A Constitution Bench of the Supreme Court referred to a larger Bench of nine judges a series of petitions challenging the authority of minority community leaders to excommunicate their members.

Excommunication case: A quick backgrounder

• On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities.
• Excommunication has led to the deprivation of legitimate rights and privileges of its members and in “keeping with the spirit of changing times and in public interest”.

What is Excommunication?

• The law defined excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature”.
• It invalidated excommunication of any member, “notwithstanding anything contained in law, custom, usage” for the time being in force.

Issues with Excommunication

• Discriminatory: Excommunication is a serious and permanent punishment that can have a negative impact on a person’s life.
• Loss of identity: It can lead to a person feeling isolated, ostracized and excluded from the religion and community.
• Social boycott: It may also lead to feelings of guilt, shame and alienation. Furthermore, it can lead to a loss of faith and a sense of mental despair.

How did the matter reach the Supreme Court?

• A cleric of the community challenged the constitutional validity of the Act, stating it violated fundamental rights guaranteed by the Constitution under:

1. Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and
2. Article 26 (Freedom to manage religious affairs)

• It was submitted that the power of excommunication was part of the management of community affairs in matters of religion.
• The cleric also held that the power to excommunicate is not absolute or arbitrary.

What has been happening in the matter more recently?

• A Constitution Bench of the SC held in 1962 that the cleric’s position is an essential part of the community and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish.
• A challenge to the 1962 judgment was filed in 1986.
• While that petition was still pending, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, was passed.
• The 2016 Act prohibits the social boycott of a person or a group of persons, and terms it a violation of fundamental rights.
• The Act describes a social boycott as “inhuman”, and defines 16 types of social boycott — including preventing members of a community from having access to facilities including community halls, burial grounds, etc.

What exactly did the Supreme Court say now?

• A Constitution Bench said that the 1962 judgment needed a relook.
• The court held that the consideration was needed mainly on two grounds: Balancing the rights under-

1. Article 26(b) — right of religious denominations to manage their own affairs in matters of religion — and
2. Article 21 — whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.

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