1962 (1) TMI 66 - SC - Indian Laws

Summary

Issues Involved:
1. Constitutionality of the Bombay Prevention of Excommunication Act, 1949.
2. Violation of Articles 25 and 26 of the Constitution.
3. Legislative competence of the Bombay Legislature to enact the Act.
4. Impact of the Act on the religious practices and civil rights of the Dawoodi Bohra community.
5. The right of the Dai-ul-Mutlaq to excommunicate members of the community.

Detailed Analysis:

1. Constitutionality of the Bombay Prevention of Excommunication Act, 1949:
The petitioner, the 51st Dai-ul-Mutlaq and head of the Dawoodi Bohra Community, challenged the constitutionality of the Bombay Prevention of Excommunication Act, 1949, under Article 32 of the Constitution. The petitioner argued that the Act infringed on his rights under Articles 25 and 26 of the Constitution, which guarantee freedom of religion and the right of religious denominations to manage their own affairs in matters of religion.

2. Violation of Articles 25 and 26 of the Constitution:
The petitioner asserted that the Act violated Articles 25 and 26 of the Constitution. Article 25 guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion. Article 26 guarantees the right of religious denominations to manage their own affairs in matters of religion. The petitioner argued that the power to excommunicate members was an integral part of the religious faith and belief of the Dawoodi Bohra community and that the Act infringed on this right.

3. Legislative Competence of the Bombay Legislature to Enact the Act:
The petitioner also challenged the legislative competence of the Bombay Legislature to enact the Act, arguing that such power was not contained in any of the entries in the Seventh Schedule of the Government of India Act, 1935. However, this issue was not pressed during the hearing.

4. Impact of the Act on the Religious Practices and Civil Rights of the Dawoodi Bohra Community:
The Act was enacted to prevent the practice of excommunication, which often resulted in the deprivation of legitimate rights and privileges of community members. The petitioner argued that the Act interfered with his right to excommunicate members, which was a matter of religion within the meaning of Article 26(b) of the Constitution. The State of Bombay, the respondent, argued that the Act was a valid piece of legislation enacted by a competent legislature and within the limits of Articles 25 and 26 of the Constitution. The respondent also argued that the right to manage its own affairs vested in a religious community is not an absolute or untrammeled right but is subject to regulation in the interest of public order, morality, and health.

5. The Right of the Dai-ul-Mutlaq to Excommunicate Members of the Community:
The petitioner claimed that as the head of the Dawoodi Bohra community and as Dai-ul-Mutlaq, he had the right and power to excommunicate members of the community, and this power was an integral part of the religious faith and belief of the community. The Privy Council had previously upheld the petitioner's right to excommunicate members, subject to certain conditions. The petitioner argued that the Act infringed on this right and was therefore unconstitutional.

Judgments:

Majority Judgment:
The majority held that the Act was void as it violated Article 26 of the Constitution. The Court found that the right to excommunicate members on religious grounds was an integral part of the management of the Dawoodi Bohra community's affairs in matters of religion. The Act, by invalidating excommunication on any ground, including religious grounds, interfered with this right and was therefore unconstitutional. The Court allowed the petition, declared the Act void, and issued a writ restraining the State of Bombay from enforcing the provisions of the Act.

Separate Judgment by Das Gupta, J.:
Das Gupta, J. concurred with the majority but provided additional reasoning. He emphasized that excommunication on religious grounds was a matter of religion and that the Act interfered with the right of the Dawoodi Bohra community to manage its own affairs in matters of religion. He also rejected the argument that the Act was a measure of social welfare and reform, stating that barring excommunication on religious grounds could not be considered a measure of social welfare and reform.

Separate Judgment by Ayyangar, J.:
Ayyangar, J. also concurred with the majority and provided his own reasoning. He emphasized the importance of the position of the Dai-ul-Mutlaq in the Dawoodi Bohra community and the significance of the power of excommunication in maintaining the unity and identity of the community. He rejected the argument that the Act was a measure of social welfare and reform, stating that such a measure could not invade the basic and essential practices of religion guaranteed by Article 25(1).

Conclusion:
The Supreme Court declared the Bombay Prevention of Excommunication Act, 1949, void as it violated Article 26 of the Constitution. The Act interfered with the right of the Dawoodi Bohra community to manage its own affairs in matters of religion by invalidating excommunication on religious grounds. The Court issued a writ restraining the State of Bombay from enforcing the provisions of the Act.