Religious Excommunication of Members

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

Background information on the excommunication case

  • The Bombay Prevention of Excommunication Act (now repealed) was enacted on November 1, 1949, in order to prevent the practise of excommunication that was prevalent in certain communities.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 rendered excommunication of any member null and void, “regardless of anything contained in law, custom, or usage” at the time.

Problems with Excommunication

  • Discriminatory: Excommunication is a severe and permanent punishment that can have serious consequences in a person’s life.
  • Identity loss can cause a person to feel isolated, ostracised, and excluded from religion and community.
  • It may also result in feelings of guilt, shame, and alienation. It can also lead to a loss of faith and a sense of mental despair.

How did the case make it to the Supreme Court?

  • A community cleric challenged the Act’s constitutionality, claiming it violated fundamental rights guaranteed by the Constitution in Articles 25 and 26 (freedom of conscience and free profession, practise, and propagation of religion) (Freedom to manage religious affairs)
  • It was argued that the power of excommunication was part of the management of community affairs in religious matters.
  • The cleric also claimed that the authority to excommunicate is neither absolute nor arbitrary.

What has happened recently in this regard?

  • In 1962, a Supreme Court Constitution Bench ruled that the cleric’s position is an essential part of the community and that the power to excommunicate is intended to enforce discipline and preserve the denomination, not to punish.
  • A challenge to the 1962 judgment was filed in 1986
  • The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition, and Redressal) Act, 2016, was passed while that petition was still pending.
  • The 2016 Act makes social boycotting of a person or group of people illegal and a violation of fundamental rights.
  • The Act defines social boycotts as “inhuman” and defines 16 types of social boycotts, including denying members of a community access to facilities such as community halls and burial grounds.

What did the Supreme Court say this time?

  • A Constitution Bench ruled that the 1962 decision should be reconsidered.
  • The court determined that the consideration was necessary primarily for two reasons: balancing the rights under Article 26(b) — the right of religious denominations to manage their own affairs in religious matters — and Article 21 — whether the practise can be protected under Article 26(b) when tested against the touchstone of constitutional morality.
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