Challenge Against Excommunication Among Dawoodi Bohras: Supreme Court Reserves Order On Reference To Larger Bench
A Constitution Bench of the Supreme Court on Tuesday reserved its order on whether to refer to larger bench a petition pending from 1986 challenging the validity of the practice of excommunication among the Dawoodi Bohras.The 5-judge bench will decide on whether to refer the issue to the 9-judge bench in the Sabarimala review case which is considering the larger issues relating to...
A Constitution Bench of the Supreme Court on Tuesday reserved its order on whether to refer to larger bench a petition pending from 1986 challenging the validity of the practice of excommunication among the Dawoodi Bohras.
The 5-judge bench will decide on whether to refer the issue to the 9-judge bench in the Sabarimala review case which is considering the larger issues relating to essential religious practices.
Among this sect of Shia Muslims, the 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. This practice was upheld in Sardar Syedna Saifuddin v. State of Bombay [1962 Suppl (2) SCR 496], in which a Constitution Bench led by Chief Justice B.P. Sinha 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.
The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari. This reference was made by a Bench led by Chief Justice R.C. Lahoti, who held –
"We are satisfied that 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 (supra) that it may opine in favour of hearing by a larger Bench consisting of seven Judges or such other strength as the Chief Justice of India may in exercise of his power to frame a roster may deem fit to constitute."
After almost 18 years since the referral, and more than 60 years since the question was first raised before the apex court, the Constitution Bench is likely to lay the controversy to rest. However, 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]. Mehta said –
"Either Your Lordships may say that this question will be decided by the nine-Judge Bench or you may consider it and assist the larger Bench."
Senior Advocates Fali S. Nariman and Darius Khambata, 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 senior counsel argued. Nariman said –
"We would also like for this question to be decided as early as possible. But, my suggestion, following the suggestion made by the Solicitor, is to let this stand over till the decision of the nine-Judge Bench."
However, Senior Advocate Siddharth Bhatnagar, appearing for the Central Board of Dawoodi Boras, 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 said –
"When Justice Lahoti made the reference, there was no nine-Judge Bench deciding on essential religious practices. Since then, there has been a sea change. My request, therefore, is for Your Lordships to decide on this limited issue."
After hearing the submissions made by the Solicitor-General and the other senior counsel, the Constitution Bench proceeded to reserve its orders.
Case Title
Central Board of Dawoodi Bohra Community And Anr. v. State of Maharashtra And Anr. [WP(C) No. 740/1986]
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