Judgement Pronouncement: Dawoodi Bohra Right to Excommunicate Members

Excommunication Of Members From Dawoodi Bohra Community

Judges: S.K. Kaul J, Sanjiv Khanna J, A.S. Oka J, Vikram Nath J, J.K. Maheshwari J

Joyston D'Souza | 10th Feb 2023

Today, the 5-Judge Constitution Bench referred the questions on the Dawoodi Bohra community leader’s power to excommunicate members to the 9-Judge Bench hearing the Sabarimala Review case.

Background

The Dawoodi Bohra community is part of the Shia sect of Islam. The Dawoodi Bohra religious leader can excommunicate members of the community for challenging his authority. In 1949, The Bombay Prevention of Excommunication Act (the Act) made it illegal to excommunicate members of a religious community.  The leader of the Dawoodi Bohra community challenged the Act claiming that it violated the right to freedom of religion and the right manage religious. In 1962, a 5-Judge Constitution Bench of the SC in Sardar Syedna Taher Saifuddin Saheb v the State of Bombay, held the Act to be unconstitutional. 

Members of the community, however, filed a writ petition against the 1962 decision claiming that Islam did not permit excommunication. In 2016, the 1949 Act was repealed by the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. The 2016 law identified 16 types of social ostracisation and made it illegal to expel members from their community. The 5-Judge Bench in this case was expected to decide if the right to excommunicate members of a religious community is protected by the SC’s 1962 decision and if the practice can continue.

Justice A.S. Oka pronounced the unanimous decision. He held that the challenge would be referred to the 9-Judge Bench in the Sabarimala Review case for two reasons:

  1. The 5-Judge Bench in Sardar Syedna Taher Saifuddin Saheb (1962) did not balance the right to manage religious affairs against other fundamental rights, especially the Right to Life.
  2. The SC must consider if protection given under Article 26(b), which grants religious communities the right to manage their own affairs, reflects the core values of the Constitution.

Since the issues raised in this case are pending before the Sabarimala Review Bench, the challenges will decided in the latter case.