New Delhi: The Supreme Court on Friday referred the issue of the practice of excommunication in the Dawoodi Bohra community to a larger nine-judge bench which is seized of various aspects including the scope and extent of judicial review with regard to a religious practice.
The nine-judge bench is slated to consider seven issues which were framed in February 2020 in the matter pertaining to review of the apex court’s 2018 judgement allowing women and girls of all ages to enter Kerala’s Sabarimala temple.
A five-judge constitution bench headed by Justice S K Kaul, which dealt with the issue concerning the practice of excommunication in the Dawoodi Bohra community, said the plea deserves to be tagged with the review petition filed in the Sabarimala temple matter.
The bench, also comprising justices Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari, directed the apex court registry to seek appropriate directions in this behalf from the Chief Justice.
It said a 1962 verdict delivered by a five-judge constitution bench in the Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay case which had ruled that the Bombay Prevention of Excommunication Act, 1949 violated Article 26 (b) (freedom to manage religious affairs) of the Constitution, requires reconsideration.
“We have held that decision of the constitution bench (of 1962) requires reconsideration. We have recorded two grounds on which it requires reconsideration,” the bench said while pronouncing the order.
On October 11 last year, the bench had reserved its order on whether to refer the plea on the issue to a larger bench for adjudication.
It was considering if the Shiite Muslim community of a little over 10 lakh people spread across several countries has the right to excommunicate its dissenting members.
While pronouncing the order on Friday, the bench said one of the issues is regarding balancing the rights under Article 26 (b) with that of Article 21 (protection of life and personal liberty) of the Constitution.
It said issue involved in the matter is substantially covered by two of the questions which were framed for consideration by a nine-judge bench.
“Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?” reads one of the issues framed in February 2020 for consideration by a nine-judge bench.
“What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?” reads another issue framed in 2020 for consideration by the larger bench.
A nine-judge bench in 2020 had made clear it was not hearing pleas seeking review of the 2018 judgement and would rather deal with larger issues, including the extent to which courts can intervene in “particular religious practices”.
It had said it would only deal with the issues referred to it by a five-judge bench in the matter.
Before that, in September 2018, the apex court in a 4:1 majority verdict lifted the ban that prevented women and girls between the age of 10 and 50 years from entering the famous Ayyappa shrine in Sabarimala and held that the centuries old Hindu religious practice was illegal and unconstitutional.
While dealing with the issue of the Dawoodi Bohra community, the apex court was earlier told that The Bombay Prevention of Ex-communication Act, 1949 has been repealed and The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act 2016 has come into force.
Section 3 of the 2016 Act refers to 16 types of social boycott of a member of the community and section 4 says social boycott is prohibited and its commission shall be an offence. The 16 types of social boycott includes expulsion of a member of a community.
According to the 2016 Act, a person convicted of the offence would be punished with imprisonment, which may extend to three years, or with fine which may extend to Rs 1 lakh or with both.
In 1986, a petition was filed in the top court seeking reconsideration and overruling of the judgement delivered in 1962.
