (b) has not however bef.n made sub lo prPBPrvation of civil rights. The expreSB itself is that this right under limitation in Art. 26 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 It is clear come ti> the help of the impugned Act. 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 · m~ntal right under Art. 26(b) is therefore of no consequence. Nor is it possible to say th:it excom munication 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 2 S.C.R. SUPREME COURT REPORTS 537 (a) regulating or restrioting any eoonomio, finanoial, political or other secular activity which may bE1 associated with religious practice ; (b) providing social welfare and reform or the throwing open of Hindu reli gicus institutions of a. public character to all classes and sections of Hindus." IH2 Sardar s,eJna Tait tr Sai/udtlin. Sah.b •• Th, Stai. of Bombay DasJ. Quite olearly, the impugned Act cannot be regarded law regulating or restricting any economic, as a financial, political or other secular activity. Indeed that was not even suggested on behalf of the res pondent 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 excom m11: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 com munity under Art. 26(b) of the Constitution . •• 538 SUPREME COURT REPORTS [1962] SUPP. 1'62 s.,a. SJ<du T.i.. Blli}wJditl 8.W' •• TL•,,.. of B..,.i,'!1 Dr.sJ. 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 con trary view taken by the Bombay High Court in Taker SaYuddin v. Tyebbhai Moosaji is not correct. (1) 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 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 import ance 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 com mands 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: • ,., Sordar Sylfha Taha1 Saijuddin Salub v. TM State of Bomba' A,,ongar.T. 2 S.C.R. SUPREME COURT REPORTS 539 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 Dai··ul Mutlaq was not contested since the same had been upheld by the Privy Council 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 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.'' just referred (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 commu nity. (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. 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 free dom 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 eco nomic, 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 . I.-The .Kxplanation carrying of kirparu shall be deemed to be included in the profeesion of' the Sikh religion. (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 Explanation IL-In sub-clause wearing

#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 institu tions for religious and charitable pur poses; (b) to manage matters of religion; its own affairs in (c) to own and acquire movable and iinmova.ble property ; and ( d) to administer 8ut·h property in accordance with lo.w." • I Serda,. Syednc Toher 8 2~fuiiin Sahib '· Tt,e State of Bom~•Y Ay>angar J. 2 S.C.R. SUPREME COURT REPORTS 541 I would add that these Articles embody the prin ciple of religious toleration that haij been the characteri~tic 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 Arti~les. 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 excommunicat ing its members is often followed in a manner which results in the deprivation of legitim·1te rights and privileges of its members; And whereas in keeping with spirit of changing times and in the public interest, is hereby enacted as practice; follows :-" it is .expedient to stop Section 3 is the operative provision which enacts·: "3. Notwithstanding anything con tained in any law, custom or usage 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 I -, ,. I 1902 Sardar Sv1dna T aher B aifttddin Sa/i,b v. Thi Stau of Bombay A.yJangar .J. 542 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 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 d~ends 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 excommuni cated would or would nc,t, the rights guaranteed by ,Arts. 25 and 2G. in fringe 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 196& Hardar Sytdna Tahar Satfuidin Saheb v. The State of Bombay Ayyangar J. SUPREME COURT REPORTS 2 S.C.R. 543 the right to "practice of religion". No doubt, 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 tenets of that denomination he had with the invested to excommunicate the power in him 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, would be a m9re incongruous heap of, as it were, gra.ins of sand, thrown together the so without being united, each of 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) (2) (1836) 2 Jones Rep. (Ir. E'-) 48,9( [1904] A.O. 515, at p. 616. 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 parti cipation 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 rlenomin·ation. the petition flowing shape of exclusion '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 that the excommunication results \he bene ficial 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 conse quence of a.n excommunication does not violate the freed~m protected by Art. 25 or Art. 26. (3) Even on the ha.sis that the civil consequences of a.n ex communication are a. matter of religion, still it is a. 1962 Satdar Syldna Tollw Bil(fuddlo SaMb v. Tiu Stak of Bdmlay A_,,..,.,. J, ~ S.C.R. SUPREME COURT REPORTS 545 measure of social reform and as such the legislation would be saved by the words in Art. 25(2)(b). excommunication was I am unable to a<'cept any of these contentions (1) First I do not agree that the plead as correct. ings do not sufficiently raise the point th1tt if excom munication 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 admit~d 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 depriva tion 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 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 pruperty if a person by belongs excommunication ceased to be a member of that little difficult to see how his community, it i8 a the denominational right to from the religious property could be divorced in his ceasing to be a practice which member of 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 right to the practice of belief, hut includes religion, the consequences of that practice must also bear the same complexion and be the subject of a like guarantee. the community. When once <L community and property. If the •·njoyment of resulted (~) I Ahal! rP.serve for later consideration the point about the legislation being saved as a matter 1~62 Bar®r S;!t(l .. Tolt<s:::luddin v. 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 since it dealt only with the enactment was va.lirl the civil rights, of persons consequences on It has, however, to be pointed excommunice.ted. out that though in t.he definition of "excommunica tion" under s. 2(b) of the impugned Act the conse quences 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 interfering with ot.her con8equenclll! of an excommunication 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 rights of thn excommunicated exclusie>n from civil person. The learned Attorncy·Gtneral is therefore not ri;;ht in the Act is con ceru<·d .nnly with the civil rights of the excommuni oatcd pereon. On the other barn!, it would he correct to say that the Act iB concerned with excommunications which might havo religious signi ficance hut which also operate to deprive persons of their civil rights. falling within the submiBBion Article 26 confers on every roligionA donomi nation 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 denomi nation owns or ha.s acquired ( vido cl. (c) ) "in accordance with law." In considering the scope of Art. ~6 one he.s two ba~ic 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 hl'ar in mind .