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

A Constitution Bench of the Supreme Court has doubted the correctness of the 1962 judgment in the case Sardar Syedna Taher Saifuddin Saheb v. State of Bombay which upheld the right of Dawoodi Bohra community to excommunicate its members and has referred it to the 9-judge bench which is considering the questions in Sabarimala."The question is whether the exclusionary practice which prevails in the Dawoodi Bohra community of excommunicating its members will stand the test of Constitutional morality?", the Bench observed while making the reference.In Sardar Syedna, a Constitution Bench by 4:1 majority had struck down the Bombay Prevention of Excommunication Act, 1949 which prohibited excommunication by religious denominations. On February 10, another Constitution Bench opined that Sardar Syedna requires to be reconsidered in view of the new developments in Constitutional jurisprudence expanding the understanding of the concepts of constitutional morality and individual dignity.The Constitution Bench was considering a writ petition filed by Central Board of Dawoodi Bohra Community in 1986 seeking a reconsideration of Sardar Syedna decision. While the writ petition was pending, in 2016, the State Assembly passed the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, which repealed the Prevention of Excommunication Act. In this backdrop, the petitioners also sought that the 2016 Act be given effect to as regards Dawoodi Bohra community as well, after revisiting the Sardar Syedna verdict.Excommunication needs reconsideration in present day contextThe 5-judge bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari at the outset noted that the issue the requires examination in the "present day context".The judgment authored by Justice Oka took note of the developments of Constitutional law following the judgments in KS Puttaswamy vs Union of India (which upheld right to privacy as a fundamental right), Navtej Johar vs Union of India (which decriminalised homosexuality among consenting adults), Indian Young Lawyers Association vs Union of India (which invalidated the prohibition on women in menstruating age to enter Sabarimala temple). Referring to the progressive march of law, the judgment noted that "interpretation of various provisions of the Constitution made by this Court decades back has undergone a drastic change".Article 26 subject to Constitutional moralityThe judgment made extensive reference to the Sabarimala case judgment, which held that the right of a religious denomination under Article 26 is subject to Constitutional morality. The term morality used in Article 26 was interpreted to mean Constitutional morality."The freedom of religious denominations under Article 26 must be read in a manner that requires the preservation of equality, and other individual freedoms which may be impacted by unrestricted exercise...While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution", the judgment quoted from Justice Chandrachud's judgment in the Sabarimala case.Excommunication equal to civil deathThe Court then discussed the drastic consequences which an individual would be faced with upon excommunication."A person who is excommunicated by the community, will not be entitled to use the common property of the community and the burial/cremation grounds of the community. In a sense, such a person will virtually become untouchable (being banished or ostracized) within the community. In a given case, it will result in his civil death"."It can be argued that Constitutional morality which overrides the freedom conferred by clause (b) of Article 26, will not permit the civil rights of excommunicated persons which originate from the dignity and liberty of human beings to be taken away", the judgment further noted.Constitution cannot tolerate anything which takes away individual dignity"The concepts of equality, liberty and fraternity are certainly part of our Constitutional morality. Basic ideas enshrined in our Constitution are part of Constitutional morality. The conscience of our Constitution is Constitutional morality. Hence, it is contended that excommunication or ostracisation is anathema to the concepts of liberty and equality. It is against the antidiscriminatory ethos which forms a part of Constitutional morality. Therefore, the Constitutional Court ought not to tolerate anything which takes away the right and privilege of any person to live with dignity as the concept of Constitutional morality does not permit the Court to do so"In this backdrop, the bench...

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

Manu Sebastian

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