Central Board of Dawoodi Bohra Community v. State of Maharashtra

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Central Board of Dawoodi Bohra Community v. State of Maharashtra

This case will determine whether the Bombay Prevention of Ex-communication Act, 1949 is invalidated by the right to Freedom of Religion provided under Articles 25 and 26 of the Constitution.

Petitioners Arguments

The referral order from 2004 does not discuss the arguments of the petitioners and respondents and merely examines the correctness of the decision of the division bench to refer the matter directly to a seven judge bench. However, a reading of the previous judgment under challenge in this case throws light upon what the arguments of the petitioners and respondents could have been. That the Act was to prevent members from being deprived of their civil rights (such as the right to a place of worship, right to burial, etc.) and did not fall under the ambit of ‘matters of religion’ under Article 26(b). That expulsion from the denomination and by extension denial of ‘rights and privileges (such as the right to a place of worship, right to burial, use of community property, etc.) was not in the nature of ‘management of affairs’ in ‘matters of religion’ (under Article 26(b)), therefore, not violating it. Even if ex-communication was considered a ‘matter of religion’, the Act would be saved on grounds that it was a matter of ‘social welfare and reform’ under Article 25(2)(b). That the right to excommunicate was not an essential religious practice of the denomination and did not warrant protection under Article 25 and 26. Even if it were, it was counter to ‘public order morality and health’. Thus, the right to excommunicate was not an absolute right and was subject to regulation on the above-mentioned grounds.

Responders Arguments

That as the religious head of the community, the Da'i al-Mutlaq, had the power to expel dissidents from the community. This power was in the exercise of the denomination’s right to manage its own affairs in ‘matters of religion’ and the Act, by denying the Da'i al-Mutlaq this right, violated Article 26(b). That in taking away the power of ex-communication, the Act compelled the denomination to accept dissidents as members of the community with full rights, including the right to use the properties and funds of the community, thus violating the community’s rights under Article 26. Relying on the decision in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005] , it was argued that the Constitution not only guarantees freedom of religious opinion but acts done in pursuance of a religion (substantiated by the use of the word ‘practice’ in Article 25). Article 25 is not limited to individuals and is available to the community, acting through its religious head. The religious head could therefore excommunicate dissidents, according to the tenets of the religion in the ‘practice of his religion’ under Article 25. That the Dawoodi Bohra Community is entitled to ensure its continuance by taking steps (including ex-communication if need be) to ensure religious unity and discipline, and that these steps are being taken to ensure the continuance of the religion, making it a ‘matter of religion’ under Article 26. Therefore, ex-communication is not a social question, and Article 25(2)(b) could not be invoked in aid of holding the Act to be constitutional. The right to excommunicate is so intricately bound up with the religion and is essential to the practice of the religion that the power of the Da'i al-Mutlaq including his power to excommunicate forms one of the religious tenets of this community, and preventing it contravenes Article 25.

Last Listed On

2023-02-10

Start Date

2004-12-17

End Date

2023-02-10

Card Stage Date

2023-02-10

Review Petition No

W. P. (C) No. 740/1986

Case Status

Archive

Bench Status

Constituted

Subject Matter

Constitution

Disposal Time

18 years, 1 month, 25 days

5 Judge Bench

Judgment delivered

Consider As Stage Of Pendency

false

Date of institution of case

Date of reference to 5 Judge Bench

Judgement pronounced

The present matter arose as a petition for the Supreme Court to reconsider its decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853] , where a five-judge bench had ruled that the Bombay Prevention of Ex-communication Act, 1949 was ultra vires the Constitution. The Act in effect prevented any religious denomination from expelling (‘ex-communicating’) a member and as a consequence, preventing him from accessing places of worship, burial grounds, etc., that he would be usually entitled to, being a part of the community. The religious head of the Dawoodi Bohra Community, the Da'i al-Mutlaq, challenged the Act, stating that preventing him from exercising his right to excommunicate was a violation of Article 25 and 26 . The matter was heard by a two-judge bench which controversially referred it directly to a seven-judge bench. The Court in response to the Petitioner’s objection to the same, delivered a judgment that established the legal position on judicial discipline and the power of review and referred the issue of the constitutionality of the Act to a five-judge bench, before which it is presently pending. Interestingly, the Act in question has already been repealed by Section 20 of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 .

Whether the Bombay Prevention of Ex-communication Act, 1949 was invalid in view of Articles 25 and 26 of the Constitution?

Bombay Prevention of Ex-communication Act, 1949 (Repealed)

The Supreme Court referred this matter to a Five Judge Constitution Bench in order to examine whether the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay needs to be reconsidered. The Supreme Court said that only if the Five Judge Constitution Bench doubted the correctness of the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay could the matter be then placed before a larger bench of seven judges or more.

Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853]

Raichand Korshi Shah v. Malshi Meghji Charla

Date Of Institution Start

1990-09-22

Case No

Crl. A. No. 39/1991

Sabarimala order: What is the ‘essentiality’ test in religious practice?

Source Of Info

The Indian Express

Date Of Fr

2019-11-15

Columns: Should the state leave religion alone?

Source Of Info

The Hindu

Date Of Fr

2019-02-17