Sardar Syedna Taher Saifuddin Saheb vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 128 of 1958

Decision Date: 9 January, 1962

Coram: Bhuvneshwar P. Sinha, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled Sardar Syedna Taher Saifuddin Saheb versus The State of Bombay, the Supreme Court of India delivered its judgment on the ninth day of January, 1962. The judgment was authored by Justice Bhuvneshwar P. Sinha, who sat on the bench together with Justices A. K. Sarkar, K. C. Das Gupta, N. Rajagopala Ayyangar and J. R. Mudholkar. The petitioner, Sardar Syedna Taher Saifuddin Saheb, was the religious head of the Dawoodi Bohra community and also a trustee of its property. The respondent was the State of Bombay. The case was reported in 1962 AIR 853 and in the Supplement to the Supreme Court Reports, volume 2, page 496, with the citator reference F 1972 SC 1586 (12). The statutory provision under challenge was the Bombay Prevention of Excommunication Act, 1949 (Bombay Act 42 of 1949), specifically sections 2 and 3, which dealt with the definition of “community” and the prohibition of any excommunication of a member of any community, respectively. The petitioner contended that the Act infringed the fundamental rights guaranteed by Articles 25 and 26 of the Constitution of India, asserting that the power to excommunicate was an essential religious function of the Dawoodi Bohra community and that the act was therefore ultra vires. The petitioner relied upon the earlier decision of the Judicial Committee of the Privy Council in Hasan Ali v. Mansoor Ali, (1947) L.R. 75 I.A. 1, in which the petitioner, as the fifty‑first Dai‑ul‑Mutlaq, had been recognised as possessing the authority to excommunicate members of the community within prescribed limits.

The Court, by a majority comprising Justices Sarkar, Das Gupta and Mudholkar, held that the impugned Act violated Articles 25 and 26 of the Constitution and was consequently void. The Court observed that the religious faith and tenets of the Dawoodi Bohra community clearly demonstrated that the exercise of the power of excommunication by its religious head on religious grounds formed an integral part of the management of its religious affairs. Consequently, a statutory provision rendering such excommunication invalid interfered with the community’s right under Article 26(b) to manage its own religious affairs. The Court reiterated that Articles 25 and 26 protect not only religious doctrines and beliefs but also the acts performed in pursuance of religion, encompassing rituals, observances, ceremonies and modes of worship that are essential to a religion. Accordingly, the Court concluded that the Bombay Prevention of Excommunication Act, by denying the effect of any excommunication, infringed the protected religious right of the Dawoodi Bohra community and could not be sustained.

In this matter the Court observed that what constitutes an essential part of a religion must be judged by reference to the doctrine of that faith, and that practices regarded by the community as integral to its religion must also be included within that determination. The Court relied on several earlier decisions, namely Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt, Mahant Jagannath Ramanuj Das v. The State of Orissa, Sri Venkataramana Devaru v. State of Mysore and Durgah Committee, Ajmer v. Syed Hussain Ali, to support this principle.

The Court further explained that the fundamental right guaranteed under Article 26(b) was not subject to the preservation of civil rights; its only limitations were those expressly enumerated in the article itself, namely public order, morality and health, together with the restrictions mentioned in clause 2 of Article 25. Accordingly, the fact that the civil rights of an excommunicated individual might be affected by the exercise of the right under Article 26(b) could not be treated as a bar to that right, nor could the act of excommunication be said to be prejudicial to public order, morality or health.

Turning to the impugned legislation, the Court held that it did not fall within the scope of Article 25(2)(a) and could not be characterised as a law “providing for social welfare and reform” within the meaning of Article 25(2)(b). The legislation prohibited excommunication even when it was based on religious grounds, yet it did not advance any social‑welfare or reform objective, despite its aim of preventing the loss of civil rights that would follow such excommunication. The Court cited Sri Venkataramana Devaru v. State of Mysore in support of this view and expressly disapproved the earlier decision in Taher Saifuddin v. Tyebbhai Moosaji.

Per Chief Justice Sinha, the Court clarified that it was incorrect to assert that the Privy Council in Hasan Ali v. Mansoor Ali had held the right of the Dai‑ul‑Mutlaq to excommunicate a community member to be a purely religious matter. The Dai‑ul‑Mutlaq was not only the spiritual head of the denomination but also the trustee of its property. While actions taken purely in the religious sphere were beyond judicial scrutiny, any actions that impinged upon the civil rights of community members were justiciable and could be regulated by the legislature and the judiciary.

Consequently, the Court concluded that the impugned Act, by seeking to protect the civil rights of members of the community, fell within the saving provisions of Article 25(2)(b). The right of a religious denomination under Article 26(b) could therefore be subject to legislation authorised by Article 25(2)(b). The Court again referred to Sri Venkataramana Devaru v. State of Mysore, Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt and Durgah Committee, Ajmer v. Syed Hussain Ali, as supporting authority.

Finally, the Court observed that the purpose of the Act was to give effect to the individual liberty of conscience guaranteed by Article 25(1) and to implement Article 17 of the Constitution, thereby attempting to safeguard an excommunicated person from becoming a socially ostracised outcast within his community.

In the present case the Court observed that the legislation in question sought to prevent an excommunicated individual from being treated as an untouchable within his own community, and that the constitutional validity of such a purpose could not be challenged. The Court further held that, in its true character, the Act fell within Entries 1 and 2 of List III of the Constitution Act of 1935, and therefore there was no doubt about the competence of the Legislature to enact it. According to Justice Ayyangar, the authority of the Dai‑ul‑Mutlaq to exercise the power of excommunication over a member of the denomination, as recognised by the Privy Council in Hasanali v. Mansoorali, was beyond question. The Court explained that a religious denomination governed by Article 26 and its members protected by Article 25 possessed the right to preserve its existence by maintaining discipline and by ensuring adherence to its doctrines and practices; this right included taking such appropriate measures as excommunication against persons who denied the fundamental tenets of the faith. Consequently, the effect of excommunication necessarily involved the exclusion of the excommunicated person from participation in the religious life of the denomination, including denial of access to places of worship or burial grounds that were devoted to the members and held in trust by the religious head. The Court referred to the authorities Dill v. Watson, (1836) 3 Jones Rep. (Ir. Ex.) 48 and Free Church of Scotland v. Overtoun, [1904] A.C. 515 in support of this principle. The Court rejected the argument that, based on the definition of “excommunication” contained in the Act, the legislation merely aimed to protect the civil rights of an excommunicated person and had no connection with religious grounds that, under the laws of the denomination, involved deprivation of civil rights. By depriving the Dai of the power to excommunicate and by criminalising the exercise of that power, the Act struck at the very life of the denomination, rendering it powerless to defend itself against dissidents and schismatics, and thereby contravened Articles 25 and 26 of the Constitution. The Court also held that the Act could not be sustained on the ground that it was a measure of social welfare and reform within the scope of Article 25(2)(b) or Article 17 of the Constitution, distinguishing the earlier decision in Venkatarama Devaru v. State of Mysore, [1958] S.C.R. 895. The expression “laws providing for social welfare and reform” in Article 25(2)(1) was not intended to permit the legislature to abolish or fundamentally alter a religion’s identity. The activities mentioned in Article 25(2)(a) were clearly not essential to the religion, and Article 25(2)(b) was not meant to cover the essential elements of a religion protected by Article 25(1). Since faith in the Dai‑ul‑Mutlaq formed an essential part of the creed that held the denomination together, the Act clearly violated Article 25(1) by removing his power to excommunicate, a power necessary for maintaining the denomination’s unity and the purity of its fellowship. The judgment concluded the original jurisdiction of Petition No. 128 of 1958, filed under Article 32 of the Constitution of India for the enforcement of fundamental rights, and listed the counsel appearing for the parties.

Counsel for the petitioner appeared, followed by counsel for the respondent, which included the Attorney General of India, the Solicitor‑General of India, the Additional Solicitor‑General of India and other counsel. Counsel for the intervener also appeared. The judgment was delivered on 9 January 1962. Chief Justice Sinha authored a separate judgment, while the judgment of Justices Sarkar, Das Gupta and Mudholkar was delivered by Justice Das Gupta. Justice Ayyangar delivered an additional separate judgment. The petitioner, who held the position of the fifty‑first Dai‑ul‑Mutlaq and the head of the Dawoodi Bohra community, filed the petition under article 32 of the Constitution of India. The petition challenged the constitutionality of the Bombay Prevention of Excommunication Act, 1949 (Bombay Act XLII of 1949), contending that its provisions infringed articles 25 and 26 of the Constitution. The sole respondent was the State of Bombay. The petition set out several factual allegations. The Dawoodi Bohra community was described as a Muslim community belonging to the Shia sect. Members of the community shared the belief in one God, accepted Muhammad as the Prophet who received the Holy Qur’an, and regarded Ali, the son‑in‑law of Muhammad, as the wasi (executor) of the Prophet. The community also maintained that Ali succeeded the Prophet by Nas‑e‑Jali and that a line of Imams, each appointed by the preceding Imam through Nas‑e‑Jali, continued thereafter. The Shia sect had historically divided into two sub‑sects, the Ismailis and the Isna‑Asharia; the Dawoodi Bohras were identified with the former. The community believed that the twenty‑first Imam entered seclusion due to persecution, and that an Imam from his lineage existed at all times, although sometimes invisible to believers while in seclusion. In anticipation of the Imam’s seclusion, the twentieth Imam allegedly directed his Hujjat (a dignitary ranking next to an Imam) and a Hurra‑tul‑Malaka to appoint a Dai, a Mazoon and a Mukasir to continue the Imam’s mission (dawal) during the period of seclusion, and to obtain an oath of allegiance from the faithful. The petitioner, as the Dai‑ul‑Mutlaq, was described as the vice‑gerent of the Imam on Earth during seclusion. The petitioner was a citizen of India and, in his capacity as Dai‑ul‑Mutlaq and vice‑gerent, exercised both civil authority as head of the sect and trustee of its property, and ecclesiastical authority as its religious leader. The petitioner asserted that it was his right and privilege to regulate the exercise of religious rights in places where such rights and ceremonies were performed, and that this authority formed an essential part of his duties as the head of the Dawoodi Bohra community.

