1. By this petition under Art. 32 of the Constitution, the petitioner, whois the 51st Dai-ul-Mutlaq and head of the Dawoodi Bohra Community, challengesthe constitutionality of the Bombay Prevention of Excommunication Act, 1949(Bombay Act XLII of 1949) (hereinafter referred to as the Act) on the groundthat the provisions of the Act infringe Arts. 25 and 26 of the Constitution.The sole respondent in this case is the State of Bombay.
2. The petition is founded on the following allegations. The Dawoodi BohraCommunity consists of Muslims of the Shia sect, holding in common with allmembers of that sect the belief that there is one God, that Mohammad is HisProphet to whom he revealed the Holy Koran; that Ali, the son-in-law ofMohammad, was the Wasi (executor) of the Prophet, and that the said Alisucceeded the Prophet by Nas-e-Jali. The Dawoodi Bohras believe that the saidAli was succeeded by a line of Imams, each of whom in turn was appointed byNas-e-Jali by his immediate predecessor. The Shia sect itself became dividedinto two sub-sects, known respectively as Ismailis and Isna Asharia. TheDawoodi Bohras belong to the former sect, and believe that owing to persecutionImam Tyeb (the 21st Imam) went into seclusion and that an Iman from his linewill appear, it being their belief that an Iman always exists although at timeshe may be invisible to his believers, while in seclusion; that owing to theimpending seclusion of the 21st Imam (Imam Tyeb) his predecessor, the 20thImam, directed his Hujjat (a dignitary ranking next to an Imam), oneHurra-tul-Malaka, to appoint a Dai, a Mazoon (a dignitary next to a Dai) and aMukasir (a dignitary ranking next to a Mazoon) to carry on the Dawal (mission)of the Imam so long as the Imam should remain in seclusion, and to take andreceive from the faithful an oath of allegiance. The Dais are known asDai-ul-Mutlaq. The petitioner, as the Head Priest of the community of DawoodiBohras, is the vice gerent of Imam on Earth in seclusion. The petitioner is acitizen of India. As Dai-ul-Mutlaq and the vicegerent of Imam on Earth inseclusion, the Dai has not only civil powers as head of the sect and as trusteeof the property, but also ecclesiastical powers as religious leader of the community.It is the right and privilege of the petitioner as Dai-ul-Mutlaq to regulatethe exercise of religious rights in places where such rights and ceremonies arecarried out and in which religious exercise are performed. In his capacity asthe Dai-ul-Mutlaq, that is to say, as religious leader as well as trustee ofthe property of the community, one of his duties is to manage the propertieswhich are all under his directions and control. He has also the power ofexcommunication. This power of excommunication is not an absolute, arbitraryand untrammelled power, but has to be exercised according to the usage andtenets of the community. Save in exceptional circumstances, expulsion from thecommunity can be effected only at a meeting of the Jamat, after the personconcerned has been given due warning of the fault complained of and anopportunity of mending, after a public statement of the grounds of expulsion.The result of excommunication properly and legally effected involves exclusionfrom the exercise of religious rights in places under the trusteeship of theDai-ul-Mutlaq. The petitioner claims that as the head of the Dawoodi Bohracommunity and as Dai-ul-Mutlaq, he has the right and power, in a proper caseand subject to the conditions of legal exercise of that power, to excommunicatea member of the Dawoodi Bohra community, and this power of excommunication isan integral part of the religious faith and belief of the Dawoodi Bohracommunity. The petitioner further affirms that the exercise of the right ofexcommunication is a matter of religion, and that, in any event, the right isan incident of the management of the affairs of the Dawoodi Bohra community inmatters of religion. He also asserts that the Dawoodi Bohra communityconstitutes a religious denomination within the meaning of Art. 26 of theConstitution; the said right of the petitioner of excommunicate a member of thecommunity, for reasons of which the petitioner is the sole judge in theexercise of his position as the religious head, is a guaranteed right underArts. 25 and 26 of the Constitution.
3. The Bombay Legislature enacted the Act, which came into force on November1, 1949. The petitioner asserts that the Act violates his right and power, asDai-ul-Mutlaq and religious leader of the Dawoodi Bohra community, toexcommunicate such members of the community as he may think fit and proper todo; the said right of excommunication and the exercise of that right by thepetitioner in the manner aforesaid are matters of religion within the meaningof Art. 26(b) of the Constitution. It is submitted by the petitioner that thesaid Act violates or infringes both the Arts. 25 and 26 of the Constitution,and to that extent, after the coming into force of the Constitution, has becomevoid under Art. 13 of the Constitution. The petitioner claims thatnotwithstanding the provisions of the Act, he, as the religious leader andDai-ul-Mutlaq of the community, is entitled to excommunicate any member of theDawoodi Bohra community for an offence, which according to his religious sensejustifies expulsion; and insofar as the Act interferes with the said right ofthe petitioner, it is ultra vires the Legislature. The Act is also challengedon the ground of legislative incompetence of the then Legislature of Bombay,inasmuch as it is contended that such a power is not contained in any of theentries in the Seventh Schedule of the Government of India Act, 1935.
4. One Tayebhai Moosaji Koicha (Mandivala) instituted a suit, being suit No.1262 of 1949, in the High Court of Judicature at Bombay, praying inter alia,for a declaration that certain orders of excommunication passed by thepetitioner against him prior to the enactment of the Act were void and illegaland of no effect, and that the plaintiff continued to remain a member of theDawoodi Bohra community. The said suit was heard by J. C. Shah, J., who, by hisjudgment dated February 21, 1952, held that the Act was not inconsistent withArt. 26 of the Constitution, and was not ultra vires the Legislature of the Provinceof Bombay. The petitioner, being dissatisfied with the judgment of the learnedJudge, preferred an appeal that came up for hearing before the Court of Appeal,composed of Chagla, C.J., and Bhagwati J. By its judgment dated August 26,1952, the Court of Appeal upheld the judgment of the learned single Judge,though on different grounds. The petitioner obtained leave from the High Courtto appeal to this Court, and ultimately filed the appeal, being Civil AppealNo. 99 of 1954. During the pendency of the appeal, the plaintiff-respondentaforesaid died and an application made on behalf of his heirs for being broughton the record was not granted by the High Court of Bombay. This Court dismissedthe said appeal on the ground that the plaintiff having died, the cause ofaction did not survive.
5. The petitioner further alleges that parties inimical to him and to theDawoodi Community have written scurrilous articles challenging and defying theposition, power or authority of the petitioner as the religious head of thecommunity; the challenge to the petitioner's position and his power toexcommunicate as the head of the Dawoodi Bohra community is violative of thepetitioner's guaranteed rights under Arts. 25 and 26 of the Constitution. Itis, therefore, claimed that it is incumbent upon the respondent, in its publiccharacter, to forbear from enforcing the provisions of the Act against thepetitioner. By the petitioner's attorney's letter, annexure B to the petition,dated July 18, 1958, the petitioner pointed out to the respondent theunconstitutionality of the Act and requested the latter to desist fromenforcing the provisions of the Act against the petitioner or against theDawoodi Bohra community. In the premises, a writ of Mandamus or a writ in the natureof Mandamus of other appropriate writ, direction or order under Art. 32 of theConstitution was prayed for against the respondent restraining it, itsofficers, servants and agents from enforcing the provisions of the Act.
6. The answer of the State of Bombay, the sole respondent, is contained inthe affidavit sworn to by Shri V. N. Kalghatgi, Assistant Secretary to theGovernment of Bombay, Home Department, to the effect that the petitioner nothaving taken any proceedings to excommunicate any member of the community hadno cause of action or right to institute the proceedings under Art. 32 of theConstitution; that it was not admitted that the Dai-ul-Mutlaq, as the head ofthe community, has civil powers, including the power to excommunicate any memberof the community; that, alternatively, such power is not in conformity with thepolicy of the State, as defined in the Constitution; that the petitioner, asthe head of the community may have the right to regulate religious rights atappropriate places and occasions, but those rights do not include the right toexcommunicate any person and deprive him of his civil rights and privileges;and that, in any event, after the coming into effect of the impugned Act, thepetitioner has no such rights of excommunication; that it was denied that theright to excommunicate springs from or has its foundation in religion andreligious doctrines, tenets and faith of the Dawoodi Bohra community that, atany rate, it was denied that the right to excommunicate was an essential partof the religion of the community; that, alternatively, assuming that it waspart of a religious practise, it runs counter to public order, morality andhealth. It was also asserted that the impugned Act was a valid piece oflegislation enacted by a competent legislature and within the limits of Art. 25and 26 of the Constitution; and that the right to manage its own affairs vestedin a religious community is not an absolute or untrammelled right but subjectto a regulation in the interest of public order, morality and health. It wasdenied that the alleged right of the petitioner to excommunicate a member ofthe community is guaranteed by Arts. 25 and 26 of the Constitution. In thepremises, it was denied that the petitioner had any right to the declarationsought or the relief claimed that the provisions of the Act should not beenforced.
