The bench laid down two grounds that overlap the questions framed to review the Sabarimala judgment.
—–
ON Friday, a five-judge Constitution bench of the Supreme Court, headed by Justice S.K. Kaul, in the case of Central Board of Dawoodi Bohra Community versus State of Maharashtra, held that the question of whether the practice of excommunication of members from the Dawoodi Bohra community is constitutional requires reconsideration. The bench referred the issue to the nine-judge bench arising out of the Sabarimala shrine issue.
The Constitution bench, comprising Justices Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari, explained the two grounds on which the issue requires reconsideration by the larger bench.
Firstly, according to the bench, the exercise of balancing the rights under Article 26(b) and other rights under Part III of the Constitution, particularly Article 21, was not undertaken by the Constitution bench of the Supreme Court in the case of Sardar Syedna Taher Saifuddin Saheb versus The State of Bombay (1962). In this judgment, the Supreme Court had struck down the Bombay Prevention of Excommunication Act, 1949, which had made the excommunication of any community member illegal. The court had held that “…[T]he exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the impugned Act (of 1949) in making even such excommunication invalid infringed the right of the community under Article 26(b) of the Constitution.”
Secondly, the bench observed that the question of whether protection can be given by Article 26(b) for the practice of excommunication is to be tested on the concept of constitutional morality. “This is an important and emergent issue,” the bench remarked.
The bench noted that the two above-mentioned issues are covered by constitutional question numbers three and four, among the list of questions framed to address the review petitions challenging the court’s 2018 Sabarimala judgment, pending before a nine-judge Constitution bench of the court. It accordingly requested the Chief Justice of India to tag this matter along to the nine-judge bench.
Background
The writ petition filed by the Central Board of Dawoodi Bohra Community in 1986, challenging the court’s 1962 judgment in Sardar Syedna Taher Saifuddin Saheb and pending before the Supreme Court for 36 years, is termed the oldest pending case before a Constitution bench.
During a preliminary hearing on September 20, 2022, the Supreme Court decided to adjudicate upon the 1986 writ petition on whether the leader of the Dawoodi Bohra community can excommunicate any of its members and whether it is protected as a religious practice.
Senior Advocate Fali S. Nariman, appearing for the current leader of the community, Dr. Syedna Mufaddal Saifuddin, argued that since the 1949 Act, which was at the centre of the issue of the 1986 writ petition, has been repealed and replaced by the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, the proceeding fails to survive anymore. According to Nariman, the petition was rendered moot on account of the overriding 2016 Act.
According to senior advocate Siddharth Bhatnagar, appearing for the Central Board of Dawoodi Bohras, the 2016 legislation, specific to Maharashtra, is not enough to protect the members of the Dawoodi Bohra community facing excommunication. Bhatnagar argued that the insistence of the head of the Dawoodi Bohra community to continue the practice of excommunication was not a ‘protected practice’ under Articles 25 and 26 of the Constitution.
Bhatnagar contended that the question on the unconstitutionality of excommunication by the leader of the sect needs to be framed, and the generic questions that have found their way to the nine-judge bench in the Sabarimala review do not have any bearing.
On October 11, the Constitution bench reserved its order on the question of referring the matter to a larger bench.
