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PETITIONER: SARDAR SYEDNA TAHER SAIFUDDIN SAHEB

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 09/01/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1962 AIR  853            1962 SCR  Supl. (2) 496  CITATOR INFO :  F          1972 SC1586  (12)

ACT:      Excommunication,   Prevention   of-Enactment- Constitutional  validity-Fundamental   rights   of members  of   Dawoodi  Bohra   community  and  its religious Head,  if infringed-Bombay Prevention of Excommunication Act,  1949 (Bom.  42 of 1949), ss. 2, 3-Constitution of India, Arts. 25,26,17.

HEADNOTE:      By.  s.   3  of   the  Bombay  Prevention  of Excommunication Act, 1949 (Bom. 42 of 1949), it is provided that  "Notwithstanding anything contained in any  law, custom or usage for the time being in force, to  the  contrary,  no  excommunication  of member of  any community  shall be valid and shall be of  any effect." The preamble to the Act state, inter alia,  that in  keeping  with  the  changing times and in the public interest, it was expedient to stop  the practice of excommunication prevalent in certain  communities and  the definition of the word "community"  contained in  s. 2  of  the  Act included the  included the  religious denomination of Dawoodi  Bohras. The  petitioner, who  was  the religious head  of the Dawoodi Bohra community and trustee   of    its   property,   challenged   the constitutional validity  of the  Act on the ground that it violated its fundamental rights guaranteed by Arts.  25 and  26 of the Constitution. Reliance was placed  on behalf  of the  petitioner  on  the decision  of   Judicial  Committee  of  the  Privy Council in  Hasan Ali v. Mansoor Ali, (1947) L. R. 75 I.A. 1, to which he was a party, as recognising his  right   as  the  51st  Dai-ul-Mutlaq  of  the community to  excommunicate  any  of  its  members under prescribed limits. ^      Held, (Per  Sarkar, Das  Gupta and Mudholkar,

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JJ., Sinha,  C. J., dissenting), that the impugned Act violated  Arts. 25  and 26 of the Constitution and was, therefore, void.      It was  evident from  the religious faith and tenets of  the Dawoodi  Bohra community  that  the exercise of  the power  of excommunication  by its religious head on religious grounds formed part of the  management  of  its  affairs  in  matters  of religion and  the impugned Act in making even such excommunication invalid infringed the right of the community under Art. 26(b) of the Constitution.      Hasan Ali  v. Mansoorali,  (1947) L. R. 75 I. A. 1, referred to. 497      It is  well settled that that Arts. 25 and 26 of the  Constitution protect  not merely religious doctrines  and  beliefs  but  also  acts  done  in pursuance of  religion and  thus guarantee rituals and observances,  ceremonies and  modes of worship which are  integral parts  of  religion.  What  is essential part of a religion or what its religious practice has  to be  judged in  the light  of  its doctrine and such practices as are regarded by the community as  a part  of its religion must also be included in them.      Commissioner of  Hindu Religious  Endowments, Madras v.  Sri Lakshmindra  Thirtha Swamiar of Sri Shrur Mutt, [1954] S. C. R. 1005, Mahant Jagannath Ramanuj Das  v. The State of Orissa, [1954] S.C.R. 1046, Sri Venkataramana Devaru v. State of Mysore, [1958] S.C.R.  895 and  Durgah Committee, Ajmer v. Syed Hussain Ali, [1962] 1 S.C.R, 383, relied on.      The fundamental right under Art. 26(b) is not subjected to  preservation of civil rights and its only limitations  are those expressly mentioned by the Article itself i.e. public order, morality and health and  those mentioned by cl. 2 of Art. 25 as has been  held by this court. The fact that in the instant case  civil rights  of  an  excommunicated person would  be affected  by the  exercise of the fundamental right under Art. 26(b) can, therefore, be of  no consequence  nor could  it be  said that excommunication was  prejudicial to  public order, morality and health.      The impugned  Act did  not fall  within  Art. 25(2)(a)  nor  could  it  be  said  to  be  a  law "providing for  social welfare  and reform" within the meaning  of Art. 25(2)(b) of the Constitution. It  barred   excommunication  even   on  religious grounds and  could not  be said  to promote social welfare  and  reform  even  though  it  sought  to prevent consequent loss of civil rights.      Sri Venkataramana  Devaru v. State of Mysore, [1958] S.C.R. 895, referred to.      Taher Saifuddin v. Tyebbhai Moosaji, A. I. R. 1953 Bom. 183, disapproved.      Per Sinha,  C. J.-It  was not  correct to say that the  Privy Council in Hasanali v. Mansoorali, held  that  the  right  of  the  Dai-ul-Mutlaq  to excommunicate a  member of  the  community  was  a purely religious  matter. The  Dai was  not merely the head  of a  religious community  but also  the trustee of  its property. While his actions in the purely religious aspect could be no concern of the Courts, those  touching the  civil rights  of  the

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members of  the  community  were  justiciable  and liable to  interference by the legislature and the judiciary. 498 The impugned Act, therefore, in seeking to protect the civil  rights of  the members of the community was within the saving provisions of Art. 25(2) (b) of the constitution since the right of a religious denomination  under  Art.  26(b)  was  subject  to legislation   under    Art.   25(2)(b)    of   the Constitution.      Sri Venkataramana  Devaru v. State of Mysore, [1958] S.C.R. 895, relied on.      The   Commissioner    of   Hindu    Religious Endowments,  Madras  v.  Sri  Lakshmindra  Thirtha Swamiar of  Sri Shrur  Mutt, [1954]  S.C.R.  1005, considered.      The Durgah  Committee, Ajmer  v. Syed Hussain Ali, [1962] 1 S.C.R. 383, referred to.      Case-law discussed.      The Act had for its purpose the fulfilment of individual liberty of conscience guaranteed by Art 25(1) and  sought to  implement  Art.  17  of  the Constitution   in    attempting   to    save    an excommunicated person  from virtually  becoming an untouchable   in    his    community    and    its constitutional validity  could not,  therefore, be questioned.      Held, further,  that  the  Act  in  pith  and substance fell  within Entries 1 and 2 of List III of the  Legislative Lists  of the Constitution Act of 1935,  and there  could be  no doubt  as to the competency of the Legislature in enacting it.      Per Ayyangar,  J.-The right  of Dai-ul-Mutlaq to exercise the right of excommunication against a member of  the denomination  as recognised  by the Privy Council in Hasanali v. Mansoorali, could not be in doubt.      A denomination  under Art. 26 and its members under  Art.  25  have  the  right  to  ensure  its existence by  maintaining discipline  and ensuring adherence to  its tenets  and  practices  by  such suitable action  as excommunication  of those  who denied the  fundamental bases of the religion. The consequence  of   such  action   must  necessarily involve the  exclusion of an excommunicated person from participation  in the  religious life  of the denomination  including   the  use  of  places  of worship or burial grounds dedicated for the use of the members  and vested  in the  religious head as trustee for the denomination.      Dill v. Watson, (1836) 3 Jones Rep. (Ir. Ex.) 48 and Free Church of Scotland v. Overtoun, [1904] A. C. 515, referred to.      It was  not correct  to say,  in view  of the definition of the word ’excommunication’ contained in the  Act., that  it merely  sought to  save the civil rights  of an  excommunicated person and had no concern with excommunication on religious 499 grounds  entailing,   under  the   laws   of   the denomination, deprivation of civil rights.      The impugned  Act by depriving the Dai of the right to  excommunicate and  making its exercise a penal offence  struck at  the  very  life  of  the

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denomination and  rendered it  impotent 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. 17 of the Constitution.      Venkatarama Devaru v. State of Mysore, [1958] S.C.R. 895, distinguished.      The expression  "laws  providing  for  social welfare  and  reform"  in  Art.  25(2)(1)  of  the Constitution  was   not  intended  to  enable  the legislature  to   "reform"  a   religion  out   of existence 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-ul-Mutlaq being an essential part of the creed of the denomination that held it together, the  impugned  Act  clearly  contravened Art. 25(1)  of the Constitution by taking away his power  of  excommunicate  by  which  he  kept  the denomination together and maintained the purity of its fellowship.

JUDGMENT:      ORIGINAL JURISDICTION:  Petition No.  128  of 1958.      Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.      K.M. Munshi, R. J. Joshi, G.K. Munshi, T.S.N. Diwanji, J.B.  Dadachanji, S.N.  Andley, Rameshwar Nath and P. L. Vohra, for the petitioner.      M. C.  Setalvad, Attorney  General of  India, C.K. Daphtary,  Solicitor-General of  India,  H.N. Sanyal, Additional  Solictor General  of India, B. Sen and R. H. Dhebar, for the respondent.      I N. Shroff, for the intervener.      1962. January  9-Sinha. C.J.,  delivered  his own Judgment.  The Judgment  of Sarkar,  Das Gupta and Mudholkar, JJ., was delivered by Das Gupta, J. Ayyangar J. delivered a separate Judgment. 500      SINHA, C.  J.-By this  petition under Art. 32 of the  Constitution, the  petitioner, who  is the 51st Dai-ul-Mutlaq  and head  of the Dawoodi Bohra Community challenges  the constitutionality of the Bombay Prevention  of  Excommunication  Act,  1949 (Bombay Act XLII of 1949) (hereinafter referred to as the  Act) on  the ground that the provisions of the  Act   infringe  Arts.   25  and   26  of  the Constitution. The  sole respondent in this case is the State of Bombay.      The petition  is  founded  on  the  following allegations. The  Dawoodi Bohra  Community consist of Muslims  of the  Shia sect,  holding in  common with all  members of  that sect  the  belief  that there is  one God, that Mohammed is His Prophet to whom He  revealed the  Holy Koran;  that Ali,  the son-in-law of Mohammed, was the Wasi (executor) of the Prophet,  and that  the said Ali succeeded the Prophet by  Nas-e-Jali. The Dawoodi Bohras believe

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that the  said Ali  was succeeded  by  a  line  of Imams, each  of whom in turn was appointed by Nas- e-Jali by his immediate predecessor. The Shia sect itself became  divided into  two sub-sects,  known respectively as  Ismailis and  Isna  Asharia.  The Dawoodi Bohras  belong to  the  former  sect,  and believe that  owing to  persecution Imam Type (the 21st Imam)  went into  seclusion and  that an Iman from his  line appear,  it being their belief that an Iman  always exists although at times he may be invisible to  his believers,  while in  seclusion; that owing  to the impending seclusion of the 21st Imam (Imam  Tyeb) his  predecessor, the 20th Imam, directed his  Hujjat (a  dignitary ranking next to an Imam),  one Hurra-tul-Malaka, to appoint a Dai, a Mazoon (a dignitary next to a Dai) and a Mukasir (a dignitary ranking next to a Mazoon) to carry on the Dawal  (mission) of  the Imam  so long  as the Imam should  remain in  seclusion, and to take and receive from  the faithful  an oath of allegiance. The Dais are 501 known as  Dai-ul-Mutlaq. The  petitioner,  as  the Head Priest of the community of Dawoodi Bohras, is the vice gerent of Imam on Earth in seclusion. The petitioner is a citizen of India. As Dai-ul-Mutlaq and the  vicegerent of Imam on Earth in seclusion, the Dai  has not  only civil powers as head of the sect and  as trustee  of the  property,  but  also ecclesiastical powers  as religious  leader of the community. It  is the  right and  privilege of the petitioner  as   Dai-ul-Muntlaq  to  regulate  the exercise of  religious rights in places where such rights and ceremonies are carried out and in which religious exercises are performed. In his capacity as the Dai-ul-Mutlaq, that is to say, as religious leader as  well as  trustee of the property of the community, one  of his  duties is  to  manage  the properties which  are all under his directions and control. He has also the power of excommunication. This power  of excommunication is not an absolute, arbitrary and  untrammelled power,  but has  to be exercised according to the usage and tenets of the community.  Save   in  exceptional  circumstances, expulsion from  the community can be effected only at a  meeting  of  the  Jamat,  after  the  person concerned has  given  due  warning  of  the  fault complained of  and an  opportunity of mending, and after  a   public  statement  of  the  grounds  of expulsion. The  result of excommunication properly and legally  effected involves  exclusion from the exercise of  religious rights  in places under the trusteeship of  the Dai-ul-Mustlaq. The petitioner claims that  as the  head  of  the  Dawoodi  Bohra community and  as Dai-ul-Mutlaq,  he has the right and power,  in a  proper case  and subject  to the conditions of  legal exercise  of that  power,  to excommunicate  a   member  of  the  Dawoodi  Bohra community, and this power of excommunication is an integral part of the religious faith and belief of the  Dawoodi   Bohra  community.   The  petitioner further affirms that the exercise of the right of 502 excommunication is a matter of religion, and that, in any  event, the  right is  an incident  of  the

