10 Feb 2023 5:24 AM GMT
A Constitution Bench of the Supreme Court on Friday referred the question of the validity of the practice of excommunication prevalent among the Dawoodi Bohras, to a nine-Judge Bench constituted to review the ‘first Sabarimala judgement’. The Dawoodi Bohras form a sect of Shia Muslims, whose supreme leader is empowered to excommunicate or expel recalcitrant members,...
A Constitution Bench of the Supreme Court on Friday referred the question of the validity of the practice of excommunication prevalent among the Dawoodi Bohras, to a nine-Judge Bench constituted to review the ‘first Sabarimala judgement’. The Dawoodi Bohras form a sect of Shia Muslims, whose supreme leader is empowered to excommunicate or expel recalcitrant members, thereby, denying them access to the community mosque or burial grounds, as well as other facilities. In October, the top court had reserved its decision on whether to refer the issue to the larger bench, after hearing a petition pending from 1986 challenging the validity of this practice of social boycotting.
The five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari held that since the 1962 decision of the top court in Sardar Syedna Saifuddin required reconsideration, it would be appropriate to refer the matter to the nine-judge bench. The two grounds on the basis of which the correctness of the law as laid down by the Sardar Syedna Saifuddin bench have been called into question are first, the bench did not undertake the exercise of 'balancing' the rights enshrined in Clause (b) of Article 26 and Article 21 of the Constitution, and second, the question whether the practice of excommunication can be protected under Clause (b) of Article 26 is to be tested on the touchstone of constitutional morality. Justice Oka pronounced:
“These are two main grounds on which the aforesaid decision requires reconsideration by a larger bench. These questions are substantially in issue before the nine-judge bench reviewing the Sabarimala judgement and are covered by the third and fourth questions framed by the bench. We, therefore, request the Chief Justice of India to tag this matter to be heard by the nine-judge bench.”
The practice of excommunication in the Dawoodi Bohra community was upheld in Sardar Syedna Saifuddin v. State of Bombay, 1962 Suppl (2) SCR 496, in which a Constitution Bench had struck down the Bombay Prevention of Excommunication Act, 1949 as violative of the fundamental right of the religious denomination to manage their own affairs under Article 26(b). The petitioners in this 36-year-old petition had invited the apex court to reconsider and overrule this controversial decision. It was during the pendency of this petition that, in 2016, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act came into force, repealing the impugned legislation. The 2016 Act describes social boycotts as ‘inhuman’ and defines 16 types of social boycott, including expulsion of members of a community. This has given rise to the question of whether excommunication can still continue as a ‘protected practice’, notwithstanding the embargo on social boycott imposed by the Maharashtra Legislature.
This reference was made by a Bench led by Chief Justice R.C. Lahoti, who had held, “The matter should be placed for hearing before a Constitution Bench of five judges and not before a larger Bench of seven judges. It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb's case that it may opine in favour of hearing by a larger bench consisting of seven judges or such other strength as the chief justice may in exercise of his power to frame a roster may deem fit to constitute.”
The issue was taken up by the Constitution Bench last year after almost 18 years since the referral, and more than 60 years since the question was first raised before the apex court. On behalf of the union government, the Solicitor-General Tushar Mehta argued that the question was ‘generic’ and could be answered by the nine-Judge Bench constituted to decide, inter alia, the correctness of the five-Judge Bench decision in the ‘first Sabarimala judgement’, i.e., Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
Senior Advocates Fali S. Nariman, Darius Khambata, Pravin H. Parekh, and Parag Tripathi appearing for the Da’i-al-Mutlaq, which is the office of the supreme leader of the Dawoodi Bohras, submitted that the petition was infructuous since the impugned Act had already been repealed by the 2016 Act. It would be advisable to await the judgment of the nine-Judge Constitution Bench in the Sabarimala matter, the counsel argued. Nariman said –
However, Senior Advocate Siddharth Bhatnagar, appearing for the petitioner-board (Central Board for Dawoodi Bohra Community), argued that the writ petition had not become infructuous inasmuch as ‘a part of the substratum’ had survived, since the act of excommunicating members was also under challenge. In fact, an application to amend the petition had also been filed, he clarified. Bhatnagar strenuously argued that the constitutionality of excommunication as a practice was not specifically put to the nine-Judge Bench in the Sabarimala reference. Therefore, he urged the bench to finally lay the controversy to rest with regard to the limited issue of the constitutionality of this practice among Dawoodi Bohras. The petitioners were represented by Bhatnagar, as well as Advocate Jatin Mongia, assisted by a team from Karanjawala & Co. comprising Founding Partner, Manik Karanjawala and Senior Partner, Nandini Gore along with Tahira Karanjawala, Niharika Karanjawala, Arjun Sharma, Neha Khandelwal, Karanveer Singh Anand and Ritwik Mohapatra.
Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. | Writ Petition (Civil) No. 740 of 1986
Citation : 2023 LiveLaw (SC) 97
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.
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 - 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 excommunicate 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 - Articles 25, 26- Even assuming that the excommunication 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 excommunication 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 excommunicate 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 - 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 excommunication is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality - Para 34
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