The Court observed that, in his capacity as the Dai‑ul‑Mutlaq, the petitioner performed the dual role of religious leader and trustee of the community’s property, and that one of his essential duties was to manage all assets that were placed under his direction and control. The Court further noted that the petitioner possessed the authority to excommunicate members of the Dawoodi Bohra community, but that this authority was not an unlimited, arbitrary power. Rather, the power of excommunication had to be exercised in conformity with the established usage and tenets of the community. According to the Court, except in truly exceptional circumstances, a member could be expelled from the community only after a formal meeting of the Jamat had been held, after the individual had received a proper warning describing the alleged fault, after the individual had been given an opportunity to rectify the conduct, and after a public statement of the reasons for the expulsion had been made. The Court explained that when excommunication was properly and legally effected, it resulted in the person’s exclusion from exercising religious rights in any place that fell under the trusteeship of the Dai‑ul‑Mutlaq. The petitioner contended that, as the head of the Dawoodi Bohra community and as Dai‑ul‑Mutlaq, he possessed the right and power, in a proper case and subject to the conditions governing the lawful exercise of that power, to excommunicate a member of the community, and that this power formed an integral part of the religious faith and belief of the Dawoodi Bohra. The petitioner further affirmed that the exercise of the right of excommunication was a matter of religion and, in any event, an incident of managing the affairs of the Dawoodi Bohra community in religious matters. He asserted that the Dawoodi Bohra community constituted a religious denomination within the meaning of Article 26 of the Constitution, and that his right to excommunicate a member, for reasons on which he alone acted as the religious head, was a guaranteed right under Articles 25 and 26. The petitioner argued that the Bombay Legislature had enacted an Act that came into force on 1 November 1949, and that this Act infringed upon his right and power, as Dai‑ul‑Mutlaq and religious leader, to excommunicate members he deemed fit and proper to expel. He maintained that the right of excommunication and its exercise by him were matters of religion within the meaning of Article 26(b) of the Constitution, and that the Act therefore violated or infringed both Articles 25 and 26, rendering it void under Article 13 after the Constitution came into force. Accordingly, the petitioner claimed that, notwithstanding the provisions of the Act, he remained entitled, as the religious leader and Dai‑ul‑Mutlaq, to excommunicate any member of the Dawoodi Bohra community for an offence, as he perceived it, that justified expulsion, and that any interference by the Act with this right was beyond the Legislature’s competence.

The petitioner argued that the legislation exceeded the authority of the Legislature because it was beyond the competence granted to the Bombay Legislature. The contention was based on the claim that the power to legislate on the matter was not listed in any of the entries of the Seventh Schedule of the Government of India Act, 1935. Subsequently, a suit identified as suit number 1262 of 1949 was filed by Tayebhai Moosaji Koicha (Mandivala) in the High Court of Judicature at Bombay. In that suit the plaintiff sought, among other reliefs, a declaration that the orders of excommunication issued by the petitioner against him before the enactment of the Act were void, illegal and of no effect, and that he therefore remained a member of the Dawoodi Bohra community. The case was heard by Justice J. C. Shah, who delivered his judgment on 21 February 1952. Justice Shah held that the Act did not conflict with Article 26 of the Constitution and that it was within the legislative power of the Province of Bombay, therefore not ultra vires. Dissatisfied with that decision, the petitioner appealed. The appeal was placed before the Court of Appeal, which was composed of Chief Justice Chagla, Justice Bhagwati and another judge. On 26 August 1952 the Court of Appeal affirmed the judgment of the learned single judge, albeit on different grounds. The petitioner then obtained leave from the High Court to take the matter to this Court and filed Civil Appeal No. 99 of 1954. While the appeal was pending, the plaintiff‑respondent died. An application filed on behalf of his heirs seeking to be entered as parties was rejected by the High Court of Bombay, and this Court subsequently dismissed the appeal on the ground that the cause of action did not survive the death of the plaintiff. The petitioner further alleged that persons hostile to him and to the Dawoodi community had published defamatory articles questioning his authority as the religious head and that such attacks infringed his guaranteed rights under Articles 25 and 26 of the Constitution. Consequently, the petitioner claimed that the State, acting in its public capacity, was required to refrain from enforcing the provisions of the Act against him. By a letter dated 18 July 1958, attached as annexure B to the petition, the petitioner’s counsel highlighted the alleged unconstitutionality of the Act and requested that the State desist from enforcing any of its provisions against either the petitioner or the Dawoodi Bohra community. On that basis, the petitioner prayed for a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, direction or order under Article 32 of the Constitution, seeking to restrain the State, its officers, servants and agents from implementing the Act. The State of Bombay, as the sole respondent, submitted its answer to the petition.

The State of Bombay submitted an affidavit sworn by Shri V N Kalghatgi, who was then the Assistant Secretary in the Home Department of the Bombay Government. In that affidavit it was asserted that the petitioner had not initiated any proceedings to excommunicate any member of the Dawoodi Bohra community and therefore lacked any cause of action or legal right to invoke Article 32 of the Constitution. The affidavit further contended that the State did not admit that the Dai‑ul‑Mutlaq, as the head of the community, possessed any civil authority, including the power to expel or excommunicate a community member. Alternatively, the State argued that even if such a power existed, it would be inconsistent with the constitutional policy of the State as defined in the Constitution.

The affidavit went on to explain that the petitioner, in his capacity as community head, might be entitled to regulate religious practices at suitable places and occasions, but that such religious rights did not extend to the power to excommunicate an individual or to deprive that individual of his civil rights and privileges. Moreover, the State maintained that after the impugned Act had come into force, the petitioner no longer possessed any right of excommunication. The State denied that the right to excommunicate derived from, or was founded upon, the religion, doctrines, tenets or faith of the Dawoodi Bohra community, and it further denied that such a right formed an essential part of the community’s religion. Assuming, for argument’s sake, that excommunication were a religious practice, the State submitted that it would run counter to public order, morality and health.

In addition, the State asserted that the impugned Act was a valid piece of legislation enacted by a competent legislature and that it fell within the limits of Articles 25 and 26 of the Constitution. The State emphasised that the right of a religious community to manage its own affairs is not an absolute, untrammeled right; rather, it is subject to regulation in the interest of public order, morality and health. Accordingly, the State denied that the petitioner’s alleged right to excommunicate any member of the community was guaranteed by Articles 25 and 26. Consequently, the State denied that the petitioner was entitled to any declaration or the relief claimed, namely that the provisions of the Act should not be enforced against him.

At a very late stage in the proceedings, specifically in April 1961, an individual named Kurbanhusein Sanchawala of Bombay filed an application. He sought either to be added as a party to the writ petition or, alternatively, to obtain leave to intervene in the case. In his petition for intervention, he identified himself as an Indian citizen and, by birth, a member of the Dawoodi Bohra community. He stated that he had been actively involved in social activities aimed at improving the conditions of community members. He further asserted that the community members accepted the legitimacy of the first forty‑six Dai‑ul‑Mutlaqs, each of whom had been properly nominated and appointed, but that a controversy had arisen concerning the propriety and validity of the appointment of the subsequent Dai‑ul‑Mutlaq. He argued that, but for the impugned Act, the petitioner would have been able to excommunicate him without delay, and he claimed that his participation as an intervenor was both proper and necessary. He therefore prayed to be joined as a respondent‑party, or at the very least, to be granted permission to intervene at the hearing of the writ petition.

The intervenor explained that a controversy had existed since the appointment of the forty‑seventh Dai‑ul‑Mutlaq and that this dispute continued without resolution to the present day. As a result, members of the Dawoodi Bohra community were divided over the legitimacy of the appointments and even over the existence of a Dai‑ul‑Mutlaq from the forty‑seventh through the fifty‑first, the latter category including the petitioner himself. The intervenor further asserted that, but for the enactment of the impugned Act, the petitioner would have been able to excommunicate him without any delay. On this basis, the intervenor claimed that he was not merely a proper party but a necessary party to the writ petition. Accordingly, he prayed that he be either added as a respondent‑party to the writ petition or, at the very least, be granted leave to intervene at the hearing of the writ petition. The Court observed that it must dispose of this application because no order had yet been made in the main proceeding.

In response to the petitioner’s contentions, the intervenor raised several grounds. First, he contended that the Holy Koran does not sanction excommunication and that such a practice contradicts the spirit of Islam. Second, he argued that the Dai‑ul‑Mutlaq possessed no authority to excommunicate any member of the community; and even if such authority had ever existed, it was entirely obsolete in modern times, ought to have been abrogated, and indeed had been lawfully abolished by the Act. Third, the intervenor maintained that the alleged right of excommunication conflicted with the universally accepted principles of human rights as set out in the Universal Declaration of Human Rights. Fourth, he submitted that the Act had been passed by a competent legislature and was consistent with Articles 25 and 26 of the Constitution. Fifth, he claimed that the rights to belief, faith, worship and a decent burial were basic human rights that were wholly inconsistent with any right to excommunicate claimed by the petitioner, and that the practice of excommunication was opposed to public order and morality. He further described excommunication as a secular activity attached to religious practice and said that abolishing it fell within the saving clause 2(a) of Article 25. Sixth, he asserted that, under Mohammedan law, properties belonging to religious and charitable institutions vested in Almighty God and not in the petitioner, and that all members of the Dawoodi Bohra community possessed the right to establish and maintain such institutions in line with Article 26, which protects the rights of the denomination as a whole rather than those of an individual. Seventh, the intervenor argued that the provisions of the Act prohibiting excommunication furthered public order and morality and constituted a just and reasonable restriction on a secular aspect of a religious practice. The petitioner, for his part, challenged the intervenor’s entitlement either to intervene or to be added as a respondent‑party. In his rejoinder to the petition for intervention, the petitioner alleged that the practice of excommunication was essential.

It was asserted that the practice of excommunication was necessary for preserving the purity of a religious denomination because the community could maintain such purity only by removing persons who were deemed unsuitable for membership. Accordingly, it was argued that individuals who did not acknowledge the authority of the Dal‑ul‑Mutlaq, including the petitioner, had to be expelled from the community, and that any person who openly defied the authority of the Dai‑ul‑Mutlaq was liable to be excommunicated, resulting in the loss of all rights and privileges that attached to membership. The petitioners claimed that excommunication constituted an essential and integral element of the faith, belief, and tenets of the Dawoodi Bohra community, and that these elements were protected by Article 26 of the Constitution.

Further, it was urged on behalf of the petitioner that the Dawoodi Bohra community, of which the petitioner was the religious head and also a trustee of the community’s property, qualified as a religious denomination within the meaning of Article 26. As such a denomination, it was said to be entitled to ensure its continuity by preserving religious unity and discipline, which required its adherents to continue accepting certain essential doctrines, tenets, and practices. The right to maintain continuity, the petitioners contended, included the right to enforce discipline, even if that meant taking the extreme step of excommunicating dissenters. The petitioner, as the religious head, was said to be invested with the power to excommunicate dissidents, a power described as a matter of religion within Article 26(b). The petitioners argued that the impugned Act, by removing this power to enforce religious discipline and by forcing the denomination to accept dissidents as full members with rights to use community properties and funds, infringed upon the petitioner’s fundamental rights guaranteed by Article 26.

