Excommunication Among Dawoodi Bohras: Supreme Court Refers to Nine-Judge Sabarimala Bench

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.” Background 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...

Excommunication Among Dawoodi Bohras: Supreme Court Refers to Nine-Judge Sabarimala Bench

Awstika Das

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