7. At a very late stage of the pendency of the proceedings in this Court, inApril 1961, one Kurbanhusein Sanchawala of Bombay, made an application eitherfor being added as a party to the Writ Petition or, alternatively, for beinggranted leave to intervene in the proceedings. In his petition forintervention, he stated that he was a citizen of India and was by birth amember of the Dawoodi Bohra community and as such had been taking an activepart in social activities for bettering the conditions of the members of thecommunity. He asserted that members of the community accepted that up to the46th Dai-ul-Mutlaq there was no controversy, that each one of them had beenproperly nominated and appointed, but that a controversy arose as regards thepropriety and validity of the appointment of the 47th Dai-ul-Mutlaq, whichcontroversy continued all along until the present time so that opinion isdivided amongst the members of the Dawoodi Bohra community as to the validityof appointments and existence of Dai-ul-Mutlaq, from the 47th to the 51stDai-ul-Mutlaq, including the present petitioner. The intervener also allegedthat but for the impugned Act, the petitioner would have lost no time inexcommunicating him. In the premises, he claims that he is not only a properbut necessary party to the Writ Petition. He, therefore, prayed to be added asa party-respondent, or, at any rate, granted leave to intervene at the hearingof the Writ Petition. We have to dispose of this petition because no ordershave been passed until the hearing of the main case before us. In answer to thepetitioner's claims, the intervener has raised the following grounds, namely,that the Holy Koran does not permit excommunication, which is against thespirit of Islam; that, in any event, the Dai-ul-Mutlaq had no right or power toexcommunicate any member of the community, and alternatively, that such aright, assuming that it was there, was wholly 'out of date in modern timesand deserves to be abrogated and was rightly abrogated by the said Act.'It was further asserted that the alleged right of excommunication was opposedto the universally accepted fundamentals of human rights as embodied in the'Universal Declaration of Human Rights.' It was also asserted thatthe Act was passed by a competent legislature and was in consonance with theprovisions of Arts. 25 and 26 of the Constitution. The intervener furtherclaims that the rights to belief, faith and worship and the right to a decentburial were basic human rights and were wholly inconsistent with the right ofexcommunication claimed by the petitioner, and that the practise ofexcommunication is opposed to public order and morality; that the practise ofexcommunication was a secular activity associated with religious practise andthat the abolition of the said practise is within the saving clause 2(a) ofArt. 25 of the Constitution. It was also asserted that, under the MohamadanLaw, properties attached to institutions for religious and charitable purposesvested in the Almighty God and not in the petitioner, and that all the membersof the Dawoodi Bohra community had the right to establish and maintain suchinstitutions, in consonance with Art. 26 of the Constitution; that is to saythat Art. 26 guarantees the right of the denomination as a whole and not anindividual like the petitioner. It was also asserted that the provisions of theAct prohibiting excommunication was in furtherance of public order and moralityand was just and reasonable restriction on a secular aspect of a religiouspractise. The petitioner challenged the right of the intervener either tointervene or to be added as the party-respondent. In his rejoinder to thepetition for intervention, the petitioner further alleged that the practise ofexcommunication was essential to the purity of religious denominations becauseit could be secured only by removal of persons who were unsuitable formembership of the community. It was, therefore, asserted that those who did notaccept the headship of the Dai-ul-Mutlaq, including the petitioner, must go outof the community and anyone openly defying the authority of the Dai-ul-Mutlaqwas liable to be excommunicated from the membership of the community, entailingloss of rights and privileges belonging to such members. It was, therefore,claimed that the practise of excommunication was, and is, an essential andintegral part of the religion and religious belief, faith and tenets of DawoodiBohra community, which have been guaranteed by Art. 26 of the Constitution.
8. It has been argued on behalf of the petitioner, in support of thepetition, that the Dawoodi Bohra community, of which the petitioner is thereligious head, as also a trustee in respect of the property belonging to thecommunity, is a religious denomination within the meaning of Art. 26 of theConstitution; that as such a religious denomination it is entitled to ensureits continuity by maintaining the bond of religious unity and discipline, whichwould secure the continued acceptance by its adherents of certain essentialtenets, doctrines and practises; the right to such continuity involves theright to enforce discipline, if necessary by taking the extreme step ofexcommunication; that the petitioner as the religious head of the denominationis invested with certain powers, including the right to excommunicatedissidents, which power is a matter of religion within the meaning of Art.26(b) of the Constitution that the impugned Act, insofar as it takes away thepower to enforce religious discipline and thus compels the denomination toaccept dissidents as having full rights as a member of the community, includingthe right to use the properties and funds of the community dedicated to religioususe, violates the fundamental rights of the petitioner guaranteed under Art.26. In this connection, reliance was placed on the decision of this Court inThe Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt : 1SCR1005 , which, it is contended, haslaid down that the guarantee under the Constitution not only protects thefreedom of opinion, but also acts done in pursuance of such religious opinion,and that it is the denomination itself which has a right to determine what areessential parts of its religion, as protected by the provisions of Arts. 25 and26 of the Constitution. It was further contended that the right to worship inthe mosque belonging to the community and of burial in the graveyard dedicatedto the community were religious rights which could not be enjoyed by a personwho has been rightly excommunicated. Insofar as the Act took away the right ofthe petitioner as the head of the community to excommunicate a particular memberof the community and thus to deprive him of the use of the funds and propertybelonging to the community for religious purposes, had the effect of deprivingthe petitioner of his right as the religious head to regulate the right to theuse of funds and property dedicated to religious uses of the community. It hasalso been contended that religious reform, if that is the intention of theimpugned Act, is outside the ambit of Art. 25(2)(b) of the Constitution.
9. The learned Attorney-General for the respondent contended on the otherhand, that the right to excommunicate, which has been rendered invalid by theimpugned Act, was not a matter of religion within the meaning of Art. 26(b) ofthe Constitution; that what the Act really intended was to put a stop to thepractise indulged in by a caste or a denomination to deprive its members oftheir civil rights as such members, as distinguished from matters of religion,which were without the protection of Art. 25 and 26. Alternatively, it was alsoargued that even assuming that excommunication was concerned with matters ofreligion, the Act would not be void because it was a matter of reform in theinterest of public welfare. It was also argued that there was no evidence onthe record to show that excommunication was an essential matter of religion.The right to worship at a particular place or the right of burial in aparticular burial ground were questions of civil nature, a dispute in respectof which was within the cognizance of the Civil Courts. The legislation inquestion, in its real aspects, was a matter of social welfare and social reformand not within the prohibitions of Art. 25(1) or Art. 26. Excommunicationinvolving deprivation of rights of worship or burial and the like were notmatters of religion within the meaning of Art. 26(b), and finally, Art. 26(b)was controlled by Art. 25(2)(b) of the Constitution, and, therefore, even ifexcommunication touched certain religious matters, the Act, insofar as it hadabolished it, was in consonance with modern notions of human dignity andindividual liberty of action even in matters of religious opinion and faith andpractice.
10. Shri Shroff, appearing for the intervener, attempted to reopen thequestion whether the petitioner as Dai-ul-Mutlaq, assuming that he had beenproperly elected as such, had the power to excommunicate, in spite of thedecision of their Lordships of the Judicial Committee of the Privy Council inHasan Ali v. Mansoor Ali I.L.R.  IndAp 1. He also supported theprovisions of the impugned Act on the ground that they were in furtherance ofpublic order. As we are not here directly concerned with the question whetheror not the petitioner as the head of the religious community had the power toexcommunicate, we did not hear Mr. Shroff at any length with reference to thatquestion. We shall proceed to determine the controversy in this case on theassumption that the petitioner had that power. We are only directly concernedwith the questions whether the provisions of the Act, insofar as they haverendered invalid the practise of excommunication, are unconstitutional asinfringing Art. 26(b), and enacted by a legislature which was not competent todo so, as contended on behalf of the petitioner. We will, therefore, confineour attention to those questions. Keeping in view the limited scope of thecontroversy, we have first to determine the ambit and effect of the impugnedAct. The Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949) isan Act to prohibit excommunication in the province of Bombay. Its preamble,which shortly states the background of the legislation, is in these terms :
'Whereas it has come to thenotice of Government that the practise prevailing in certain communities ofexcommunicating its members is often followed in a manner which results in thedeprivation of legitimate rights and privileges of its members;
And whereas in keeping with thespirit of changing times and the public interest it is expedient to stop, thepractise; it is hereby enacted is follows'.
11. The definition of 'Community' as given in s. 2(a) wouldinclude the Dawoodi Bohra community, because admittedly its members are knittogether by reason of certain common religious doctrines, and admittedly itsmembers belong to the same religion or religious creed of a section of the Shiacommunity of Muslims. The term 'community' includes a caste or asub-caste also. 'Excommunication' has been defined by s. 2(b) asmeaning 'the expulsion of a person from any community of which he ismember depriving him of rights and privileges which are legally enforceable bya suit of civil nature.......', and the explanation to the definitionmakes it clear that the rights and privileges within the meaning of thedefinition include the right to office or property or to worship in anyreligious place or a right of burial or cremation, notwithstanding the factthat the determination of such right depends entirely on the decision of thequestion as to any religious rites or ceremonies or rule or usage of acommunity. By s. 3, excommunication of a member of a community has beendeclared to be invalid and of no effect, notwithstanding any law, custom orusage to the contrary. Any act of excommunication, or any act in furtherance ofexcommunication, of any member of a community has been made a penal offenceliable to a punishment, on conviction, of fine which may extend to one thousandrupees. The explanation has made it clear that any person who has voted infavour of a decision of excommunication at a meeting of a body or anassociation of a particular denomination is deemed to have committed theoffence made punishable by s. 4, as aforesaid. Sections 5 and 6 lay down theprocedure for the trial of an offence under the Act, the limit of time withinwhich the prosecution must be launched and the necessity of previous sanctionof the authority indicated therein.
