A Constitution Bench of the Supreme Court referred to a larger Bench of nine judges in a set of petitions concerning a 36-year-old case [Sardar Syedna Taher Saifuddin Saheb versus the State of Bombay (1962)] challenging the standing of Dawoodi Bohra community leaders to excommunicate their members. The bench referred the issue to the bench arising out of the Sabarimala shrine.
Central Board of Dawoodi Bohra Community and the State of Maharashtra were parties to the case. The 5-judge Constitution bench was presided over by Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath and JK Maheshwari.
The bench was deliberating upon the question of whether the practice of excommunication in the Dawoodi Bohra community could continue as a “protected practice” despite the enforcement of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016, which provides for the prohibition of social boycott of a person or group of persons including their family members, and for associated matters.
The Act identified 16 types of social ostracisation and made them illegal, penalising the offenders with imprisonment for up to three years. The 16 types comprised the expulsion of a member from their community.
In the reference order passed by the five-judge bench, the bench observed that the 36-year-old judgment needed a review by a larger bench. The judgment quashed a law that sought to avert religious denominations from expelling their members.
The bench laid down two grounds on which the judgment entails a review by the larger bench. Primarily, the exercise of harmonising the rights under Article 26(b) and other rights guaranteed under Part III of the Constitution, mainly Article 21, should have been addressed by the Constitution bench of the Supreme Court in the aforesaid case.
The Supreme Court invalidated the Bombay Prevention of Excommunication Act of 1949, which prohibited the excommunication of any community member. Secondly, the bench noted that the question of whether protection can be given by Article 26(b) for the practice of excommunication is to be verified on the concept of constitutional morality.
“A person who is excommunicated by the community, will not be entitled to use the common property of the community and the burial/cremation grounds of the community. In a sense, such a person will virtually become untouchable (being banished or ostracised) within the community. In a given case, it will result in his civil death”, observed the bench.
The bench also observed that in the aforesaid case, the bench ought not to have struck down the Act entirely while bearing in mind the rights of Dawoodi Bohras.
The nine-judge bench was constituted to reassess the court’s 2018 judgment permitting women of all ages to enter Kerala’s Sabarimala shrine. At that juncture, the court took note of other petitions challenging practices in Islam, Christianity, and other faiths that were also pending adjudication before it and decided to join all the cases. This bench is yet to begin the hearing of the matter.
Dawoodi Bohra’s spiritual head, the 53rd Syedna, had objected to the petition for a reference to a nine-judge bench, saying that the proceedings do not survive anymore since the controversy was concerned with the 1949 Bombay Prevention of Excommunication Act, which was annulled by a Maharashtra statute in 2017.
The previous year on September 20, the Central Board’s case was listed before a Constitution Bench headed by Justice Sanjay Kishan Kaul. Senior advocate Fali Nariman appeared for the sect’s leader, contending that the question in the case has become inconsequential as the Bombay Prevention of Excommunication Act, 1949, was revoked by the 2016 Act.
Senior advocate Siddharth Bhatnagar, representing the Central Board, argued that the 2016 Act was a Maharashtra law and rendered no protection to the community members residing in other parts of the country. Rather, Siddharth Bhatnagar asked the court to decide the constitutional validity of excommunication as a practice. He added that religious heads must be willing to make a statement that they will not resort to excommunication, referring to the 1962 Supreme Court decision.
However, Nariman refused to give any such undertaking. The judgment in the matter was reserved on October 11, 2022.