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management of  the affairs  of the  Dawoodi  Bohra community in  matters of religion. He also asserts that the  Dawoodi Bohra  community  constitutes  a religious denomination  within the meaning of Art. 26 of  the Constitution;  the said  right  of  the petitioner  to   excommunicate  a  member  of  the community, for  reasons of which the petitioner is the sole  judge in the exercise of his position as the religious  head, is  a guaranteed  right under Arts. 25 and 26 of the Constitution.      The Bombay Legislature enacted the Act, which came  into   force  on   November  1,   1949.  The petitioner asserts that the Act violates his right and power,  as Dai-ul-Mutlaq  and religious leader of the  Dawoodi Bohra  community, to excommunicate such members  of the community as he may think fit and   proper    to   do;   the   said   right   of excommunication and  the exercise of that right by the petitioner in the manner aforesaid are matters of religion  within the  meaning of  Art. 26(b) of the  Constitution.   It  is   submitted   by   the petitioner 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 the Constitution, has become void under Art. 13 of the Constitution.   The    petitioner   claims    that notwithstanding the  provisions of the Act, he, as the religious  leader  and  Dai-ul-Mutlaq  of  the community, is entitled to excommunicate any member of the  Dawoodi Bohra  community for  an  offence, which according  to his  religious sense justifies expulsion; and  insofar as the Act interferes with the said  right of  the petitioner,  it  is  ultra vires the  Legislature. The Act is also challenged on the  ground of  legislative incompetence of the then Legislature  of Bombay,  inasmuch  as  it  is contended that  such a  power is  not contained in any of  the entries in the Seventh Schedule of the Government of India Act, 1935. 503      One  Tayebhai   Moosaji  Koicha   (Mandivala) instituted a suit, being suit No. 1262 of 1949, in the High  Court of  Judicature at  Bombay, praying inter alia,  for a declaration that certain orders of  excommunication   passed  by   the  petitioner against him prior to the enactment of the Act were void and  illegal and  of no  effect, and that the plaintiff continued  to remain  a  member  of  the Dawoodi Bohra  community. The  said suit was heard by J.C.  Shah, J.,  who,  by  his  judgment  dated February 21,  1952, held  that  the  Act  was  not inconsistent with Art. 26 of the Constitution, and was  not   ultra  vires  the  Legislature  of  the Province  of   Bombay.   The   petitioner,   being dissatisfied with  the  judgment  of  the  learned Judge,  preferred  an  appeal  that  came  up  for hearing before  the Court  of Appeal,  composed of Chagla, C.  J., and  Bhagwati J.  By its  judgment dated August  26, 1952, the Court of Appeal upheld the judgment  of the  learned single Judge, though on  different  grounds.  The  petitioner  obtained leave from the High Court to appeal to this Court, and  ultimately  filed  the  appeal,  being  Civil Appeal No.  99 of 1954. During the pendency of the appeal, the  plaintiff-respondent  aforesaid  died

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and an application made on behalf of his heirs for being brought on the record was not granted by the High Court  of Bombay.  This Court  dismissed  the said appeal  on  the  ground  that  the  plaintiff having died, the cause of action did not survive.      The petitioner  further alleges  that parties inimical to  him and to the Dawoodi Community have written  scurrilous   articles   challenging   and defying the  position, power  or authority  of the petitioner as the religious head of the community; the challenge to the petitioner’s position and his power to  excommunicate as the head of the Dawoodi Bohra community  is violative  of the petitioner’s guaranteed rights  under Arts.  25 and  26 of  the Constitution. It is, therefore, claimed that it 504 is incumbent  upon the  respondent, in  its public character,   to   forbear   from   enforcing   the provisions of  the Act  against the petitioner. By the petitioner’s  attorney’s letter, annexure B to the petition,  dated July 18, 1958, the petitioner pointed    out     to    the     respondent    the unconstitutionality of  the Act  and requested the latter to  desist from enforcing the provisions of the Act  against the  petitioner  or  against  the Dawoodi Bohra  community. In  the premises, a writ of Mandamus or a writ in the nature of Mandamus or other appropriate  writ, direction  or order under Art. 32 of the Constitution was prayed for against the  respondent   restraining  it,  its  officers, servants and  agents from enforcing the provisions of the Act.      The answer  of the  State of Bombay, the sole respondent, is contained in the affidavit sworn to by Shri V.N. Kalghatgi, Assistant Secretary to the Government of  Bombay,  Home  Department,  to  the effect that  the petitioner  not having  taken any proceedings to  excommunicate any  member  of  the community had  no cause  of  action  or  right  to institute the  proceedings under  Art. 32  of  the Constitution; that  it was  not admitted  that the Dai-ul-Mutlaq, as  the head  of the community, has civil powers, including the power to excommunicate any member  of the community; that, alternatively, such power is not in conformity with the policy of the State,  as defined  in the  Constitution; that the petitioner,  as the  head of the community may have the  right to  regulate religious  rights  at appropriate places and occasions, but those rights do not  include the  right  to  excommunicate  any person and  to deprive him of his civil rights and privileges; and  that, in  any  event,  after  the coming  into  effect  of  the  impugned  Act,  the petitioner has  no such rights of excommunication; that it was denied that the right to excommunicate springs from or has its foundation in religion and religious  doctrines,  tenets  and  faith  of  the Dawoodi Bohra community that, at 505 any  rate,   it  was  denied  that  the  right  to excommunicate  was   an  essential   part  of  the religion of  the community;  that,  alternatively, assuming that it was part of a religious practice, it runs  counter to  public  order,  morality  and health. It was also asserted that the impugned Act

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was a  valid piece  of legislation  enacted  by  a competent legislature  and within  the  limits  of Art. 25  and 26  of the Constitution; and that the right to  manage  its  own  affairs  vested  in  a religious  community   is  not   an  absolute   or untrammelled right  but subject to a regulation in the interest of public order, morality and health. It was  denied  that  the  alleged  right  of  the petitioner  to   excommunicate  a  member  of  the community is  guaranteed by Arts. 25 and 26 of the Constitution. In  the premises, it was denied that the petitioner  had any  right to  the declaration sought or  the relief  claimed that the provisions of the Act should not be enforced.      At a  very late  stage of the pendency of the proceedings in  this Court,  in  April  1961,  one Kurbanhusein  Sanchawala   of  Bombay,   made   an application either  for being  added as a party to the Writ  Petition or,  alternatively,  for  being granted leave  to intervene in the proceedings. In his petition  for intervention,  he stated that he was a  citizen of  India and was by birth a member of the  Dawoodi Bohra  community and  as such  had been taking  an active  part in  social activities for bettering the conditions of the members of the community.  He   asserted  that   members  of  the community accepted  that up  to the  46th  Dai-ul- Mutlaq there  was no controversy, that each one of them had  been properly  nominated and  appointed, but  that  a  controversy  arose  as  regards  the propriety and  validity of  the appointment of the 47th Dia-ul-Mutlaq,  which  controversy  continued all along  until the  present time so that opinion is divided  amongst the  members  of  the  Dawoodi Bohra community as to the validity of appointments and 506 existence of  Dai-ul-Mutlaq, from  the 47th to the 51st   Dai-ul-Mutlaq,    including   the   present petitioner. The  intervener also  alleged that but for the  impugned Act,  the petitioner  would have lost  no  time  in  excommunicating  him.  In  the premises, he  claims that  he is not only a proper but necessary  party to  the  writ  Petition.  He, therefore,  prayed   to  be   added  as  a  party- respondent, or,  at any  rate,  granted  leave  to intervene at  the hearing of the Writ Petition. We have to dispose of this petition because no orders have been  passed until  the hearing  of the  main case before  us. In  answer  to  the  petitioner’s claims, the  intervener has  raised the  following grounds, namely,  that the  Holy  Koran  does  not permit  excommunication,   which  is  against  the spirit of  Islam; that,  in any event, the Dai-ul- Mutlaq had  no right or power to excommunicate any member of  the community,  and alternatively, that such a  right, assuming  that it  was  there,  was wholly "out  of date  in modern times and deserves to be  abrogated and  was rightly abrogated by the said  Act."  It  was  further  asserted  that  the alleged right  of excommunication  was opposed  to the universally  accepted  fundamentals  of  human rights as  embodied in  the "Universal Declaration of Human  Rights." It  was also  asserted that the Act was  passed by a competent legislature and was

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in consonance  with the provisions of Arts. 25 and 26 of  the Constitution.  The  intervener  further claims  that  the  rights  to  belief,  faith  and worship and  the right  to a  decent  burial  were basic human  rights and  were wholly  inconsistent with the  right of  excommunication claimed by the petitioner,   and    that    the    practice    of excommunication is  opposed to  public  order  and morality; that the practice of excommunication was a  secular   activity  associated  with  religious practice  and  that  the  abolition  of  the  said practice is  within the saving cl. 2(a) of Art. 25 of the  Constitution. It  was also  asserted that, under the Mohamadan Law, properties attached to 507 institutions for religious and charitable purposes vested  in   the  Almighty  God  and  not  in  the petitioner,  and  that  all  the  members  of  the Dawoodi Bohra community had the right to establish and maintain such institutions, in consonance with Art. 26  of the  Constitution; that is to say that Art. 26  guarantees the  right of the denomination as  a   whole  and  not  an  individual  like  the petitioner.  It   was  also   asserted  that   the provisions of  the Act prohibiting excommunication was in  furtherance of  public order  and morality and was  just  and  reasonable  restriction  on  a secular  aspect   of  a  religious  practice.  The petitioner challenged  the right of the intervener either to  intervene or  to be  added as the party respondent. In  his rejoinder  to the petition for intervention, the  petitioner further alleged that the practice  of excommunication  was essential to the purity  of religious  denominations because it could be  secured only  by removal  of persons who were unsuitable  for membership  of the community. It was, therefore, asserted that those who did not accept  the   headship   of   the   Dal-ul-Mutlaq, including the  petitioner,  must  go  out  of  the community and  anyone openly defying the authority of   the    Dai-ul-Mutlaq   was   liable   to   be excommunicated  from   the   membership   of   the community, entailing loss of rights and privileges belonging to  such  members.  It  was,  therefore, claimed that  the practice of excommunication was, and is,  an essential  and integral  part  of  the religion and religious belief, faith and tenets of Dawoodi   Bohra   community,   which   have   been guaranteed by Art. 26 of the Constitution.      It  has   been  urged   on  behalf   of   the petitioner, in  support of  the petition, that the Dawoodi Bohra  community, of  which the petitioner is the  religious  head,  as  also  a  trustee  in respect  of   the  property   belonging   to   the community, is  a religious denomination within the meaning of  Art. 26  of the  Constitution; that as such a religious denomination it is 508 entitled to  ensure its  continuity by maintaining the bond  of religious unity and discipline, which would  secure  the  continued  acceptance  by  its adherents of  certain essential  tenets, doctrines and  practices;   the  right  to  such  continuity involves  the  right  to  enforce  discipline,  if necessary  by   taking   the   extreme   step   of

