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2023 LiveLaw (SC) 97
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
SANJAY KISHAN KAUL; J., SANJIV KHANNA; J., ABHAY S. OKA; J., VIKRAM NATH; J., J.K. MAHESHWARI; J.
February 10, 2023
WRIT PETITION (CIVIL) NO.740 OF 1986 with CRIMINAL APPEAL NO. 39 OF 1991
Central Board of Dawoodi Bohra Community & Anr. versus The State of Maharashtra & Anr.
Summary: - Supreme Court Constitution Bench doubts the correctness of the
decision in Sardar Syedna Saifuddin v. State of Bombay, 1962 Suppl (2) SCR
496 which struck down the Bombay Prevention of Excommunication Act, 1949.
Constitution of India, 1950; Articles 25, 26 - In our view, the protection under
Article 26(b) granted by the decision in the case of Sardar Syedna1 to the power
to ex-communicate a member of the Dawoodi Bohra community, needs
reconsideration as the said right is subject to morality which is understood as
Constitutional morality-This issue will require examination by a larger Bench.
(Para 28)
Constitution of India, 1950; Articles 25, 26 - Even assuming that the
ex-communication of members of the Dawoodi Bohra community is always
made on religious grounds, the effect and consequences thereof, on the person
excommunicated needs to be considered in the context of justiciable
Constitutional rights. The ex-communication will have many civic
consequences which will, prima facie, affect his fundamental right to live with
dignity and the right to lead a meaningful life guaranteed by Article 21.
Therefore, the question is is whether the said right of the community to
ex-communicate its members can be balanced with the other fundamental
rights under Part III of the Constitution and in particular, Article 21. (Para 31)
Constitution of India, 1950; Articles 25, 26 - Right to Excommunicate - prima
facie, we find that the exercise of balancing the rights under Article 26(b) with
other rights under Part III and in particular Article 21 was not undertaken by the
Constitution Bench in the case of Sardar Syedna- This question is substantially
in issue before the Bench of nine Judges in Sabrimala Temple Review -.
Moreover, the question whether the protection can be given by Article 26(b) to
the practice of ex-communication is to be tested on the touchstone of the
concept of Constitutional morality as the said right is subject to morality. (Para
34)
For Petitioner(s) Mr. Siddharth Bhatnagar, Sr. Adv. Ms. Manik Karanjawala, Adv. Ms. Nandini Gore,
Adv. Mr. Jatin Mongia, Adv. Ms. Tahira Karanjawala, Adv. Ms. Niharika Karanjawala, Adv. Mr. Arjun
Sharma, Adv. Ms. Neha Khandelwal, Adv. Mr. Shreyas Maheshwari, Adv. Mr. Karanveer Singh
Anand, Adv. Mr. Ritwik Mohapatra, Adv. Mr. Aditya Sidhra, Adv. Ms. Pracheta Kar, Adv. Mr. Nadeem
Afroz, Adv. M/S. Karanjawala & Co., AOR Mrs. Manik Karanjawala, AOR Mr. Sanklap Goswami, Adv.
Mr. Azhar Alam, Adv. Ms. B. Vijayalakshmi Menon, AOR
For Respondent(s) Mr. F.S. Nariman, Sr. Adv. Mr. Sameer Parekh, Adv. Mr. Subhas Sharma, Adv.
Mr. Abheezar Faizullabhoy, Adv. Mr. D.P. Mohanty, Adv. Mr. E.R. Kumar, Adv. Mr. Murtaza
Kachwaha, Adv. Ms. Sonal Gupta, Adv. Mr. Prateek Khandelwal, Adv. M/S. Parekh & Co., AOR Mr.
Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv. Mr.
Abhikalp Pratap Singh, Adv. Mr. Bharat Bagla, Adv. Ms. Kirti Dadheech, Adv. Mr. Kanu Agrawal, Adv.
M/S. S. Narain & Co., AOR Ms. Deepanwita Priyanka, AOR Ms. Swati Ghildiyal, Adv.
J U D G M E N T