Excommunication in Dawoodi Bohra community: SC refers matter to 9-judge bench

New Delhi, Feb 10 The Supreme Court on Friday referred a case against the practice of excommunication in the Dawoodi Bohra community to a nine-judge bench to determine the scope of judicial review in matters of faith.

A five-judge bench headed by Justice Sanjay Kishan Kaul and comprising Justices Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari, passed the reference order. The 1962 judgment quashed a law that sought to prevent religious denominations from ousting their members. A member's ex-communication would result in a social boycott, besides a bar on entering the places of worship.

The bench headed by Justice Kaul noted that the 1962 judgment by another five-judge required reconsideration by a larger bench. The respondents had 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. The nine-judge bench was formed to reconsider the court's 2018 judgment allowing women of all ages to enter Kerala's Sabarimala shrine.

During the hearing in October last year, Solicitor General Tushar Mehta had 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.

Senior advocate Siddharth Bhatnagar, representing the petitioners, had 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 the 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.

During the hearing in the matter, 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.