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excommunication;  that   the  petitioner   as  the religious head  of the  denomination  is  invested with  certain   powers,  including  the  right  to excommunicate dissidents,  which power is a matter of religion  within the  meaning of  Art. 26(b) of the Constitution that the impugned Act, insofar as it takes  away  the  power  to  enforce  religious discipline and  thus compels  the denomination  to accept dissidents  as  having  full  rights  as  a member of  the community,  including the  right to use the  properties and  funds  of  the  community dedicated   to   religious   use,   violates   the fundamental rights  of the  petitioner  guaranteed under Art.  26. In  this connection,  reliance was placed on  the  decision  of  this  Court  in  The Commissioner, Hindu  Religious Endowments,  Madras v. Sri  Lakshmindra Thirtha  Swamiar of Sri Shirur Mutt (1),  which, it  is contended,  has laid down that the guarantee under the Constitution not only protects the  freedom of  opinion, but  also  acts done in  pursuance of  such religious opinion, and that it  is the  denomination itself  which has  a right to determine what are essential parts of its religion, as  protected by the provisions of Arts. 25 and  26 of  the Constitution.  It  was  further contended that  the right to worship in the mosque belonging to  the community  and of  burial in the graveyard  dedicated   to   the   community   were religious rights  which could  not be enjoyed by a person  who   had  been   rightly  excommunicated. Insofar as  the Act  took away  the right  of  the petitioner  as   the  head  of  the  community  to excommunicate a particular member of the community and thus  to deprive  him of  the use of the funds and property belonging to the commu- 509 nity for  religious purposes,  had the  effect  of depriving the  petitioner  of  his  right  as  the religious head to regulate the right to the use of funds and  property dedicated to religious uses of the community.  It has  also been  contended  that religious reform,  if that is the intention of the impugned Act,  is outside  the ambit of Art. 25(2) (b) of the Constitution.      The   learned    Attorney-General   for   the respondent contended  on the  other hand, that the right to  excommunicate, which  has been  rendered invalid by  the impugned  Act, was not a matter of religion within  the meaning  of Art. 26(b) of the Constitution; that  what the  Act really  intended was to put a stop to the practice indulged in by a caste or  a denomination to deprive its members of their   civil   rights   as   such   members,   as distinguished from matters of religion, which were within  the   protection  of   Art.  25   and  26. Alternatively,  it   was  also  argued  that  even assuming that  excommunication was  concerned with matters of  religion, the  Act would  not be  void because it  was a matter of reform in the interest of public  welfare. It  was also argued that there was no  evidence  on  the  record  to  show,  that excommunication  was   an  essential   matter   of religion. The  right to  worship at  a  particular place or  the right  of  burial  in  a  particular burial ground  were questions  of civil  nature, a

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dispute  in   respect  of  which  was  within  the cognizance of the Civil Courts. The legislation in question, in  its real  aspects, was  a matter  of social welfare  and social  reform and  not within the  prohibitions   of  Art.  25(1)  or  Art.  26. Excommunication involving deprivation of rights of worship or burial and the like were not matters of religion within  the meaning  of Art.  26(b),  and finally, Art.  26(b) was  controlled by Art. 25(2) (b) of  the Constitution,  and, therefore, even if excommunication touched certain religious matters, the Act,  insofar as  it had  abolished it, was in consonance with modern notions of human dignity 510 and individual  liberty of  action even in matters of religious opinion and faith and practice.      Shri Shroff,  appearing for  the  intervener, attempted  to  reopen  the  question  whether  the petitioner as  Dai-ul-Mutlaq, assuming that he had been properly  elected as  such, had  the power to excommunicate, in  spite of  the decision of their Lordships of  the Judicial  Committee of the Privy Council in  Hasan Ali  v. Mansoor Ali (1). He also supported the  provisions of  the impugned  Act on the ground that they were in furtherance of public order. As  we are not here directly concerned with the question  whether or not the petitioner as the head of  the religious  community had the power to excommunicate, we  did not  hear Mr. Shroff at any length with  reference to  that question. We shall proceed to  determine the controversy in this case on the  assumption that  the petitioner  had  that power. We  are only  directly concerned  with  the questions  whether  the  provisions  of  the  Act, insofar as they have rendered invalid the practice of  excommunication,   are   unconstitutional   as infringing  Art.   26(b),   and   enacted   by   a legislature which  was not  competent to do so, as contended on  behalf of  the petitioner.  We will, therefore,  confine   our   attention   to   those questions. Keeping  in view  the limited  scope of the controversy,  we have  first to  determine the ambit and  effect of  the impugned Act. The Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949)  is an Act to prohibit excommunication in the  province   of  Bombay.  Its  preamble,  which shortly states  the background of the legislation, is in these terms:           "Whereas it  has come  to the  notice of      Government that  the practice  prevailing  in      certain communities  of  excommunicating  its      members is  often followed  in a manner which      results  in  the  deprivation  of  legitimate      rights and privileges of its members; 511           And whereas  in keeping  with the spirit      of changing  times and in the public interest      it is  expedient to  stop the practice; it is      hereby enacted is follows".      The definition  of "Community" as given in s. 2(a) would  include the  Dawoodi Bohra  community, because admittedly  its members  are knit together by reason  of certain  common religious doctrines. and admittedly  its members  belong  to  the  same religion or  religious creed  of a  section of the

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Shia community  of Muslims.  The term  ’community" includes   a    caste   or   a   sub-caste   also. "Excommunication" has  been defined by s. 2 (b) as meaning  "the  expulsion  of  a  person  from  any community of  which he  is member depriving him of rights   and    privileges   which   are   legally enforceable by a suit of civil nature.. ", and the explanation to  the definition makes it clear that the rights  and privileges  within the  meaning of the definition  include the  right  to  office  or property or to worship in any religious place or a right of  burial or cremation, notwithstanding the fact that  the determination of such right depends entirely on the decision of the question as to any religious rites  or ceremonies or rule or usage of a community.  By s. 3, excommunication of a member of a community has been declared to be invalid and of no  effect, notwithstanding  any law, custom or usage to the contrary. Any act of excommunication, or any  act in  furtherance of excommunication, of any member  of a  community has  been made a penal offence liable  to a punishment, on conviction, of fine which  may extend to one thousand rupees. The explanation has  made it clear that any person who has   voted   in   favour   of   a   decision   of excommunication at  a meeting  of  a  body  or  an association of a particular denomination is deemed to have  committed the  offence made punishable by 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 within which  the prosecution must be launched and the  necessity   of  previous   sanction  of   the authority indicated therein.      These, in  short, are  the provisions  of the impugned Act. It will be noticed that the Act is a culmination of  the history of social reform which began more  than a  century ago with the enactment of s.  9 of  Regulation VII  of 1832 of the Bengal Code, which provided, inter alia, that the laws of Hindus and  Muslims  shall  not  be  permitted  to operate to  deprive the parties of any property to which, but  for the  operation of  such laws, they would have  been entitled.  Those provisions  were subsequently incorporated in the India Act (XXI of 1850)-known as the Caste Disabilities Removal Act- which provided that a person shall not be deprived of his  rights or property by reason of his or her renouncing or  exclusion from the communion of any religion or  being deprived of caste, and that any such forfeiture  shall not  be enforced as the law in the  Courts. The  impugned Act, thus, has given full  effect   to  modern  notions  of  individual freedom to choose one’s way of life and to do away with all  those undue  and outmoded  interferences with liberty  of conscience,  faith and belief. It is  also  aimed  at  ensuring  human  dignity  and removing all  those restrictions  which prevent  a person from  living his own life so long as he did not interfere  with similar  rights of others. The legislature had  to take the logical final step of creating a  new offence by laying down that nobody had the  right to  deprive others  of their  civil rights simply  because the  latter did not conform

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to a  particular pattern  of conduct.  The Act, in substance, has  added a  new offence  to the penal law of  the country by penalising any action which has the  effect of depriving a person of his human dignity and  rights appurtenant  thereto. It  also adds to  the provisions  of the Criminal Procedure Code and  has insisted  upon the previous sanction of the prescribed 513 authority as  a condition precedent to launching a prosecution for  an alleged  offence  against  the provisions of  the Act.  In my opinion, therefore, the enactment,  in pith  and substance, would come within Entries 1 & 2 of List III of the Concurrent Legislative List  of the Constitution Act of 1935. It is  true that  "excommunication" does  not,  in terms, figure  as one of the entries in any one of the three lists. The legislative competence of the Bombay Legislature  to enact  the Act has not been seriously challenged before us, and, therefore, no particular argument  was addressed  to us  to show that the  legislation in  question  could  not  be within the  purview of  Entries 1  & 2 of List III aforesaid. What was seriously challenged before us was the constitutionality of the Act, in the light of the  Constitution with  particular reference to Arts. 25  & 26,  and I  shall presently  deal with that aspect  of the  controversy. But  before I do that, it  is convenient  to set out the background of  the  litigation  culminating  in  the  present proceedings.      The first  reported case  in relation to some aspects of  Shia Imami  Ismailis is  that  of  the Advocate General  ex  relation  Dave  Muhammad  v. Muhammad v.  Husen Huseni  (1). That  was  a  suit commenced before  the coming into existence of the Bombay High  Court, on the Equity Side of the late Supreme Court,  instituted by  an information  and bill,  filed   by  the  relators  and  plaintiffs, representing a  minority of  the Khoja  community, against the  defendants representing  the majority of that  community. The  prayer in  the action was that an account be taken of all property belonging to or  held in  trust for  the Khoja  community of Bombay in  the hands   of  the treasurer  and  the accountant, respectively called Mukhi and Kamaria, and other  cognate reliefs  not  relevant  to  the present controversy. In that case, which was heard on the  Original side  by Arnould J., judgment was delivered in November 1866, after a 514 prolonged hearing. In that case, the learned Judge went into  a detailed history of the several sects amongst  Muslims,   including   the   Shia   Imami Ismailis, with  particular reference  to  the  Aga Khan and his relation with the Jamat of the Khojas of Bombay.  In that  case it  was laid  down  that there was  no public  property  impressed  with  a trust, either  express or implied, for the benefit of the whole Khoja community and that Aga Khan, as the spiritual  head of  the Khojas was entitled to determine on  religious grounds who shall or shall not remain members of the Khoja community. In that case,  the   learned  Judge,   with  reference  to authoritative  texts,   went  into   the  detailed

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history of  the two sects of the Sunnis and Shias. He discussed  the origin  of the  Ismailis  as  an offshoot of  the Shias,  and traced the hereditary succession of  the unrevealed  Imams  in  unbroken line down  to Agha Khan. Except for its historical aspect, the  case does  not deal  with any  matter relevant to the present controversy.      The next  reported case  which was brought to our notice  is the case of the Advocate General of Bombay v.  Yusufalli Ebrahim  (1). That was a case directly  in   relation  to   the  Dawoodi   Bohra community, with  which we  are concerned  in  this case. In that case, there was a dispute as regards a mosque  and a  tomb, and was heard by Marten J., on the Original side in 1921. We are not concerned with the  details of the controversy in that case. But the  learned Judge  has noticed the history of this community,  with particular  reference to the position  of   the  Dai-ul-Mutlaq,   and  how  the differences between  the majority of the community and the  minority arose  on the  question  of  the regularity of  the succession  of the  47th Dai in 1840. The  learned Judge  has pointed out that the powers of the Dai are at least thrice delegated, 515 namely, by  God to Prophet Mohammad, by the latter to the Imam, and by the Imam to the Dai-ul-Mutlaq.      The more  directly in point is the litigation which was  concluded  by  the  judgment  of  their Lordships of  the Judicial  Committee of the privy Council in the case of Hasanali v. Mansoorali (1). In that  case, the  powers of the Dai-ul-Mutlaq to excommunicate were  directly in  controversy.  The petitioner was the first defendant in that action, which had been commenced in October, 1925, and was decided by  the judgment  of the Subordinate Judge of Burhanpur, dated January 2, 1931. That decision was  reversed  by  the  Judicial  Commissioner  of Central Provinces & Berar (later the High Court at Nagpur) by  his judgment  dated October  25, 1934. That judgment  was taken  on appeal  to the  Privy Council and the judgment of the Privy Council very succinctly traces the history of the Dawoodi Bohra community until  we come  to the 51st Dai, who was the first  defendant in  that action,  and is  the petitioner before us. In that case, certain orders of excommunication  were  under  challenge.  As  a result of  those orders  of  excommunication,  the plaintiffs had  been obstructed  in, and prevented from,  entering  the  property  in  suit  for  the purposes of  worship, burial  and resting  in  the rest house.  In that case, their Lordships did not uphold the  claim of the Dai-ul-Mutlaq that he had unrestricted power of excommunication, though they found that  he could be regarded as Dai-ul-Mutlaq. As regards the power to excommunicate, it was held that though  the  power  was  there,  it  was  not absolute, arbitrary  and  untrammelled;  and  then their Lordships  laid down  the conditions for the valid exercise  of that  power. The  effect  of  a valid excommunication  in their  Lordships’  view, was  exclusion  from  the  exercise  of  religious rights in places under the trusteeship of the head of the  community, because  the Dai was not only a religious

