LexSARDAR SYEDNA TAHER SAIFUDDIN SAHEB versus THE STATE OF BOMBAY
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496 SUI- REME COURT REPORTS (1962) SUPP. S'ARDAR SYEDNA l'AHER SAIFUDDIK SAHEB v. THE STATE OF BO'.\IBAY (B. P. Si~llA c. J., A. K. SARKAR, K. c. DAS GUP'l'A, N. RAJAOOPALA AYYANOAU and J. R. Mun110LKAR, JJ.) Excommunication, Pret·enlion of-Enactment-Conalitu- ticnal rolidity-Fundamrntal rights of membua of Dawoodi Bohra r.cmmunity and its religious Brad, if infringtd-Bomhay l:'ret·en:ion of Excommunication Act, I949(Bom. 42 oJ 1949), sa. 2, J-l'o1.stitution of ft,dia, Arts. 25, 26, 17. By s.3 of the Bombay Prevention of Excommunication Act, 1949 (Born. 42 of 1949), it is provided thal "Norwithstanding anything contained _in al\Y law, custom or usage for the time being in force, to the contrary, no t'xcommunication of a mem· bcr of any community shall be valid and shall be of any effect." The preamble to the Act stated, inter alia, that in keeping with the changing times and in the public intrrcst, it was expedient to stop the practice of excommunication prevalent in certain con1munitics and the definition of the word "community'' contained ins. 2 of the Act included the reJig;ous denomina- tion of Dawoodi Bohras. The pietilioner, who wou the religi· ous head ,,f the Dawoodi Bohra community and trustee of its property, challenged the constilutional validiry of the Act on the ground thot it violated its fundamental rights guaranteed by Arts. 25 and 26 of the Corutitution. Reliance was placed on behalf of the petitioner on the decision of Judicial Com- mittee of the Privy Council in Ila.an Ali v. Mansoor Ali, (1947) L.R.75 I.A. I, to which he was a party, as r~ognising his right a.< the 5lst Dai-ul-Mutlaq of the community to ex- communicate any of its membcn under prescribed limits, /leld, (Per Sarkar, Das Gupta and Mudholkar, JJ., Sinha, C. J., diaaenting), that the impugned Act violated Arts. 25 and 26 of the Cons1itution and was, therefore, void. It was evident from the religious faith and :enets of the Dawoodi Bohra community that the exercise of the power ol excommunication by its religious head on religioua grounds formed part of the management of its affairs In matters of religion and the impugned Act in making even ruch excom- munication invalid infringed the right of the community under Art. 26(b) of the Constitution. H1J1G11 .41i v. .llaM<JOrali, (1947) L. R. 75 I. A. I, nfc:ncd to. "' 2 S.C.R. SUPREME COURT REPORTS 497 It is well settled that that Arts. 25 and 26 of the Consti- tution protect not merely religious doctrines and belif'fs but also acts done in pursuance of religion and thus bUarant~e rituals and observances, ceremonies and modes of worship which are integral parts of religion. What is essential p_art of a religion or what~ts religious practice has to be judgerl m the light of its doctrine and such practices as arc regarded by the community as a part of iis religion must also be included in them. Commissioner of Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt, [I 954] S. C. R. 1005, Mahant Jagannath Ramanuj Das v. The State of Orissa, [1954] S.C.R. 1046, Sri Venkataramana Devaru v. State of Mysore,· [1958] S.C.R. 891 and Durgah Committee, Ajmer v. Sye~ Hussain Ali, [1962] 1 S.C.R, 383, relied on. The fundamental right under Art. 26(b) is not subjected to preservation of civil rights and its only limitations are those expressly mentioned by the Article itself i e. public order, morality and health and those mentioned by cl. 2 of Art. 25 as has been held by this court. The fact that in the instant case civil rights of an excommunicated person would bC affec- ted by the exercise of the fundamental right under Art, 26(b) can, therefore, be of no consequence nor could it be said that excommunication was prejudicial to public order, morality and health. The impugned Act did not fall within Art. 25(2) (a.) nor could it be said to be a law "providing for social welfare.and reform" within the meaning of Art. 25(2)(b) of the Constitu· tion. It barred excommunication even on religious ground'·' and could not be said to promote social welfare and reform even though it sought to prevent consequent loss of civil rights. Sri Venkataramana Devaru v. State of Mysore, [1958] S.C.R. 895, referred to. Tahu Saifuddin v. Tyebbhai Moo.aji, A. I. R. 1953 Born. 183, disapproved. Per Sinha, C. J.-It was not <0rrcct to say that the Privy Council in Hasana/i v. Mansoorali, held that the right or the Da
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