The 5-Judge Constitutional Bench of the Supreme Court has referred the matter related to Excommunication in Dawoodi Bohras community to the nine-judge Sabarimala Bench on Friday, 10 February.
The decision on the validity of the practice of the excommunication in the Dawoodi Bohra community that has been under hearing with the apex court for nearly 4 decades now, has now been left to the Nine-Judge Sabarimala Bench of the Supreme Court constituted to decide on the precision of the “first Sabarimala Judgement’. The five-judge Constitution bench of the Supreme Court hearing the excommunication case had earlier reserved its decision on the hearing in the matter on October 11, 2022 and the order was communicated on 10 February 2023.
There are two grounds on the basis of which the 1962 decision has been challenged – one being that the decision did not balance the rights enshrined in Clause B of Article 26 and Article 21 of the Constitution, and second, whether the this practice of excommunication can be protected under Clause (b) of the Article 26 is to be tested on the touchstone of constitutional morality, said Justice AS Oka.
“These are two main grounds on which the aforesaid decision requires reconsideration by a larger bench. These questions are substantially in issue before the nine-judge bench reviewing the Sabarimala judgement and are covered by the third and fourth questions framed by the bench. We, therefore, request the Chief Justice of India to tag this matter to be heard by the nine-judge bench.” - Justice AS Oka
A sub sect of Shia’a Muslims, the million odd Dawoodi Bohra community has been plagued by an excommunication practice for decades, where the Supreme leader of the community exercises his right to excommunicate or exorcize intractable members from the community affairs, thereby denying them burial grounds and / or access to community masjids and ziyarats. The practice of excommunication of making outspoken Bohras social outcasts, has been challenged through a petition pending since 1986, and still no decision has been given by the apex court, despite a law in Maharashtra banning social boycott.
The five-bench Constitution bench comprising of Justices Sanjay Kaul, Sanjiv Khanna, JK Maheshwari, AS Oka and Vikram Nath hearing this matter since September 2022 have held that the matter be referred to the nine-judge Sabarimala bench since the decision of the Supreme Court in 1962 in favour of the then Bohra supremo Sardar Syedna Saifuddin required reconsideration.