In support of this contention, reliance was placed on the Supreme Court’s decision in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, which was said to hold that constitutional guarantees protect not only freedom of opinion but also actions undertaken in pursuance of religious opinion, and that the denomination itself has the authority to determine what constitutes the essential parts of its religion, as safeguarded by Articles 25 and 26. Additionally, it was contended that the rights to worship in the community’s mosque and to be buried in its cemetery were religious rights that could not be enjoyed by a person who had been properly excommunicated. The petitioners maintained that by depriving the petitioner, as the head of the community, of the ability to excommunicate a particular member and thereby depriving that member of access to community funds and property designated for religious purposes, the Act effectively removed the petitioner’s constitutional right to regulate the use of those funds and property.

The petitioner's claim was that the legislation, by removing the community’s authority to use its funds and property for religious purposes, effectively stripped him of his statutory power as the religious head to regulate the allocation of those resources dedicated to the community’s worship. It was further submitted that, even if the purpose of the impugned Act was to promote religious reform, such reform lay outside the scope of Article 25 (2) (b) of the Constitution. The learned Attorney‑General for the respondent advanced a contrasting line of argument. He contended that the right to excommunicate, which the Act has rendered ineffective, does not fall within the definition of “religion” under Article 26 (b) of the Constitution. According to his submission, the true object of the legislation was to halt a practice employed by a caste or a denomination whereby members were stripped of their civil rights as members, a matter distinct from the protection afforded to religious matters by Articles 25 and 26. He further proposed that, even if excommunication were deemed a matter of religion, the Act would not be invalid because it represented a reform aimed at furthering public welfare. The respondent also argued that the record contained no evidence establishing that excommunication formed an essential tenet of religion. In his view, the right to worship at a particular place or the right to be buried in a specific burial ground were civil questions, the resolution of which lay within the jurisdiction of the civil courts. Consequently, he described the legislation, in its true character, as a measure of social welfare and social reform, not falling within the prohibitions of Article 25 (1) or Article 26. He maintained that excommunication, when it results in the denial of worship or burial rights, does not constitute a religious matter within the meaning of Article 26 (b). Moreover, he asserted that Article 26 (b) is subordinated to Article 25 (2) (b), and therefore, even if excommunication touched upon certain religious issues, the Act, by abolishing it, conformed to contemporary concepts of human dignity and individual liberty in matters of religious opinion and practice. Counsel for the intervener, Shri Shroff, sought to revive the question of whether the petitioner, as Dai‑ul‑Mutlaq, assuming he had been properly elected, possessed the authority to excommunicate, invoking the Privy Council decision in Hasan Ali v. Mansoor Ali. He also defended the provisions of the impugned Act on the ground that they furthered public order. Since the Court was not called upon to decide whether the petitioner, as head of the religious community, actually held such power, it did not elaborate on Shri Shroff’s argument. The Court proceeded on the assumption that the petitioner did possess the power to excommunicate and limited its inquiry to the question of whether the provisions of the Act, insofar as they rendered the practice of excommunication invalid, were unconstitutional under Article 26 (b) and whether the legislature had the competence to enact them.

The petitioners asserted that the Bombay Prevention of Excommunication Act, insofar as it declares the practice of excommunication invalid, violates Article 26(b) of the Constitution and was enacted by a legislature that lacked the authority to do so. Consequently, the Court confined its examination to those two questions. To address the limited scope of the controversy, the Court first determined the reach and meaning of the impugned legislation. The Bombay Prevention of Excommunication Act, identified as Bombay Act XLII of 1949, was enacted to prohibit excommunication throughout the province of Bombay. Its preamble states that the Government had become aware that in certain communities the practice of excommunicating members often resulted in the deprivation of legitimate rights and privileges, and that, in the spirit of changing times and the public interest, it was deemed necessary to halt the practice. Section 2(a) defines “community” in a manner that includes the Dawoodi Bohra community, because its members are bound together by common religious doctrines and belong to the same religious creed, a subsection of the Shia Muslim community. The definition also extends to a caste or sub‑caste. Section 2(b) defines “excommunication” as the expulsion of a person from any community of which he is a member, thereby depriving him of rights and privileges that are legally enforceable in a civil suit. The accompanying explanation clarifies that such rights and privileges include the right to hold office, to own property, to worship in any religious place, and the right to burial or cremation, even where the determination of those rights depends entirely on the community’s religious rites, ceremonies, rules or usage. Section 3 declares that any excommunication of a community member is invalid and of no effect, regardless of any contrary law, custom or usage. Section 4 makes any act of excommunication, or any act furthering excommunication, a penal offence punishable on conviction by a fine that may extend to one thousand rupees. The explanation to this section provides that any person who votes in favour of an excommunication decision at a meeting of a body or association of a particular denomination is deemed to have committed the offence. Sections 5 and 6 prescribe the procedure for trying an offence under the Act, set the time limit within which prosecution must be initiated, and require prior sanction from the authority specified therein. These provisions together constitute the entirety of the impugned Act.

In this case, the Court observed that the short provisions of the Act which had been challenged were, in fact, the very provisions that formed the subject of the present dispute. The Court noted that the legislation represented the culmination of a long history of social reform that began more than a hundred years earlier. The first step in that historical trajectory was the enactment of section nine of Regulation VII of 1832 of the Bengal Code. That regulation provided, among other things, that the personal laws of Hindus and Muslims could not be allowed to deprive any party of property to which that party would have been entitled but for the operation of such personal laws. The Court then explained that the principles embodied in that regulation were later incorporated into the India Act of 1850, commonly known as the Caste Disabilities Removal Act. The Caste Disabilities Removal Act expressly stipulated that no person should be stripped of his or her rights or property merely because the individual renounced or was excluded from the communion of any religion or because the person was deprived of caste. It further directed that any such forfeiture could not be enforced as law in the courts.

The Court went on to say that the impugned Act gave full effect to modern ideas of individual freedom to choose one’s way of life and was intended to eliminate all outdated interferences with liberty of conscience, faith, and belief. According to the Court, the purpose of the Act was also to safeguard human dignity and to remove any restrictions that prevented a person from living his own life, provided that the person did not infringe upon the similar rights of others. In order to achieve these goals, the legislature took the logical final step of creating a new offence, thereby declaring that no one had the right to deprive another of civil rights simply because the latter failed to conform to a particular pattern of conduct. The Court explained that, in substance, the Act added a new offence to the penal law of the country by making punishable any action that effectively stripped a person of his human dignity and the rights attached to it. It also noted that the Act complemented the provisions of the Criminal Procedure Code by insisting that a previous sanction from the prescribed authority must be obtained as a condition precedent before a prosecution for an alleged offence under the Act could be launched.

Turning to the question of legislative competence, the Court expressed the view that, in its essential substance, the enactment fell within Entries 1 and 2 of List III of the Concurrent Legislative List of the Constitution Act of 1935. The Court acknowledged that the term “excommunication” does not appear as a specific entry in any of the three lists, but it also observed that the competence of the Bombay Legislature to enact the Act had not been seriously challenged before the Court. Consequently, no specific argument was presented that would demonstrate that the legislation could not be placed within the scope of Entries 1 and 2 of List III. The Court clarified that the serious challenge before it concerned the constitutionality of the Act in light of the Constitution, particularly with reference to Articles 25 and 26. The Court indicated that it would now address that aspect of the controversy, but first found it convenient to set out the background of the litigation that had led to the present proceedings.

In the earlier stages of the litigation, the Court referred to two reported cases that dealt with matters concerning Shia Imami Ismailis and the Dawoodi Bohra community. The first reported case, cited as Advocate General ex relation Dave Muhammad v. Muhammad v. Husen Huseni, was a suit initiated before the Bombay High Court came into existence and was originally heard on the Equity Side of the late Supreme Court. The action was commenced by an information and bill filed by relators and plaintiffs who represented a minority within the Khoja community, and it was filed against defendants who represented the majority of that same community. The prayer sought an account of all property that either belonged to or was held in trust for the Bombay Khoja community and that was in the possession of the treasurer and the accountant, who were respectively identified as the Mukhi and the Kamaria; additional reliefs were also claimed, although those were not relevant to the present controversy. The case was heard on the Original side by Justice Arnould, and after a prolonged hearing a judgment was delivered in November 1866. In that judgment the learned Judge provided a detailed historical overview of the various Muslim sects, including the Shia Imami Ismailis, and gave particular reference to the Aga Khan and his relationship with the Jamat of the Khojas of Bombay. The Judge concluded that there was no public property vested in a trust, either express or implied, for the benefit of the whole Khoja community, and that the Aga Khan, as the spiritual head of the Khojas, possessed the authority on religious grounds to determine who could or could not remain a member of the community. Referring to authoritative texts, the Judge also traced the origin of the Ismailis as an off‑shoot of the Shia tradition and outlined the hereditary succession of the unrevealed Imams in an unbroken line down to the Aga Khan. Apart from this historical exposition, the case did not address any issue that directly relates to the controversy now before this Court. The second reported case mentioned by the Court was Advocate General of Bombay v. Yusufalli Ebrahim, a matter that dealt directly with the Dawoodi Bohra community, which is the community at the centre of the present dispute. That case arose out of a disagreement concerning a mosque and a tomb, and it was heard by Justice Marten on the Original side in 1921. Although the Court does not discuss the specific details of that dispute, the learned Judge observed the historical background of the Dawoodi Bohra community, focusing especially on the position of the Dai‑ul‑Mutlaq. The Judge explained that the differences between the majority and the minority of the community originated from a controversy over the regularity of the succession of the forty‑seventh Dai in the year 1840. He further pointed out that the authority of the Dai‑ul‑Mutlaq is derived through at least three layers of delegation: first from God to the Prophet Muhammad, then from the Prophet to the Imam, and finally from the Imam to the Dai‑ul‑Mutlaq. These observations were presented as the more directly relevant material to the matters presently before the Court.

In this matter, the Court referred to the earlier dispute that had been resolved by the Judicial Committee of the Privy Council in the case of Hasanali v. Mansoorali (1). The controversy concerned the authority of the Dai‑ul‑Mutlaq to issue orders of excommunication. The petitioner in the present proceeding had been the first defendant in that earlier action, which had been initiated in October 1925. The Subordinate Judge of Burhanpur rendered a decision on 2 January 1931, and that decision was subsequently set aside by the Judicial Commissioner of the Central Provinces & Berar – later the High Court at Nagpur – by a judgment dated 25 October 1934. The aggrieved party appealed to the Privy Council, whose judgment briefly traced the history of the Dawoodi Bohra community up to the fifty‑first Dai, who was the first defendant in Hasanali v. Mansoorali and is now the petitioner before this Court.

