IMPORTANT POINT
Ex-communication of a member of Dawoodi Bohra community – Right of religious denomination to manage its own affairs in matters of religion is always subject to morality – Issue of morality must be guided by concept of Constitutional morality and not by societal morality – Notion of morality evolves with time and is not static.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. In Writ Petition (C) No.740 of 1986, the preliminary issue is whether the view taken by a Constitution Bench of this Court in the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1962) Suppl. (2) SCR 496 : AIR 1962 SC 853 , requires reconsideration.

2. In the case of Sardar Syedna (supra), the jurisdiction of this Court under Article 32 of the Constitution of India was invoked for challenging the constitutional validity of the Bombay Protection of Ex-communication Act, 1949 (for short, ‘the Ex-communication Act’). Section 3 of the Ex-communication Act provided that notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no Ex-communication of a member of any community shall be valid and shall be of any effect. Under the Ex-communication Act, the term ‘community’ was defined to mean a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rite, they belong to the same religion or religious creed and includes caste or sub-caste. Under clause (b) of Section 2 of the Ex-communication Act, ‘Ex-communication’ was defined as 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.

3. Sardar Syedna Taher Saifuddin Saheb, who was the 51st Dai-al-Mutlaq and the head of the Dawoodi Bohra community, challenged the Ex-communication Act on the ground that the same infringes the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India. The said petition was placed before a Constitution Bench. The Constitution Bench, by a majority, held that Ex-communication amongst the Dawoodi Bohras forms an integral part of the management of the community. Therefore, interference with the right to excommunicate amounts to interference with the right of the community to manage its own affairs in matters of religion. This Court held that as the Ex-communication Act invalidates Ex-communication on any ground whatsoever including religious grounds, it must be held to be in clear violation of the right of the Dawoodi Bohra community guaranteed under Article 26 (b) of the Constitution of India. Therefore, this Court proceeded to hold that the Ex-communication Act is void, being in violation of Article 26 of the Constitution of India.

4. The prayer in the present writ petition filed by the Central Board of Dawoodi Bohra Community represented by its Secretary is for issuing a writ of mandamus directing the State Government to give effect to the provisions of the Ex-communication Act after reconsidering the decision of this Court in the case of Sardar Syedna (supra), . “Rule nisi” was issued in the petition on 25th August 1986. On 18th March 1994, a Division Bench directed that the petition be listed before a Bench of seven Judges. The 2nd Respondent – Syedna Mufaddal (53rd Dai-al-Mutlaq) made an application seeking a direction that the petition should be listed before a Division Bench. The writ petition was listed before a Constitution Bench. By the judgment and order dated 17th December 2004, ² [2005 (2) SCC 673], the Constitution Bench partly allowed the application filed by the 2nd Respondent. Paragraph 14 of the said order read thus:

“14. In the facts and circumstances of this case, we are satisfied that the matter should be placed for hearing before a Constitution Bench (of five Judges) and not before a larger Bench of seven Judges. It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb case [1962 Supp (2) SCR 496 : AIR 1962 SC 853] that it may opine in favour of hearing by a larger Bench consisting of seven Judges or such other strength as the Chief Justice of India may in exercise of his power to frame a roster may deem fit to constitute