Practice Of Excommunication To Be Tested On Constitutional Morality: SC Refers Issue Of Excommunication In Dawoodi Bohra Community To Nine-Judge Bench

The Constitution Bench of the Supreme Court referred an issue relating to the practice of ex-communication in the Dawoodi Bohra community to a larger nine-Judge Bench holding that such a practice is to be tested on the touchstone of the concept of Constitutional morality.

The Court was considering the 1962 judgment in the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962) Suppl. (2) SCR 496 : AIR 1962 SC 853 wherein the right of the Dawoodi Bohra community to ex-communicate its members was upheld.

The Bench of Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari observed, “… the question whether the protection can be given by Article 26(b) to the practice of ex¬communication is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality. This is an important and emergent issue. These are the two main grounds on which the said decision may need reconsideration by a larger Bench.”

The Bench further said that the exercise of balancing the rights under Article 26(b) of the Constitution with other rights under Part III and in particular Article 21 was not undertaken by the Constitution Bench in the case of Sardar Syedna.

“… we are of the view that the present writ petition deserves to be tagged with Review Petition (Civil) No.3358 of 2018 pending before the Bench of nine Hon’ble Judges”, the Court asserted.

Senior Advocate Siddharth Bhatnagar represented the petitioners while Senior Advocate Fali S. Nariman and Senior Advocate Dariaus J. Khambata represented the respondents.

Facts –

In the case of Sardar Syedna1 , the jurisdiction of the Apex Court under Article 32 of the Constitution was invoked for challenging the constitutional validity of the Bombay Protection of Ex-communication Act, 1949. Section 3 of the Ex-communication Act provided that notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no ex-communication of a member of any community shall be valid and shall be of any effect.

Sardar Syedna Taher Saifuddin Saheb, who was the 51st Dai-al-Mutlaq and the head of the Dawoodi Bohra community, challenged the Ex-communication Act on the ground that the same infringes the fundamental rights guaranteed under Articles 25 and 26 of the Constitution and a petition was placed before a Constitution Bench. The Constitution Bench, by a majority, held that ex-communication amongst the Dawoodi Bohras forms an integral part of the management of the community.

The prayer in the current writ petition filed by the Central Board of Dawoodi Bohra Community in this matter represented by its Secretary was for issuing a writ of mandamus directing the State Government to give effect to the provisions of the Ex-communication Act after reconsidering the decision of the Court in the case of Sardar Syedna. The petition also sought that the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 be given effect to as regards Dawoodi Bohra community as well, after revisiting the Sardar Syedna verdict.

The following two questions arose before the Supreme Court in this matter –

1. Whether anything survives in the writ petition for a decision on merits?

2. Whether the view taken in the case of Sardar Syedna needs reconsideration?

The Supreme Court while dealing with the aforesaid issues, noted, “We must note here that considering the definition of ‘community’ under Section 2(a) of the Ex communication Act, the applicability thereof was not confined only to the Dawoodi Bohra community. The provisions of the Ex communication Act were applicable to the practice of ex communication prevailing in different religions, castes or sub castes. The findings rendered by the majority view are only in respect of the right of the head of the Dawoodi Bohra community to ex-communicate a member of the community.”

The Court further noted that the Ex-communication Act in its entirety could not have been declared void.

“A person who is ex¬communicated by the community, will not be entitled to use the common property of the community and the burial/cremation grounds of the community. In a sense, such a person will virtually become untouchable (being banished or ostracized) within the community. In a given case, it will result in his civil death”, the Court said.

It was also observed by the Court that the protection under Article 26(b) granted by the decision in the case of Sardar Syedna to the power to ex¬communicate needs reconsideration as the said right is subject to morality which is understood as Constitutional morality and hence such an issue will require to be examined by a larger Bench.

The Court further said, “The freedom of religious denominations cannot exist in isolation. … Even assuming that the ex-communication of members of the Dawoodi Bohra community is always made on religious grounds, the effect and consequences thereof, on the person ex communicated needs to be considered in the context of justiciable Constitutional rights. The excommunication will have many civic consequences which will, prima facie, affect his fundamental right to live with dignity and the right to lead a meaningful life guaranteed by Article 21.”

The Court, therefore, concluded that the decision which will be rendered by the nine-Judge Bench will have a direct impact on the questions which arise for determination in the writ petition.

Cause Title- Central Board of Dawoodi Bohra Community & Anr v. The State of Maharashtra & Anr.

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