The Privy Council examined the orders of excommunication that were being contested. Because of those orders, the plaintiffs had been prevented from entering the disputed property for worship, burial and use of the rest house. The Privy Council declined to accept the Dai‑ul‑Mutlaq’s claim of an unrestricted power of excommunication, although it recognised his status as Dai‑ul‑Mutlaq. The Court held that the power to excommunicate existed but was not absolute, arbitrary or untrammeled, and it set out specific conditions that must be satisfied for a valid exercise of that power. According to the Privy Council, a valid excommunication resulted in the exclusion of the affected persons from exercising religious rights in places that were under the trusteeship of the community’s head, because the Dai functioned both as a religious leader and as a trustee of the community’s property. After reviewing the evidence, the Privy Council concluded that the individuals alleged to have been excommunicated had not been properly expelled from the community. The judgment of the Privy Council was delivered on 1 December 1947. Within two years of that judgment, the challenged Act was enacted, and shortly thereafter the Bombay High Court received a suit on the original side – suit No. 1262 of 1949 – brought by a member of the Dawoodi Bohra community who had been excommunicated by the petitioner acting as Dai‑ul‑Mutlaq by two orders, one in 1934 and the other in 1948, the latter issued soon after the Privy Council’s decision. The suit sought, among other relief, a declaration that the orders of excommunication were void on account of the Act. At trial, which was presided over by Shah J., several issues were raised. Two preliminary questions, which are central to the present appeal, were presented to the learned Judge of the Bombay High Court: (1) whether the Act fell within the legislative competence of the Legislature of the Province of Bombay; and (2) whether, after the commencement of the Constitution, the Act was invalid in view of Articles 25 and 26 of that Constitution.

The two preliminary questions presented before the learned judge of the Bombay High Court were: (1) whether the Province of Bombay possessed the legislative competence to enact the impugned Act, and (2) whether, after the Constitution came into force, the Act was invalid in view of Articles 25 and 26 of the Constitution. After a detailed examination of the Constitution Act of 1935, the judge concluded that the Bombay Legislature was indeed competent to pass the Act and that the Act did not conflict with Articles 25 and 26, so it remained constitutional even after the Constitution became effective. An appeal against this finding was made to the Court of Appeal, where Chief Justice Chagla and Justice Bhagwati presided. The appellate court affirmed the lower court’s decision. The dissatisfied party then appealed to this Court in Civil Appeal 99 of 1954. While that appeal was pending, the original plaintiff died, and the Court held, without deciding the merits, that the suit giving rise to the appeal had abated because the cause of action was personal to the deceased plaintiff. Consequently, this Court issued an order dated 27 November 1957 dismissing the appeal as non‑maintainable. Subsequently, on 18 August 1958, a writ petition was filed by the petitioner, who identified himself as the fifty‑first Dai‑ul‑Mutlaq and head of the Dawoodi Bohra community. The petition sought a declaration that the Act was void insofar as it affected the petitioner and the Dawoodi Bohra community, and requested that, under Article 32 of the Constitution, the Court issue a writ of mandamus, a writ in the nature of mandamus, or any other appropriate direction restraining the respondent, its officers, servants and agents from enforcing any provision of the Act against the petitioner or the community, or from interfering with the petitioner’s right, as religious leader, to excommunicate any member of the community for an offence that he, in his religious capacity, may deem justifying such expulsion. It was undisputed that the petitioner is the head of the Dawoodi Bohra community and that the community constitutes a religious denomination within the meaning of Article 26. The State, the sole respondent, also did not dispute that, according to the Privy Council decision in Hasanali v. Mansoorali, the petitioner possessed the right to excommunicate a particular member of the community for reasons and in the manner set out by the Privy Council. The contention, however, is that the enactment in question has wholly prohibited excommunication, a prohibition that the Legislature was competent to impose and, according to the petitioner, does not infringe Articles 25 and 26. The Court has already indicated the view that the Bombay Legislature was competent to enact the Act; it now remains to consider the principal issue raised in the petition, namely whether the Act is void because it is repugnant to the guaranteed rights under Articles 25 and 26.

The Court first restated its view that the Bombay Legislature possessed the authority to enact the legislation in question, having settled that preliminary issue before turning to the principal matter raised by the petitioner in this case. The petitioner contended that the Act was void to the extent that it conflicted with the guaranteed rights under Articles 25 and 26 of the Constitution. Article 25, the Court observed, guarantees to every person, whether citizen or non‑citizen, the freedom of conscience and the right to freely profess, practise and propagate religion. However, the Court emphasized that this guarantee is not absolute and may be subject to several qualifications set forth in the Constitution. The Court identified public order, morality and health as one category of limitation on the freedom guaranteed by Article 25. Other limitations included the other provisions of Part III of the Constitution together with any existing law regulating or restricting economic, financial, political or other secular activities associated with religious practice. A law enacted for social welfare and reform also limits the freedom guaranteed by Article 25, as recognized by the Court. Furthermore, any law that the State may later make to regulate or restrict such activities or to provide additional social welfare and reform measures is likewise a permissible restriction. It was noted that the right under Article 25 is an individual right, distinct from the collective rights of a religious denomination or its sections, which fall under Article 26. Consequently, each member of the community enjoys the right, provided he does not interfere with the corresponding rights of others, to profess, practise and propagate his religion, and each person is guaranteed freedom of conscience. The Court then raised the question whether an individual could be compelled to adopt a particular belief under the threat of a penalty such as excommunication. It was held that a person is entitled to believe or not to believe any tenet and to follow or not to follow any practice in matters of religion. Accordingly, no one can be forced, against his own judgment and belief, to adhere to any particular creed or to observe a prescribed set of religious practices. The Constitution, the Court observed, leaves every person free in his relation to his Creator, if he believes in one. Thus, a person remains completely free to worship God according to the dictates of his conscience, as recognized by the Constitution. His right to worship as he wishes is unfettered provided it does not conflict with any restraints that the State may impose in the interest of public order or similar public concerns. A person is not required to answer for the truth of his religious views, and he may not be questioned by the State or any other person about his beliefs. Accordingly, although an individual's religious beliefs are entirely his own and his freedom to hold them is absolute, he does not possess an absolute right to act in any manner he pleases. His conduct in the exercise of those beliefs remains subject to the limitations that the Constitution and the State may impose. He has been guaranteed the

The Court explained that every person possessed the right to practise and propagate his religion, but that right was subject to the limitations previously mentioned. It held that this right to practise religion also had to comply with the criminal laws of the country, provided those laws were validly enacted and dealt with acts that the Legislature had declared to be penal offences. The Court observed that statutes passed by a competent legislature for the purpose of maintaining public order or similar public interests, and which placed restrictions on religious practices, fell within the State’s power to regulate. To illustrate, the Court noted that certain religious customs might involve the sacrifice of human beings or the sacrifice of animals in a manner that was harmful to the welfare of the community at large. In such circumstances, the Court said, the State was entitled, by means of legislation, to intervene, to regulate, and even to prohibit completely those harmful practices. Accordingly, the Court concluded that although the Constitution guaranteed each individual the freedom of conscience to hold any belief he chose, the actions taken in pursuit of those beliefs could be subject to restrictions that served the interests of the community as a whole, provided those restrictions were enacted through the common consent of a competent legislature. The Court further observed that, on humanitarian grounds and for the purpose of social reform, legislation had previously abolished certain so‑called religious practices. Examples of such abolished practices included the immolation of a widow on the funeral pyre of her deceased husband, the dedication of a young virgin girl to a deity to serve as a devadasi, and the ostracism of a person from all social and religious interaction because the individual had consumed food that was considered forbidden or taboo.

Nevertheless, the petitioner argued that the guarantee under Article 25, which assured freedom of conscience as well as the freedom to profess, practise and propagate religion, applied not only to an individual but also to the entire community when it acted through its religious head. Accordingly, the petitioner, in his capacity as the religious head, claimed that he possessed the authority to excommunicate any person who, in the petitioner’s view, contravened the beliefs and practices of the religion. The petitioner maintained that this power to excommunicate constituted a fundamental right that could not be curtailed by the impugned Act. In support of this position, the petitioner referred to observations made in a leading judgment of this Court concerning the interpretation of Articles 25 and 26, specifically the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. That judgment held that a religion might not only prescribe an ethical code for its followers but could also prescribe rituals, ceremonies, modes of worship and even matters of food and dress that were regarded as integral to the religion. The judgment further clarified that the constitutional guarantee protected not only the freedom of religious opinion but also acts performed in pursuit of a religion, as indicated by the expression “practice of religion” in Article 25. The petitioner relied on these passages to argue that the power to excommunicate formed an essential part of the religious practice of the community involved in the present controversy.

The Court observed that the petitioner argued that the practice of ex‑communication formed an integral part of the religion of the community involved in the present controversy and that Article 26 unequivocally guaranteed every religious denomination, or any section of it, the right “to manage its own affairs in matters of religion” under clause (b). The Court noted that determining what constitutes “matters of religion” is not a simple task, because the answer varies with the doctrinal tenets of each particular denomination. It pointed out that the phrase “matters of religion” in Article 26(b) and the expression “activities associated with religious practice” do not describe identical spheres. Purely religious matters lie outside State interference, except where public order, morality or health are at stake. By contrast, activities linked to religious practice may have economic, financial, political or other consequences, as recognised in Article 25(2)(a). Those activities therefore encompass a broader field than either Article 25(1) or Article 26(b), and the provisions must be interpreted so that they do not conflict with one another. Consequently, the Court said, it is necessary to classify practices into those that are essentially and purely religious and those that are not essentially religious. The petitioner contended that the determination of what is essentially religious should rest with the denomination itself, relying on the observations in the leading case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, which held that constitutional freedom of religion extends beyond belief to include religious practices, subject to constitutional restrictions, and that under Article 26(b) a religious denomination enjoys complete autonomy in deciding which rites and ceremonies are essential according to its tenets, without external authority to intervene. The Court clarified that the autonomy granted by Article 26(b) pertains to “matters of religion,” which the Court has interpreted to include those rites and ceremonies deemed essential by the denomination’s tenets. However, Article 26(b) also implies that a denomination must address matters connected with religion, such as establishing rules for members, prescribing penalties for breaches, and managing communal property. Accordingly, the Court concluded that a line must be drawn between practices that consist of rites and ceremonies integral to the particular form of worship prescribed by the religion, and other matters that, while related to the religious institution, are not intimately tied to the essential rites and ceremonies of the faith.