12. These, in short, are the provisions of the impugned Act. It will benoticed that the Act is a culmination of the history of social reform whichbegan more than a century ago with the enactment of s. 9 of Regulation VII of1832 of the Bengal Code, which provided, inter alia, that the laws of Hindusand Muslims shall not be permitted to operate to deprive the parties of anyproperty to which, but for the operation of such laws, they would have beenentitled. Those provisions were subsequently incorporated in the India Act (XXIof 1850) - known as the Caste Disabilities Removal Act - which provided that aperson shall not be deprived of his rights or property by reason of his or herrenouncing or exclusion from the communion of any religion or being deprived ofcaste, and that any such forfeiture shall not be enforced as the law in theCourts. The impugned Act, thus, has given full effect to modern notions ofindividual freedom to choose one's way of life and to do away with all thoseundue and outmoded interferences with liberty of conscience, faith and belief.It is also aimed at ensuring human dignity and removing all those restrictionswhich prevent a person from living his own life so long as he did not interferewith similar rights of others. The legislature had to take the logical finalstep of creating a new offence by laying down that nobody had the right todeprive others of their civil rights simply because the latter did not conformto a particular pattern of conduct. The Act, in substance, has added a newoffence to the penal law of the country by penalising any action which has theeffect of depriving a person of his human dignity and rights appurtenant thereto.It also adds to the provisions of the Criminal Procedure Code and has insistedupon the previous sanction of the prescribed authority as a condition precedentto launching a prosecution for an alleged offence against the provisions of theAct. In my opinion, therefore, the enactment, in pith and substance, would comewithin Entries 1 & 2 of List III of the Concurrent Legislative List of theConstitution Act of 1935. It is true that 'excommunication' does not,in terms, figure as one of the entries in any one of the three lists. Thelegislative competence of the Bombay Legislature to enact the Act has not beenseriously challenged before us, and, therefore, no particular argument wasaddressed to us to show that the legislation in question could not be withinthe purview of Entries 1 & 2 of List III aforesaid. What was seriouslychallenged before us was the constitutionality of the Act, in the light of theConstitution with particular reference to Arts. 25 & 26, and I shallpresently deal with that aspect of the controversy. But before I do that, it isconvenient to set out the background of the litigation culminating in thepresent proceedings.
13. The first reported case in relation to some aspects of Shia ImamiIsmailis is that of the Advocate General ex relation Dave Muhammad v. MuhammadHusen Huseni (1875) 2 Bom. H.C.R. 323. That was a suit commenced before thecoming into existence of the Bombay High Court, on the Equity Side of the lateSupreme Court, instituted by an information and bill, filed by the relators andplaintiffs, representing a minority of the Khoja community, against thedefendants representing the majority of that community. The prayer in theaction was that an account be taken of all property belonging to or held intrust for the Khoja community of Bombay in the hands of the treasurer and theaccountant, respectively called Mukhi and Kamaria, and other cognate reliefsnot relevant to the present controversy. In that case, which was heard on theOriginal side by Arnould J., judgment was delivered in November 1866, after aprolonged hearing. In that case, the learned Judge went into a detailed historyof the several sects amongst Muslims, including the Shia Imami Ismailis, withparticular reference to the Aga Khan and his relation with the Jamat of theKhojas of Bombay. In that case it was laid down that there was no publicproperty impressed with a trust, either express or implied, for the benefit ofthe whole Khoja community and that Aga Khan, as the spiritual head of theKhojas was entitled to determine on religious grounds who shall or shall notremain members of the Khoja community. In that case, the learned Judge, withreference to authoritative texts, went into the detailed history of the twosects of the Sunnies and Shias. He discussed the origin of the Ismailis as anoffshoot of the Shias, and traced the hereditary succession of the unrevealedImams in unbroken line down to Agha Khan. Except for its historical aspect, thecase does not deal with any matter relevant to the present controversy.
14. The next reported case which was brought to our notice is the case ofthe Advocate General of Bombay v. Yusufalli Ebrahim : (1922)24BOMLR1060 .That was a case directly in relation to the Dawoodi Bohra community, with whichwas are concerned in this case. In that case, there was a dispute as regards amosque and a tomb, and was heard by Marten J., on the Original side in 1921. Weare not concerned with the details of the controversy in that case. But thelearned Judge has noticed the history of this community, with particularreference to the position of the Dai-ul-Mutlaq, and how the differences betweenthe majority of the community and the minority arose on the question of theregularity of the succession of the 47th Dai in 1840. The learned Judge haspointed out that the powers of the Dai are at least thrice delegated, namely,by God to Prophet Mohammad, by the latter to the Imam, and by the Imam to theDai-ul-Mutlaq.
15. The more directly in point is the litigation which was concluded by thejudgment of their Lordships of the Judicial Committee of the privy Council inthe case of Hasanali v. Mansoorali I.L.R.  IndAp 1. In that case, thepowers of the Dai-ul-Mutlaq to excommunicate were directly in controversy. Thepetitioner was the first defendant in that action, which had been commenced inOctober, 1925, and was decided by the judgment of the Subordinate Judge ofBurhanpur, dated January 2, 1931. That decision was reversed by the JudicialCommissioner of Central Provinces & Berar (later the High Court at Nagpur)by his judgment dated October 25, 1934. That judgment was taken on appeal tothe Privy Council and the judgment of the Privy Council very succinctly tracesthe history of the Dawoodi Bohra community until we come to the 51st Dai, whowas the first defendant in that action, and is the petitioner before us. Inthat case, certain orders of excommunication were under challenge. As a resultof those orders of excommunication, the plaintiffs had been obstructed in, andprevented from, entering the property in suit for the purposes of worship,burial and resting in the rest house. In that case, their Lordship did notuphold the claim of the Dai-ul-Mutlaq that he had unrestricted power ofexcommunication, though they found that he could be regarded as Dai-ul-Mutlaq.As regards the power to excommunicate, it was held that though the power wasthere, is was not absolute, arbitrary and untrammelled; and then theirLordships laid down the conditions for the valid exercise of that power. Theeffect of a valid excommunication, in their Lordships' view, was exclusion fromthe exercise of religious rights in places under the trusteeship of the head ofthe community, because the Dai was not only a religious leader but also atrustee of the property of the community. After examining the evidence in thatcase, their Lordships held that the persons alleged to have been excommunicatedhad not been validly expelled from the community.
16. The judgment of the Privy Counsel was given on December 1, 1947. Withintwo years of that judgment the impugned Act was passed, and soon after a suiton the Original side of the Bombay High Court was commenced (being suit No.1262 of 1949). That was a suit by a member of the Dawoodi Bohra community, whohad been excommunicated by the petitioner, functioning as the Dai-ul-Mutlaq, bytwo orders of excommunication, one passed in 1934 and the other in 1948, soonafter the judgment of the Privy Council. The suit was, inter alia, for adeclaration that the orders of excommunication were void in view of the Act. Anumber of issues were raised at the trial, which was heard by Shah J. Twoquestions, by way of preliminary issues, with which we are immediatelyconcerned in the present proceedings, were raised before the learned Judge ofthe Bombay High Court, namely :
(1) Was the Act within thelegislative competence of the Legislature of the Province of Bombay
(2) Whether after the coming intoforce of the Constitution, the Act was invalid in view of Arts. 25 and 26 ofthe Constitution
17. The learned Judge, after an elaborate examination of the ConstitutionAct of 1935, came to the conclusion that the Bombay Legislature was competentto enact the Act, and that it was not unconstitutional even after the cominginto effect of the Constitution because it was not inconsistent with theprovisions of Arts. 25 and 26. An appeal was taken to the Court of Appeal, whichwas heard by Chagla C.J. and Bhagwati J. The Court of Appeal upheld thedecision of Shah J. The matter was brought up on appeal to this Court in CivilAppeal 99 of 1954. During the pendency of the appeal in this Court, theplaintiff died and it was held, without deciding the merits of the controversy,that the suit giving rise to the appeal in this Court had abated by reason ofthe fact that the plaintiff had died and the cause of action being personal tohim was also dead. The Order of this Court dismissing the appeal as notmaintainable is dated November 27, 1957.
18. This Writ Petition was filed on August 18, 1958 by the petitioner as the51st Dai-ul-Mutlaq and head of the Dawoodi Bohra community for a declarationthat the Act was void so far as the petitioner and the Dawoodi Bohra communitywere concerned, and that a writ of mandamus or a writ in the nature of mandamusor other appropriate writ, direction or order under Art. 32 of the Constitutionbe issued restraining the respondent, its officers, servants and agents fromenforcing the provisions of the Act, against the petitioner or the DawoodiBohra community, or in any manner interfering with the right of the petitioner,as the religious leader and Dai-ul-Mutlaq of the Dawoodi Bohra community, to excommunicateany member of the community for an offence which the petitioner, in theexercise of his religious sense as the religious head of the community maydetermine as justifying such an expulsion.
19. It is not disputed that the petitioner is the head of the Dawoodi Bohracommunity or that the Dawoodi Bohra community is a religious denominationwithin the meaning of Art. 26 of the Constitution. It is not even disputed bythe State, the only respondent in the case, that the petitioner as the head of thecommunity had the right, as found by the Privy Council in the case of Hasanaliv. Mansoorali I.L.R. (1947) IndAp 1, to excommunicate a particular member ofthe community for reasons and in the manner indicated in the judgment of theirLordships of the Privy Council. But what is contended is that, as a result ofthe enactment in question, excommunication has been completely banned by theLegislature, which was competent to do so, and that the ban in no way infringesArts. 25 and 26 of the Constitution. I have already indicated my consideredopinion that the Bombay Legislature was competent to enact the Act. It nowremains to consider the main point in controversy, which was, as a matter offact, the only point urged in support of the petition, namely, that the Act isvoid in so far as it is repugnant to the guaranteed rights under Arts. 25 and26 of the Constitution. Art. 25 guarantees the right to every person, whethercitizen or non-citizen, the freedom of conscience and the right freely toprofess, practise and propagate religion. But this guaranteed right is not anabsolute one. It is subject to (1) public order, morality and health, (2) theother provisions of Part III of the Constitution, (3) any existing lawregulating or restricting an economic, financial, political or other secularactivity which may be associated with religious practise, (4) a law providingfor social welfare and reform, and (5) any law that may be made by the Stateregulating or restricting the activities aforesaid or providing for socialwelfare and reform. I have omitted reference to the provisions of ExplanationsI and II and other parts of Art. 25 which are not material to our presentpurpose. It was noteworthy that the right guaranteed by Art. 25 is anindividual right as distinguished from the right of an organised body like areligious denomination or any section thereof, dealt with by Art. 26. Hence,every member of the community has the right, so long as he does not in any wayinterfere with the corresponding rights of others, to profess, practise andpropagate his religion, and everyone is guaranteed his freedom of conscience.The question naturally arises : Can an individual be compelled to have aparticular belief on pain of a penalty, like excommunication One is entitledto believe or not to believe a particular tenet or to follow or not to follow aparticular practise in matters of religion. No one can, therefore, becompelled, against his own judgment and belief, to hold any particular creed orfollow a set of religious practises. The Constitution has left every personfree in the matter of his relation to his Creator, if he believes in one. Itis, thus, clear that a person is left completely free to worship God accordingto the dictates of his conscience, and that his right to worship as he pleasedis unfettered so long as it does not come into conflict with any restraints, asaforesaid, imposed by the State in the interest of public order, etc. A personis not liable to answer for the verity of his religious views, and he cannot bequestioned as to his religious beliefs, by the State or by any other person.Thus, though his religious beliefs are entirely his own and his freedom to holdthose beliefs is absolute, he has not the absolute right to act in any way hepleased in exercise of his religious beliefs. He has been guaranteed the rightto practise and propagate his religion, subject to the limitations aforesaid.His right to practise his religion must also be subject to the criminal laws ofthe country, validly passed with reference to actions which the Legislature hasdeclared to be of a penal character. Laws made by a competent legislature inthe interest of public order and the like, restricting religious practises,would come within the regulating power of the State. For example, there may bereligious practises of sacrifice of human beings, or sacrifice of animals in away deleterious to the well being of the community at large. It is open to theState to intervene, by legislation, to restrict or to regulate to the extent ofcompletely stopping such deleterious practises. It must, therefore, be heldthat though the freedom of conscience is guaranteed to every individual so thathe may hold any beliefs he likes, his actions in pursuance of those beliefs maybe liable to restrictions in the interest of the community at large, as may bedetermined by common consent, that is to say, by a competent legislature. Itwas on such humanitarian grounds, and for the purpose of social reform, that socalled religious practises like immolating a widow at the pyre of her deceasedhusband, or of dedicating a virgin girl of tender years to a god to function asa devadasi, or of ostracising a person from all social contacts and religiouscommunion on account of his having eaten forbidden food or taboo, we stopped bylegislation.
