The Supreme Court on Friday referred the question of whether the excommunication of a member from the Dawoodi Bohra community is a protected right under Constitution to a larger bench.
A Constitution Bench of the apex court headed by Justice Sanjay Kishan Kaul also referred to a larger bench the question regarding the scope of judicial review of religious practices in the backdrop of the 2018 Sabrimala verdict.
The bench, also comprising Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, had reserved its order over the pleas in October last year.
While the matter was being heard, Solicitor General of India Tushar Mehta had argued that reconsideration of the 1962 judgment by this bench wouldn’t be appropriate as the said judgment, too, was rendered in a five-judge composition.
To the contrary, senior advocate Fali Nariman, appearing for the head of the community, had said that the matter should be deferred until the nine-judge bench in the Sabrimala case settles the legal position and delivers its verdict.
Senior advocate Siddharth Bhatnagar had argued that specific question of the case was not pending before the Sabarimala bench and there was a chance that the nine-judge decision would not give clarity on excommunication.
The court was considering various petitions challenging the authority of the Dawoodi Bohra community leaders to excommunicate their members. The Constitution Bench was considering whether excommunication of a member from the Dawoodi Bohra community is a protected right under the Constitution, irrespective of the enforcement of Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016, which repealed the Bombay Prevention of ExCommunication Act, 1949 (1949 Act).
The Bombay Prevention of ExCommunication Act, 1949, which prevented religious denominations from ousting a member of the denomination, was struck down by a five-judge bench in 1962 in the Sardar Syedna Taher Saifuddin vs The State of Bombay case.
The SC verdict had upheld the right and power of excommunication bestowed upon the head priest of the Dawoodi Bohra community. Excommunication of a member barred them from entering the relevant places of worship. The act was challenged by the religious head of the Dawoodi Bohra community on the grounds that the right to excommunicate was crucial to his role as the community’s head.
The petitioners were represented by Siddharth Bhatnagar, Ld. Sr. Adv. and Jatin Mongia, Adv., assisted by a team from Karanjawala & Co Advocates, comprising of Manik Karanjawala, Founding Partner; Nandini Gore, Senior Partner; Principal Associates Tahira Karanjawala, Niharika Karanjawala and Arjun Sharma; and Associates Karanveer Singh Anand and Ritwik Mohapatra.
The head of the Dawoodi Bohra community was represented by Fali S Nariman, Darius Khambata, Pravin H Parekh and Parag Tripathi, Ld. Sr. Adv.
The Union of India was represented by Solicitor General of India Tushar Mehta.
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