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516 leader but  also a  trustee of the property of the community. After  examining the  evidence in  that case,  their   Lordships  held  that  the  persons alleged to  have been  excommunicated had not been validly expelled from the community.      The judgment  of the  Privy Council was given on December  1, 1947.  Within two  years  of  that judgment the  impugned Act  was passed,  and  soon after a  suit on  the Original  side of the Bombay High Court  was commenced  (being suit No. 1262 of 1949). That  was a suit by a member of the Dawoodi Bohra community,  who had  been excommunicated  by the petitioner,  functioning as the Dai-ul-Mutlaq, by two  orders of  excommunication, one  passed in 1934  and  the  other  in  1948,  soon  after  the judgment of the Privy Council. The suit was, inter alia,  for   a  declaration  that  the  orders  of excommunication were  void in  view of  the Act. A number of  issues were  raised at the trial, which was heard  by Shah  J. Two  questions, by  way  of preliminary issues,  with which we are immediately concerned in  the present proceedings, were raised before the learned Judge of the Bombay High Court, namely:           (1) Was  the Act  within the legislative      competence of the Legislature of the Province      of Bombay ?           (2) Whether  after the coming into force      of the  Constitution, the  Act was invalid in      view of Arts. 25 and 26 of the Constitution? The learned  Judge, after an elaborate examination of the  Constitution Act  of  1935,  came  to  the conclusion  that   the  Bombay   Legislature   was competent to  enact the  Act, and  that it was not unconstitutional even after the coming into effect of   the   Constitution   because   it   was   not inconsistent with  the provisions  of Arts. 25 and 26. An  appeal was  taken to  the Court of Appeal, which was  heard by  Chagla C.  J. and Bhagwati J. The Court of 517 Appeal upheld  the decision  of Shah J. The matter was brought  up on  appeal to  this Court in Civil Appeal 99  of 1954.  During the  pendency  of  the appeal in  this Court,  the plaintiff  died and it was held,  without  deciding  the  merits  of  the controversy, that  the suit  giving  rise  to  the appeal in  this Court  had abated by reason of the fact that  the plaintiff had died and the cause of action being  personal to  him was  also dead. The Order of  this Court  dismissing the appeal as not maintainable is dated November 27, 1957.      This Writ  Petition was  filed on  August 18, 1958 by  the petitioner  as the 51st Dai-ul-Mutlaq and head  of the  Dawoodi Bohra  community, for  a declaration that  the Act  was void  so far as the petitioner and  the Dawoodi  Bohra community  were concerned, and  that a  writ of mandamus or a writ in the  nature of  mandamus or  other  appropriate write direction  or order  under 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

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interfering with  the right  of the petitioner, as the religious  leader  and  Dai-ul-Mutlaq  of  the Dawoodi  Bohra  community,  to  excommunicate  any member of  the community  for an offence which the petitioner, in the exercise of his religious sense as  the   religious  head  of  the  community  may determine as justifying such as expulsion.      It is not disputed that the petitioner is the head of  the Dawoodi  Bohra community  or that the Dawoodi   Bohra    community   is    a   religious denomination within  the meaning of 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 particular member of the community for reasons and in the 518 manner  indicated   in  the   judgment  of   their Lordships  of  the  Privy  Council.  But  what  is contended is that, as a result of the enactment in question,  excommunication   has  been  completely banned by  the Legislature, which was competent to do so,  and that the ban in no way infringes Arts. 25 and  26 of  the Constitution.  I  have  already indicated my  considered opinion  that the  Bombay Legislature was competent to enact the Act. It now remains to consider the main point in controversy, which was,  as a  matter of  fact, the  only point urged in support of the petition, namely, that the Act is  void in  so far  as it is repugnant to the guaranteed rights  under Arts.  25 and  26 of  the Constitution. Art.  25  guarantees  the  right  to every person,  whether citizen or non-citizen, the freedom of  conscience and  the  right  freely  to profess, practise and propagate religion. But this guaranteed right  is not  an absolute  one. It  is subject to  (1) public order, morality and health, (2) the  other  provisions  of  Part  III  of  the Constitution, (3)  any existing  law regulating or restricting an  economic, financial,  political or other secular  activity which  may  be  associated with religious  practice, (4)  a law providing for social welfare  and reform,  and (5)  any law that may be made by the State regulating or restricting the activities  aforesaid or  providing for social welfare and  reform. I  have omitted  reference to the provisions  of Explanations I and II and other parts of  Art. 25  which are  not material  to our present purpose.  It is  noteworthy that the right guaranteed by  Art. 25  is an  individual right as distinguished from  the right of an organised body like  a  religious  denomination  or  any  section thereof, dealt  with  by  Art.  26.  Hence,  every member of  the community has the right, so long as he  does   not  in  any  way  interfere  with  the corresponding  rights   of  others,   to  profess, practise and  propagate his religion, and everyone is guaranteed his freedom of conscience. The 519 question naturally  arises: Can  an individual  be compelled to have a particular belief on pain of a penalty, like  excommunication? One is entitled to believe or not to believe a particular tenet or to

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follow or  not to  follow a particular practice in the matters of religion. No one can, therefore, be compelled, against his own judgment and belief, to hold any  particular creed  or  follow  a  set  of religious practices.  The  Constitution  has  left every person free in the matter of his relation to his Creator,  if he  believes in one. It is, thus, clear that  a person  is left  completely free  to worship God  according  to  the  dictates  of  his conscience, and  that his  right to  worship as he pleased is  unfettered so long as it does not come into conflict  with any  restraints, as aforesaid, imposed by  the State  in the  interest of  public order, etc.  A person  is not liable to answer for the verity  of his  religious views, and he cannot be questioned  as to his religious beliefs, by the State or  by any  other person.  Thus, though  his religious beliefs  are entirely  his own  and  his freedom to  hold those beliefs is absolute, he has not the  absolute right  to  act  in  any  way  he pleased in  exercise of  his religious beliefs. He has been  guaranteed the  right  to  practise  and propagate his  religion subject to the limitations aforesaid. His right to practise his religion must also be  subject  to  the  criminal  laws  of  the country, validly  passed with reference to actions which the  Legislature has  declared to  be  of  a penal  character.   Laws  made   by  a   competent legislature in  the interest  of public  order and the like,  restricting religious  practices, would come within the regulating power of the State. For example,  there  may  be  religious  practices  of sacrifice of human beings, or sacrifice of animals in a  way deleterious  to the  well being  of  the community at  large. It  is open  to the  State to intervene,  by  legislation,  to  restrict  or  to regulate to the extent of completely stopping such deleterious practices. It must, therefore, be held 520 that  though   the  freedom   of   conscience   is guaranteed to every individual so that he may hold any beliefs  he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of  the community  at large,  as  may  be determined by common consent, that is to say, by a competent legislature. It was on such humanitarian grounds, and  for the  purpose of  social  reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a  virgin girl of tender years to a god to function  as a  devadasi, or  of ostracising  a person from  all  social  contacts  and  religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.      But it  has been  contended on  behalf of the petitioner that  the right  guaranteed, under Art. 25, to  freedom of  conscience and  the freedom to profess,  practise   and  propagate   religion  is available not  only to  an individual  but to  the community at  large, acting  through its religious head; the  petitioner, as  such a  religious  head has,  therefore,   the  right   to  excommunicate, according to  the  tenets  of  his  religion,  any person who  goes against  the beliefs and practice connected with  those beliefs.  The right  of  the

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petitioner  to   excommunicate  is,  therefore,  a fundamental right, which cannot be affected by the impugned Act.  In this  connection, reference  was made to  the following observations in the leading judgment  of   this  Court,   bearing   upon   the interpretations of  Arts.  25  and  26  (vide  The Commissioner, Hindu  Religious Endowments,  Madras v. Sri  Lakshmindra Thirtha  Swamiar of Sri Shirur Mutt) (1):           "A religion may not only lay down a code      of ethical rules for its followers to accept,      it might  prescribe rituals  and observances,      ceremonies and  modes of  worship  which  are      regarded as integral parts of religion, and 521      these forms and observances might extent even      to matters of food and dress.           The guarantee under our Constitution not      only  protects   the  freedom   of  religious      opinion but  it protects  also acts  done  in      pursuance of  a religion  and  this  is  made      clear by  the use of the expression ’practice      of religion’ in Article 25." On the  strength  of  those  observations,  it  is contended on  behalf of  the petitioner  that this practice of  ex-communication is  a  part  of  the religion  of  the  community  with  which  we  are concerned in  the present controversy, 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. 26(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    associated   with   religious practice" do  not cover  exactly the  same ground. What  are   exactly  matters   of   religion   are completely outside  State interference, subject of course to  public order,  morality and health. But activities associated with religious practices may have many  ramifications  and  varieties-economic, financial, political  and other-as  recognised  by Art.   25(2)(a).    Such   activities,    as   are contemplated by the clause aforesaid cover a field much wider  than that covered by either Art. 25(1) or Art.  26(b). Those  provisions have, therefore, to be  so  construed  as  to  create  no  conflict between them.  We  have,  therefore,  to  classify practices into  such as are essentially and purely of a  religious character, and those which are not essentially such.  But it  has been  contended  on behalf of  the  petitioner  that  it  is  for  the religious denomination  itself to  determine  what are essentially reli- 522 gious  practices   and  what   are  not.  In  this connection, reliance  is placed  on the  following observations of  this Court  in the  leading case, aforesaid, of  The Commissioner,  Hindu  Religious Endowments,  Madras  v.  Sri  Lakshmindra  Thirtha Swamiar of Sri Shirur Mutt (1):           "As we  have already  indicated, freedom      of  religion   in  our  Constitution  is  not

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    confined  to   religious  beliefs   only;  it      extends  to   religious  practices   as  well      subject  to   the  restrictions   which   the      Constitution itself has laid down. Under Art.      26(b), therefore, a religious denomination or      organisation enjoys  complete autonomy in the      matter of  deciding  as  to  what  rites  and      ceremonies are  essential  according  to  the      tenets of  the  religion  they  hold  and  no      outside authority  has  any  jurisdiction  to      interfere  with   their  decision   in   such      matters." It should  be noted  that  the  complete  autonomy which a  religious denomination  enjoys under Art. 26(b) is  in ’matters of religion’, which has been interpreted  as  including  rites  and  ceremonies which are essential according to the tenets of the religion. Now,  Art. 26(b)  itself would  seem  to indicate that a religious denomination has to deal not only  with  matters  of  religion,  but  other matters connected  with religion, like laying down rules and  regulations  for  the  conduct  of  its members and the penalties attached to infringement of  those   rules,  managing  property  owned  and possessed by  the religious  community, etc., etc. We have  therefore, to  draw a line of demarcation between  practices   consisting   of   rites   and ceremonies connected  with the  particular kind of worship, which  is  the  tenet  of  the  religious community, and  practices in  other matters  which may touch  the religious  institutions at  several points, but  which are  not  intimately  concerned with rites and ceremonies the performance of which is an 523 essential  part   of   the   religion.   In   this connection, the  following  observations  of  this Court in  The  Durgah  Committee,  Ajmer  v.  Syed Hussain Ali  (1) which were made with reference to the  earlier   decisions  of  this  Court  in  The Commissioner, Hindu  Religious Endowments,  Madras v. Sri  Lakshmindra Thirtha  Swamiar of Sri Shirur Mutt (2)  and in  Sri Venkataramana  Devaru v. The State of Mysore (3), that "matters of religion" in Art.  26(b)   include  even  practices  which  are regarded by the community as part of its religion, may be noted:           "Whilst we  are dealing  with this point      it may  not be  out of  place incidentally to      strike a  note of caution and observe that in      order that  the practices  in question should      be treated as a part of religion they must be      regarded  by   the  said   religion  as   its      essential and  integral part;  otherwise even      purely secular  practices which  are  not  an      essential or an integral part of religion are      apt to  be clothed  with a religious form and      may  make   a  claim  for  being  treated  as      religious practices  within  the  meaning  of      Art. 26.  Similarly,  even  practices  though      religious  may   have  sprung   from   merely      superstitious beliefs  and may  in that sense      be extraneous  and unessential  accretions to      religion itself.  Unless such  practices  are      found to constitute an essential and integral

