The Supreme Court has decided to examine the practice of excommunication in the Dawoodi Bohra community, and whether it can continue as a “protected practice” despite the coming into force of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016. The act prohibits social boycotts in the name of caste, community, religion, rituals or customs.
A five-judge bench will start the hearing on the matter on October 11. The reference to a five-judge constitution bench was based on a 1962 judgment of another five-judge bench in the Sardar Syedna Taher Saifuddin vs the State of Bombay case.
Who are Dawoodi Bohras
Known for trading and its entrepreneurial skills, the Dawoodi Bohra community is a sect within Shia Islam. Over 5,00,000 Bohras live in India and its diaspora across the world. They majorly live in India, Yemen, Pakistan and East Africa.
AFP
Syedna Mufaddal Saifuddin is the present spiritual leader of the Dawoodi Bohra community. According to the DNA report, the community regards the Quran as the word of Allah as revealed to Prophet Mohammed al-Mustafa and their lives revolve around its teachings.
It follows the 7 pillars of Ismaili Islam in Fatimid Dawat - walaayat (guardianshi of faith), tahaarat (purity of body and thought), salaat (prayer), zakaat (offering a portion of one's income to Allah), sawm (fasting, particularly in the month of Ramadan), hajj (once in a lifetime pilgrimage to Mecca) and jihad (defending of one's faith).
What is excommunication?
According to the Cambridge dictionary, “the act of refusing to allow someone to be involved in the Church, especially the Roman Catholic Church, and to take part in the ceremony of Communion.”
What is the matter?
The apex court has decided to take a 36-year-old petition that has raised some 60-year-old questions about whether the supreme leader of the community can excommunicate any of its members and if the constitution protects it as a religious practice.
BCCL
Syedna Mufaddal Saifuddin, through senior advocate Fali S Nariman, informed the apex court that the issue has become “moot” and the court is not required to spend time to adjudicate it.
In 1962, Sardar Syedna Taher Saifuddin filed a petition challenging provisions of the Bombay Prevention of Excommunication Act, 1949. A five-judge SC bench held that “It is evident from the religious faith and tenets of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the 1949 Act in making even such excommunication invalid, infringed the right of the community under Article 26(b) of the constitution.”
Now, it is argued that with the introduction of the 2016 act, the 1949 law has been repealed and replaced by the government of Maharashtra.
Arguments challenging the Act
Senior advocate Fali Nariman advocating for the Bohra community in the case argued that “the 1949 legislation has been repealed and replaced by the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, which allowed the aggrieved person to file a complaint on facing excommunication. Since the old Act, on which the 1962 judgment had come, has been repealed, there is no need for the court to adjudicate an issue that has become moot.”
He further said, “If any member of a community is subject to ostracisation, please file a complaint. Excommunication is not legally feasible now. The current Act deals with several kinds of social boycotts, it explicitly covers the expulsion of a member of a community… What else is there?”
Arguments favouring the Act
Senior advocate Siddharth Bhatnagar, for the petitioners, said that a “general law” on social boycott is not enough to protect members from the community facing excommunication and thus “We have challenged the practice itself.”
AFP
Senior advocate Siddharth Bhatnagar told the bench that if the supreme leader of the Dawoodi Bohra community can make a statement that the religious power to excommunicate a member would not be resorted to following the 1962 judgment, then there would be no need to adjudicate the moot issue.
There are 16 types of social ostracisation including the expulsion of members from the community, identified under the 2016 legislation and made illegal with provisions of punishment.
While Solicitor General Tushar Mehta the matter is related to religious freedoms and should be further referred to the bench which will hear the Sabarimala issue.
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