With the Supreme Court setting a date to review the 36-year-old case involving the religious practice of excommunication in the Dawoodi Bohra community, the oldest pending case before a constitution bench in the nation may finally be resolved. The case involves the Dawoodi Bohra community’s practice of excommunication.
A member who has been excommunicated will face social isolation in addition to being denied access to places of worship.
On October 11, a five-judge panel, presided over by justice Sanjay Kishan Kaul, scheduled the 1986 case for a final hearing and requested that all parties submit written arguments regarding the most recent legal developments and the suggested method of investigation into whether the Dawoodi Bohra community’s practice of excommunication can continue as a “protected practice.”
The Supreme Court last mentioned the petition against the practice of excommunication in the community in 2005. Justices Sanjiv Khanna, AS Oka, Vikram Nath, and JK Maheshwari are also on the constitution bench.
The state of Maharashtra requested that the case be moved to a nine-judge bench at the preliminary hearing on Tuesday. This is because the court is already considering a number of concerns relating to the Sabrimala shrine judgment’s impact on the reach of judicial review of religious activities.
The 53rd Syedna, the community’s spiritual leader, countered that the proceedings are no longer valid because the 1949 Bombay Prevention of Excommunication Act, which was at the center of the debate, was abolished by a Maharashtra statute in 2017.
As of September 1, the Supreme Court’s backlog of cases included 493 constitution bench cases that stemmed from 54 main cases. 42 of the 54 main cases have a five-judge bench, seven have a seven-judge bench, and five have a nine-judge bench. Aside from the excommunication case, some other old cases were still pending as of this writing. These cases related to the state’s authority to levy a surcharge on sales tax, the right of the state to reserve seats for Scheduled Castes, Scheduled Tribes, and the Anglo-Indian community, and the sub-classification of Scheduled Castes in Punjab within reserved seats.
A list of 25 cases with a five-judge bench was released for hearing as soon as possible after Justice Uday Umesh Lalit was appointed Chief Justice of India on August 27. On Monday, the supreme court rendered a decision in one of them, and several others are still pending.
Excommunication disputes have long been in the legal spotlight for the Dawoodi Bohras. The Bombay Prevention of Excommunication Act was adopted by the Bombay province in November 1949. The 51st Syedna, who was the community’s then spiritual leader, petitioned against the law on behalf of Dawoodi Bohras.
According to the argument, one of Syedna’s instruments for managing the business of his sect was the ability to excommunicate people. A five-judge Supreme Court panel invalidated the 1949 Act in 1962 because it attempted to stop religious organizations from expelling a member.
The Central Board of the Dawoodi Bohra Community, which is regarded as the representative organization of reformist Dawoodi Bohras, filed a writ petition in 1986, 25 years after this judgement. The appeal highlighted the conclusions of a panel led by justice Narendra Nathwani, which was formed in 1977 to determine if some families’ claims of social boycotting were accurate.
After two years, the commission finished its investigation and recommended that social boycotts be made illegal, stating that the allegations were not without merit.
A two-judge bench in 1994 ordered that the case be considered by a seven-judge bench. But in 2004, the court decided that a five-judge bench should first review the case to determine whether or not a seven-judge bench needs to be consulted.
In his Tuesday appearance on behalf of the Syedna, senior attorney Fali S. Nariman noted that the 2017 Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act had rendered the petition “moot” because it not only repealed the 1949 Act but also made all forms of social boycott, including excommunication, illegal.
Siddharth Bhatnagar, a senior advocate for the petitioners, argued that the Dawoodi Bohra community members facing excommunication may not be protected by a “general law” specific to Maharashtra on social boycott and that the religious leaders must be willing to declare that they will not use excommunication, citing a 1962 ruling by the Supreme Court as support.
Nariman declined to comment on the matter and instead opted to present his case on October 11.