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    part  of  a  religion  their  claim  for  the      protection under  Art.  26  may  have  to  be      carefully scrutinised;  in other  words,  the      protection must be confined to such religious      practices as are an essential and an integral      part of it and no other."      But then  it is  contended that  a  religious denomination is  a quasi-personality, which has to ensure its  continuity and  has, therefore, to lay down  rules  for  observance  by  members  of  its community, and,  in order  to maintain  proper and strict 524 discipline, has  to lay  down sanctions; the right to  excommunicate   a  recusant   member   is   an illustration of that sanction. In this connection, it was  contended that  the Privy Council had laid down in  the case  of Hasanali  v. Mansoorali  (1) that the  power of excommunication was a religious power exercisable by the Dai. In my opinion, those passages in  the judgment  of the Privy Council do not establish the proposition that the right which the Privy  Council found  inhered in the Dai was a purely religious  right. That  it was not a purely religious right becomes clear from the judgment of the Judicial Committee of the Privy Council, which laid down the appropriate procedure and the manner of  expulsion,   which  had  to  be  according  to justice, equity  and good  conscience, and that it was  justiciable.   A  matter   which  is   purely religious could not come within the purview of the Courts. That conclusion is further strengthened by the  consideration   that  the   effect   of   the excommunication or expulsion from the community is that the  expelled person  is  excluded  from  the exercise of  rights in  connection not  only  with places of  worship but  also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of  a civil  nature and  are  not  purely religious  matters.   In  the  case  before  their Lordships of  the Privy  Council, their  Lordships enquired into  the regularity  of the  proceedings resulting in  the  excommunication  challenged  in that case,  and they  held that  the plaintiff had not been  validly expelled.  It cannot, therefore, be asserted that the Privy Council held the matter of excommunication  as a  purely religious one. If it were  so,  the  Courts  would  be  out  of  the controversy.      The same  argument was  advanced  in  another form by  contending that  excommunication is not a social question and that, therefore, Art. 25(2)(b) could not  be invoked in aid of holding the Act to be constitutional.  In this  connection, it has to be 525 borne in  mind that  the Dai-ul-Mutlaq is not only the head  of the  religious community but also the trustee of  the property of the community in which the community  as a  whole is  interested. Even  a theological head has got to perform acts which are not wholly  religious but  may be said to be quasi religious or  matters  which  are  connected  with religious practices,  though not purely religious.

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Actions  of   the  Dai-ul-Mutlaq   in  the  purely religious aspect  are not a concern of the courts, but his  actions touching  the civil rights of the members of  the community  are justiciable and not outside  the   pale   of   interference   by   the legislature or the judiciary. I am not called upon to decide, nor am I competent to do so, as to what are the  religious matters  in which  the  Dai-ul- Mutlaq functions according to his religious sense. I am  only concerned  with the civil aspect of the controversy relating  to the  constitutionality of the  Act,  and  I  have  to  determine  only  that controversy.      It has  further been  argued on behalf of the petitioner that  an excommunicated  person has not the right  to say  his prayers in the mosque or to bury his dead in the community burial ground or to the use  of other  communal property. Those may be the result  of excommunication, but I am concerned with the  question  whether  the  Legislature  was competent  and   constitutionally   justified   in enacting the  law declaring  excommunication to be void. As  already indicated, I am not concerned in this case  with the  purely  religious  aspect  of excommunication. I  am  only  concerned  with  the civil rights  of the  members  of  the  community, which rights  they will  continue to enjoy as such members if  excommunication was held to be invalid in accordance  with  the  provision  of  the  Act. Hence, though  the Act  may have its repercussions on the  religious aspect of excommunication, in so far as it protects the civil rights of the members of the community 526 it has  not gone  beyond the  provisions  of  Art. 25(2)(b) of the constitution.      Then it  is argued  that the guaranteed right of a  religious denomination  to  manage  its  own affairs in  matters of  religion  (Art.  26(b)  is subject only  to public order, morality and health and is  not subject to legislation contemplated by Art. 25(2)(b).  This very argument was advanced in the case of Shri Venkataramana Devaru v. The State of Mysore(1).  At page  916 this argument has been specifically dealt  with and negatived. This Court observed as follows:      "The answer  to this contention is that it is      impossible to  read any  such limitation into      the language  of Art.25(2)(b).  It applies in      terms to  all  religious  institutions  of  a      public  character  without  qualification  or      reserve.   As    already    stated,    public      institutions would  mean not  merely  temples      dedicated to  the public  as a whole but also      those founded  for the  benefit  of  sections      thereof, and  denominational temples would be      comprised  therein.   The  language   of  the      Article being  plain and  unambiguous, it  is      not open  to us  to read  into it limitations      which  are  not  there,  based  on  a  priori      reasoning as to the probable intention of the      Legislature. Such  intention can  be gathered      only from  the words  actually  used  in  the      statute; and  in a  Court  of  law,  what  is      unexpressed has  the same  value as  what  is

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    unintended.  We   must  therefore  hold  that      denominational institutions  are within  Art.      25(2)(b)." In  that  case  also,  as  in  the  present  case, reference was made to the earlier decision of this Court in 527 The  Commissioner,   Hindu  Religious  endowments, Madras v.  Sri Lakshmindra  Thirtha Swamiar of Sri Shirur Mutt  (1),  but  the  latter  decision  had explained the legal position with reference to the earlier  decision,   and   after   examining   the arguments for and against the proposition at pages 916-918, it  has been  distinctly laid  down  that Art. 26  (b) must  be read  subject to Art. 25 (2) (b) of the Constitution.      It has  further been  contended that a person who has  been excommunicated  as a  result of  his non-conformity  to   religious  practices  is  not entitled  to   use  the  communal  mosque  or  the communal burial ground or other communal property, thus showing  that for  all practical  purposes he was no  more to  be treated  as a  member  of  the community, and  is thus an outcast. Another result of excommunication  is that no other member of the community  can   have  any   contacts,  social  or religious,  with   the   person   who   has   been excommunicated. All  that is  true. But the Act is intended to  do away  with all  that  mischief  of treating  a  human  being  as  a  pariah,  and  of depriving him  of his  human dignity  and  of  his sight  to   follow  the   dictates  of   his   own conscience. The  Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by Art.  25 (1)  of the  Constitution, and  not in derogation of  it. In  so far  as the  Act has any repercussions on  the right  of the petitioner, as trustee of  communal property,  to deal  with such property, the  Act could come under the protection of Art.  26 (d),  in the  sense that  his right to administer the  property is not questioned, but he has to  administer the property in accordance with law. The  law, in  the present instance, tells the petitioner not  to withhold  the civil rights of a member of  the community  to a  communal property. But as  against this it is argued on behalf of the petitioner that  his right  to excommunicate is so bound up with religion that it is protected by cl. (b) of Art. 26, and is thus completely out of the 528 regulation  of   law,  in   accordance  with   the provisions of  cl. (d)  of that Article. But, I am not satisfied on the pleadings and on the evidence placed before us that the right of excommunication is a  purely religious  matter. As already pointed out, the  indications are  all  to  the  contrary, particularly the  judgment to the Privy Council in the case  of Hasanali  v. Mansoorali  (1) on which great  reliance   was  placed  on  behalf  of  the petitioner.      On the  social aspect of excommunication, one is inclined  to think  that  the  position  of  an excommunicated   person   becomes   that   of   an untouchable in  his community,  and if that is so, the Act in declaring such practices to be void has

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only carried  out the strict injunction of Art. 17 of the  Constitution, by  which untouchability has been  abolished  and  its  practice  in  any  form forbidden. The  Article further  provides that the enforcement  of  any  disability  arising  out  of untouchability shall  be an  offence punishable in accordance with  law. The  Act, in  this sense, is its logical  corollary  and  must,  therefore,  be upheld.      In my  opinion, it  has not  been established that the  Act has  been passed  by  a  legislature which  was  not  competent  to  legislate  on  the subject,  or   that  it   infringes  any   of  the provisions  of  the  Constitution.  This  petition must, therefore, fail.      DAS GUPTA,  J.-In our  opinion this  petition should succeed.      The petitioner  is the  head of  the  Dawoodi Bohras who  form one  of the  several sub-sects of the Shia sect of Musalmans. Dawoodi Bohras believe that, since  the 21st  Imam went to seclusion, the rights, power  and authority of the Imam have been rightfully exercised  by the  Dai-ul-Imam  as  the vice-regent of  the Imam in seclusion. One of such rights is  the  exercise  of  disciplinary  powers including the right to excommunicate any 529 member  of   the  Dawoodi   Bohra  community.  The existence of such a right in the Dai-ul-Mutlaq who is for  the sake of convenience often mentioned as the Dai was questioned before the courts in a case which went  up to the Privy Council. But since the decision of  the Privy Council in that case, viz., Hasanali 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  51st Dai-ul-Mutlaq of  the community was also upheld in that case  and is  no longer in dispute. The Privy Council had  also to  consider in  that  case  the question whether this power to excommunicate could be exercised by the Dai in any manner he liked and held after  consideration of the previous cases of excommunication and also a document composed about 1200 A.D.  that normally  members of the community can be  expelled "only  at a  meeting of the Jamat after  being   given  due  warning  of  the  fault complained of and an opportunity of amendment, and after  a   public  statement  of  the  grounds  of expulsion."   Speaking   about   the   effect   of excommunication     their     Lordships     said:- "Excommunication........necessarily        involve exclusion from the exercise of religious rights in places under  the trusteeship  of the  head of the community  in   which  religious   exercises   are performed." The  present  petitioner,  it  may  be mentioned, was a party to that litigation.      This decision was given on December, 1, 1947; shortly after  that, the Bombay Legislature-it may be mentioned  that there  is a large concentration of Dawoodi  Bohras in  the State of Bombay-stepped in to  prevent, as  mentioned in the preamble, the practice of excommunication "which

