Dawoodi Bohra Excommunication Day #1: SC Discusses Reference to Sabarimala Review 9-J Bench

The debate over if the leader of the Dawoodi Bohra community has the power to excommunicate community members has been pending at the Supreme Court for nearly 60 years now. At the end of the first day of hearings by a Constitution Bench led by Justice Sanjay Kishan Kaul, it remains unclear whether the Court will provide definitive answers anytime soon. 

The fate of the excommunicated members who brought this case to the Court appears inextricably tied to the pending 9-Judge Bench Sabarimala Review. Justice Kaul, along with Justices Sanjiv Khanna, A.S. Oka,Vikram Nath and J.K. Maheshwari, reserved his decision on whether the Dawoodi petitions must be referred to the Sabarimala Review Bench today (October 11th, 2022). The Court may send this case to the 9 Judges, continue to hear the case itself now, or wait for the 9-Judge Bench decision before hearing this case. 

Background

The Bohra community is a small Shia muslim sect. Their leader exercises the power to excommunicate members for challenging his authority. An excommunicated member is denied access to the community mosque and burial sites. 

Some excommunicated members came to the Supreme Court in 1986, arguing that the leader’s powers of social exclusion are unconstitutional. At the same time,  the Bombay Prevention of Excommunication Act, 1949, which made the excommunication of any religious community member illegal, also came under challenge.

Writing for a Constitution Bench of the Supreme Court in 1962, Justice B.P. Sinha upheld the leader’s power to excommunicate. Justice Sinha stated that the leader’s position is an essential part of the community. The power to excommunicate is to enforce discipline and preserve the denomination, not to punish. In this Judgement, Justice Sinha held the 1949  Act to be unconstitutional. 

The petitioners asked the Court to reconsider the Judgement. In 2004, Chief Justice R.C. Lahoti referred the reconsideration to a 5-Judge Bench. He stated that this Bench must first examine the old Judgement. If they find fault in it, they may refer it to a 7-Judge Bench to set down the new legal position. 

The Supreme Court did not hear this case between 2014 and 2022. Meanwhile, the Maharashtra Legislative Assembly passed the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 , which repealed the 1949 Prevention of Excommunication Act. In 2019, the Supreme Court also referred a range of broad questions on the meaning of the Right to Religion under Articles 25 and 26 to a 9-Judge Bench in the Sabarimala Review petition. 

Bohra Leader: Wait for 9-Judge Sabarimala Review Judgement, Which is Sure To Affect This Case

Solicitor General Tushar Mehta addressed the Court first. He argued that the Bohra petitions raise a broad question about the powers of a religious community leader. Hinting that this question was similar to the ones before the Sabarimala Review Bench, he argued that the current Bench may refer the Bohra petitions to the same 9-Judge Bench. However, he stated that the current Bench was equally competent to consider the correctness of the 1962 Judgment and refer the case to a 7-Judge Bench if needed. 

Senior Advocates Fali Nariman and Darius Khambata, appearing for the Bohra community leader, argued that the current Bench must wait for the Sabarimala Review decision before proceeding in this case. They suggested the expansive nature of questions before the Sabarimala Bench would surely affect the facts and issues in this case. 

Mr. Nariman further suggested that the petitions were now infructuous because the Maharashtra government had repealed the offending Act that formed the basis for the 1962 Judgement. He argued that, with the government out of the picture, this case was now between private parties, the excommunicated members and their leader. His point was that a writ petition under Article 32 for the enforcement of fundamental rights can be filed only against State actors, not private parties. 

Excommunicated Members: Question of Excommunication Is Not Before Sabarimala Review Bench

Senior Advocate Siddharth Bhatnagar, appearing for the excommunicated Bohra members, argued that the specific question of the leader’s powers to excommunicate was not pending before the 9-Judge Bench. He stated that there was an equal chance that the Sabarimala Bench would not address any aspect of this question. In that case, the Bohra members would have to return to ‘square-one’ and argue this case before the 5-Judge Bench. Further delays in the hearing, he argued, were unnecessary. 

Mr. Bhatnagar responded to Mr. Nariman’s argument about the repealed Maharasthra Act as well. Mr. Bhatnagar stated that the focus of the case was not the Maharashtra Act, but the general power of a religious leader to excommunicate community members. He implored the Court to address this issue. 

The Court’s Order on reference to the Sabarimala Review 9-Judge Bench will now determine what course this case takes.