20. But it has been contended on behalf of the petitioner that the rightguaranteed, under Art. 25, to freedom of conscience and the freedom to profess,practise and propagate religion is available not only to an individual but tothe community at large, acting through its religious head; the petitioner, assuch a religious head has, therefore, the right to excommunicate, according tothe tenets of his religion, any person who goes against the beliefs and practisesconnected with those beliefs. The right of the petitioner to excommunicate is,therefore, a fundamental right, which cannot be affected by the impugned Act.In this connection, reference was made to the following observations in theleading judgment of this Court, bearing upon the interpretations of Arts. 25and 26 (vide The Commissioner, Hindu Religious Endowments, Madras v. SriLakshmindra Thirtha Swamiar of Sri Shirur Mutt) : 1SCR1005 ] :
'A religion may not only laydown a code of ethical rules for its followers to accept, it might prescriberituals and observances, ceremonies and modes of worship which are regarded asintegral parts of religion, and these forms and observances might extend evento matters of food and dress.
The guarantee under ourConstitution not only protects the freedom of religious opinion but it protectsalso acts done in pursuance of a religion and this is made clear by the use ofthe expression 'practice of religion' in Art. 25.'
21. On the strength of those observations, it is contended on behalf of thepetitioner that this practise of ex-communication is a part of the religion ofthe community with which we are concerned in the present controversy, Art. 26,in no uncertain terms, has guaranteed the right to every religious denominationor a section thereof 'to manage its own affairs in matters ofreligion' (Art. 26(b)). Now what are matters of religion and what are notis not an easy question to decide. It must vary in each individual case accordingto the tenets of the religious denomination concerned. The expression'matters of religion' in Art 26(b) and 'activities associatedwith religious practice' do not cover exactly the same ground. What areexactly matters of religion are completely outside State interference, subjectof course to public order, morality and health. But activities associated withreligious practices may have many ramifications and varieties - economic,financial, political and other - as recognised by Art. 25(2)(a). Such activities,as are contemplated by the clause aforesaid cover a field much wider than thatcovered by either Art. 25(1) or Art. 26(b). Those provisions have, therefore,to be so construed as to create no conflict between them. We have, therefore,to classify practices into such as are essentially and purely of a religiouscharacter, and those which are not essentially such. But it has been contendedon behalf of the petitioner that it is for the religious denomination itself todetermine what are essentially religious practises and what are not. In thisconnection, reliance is placed on the following observations of this Court inthe leading case, aforesaid, of The Commissioner, Hindu Religious Endowments,Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt  S.C.R.1005 :
'As we have already indicated, freedom of religionin our Constitution is not confined to religious beliefs only; it extends toreligious practices as well subject to the restrictions which the Constitutionitself has laid down. Under Art. 26(b), therefore, a religious denomination ororganisation enjoys complete autonomy in the matter of deciding as to whatrites and ceremonies are essential according to the tenets of the religion theyhold and no outside authority has any jurisdiction to interfere with theirdecision in such matters.'
22. It should be noted that the complete autonomy which a religiousdenomination enjoys under Art. 26(b) is in 'matters of religion', which hasbeen interpreted as including rites and ceremonies which are essentialaccording to the tenets of the religion. Now, Art. 26(b) itself would seem toindicate that a religious denomination has to deal not only with matters ofreligion, but other matters connected with religion, like laying down rules andregulations for the conduct of its members and the penalties attached toinfringement of those rules, managing property owned and possessed by thereligious community, etc., etc. We have therefore, to draw a line ofdemarcation between practises consisting of rites and ceremonies connected withthe particular kind of worship, which is the tenet of the religious community,and practises in other matters which may touch the religious institutions atseveral points, but which are not intimately concerned with rites andceremonies the performance of which is an essential part of the religion. Inthis connection, the following observations of this Court in The Durgah Committee, Ajmer v. Syed Hussain Ali : 1SCR383 which were made withreference to the earlier decisions of this Court in The Commissioner, HinduReligious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri ShirurMutt : 1SCR1005 and in Sri Venkataramana Devaru v. The Stateof Mysore : 1SCR895 , that 'matters of religion' in Art.26(b) include even practises which are regarded by the community as part of itsreligion, may be noted :
'Whilst we are dealing with this point it may notbe out of place incidentally to strike a note of caution and observe that inorder that the practises in question should be treated as a part of religionthey must be regarded by the said religion as its essential and integral part;otherwise even purely secular practises which are not an essential or anintegral part of religion are apt to be clothed with a religious form and maymake a claim for being treated as religious practises within the meaning ofArt. 26. Similarly, even practises though religious may have sprung from merelysuperstitious beliefs and may in that sense be extraneous and unessentialaccretions to religion itself. Unless such practises are found to constitute anessential and integral part of a religion their claim for the protection underArt. 26 may have to be carefully scrutinised; in other words, the protectionmust be confined to such religious practises as are an essential and integralpart of it and no other.'
23. But then it is contended that a religious denomination is aquasi-personality, which has to ensure its continuity and has, therefore, tolay down rules for observance by members of its community, and, in order tomaintain proper and strict discipline, has to lay down sanctions; the right toexcommunicate a recusant member is an illustration of that sanction. In thisconnection, it was contended that the Privy Council had laid down in the caseof Hasanali v. Mansoorali I.L.R.  IndAp 1, that the power ofexcommunication was a religious power exerciseable by the Dai. In my opinion,those passages in the judgment of the Privy Council do not establish theproposition that the right which the Privy Council found inhered in the Dai wasa purely religious right. That it was not a purely religious right becomesclear from the judgment of the Judicial Committee of the Privy Council, whichlaid down the appropriate procedure and the manner of expulsion, which had tobe according to justice, equity and good conscience, and that it wasjusticiable. A matter which is purely religious could not come within thepurview of the Courts. That conclusion is further strengthened by theconsideration that the effect of the excommunication or expulsion from thecommunity is that the expelled person is excluded from the exercise of rightsin connection not only with places of worship but also from burying the dead inthe community burial ground and other rights to property belonging to thecommunity, which are all disputes of a civil nature and are not purelyreligious matters. In the case before their Lordships of the Privy Council,their Lordships enquired into the regularity of the proceedings resulting inthe excommunication challenged in that case, and they held that the plaintiffhad not been validity expelled. It cannot, therefore, be asserted that thePrivy Council held the matter of excommunication as a purely religious one. Ifit were so, the Courts would be out of the controversy.
24. The same argument was advanced in another form by contending thatexcommunication is not a social question and that, therefore, Art. 25(2)(b)could not be invoked in aid of holding the Act to be constitutional. In thisconnection, it has to be borne in mind that the Dai-ul-Mutlaq is not only thehead of the religious community but also the trustee of the property of thecommunity in which the community as a whole is interested. Even a theologicalhead has got to perform acts which are not wholly religious but may be said tobe quasi religious or matters which are connected with religious practises,though not purely religious. Actions of the Dai-ul-Mutlaq in the purelyreligious aspect are not a concern of the courts, but his actions touching thecivil rights of the members of the community are justiciable and not outsidethe pale of interference by the legislature or the judiciary. I am not calledupon to decide, nor am I competent to do so, as to what are the religiousmatters in which the Dai-ul-Mutlaq functions according to his religious sense.I am only concerned with the civil aspect of the controversy relating to theconstitutionality of the Act, and I have to determine only that controversy.
25. It has further been argued on behalf of the petitioner that anexcommunicated person has not the right to say his prayers in the mosque or tobury his dead in the community burial ground or to the use of other communalproperty. Those may be the result of excommunication, but I am concerned withthe question whether the Legislature was competent and constitutionallyjustified in enacting the law declaring excommunication to be void. As alreadyindicated, I am not concerned in this case with the purely religious aspect ofexcommunication. I am only concerned with the civil rights of the members ofthe community, which rights they will continue to enjoy as such members ifexcommunication was held to be invalid in accordance with the provision of theAct. Hence, though the Act may have its repercussions on the religious aspectof excommunication, in so far as it protects the civil rights of the members ofthe community it has not gone beyond the provisions of Art. 25(2)(b) of theconstitution.
