The Constitution Bench of the SC has referred the question of the validity of the practice of excommunication among the Dawoodi Bohras, to a nine-Judge Bench constituted to decide the correctness of the ‘first Sabarimala judgement’.

On February 10, A Constitution Bench of the Supreme Court referred the question of the validity of the practice of excommunication prevalent among the Dawoodi Bohras, to a nine-Judge Bench constituted to decide the correctness of the ‘first Sabarimala judgement’. The Dawoodi Bohras form a sect of Shia Muslims, whose supreme leader is empowered to excommunicate or expel recalcitrant members, thereby, denying them access to the community mosque or burial grounds, as well as other facilities. In October, the top court had reserved its decision on whether to refer the issue to the larger bench, after hearing a petition pending from 1986 challenging the validity of this practice of social boycotting.

The five-judge Bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari held that in view of 2018 Sabrimala Judgement, the larger bench has to consider the questions relating to the scope of judicial review of religious practices.

'The question whether excommunication can be protected u/A 26(b) is to be tested on touchstone of constitutional morality', said Justice Oka while pronouncing the Judgement.

This has given rise to the question of whether excommunication can still continue as a ‘protected practice’, notwithstanding the embargo on social boycott imposed by the Maharashtra Legislature.

This reference was made by a Bench led by Chief Justice R.C. Lahoti, who had held, “The matter should be placed for hearing before a Constitution Bench of five judges and not before a larger Bench of seven judges. It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb's case that it may opine in favour of hearing by a larger bench consisting of seven judges or such other strength as the chief justice may in exercise of his power to frame a roster may deem fit to constitute.”

The issue was taken up by the Constitution Bench last year after almost 18 years since the referral, and more than 60 years since the question was first raised before the apex court. On behalf of the union government, the Solicitor-General Tushar Mehta argued that the question was ‘generic’ and could be answered by the nine-Judge Bench constituted to decide, inter alia, the correctness of the five-Judge Bench decision in the ‘first Sabarimala judgement’, i.e., Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.

Case Title: Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr.
Citation: Writ Petition (Civil) No. 740 of 1986