SC Questions Maintainability Of 40-year-old PIL On Excommunication Of Members Among Dawoodi Bohras

New Delhi: The Supreme Court on Wednesday questioned the maintainability of a PIL filed by the Central Board of Dawoodi Bohra Community in 1986. The PIL raised the question of whether the supreme leader of the close-knit community can excommunicate any of its members and if this practice is constitutionally protected as a religious practice.

In 1986, the Central Board of Dawoodi Bohra Community filed a PIL seeking to set aside a 1962 judgment in the case of Sardar Syedna Taher Saifuddin Saheb, which had struck down the Bombay Prevention of Excommunication Act, 1949, making excommunication of any community member illegal.

The apex court’s nine-judge constitution bench is hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and the scope of religious freedom practised by multiple faiths, including Dawoodi Bohras. The bench comprises Chief Justice of India (CJI) Surya Kant and Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

Senior advocate Raju Ramachandran contended before the bench that he represented a group of reformist Dawoodi Bohras and one individual whose father, the late Asghar Ali Engineer, was a victim of excommunication and whose family suffered on that account.

The senior advocate contended that excommunication in Dawoodi Bohras directly impinges upon human dignity, similar to Parsi women who face religious censure for entering into interfaith marriages. Ramachandran submitted before the bench that the head of the Dawoodi Bohras sect is called the "Dai", which is a sect of Shia Muslims.

He contended that the Dai himself is regarded as the representative of the 21st Imam, who is believed to have gone into seclusion. He said the unique feature of the Dawoodi Bohra faith is that the Dai is the supreme authority. He stressed that children, upon attaining puberty, take an oath of complete allegiance to the Dai in all matters.

He said the issue is not about the mere imposition of religious discipline, which one may assume every religion requires in order to preserve its flock. The senior advocate stressed that the question is about the proportionality of the punishment and its impact on human dignity.

Justice Nagarathna asked, "You are asking us to set aside a judgment by filing a petition under Article 32 of the Constitution? Commenting that the Supreme Court has to be 'consistent' and cannot change 'colour' overnight." Justice Nagarathna asked how Article 32 pleas can be entertained against constitution bench rulings.

"A two-judge bench can do it tomorrow. We are concerned, it’s a serious matter on practice of this court," Justice Nagarathna said. Ramachandran replied that he will answer the question, "fairly and squarely" but at a later stage.

Justice Nagarathna then said, "Unless you get over that, how can we hear you on the merits? We cannot entertain a petition on merits unless this is sorted….".

"Yesterday, we were saying on merits why that writ petition was entertained in Sabarimala. Today, we can't change our colour and say why your writ petition should also be entertained," observed the bench.

On Tuesday, the apex court shot a volley of questions at an NGO Indian Young Lawyers Association, on whose PIL the apex court had allowed the entry of women of all age groups to the Sabarimala temple and questioned its religious belief and conscience. The hearing will continue on Thursday.