The Court explained that a distinction must be drawn between practices that consist of rites and ceremonies that are integral to the worship of a religious community, and practices that touch the religious institution in various ways but are not intimately connected with the essential rites and ceremonies of that religion. In support of this distinction, the Court cited its earlier observations in The Durgah Committee, Ajmer v. Syed Hussain Ali (1), which referred to previous decisions 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). Those decisions held that “matters of religion” under Article 26(b) include even those practices that the community regards as part of its religion, but only if they are deemed essential and integral to the faith. The Court cautioned that if a practice is not essential or integral, it cannot be cloaked in a religious form merely to claim protection under Article 26; likewise, practices that have arisen from superstitious beliefs may be extraneous accretions and must be scrutinised before receiving constitutional protection. The protection, therefore, is confined to those religious practices that are essential and integral, and no others. The Court then addressed the argument that a religious denomination, being a quasi‑personality, must lay down rules for its members and impose sanctions, such as the right to excommunicate a recalcitrant member. It noted that the Privy Council, in Hasanali v. Mansoorali (1), had held that the power of excommunication was a religious power exercisable by the Dai. However, the Court opined that the passages of the Privy Council judgment did not establish that this right was purely religious. The Court pointed out that the Judicial Committee of the Privy Council later prescribed the procedure for expulsion, requiring that it be carried out according to justice, equity and good conscience, making it justiciable. A matter that is purely religious cannot fall within the jurisdiction of the courts. This conclusion was reinforced by the observation that the consequences of excommunication or expulsion extend beyond worship to include exclusion from burial rights and other property interests of the community, which are civil disputes rather than purely religious matters.

In this case, the Court observed that when a person is expelled from the community, the effect of that expulsion is that the individual loses the ability to enjoy rights not only relating to places of worship but also rights such as burial of the dead in the community burial ground and other property rights belonging to the community. Those matters are civil disputes and they are not purely religious issues. The Court noted that in the matter before the Privy Council, the Privy Council examined the regularity of the proceedings that led to the challenged excommunication and concluded that the plaintiff had not been validly expelled. Accordingly, it cannot be said that the Privy Council treated excommunication as a matter of pure religion. If the matter were purely religious, the courts would have been outside the controversy. The same line of argument was presented in another form by contending that excommunication is not a social question and therefore Article 25(2)(b) could not be invoked to support the constitutionality of the Act. The Court pointed out that the Dai‑ul‑Mutlaq is not only the head of the religious community but also the trustee of the community’s property, which is of interest to the whole community. Even a theological head must perform acts that are not wholly religious but may be described as quasi‑religious or connected with religious practice, though not purely religious. The Court held that actions of the Dai‑ul‑Mutlaq that are purely religious are outside the jurisdiction of the courts, but actions that affect the civil rights of community members are justiciable and may be subject to legislative or judicial interference. The Court declared that it was not called upon, nor competent, to decide what constitutes a religious matter in which the Dai‑ul‑Mutlaq acts according to his religious sense; its concern was limited to the civil aspect of the controversy relating to the constitutionality of the Act. It further noted that the petitioner argued that an excommunicated person loses the right to pray in the mosque, to bury his dead in the community burial ground, or to use other communal property. While those consequences may follow from excommunication, the Court’s focus was on whether the Legislature was competent and constitutionally justified in enacting a law that declares excommunication void. The Court reiterated that it was not concerned with the purely religious aspect of excommunication, but only with the civil rights of community members, rights that they would continue to enjoy if excommunication were held invalid under the Act. Consequently, although the Act may affect the religious dimension of excommunication, insofar as it protects the civil rights of community members it does not exceed the limits of Article 25(2)(b) of the Constitution.

The Court observed that the legislation had not exceeded the limits set by Article 25 (2) (b) of the Constitution. It was submitted that the Constitution guarantees a religious denomination the right to manage its own religious affairs under Article 26 (b), and that this guarantee is subject only to considerations of public order, morality and health, and not to the type of legislation contemplated by Article 25 (2) (b). The same argument had been advanced in Shri Venkataramana Devaru v. The State of Mysore. At page 916 of that decision the argument was specifically examined and rejected. The Court in that case stated that it was impossible to read any limitation into the language of Article 25 (2) (b). The provision applied, in terms, to all religious institutions of a public character without any qualification or reservation. Public institutions were described not merely as temples dedicated to the public at large but also as institutions founded for the benefit of particular sections, and denominational temples were included within that category. The Court held that the language of the article was plain and unambiguous, and that it could not be read into it restrictions that were not expressed, based on speculative reasoning about the legislature’s probable intention. The Court explained that the legislature’s intention could be gathered only from the words actually used in the statute; what was unexpressed in the statute held the same weight as what was unintended. Consequently, the Court concluded that denominational institutions fell within the scope of Article 25 (2) (b). In that case, as in the present matter, reference was made to the earlier judgment of the Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. The earlier decision had clarified the legal position by referring to the prior case, and after considering the arguments for and against the proposition on pages 916‑918, it distinctly laid down that Article 26 (b) must be read subject to Article 25 (2) (b) of the Constitution.

The petitioners also contended that a person who had been excommunicated because of non‑conformity to religious practices was not entitled to use the communal mosque, the communal burial ground, or any other communal property, and that, for all practical purposes, such a person was no longer to be treated as a member of the community, effectively rendering him an outcast. They further argued that excommunication resulted in other members of the community being unable to have any social or religious contacts with the excommunicated individual. While the Court acknowledged that these statements were true, it emphasized that the Act was intended to eliminate the mischief of treating a human being as a pariah and of depriving him of human dignity and the freedom to follow his own conscience. The Court therefore held that the Act was aimed at fulfilling the individual liberty of conscience guaranteed by Article 25 (1) of the Constitution, and was not a derogation of that right. Insofar as the Act affected the petitioner’s rights as trustee of communal property, the Court noted that the Act could be placed under the protection of Article 26 (d), meaning that his right to administer the property was not being questioned, but that he was required to administer it in accordance with law. The law, in the present case, directed the petitioner not to withhold the civil rights of a community member in relation to communal property. The petitioners argued that the right to excommunicate was intrinsically linked to religion and thus protected by clause (b) of Article 26, placing it beyond the regulation of law in accordance with clause (d) of the same article. However, the Court was not satisfied, based on the pleadings and the evidence presented, that the right of excommunication was a purely religious matter.

The Court observed that the petitioner’s right to manage communal property could be protected under Article 26 (d) of the Constitution, because his authority to administer such property was not itself in dispute, merely the manner of that administration. The law, as applied in the present case, required the petitioner not to deny a member of the community his civil rights in relation to the communal property. The petitioner, however, contended that his power to excommunicate a member was an intrinsic religious function, covered by clause (b) of Article 26 and therefore completely beyond the reach of any statutory regulation, invoking clause (d) to argue that the law could not intrude upon that religious right. The Court was not persuaded by this argument. After reviewing the pleadings and the evidence, it concluded that the right of excommunication was not a purely religious matter. The Court noted that the judgment of the Privy Council in Hasanali v. Mansoorali (1), which the petitioner relied upon, actually supported the opposite view. On the social dimension, the Court remarked that an excommunicated individual effectively becomes an untouchable within his community, and that the Act’s declaration of such practices as void implements the strict prohibition contained in Article 17 of the Constitution, which abolishes untouchability and forbids any form of its practice. Article 17 further provides that enforcing any disability arising from untouchability constitutes an offence punishable by law. Consequently, the Act was seen as a logical extension of this constitutional mandate and, in the Court’s opinion, must be upheld. The Court also found no proof that the legislature which passed the Act lacked competence to legislate on the subject, nor that the Act infringed any constitutional provision. Accordingly, the petition was dismissed.

Justice Das Gupta, however, expressed a contrary view. He held that the petition should be granted. He explained that the petitioner was the head of the Dawoodi Bohra community, a sub‑sect of the Shia branch of Islam. The Dawoodi Bohra belief holds that since the twenty‑first Imam entered seclusion, the authority of the Imam has been exercised by the Dai‑ul‑Imam, who serves as the vice‑regent of the Imam in seclusion. One of the powers traditionally vested in the Dai‑ul‑Imam is the disciplinary authority, including the power to excommunicate any member of the community. This right of the Dai‑ul‑Mutlaq, often referred to simply as the Dai, had been examined by the courts in a case that reached the Privy Council, and the decision in Hasanali v. Mansoorali (1) had, in the Court’s view, finally settled the question. The Court noted that after the Privy Council’s decision, it was no longer open to dispute that the Dai, as the head of the Dawoodi Bohra community, possessed the right to excommunicate any member. The petitioner’s claim to be the fifty‑first Dai‑ul‑Mutlaq had also been upheld in that case and was not contested. The Privy Council had further considered whether the excommunication power could be exercised arbitrarily and, after reviewing historical practice and a document from around 1200 A.D., concluded that expulsion should occur only after a meeting of the Jamat, with due warning, an opportunity to remedy the fault, and a public statement of the grounds. The Council observed that excommunication necessarily entails exclusion from the exercise of religious rights in places under the trusteeship of the community head where religious rites are performed. Justice Das Gupta noted that the present petitioner had been a party to that earlier litigation. Based on this reasoning, he concluded that the petition deserved to succeed.

The Court noted that the Privy Council had earlier held that the Dawoodi Bohra community possessed the authority to expel any of its members. The Council also affirmed that the petitioner’s claim to be the fifty‑first Dai‑ul‑Mutlaq was established and no longer contested. In that earlier case the Privy Council examined whether the Dai could exercise the power of excommunication in any manner he chose. After reviewing previous instances of excommunication and a document dating from about 1200 A.D., the Council concluded that ordinary members could be expelled only after a meeting of the Jamat, after they had received a proper warning of the alleged fault, an opportunity to remedy it, and a public statement of the reasons for expulsion. The Lords further observed that excommunication necessarily entailed exclusion from the exercise of religious rights in places under the trusteeship of the community’s head where religious rites were performed. The petitioner had been a party to that litigation, and the decision was rendered on 1 December 1947. Shortly thereafter the Legislature of Bombay, acknowledging the large concentration of Dawoodi Bohras within the State, enacted the Bombay Prevention of Excommunication Act No. XLII of 1949. The Act comprised six short sections. Section 3, the operative provision, declared all excommunications of members of any religious community to be invalid. Section 2 defined excommunication as the expulsion of a person from any community of which he was a member, depriving him of rights and privileges that could be legally enforced by a civil suit on his behalf as a member. The accompanying explanation clarified that rights to office, property, worship in any religious place, as well as rights to burial or cremation, were included among those legally enforceable rights, even though the determination of such rights might depend entirely on the community’s religious rites, ceremonies, rules, or usage. Section 4 imposed a penalty of up to one thousand rupees on any person who performed an act amounting to excommunication or who acted in furtherance of such an expulsion.

