The Supreme Court has on Friday said 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.
A five-judge Constitution bench led by Justice Sanjay Kishan Kaul said the protection granted to the Dawoodi Bohra community by a five-judge Constitution bench decision in 1962 to excommunicate a member would require reconsideration by a larger nine-judge bench to be formed to consider issues arising out Sabarimala judgement.
"This is an important and emergent issue," the bench said while adding, the right of the religious denomination to manage its own affairs in matters of religion is always subject to morality.
Also Read | PIL in Supreme Court wants 'renaming commission' for places named by 'foreign invaders'
The court noted that 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. Constitutional morality which overrides the freedom conferred by clause (b) of Article 26 (to manage religious affairs) will not permit the civil rights of excommunicated persons which originate from the dignity and liberty of human beings to be taken away," the bench said.
In its detailed judgement released on Saturday, the bench, also comprising Justice Sanjiv Khanna, Abhay S Oka, Vikram Nath and J K Maheshwari, said the conscience of our Constitution is Constitutional morality.
"Hence, it is contended that ex¬communication or ostracisation is anathema to the concepts of liberty and equality. It is against the anti discriminatory 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," the bench said.
The bench said 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.
The bench also said 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 (1962), which had declared the Bombay Protection of Ex-communication Act, 1949 as void for being in clear violation of the right of the Dawoodi Bohra community.
Rejecting a contention that nothing survived in the matter as 1949 Act has been repealed, the court said even if the law has been rescinded, the issue remained whether the power of the head of Dawoodi Bohra Community to ex-communicate its members is non-justiciable being protected under the umbrella of clause (b) of Article 26.