Who are the Dawoodi Bohras, and what is the excommunication petition before Supreme Court? (2024)

A five-judge Constitution Bench of the Supreme Court on Friday (February 10) referred the challenge to the constitutional validity of the practice of excommunication in the Dawoodi Bohra community to the nine-judge Bench constituted to review the September 28, 2018 Sabarimala judgment.

The petition (Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr) has been pending since 1986.

In October 2022, a Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A S Oka, Vikram Nath, and J K Maheshwari had reserved its order on whether to refer the matter to the nine-judge Bench in the Sabarimala review case, which is considering larger issues of essential religious practice.

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Who are the Dawoodi Bohras?

The Dawoodi Bohras are Shia Muslims whose leader is known as the Al-Dai-Al-Mutlaq. According to members of the community, there are around 1 million Dawoodi Bohras spread around the world.

For over 400 years, the leader of the community has been based in India, including the current and the 53rd leader, His Holiness Dr Syedna Mufaddal Saifuddin.

The leader of the community is recognised by the members as having the right to excommunicate its members. In practical terms, excommunication means not being allowed to access a mosque belonging to the community or a burial dedicated to the community.

Among the members of the community who have faced excommunication in the past are those who contested the headship of the leaders.

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How did challenge to the practice of excommunication begin?

On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities, as it led to the deprivation of legitimate rights and privileges of its members and in “keeping with the spirit of changing times and in public interest”.

The law defined excommunication as the “expulsion of a person from any community of which he is a member, depriving him of rights and privileges which are legally enforceable by a suit of civil nature”. It invalidated excommunication of any member, “notwithstanding anything contained in law, custom, usage” for the time being in force.

A member of the Dawoodi Bohra community filed a suit in 1949, saying the Act rendered certain orders passed by their leader unlawful. Other cases also came before various courts.

How did the matter reach the Supreme Court?

The 51st leader of the community, Sardar Syedna Taher Saifuddin Saheb, challenged the constitutional validity of the Act, stating it violated fundamental rights guaranteed by the Constitution under Articles 25 (Freedom of conscience and free profession, practice and propagation of religion) and 26 (Freedom to manage religious affairs).

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It was submitted that the power of excommunication was part of the management of community affairs in matters of religion, and depriving the Dai (leader) of the right and making its exercise a penal offence “struck at the very life of the denomination and rendered it impotent to protect itself against dissidents and schismatics”.

It was also submitted that the power to excommunicate is not absolute or arbitrary, and “Save in exceptional circ*mstances, expulsion from the community can be effected only at a meeting of the Jamat, after the person concerned has given due warning of the fault complained of and an opportunity of mending, and after a public statement of the grounds of expulsion. The result of excommunication properly and legally effected involves exclusion from the exercise of religious rights in places under the trusteeship of the Dai-ul-Mustlaq”.

The practice was claimed to be essential to the Dawoodi Bohra faith.

The respondents to the petition said that the Quran does not permit excommunication, and that it goes against the spirit of Islam. They submitted that the right to regulate religious communities does not include the right to excommunicate.

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A Constitution Bench of the SC held in 1962 that the Dai’s position is an essential part of the community and the power to excommunicate is to enforce discipline and preserve the denomination, not to punish. (Sardar Syedna Saifuddin v. State of Bombay)

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What has been happening in the matter more recently?

A challenge to the 1962 judgment was filed in 1986. While that petition was still pending, the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, was passed.

The 2016 Act prohibits the social boycott of a person or a group of persons, and terms it a violation of fundamental rights. The Act describes a social boycott as “inhuman”, and defines 16 types of social boycott — including preventing members of a community from having access to facilities including community halls, burial grounds, etc.

In October 2022, the court said that it would consider whether the practice of excommunication that was protected by the 1962 order can continue. Lawyers representing the Al-Dai-Al-Mutlaq submitted that the petition had become infructuous since the impugned Act had already been repealed by the 2016 Act.

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The petitioners (Central Board of Dawoodi Bohra Community) argued that a nine-judge Constitution Bench was going to consider the broad issues on the interpretation of Article 25 and 26 but the specific issue challenging the constitutionality of excommunication may not be considered by it, and sought a decision on that limited issue.

What exactly did the Supreme Court say on Friday?

A Constitution Bench led by Justice S K Kaul said that the 1962 judgment needed a relook. The court held that the consideration was needed mainly on two grounds: balancing the rights under Article 26(b) — right of religious denominations to manage their own affairs in matters of religion — and Article 21 — whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.

The court said both these issues are covered by questions pending for the consideration of the nine-judge Bench and requested the Chief Justice of India to tag it with the matters pending before the nine-judge Bench.

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Finally, what is the Sabarimala review petition?

The apex court had on September 28, 2019, by a 4:1 verdict held that the devotees of Sabarimala deity Lord Ayyappa do not constitute a separate religious denomination and therefore cannot claim the benefit of Article 26 of the Constitution of India.

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It also said that the exclusion of women between the ages of 10 to 50 years from entry into the temple is violative of Article 25 of the Constitution.

This was challenged by way of review petitions. The court, by a 3:2 decision, referred the questions of law to a larger Bench.

Who are the Dawoodi Bohras, and what is the excommunication petition before Supreme Court? (2024)

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