26. Then it is argued that the guaranteed right of a religious denominationto manage it own affairs in matters of religion (Art. 26(b)) is subject only topublic order, morality and health and is not subject to legislation contemplatedby Art. 25(2)(b). This very argument was advanced in the case of ShriVenkataramana Devaru v. The State of Mysore : 1SCR895 this arguments has been specifically dealt with and negatived. This Courtobserved as follows :
'The answer to his contention is that it isimpossible to read any such limitation into the language of Art. 25(2)(b). Itapplies in terms to all religious institutions of a public character withoutqualification or reserve. As already stated, public institutions would mean notmerely temples dedicated to the public as a whole but also those founded forthe benefit of sections thereof, and denominational temples would be comprisestherein. The language of the Article being plain and unambiguous, it is notopen to us to read into it limitations which are not there, based on a priorireasoning as the probable intention of the Legislature. Such intention can begathered only from the words actually used in the statute; and in the Court oflaw, what is unexpressed has the same value as what is unintended. We musttherefore hold that denominational institutions are within Art. 25(2)(b).'
27. In that case also, as in the present case, reference was made to theearlier decisions of this Court in The Commissioner, Hindu ReligiousEndowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : 1SCR1005 , but the latter decision has explained the legalposition with reference to the earlier decision, and after examining thearguments for and against the proposition at pages 916-918, it has beendistinctly laid down that Art. 26(b) must be read subject to Art. 25(2)(b) ofthe Constitution.
28. It has further been contended that a person who has been excommunicatedas a result of his non-conformity to religious practices is not entitled to usethe communal mosque or the communal burial ground or other communal property,thus showing that for all practical purposes he was no more to be treated as amember of the community, and is thus an outcast. Another result ofexcommunication is that no other member of the community can have any contacts,social or religious, with the person who has been excommunicated. All that istrue. But the Act is intended to do away with all that mischief of treating ahuman being as a pariah, and of depriving him of his human dignity and of hissight to follow the dictates of his own conscience. The Act is, thus, aimed atfulfilment of the individual liberty of conscience guaranteed by Art. 25(1) ofthe Constitution, and not in derogation of it. In so far as the Act has anyrepercussions on the right of the petitioner, as trustee of communal property,to deal with such property, the Act could come under the protection of Art.26(d), in the sense that his right to administer the property is notquestioned, but he has to administer the property in accordance with law. Thelaw, in the present instance, tells the petitioner not to withhold the civilrights of a member of the community to a communal property. But as against thisit is argued on behalf of the petitioner that his right to excommunicate is sobound up with religion that it is protected by clause (b) of Art. 26, and isthus completely out of the regulation of law, in accordance with the provisionsof clause (d) of that Article. But, I am nor satisfied on the pleadings and onthe evidence placed before us that the right of excommunication is a purelyreligious matter. As already pointed out, the indications are all to thecontrary, particularly the judgment to the Privy Council in the case ofHasanali v. Mansoorali I.L.R.  IndAp 1, on which great reliance wasplaced on behalf of the petitioner.
29. On the social aspect of excommunication, one is inclined to think thatthe position of an excommunicated person becomes that of an untouchable in hiscommunity, and if that is so, the Act in declaring such practises to be voidhas only carried out the strict injunction of Art. 17 of the Constitution, bywhich untouchability has been abolished and its practice in any form forbidden.The Article further provides that the enforcement of any disability arising outof untouchability shall be an offence punishable in accordance with law. TheAct, in this sense, is its logical corollary and must, therefore, be upheld.
30. In my Opinion, it has not been established that the Act has been passedby a legislature which was not competent to legislate on the subject, or thatit infringes any of the provisions of the Constitution. This petition must,therefore, fail.
Das Gupta, J.
31. In our opinion this petition should succeed.
32. The petitioner is the head of the Dawoodi Bohras who form one of theseveral sub-sects of the Shia sect of Musalmans. Dawoodi Bohras believe thatsince the 21st Imam went to seclusion, the rights, power and authority of theIman have been rightfully exercised by the Dai-ul-Mutalq, as the vice-regent ofthe Imam is seclusion. One of such rights is the exercise of disciplinarypowers including the right to excommunicate any member of the Dawoodi Bohracommunity. The existence of such a right in the Dai-ul-Mutlaq who is for thesake of convenience often mentioned as the Dai was questioned before the courtsin a case which went up to the Privy Council. But since the decision of thePrivy Council in that case, viz., Hasanali v. Mansoorali I.L.R. (1947) IndAp1, that question may be taken to have been finally settled, and it is nolonger open to dispute that the Dai, as the head of the Dawoodi Bohra communityhas the right to excommunicate any member of the community. The claim of thepresent petitioner to be the 51st Dai-ul-Mutlaq of the community was alsoupheld in that case and is no longer in dispute. The Privy Council had also toconsider in that case the question whether this power to excommunicate could beexercised by the Dai in any manner he liked and held after consideration of theprevious cases of excommunication and also a document composed about 1200 A.D.that normally members of the community can be expelled 'only at a meetingof the Jamat after being given due warning of the fault complained of and anopportunity of amendment, and after a public statement of the grounds ofexpulsion.' Speaking about the effect of excommunication their Lordshipssaid :- 'Excommunication......... necessarily involve exclusion from theexercise of religious rights in places under the trusteeship of the head of thecommunity in which religious exercises are performed.' The presentpetition, it may be mentioned, was a party to that litigation.
33. This decision was given on December 1, 1947; shortly after that, theBombay Legislature - it may be mentioned that there is a large concentration ofDawoodi Bohras in the State of Bombay - stepped in to prevent, as mentioned inthe preamble, the practice of excommunication 'which results in thedeprivation of legitimate rights and privileges of' members of certainreligious communities and enacted the Bombay Act No. XLII of 1949.
34. It is a short Act of six sections. Section 3 - the main operativesection - invalidates all excommunication of members of any religiouscommunity. Excommunication is defined in section 2 to mean 'the expulsionof a person from any community of which he is a member depriving him of rightsand privileges which are legally enforceable by a suit of a civil nature by himor on is behalf as such member'. The explanation to the definition to thissection makes it clear that a right to office or property or to worship in anyreligious place or a right to burial or cremation is included as a rightlegally enforceable by suit even though the determination of such right maydepend entirely on the decision of the question as to any religious rites orceremonies or rule or usage of a community. Section 4 makes a person who doesany act which amount to excommunication or is in furtherance of theexcommunication liable to punishment which may extend to one thousand rupees.
35. Faced with the position that the legislation wholly destroys his rightof excommunicating any member of the Dawoodi Bohra community, the Dai haspresented this petition under Art. 32 of the Constitution. He contends that theAct violates the fundamental right of the Dawoodi Bohras, including himself,freely to practise religion according to their own faith and practice - a rightguaranteed by Art. 25 of the Constitution, and further that it violates theright of the Dawoodi Bohra community to manage its own affairs in matters ofreligion guaranteed by Art. 26. Therefore, says he, the Act is void and praysfor a declaration that the Act is void and the issue of an appropriate writrestraining the respondent, the State of Bombay, its officers, servants andagents from enforcing the provisions of the Act against the petitioner and/orany other member of the Dawoodi Bohra community.
36. It may be mentioned that in the petition the legislative competence ofthe Bombay legislature to enact the Bombay Prevention of excommunication 1949was also challenged. This, however was not pressed at the time of the hearing.
37. The respondent contends that neither the right guaranteed under Art. 25nor that under Art. 26(b) is contravened by the impugned Act. Briefly stated,the respondent's case is that the right and privilege of the petitioner asDai-ul-Mutlaq to regulate the exercise of religious rights do not include theright to excommunicate any person so as to deprive him of his civil rights andprivileges. It was denied that the petitioner's power to excommunicate was anessential part of the religion of the Dawoodi Bohra community and that theright has its foundation in religion and religious doctrines, tenets and faithof the Dawoodi Bohra community. It was also denied that the right toexcommunicate is the religious practice and it was further pleaded thatassuming that it was a religious practice, it was certainly not a part ofreligion of the Dawoodi Bohra community.
38. The same points were urged on behalf of the intervener, except that thelearned counsel for the intervener wanted to reopen the question whether thepetitioner as the head of the Dawoodi Bohra community had the power toexcommunicate. As already stated, however, this question is hardly open to disputein the face of the decision of the Privy Council in Hasanali v. MansooraliI.L.R. (1947) IndAp 1 and the point was not pressed.
39. The content of Arts. 25 and 26 of the Constitution came up forconsideration before this Court in the Commissioner, Hindu Religious EndowmentsMadras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt : 1SCR1005 ; Mahant Jagannath Ramanuj Das v. The State of Orissa : 1SCR1046 ; Sri Venkatamana Devaru v. The State of Mysore : 1SCR895 ; Durgah Committee, Ajmer v. Syed Hussain Ali : 1SCR383 and several othercases and the main principles underlying these provision have by thesedecisions been placed beyond controversy. The first is that the protection ofthese articles is not limited to matters of doctrine or belief they extend alsoto acts done in pursuance of religion and therefore contain a guarantee forrituals and observances, ceremonies and modes of worship which are integralparts of religion. The second is that what constitutes an essential part of areligious or religious practice has to be decided by the courts with referenceto the doctrine of a particular religion and include practices which areregarded by the community as a part of its religion.
