Nine-judge bench to hear excommunication in Dawoodi Bohra community

New Delhi : A Constitution Bench of the Supreme Court referred multiple petitions challenging the authority of Dawoodi Bohra community leaders to excommunicate members to a larger Bench of nine judges on Friday.

The five-judge Bench, led by Justice Sanjay Kishan Kaul, was considering whether the Dawoodi Bohra community’s practise of excommunication could continue as a “protected practise” despite the implementation of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition, and Redressal) Act of 2016.

The Sardar Syedna Taher Saifuddin vs. The State of Bombay case from 1962 served as the basis for the reference to the five-judge Bench presided over by Justice Kaul. The Supreme Court’s 60-year-old verdict upheld the legitimacy of the Dawoodi Bohra community’s religious leaders’ excommunication powers as part of the “management of religious affairs” guaranteed by Article 26(b) of the Constitution.

Justice A.S. Oka, pronouncing for the five-judge Bench, noted that the Sardar Syedna decision had implications for the right to life and due process of law guaranteed by Articles 26(b) and 21 of the Constitution.

The 1962 ruling involved a case against Section 3 of the Bombay Prevention of Excommunication Act of 1949.

The Maharashtra Legislative Assembly passed a law criminalising 16 forms of social exclusion and mandating jail terms of up to three years for those responsible. The exclusion of a community member was the subject of one of the 16 cases.

The government’s Solicitor General Tushar Mehta argued that the matter involved religious freedoms and should be referred to the nine-judge Sabarimala Bench. He had earlier asserted that constitutional concerns never become moot.

The senior advocate in the case, Fali Nariman, argued that the questions raised were moot because the 1949 Act had been repealed by a law that went into effect in 2016.

All victims of social boycott will have legal recourse thanks to the Act (2016). Mr. Nariman argued that if a person is worried about a social boycott by a religious group, they can file a complaint with the local Magistrate.

For the petitioners, senior advocate Siddharth Aggarwal argued that the members of the Bohra community who are at risk of excommunication may not be protected by a “general law” on social boycott.