Thursday, September 28, 2023

Dawoodi Bohra excommunication: Supreme Court refers matter to nine-judge bench hearing Sabarimala issue

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The Supreme Court on Friday referred the matter related to the rights of the Dawoodi Bohra community regarding excommunication of its members to the nine-judge Bench hearing the Sabarimala matter.

The Constitution Bench of Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S Oka, Justice Vikram Nath, and Justice JK Maheshwari observed that the 1962 judgment in the Sardar Syedna Taher Saifuddin vs The State Of Bombay case protecting the rights of the Bohra community to excommunicate members required reconsideration on two grounds.

First, an examination was needed with respect to balancing rights under Article 26(b), which gave all religious denominations the right to manage their own affairs in matters of religion, with others rights under Part III of the Constitution, particularly Article 21 (right to life and liberty).

The second ground was whether protection could be given under Article 26 (b) to the practice of excommunication while being tested on the touchstone of constitutional morality.

Noting that these two issues were covered under questions 3 and 4 of the Sabarimala review judgment, the Bench requested Chief Justice of India D.Y. Chandrachud to tag this case with the one before the nine-Judge Bench.

In October last year, the Apex Court had reserved its verdict on whether the pleas concerning rights of the Dawoodi Bohra community to excommunicate its members need to be referred to a larger bench.

The top court of the country had also pondered over whether the Bohra community had the right to excommunicate dissidents from its community in exercise of its fundamental rights under Article 25 and 26 of the Constitution.

It further reviewed its earlier verdict delivered by a five-judge Bench in the Sardar Syedna Taher Saifuddin vs The State Of Bombay case, in which the Apex Court had protected the rights of Bohra community to excommunicate its members.

However, the enactment of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act in 2016 outlawed such practice.

The respondents had urged the Court to wait for the nine-judge Bench decision in Sabarimala matter or refer the present case also to a nine-judge Bench.

The Sabarimala case was related to the entry of women into the Kerala temple. Apart from this issue, the nine-judge Bench was also to consider three other cases involving women’s rights with respect to religious practices.

The Counsel for the petitioners had insisted that the issue relating to the constitutional validity of excommunication certainly arose before this Bench and survived the repeal of the 1949 Act.

It was emphasised that while the Act of 2016 did say that a community may not boycott somebody, but if one was not part of a community after being excommunicated, the Act would not apply to them.

Another petition filed before the Apex Court sought to challenge the practice as being unconstitutional.

Senior Advocate Siddharth Bhatnagar appeared for the petitioners. He was briefed by Advocate Jatin Mongia and a team of lawyers from Karanjawala & Co led by Founding Partner Manik Karanjawala and Senior Partner Nandini Gore along with Tahira Karanjawala, Niharika Karanjawala, Arjun Sharma, Neha Khandelwal, Karanveer Singh Anand and Ritwik Mohapatra.

Senior Advocates Fali S. Nariman, Darius Khambata, Parag Tripathi and P.H. Parekh represented the respondents. They were briefed by a team of Advocates from Argus Partners comprising Senior Partner Abeezar Faizullabhoy, Partner Murtaza Kachwalla and Senior Associate SM Algaus as well as a team of Advocates from Parekh and Co.

Solicitor General Tushar Mehta appeared for the Central government.

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