Facing legislation that entirely eliminated his traditional authority to excommunicate members of the Dawoodi Bohra community, the petitioner filed a petition under Article 32 of the Constitution. He contended that the Act infringed upon the fundamental right of the Dawoodi Bohras, including himself, to freely practice their religion in accordance with their own faith and customs, a right guaranteed by Article 25 of the Constitution. He further argued that the Act violated the community’s constitutional protection to manage its own religious affairs, a right secured by Article 26. Accordingly, the petitioner sought a declaration that the Bombay Prevention of Excommunication Act was void and that a writ should restrain the State of Bombay, its officers, servants, and agents from enforcing the provisions of the Act against him or any other member of the Dawoodi Bohra community.

In this case, the petitioner maintained that the Bombay Prevention of Excommunication Act of 1949 was void on the ground of Article 26 and therefore asked the Court to declare the Act null and void. He also prayed for the issuance of an appropriate writ restraining the State of Bombay, together with its officers, servants and agents, from enforcing any provision of the Act against him or against any other member of the Dawoodi Bohra community. It was further pointed out that the petition also challenged the legislative competence of the Bombay Legislature to enact the said Act, although that particular challenge was not pressed during the hearing.

The respondent, representing the State, contended that the Act did not violate either the right guaranteed by Article 25 or the right guaranteed by Article 26(b) of the Constitution. In brief, the State’s case was that the petitioner, in his capacity as Dai‑ul‑Mutlaq, possessed the privilege to regulate the exercise of religious rights, but that such privilege did not extend to the power to excommunicate a person in a manner that would strip him of his civil rights and privileges. The State denied that the petitioner’s alleged power to excommunicate formed an essential part of the Dawoodi Bohra religion, nor that such a power derived its foundation from the doctrines, tenets or faith of that community. Additionally, the State asserted that the right to excommunicate was not a religious practice at all, and even assuming, for argument’s sake, that it could be characterised as a religious practice, it was certainly not a part of the Dawoodi Bohra religion.

The same contentions were advanced on behalf of the intervener. The counsel for the intervener, however, expressed a desire to reopen the question of whether the petitioner, as the head of the Dawoodi Bohra community, possessed the authority to excommunicate any member. As already indicated, that question was regarded as essentially settled by the Privy Council decision in Hasanali v. Mansoorali, and consequently the point was not pressed further.

The Court observed that the scope and content of Articles 25 and 26 of the Constitution had previously been examined in a series of decisions, including Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt, Mahant Jagannath Ramanuj Das v. The State of Orissa, Sri Venkatamana Devaru v. The State of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali and several other cases. Those decisions had placed the principal principles underlying those constitutional provisions beyond controversy. The first principle held that the protection afforded by Articles 25 and 26 was not confined solely to matters of doctrine or belief; it also extended to acts performed in pursuance of religion and thereby guaranteed rituals, observances, ceremonies and modes of worship that are integral to a religion. The second principle declared that the identification of what constitutes an essential part of a religious practice must be decided by the courts, with reference to the doctrine of the particular religion and the practices that the community regards as part of its religion. Before the Court could give a proper answer to the two questions raised, namely (i) Has

In order to determine whether the impugned Act infringed the right of individuals to practice religion freely and whether it interfered with the Dawoodi Bohra community’s authority to govern its own religious matters, the Court first considered the significance of excommunication within a religious community. The Court noted that a detailed discussion of this subject was provided in an article published in the Encyclopaedia of the Social Sciences and authored by Professor Hazeltine. Professor Hazeltine observed that the term “excommunication,” in whatever sense it is employed, has historically served as one of the chief mechanisms for maintaining discipline inside religious bodies and for preserving and strengthening the solidarity of those bodies across all civilizations. He illustrated this point by referring to the Druids of ancient Britain, who are said to have claimed the power to exclude offenders from participation in sacrifice.

The Court then turned to the early Christian Church, recalling that it exercised the power of excommunication extensively. The early Church expelled and excluded from its association those members who were deemed unworthy of its aims or who violated its rules of governance. During the medieval period, the Pope regularly employed excommunication to secure compliance with what was considered the proper religious rights and practices of Christianity. The Pope even excommunicated some European monarchs when those rulers attempted to introduce alternative forms of divine worship. The Court remarked that, although the power was sometimes used not entirely fairly or justly, it functioned as a weapon in the struggle to uphold the principle that the Church stood above the State. Impartial historians, the Court observed, have recognised that many instances of excommunication were intended to secure adherence to the orthodox creed and doctrine of Christianity as articulated by the Catholic Church. The Court cited the Catholic Encyclopedia, volume V, articles on England and Excommunication, as supporting this view.

Next, the Court examined canon law, noting that excommunication could be imposed as a penalty for a number of offences, the most serious being heresy, apostasy or schism. According to Canon 1325, section 2, a heretic is defined as a person who, while still nominally a Christian, stubbornly denies or doubts any of the truths that must be believed “de fide divina et catholica.” If a person abandons the Christian faith entirely, he is classified as an apostate, and if he rejects the authority of the Supreme Pontiff or refuses communion with those members of the Church subject to the Pontiff, he is termed a schismatic. The Court referred to the work “Canon Law” by Bouscaren and Ellis for this definition.

The Court further observed that the right of excommunication is not confined to Christianity. Among Muslims, the practice of excommunication has been traced to the earliest periods. The Prophet and the Imam possessed this right, and it is undisputed that the Dais, as religious leaders of the Dawoodi Bohra community, have also exercised it on several occasions in the past. Consequently, the Court concluded that there is little doubt that heresy or apostasy constituted crimes for which excommunication could be applied among the Dawoodi Bohras as well.

Finally, the Court mentioned that excommunication was a central issue in the case of Hasanali v. Mansoorali, a decision upheld by the Privy Council. In that case, the authority to excommunicate was exercised on the basis of the parties’ failure to comply with the tenets and

The petitioner asserted that within the Dawoodi Bohra community the authority to pronounce excommunication formed an essential component of the community’s religion, faith and belief, and that such authority should be exercised by the Dai in appropriate cases. It was submitted that even if the power to excommunicate were characterised merely as a religious practice distinct from religious faith, that practice nevertheless remained a part of the Dawoodi Bohra religion. The petitioner further observed that unquestioning loyalty to the Dai as the head of the community formed an integral element of the Dawoodi Bohra creed. The historical origins of the Dai’s extraordinary status were deemed unnecessary to explore, because it was not seriously contested that the Dai is regarded as the vice‑regent of the Imam while the rightful Imam remains in seclusion. In this context the petitioner highlighted the Mishak oath taken by every Dawoodi Bohra at the time of initiation, which includes an oath of absolute faith and loyalty to the Dai. Consequently, the petitioner argued that belief in the Dai’s disciplinary power, including his power to excommunicate, constituted one of the religious tenets of the community. On this basis the petitioner contended that the impugned Act violated Article 25 of the Constitution, asserting that excommunication is a religious practice of the community. Regarding Article 26(b), the petitioner maintained that excommunication formed an integral part of the community’s self‑management by its religious head, and that any interference with that power amounted to interference with the community’s constitutional right to manage its own religious affairs. The Court then considered whether the impugned Act contravened the provisions of Article 26(b). The Court noted that it was unnecessary to decide whether every instance of excommunication by the Dai, regardless of its basis, fell within the sphere of religion. However, the Court found it clear that an excommunication based on religious grounds—such as abandonment of the orthodox creed, heresy, apostasy, schism, or breach of a practice regarded as essential by the Dawoodi Bohras—served the purpose of preserving the strength of the religion. Accordingly, the exercise of the Dai’s excommunication power on such religious grounds formed part of the community’s management of its own affairs in matters of religion. By rendering even such religiously grounded excommunications invalid, the impugned Act removed the Dai’s authority to excommunicate on religious grounds and therefore clearly interfered with the Dawoodi Bohra community’s right protected under Article 26(b).

The Court observed that the Dawoodi Bohra community was protected under clause (b) of Article 26 of the Constitution. It acknowledged without dispute that excommunicating a member of a community inevitably interferes with many of that individual’s civil rights. The Dawoodi Bohra denomination owned property, and the natural consequence of an excommunication would be that the excluded person would lose the right to enjoy that property. The Court recognized that it might appear undesirable for the head of a religious community to possess the power to deprive a person of civil rights in this manner. However, the Constitution does not condition the right granted under Article 26(b) on the preservation of civil rights. The only explicit limitation in Article 26 is that the right, in all its clauses, operates subject to the concerns of public order, morality and health. The Court referred to its earlier decision in Sri Venkataramana Devaru v. State of Mysore, where it held that the right under Article 26(b) is further subject to clause 2 of Article 25 of the Constitution. The Court then indicated that it would examine whether these constitutional limitations on a religious community’s authority to manage its own religious affairs might support the validity of the impugned Act.

The Court further noted that, apart from the limitations mentioned, the Constitution imposes no restriction on a religious community’s power to regulate its own religious matters. Consequently, the fact that the exercise of the fundamental right under Article 26(b) affects a person’s civil rights does not, in itself, constitute a barrier to that right. The Court also found no basis to claim that excommunication is harmful to public order, morality or health. Although the respondent’s counter‑affidavit contained a statement that any religious practice contrary to public order, morality or health should yield to the public good, the Attorney‑General did not advance any argument supporting this contention. The Court therefore proceeded to evaluate whether the impugned Act fell within the saving provisions of clause 2 of Article 25, which states: “Nothing in this Article shall affect the 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 opening of Hindu religious institutions of a public character to all classes and sections of Hindus.” The Court concluded that the Act could not be classified as legislation regulating or restricting any secular activity, a point not even suggested by the State. While there was a faint suggestion that the Act might be intended as a law “providing for social welfare and reform,” the Court held that the mere possibility that certain civil rights might be forfeited by members of the Dawoodi Bohra community as a result of excommunication on religious grounds does not suffice to treat the Act as legislation aimed at social welfare or reform.

The Court observed that merely preventing the loss of civil rights that might otherwise occur through excommunication does not, by itself, establish that the Act constitutes a law “providing for social welfare and reform.” While a prohibition of excommunication imposed for reasons other than religion—such as a breach of an objectionable social rule—could be viewed as a measure of social reform and might conceivably fall within the saving clause 2(b) of Article 25, a blanket ban on excommunication when it is based solely on religious grounds cannot be said to advance social welfare or reform. Consequently, the provision of the Act that nullifies excommunication on religious grounds and removes the Dai’s authority to impose such excommunication cannot be regarded as a social‑welfare measure. Because the Act invalidates excommunication on any ground, including religious ones, the Court held that it directly contravenes the right of the Dawoodi Bohra community guaranteed under Article 26(b) of the Constitution. The Court found it unnecessary to address the alternative challenge based on Article 25. It concluded that the Act is void for violating Article 26. The Court expressly rejected the Bombay High Court’s contrary view in Taher Saifuddin v. Tyebbhai Moosaji. Accordingly, the petition was allowed, the Act was declared void, and a writ of mandamus was issued directing the State of Bombay not to enforce the provisions of the Act. The petitioner was awarded costs.