- ;' I 1962 Sardar Sytdna T ah.r Saifuddin Soheb v. The Slate of Bmba/ A.uan1ar r 2 s.c.R. SUPREME COURT REPORTS 547 t.110 follow law and (d) speaks of the right to administer. From denomination has this it would to any law subject grounded on public order, morality or health the limitations with whieh Art. 26 opens, the denomi nation 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 admit tedly vested in the Dai a3 the religious head of the denomination. Article 26 administration of the property being in accordance learned Attorney-General suggested that a valid law could be enacted which those funds to would permit the di version of in its wisdom the legislature purposes which 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 denomi nation 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 the beneficial use of apostate would-lw ~ntitled to property, 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 commit ting a dereliction of his dnty as the supreme head dedif'nted Iff 2 T. a.ijW/ftl IJ_.,,... ~ .. ,,. &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 belong ing 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 funda mental points. The practice of excommunication is of ancient origin. History records the existence of from Pagan times and Aeschyles that practice 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 the right of excluding offenders from claimed sacrifice. Such customary exclusions are stated to have obtained in primitirn semitic tribes but it is hardly m·cessar y to deal in detail with this point, the Muslims, a11d particularly because so far as 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· In this munity justifies putting one out of its fold. connection it may be pointed out that in a theo· era.tic State the punitive aspect of excommunication 11112 Stir.iMS,..... r.1ur5~n y, Tiu St•u •J Bomioy A»""t.,. I. 2 S.O.R. SUPREME OOURT REPORTS 549 might get emphasized and might almost take the form of a gener&l administration by religious digni taries of ordinary civil law. But there is another relevance to. the point now aspect which is of real 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 excom munication is inflicted but is used as a measure of discipline. for the maintenance of the integrity of the ultimate an&lysis the the community, for in binding force which bolds together a religious com munity and imparts to it a unity which makes it a denomination is a common faith, common belief in a common creed, doctrines and and a belief 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 denomina tion 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 cea~e to exist. It is in this sense that it is a matter of 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 penalis ing 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 interfers with the rights of the Art. 26 in that it 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. the very 1162 s ... s .... T ... sij/Jdi• 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 legisl&tion unconstitutional might render such require serious consideration. That is not posit.ion here. The Act is not confined in its opera tion to the eventualities just now mentioned but even excommunication with a view to the preeerva tion of the identity of the community and pervent what might be schism in the denomination is also brought within the mischief of the enact ment. 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 ll02 Sartkr Syedna T ahtr Saifuddin Saheb v. The 1.'itate of BombaJ Ayy4ng'ir J.

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) The is subject to a law protected by Art. 25(:l)(b) question then before the CoUit related validity or a law which threw open all public those belonging to5 "a religious temples, even denomination" to "every community of Hindus including 'untouchables' " and it was held that, notwithstanding that the exclusion of these com munities from worship in such a temple was an {'Sscntial part of the "practice of religion" of the denomination, the constitutionality of the l~w was saved by the second part of the provision Art. 25(2)(b) reading : "the throwing open of Hindu religious institutions of a public character to all learned classes and section of Hindus". The 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" notwith standing that it involved au abrogation of the whole or part of the essentials of a religious belief or of a religious practice. 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: I foe! unable to accept " 'Untouchability' is abolished and practice in any 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· (2) There was bles might be in its tenets or creed. a special saving as regards laws providing for ''throwing open of public Hindu Religious Institu- (lJ (19581 s.c.R. 895. 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, 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. ,,,,;;;;; J. limita.tion11 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 In this connection it has to be borne its content. imposed on religioua in mind 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 consi dered e11110ntial or vita.I by those profeasing the I consider that in the context in which religion. 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 religious practices oould fail to be subsumed under caption of "a provision for 110cial welfare or (2) H the phrase just quoted was intended reform". to have suoh a wide operation as cutting at even the -ntials guaranteed by Art. 26(1), there for abrogating I.HZ S111iar s,.a. TdlMr SoijvMin ~--,, Tire St"" of Bn.H,J ~•.-arJ .. 2 S.C.R. SUPREME COURT REPORTS 553 would have been no 1rned for the special provision as to "throwing open of Hindu religious institu ticns"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 relig ious groups and these also must be those which are associated with religion. 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). Just as 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 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 excom munication for the purpose of ensuring the pre servation 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-indi cated cannot be sustained as a measure of social welfare or social reform without evillcerating the lN2 T• Soifa"1i• !i«rdar s,.'"4 SdH T, ·no, Stai. of Biid., 554 SUPREME COURT REPORT8 [I!lti2J SUPP. guarantee under Art. 2.i (I) and rcnderini: 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. 1962 Jonu"'JI IJ. --- THE JOMMA MASJID, .MERCARA v. 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.re~t, tl1ou9h in/act sprs ,'."ucce~,~inni.t .. S11bRr.quenl- acquiaition 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 to the stato. G sued to reversioners· 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 pn·pcrty 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 the said property for a consideration. executed a then sued for This objection was 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. that the Vendors of the property to G had They contended rejected. The appellants release of