Is Excommunication A "Protected Right" Under Constitution? Supreme Court Constitution Bench To Consider Dawoodi Bohra Community's Case

A 5-Judge Bench comprising Justices S.K. Kaul, Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari will commence with the hearing of the matter from 11th October, 2022.

In 1969, another 5-Judge Bench in Sardar Syedna Saifuddin v. State of Bombay had struck down the Bombay Prevention of Excommunication Act, 1949 (Excommunication Act) as it impinged upon the right of a religious denomination to manage their own affairs under Article 26(b) of the Constitution of India,1950 and also violated the right to practice religion envisaged in Article 25.

Recently, by enacting a statute, namely, Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 the Excommunication Act has been repealed. Section 3 of the 2016 Act enumerates 16 types of social boycott for the purpose of the Act. It includes expulsion of members of a community.

"3. Any member or a group of members who commit any of the following act or acts shall be deemed to have imposed social boycott on a member or members of the community,—

[...]

(xv) if he expels or causes to expel any member of his community from the said community"

At the outset the Constitution Bench attempted to ascertain if the issue has become infructuous in the light of the repeal of the Excommunication Act assailed before it.

"It says that the concerned Act has been repealed, then how do you say that it still exists. Is it required that the Court gets into it if there is no law permitting this."

Senior Advocate, Mr. Siddharth Bhatnagar was of the opinion that the issue before the Bench goes beyond the validity of the Excommunication Act, since the Dawoodi Bohra community argues that the practice of excommunication is a 'protected practice'. He submitted that the petition was subsequently amended to challenge the practice and not the Statute. In addition, he pointed out that clarification of the judgment of the Constitution Bench in Sardar Syedna Taher Saifuddin v. State Of Bombay judgment has also been sought in the petition.

"Any Act which applies generally would not apply to them as they say it is a protected right. That is why we challenged the practice itself. Because they will never say that ex-communication is bad."

Solicitor General, Mr. Tushar Mehta beseeched the Bench to hear his submissions seeking tagging of the matter with the Sabarimala 9-Judge Bench reference. He argued that even though the lis between the parties do not survive, constitutional issues pending before Constitution Bench can never become infructuous.

"The lis between the parties may not survive. This could be kept for a limited purpose and I will convince your lordship that this has to be tagged with Sabarimala issue. Constitutional issue before a constitutional bench never becomes infructuous."

Senior Advocate, Mr. Fali S. Nariman apprised the Bench that the matter has become moot, as the Act has been repealed by the State of Maharashtra in 2016. He submitted that "social boycott' in the 2016 Act includes ex-communication. The statute provides remedy to those who had been expelled from the community; they can lodge a complaint with the nearest Magistrate.

"The word social boycott in the new act covers ex-communication. It gives a remedy."

Mr. Bhatnagar emphasised that since the present case, inter alia, challenges the practice of excommunication, if the Bohra community vouches to not claim excommunication as a 'protected right' then nothing would survive in the petition in the wake of the repeal Act.

"If they say that they do not seek it as a protected right then it is all right."

However, Mr. Nariman refused to make any such definitive statements and requested the Bench to proceed with the hearing of the matter.

[Case Status: Central Board of Dawoodi Bohra Community And Anr. v. State of Maharashtra And Anr. WP(C) No. 740/1986]