CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY & ANR. versus THE STATE OF MAHARASHTRA &ANR.

Citation: [2023] 1 S.C.R. 293 · Decided: 10-02-2023 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Directions issued

Cited by 1 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
293
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY
& ANR.
V.
THE STATE OF MAHARASHTRA &ANR.
(Writ Petition (Civil) No. 740 of 1986)
FEBRUARY 10, 2023 
[SANJAY KISHAN KAUL, SANJIV KHANNA,
ABHAY S. OKA, VIKRAM NATH AND
J. K. MAHESHWARI, JJ.]
Bombay Protection of Ex-communication Act, 1949 – The Act,
1949 provided that ex-communication of a member of any community
shall be invalid and shall be of no effect – Head of the Dawoodi
Bohra community challenged the Act on grounds that it infringed
on fundamental rights guaranteed u/Arts.25 and 26 of the
Constitution – A Constitution Bench of Supreme Court (of five
Judges) in the case of Sardar Syedna, by majority, held that ex-
communication amongst the Dawoodi Bohras forms an integral part
of the management of the community and therefore, interference
with the right to ex-communicate amounts to interference with the
right of the community to manage its own affairs in matters of
religion – The Supreme Court held that as the Ex-communication
Act invalidates excommunication on any ground whatsoever
including religious grounds, it must be held to be in clear violation
of the right of the Dawoodi Bohra community guaranteed u/Art.26(b)
of the Constitution – Present writ petition filed seeking
reconsideration and overruling of that decision and for issuing a
writ of mandamus directing the respondent-State to give effect to
the provisions of the Act, 1949 – Meanwhile, the Maharashtra
Protection of People from Social Boycott Act repealed the Ex-
communication Act – Whether the view taken by Constitution Bench
in the case of Sardar Syedna requires reconsideration – Held: The
exercise of balancing the rights under Art.26(b) with other rights
under Part III and in particular Art.21 was not undertaken by the
293
   [2023] 1 S.C.R. 293
A
B
C
D
E
F
G
H
294
SUPREME COURT REPORTS
[2023] 1 S.C.R.
Constitution Bench in the case of Sardar Syedna – This question is
substantially in issue before the Bench of nine Judges in Sabrimala
Temple Review -9JJ – Moreover, the question of whether protection
can be given by Art.26(b) to the practice of ex-communication also
is to be tested on the touchstone of the concept of Constitutional
morality as the said right is subject to morality – Thus, these questions
are the two main grounds on which the said decision may need
reconsideration by a larger Bench – The Bench of nine-Judges
(Sabrimala Temple Review –9 JJ) framed seven questions of law,
out of which questions 3 and 4 also arise for consideration in the
present writ petition – Present writ petition, thus, deserves to be
tagged with Review Petition pending before the Bench of nine
Hon’ble Judges – Registry to seek appropriate directions in this
behalf from Hon’ble the Chief Justice of India – Constitution of
India – Arts. 25 and 26 – Maharashtra Protection of People from
Social Boycott (Prevention, Prohibition and Redressal) Act, 2016.
Constitution of India – Interpretation of Constitutional
provisions – Approach to be adopted – Held: Constitution is a living
instrument – The originalist interpretation rendered to provisions
of the Constitution decades back, cannot continue to be valid for
all times to come if the Constitution is to continue as a living
instrument with continued relevance – Interpretation of law must
keep pace with changing needs of society.
Constitution of India – Arts. 25 and 26 – Morality in the
context of Arts. 25 and 26 – Discussed.
While passing directions, the Court
HELD: Whether the writ petition survives for consideration:
1.1. By a majority, the Constitution Bench in the case of
Sardar Syedna held that the Bombay Protection of Ex-
communication Act, 1949 was void being in violation of Article
26(b) of the Constitution. However, considering the definition of
‘community’ under Section 2(a) of the Ex-communication Act,
the applicability thereof was not confined only to the Dawoodi
A
B
C
D
E
F
G
H
295
Bohra community. The provisions of the Ex-communication Act
were applicable to the practice of ex-communication prevailing
in different religions, castes or sub-castes, whereas the findings
rendered by the majority view are only in respect of the right of
the head of the Dawoodi Bohra community to ex-communicate a
member of the community. Thus, the Ex-communication Act in
its entirety could not have been declared void. Therefore, even
assuming that the view taken by the Constitution Bench is correct,
the question which certainly survives for consideration is whether
the pra

Excerpt shown. Read the full judgment & AI analysis in Lexace.