Is excommunication a Bohra religious right? SC to examine | India News

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NEW DELHI: The Supreme Court on Tuesday pulled out a 36-year-old petition that had raised some 60-year-old questions — whether the supreme leader of the affluent yet close-knit Dawoodi Bohra community can excommunicate any of its members and whether it is constitutionally protected as a religious practice.
Syedna Mufaddal Saifuddin, through senior advocate Fali S Nariman, informed a bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, A S Oka, Vikram Nath and J K Maheshwari that the issue has become “moot” and that the SC need not spend time to adjudicate it.
Nariman said on a petition by Sardar Syedna Taher Saifuddin, grandfather of present Syedna, challenging provisions of the Bombay Prevention of Excommunication Act, 1949, a five-judge SC bench had on January 9, 1962, ruled that the power of the supreme leader of the community to excommunicate a member would not be curtailed by the 1949 law.
The 1962 judgment said, “It is evident from the religious faith and tenets of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the 1949 Act in making even such excommunication invalid, infringed the right of the community under Article 26(b) of the constitution.”
Nariman said, “The 1949 legislation has been repealed and replaced by the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, which allowed the aggrieved person to file a complaint on facing excommunication. Since the old Act, on which the 1962 judgment had come, has been repealed, there is no need for the court to adjudicate an issue that has become moot.”
Solicitor general Tushar Mehta said the issue may have become moot but the 60-year-old ruling of a constitution bench still holds good. “I can suggest the issue to be taken up with other petitions referred to a nine-judge bench relating to validity of certain religious practices,” Mehta said.
Senior advocate Siddharth Bhatnagar told the bench that if the supreme leader of the Dawoodi Bohra community can make a statement that the religious power to excommunicate a member would not be resorted to following the 1962 judgment, then there would be no need to adjudicate the moot issue.
The bench said it would then hear arguments on the issue. It asked parties to submit three-page written submissions by September 30 and posted hearing on October 11.





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