'Excommunication Is Subject To Constitutional Morality, Results In Civil Death' : Supreme Court Doubts Precedent Upholding Right To Excommunicate

A Constitution Bench of the Supreme Court has doubted the correctness of the 1962 judgment in the case Sardar Syedna Taher Saifuddin Saheb v. State of Bombay which upheld the right of Dawoodi Bohra community to excommunicate its members and has referred it to the 9-judge bench which is considering the questions in Sabarimala.

"The question is whether the exclusionary practice which prevails in the Dawoodi Bohra community of ex­communicating its members will stand the test of Constitutional morality?", the Bench observed while making the reference.

In Sardar Syedna, a Constitution Bench by 4:1 majority had struck down the Bombay Prevention of Ex­communication Act, 1949 which prohibited excommunication by religious denominations. On February 10, another Constitution Bench opined that Sardar Syedna requires to be reconsidered in view of the new developments in Constitutional jurisprudence expanding the understanding of the concepts of constitutional morality and individual dignity.

The Constitution Bench was considering a writ petition filed by Central Board of Dawoodi Bohra Community in 1986 seeking a reconsideration of Sardar Syedna decision. While the writ petition was pending, in 2016, the State Assembly passed the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, which repealed the Prevention of Ex­communication Act. In this backdrop, the petitioners also sought that the 2016 Act be given effect to as regards Dawoodi Bohra community as well, after revisiting the Sardar Syedna verdict.

Excommunication needs reconsideration in present day context

The 5-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari at the outset noted that the issue the requires examination in the "present day context".

The judgment authored by Justice Oka took note of the developments of Constitutional law following the judgments in KS Puttaswamy vs Union of India (which upheld right to privacy as a fundamental right), Navtej Johar vs Union of India (which decriminalised homosexuality among consenting adults), Indian Young Lawyers Association vs Union of India (which invalidated the prohibition on women in menstruating age to enter Sabarimala temple). Referring to the progressive march of law, the judgment noted that "interpretation of various provisions of the Constitution made by this Court decades back has undergone a drastic change".

Article 26 subject to Constitutional morality

The judgment made extensive reference to the Sabarimala case judgment, which held that the right of a religious denomination under Article 26 is subject to Constitutional morality. The term morality used in Article 26 was interpreted to mean Constitutional morality.

"The freedom of religious denominations under Article 26 must be read in a manner that requires the preservation of equality, and other individual freedoms which may be impacted by unrestricted exercise...While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution", the judgment quoted from Justice Chandrachud's judgment in the Sabarimala case.

Excommunication equal to civil death

The Court then discussed the drastic consequences which an individual would be faced with upon excommunication.

"A person who is ex­communicated by the community, will not be entitled to use the common property of the community and the burial/cremation grounds of the community. In a sense, such a person will virtually become untouchable (being banished or ostracized) within the community. In a given case, it will result in his civil death".

"It can be argued that Constitutional morality which overrides the freedom conferred by clause (b) of Article 26, will not permit the civil rights of excommunicated persons which originate from the dignity and liberty of human beings to be taken away", the judgment further noted.

Constitution cannot tolerate anything which takes away individual dignity

"The concepts of equality, liberty and fraternity are certainly part of our Constitutional morality. Basic ideas enshrined in our Constitution are part of Constitutional morality. The conscience of our Constitution is Constitutional morality. Hence, it is contended that ex­communication or ostracisation is anathema to the concepts of liberty and equality. It is against the antidiscriminatory ethos which forms a part of Constitutional morality. Therefore, the Constitutional Court ought not to tolerate anything which takes away the right and privilege of any person to live with dignity as the concept of Constitutional morality does not permit the Court to do so"

In this backdrop, the bench opined that the protection under Article 26(b) granted by the decision in the case of Sardar Syedna to the power to ex­communicate a member of the Dawoodi Bohra community, needs reconsideration "as the said right is subject to morality which is understood as Constitutional morality". 

Right to excommunicate must be balanced with other individual rights

"Even assuming that the ex­communication of members of the Dawoodi Bohra community is always made on religious grounds, the effect and consequences thereof, on the person excommunicated needs to be considered in the context of justiciable Constitutional rights. The ex­communication will have many civic consequences which will, prima facie, affect his fundamental right to live with dignity and the right to lead a meaningful life guaranteed by Article 21. Therefore, the question is is whether the said right of the community to ex­communicate its members can be balanced with the other fundamental rights under Part III of the Constitution and in particular, Article 21"

Issue will require examination by a larger Bench

Noting that the issues relating to the interpretation of the rights under Articles 25 and Article 26 are pending before the 9-bench on the reference made by the Sabarimala review bench, the present matter was tagged with that reference.

"Prima facie, we find that the exercise of balancing the rights under Article 26(b) with other rights under Part III and in particular Article 21 was not undertaken by the Constitution Bench in the case of Sardar Syedna. This question is substantially in issue before the Bench of nine Judges in Sabrimala Temple Review ­. Moreover, the question whether the protection can be given by Article 26(b) to the practice of ex­communication is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality".

It observed that the following questions in the Sabarimala reference are relevant to excommunication issue :

"(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

(ii) What is the sweep of expression “public order, morality and health” occurring in Article 25(1) of the Constitution.

(iii) The expression “morality” or “constitutional morality” has not been defined in the Constitution. Is it overarching morality in reference to Preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.”

The bench also noted that in Sardar Syedna, the bench ought not to have struck down the Act completely, while considering the rights of Dawoodi Right