40. Before however we can give a proper answer to the two questions raised,viz., (i) Has the impugned Act interfered with a right freely to practisereligion and (ii) Has it interfered with the right of the Dawoodi BohraCommunity to manage its own affairs in matters of religion; it is necessary toexamine first the place of excommunication in the life of a religiouscommunity. Much valuable information about this is furnished by an article inthe Encyclopedia of the Social Sciences from the pen of Prof. Hazeltine.'Excommunication,' says Prof. Hazeltine, 'in one or another ofthe several different meanings of the term has always and in all civilizationsbeen one the principal means of maintaining discipline within religiousorganizations and hence of preserving and strengthening their solidarity.'Druids in old Britain are said to have claimed the power to exclude offendersfrom sacrifice. The early Chiristian Church exercised this power very largelyand expelled and excluded from the Christian association, those members who provedto be unworthy of its aims or infringed its rules of governance. During themiddle ages the Pope used this power frequently to secure the observance ofwhat was considered the proper religious rights and practices of Christianityby excommunicating even to kings of some European countries when theyintroduced or tried to introduce different forms of divine worship. The powerwas often used not perhaps always fairly and justly, as a weapon in thestruggle for the principle that the Church was above the State. Impartialhistorians have recognised, however, that many of the instances ofexcommunication were for the purpose of securing the adherence to the orthodoxcreed and doctrine of Christianity as pronounced by the Catholic Church. (VideThe Catholic Encylopaedia, Vol. V, articles on England and Excommunication).
41. Turning to the Canon law we find that excommunication may be inflictedas a punishment for a number of crimes, the most serious of these being,heresy, apostasy or schism. Canon 1325, section 2 defines a heretic to be a manwho while remaining nominally a Christian, pertinaciously denies or doubts anyone of the truths which must be believed de fide divina et catholica; if hefalls away entirely from the Christian faith, he is an apostate; finally if herejects the authority of the Supreme Pontiff or refuses communion with themembers of the Church who are subject to him, he is a schismatic. (Vide CannonLaw by Bouscaren and Ellis).
42. Among the Muslims also the right of excommunication appears to have beenpractised from the earliest times. The Prophet and the Imam, had this right;and it is not disputed that the Dais have also in the past exercised it on anumber of occasions. There can be little doubt that heresy or apostasy was acrime for which excommunication was in force among the Dawoodi Bohras also. Itmay be pointed out in its connection that excommunication in the case ofHasanali v. Mansoorali L.R. (1947) IndAp 1, which was upheld by the PrivyCouncil was based on the failure to comply with the tenants and traditions ofthe Dawoodi Bohra community and certain other faults.
43. According to the petitioner it is 'an integral part of the religionand religious faith an belief of the Dawoodi Bohra community' thatexcommunication should be pronounced by him in suitable cases. It was urgedthat even if this right to excommunicate is considered to be a religiouspractice as distinct from religious faith such religious practice is also apart of the religion of the Dawoodi Bohra community. It does appear to be afact that unquestioning faith in the Dai as the head of community is part ofthe creed of the Dawoodi Bohras. It is unnecessary to trace the historicalreason for this extraordinary position of the Dai as it does not appear to beseriously disputed that the Dai is considered to be the vice-regent of Imam solong as the rightful Imam continues in seclusion.
44. Mention must be made in this connection of the Mishak which everyDawoodi Bohra takes at the time of his initiation. This includes among otherthings, an oath of unquestioning faith in and loyalty to the Dai. It is urgedtherefore that faith in the existence of the disciplinary power of the Daiincluding his power to excommunicate forms one of the religious tenants of thiscommunity. The argument that Art. 25 has been contraveneb by the impugned Actis based mainly on this contention and the further contention that in any caseexcommunication is a religious practice in this community. As regards Art.26(b) the argument is that excommunication among the Dawoodi Bohras forms suchan integral part of the management of the community by the religious head thatinterference with that right cannot but amount to an interference with theright of the community to the manage its own affairs in matters of religion.
45. Let us consider first whether the impugned Act contravenes theprovisions of Art. 26(b). It is unnecessary for the purpose of the present caseto enter into the difficult question weather every case of excommunication bythe Dai on whatever grounds inflicted is a matter of religion. What appearshowever to be clear is that where an excommunication is itself based onreligious grounds such as lapse from the orthodox religious creed or doctrine(similar to what is considered heresy, apostasy or schism under the Cannon Law)or breach of some practice considered as an essential part of the religion bythe Dawoodi Bohras in general, excommunication cannot but be held to be for thepurpose of maintaining the strength of the religion. It necessarily followsthat the exercise of this power of excommunication on religious grounds formspart of the management by the community, through its religious head, 'ofits own affairs in matters of religion.' The impugned Act makes even suchexcommunications invalid and takes away the power of the Dai as the head of thecommunity to excommunicate even on religious grounds. It therefore, clearlyinterferes with the right of the Dawoodi Bohra community under clause (b) ofArt. 26 of the Constitution.
46. That excommunication of a member of a community will affect many of hiscivil rights is undoubtedly true. This particular religious denomination ispossessed of properties and the necessary consequence of excommunication willbe that the excommunicated member will lose his rights of enjoyment of suchproperty. It might be thought undesirable that the head of a religiouscommunity would have the power to take away in this manner the civil right ofany person. The right given under Art. 26(b) has not however been made subjectto preservation of civil rights. The express limitation in Art. 26 itself isthat this right under the several clauses of the article will exist subject topublic order, morality and health. It has been held by this Court in Sri VenkataramanaDevaru v. The State of Mysore : 1SCR895 , that the right under Art.26(b) is subject further to clause 2 of Art. 25 of the Constitution.
47. We shall presently consider whether these limitations on the rights of areligious community to manage is own affairs in matters of religion can come tothe help of the impugned Act. It is clear however that apart form theselimitations the Constitution has not imposed any limit on the right of areligious community to manage its own affairs in matters of religion. The factthat civil rights of a person are affected by the exercise of this fundamentalright under Art. 26(b) is therefore of no consequence. Nor it is possible tosay that excommunication is prejudicial to public order, morality and health.
48. Though there was a statement in paragraph 10 of the respondent's counteraffidavit that 'the religious practice, which runs counter to the publicorder, morality and health must give way before the good of the people of theState', the learned Attorney-General did not advance any argument insupport of this plea.
49. It remains to consider whether the impugned Act comes within the savingprovisions embodied in clause 2 of Art. 25. The clause is in these words :-
'Nothing in this Articleshall effect the operation of any existing law or prevent the State from makingany law -
(a) regulating or restrictingany economic, financial, political or other secular activity which may beassociated with religious practice;
(b) providing for social welfareand reform or the throwing open of Hindu religious institutions of a publiccharacter to all classes and sections of Hindus.'
50. Quite clearly, the impugned Act cannot be regarded as a law regulatingor restricting any economic, financial, political or other secular activity.Indeed that was not even suggested on behalf of the respondent State. It wasfaintly suggested however that the Act should be considered to be a law'providing for social welfare and reform.' The mere fact that certaincivil rights which might be lost by members of the Dawoodi Bohra community as aresult of excommunication even though made on religious grounds and that theAct prevents such loss, does not offer sufficient basis for a conclusion thatit is a law 'providing for social welfare and reform.' The barring ofexcommunication on grounds other than religious grounds say, on the breach ofsome obnoxious social rule or practice might be a measure of social reform anda law which bars such excommunication merely might conceivably come within thesaving provisions of clause 2(b) of Art. 25. But barring of excommunication onreligious grounds pure and simple, cannot however be considered to promotesocial welfare and reform and consequently the law in so far as it invalidatesexcommunication on religious grounds and takes away the Dai's power to imposesuch excommunication cannot reasonably be considered to be a measure of socialwelfare and reform. As the Act invalidates excommunication on any groundwhatsoever, including religious grounds, it must be held to be in clearviolation of the right of the Dawoodi Bohra community under Art. 26(b) of theConstitution.
51. It is unnecessary to consider the other attack on the basis of Art. 25of the Constitution.
52. Our conclusion is that the Act is void being in violation of Art. 26 ofthe Constitution. The contrary view taken by the Bombay High Court in Taher Saifuddin v. Tyebbhai Moosaji : AIR1953Bom183 , is not correct.
53. We would, therefore, allow the petition, declare the act to be void anddirect the issue of a writ in the nature of mandamus on the respondent, theState of Bombay, not to enforce the provisions of the Act. The petitioner willget his costs.
54. I agree that the petition should succeed and I generally concur in thereasoning of Das Gupta J., by which he has reached this conclusion. In view,however, of the importance of the case I consider it proper to state in my ownwords the grounds for my concurrence.
55. It was not in dispute that the Dawoodi Bohras who form a sub-sect of theShia sect of Muslims is a 'religious denomination' within the openingwords of Art. 26 of the Constitution. There are a few further matters whichwere not in controversy on the basis of which the contentions urged in supportof the petition have to be viewed. These might now be briefly stated :
(1) It was the accepted tenet ofthe Dawoodi Bohra faith that God always had and still has a representative onearth through whom His commands are conveyed to His people. That representativewas the Imam. The Dai was the representative of the Imam and conveyed God'smessage to His people. The powers of the Dai were approximated to those of theImam. When the Imam came out of seclusion, the powers of the Dai would cease.The chain of intercession with the Almighty was as follows : The Dai - the Imam- the Holy Prophet - and the one God (See Per Marten J. in Advocate General ofBombay v. Yusufalli Ebrahim 24 Bom. L.R. 1060].
(2) The position and status ofthe petitioner as the Dai-ul-Mutlaq was not contested since the same had beenupheld by the Privy Council the decision reported as Hasanali v. MansooraliI.L.R.  IndAp 1.
(3) It was not in dispute thatsubject to certain limitations and to the observance of particular formalitieswhich were pointed out by the Privy Council in the decision just referred to,that the Dai-ul-Mutlaq has the power of excommunication and indeed, as observedby Lord Porter in that judgment, 'the right of excommunication by aDai-ul-Mutlaq was not so strenuously contested as were the limits within whichit is confined.'
(4) The Dai-ul-Mutlaq was notmerely a religious leader - the religious head of the denomination but was thetrustee of the property of the community.
