Dawoodi Bohra community | SC decides to examine whether practice of excommunication can continue as “protected practice”

Dawoodi Bohra community members offering special namaz in Bhopal. File

Dawoodi Bohra community members offering special namaz in Bhopal. File | Photo Credit: A.M. Faruqui

A Constitution Bench led by Justice Sanjay Kishan Kaul on September 20, 2022 decided to examine whether the practice of excommunication in the Dawoodi Bohra community can continue as a “protected practice” despite the coming into force of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016.

The reference to the five-judge Bench led by Justice Kaul was based on a 1962 judgment of another five-judge Bench in the Sardar Syedna Taher Saifuddin vs The State Of Bombay case. The 60-year-old verdict of the apex court had held that the 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. The 1962 judgment came on a challenge to Section 3 of the Bombay Prevention of Excommunication Act of 1949.

The 2016 Act of the Maharashtra Legislative Assembly had however identified 16 types of social ostracisation and made them illegal, punishing the perpetrators with imprisonment for upto three years. One among the 16 deals with the expulsion of a member of a community.

Solicitor General Tushar Mehta, appearing in the case before Justice Kaul’s Bench on Tuesday, submitted that the matter concerns religious freedoms and should be further referred to the Sabarimala Bench. He said constitutional issues do not become infructuous.

However, senior advocate Fali Nariman countered that the questions posed in the case have become “moot” with the enforcement of the 2016 law, which has repealed the 1949 Act. Mr. Fali Nariman appeared for the Bohra community.

“The Act (2016) provides remedy to all victims of social boycott. A complaint can be lodged with the nearest Magistrate in case of apprehension of social boycott by a religious body,” Mr. Nariman argued.

He said the petition before the Constitution Bench now was entirely linked to the 1949 Act, which had become extinct with the coming of the 2016 law.

“If any member of a community is subject to ostracisation, please file a complaint. Excommunication is not legally feasible now. The current Act deals with several kinds of social boycott, it explicitly covers expulsion of a member of a community… What else is there?” Mr. Nariman said.

Senior advocate Siddharth Bhatnagar, for the petitioners, however said that a “general law” on social boycott may not protect the Bohra community members facing excommunication.

He said the 1962 judgment protects excommunication in the community as a “protected practice” of their religion under Article 26(b) of the Constitution.

“We have challenged the practice itself,” he submitted.

“They (religious heads of the Dawoodi Bohra community) themselves have to say excommunication is bad, which they will never say… Will they say expressly that they will not seek protection under the Sardar Syedna Taher Saifuddin judgment of 1962?,” Mr. Aggarwal asked in court.

“He wants you to go a step ahead and say that you will not endeavour to seek protection,” Justice Kaul addressed Mr. Nariman.

Mr. Aggarwal interposed to point out that the 2016 Act was a Maharashtra law. He said the “practice may not be confined to Maharashtra”.

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Printable version | Sep 21, 2022 3:45:13 am |