{"id":283770,"date":"2023-02-13T09:00:26","date_gmt":"2023-02-13T03:30:26","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=283770"},"modified":"2023-07-10T15:37:32","modified_gmt":"2023-07-10T10:07:32","slug":"ex-communication-dawoodi-bohra-right-to-religion-constitutional-morality-civil-death-untouchability-sabarimala-9-judge-bench-supreme-court-constitution-bench-legal-updates-research-knowledge-news","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/02\/13\/ex-communication-dawoodi-bohra-right-to-religion-constitutional-morality-civil-death-untouchability-sabarimala-9-judge-bench-supreme-court-constitution-bench-legal-updates-research-knowledge-news\/","title":{"rendered":"Ex-communication in Dawoodi Bohras matter deserves to be tagged with 9-judge bench Sabarimala Review due to overlapping issues: Supreme Court 5-judge Constitution Bench"},"content":{"rendered":"

Supreme Court<\/strong>: The 5-judge Constitution Bench of Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka*,<\/strong> Vikram Nath and JK Maheshwari, JJ, has referred the issue relating to ex-communication of a person from the Dawoodi Bohra community <\/strong>to a larger bench and has observed that the same deserves to be tagged with the review petition of the Sabarimala Temple verdict <\/strong><\/a>that is pending for consideration before a 9-judge bench, after noticing similarity of issues in both the matters.<\/p>\n

Case Trajectory <\/strong><\/h3>\n

The Court was called upon to decide whether the view taken by a Constitution Bench in the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1962) Suppl. (2) SCR 496<\/em><\/strong><\/a>, requires reconsideration that had decided the validity of the Bombay Protection of Ex-communication Act, 1949.<\/p>\n

In the said case, 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 of India.<\/p>\n

The Constitution Bench, by a majority, held that ex-communication amongst the Dawoodi Bohras forms an integral part of the management of the community. Hence, interference with the right to excommunicate amounts to interference with the right of the community to manage its own affairs in matters of religion.<\/strong> As the Ex-communication Act invalidates excommunication on any \u00a0ground whatsoever including religious grounds, it was in clear violation of the right of the Dawoodi Bohra community guaranteed under Article 26 (b) of the Constitution of India.<\/p>\n

In the case at hand, a writ petition was filed by the Central Board of Dawoodi Bohra Community 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 this Court in the case of Sardar Syedna case<\/em><\/strong><\/a>.<\/p>\n

It is interesting to note that, meanwhile, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016<\/a> was also passed and by clause (c) of Section 20, the Ex-communication Act was repealed.<\/p>\n

Maintainability of Writ Petition <\/strong><\/h3>\n

The Court noted that the findings rendered by the majority view in the Sardar Syedna case<\/em><\/strong><\/a> are only in respect of the right of the head of the Dawoodi Bohra community to ex-communicate a member of the community. However, considering the definition of \u2018community\u2019 under Section 2(a) of the\u00a0\u00a0 Excommunication Act, the applicability thereof was not confined only to the Dawoodi Bohra community.<\/p>\n

As the provisions of the Excommunication Act were applicable to the practice of\u00a0\u00a0 excommunication prevailing in different religions, castes or subcastes, while recording a finding regarding violation of Article26(b) only in relation to Dawoodi Bohra community, the entire Ex-communication Act could not have been declared void.<\/strong><\/p>\n

Therefore, the Court observed that even assuming that the view taken by the Constitution Bench is correct, the questions which certainly survives for consideration in the present day context are:<\/p>\n