(5) The previous history of thecommunity shows that excommunicated persons were deprived of the exercise ofreligious rights. It was contended before the Privy Council that the effect ofan excommunication was in the nature merely of social ostracism but this wasrejected and it was held to have a larger effect as involving an exclusion fromthe right to the enjoyment of property dedicated for the benefit of thedenomination and or worship in places of worship similarly dedicated or setapart.
56. The validity of Bombay Act 42 of 1949 (which I shall hereafter refer toas the impugned Act) has to be judged in the light of these admitted premises.Articles 25 and 26, which are urged as violated by the impugned Act run :
'25. (1) Subject to publicorder, morality and health and to the other provisions of this Part, allpersons are equally entitled to freedom of conscience and the right freely toprofess, practice and propagate religion.
(2) Nothing in this article shallaffect operation of any existing law or prevent the State from making any law -
(a) regulating or restrictingany economic, financial, political or other secular activity which may beassociated with religious practice;
(b) providing for socialwelfare and reform or the throwing open of Hindu religious institutions of apublic character to all classes and sections of Hindus.
Explanation I. - The wearing andcarrying of kirpans shall be deemed to be included in the profession of theSikh religion.
Explanation II. - In sub-clause(b) of clause (2), the reference to Hindus shall be construed as including areference to persons professing the Sikh, Jaina or Buddhist religion, and thereference to Hindu religious institutions shall construed accordingly.
26. Subject to public order,morality and health, every religious denomination or any section thereof shallhave the right -
(a) to establish and maintaininstitutions for religious and charitable purposes;
(b) to manage its own affairsin matters of religion;
(c) to own and acquire movableand immovable property; and
(d) to administer such propertyin accordance with law.'
57. I would add that these Articles embody the principle of religioustoleration that has been the characteristic feature of Indian civilization fromthe start of history, the instances and periods when this feature was absentbeing merely temporary aberrations. Besides, they serve to emphasize thesecular nature of Indian Democracy which the founding fathers considered shouldbe the very basis of the Constitution.
58. I now proceed to the details of the provisions of the impugned Act whichare stated to infringe the rights guaranteed by these two Articles. Thepreamble to the impugned Act recites :
'Whereas it has come to thenotice of Government that the practice prevailing in certain communities ofexcommunicating its members is often followed in a manner which results in thedeprivation of legitimate rights and privileges of its members;
And whereas in keeping with thespirit of changing times and in the public interest, it is expedient to stopthe practice; it is hereby enacted as follows :-'
59. Section 3 is the operative provision which enacts :
'3. Notwithstanding anything contained in any law,custom or usage for the time being in force to the contrary, no excommunicationof a member of any community shall be valid and shall be of any effect.'
60. Section 4 penalises any person who does 'any act which amounts toor is in furtherance of the excommunication' and subjects him to criminalproceedings as regards which provision is made in Sections 5 and 6. Section 2contains two definitions :
(1) of the word'community' which would include the religious denomination of DawoodiBohras, and
(2) of 'excommunication'as meaning :
'the expulsion of a personfrom any community of which he is a member depriving him of rights andprivileges which are legally enforceable by a suit of civil nature by him or onhis behalf as such members;
Explanation. - For the purposesof clause a right legally enforceable by a suit of civil nature shall includethe right to office or property or to worship in any religious place or a rightof burial or cremation, notwithstanding the fact that the determination of suchright depends entirely on the decision of the question as to any religiousrites or ceremonies or rule or usage of a community.'
61. The question to consider is whether a law which penalisesexcommunication by a religious denomination or by its head whether or not theexcommunication be for non-conformity to the basic essentials of the religionof that denomination and effects the nullification of such excommunication asregards the rights of the person excommunicated would or would not infringe therights guaranteed by Arts. 25 and 26.
62. First as to Art. 25, as regards clause (1) it was not in dispute thatthe guarantee under it protected not merely freedom to entertain religiousbeliefs but also acts done in pursuance of that religion, this being made clearby the use of the expression 'practice of religion'. No doubt, theright to freedom of conscience and the right to profess, practise and propagatereligion are all subject to 'public order, morality or health and to theother provisions of this Part' but it was not suggested that (subject toan argument about the matter being a measure of social reform) the practice ofexcommunication offended public order, morality or health or any other part ofthe Constitution.
63. Here is a religious denomination within Art. 26. The Dai-ul-Mutlaq isits spiritual leader, the religious head of the denomination and in accordancewith the tenets of that denomination he had invested in him the power toexcommunicate dissidents. Pausing here, it is necessary to examine the rationalbasis of the excommunication of persons who dissent from the fundamental tenetsof a faith. The identity of a religious denomination consists in the identityof its doctrines, creeds and tenets and these are intended to ensure the unityof the faith which its adherents profess and the identity of the religiousviews are the bonds of the union which binds them together as one community. AsSmith B. said in Dill v. Watson (1836) 2 JR 48, in apassage quoted by Lord Halsbury in Free Church of Scotland v. Overtoun A.C. 515 :
'In the absence ofconformity to essentials, the denomination would not be an entity cemented intosolidity by harmonious uniformity of opinion, it would be a mere incongruousheap of, as it were, grains of sand, thrown together without being united, eachof these intellectual and isolated grains differing from every other, and thewhole forming a but nominally united while really unconnected mass; fraughtwith nothing but internal dissimilitude, and mutual and reciprocalcontradiction and dissension.' A denomination within Art. 26 and personswho are members of that denomination are under Art. 25 entitled to ensure thecontinuity of the denomination and such continuity is possible only bymaintaining the bond of religious discipline which would secure the continuedadherence of its members to certain essentials like faith, doctrine, tenets andpractices. The right to such continued existence involves the right to maintaindiscipline by taking suitable action inter alia of excommunicating those whodeny the fundamental bases of the religion. The consequences of the exercise ofthat power vested in the denomination or in its head - a power which isessential for maintaining the existence and unity of denomination mustnecessarily be the exclusion of the person excommunicated from participation inthe religious life of the denomination, which would include the use of placesof worship or consecrated places for burial dedicated for the use of themembers of the denomination and which are vested in the religious head as atrustee for the denomination.
64. The learned Attorney-General who appeared for the respondent submittedthree points : (1) Assuming that excommunication was part of the religiouspractice of the denomination, still there was no averment in the petition thatthe civil results flowing from excommunication in the shape of exclusion fromthe beneficial use of denominational property was itself a matter of religion.In other words, there was no pleading that the deprivation of the civil rightsof a person excommunicated was a matter of religion or of religious practice.(2) The 'excommunication' defined by the Act deals with rights ofcivil nature as distinguished from religious or social rights or obligationsand a law dealing with the civil consequence of an excommunication does notviolate the freedom protected by Art. 25 or Art. 26. (3) Even on the basis thatthe civil consequences of an excommunication are a matter of religion, still itis a measure of social reform and as such the legislation would be saved by thewords in Art. 25(2)(b).
65. I am unable to accept any of the these contentions as correct. (1) FirstI do not agree that the pleadings do not sufficiently raise the point that ifexcommunication was part of the 'practice of a religion' theconsequences that flow therefrom were not also part of the 'practice ofreligion'. The position of the Dai as the religious head of thedenomination not being disputed and his power to excommunicate also not beingin dispute and it also being admitted that places of worship and burial groundswere dedicated for the use of the members of the denomination, it appears to methat the consequence of the deprivation of the use of these properties bypersons excommunicated would be logical and would flow from the order ofexcommunication. It could not be contested that the consequence of a validorder of excommunication was that the person excommunicated would cease to beentitled to the benefits of the trusts created or founded for the denominationor to the beneficial use or enjoyment of denominational property. If theproperty belongs to a community and if a person by excommunication ceased to bea member of that community, it is a little difficult to see how his right tothe enjoyment of the denominational property could be divorced from thereligious practice which resulted in his ceasing to be a member of thecommunity. When once it is conceded that the right guaranteed by Art. 25(1) isnot confined to freedom of conscience in the sense of the right to hold abelief and to propagate that belief, but includes the right to the practice ofreligion, the consequences of that practice must also bear the same complexionand be the subject of a like guarantee.
(2) I shall reserve for later consideration the point about the legislationbeing saved as a matter of social reform under Art. 25(2)(b), and continue todeal with the argument that the impugned enactment was valid since it dealtonly with the consequences on the civil rights, of persons excommunicated. Ithas, however, to be pointed out that though in the definition of'excommunication' under s. 2(b) of the impugned Act the consequenceson the civil rights of the excommunicated persons is set out, that is for thepurpose of defining an 'excommunication'. What I desire to point outis that it is not as if the impugned enactment saves only the civilconsequences of an excommunication not interfering with other consequences of anexcommunication falling within the definition. Taking the case of the DawoodiBohra community, if the Dai excommunicated a person on the ground offorswearing the basic tenets of that religious community the Dai would becommitting an offence under s. 4, because the consequences according to the lawof that religious denomination would be the exclusion from civil rights of theexcommunicated person. The learned Attorney-General is therefore not right inthe submission that the Act is concerned only with the civil rights of theexcommunicated person. On the other hand, it would be correct to say that theAct is concerned with excommunications which might have religious significancebut which also operate to deprive persons of their civil rights.