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530 results in  the deprivation  of legitimate  rights and privileges  of" members  of certain  religious communities and enacted the Bombay Act No. XLII of 1949.      It is a short Act of six sections. Section 3- the   main   operative   section-invalidates   all excommunication  of   members  of   any  religious community. Excommunication is defined in section 2 to mean  "the  expulsion  of  a  person  from  any community of which he is a member depriving him of rights   and    privileges   which   are   legally enforceable by  a suit of a civil nature by him or on his  behalf as such member". The explanation to the definition to this section makes it clear that a right to office or property or to worship in any religious place  or a right to burial or cremation is included as a right legally enforceable by suit even though  the determination  of such  right may depend entirely on the decision of the question as to any  religious rites  or ceremonies  or rule or usage of a community. Section 4 makes a person who does any  act which  amounts to excommunication or is in furtherance of the excommunication liable to punishment  which   may  extend  to  one  thousand rupees.      Faced with  the position that the legislation wholly destroys  his right  of excommunicating any member of the Dawoodi Bohra community, the Dai has presented this  petition  under  Art.  32  of  the Constitution. He  contends that  the Act  violates the  fundamental  right  of  the  Dawoodi  Bohras, including himself,  freely  to  practise  religion according to  their own faith and practice-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 531 issue  of  an  appropriate  writ  restraining  the respondent, the  State of  Bombay,  its  officers, servants and  agents from enforcing the provisions of the Act against the petitioner and/or any other member of the Dawoodi Bohra community.      It may  be mentioned that in the petition the legislative competence  of the  Bombay legislature to enact  the Bombay Prevention of excommunication 1949 was  also challenged.  This, 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 Act. Briefly stated, the  respondent’s case  is that  the right and privilege  of the  petitioner as Dai-ul-Mutlaq to regulate  the exercise  of religious  rights do not include  the right to excommunicate any person so as  to deprive  him of  his  civil  rights  and privileges. It  was denied  that the  petitioner’s power to  excommunicate was  an essential  part of the religion  of the  Dawoodi Bohra  community and that the  right has its foundation in religion and religious  doctrines,  tenets  and  faith  of  the Dawoodi Bohra  community. It  was also denied that

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the  right   to  excommunicate  is  the  religious practice and  it was further pleaded that assuming that it was a religious practice, it was certainly not a  part  of  religion  of  the  Dawoodi  Bohra community.      The same  points were  urged on behalf of the intervener, except  that the  learned counsel  for the  intervener  wanted  to  reopen  the  question whether the  petitioner as the head of the Dawoodi Bohra community had the power to excommunicate. As already stated,  however, this  question is hardly open to dispute in the face of the decision of the Privy Council  in Hasanali  v. Mansoorali  (1) and the point was not pressed.      The  content  of  Arts.  25  and  26  of  the Constitution came up for consideration before this Court 532 in the  Commissioner, Hindu  Religious  Endowments Madras v.  Sri Lakshmindra  Thirtha Swamiar of Sri Shirur Matt  (1); Mahant  Jagannath Ramanuj Das v. The State of Orissa (2); Sri Venkatamana Devaru v. The State  of Mysore  (3); Durgah Committee, Ajmer v. Syed  Hussain Ali  (4) and  several other cases and   the   main   principles   underlying   these provisions have  by these  decisions  been  placed beyond  controversy.   The  first   is  that   the protection of  these articles  is not  limited  to matters of  doctrine or belief they extend also to acts done  in pursuance  of religion and therefore contain a  guarantee for  rituals and observances, ceremonies and modes of worship which are integral parts  of   religion.  The  second  is  that  what constitutes an  essential part  of a  religious or religious practice has to be decided by the courts with reference  to the  doctrine of  a  particular religion and  include practices which are regarded by the community as a part of its religion.      Before however we can give a proper answer to the  two  questions  raised,  viz.,  (i)  Has  the impugned Act  interfered with  a right  freely  to practise religion  and (ii) Has it interfered with the right of the Dawoodi Bohra Community to manage its own  affairs in  matters of  religion;  it  is necessary  to   examine   first   the   place   of excommunication  in   the  life   of  a  religious community. Much valuable information about this is furnished by  an article  in the  Encyclopaedia of the  Social   Sciences  from   the  pen  of  Prof. Hazeltine.    "Excommunication",     says    Prof. Hazeltine,  in  one  or  another  of  the  several different meanings  of the  term has always and in all civilizations  been one of the principal means of   maintaining   discipline   within   religious organizations  and   hence   of   preserving   and strengthening their  solidarity."  Druids  in  old Britain are  said to  have claimed  the  power  to exclude  offenders   from  sacrifice.   The  early Chiristian Church exercised 533 this power  very largely and expelled and excluded from the  Christian association, those members who proved to be unworthy of its aims or infringed its rules of  governance. During  the middle  ages the Pope used  this power  frequently  to  secure  the

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observance  of  what  was  considered  the  proper religious rights  and practices of Christianity by excommunicating even  the kings  of some  European countries  when   they  introduced   or  tried  to introduce different  forms of  divine worship. The power was often used not perhaps always fairly and justly, as  a  weapon  in  the  struggle  for  the principle that  the Church  was above  the  State. Impartial  historians  have  recognised,  however, that many of the instances of excommunication were for the  purpose of  securing the adherence to the orthodox creed  and doctrine  of  Christianity  as pronounced  by  the  Catholic  Church.  (Vide  The Catholic Encyclopedia, Vol. V, articles on England and Excommunication).      Turning  to   the  Canon  law  we  find  that excommunication may  be inflicted  as a punishment for a  number of crimes, the most serious of these being, heresy,  apostasy or  schism.  Canon  1325, section 2  defines a heretic to be a man who while remaining nominally  a  Christian,  pertinaciously denies or  doubts any one of the truths which must be believed  de fide  divina et  catholica; if  he falls away  entirely from  the Christian faith, he is  an   apostate;  finally   if  he  rejects  the authority  of   the  Supreme  Pontiff  or  refuses communion with  the members  of the Church who are subject to  him, he  is a  schismatic. (Vide Canon Law by Bouscaren and Ellis).      Among  the   Muslims  also   the   right   of excommunication appears  to  have  been  practised from the earliest times. The Prophet and the Imam, had this  right; and  it is  not disputed that the Dais have  also in  the past  exercised  it  on  a number of 534 occasions. There  can be  little doubt that heresy or apostasy  was a crime for which excommunication was in force among the Dawoodi Bohras also. It may be   pointed   out   in   this   connection   that excommunication  in   the  case   of  Hasanali  v. Mansoorali (1)  which  was  upheld  by  the  Privy Council) was  based on  the failure to comply with the tenets  and traditions  of the  Dawoodi  Bohra community and certain other faults.      According  to   the  petitioner   it  is  "an integral part  of the religion and religious faith and belief  of the  Dawoodi Bohra  community" that excommunication should  be pronounced  by  him  in suitable cases.  It was  urged that  even if  this right to  excommunicate  is  considered  to  be  a religious  practice  as  distinct  from  religious faith such  religious practice  is also  a part of the religion  of the  Dawoodi Bohra  community. It does appear  to be a fact that unquestioning faith in the Dai as the head of community is part of the creed of  the Dawoodi Bohras. It is unnecessary to trace the historical reason for this extraordinary position of  the Dai  as it  does not appear to be seriously disputed  that the  Dai is considered to be the vice-regent of Imam so long as the rightful Imam continues in seclusion.      Mention must  be made  in this  connection of the Mishak  which every Dawoodi Bohra takes at the time of  his initiation, This includes among other

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things, an  oath of  unquestioning  faith  in  and loyalty to  the Dai.  It is  urged therefore  that faith in  the existence  of the disciplinary power of the  Dai including  his power  to excommunicate forms  one   of  the   religious  tenets  of  this community. The  argument that  Art.  25  has  been contravened by the impugned Act is based mainly on this contention and the further contention that in any case  excommunication is  a religious practice in this  community.  As  regards  Art.  26(b)  the argument is that excommunication among the 535 Dawoodi Bohras  forms such an integral part of the management of  the community by the religious head that  interference  with  that  right  cannot  but amount to  an interference  with the  right of the community to the manage its own affairs in matters of religion.      Let us  consider first  whether the  impugned Act contravenes  the provisions of Art. 26 (b). It is unnecessary for the purpose of the present case to enter into the difficult question whether every case of  excommunication by  the Dai  on  whatever grounds inflicted  is a  matter of  religion. What appears however  to be  clear  is  that  where  an excommunication  is   itself  based  on  religious grounds such  as lapse from the orthodox religious creed or  doctrine (similar  to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of  the religion  by the  Dawoodi  Bohras  in general, excommunication  cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this  power  of  excommunication  on  religious grounds  forms  part  of  the  management  by  the community, through its religious head, "of its own affairs in  matters of religion." The impugned Act makes even such excommunications invalid and takes away the  power of  the Dai  as the  head  of  the community  to   excommunicate  even  on  religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under cl. (b) of 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 denomination is  possessed of  properties and  the necessary consequence  of excommunication  will be that  the  excommunicated  member  will  lose  his rights of  enjoyment of such property. It might be thought undesirable  that the  head of a religious community 536 would have  the power  to take away in this manner the civil  rights of  any person.  The right given under Art.  26  (b)  has  not  however  been  made subject to  preservation   of  civil  rights.  The express limitation  in Art. 26 itself is that this right under  the several  clauses of  the  article will exist  subject to  public order, morality and health. It  has been  held by  this Court  in  Sri Venkataramana Devaru  v. The  State of  Mysore (1) that the right under Art. 26(b) is subject further to cl. 2 of Art. 25 of the Constitution.

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    We shall  presently  consider  whether  these limitations on the rights of a religious community to manage  its own  affairs in matters of religion can come  to the  help of  the impugned Act. It is clear however  that apart  from these  limitations the Constitution  has not imposed any limit on the right of  a religious  community to manage its own affairs in  matters of  religion.  The  fact  that civil rights  of a  person  are  affected  by  the exercise of  this  fundamental  right  under  Art. 26(b) is  therefore of  no consequence.  Nor is it possible   to    say   that   excommunication   is prejudicial to public order, morality and health.      Though there  was a statement in paragraph 10 of the  respondent’s counter  affidavit that  "the religious practice,  which  runs  counter  to  the public order,  morality and  health must  give way before the  good of  the people of the State", the learned  Attorney-General   did  not  advance  any argument in support of this plea.      It remains  to consider  whether the impugned Act comes within the saving provisions embodied in cl. 2 of Art. 25. The clause is in these words:-           "Nothing in  this Article  shall  affect      the operation  of any existing law or prevent      the State from making any law- 537           (a)  regulating   or   restricting   any      economic,  financial,   political  or   other      secular activity which may be associated with      religious practice;           (b) providing  for  social  welfare  and      reform  or   the  throwing   open  of   Hindu      religious institutions  of a public character      to all classes and sections of Hindus." Quite clearly, the impugned Act cannot be regarded as a  law regulating  or restricting any economic, financial, political  or other  secular  activity. Indeed that  was not  even suggested  on behalf of the respondent  State. It  was  faintly  suggested however that  the Act should be considered to be a law "providing for social welfare and reform." The mere fact that certain civil rights which might be lost by  members of the Dawoodi Bohra community as a result  of excommunication  even though  made on religious grounds  and that  the Act prevents such loss,  does  not  offer  sufficient  basis  for  a conclusion that  it is a law "providing for social welfare    and    reform."    The    barring    of excommunication on  grounds other  than  religious grounds, say  on  the  breach  of  some  obnoxious social rule  or practice  might be  a  measure  of social  reform   and  a   law  which   bars   such excommunication  merely   might  conceivably  come within the  saving provisions  of cl. 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  excommunication  on  any  ground whatsoever, including  religious grounds,  it must

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be held  to be  in clear violation of the right of the Dawoodi  Bohra community  under Art.  26(b) of the Constitution. 538      It  is  unnecessary  to  consider  the  other attack  on   the  basis   of  Art.   25   of   the Constitution.      Our conclusion  is that the Act is void being in violation  of Art.  26 of the Constitution. The contrary view  taken by  the Bombay  High Court in Taher Saifuddin  v. Tyebbhai  Moosaji (1)  is  not correct.      We  would,  therefore,  allow  the  petition, declare the Act to be void and direct the issue of a  writ   in  the   nature  of   mandamus  on  the respondent, the  State of  Bombay, not  to enforce the provisions of the Act. The petitioner will get his costs.      AYYANGAR, J.-I agree that the petition should succeed and I generally concur in the reasoning of Das  Gupta  J.,  by  which  he  has  reached  this conclusion. In view, however, of the importance of the case  I consider  it proper to state in my own words the grounds for my concurrence.      It was not in dispute that the Dawoodi Bohras who form a sub-sect of the Shia sect of Muslims is a  "religious  denomination"  within  the  opening words of  Art. 26 of the Constitution. There are a few further  matters which were not in controversy on the  basis of  which the  contentions urged  in support of  the petition  have to be viewed. These might now be briefly stated:      (1) It  was the accepted tenet of the Dawoodi Bohra faith  that God  always had  and still has a representative on  earth through whom His commands are conveyed  to His  people. That  representative was the  Imam. The  Dai was  the representative of the Imam and conveyed God’s message to His people. The powers  of the  Dai were approximated to those of the  Imam. When the Imam came out of seclusion, the powers  of the  Dai would  cease. The chain of intercession with the Almighty was as follows: The Dai-the Imam- 539 the Holy  Prophet-and the  one God (See Per Marten J. in  Advocate General  of  Bombay  v.  Yusufalli Ebrahim (1).      (2) The position and status of the petitioner as the  Dai-ul-Mutlaq was  not contested since the same had  been upheld  by the  Privy  council  the decision reported as Hasanali v. Mansoorali (2).      (3) It  was not  in dispute  that subject  to certain  limitations  and  to  the  observance  of particular formalities  which were  pointed out by the Privy  Council in  the decision  just referred to,  that  the  Dai-ul-Mutlaq  has  the  power  of excommunication and  indeed, as  observed by  Lord Porter   in   that   judgment,   "the   right   of excommunication by  a  Dai-ul-Mutlaq  was  not  so strenuously contested  as were  the limits  within which it is confined."      (4)  The   Dai-ul-Mutlaq  was  not  merely  a religious  leader-the   religious  head   of   the denomination but  was the  trustee of the property of the community.

