SC Shouldn't Have Totally Struck Down Law Banning Excommunication : Supreme Court In Sabarimala Reference Hearing

During the hearing of the Sabarimala reference, the Supreme Court on Thursday orally commented that the 1962 judgment in 'Sardar Syedna Taher Saifuddin Saheb vs The State Of Bombay' was wrong for absolutely striking down of the Bombay law prohibiting excommunication.The Court opined that the judgment ought to have applied the doctrine of severance, or should have adopted the method of reading down, to hold that excommunication of a member for reasons other than religious cannot be permitted. In other words, the judgment should have permitted excommunication only for breach of religious diktats, and should not have permitted excommunication of members for their activities in secular or social spheres.Chief Justice of India Surya Kant, who is heading the 9-judge bench, made these observations. In the 1962 judgment, the Supreme Court, by 4:1 majority, struck down the Bombay Prevention of Excommunication Act, 1949. The law was challenged by a Dai (religious head) of the Dawoodi Bohra community. The majority held that the law violated the right of a religious denomination to manage its own affairs, guaranteed under Article 26(b). It was held that a religious head must have the power to enforce discipline among the members, and such power was traceable to Article 26(b). The then Chief Justice BP Sinha dissented, observing it was a law providing for social reform, enacted in terms of Article 25(2)(b).Today, the bench was hearing the arguments of Senior Advocate Raju Ramachandran, appearing for the Central Board of Dawoodi Bohra Community, challenging the practice of excommunication. Ramachandran argued that excommunication is ordered not merely for breach of religious diktats, but also for the social and secular acts of the members. He contended that members have been excommunicated for starting cooperative societies, entering into marriages, or even reading magazines, against the wishes of the religious head.Senior Advocate Neeraj Kishan Kaul, for the Dai, submitted that the 1962 judgment repeatedly made it clear that the 1949 law was struck down because it indiscriminately and blanketly banned excommunication, without any distinction between religious and social grounds.In that context, the CJI said : "The majority (in Sardar Syenda) could have applied the very well-known power of segregation, that the law was invalid to so much extent. The doctrine of reading down should have been the first principle that should have been followed. This is my tentative view, not a final opinion.""So long as it is a consequence of defiance of religious practices [it could be allowed]. The moment it crosses the lakshman rekha of social reforms, it cannot be. That is how, with due repsect, the Constitution Bench failed," CJI said.Kaul submitted that the instances alleged by Ramachandran of excommunication on social grounds were factually incorrect.During the second half of the hearing, the CJI repeated his observation, while arguments were going on regarding the Dawoodi Bohra practice of Female Genital Mutilation.When Senior Advocate Siddharth Luthra (opposing FGM) submitted that families are following this practice due to fear of excommunication, Advocate Nizam Pasha submitted that there was no excommunication for not following this practice.In that context, the discussion veered towards the Sardar Syedna judgment. The CJI then stated the judgment should not have struck down the whole Act without applying the doctrine of segregation. Instead of that, the Court could have read down the Act to hold that excommunication is permitted only on religious grounds."Question of law that, as we were winding up before lunch, when we were reading the majority opinion striking down the 1949 Act, we were just indicating that the doctrine of severability could be applied. Therefore, to that extent where the Act was not meeting the requirements of proportionality, that could be struck down. To that extent, it was within the permissible parameters. Test of reasonableness should have been applied instead of going just one hammer that just because it violates Articles 25 and 26, we will strike it down."A bench comprising Chief Justice of India Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi is hearing the matter.Live updates from today's hearing can be found here.Also from today's hearing- Female Genital Mutilation Affects Health; Can't Be Compared With Circumcision : Supreme Court In Sabarimala Reference HearingWhat Happens To Indian Civilisation If Every Religious Practice Is Questioned In Courts? Supreme Court In Sabarimala Reference

SC Shouldn't Have Totally Struck Down Law Banning Excommunication : Supreme Court In Sabarimala Reference Hearing

Gursimran Kaur Bakshi

The Court questioned the 1962 judgment for not making a distinction between excommunication on religious and secular grounds.

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SC Shouldn't Have Totally Struck Down Law Banning Excommunication : Supreme Court In Sabarimala Reference Hearing

Gursimran Kaur Bakshi

The Court questioned the 1962 judgment for not making a distinction between excommunication on religious and secular grounds.

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INR 1099+GST

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