66. Article 26 confers on every religious denomination two rights which arerelevant in the present context, by clause (b) - 'to manage its ownaffairs in matters of religion' - and by the last clause - clause (d) -'to administer such property' which the denomination owns or hasacquired (vide clause (c)) 'in accordance with law.' In consideringthe scope of Art. 26 one has to bear in mind two basic postulates : First thata religious denomination is possessed of property which is dedicated fordefinite uses and which under Art. 26(d) the religious denomination has theright to administer. From this it would follow that subject to any law groundedon public order, morality or health the limitations with which Art. 26 opens,the denomination has a right to have the property used for the purposes forwhich it was dedicated. So far as the present case is concerned, the managementof the property and the right and the duty to ensure the proper application ofthat property is admittedly vested in the Dai as the religious head of the denomination.Article 26(d) speaks of the administration of the property being in accordancewith law and the learned Attorney-General suggested that a valid law could beenacted which would permit the diversion of those funds to purposes which thelegislature in its wisdom thought it fit to appropriate. I feel wholly unableto accept this argument. A law which provides for or permits the diversion ofthe property for the use of persons who have been excluded from thedenomination would not be 'a law' contemplated by Art. 26(d). Leavingaside for the moment the right of excommunicated person to the enjoyment ofproperty dedicated for the use of a denomination let me take the case of aperson who has renounced that religion, and in passing it might be observedthat even in cases of an apostate according to the principles governing theDawoodi Bohra denomination there is no ipso facto loss of rights, only apostasyis a ground for excommunication which however could take place without serviceof notice or an enquiry. It could not be contended that an apostate would beentitled to the beneficial use of property, dedicated to the Dawoodi Bohracommunity be it the mosque where worship goes on or other types of propertylike consecrated burial grounds etc. It would be obvious that if the Daipermitted the use of the property by an apostate without excommunicating him hewould be committing a dereliction of his duty as the supreme head of thereligion - in fact an act of sacrilege besides being guilty of a breach of trust.I consider that it hardly needs any argument to show that if a law permitted orenjoined the use of the property belonging to the denomination by an apostateit would be a wholly unauthorised diversion which would be a violation of Art.26(d) and also of Art. 26(c), not to speak of Art. 25(1). The other postulateis the position of the Dai as the head of the religious denomination and as themedium through which spiritual grace is brought to the community and that thisis the central part of the religion as well as one of the principal articles ofthat faith. Any denial of this position is virtually tantamount to a denial ofthe very foundation of the faith of the religious denomination.
67. The attack on the constitutionality of the Act has to be judged on thebasis of these two fundamental points. The practice of excommunication is ofancient origin. History records the existence of that practice from Pagan timesand Aeschyles records 'The exclusion from purification with holy water ofan offender whose hands were defiled with bloodshed.' Later the Druids aresaid to have claimed the right of excluding offenders from sacrifice. Suchcustomary exclusions are stated to have obtained in primitive semitic tribesbut it is hardly necessary to deal in detail with this point, because so far asthe Muslims, and particularly among the religious denomination with which thispetition is concerned, enough material has been set out in the judgment of thePrivy Council already referred.
68. Pausing here, it might be mentioned that excommunication might bear twoaspects : (1) as a punishment for crimes which the religious communityjustifies putting one out of its fold. In this connection it may be pointed outthat in a theocratic State the punitive aspect of excommunication might getemphasized and might almost take the form of a general administration byreligious dignitaries of ordinary civil law. But there is another aspect whichis of real relevance to the point now under consideration. From this point ofview excommunication might be defined as the judicial exclusion from the rightand privileges of the religious community to whom the offender belongs. Here itis not so much as a punishment that excommunication is inflicted but is used asa measure of discipline for the maintenance of the integrity of the community,for in the ultimate analysis the binding force which holds together a religiouscommunity and imparts to it a unity which makes it a denomination is a commonfaith, common belief and a belief in a common creed, doctrines and dogma. Acommunity has a right to insist that those who claim to be within its fold arethose who believe in the essentials of its creed and that one who asserts thathe is a member of the denomination does not, at least, openly denounce theessentials of the creed, for if everyone were at liberty to deny theseessentials, the community as a group would soon cease to exist. It is in thissense that it is matter of the very life of a denomination that it exercisesdiscipline over its members for the purpose of preserving unity of faith, atleast so far as the basic creed of doctrines are concerned. The impugnedenactment by depriving the head of the power and the right to excommunicate andpenalising the exercise of the power, strikes at the very life of the communityby rendering it impotent to protect itself against dissidents and schismatics.It is thus a violation of the right to practise religion guaranteed by Art.25(1) and is also violative of Art. 26 in that it interferes with the rights ofthe Dai as the trustee of the property of the denomination to so administer itas to exclude dissidents and excommunicated persons from the beneficial use ofsuch property.
69. It is admitted however in the present case that the Dai as the head ofthe denomination has vested in him the power, subject to the proceduralrequirements indicated in the judgment of the Privy Council, to excommunicatesuch of the members of the community as do not adhere to the basic essentialsof the faith and in particular those who repudiate him as the head of thedenomination and as a medium through which the community derives spiritualsatisfaction or efficiency mediately from the God-head. It might be that if theenactment had confined itself to dealing with excommunication as a punishmentfor secular offences merely and not as an instrument for the self preservationof a religious denomination the position would have been different and in suchan event the question as to whether Arts. 25 and 26 would be sufficient torender such legislation unconstitutional might require serious consideration.That is not the position here. The Act is not confined in its operation to theeventualities just now mentioned but even excommunication with a view to thepreservation of the identity of the community and to prevent what might beschism in the denomination is also brought within the mischief of theenactment. It is not possible, in the definition of excommunication which theAct carries, to read down the Act so as to confine excommunication as apunishment of offences which are unrelated to the practice of the religionwhich do not touch and concern the very existence of the faith of thedenomination as such. Such an exclusion cannot be achieved except by rewritingthe section.
3. The next question is whether the impugned enactment could be sustained asa measure of social welfare and reform under Art. 25(2)(b). The learnedAttorney-General is, no doubt, right in his submission that on the decision ofthis Court in the Mulki Temple case - (Venkataramana Devaru v. State of Mysore : 1SCR895 , the right guaranteed under Art. 26(b) is subject to a lawprotected by Art. 25(2)(b) The question then before the Court related to thevalidity of a law which threw open all public temples, even those belonging to'a religious denomination' to 'every community of Hindusincluding 'untouchables'' and it was held that, notwithstanding that theexclusion of these communities from worship is such a temple was an essentialpart of the 'practice of religion' of the denomination, theconstitutionality of the law was saved by the second part of the provision inArt. 25(2)(b) reading : 'the throwing open of Hindu religious institutionsof a public character to all classes and section of Hindus'. The learnedAttorney-General sought support from this ruling for the proposition that Art.25(2)(b) could be invoked to protect the validity of a law which was 'ameasure of social welfare and reform' notwithstanding that it involved anabrogation of the whole or part of the essentials of a religious belief or of areligious practice. I feel unable to accept the deduction as flowing from theMulki Temple case. That decision proceeded on two bases : (1) As regards theposition of 'untouchables', Art. 17 had made express provisionstating :
''Untouchability' is abolished and its practice inany form is forbidden. The enforcement of any disability arising out of'Untouchability' shall be an offence punishable in accordance with law.'
and that had to be recognised as a limitation on the rights of religiousdenominations however basic and essential the practice of the exclusion ofuntouchables might be in its tenets or creed. (2) There was a special saving asregards laws providing for 'throwing open of public Hindu ReligiousInstitutions to all classes and sections of Hindus' in Art. 25(2)(b), andeffect had to be given to the wide language in which this provision wascouched. In the face of the language used, no distinction could be drawnbetween beliefs that were basic to a religion, or religious practises that wereconsidered to be essential by a religious sect, on the one hand, and on theother beliefs and practices that did not form the core of a religion or of thepractices of that religion. The phraseology employed cut across and effacedthese distinctions.
70. But very different considerations arise when one has to deal withlegislation which is claimed to be merely a measure 'providing for socialwelfare and reform'. To start with, it has to be admitted that this phraseis, as contrasted with the second portion of Art. 25(2)(b), far from preciseand is flexible in its content. In this connection it has to be borne in mindthat limitations imposed on religious practices on the ground of public order, moralityor health have already been saved by the opening words of Art. 25(1) and thesaving would cover beliefs and practices even though considered essential orvital by those professing the religion. I consider that in the context in whichthe phrase occurs, it is intended to save the validity only of those laws whichdo not invade the basic and essential practices of religion which areguaranteed by the operative portion of Art. 25(1) for two reasons : (1) To readthe saving as covering even the basic essential practices of religion, would ineffect nullify and render meaningless the entire guarantee of religious freedom- a freedom not merely to profess, but to practice religion, for very fewpieces of legislation for abrogating religious practices could fail to besubsumed under the caption of 'a provision for social welfare ofreform'. (2) If the phrase just quoted was intended to have such a wideoperation as cutting at even the essentials guaranteed by Art. 25(1), therewould have been no need for the special provision as to 'throwing open ofHindu religious institutions' to all classes and sections of Hindus sincethe legislation contemplated by this provision would be par excellence one ofsocial reform.
71. In my view by the phrase 'laws providing for social welfare andreform' it was not intended to enable the legislature to'reform', a religion out of existence or identity. Article 25(2)(a)having provided for legislation dealing with 'economic, financial,political or secular activity which may be associated with religiouspractices', the succeeding clause proceeds to deal with other activitiesof religious groups and these also must be those which are associated withreligion. Just as the activities referred to in Art. 25(2)(a) are obviously notof the essence of the religion, similarly the saving in Art. 25(2)(b) is notintended to cover the basic essentials of the creed of a religion, which isprotected by Art. 25(1).
72. Coming back to the facts of the present petition, the position of the Dai-ul-Mutlaq,is an essential part of the creed of the Dawoodi Bohra sect. Faith in hisspiritual mission and in the efficacy of his administration is one of the bondsthat hold the community together as a unit. The power of excommunication isvested in him for the purpose of enforcing discipline and keep the denominationtogether as an entity. The purity of the fellowship is secured by the removalof persons who has rendered themselves unfit and unsuitable for membership ofthe sect. The power of excommunication for the purpose of ensuring thepreservation of the community, has therefore a prime significance in thereligious life of every member of the group. A legislation which penalises thispower even when exercised for the purpose above-indicated cannot be sustainedas a measure of social welfare or social reform without eviscerating theguarantee under Art. 25(1) and rendering the protection illusory.
73. In my view the petitioner is entitled to the relief that he seeks andthe petition will accordingly be allowed.
BY COURT : In accordance with the majority view of this Court, the petitionis allowed. The petitioner is entitled to his costs.
74. Petition allowed.