Supreme Court refers issue of excommunication in Dawoodi Bohra community to 9-judge bench

The Supreme Court on Friday referred a question about whether excommunication in the Dawoodi Bohra community can continue as a “protected practice”, to a nine-judge bench to be formed for hearing review of the Sabarimala temple judgement.

A Constitution bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and J K Maheshwari referred the matter to the larger bench.

During the hearing, Solicitor General Tushar Mehta said since the matter concerns religious freedoms, it should be referred to the Sabarimala bench.

Senior advocate Fali Nariman, representing the Bohra community, had argued that the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 provided remedy to all victims of social boycott and a complaint can be registered with the nearest magistrate, in case of apprehension of social boycott by a religious body.

In 1962, the apex court had held that religious faith and tenets of the Dawoodi Bohra community gave its religious heads the power of excommunication as part of their “management of religious affairs” under Article 26(b) of the Constitution. This verdict had come as a challenge to Section 3 of the Bombay Prevention of Excommunication Act of 1949.

It was argued before the SC that after the 2016 law, the 1949 Act had become non-existent and the excommunication is not legally feasible now and the current law deals with several kinds of social boycott.

It was also contended that a general law on social boycott would not be sufficient to protect members of the Bohra community facing excommunication. The 2016 Act had identified 16 types of social ostracisation and made them illegal, punishing the perpetrators with imprisonment for up to three years.