Excommunication in Dawoodi Bohras: Supreme Court reserves order on reference to larger bench

New Delhi: A five-judge bench of the Supreme Court on Tuesday reserved its order on whether to refer the plea on the practice of excommunication in the Dawoodi Bohra community to a larger bench.

The five-judge bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari said the fact that this matter has been pending since 1986 troubles it. "The options before us is to determine the limited issue that remains before us, or to refer it to the nine-judge bench," it said.

The five-judge bench is examining the correctness of a 1962 judgment, where the top court had protected the rights of the Bohra community to excommunicate members. This judgment was delivered by a five-judge bench.

Solicitor General Tushar Mehta, representing the Centre, submitted that reconsideration of the Dawoodi Bohra excommunication verdict, which was pronounced by a five-judge bench may not be possible by a bench of the same strength.

The respondents urged the apex court to wait for a nine-judge bench decision in the Sabarimala matter or refer the present case also to a nine-judge bench.

On September 20, the Supreme Court had agreed to examine whether practice of excommunication in the Dawoodi Bohra community can continue as a "protected practice", against the backdrop of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016.

Senior advocate Siddharth Bhatnagar, representing the petitioners, submitted that writ petition is not infructuous as the question arising is whether excommunication as practised in the Dawoodi Bohra community is unconstitutional or not, which would survive the repeal of the Act.

He further submitted that the question of whether excommunication is a practice which is unconstitutional is not specifically framed and before the bench of nine judges in the Sabarimala reference and accordingly, a specific issue would have to be framed on this aspect.

After hearing detailed arguments, the top court proceeded to reserve its verdict. The petitioners were represented by senior advocate, Siddharth Bhatnagar, briefed by advocate Jatin Mongia and a team of advocates from Karanjawala & Co.

In 1962, the apex court had held that religious faith and tenets of the Dawoodi Bohra community gave its religious heads the power of excommunication as part of their "management of religious affairs" under Article 26(b) of the Constitution. This verdict had come on a challenge to Section 3 of the Bombay Prevention of Excommunication Act of 1949.

In the previous hearing, it was argued before the top court that after the 2016 law, the 1949 Act had become non-existent and the excommunication is not legally feasible now and the current law deals with several kinds of social boycott. A counsel in the matter argued that a general law on social boycott would not be sufficient to protect members of the Bohra community facing excommunication.

The bench was informed that excommunication, through the 1962 judgment, was protected as a religious practice under Article 26(b) of the Constitution. A counsel said his clients have challenged the practice. It was argued that the religious heads of the community would never themselves say excommunication is bad.

The 2016 Act had identified 16 types of social ostracization and made them illegal, punishing the perpetrators with imprisonment for upto three years.