Justice Ayyangar expressed agreement that the petition must succeed and largely concurred with Justice Das Gupta’s reasoning. Owing to the significance of the matter, he chose to set out his own grounds for concurrence. He noted that it was undisputed that the Dawoodi Bohras, a sub‑sect of the Shia branch of Islam, constitute a “religious denomination” within the opening words of Article 26. He identified several additional points that were not contested and that framed the petitioners’ contentions. First, it was an accepted tenet of the Dawoodi Bohra faith that God eternally appoints a representative on earth to convey divine commands to the faithful; this representative is the Imam, and the Dai acts as the Imam’s emissary, delivering God’s message to the people. The Dai’s powers were considered approximated to those of the Imam, and these powers would cease when the Imam emerged from seclusion. The chain of intercession was described as the Dai, the Imam, the Holy Prophet, and finally the one God, as noted in the judgment of Justice Per Marten in Advocate General of Bombay v. Yusufalli Ebrahim. Second, the position and status of the petitioner as the Dai‑ul‑Mutlaq was not in dispute, having been upheld by the Privy Council in the decision reported as Hasanali v. Mansoorali.

The Court observed that the status of the Dai‑ul‑Mutlaq was not open to dispute because it had previously been affirmed by the Privy Council in the decision reported as Hasanali v. Mansoorali. The Court noted that the Privy Council had explicitly recognized the Dai‑ul‑Mutlaq as the legitimate representative of the community’s spiritual authority. Moreover, the Court stated that, subject to certain limitations and formalities identified by the Privy Council in the same case, the Dai‑ul‑Mutlaq possessed the power to excommunicate members of the community. In support of this proposition, the Court quoted Lord Porter’s remark that while the very right of excommunication by a Dai‑ul‑Mutlaq was not vigorously contested, the precise limits within which that right could be exercised were indeed the subject of considerable debate. The Court further emphasized that the Dai‑ul‑Mutlaq was not merely a religious figurehead or the head of the denomination; he also acted as the trustee of the community’s property, thereby holding a dual role that combined spiritual leadership with fiduciary responsibility for communal assets.

Turning to the historical practice of the community, the Court recounted that individuals who had been excommunicated were historically deprived of the exercise of their religious rights. The Court recalled that, before the Privy Council, the argument had been advanced that the effect of excommunication was limited to social ostracism. However, the Privy Council rejected that narrow view and held that excommunication produced a broader consequence, namely the exclusion of the excommunicated person from the enjoyment of property dedicated for the benefit of the denomination and from participation in worship at places that had been set apart for that purpose. Consequently, the Court held that any assessment of the validity of Bombay Act 42 of 1949—hereinafter referred to as the impugned Act—must be undertaken in the light of these admitted premises concerning the nature and scope of the Dai‑ul‑Mutlaq’s authority. The Court then set out the relevant constitutional provisions that were alleged to have been infringed by the impugned Act. Article 25 provides, in subsection (1), that subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. Subsection (2) adds that nothing in this article shall affect the 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 that may be associated with religious practice; or (b) providing for social welfare and reform or opening Hindu religious institutions of a public character to all classes and sections of Hindus, with explanations extending the reference to Hindus to include Sikhs, Jains and Buddhists and similarly construing references to Hindu religious institutions.

Article 26, likewise subject to public order, morality and health, guarantees that every religious denomination or any section thereof shall have the right to (a) establish and maintain institutions for religious and charitable purposes; (b) manage its own affairs in matters of religion; (c) own and acquire movable and immovable property; and (d) administer such property in accordance with law. The Court added that these articles embody the principle of religious toleration, which has been a defining feature of Indian civilisation since ancient times, and that the occasional lapses in this tradition have been only temporary aberrations.

The Court observed that the occasional lapses in religious tolerance were merely temporary aberrations and that such lapses highlighted the secular character of Indian democracy, which the founders of the Constitution intended to be its foundation. The Court then turned to the specific provisions of the statute that were alleged to violate the rights guaranteed by Articles 25 and 26. The preamble of the challenged Act was quoted in full: “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, identified as the operative clause, declared: “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 made it an offence to do any act that amounted to or furthered an excommunication, and it provided for criminal proceedings under Sections 5 and 6. Section 2 supplied two essential definitions. First, it defined “community” to include the religious denomination of the Dawoodi Bohras. Second, it defined “excommunication” 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; 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 Court framed the issue as whether a law that penalises excommunication by a religious denomination or its head—regardless of whether the excommunication is based on non‑conformity to the essential doctrines of that denomination—and that nullifies the excommunication with respect to the rights of the excommunicated person, would infringe the guarantees contained in Articles 25 and 26.

Regarding Article 25, the Court noted that there was no dispute that the provision protected not only the freedom to entertain religious beliefs but also the actions performed in accordance with those beliefs, a point made clear by the inclusion of the term “practice of religion.” The Court affirmed that the right to freedom of conscience, as well as the right to profess, practise, and propagate religion, were subject to the permissible restrictions of public order, morality, health, and other provisions of the Constitution. However, the Court observed that no argument had been advanced to suggest that the penal provision, even if it affected the practice of excommunication, necessarily conflicted with those permissible restrictions. The discussion was left open for further analysis of whether the statute’s impact on religious practice fell within the ambit of the allowable limitations contemplated by Article 25.

The Court observed that the question before it did not involve a measure of social reform; consequently, the practice of excommunication was not said to offend public order, morality, health, or any other provision of the Constitution. The denomination in question fell within the scope of Article 26. Its spiritual leader, the Dai‑ul‑Mutlaq, served as the religious head of the denomination, and according to the denomination’s tenets the Dai‑ul‑Mutlaq possessed the authority to excommunicate dissenters. The Court found it necessary to examine the rational basis for excommunicating individuals who reject the fundamental tenets of a faith. It held that the identity of a religious denomination is rooted in its doctrines, creeds and tenets, which are intended to preserve the unity of the faith professed by its adherents. These religious views constitute the bonds that bind the community together as a single body. Referring to the observation of Smith B. in Dill v. Watson, quoted by Lord Halsbury in Free Church of Scotland v. Overtoun, the Court explained that without conformity to essential doctrines a denomination would lack the solid unity provided by harmonious uniformity of opinion and would instead resemble a disjointed collection of isolated ideas, lacking true cohesion. Accordingly, a denomination falling under Article 26 and its members, protected by Article 25, have a right to ensure the continuity of the denomination. Such continuity, the Court explained, is achievable only by maintaining religious discipline that secures members’ adherence to essential beliefs, doctrines, tenets and practices. The right to continued existence includes the authority to enforce discipline, which may involve excommunicating those who deny the fundamental foundations of the religion.

The Court further noted that the exercise of this disciplinary power necessarily entails excluding the excommunicated individual from participation in the religious life of the denomination. This exclusion extends to the use of places of worship and consecrated burial grounds that are reserved for the denomination’s members and are held in trust by the religious head for the denomination. The Attorney‑General, appearing for the respondent, put forward three submissions. First, he argued that even if excommunication formed part of the denomination’s religious practice, the petition did not allege that the civil consequences of excommunication—specifically the denial of access to denominational property—constituted a matter of religion. In other words, he claimed there was no pleading that the deprivation of civil rights of an excommunicated person was part of religious practice. Second, he contended that the definition of “excommunication” in the Act related to civil rights distinct from religious or social rights and obligations, and therefore a law addressing the civil consequences of excommunication did not infringe the freedoms guaranteed by Articles 25 or 26. Third, he maintained that even if the civil consequences of excommunication were considered a matter of religion, the legislation represented a measure of social reform and would thus be saved by the clause in Article 25(2)(b). The Court indicated its inability to accept any of these three contentions as correct.

The Attorney‑General argued that the statute in question regulated only civil rights, which are separate from religious or social duties, and therefore a provision dealing with the civil effects of excommunication did not infringe the freedoms safeguarded by Article 25 or Article 26. He further contended that even if the civil outcomes of excommunication were regarded as matters of religion, the legislation represented a measure of social reform and would consequently be protected by the qualification in Article 25(2)(b). The Court could not accept any of these submissions.

First, the Court observed that the pleadings did raise, sufficiently, the issue that when excommunication forms part of a religious practice, the repercussions that follow are likewise integral to that practice. The position that the Dai is the undisputed religious head of the denomination, that his authority to excommunicate was not contested, and that places of worship and burial grounds were expressly allocated for the denomination’s members, led the Court to conclude that it was logical that a person who had been excommunicated would lose the entitlement to use such properties. The Court found it untenable to argue that the deprivation of the use of these properties could be separated from the religious act of excommunication that caused the loss of community membership. If property belongs to a community and a person is expelled from that community by excommunication, it is difficult to see how his right to enjoy that property could be divorced from the religious act that caused his exclusion. Once it is accepted that the guarantee in Article 25(1) extends beyond mere freedom of conscience—encompassing the right to practice religion—the consequences of that practice must receive the same constitutional protection.

Second, the Court indicated that it would address later the argument that the legislation was saved as a matter of social reform under Article 25(2)(b). For the present discussion, the Court turned to the claim that the impugned Act was valid because it dealt solely with the civil consequences of excommunication. The Court noted that while section 2(b) of the Act defines “excommunication” by describing the civil consequences that flow from it, this definition serves only to explain the term and does not limit the Act’s scope to civil effects alone. The Court emphasized that the statute does not confine its operation to merely the civil repercussions while ignoring other consequences of excommunication that may fall within the statutory definition. Consequently, the argument that the Act concerns only civil rights of the excommunicated person was rejected.