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    (5) The  previous history  of  the  community shows that excommunicated persons were deprived of the exercise of religious rights. It was contended before the  Privy Council  that the  effect of  an excommunication was in the nature merely of social ostracism but this was rejected and it was held to have a  larger effect  as involving  an  exclusion from  the  right  to  the  enjoyment  of  property dedicated for  the benefit of the denomination and of  worship   in  places   of  worship   similarly dedicated or set apart.      The validity  of Bombay Act 42 of 1949 (which I shall  hereafter refer  to as  the impugned Act) has to  be judged  in the  light of these admitted premises. Articles  25 and  26, which are urged as violated by the impugned Act run: 540           "25.  (1)   Subject  to   public  order,      morality  and   health  and   to  the   other      provisions of  this  Part,  all  persons  are      equally entitled to freedom of conscience and      the right  freely to  profess,  practice  and      propagate religion.           (2) Nothing in this article shall affect      operation of  any existing law or prevent the      State from making any law-                (a) regulating  or restricting  any           economic, financial,  political or other           secular activity which may be associated           with religious practice;                (b) providing  for  social  welfare           and reform or the throwing open of Hindu           religious  institutions   of  a   public           character to all classes and sections of           Hindus.           Explanation I.-The  wearing and carrying      of kirpans  shall be deemed to be included in      the profession of the Sikh religion.           Explanation  II-In   sub-clause  (b)  of      clause (2),  the reference to Hindus shall be      construed as including a reference to persons      professing  the   Sikh,  Jaina   or  Buddhist      religion,  and   the   reference   to   Hindu      religious  institutions  shall  be  construed      accordingly.           26. Subject  to public  order,  morality      and health,  every religious  denomination or      any section thereof shall have the right-                (a)  to   establish  and   maintain           institutions    for     religious    and           charitable purposes;                (b) to  manage its  own affairs  in           matters of religion;                (c) to  own and acquire movable and           immovable property; and                (d) to  administer such property in           accordance with law." 541 I  would   add  that  these  Articles  embody  the principle of  religious toleration  that has  been the characteristic  feature of Indian civilization from the  start  of  history.  the  instances  and periods when  this feature was absent being merely temporary  aberrations.  Besides,  they  serve  to emphasize the  secular nature  of Indian Democracy

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which the  founding fathers  considered should  be the very basis of the Constitution.      I  now   proceed  to   the  details   of  the provisions of the impugned Act which are stated to infringe  the   rights  guaranteed  by  these  two Articles.  The   preamble  to   the  impugned  Act recites:                "Whereas it  has come to the notice           of   Government    that   the   practice           prevailing  in  certain  communities  of           excommunicating  its  members  is  often           followed in  a manner  which results  in           the deprivation of legitimate rights and           privileges of its members;                And whereas  in  keeping  with  the           spirit of  changing  times  and  in  the           public interest, it is expedient to stop           the practice;  it is  hereby enacted  as           follows :-" Section 3 is the operative provision which enacts:                "3.    Notwithstanding     anything           contained in  any law,  custom or  usage           for the  time  being  in  force  to  the           contrary, no excommunication of a member           of any  community  shall  be  valid  and           shall be of any effect." Section 4  penalises any  person who does "any act which amounts  to or  is  in  furtherance  of  the excommunication" and subjects him to criminal 542 proceedings as  regards which provision is made in ss. 5 and 6. Section 2 contains two definitions:                (1) of  the word  "community" which           would include the religious denomination           of Dawoodi Bohras, and                (2)   of    "excommunication"    as meaning:                "the expulsion of a person from any           community  of   which  he  is  a  member           depriving him  of rights  and privileges           which are  legally enforceable by a suit           of civil  nature by him or on his behalf           as such member;                Explanation.-For  the  purposes  of           clause a  right legally enforceable by a           suit of  civil nature  shall include the           right  to   office  or  property  or  to           worship in  any  religious  place  or  a           right   of    burial    or    cremation,           notwithstanding  the   fact   that   the           determination  of   such  right  depends           entirely on the decision of the question           as to  any religious rites or ceremonies           or rule or usage of a community."      The question  to consider  is whether  a  law which penalises  excommunication  by  a  religious denomination or  by its  head whether  or not  the excommunication be for non-conformity to the basic essentials of  the religion  of that  denomination and   effects    the   nullification    of    such excommunication  as  regards  the  rights  of  the person excommunicated  would or would not infringe the rights guaranteed by Arts. 25 and 26.      First as to Art. 25, as regards cl (1) it was not  in   dispute  that  the  guarantee  under  it

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protected  not   merely   freedom   to   entertain religious beliefs  but also acts done in pursuance of that religion, this being made clear by the use of the expression 543 "practice of  religion". No  doubt, the  right  to freedom of  conscience and  the right  to profess, practise and propagate religion are all subject to "public order, morality or health and to the other provisions of  this Part" but it was not suggested that (subject  to an  argument  about  the  matter being a  measure of social reform) the practice of excommunication offended public order, morality or health or any other part of the Constitution.      Here  is   a  religious  denomination  within Art.26. The Dai-ul-Mutlaq is its spiritual leader, the religious  head of  the  denomination  and  in accordance with the tenets of that denomination he had invested  in him  the power  to  excommunicate dissidents.  Pausing  here,  it  is  necessary  to examine the  rational basis of the excommunication of persons who dissent from the fundamental tenets of  a   faith.  The   identity  of   a   religious denomination  consists  in  the  identity  of  its doctrines,  creeds   and  tenets   and  these  are intended to  ensure the  unity of  the faith which its adherents  profess and  the  identity  of  the religious views  are the  bonds of the union which binds them  together as one community. As Smith B. said in  Dill v. Watson (1) in a passage quoted by Lord  Halsbury  in  Free  Church  of  Scotland  v. Overtoun (2)                "In the  absence of  conformity  to           essentials, the  denomination would  not           be an  entity cemented  into solidity by           harmonious  uniformity  of  opinion,  it           would be  a mere incongruous heap of, as           it were, grains of sand, thrown together           without  being  united,  each  of  these           intellectual   and    isolated    grains           differing  from  every  other,  and  the           whole forming  a  but  nominally  united           while really  unconnected mass;  fraught           with nothing but internal dissimilitude,           and mutual  and reciprocal contradiction           and dissension." 544 A denomination  within Art. 26 and persons who are members of  that denomination are under in Art. 25 entitled  to   ensure  the   continuity   of   the denomination and  such continuity is possible only may  by   maintaining  the   bond   of   religious discipline  which   would  secure   the  continued adherence of  its members  to  certain  essentials like faith,  doctrine, tenets  and practices.  The right to  such continued  existence  involves  the right to  maintain discipline  by taking  suitable action inter  alia of  excommunicating  those  who deny the  fundamental bases  of the  religion. The consequences of  the exercise of that power vested in the  denomination or  in its head-a power which is essential for maintaing the existence and unity of denomination  must necessarily be the exclusion of the person excommunicated from participation in the religious  life  of  the  denomination,  which

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would include  the use  of places  of  worship  or consecrated places  for burial  dedicated for  the use of  the members  of the denomination and which are vested  in the religious head as a trustee for the denomination.      The learned Attorney-General who appeared for the  respondent   submitted  three   points:   (1) Assuming that  excommunication  was  part  of  the religious  practice  of  the  denomination,  still there was  no averment  in the  petition that  the civil results  flowing from excommunication in the shape of  exclusion from  the  beneficial  use  of denominational property  was itself  a  matter  of religion. In  other words,  there was  no pleading that the  deprivation of  the civil  rights  of  a person excommunicated  was a matter of religion or of religious  practice. (2)  The "excommunication" defined by  the Act  deals with  rights  of  civil nature as  distinguished from  religious or social rights or  obligations and  a law dealing with the civil consequence  of an  excommunication does not violate the  freedom protected  by Art. 25 or Art. 26.  (3)   Even  on   the  basis  that  the  civil consequences of an excommunication are a matter of religion, still it is a 545 measure  of   social  reform   and  as   such  the legislation would  be saved  by the  words in Art. 25(2)(b).      I  am   unable  to   accept  any   of   these contentions as  correct. (1)  First I do not agree that the  pleadings do  not sufficiently raise the point that  if excommunication  was  part  of  the "practice of  a religion"  the  consequences  that flow therefrom were not also part of the "practice of religion".  The position  of  the  Dai  as  the religious  head  of  the  denomination  not  being disputed and  his power  to excommunicate also not being in  dispute and  it also being admitted that places  of   worship  and   burial  grounds   were dedicated for  the  use  of  the  members  of  the denomination,  it   appears   to   me   that   the consequence of the deprivation of the use of these properties  by  persons  excommunicated  would  be logical  and   would  flow   from  the   order  of excommunication. It  could not  be contested  that the   consequence    of   a    valid   order    of excommunication was that the person excommunicated would cease  to be entitled to the benefits of the trusts created  or founded for the denomination or to   the    beneficial   use   or   enjoyment   of denominational property.  If the  property belongs to a  community and if a person by excommunication ceased to  be a  member of that community, it is a little difficult  to see  how  his  right  to  the enjoyment of  the denominational property could be divorced  from   the  religious   practice   which resulted in  his ceasing  to be  a member  of  the community. When  once it  conceded that  the right guaranteed by  Art. 25  (1)  is  not  confined  to freedom of conscience in the sense of the right to hold a  belief and  to propagate  that belief, but includes the  right to  the practice  of religion, the consequences  of that  practice must also bear the same  complexion and  be the subject of a like

