The Supreme Court on Tuesday (September 20) said it will examine whether the excommunication of the Dawoodi Bohra community’s members can be continued. According to the Bombay Prevention of Excommunication Act, 1949, which first sought to prevent excommunication, the practice was defined 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”. This act was later repealed, and a legal challenge has been posed to the practice.
The arguments on the petition are likely to begin next month.
The Dawoodi Bohras are members of the Muslim community’s Shia sect. Their leader is known as the Al-Dai-Al-Mutlaq. For over 400 years, the leader has been based out of India, including the current and the 53rd leader, His Holiness Dr Syedna Mufaddal Saifuddin. According to the members, around 1 million members of the community are spread across the world.
The leader of the community is recognised by the members as having the right to excommunicate its members. In practice, being excommunicated includes not being allowed to access a mosque belonging to the community or a burial dedicated to the community. Among those who have faced excommunication in the past were people who contested the headship of the leaders.
The Act was enacted on November 1, 1949, to stop 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 excommunication of any community member was made invalid, “notwithstanding anything contained in law, custom, usage” for the time being in force. After the act was enacted, one of the members of the Dawoodi Bohra community filed a suit in 1949, saying certain orders passed by their leader were illegal because of the act. Other cases also came before various courts and a petition was filed before the SC by the leader, challenging the constitutionality of the act.
The 51st leader of the community, Sardar Syedna Taher Saifuddin Saheb, challenged the constitutional validity of the act in 1962, stating it violated fundamental rights guaranteed in the Constitution under Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and Article 26 (Freedom to manage religious affairs).
It was submitted that the power of excommunication was part of the management of community affairs in matters of religion, and depriving the Dai 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 before the SC that the power to excommunicate is not absolute or arbitrary, and “Save in exceptional circumstances, 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.
Respondents to the petition said that Quran does not permit excommunication and that it went against the spirit of Islam, and the right to regulate religious communities does not include the right to excommunicate.
The SC held in 1962 held 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.
The court said on Tuesday that it would consider whether the practice protected by the 1962 constitutional bench order can continue. It was submitted that in Maharashtra, the state has enacted the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016, which 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, and burial grounds, among others.