In the present case the Court examined the definition and considered 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 section 4 because, according to the law of that denomination, the consequence would be the exclusion of the excommunicated person from civil rights. The learned Attorney‑General’s submission that the Act was concerned only with the civil rights of the excommunicated person was therefore incorrect. On the other hand it was correct to state that the Act dealt with excommunications that might have religious significance but that also operated to deprive persons of their civil rights. Article 26 conferred on every religious denomination two rights relevant in the present context: clause (b) gave the right “to manage its own affairs in matters of religion” and clause (d) gave the right “to administer such property” which the denomination owned or had acquired, subject to clause (c) and clause (d) that such administration be “in accordance with law.” In considering the scope of Article 26 the Court kept two basic postulates in mind. First, a religious denomination possessed property that was dedicated for definite uses and, under clause (d), the denomination had the right to administer that property. From this it followed that, subject to any law grounded on public order, morality or health, the denomination retained the right to have the property used for the purposes for which it was dedicated. As to the facts before the Court, the management of the property and the duty to ensure its proper application were admittedly vested in the Dai as the religious head of the denomination. Clause (d) required that administration of the property be “in accordance with law.” The learned Attorney‑General suggested that a valid law could be enacted permitting the diversion of those funds to purposes that the legislature in its wisdom thought fit to appropriate. The Court was wholly unable to accept this argument. A law that provided for or permitted the diversion of the denomination’s property for the use of persons who had been excluded from the denomination would not be a law contemplated by clause (d) of Article 26. Setting aside for the moment the right of excommunicated persons to enjoy property dedicated for the use of the denomination, the Court considered a person who had renounced the religion. It was observed that even in the Dawoodi Bohra denomination an apostate did not automatically lose all rights; apostasy was a ground for excommunication, which could be effected without service of notice or an enquiry. Nevertheless it could not be contended that an apostate was entitled to the beneficial use of property dedicated to the Dawoodi Bohra community, such as the mosque where

The Court observed that worship may continue in a mosque or other places of worship, and that property such as consecrated burial grounds also belongs to the religious denomination. It held that if the Dai, as the supreme head of the faith, allowed an apostate to use any of that property without first excommunicating the person, the Dai would be neglecting his duty, committing an act of sacrilege, and breaching the trust placed in him. The Court further stated that it required no elaborate argument to show that a statute which authorized or compelled the use of denomination property by an apostate would amount to an unauthorized diversion. Such a diversion, the Court said, would contravene Article 26(d) as well as Article 26(c) of the Constitution, and would also infringe the guarantee of freedom of religion contained in Article 25(1). The judgment then turned to the second fundamental premise, namely the position of the Dai as the head of the religious community and the conduit through which spiritual grace is conveyed to its members. The Court explained that this role forms the central pillar of the religion and is one of its principal articles of faith. Consequently, any denial of the Dai’s authority would amount virtually to a denial of the very foundation on which the denomination rests. The Court concluded that the challenge to the constitutionality of the impugned Act must be assessed on the basis of these two core propositions.

The Court also traced the historical origins of excommunication, noting that the practice is ancient. It referred to records from pagan times, to the poet Aeschylus who described the exclusion of an offender whose hands had been stained with blood from purification with holy water, and to later claims by the Druids to exclude offenders from sacrifice. The Court acknowledged that similar customary exclusions existed among primitive Semitic tribes, but it deemed a detailed discussion of those early customs unnecessary. It observed that, with respect to Muslims and, more specifically, the denomination involved in the present petition, the relevant material had already been set out in the cited judgment of the Privy Council. The Court then explained that excommunication may be understood in two respects. First, it can serve as a punitive measure imposed by a religious community to remove a person from its fold for conduct that the community justifies as criminal. In a theocratic State, the Court noted, this punitive aspect may be emphasized to the extent that religious officials effectively administer aspects of ordinary civil law. Second, and more pertinent to the matter at hand, excommunication can be defined as the judicial exclusion of a person from the rights and privileges enjoyed by members of the religious community to which the offender belongs. In this sense, excommunication is not primarily a punishment but a disciplinary tool employed to preserve the integrity of the community. The Court emphasized that the binding force that unites a denomination—its common faith, shared belief, and collective creed, doctrines and dogma—relies on such discipline to maintain unity and cohesion.

A religious community possesses the authority to require that any person who claims membership must accept the fundamental tenets of its creed and must not openly reject those essential doctrines; otherwise, if every individual were free to deny the core beliefs, the community would rapidly lose its identity and cease to exist as a coherent group. In this sense, preserving the very life of a denomination depends upon its ability to discipline members so that unity of faith, particularly regarding basic creeds and doctrines, is maintained. The legislation that has been challenged removes the head of the denomination’s power to excommunicate and penalises the exercise of that power, thereby incapacitating the community’s capacity to protect itself against dissidents and schismatics. Such deprivation, the Court observed, infringes the constitutional guarantee of freedom of religion contained in Article 25(1) and also contravenes Article 26 because it interferes with the rights of the Dai, who acts as trustee of the denomination’s property, to manage that property in a manner that excludes dissident and excommunicated persons from its beneficial use. The Court noted that, even in the present case, it is accepted that the Dai, as the head of the denomination, holds the authority—subject to the procedural safeguards laid down in the Privy Council’s judgment—to excommunicate members who fail to adhere to the essential tenets of the faith, including those who repudiate his leadership and the spiritual conduit through which the community derives its connection with the Divine.

The Court further contemplated a hypothetical scenario in which the impugned enactment were limited solely to treating excommunication as a punishment for secular offences unrelated to religious practice; under that limited scope, the constitutional analysis under Articles 25 and 26 might have required a more thorough examination to determine whether the legislation was unconstitutional. However, the Court emphasized that this is not the situation before it, because the Act extends beyond such narrow circumstances and also encompasses excommunication undertaken for the purpose of preserving the community’s identity and preventing schism within the denomination. Consequently, the definition of excommunication provided in the Act cannot be narrowed or read down to exclude disciplinary actions that concern the very existence of the faith, as such an exclusion would necessitate a rewriting of the statutory provision. Having addressed this point, the Court proceeded to the next issue, namely whether the impugned enactment could be upheld as a measure of social welfare and reform under Article 25(2)(b).

The Attorney-General argued that, under Article 25 clause 2(b), a law described as a measure of social welfare and reform should be upheld. He relied heavily on the Court’s earlier decision in the Mulki Temple case, formally known as Venkataramana Devaru versus State of Mysore. That judgment had held that the guarantee under Article 26(b) could be subject to a law protected by Article 25 clause 2(b). The specific issue before the Court was whether a statute that opened all public temples, including those belonging to a particular religious denomination, to every Hindu community, even untouchables, was constitutionally valid. The Court concluded that, although exclusion of untouchables from worship formed an essential part of the denomination’s religious practice, the statute’s constitutionality was saved by the second part of Article 25 clause 2(b). That provision expressly allows the opening of Hindu religious institutions of a public character to all classes and sections of Hindus. The Attorney-General sought to extend that reasoning, contending that Article 25 clause 2(b) could also protect a law characterized as a measure of social welfare and reform. He further argued that such a law might abrogate the whole or part of the essentials of a religious belief or practice without violating the Constitution. I found that deduction could not be drawn from the Mulki Temple decision. That judgment rested on two separate foundations. First, regarding the status of untouchables, Article 17 expressly abolished untouchability and prohibited any practice or disability arising from it, thereby limiting religious rights. Second, the Court recognized a special saving in Article 25 clause 2(b) for statutes that open public Hindu religious institutions to all classes and sections of Hindus. The language of that provision was broad, and the Court held that no distinction could be drawn between beliefs and practices that were essential to a religion and those that were not. The wording effectively erased any separation between core religious tenets and peripheral customs. However, the Court noted that different considerations arise when legislation is presented merely as a measure of social welfare and reform. It must first be acknowledged that this phrase is less precise than the second part of Article 25 clause 2(b) and its content remains flexible. In this regard, the Court reminded that restrictions on religious practices grounded in public order, morality, or health had already been saved by the opening words of Article 25(1). Those limitations applied even to beliefs and practices considered essential by the adherents of a religion.

The protection of liberty for health, together with other matters, had already been secured by the opening words of Article 25(1), and that protection extended to beliefs and practices even when those beliefs were regarded as essential or vital by the adherents of the religion. The Court considered that, in the context in which the phrase “laws providing for social welfare and reform” occurs, it was intended to preserve the validity only of those statutes that do not intrude upon the basic and essential practices of religion guaranteed by the operative portion of Article 25(1). Two reasons were given for this construction. First, if the saving clause were read to cover even the most basic essential practices of religion, the result would be to nullify and render meaningless the entire guarantee of religious freedom, because the guarantee includes not only the right to profess a faith but also the right to practice it, and virtually any legislation that interfered with religious practice could then be characterised as a measure for social welfare or reform. Second, if the phrase were intended to have such a wide sweep as to cut at the very essentials protected by Article 25(1), there would have been no need for the special provision that opens Hindu religious institutions to all classes and sections of Hindus, since the legislation contemplated by that provision would itself be a classic example of social reform. In the Court’s view, therefore, the expression “laws providing for social welfare and reform” was not meant to empower the legislature to reform a religion out of existence or to alter its identity. Article 25(2)(a) already authorised legislation dealing with “economic, financial, political or secular activity which may be associated with religious practices”, and the succeeding clause was meant to address other activities of religious groups that are also associated with religion. Just as the activities mentioned in Article 25(2)(a) are clearly not the essence of the religion, the saving in Article 25(2)(b) is likewise not intended to encompass the core essentials of a religious creed that enjoy protection under Article 25(1). Turning to the facts of the present petition, the position of the Dai‑ul‑Mutlaq constitutes an essential component of the creed of the Dawoodi Bohra sect. Faith in his spiritual mission and in the effectiveness of his ministrations forms 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 of keeping the denomination united as an entity. The purity of the fellowship is maintained by the removal of persons who have rendered themselves unfit and unsuitable for membership of the sect. Consequently, the power of excommunication, exercised to preserve the community, has prime significance in the religious life of every member of the group. A statute that penalises this power, even when exercised for the purposes described, cannot be sustained as a measure of social welfare or social reform without destroying the guarantee under Article 25(1) and making the protection illusory. On this basis, the Court held that the petitioner was entitled to the relief he sought.

The Court examined the submissions and, following the reasoning endorsed by the majority of its members, concluded that the relief sought by the petitioner should be granted. Accordingly, the petition was ordered to be allowed, meaning that the application presented by the petitioner was approved by the Court. The judgment explicitly stated that the petition was allowed in line with the majority view of the Court, reinforcing that the decision reflected the consensus of the judges. In addition to granting the petition, the Court awarded costs to the petitioner, directing that the State or the opposing party should bear the legal expenses incurred. The order therefore included both the substantive relief of allowing the petition and the ancillary relief of cost reimbursement, ensuring that the petitioner would not be financially disadvantaged by the proceedings. The Court’s final directive summarized the relief by stating once more that the petition was allowed, thereby confirming the consistency of the judgment across its multiple statements. Consequently, the petitioner received the requested relief and was also granted the entitlement to recover his legal costs, as expressly ordered by the Court in its judgment. This comprehensive order ensured that the petitioner’s rights under the Constitution were upheld and that the legal process concluded with both justice and appropriate compensation for expenses incurred.