Judgment

SINHA, C.J.I.: 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 XVI 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.

2. The petition is founded on the following allegations. The Dawoodi Bohra Community consists of Muslims of the Shia sect, holding in common with all members of that sect the belief that there is one God, that Mohammad is His Prophet to whom He revealed the Holy Koran ; that Ali, the son-in-law of Mohammad, was the Wasi (executor) of the Prophet, and that the said Ali succeeded the Prophet by Nas-e Jali. The Dawoodi Bohras believe that the said Ali was succeeded by a line of Imams, each of whom in turn was appointed by Nas-e-Jali, by his immediate predecessor. The Shia sect itself became divided into two sub-sects, known respectively as Ismailis and Isna Asharia. The Dawoodi Bohras belong to the former sect, and believe that owing to persecution Imam Tyeb (the 21st Imam) went into seclusion and that an Imam from his line will appear, it being their belief that an Imam 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 Dawat (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 known as Dai-ul-Mutlaq. The petitioner, as the Head Priest of the community of Dawoodi Bohras, is the vicegerent 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 ecclesiatical powers as religious leader of the community. It is the right and privilege of the petitioner, as Dai-ul-Mutlaq, 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-Mutllaq, 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 been given due warning of the fault complained of and an opportuntly 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-Mutlaq. The petitioner claims that as the head of the Dawoodi Bohra community and as Dai-ul-Mutlaq, he has the right and power, in a proper case and subject to the conditions 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 excommunication is a matter of religion, and that, in any event, the right is an incident of the management of the affairs of the Dawoodi Bohra community in matters of reli