Dawoodi Bohras excommunication case: Supreme Court reserves order on referring the matter to a larger bench

The petition, filed by the Central Board of Dawoodi Bohra Community, has been pending before the Supreme Court for 36 years.

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ON Tuesday, a five-judge Constitution Bench of the Supreme Court, headed by Justice Sanjay Kishan Kaul, in the case of Central Board of Dawoodi Bohra Community versus State of Maharashtra, reserved its order on referring the matter to a larger bench on the question of whether the practice of excommunication of members from the Dawoodi Bohra community is constitutional.

Solicitor General of India, Tushar Mehta submitted that either the matter can be reconsidered by the nine-judge bench, or the court could assist the nine-judge bench arising out of the Sabrimala shrine issue. According to Mehta, the question refers to religious freedom, and it should be referred to the larger nine-judge bench. He argued that, "The questions framed before the nine-judge bench are so generic that in answering every question, the Dawoodi Bohra judgment will come for consideration." The nine-judge bench is set to deal with the scope of judicial review pertaining to a range of religious practices on account of the Supreme Court's Sabrimala judgment of 2018.

Justice Kaul reiterated the submission by senior Advocate Siddharth Bhatnagar, appearing for the Central Board of Dawoodi Boras, wherein he had flagged the issue (on September 20) of whether or not the power of excommunication can be given up by the leader of the sect. To this, Justice Kaul observed that the question is, "If it is appropriate to answer the question here, or refer to the larger Sabrimala bench".

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. He submitted that the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 was not challenged before the Constitution Bench in the instant case. He 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 do not have any bearing.

Bhatnagar further submitted, "Although the 2016 Act prevents social boycott within the community, the Act would not apply to a person who is excommunicated and not part of the community." If the practice of excommunication is upheld, and if one is not part of the community due to being excommunicated, the Act is not applicable, Bhatnagar explained. The new 2016 Act would not have any bearing on the excommunication, he added.

Referring to the reference order in the instant case, Bhatnagar pointed out that the petitioners had requested the matter to be heard before a seven-judge bench; however, they were directed to go through the five-judge bench to determine whether the matter could be heard by a seven-bench judge. To this, Justice Kaul replied, "Ultimately that's a decision that the Chief Justice of India can make. We can only decide whether the general questions framed in the nine-judge bench would have the bearing on the particular nuance in this case."

Senior Advocate Fali S. Nariman, appearing for the current leader of the community Dr. Syedna Mufaddal Saifuddin, submitted that the occasion of framing of new questions does not arise since the questions have already been framed before a nine-judge bench. "Let this stand over till the decision in the nine-judge bench formulates its answers to the question", Nariman submitted. He urged that the nine-bench should decide the matter at the earliest.

The history of adjudication on the power of excommunication

The Bombay Prevention of Excommunication Act, 1949 termed the excommunication of any community member illegal. In 1962, Sardar Syedna Taher Saifuddin, the then-leader of the Bohra community, filed a writ petition challenging the constitutional validity of the 1949 Act on the grounds that it violated Articles 25 and 26 of the Constitution. He argued the practice of excommunication to be essential to the sect.

A five-judge Constitution Bench of the Supreme Court, in the case of Sardar Syedna Taher Saifuddin Saheb versus The State of Bombay (1962), struck down the 1949 Act, holding that "…the 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."

In 1986, the Central Board of Dawoodi Bohra Community filed a writ petition challenging the 1962 judgment. In 2004, a five-judge Constitution bench led by then Chief Justice of India R.C. Lahoti held that the matter should be first placed for hearing before a five-judge Constitution Bench to decide whether it requires reference to a larger seven-bench judge.

During the pendency of the matter, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act was passed, declaring 16 types of social ostracisation illegal, including the expulsion of a member from their community. It repealed the 1949 Act.

The present case

During a preliminary hearing on September 20, the Supreme Court decided to adjudicate upon the 1986 writ petition, termed as the oldest pending case before a Constitution Bench, on whether the leader of the Dawoodi Bohra community can excommunicate any of its members and whether it is protected as a religious practice.

Nariman argued that since the 1949 Act was at the centre of the issue of the 1986 writ petition, which has been repealed and replaced by the 2016 Act, the proceeding fail to survive anymore. According to Nariman, the petition is rendered 'moot' on account of the overriding 2016 Act.

Bhatnagar, in his submissions and as reported in India Times, raised the contention that the moot issue would not be adjudicated if the leader makes a statement that the religious power to excommunicate would not be resorted to following the judgment of the Supreme Court in 1962. According to Bhatnagar, the 2016 legislation, specific to Maharashtra, is not enough to protect the members of the Dawoodi Bohra community facing excommunication.

The nine-judge bench

In November 2019, a Constitution Bench decided to keep the multiple review petitions challenging the 2018 judgment, which lifted the restriction on women of menstruating age from entering the Sabrimala temple in Kerala, until certain overarching constitutional questions were answered by a larger bench. The bench held the view that other cases pertaining to the right to religion might involve the application of the Sabrimala judgment of 2018, and overlap with its ratio.

The majority judgment provided a list of questions that might overlap with other religious issues:

1. Interplay of freedom of religion under Articles 25 and 26, and the right to equality under Article 14;
2. Scope of the expression 'public order, morality, health' in Article 25(1);
3. If the meaning of 'morality' in Article 25(1) and Article 26 is related to constitutional morality, or limited to religious faith or belief;
4. Extent to which a court can enquire into an essential religious practice;
5. Scope of the expression 'sections of Hindus' mentioned in Article 25(2)(b);
6. If essential religious practices of a religious denomination is protected; and
7. Scope of "judicial recognition" to public interest litigation filed by people not belonging to a religious denomination to contest a religious practice.