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guarantee.      (2) I  shall reserve  for later consideration the point  about the  legislation being saved as a matter 546 of social reform under Art. 25(2)(b), and continue to  deal  with  the  argument  that  the  impugned enactment was  valid since  it dealt only with the consequences  on  the  civil  rights,  of  persons excommunicated. It has, however, to be pointed out that though in the definition of "excommunication" under s. 2(b) of the impugned Act the consequences on the  civil rights of the excommunicated persons is set out, that is for the purpose of defining an "excommunication". What  I desire  to point out is that it  is not as if the impugned enactment saves only the  civil consequences of an excommunication not interfering  with  other  consequences  of  an excommunication  falling  within  the  definition. Taking the case of the Dawoodi Bohra community, if the Dai  excommunicated a  person on the ground of forswearing the  basic tenets  of  that  religious community the  Dai would  be committing an offence under s.  4, because the consequences according to the law  of that  religious denomination  would be the   exclusion   from   civil   rights   of   the excommunicated  person.   The  learned   Attorney- General is  therefore not  right in the submission that the  Act is  concerned only  with  the  civil rights of  the excommunicated person. On the other hand, it  would be  correct to say that the Act is concerned with  excommunications which  might have religious significance  but which  also operate to deprive persons of their civil rights.      Article  26   confers  on   every   religious denomination two  rights which are relevant in the present context,  by cl.  (b)-"to manage  its  own affairs in  matters of  religion"-and by  the last clause-cl.  (d)  -"to  administer  such  property" which the  denomination owns or has acquired (vide cl.  (c)   (d)  "in   accordance  with   law."  In considering the  scope of  Art. 26 one has to bear in  mind   two  basic  postulates:  First  that  a religious denomination  is possessed  of  property which is  dedicated for  definite uses  and  which under Art. 26 (d) the religious 547 denomination has  the right  to  administer.  From this it  would follow  that  subject  to  any  law grounded on  public order,  morality or health the limitations  with   which  Art.   26  opens,   the denomination has a right to have the property used for the  purposes for  which it  was dedicated. So far  as   the  present   case  is  concerned,  the management of  the property  and the right and the duty to  ensure the  proper  application  of  that property is  admitedly vested  in the  Dai as  the religious head of the denomination. Article 26 (d) speaks of the administration of the property being in accordance  with law  and the learned Attorney- General  suggested  that  a  valid  law  could  be enacted which  would permit the diversion of those funds to  purposes which  the legislature  in  its wisdom thought  it  fit  to  appropriate.  I  feel wholly unable to accept this argument. A law which

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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, and in passing it might  be  observed  that  even  in  cases  of  an apostate according to the principles governing the Dawoodi Bohra  denomination there is no ipso facto loss of  rights, only  apostasy is  a  ground  for excommunication which  however  could  take  place without service  of notice or an enquiry. It could not  be   contended  that  an  apostate  would  be entitled  to   the  beneficial  use  of  property, dedicated to the Dawoodi Bohra community be it the mosque where  worship goes  on or  other types  of property like  consecrated burial  grounds etc. It would be obvious that if the Dai permitted the use of   the   property   by   an   apostate   without excommunicating  him  he  would  be  committing  a dereliction of his duty as the supreme head 548 of  the  religion-in  fact  an  act  of  sacrilege besides being  guilty of  a  breach  of  trust.  I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property  belonging  to  the  denomination  by  an apostate  it   would  be   a  wholly  unauthorised diversion which would be a violation of 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 as the  medium through  which spiritual  grace  is brought to  the community  and that  this  is  the central part of the religion as well as one of the principal articles  of that  faith. Any  denial of this position  is virtually tantamount to a denial of  the  very  foundation  of  the  faith  of  the religious denomination.      The attack  on the  constitutionality of  the Act has  to be  judged on  the basis  of these two fundamental    points.     The     practice     of excommunication  is  of  ancient  origin.  History records the  existence of that practice from Pagan times and  Aeschyles records  "The exclusion  from purification with  holy water of an offender whose hands were  defiled  with  bloodshed."  Later  the Druids are  said to  have  claimed  the  right  of excluding offenders from sacrifice. Such customary exclusions  are   stated  to   have  obtained   in primitive  semitic   tribes  but   it  is   hardly necessary to  deal  in  detail  with  this  point, because so  far as  the Muslims,  and particularly among the  religious denomination  with which this petition is  concerned, enough  material has  been set out  in the  judgment  of  the  Privy  Council already referred.      Pausing here,  it  might  be  mentioned  that excommunication might  bear two  aspects: (1) as a punishment  for   crimes   which   the   religious community justifies  putting one  out of its fold. In this connection it may be pointed out that in a theocratic   State    the   punitive   aspect   of

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excommunication 549 might get  emphasized and  might almost  take  the form of  a  general  administration  by  religious dignitaries of  ordinary civil  law. But  there is another aspect  which is  of real relevance to the point now  under consideration. From this point of view  excommunication  might  be  defined  as  the judicial exclusion  from the  right and privileges of the  religious community  to whom  the offender belongs. Here  it is  not so  much as a punishment that excommunication is inflicted but is used as a measure of  discipline for  the maintenance of the integrity of  the community,  for in  the ultimate analysis the  binding force which holds together a religious community  and imparts  to  it  a  unity which makes  it a  denomination is a common faith, common belief  and a  belief in  a  common  creed, doctrines and  dogma. A  community has  a right to insist that  those who claim to be within its fold are those  who believe  in the  essentials of  its creed and that one who asserts that he is a member of the  denomination does  not, at  least,  openly denounce the  essentials  of  the  creed,  for  if everyone were at liberty to deny these essentials, the community  as a  group  would  soon  cease  to exist. It  is in this sense that it is a matter of the very  life of a denomination that it exercises discipline over  its members  for the  purpose  of preserving unity  of faith, at least so far as the basic  creed   or  doctrines  are  concerned.  The impugned enactment  by depriving  the head  of the power  and   the  right   to   excommunicate   and penalising the  exercise of  the power, strikes at the very  life of  the community  by rendering  it impotent to  protect itself against dissidents and schismatics. It  is thus  a violation of the right to practice  religion guaranteed by Art. 25(1) and is also  violative of Art. 26 in that it interfers with the  rights of  the Dai as the trustee of the property of  the denomination  to so administer it as  to   exclude  dissidents   and  excommunicated persons from the beneficial use of such property. 550      It is  admitted however  in the  present case that the  Dai as  the head of the denomination has vested in him the power, subject to the procedural requirements indicated  in  the  judgment  of  the Privy  Council,   to  excommunicate  such  of  the members of  the community  as do not adhere to the basic essentials  of the  faith and  in particular those  who  repudiate  him  as  the  head  of  the denomination and  as a  medium through  which  the community  derives   spiritual   satisfaction   or efficiency mediately  from the  God-head. It might be that  if the  enactment had  confined itself to dealing with  excommunication as  a punishment for secular offences  merely and  not as an instrument for  the   self  preservation   of   a   religious denomination  the   position   would   have   been different and  in such an event the question as to whether Arts.  25 and  26 would  be sufficient  to render  such  legislation  unconstitutional  might require serious  consideration. That  is  not  the position here.  The Act  is not  confined  in  its

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operation to  the eventualities just now mentioned but  even  excommunication  with  a  view  to  the preservation of  the identity of the community and to  pervent   what  might   be   schism   in   the denomination is  also brought  within the mischief of the  enactment. It  is  not  possible,  in  the definition  of   excommunication  which   the  Act carries, to  read down  the Act  so as  to confine excommunication as  a punishment of offences which are unrelated  to the  practice  of  the  religion which do  not touch and concern the very existence of the  faith of the denomination as such. Such an exclusion cannot  be achieved  except by rewriting the section.      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 551 Mulki Temple  case-(Venkataramana Devaru  v. State of Mysore(1),  the  right  guaranteed  under  Art. 26(b) is  subject  to  a  law  protected  by  Art. 25(2)(b)  The   question  then  before  the  Court related to  the validity of a law which threw open all public  temples, even  those belonging  to  "a religious denomination"  to  "every  community  of Hindus including  ’untouchable’ "  and it was held that, notwithstanding  that the exclusion of these communities from  worship in  such a temple was an essential part  of the  "practice of  religion" of the denomination, the constitutionality of the law was saved  by the  second part of the provision in Art. 25(2)(b) reading: "the throwing open of Hindu religious institutions  of a  public character  to all classes  and section  of Hindus".  The learned Attorney-General sought  support from  this ruling for the  proposition that  Art. 25(2)(b)  could be invoked to protect the validity of a law which was "a  measure   of  social   welfare   and   reform" notwithstanding that  it involved an abrogation of the whole or part of the essentials of a religious belief or  of a  religious practice. I feel unable to accept  the deduction as flowing from the Mulki Temple case. That decision proceeded on  two bases : (1)  As regards  the position of "untouchables", Art. 17 had made express provision stating:           "’Untouchability’ is  abolished and  its      practice  in   any  form  is  forbidden.  The      enforcement of  any disability arising out of      ’Untouchability’   shall    be   an   offence      punishable in accordance with law." and that  had to  be recognised as a limitation on the  rights  of  religious  denominations  however basic and  essential the practice of the exclusion of untouchables  might be  in its tenets or creed. (2) There  was a  special saving  as regards  laws providing  for  "throwing  open  of  public  Hindu Religious Institu- 552 tions to  all classes  and sections  of Hindus" in Art. 25(2)(b),  and effect  had to be given to the wide language in which this provision was couched. In the  face of  the language used, no distinction

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could be  drawn between beliefs that were basic to a  religion,  or  religious  practices  that  were considered to be essential by a religious sect, on the  one  hand,  and  on  the  other  beliefs  and practices that did not form the core of a religion or  of   the  practices   of  that  religion.  The phraseology employed  cut across and effaced these distinctions.      But very  different considerations arise when one has  to deal with legislation which is claimed to be  merely  a  measure  "providing  for  social welfare and  reform". To  start with, it has to be admitted that  this phrase  is as  contrasted with the second  portion of  Art.  25(2)(b),  far  from precise and  is flexible  in its  content. In this connection  it  has  to  be  borne  in  mind  that limitations imposed  on religious practices on the ground of  public order,  morality or  health have already been  saved by  the opening  words of Art. 25(1) and  the  saving  would  cover  beliefs  and practices  even  though  considered  essential  or vital by those professing the religion. I consider that in the context in which the phrase occurs, it is intended  to save  the validity  only of  those laws which  do not  invade the basic and essential practices of  religion which are guaranteed by the operative portion  of Art.  25(1) for two reasons: (1) To  read the saving as covering even the basic essential practices  of religion,  would in effect nullify  and   render   meaningless   the   entire guarantee  of   religious  freedom-a  freedom  not merely to  profess, but  to practice religion, for very few  pieces  of  legislation  for  abrogating religious practices  could  fail  to  be  subsumed under the  caption  of  "a  provision  for  social welfare or  reform". (2) If the phrase just quoted was intended  to have  such a  wide  operation  as cutting at  even the essentials guaranteed by Art. 25(1), there 553 would have  been no need for the special provision as  to   "throwing   open   of   Hindu   religious institutions"  to  all  classes  and  sections  of Hindus since  the legislation contemplated by this provision would  be par  excellence one  of social reform.      In my  view by the phrase "laws providing for social welfare  and reform" it was not intended to enable the legislature to "reform", a religion out of existence or identity. Article 25 (2)(a) having provided for  legislation dealing  with "economic, financial, political or secular activity which may be  associated   with  religious  practices",  the succeeding clause  proceeds  to  deal  with  other activities of religious groups and these also must be those  which are associated with religion. Just as the activities referred to in Art. 25(2)(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(1).      Coming back  to  the  facts  of  the  present petition, the position of the Dai-ul-Mutlaq, is an essential part  of the  creed of the Dawoodi Bohra

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sect. Faith  in his  spiritual mission  and in the efficacy of  his ministration  is one of the bonds that hold  the community  together as  a unit. The power of  excommunication is vested in him for the purpose  of  enforcing  discipline  and  keep  the denomination together  as an entity. The purity of the  fellowship  is  secured  by  the  removal  of persons who  had  rendered  themselves  unfit  and unsuitable for  membership of  the sect. The power of excommunication for the purpose of ensuring the preservation of  the community,  has  therefore  a prime significance  in the religious life of every member of the group. A legislation which penalises this power  even when  exercised for  the  purpose above-indicated cannot  be sustained  as a measure of  social   welfare  or   social  reform  without eviscerating the 554 guarantee  under  Art.  25(1)  and  rendering  the protection illusory.      In my  view the petitioner is entitled to the relief  that   he  seeks  and  the  petition  will accordingly be allowed.      BY COURT:  In accordance  with  the  majority view of  this Court,  the petition is allowed. The petitioner is entitled to his costs.                                  Petition allowed.