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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• On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities.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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Sitting PM recalled that governments at the Centre had dismissed 90 elected state governments by “misusing” Article 356 of the Constitution.

What is Article 356?

• Article 356 of the Indian Constitution contains provisions for the imposition of “President’s Rule” in a state, removing an elected government.
• While the Constitution intended Article 356 to be used only under extraordinary circumstances, central governments repeatedly used the provision to settle political scores.

What does it say?

• Article 356 empowers the President to withdraw to the Union the executive and legislative powers of any state.
• She/he has to be satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
• Whether the constitutional machinery has broken down may be determined by the President at any time, either upon receipt of a report from the Governor, or suo motu.

Duration of Presidents Rule

• According to the provisions of Article 356, President’s Rule in a state can be imposed for six months at a time for a maximum duration of three years.
• Every six months, Parliamentary approval to impose President’s Rule will be required again.
• However, in the past, President’s Rule has been extended for significantly longer periods under specific circumstances.
• For instance, Punjab was under President’s Rule from 1987-1992 due to the growing militancy.

What are the origins of Article 356?

• Article 356 was inspired by Section 93 of the Government of India Act, 1935.
• This provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance GOI Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion.
• The Governor, however, could not encroach upon the powers of the high court.
• For the British, this provision allowed for a ‘controlled democracy’ – while providing some autonomy to provincial governments, Section 93 allowed the British authorities to exercise ultimate power when they deemed necessary.

How was the provision used as a political weapon in independent India?

• During the decades of Congress’s dominance at the Centre, Article 356 was used against governments of the Left and regional parties in the states.
• Until 1959, Jawaharlal Nehru’s government had used the article six times, including to dislodge the first-ever elected communist government in the world, in Kerala in 1959.
• In the 1960s, it was used 11 times. After Indira came to power in 1966, Article 356 was used seven times between 1967 and 1969 alone.
• The 1970s were more politically turbulent. Between 1970 and 1974, President’s Rule was imposed 19 times.
• Post-emergency, the Janata Party government used it in 1977 to summarily dismiss nine Congress state governments.
• When Indira returned to power in 1980, her government too imposed President’s Rule in nine states.
• In 1992-93, PM Narasimha Rao dismissed three governments in the wake of the demolition of Babri Masjid, besides Kalyan Singh’s government in UP.

How was this political misuse of Article 356 curbed?

Ans. S R Bommai Judgment, 1989

• In its judgment in the landmark R. Bommai v. Union of India case, the Supreme Court discussed the provisions of Article 356 at length.
• A nine-judge Bench in its decision in 1994 noted the specific instances when President’s Rule can be imposed and when it cannot.
• The court held that Article 356 can be invoked in situations of the physical breakdown of the government or when there is a ‘hung assembly’.
• But that it cannot be used without giving the state government a chance to either prove its majority in the House or without instances of a violent breakdown of the constitutional machinery.
• Since the judgment, the arbitrary use of Article 356 has been largely controlled.

Try this PYQ:

Which of the following are not necessarily the consequences of the proclamation of the President’s rule in a State?

1. Dissolution of the State Legislative Assembly
2. Removal of the Council of Ministers in the State
3. Dissolution of the local bodies

Select the correct answer using the code given below:

(a) 1 and 2

(b) 1 and 3

(c) 2 and 3

(d) 1, 2 and 3

 

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