Dawoodi Bohra community's excommunication practice: Supreme Court reserves order on reference to larger bench

A Constitution bench of the Supreme Court on Tuesday reserved its verdict on whether the plea concerning rights of Dawoodi Bohra community to excommunicate its members needs to be referred to a larger bench [Central Board of Dawoodi Bohra Community & Anr v State of Maharashtra & Anr]..The five-judge Constitution bench is considering whether the Bohra community has the right to excommunicate dissidents from its community in exercise of its fundamental rights under Article 25 and 26 of the Constitution of India.The bench is examining the correctness of a 1962 judgment in Sardar Syedna Taher Saifuddin v. The State Of Bombay in which the top court had protected the rights of the Bohra community to excommunicate members.That judgment was delivered by a five-judge bench.However, the enactment of Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act in 2016 outlawed practices like excommunication..The bench of SK Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, JK Maheshwari heard the parties today, and the respondents urged the Court to wait for a nine-judge bench decision in the Sabarimala matter or refer the present case also to a nine-judge bench.The 9-judge bench referred to by the parties is slated to settle the legal issues which arose pursuant to the Sabarimala temple entry case.In the Sabarimala case, the issue was with respect to entry of women into the Sabarimala hill shrine in Kerala. The nine-judge bench will be considering that as well as three other cases involving women’s rights vis-à-vis religious practices."Either Your Lordships may say that this can be reconsidered in the nine-judge bench or you may consider it and assist the nine judges," Solicitor General Tushar Mehta, appearing for State of Maharashtra, submitted on Tuesday.He also said that reconsideration of the 1962 judgment, which was also rendered by five judges, may not be possible by a bench of the same strength. Senior Counsel Fali Nariman, for Dai-al-Mutlaq, submitted that the matter should be deferred till the nine-judge bench gives its verdict."My suggestion is that just let this stand over till the decision in the nine judge bench," he said..Further, Nariman and Senior Counsel Darius Khambata argued that the petition was now infructuous since the Bombay Prevention of Excommunication Act, 1949 which was sought to be implemented was repealed in 2016..In response to this, Senior Advocate Siddharth Bhatnagar appearing for the petitioners, insisted that the issue relating to the constitutional validity of excommunication certainly arose before this bench and survived the repeal of the 1949 Act.He emphasised that while the Act of 2016 does say that a community may not boycott somebody, but if one is not part of a community after being excommunicated, the Act would not apply to them.He informed the court that an application for amendment of the plea to challenge the practice as unconstitutional had been filed.He also submitted that the question of the constitutionality of excommunication had not been specifically framed by nine judge bench in the Sabarimala case and thus, this bench would have to examine the narrow issue. .The Court eventually proceeded to reserve its verdict..The petitioners were represented by Senior Advocate Siddharth Bhatnagar, briefed by Advocate Jatin Mongia and a team of advocates from Karanjawala & Co., Advocates led by Founding Partner Manik Karanjawala and Senior Partner Nandini Gore along with Tahira Karanjawala, Niharika Karanjawala, Arjun Sharma, Neha Khandelwal, Karanveer Singh Anand and Ritwik Mohapatra.The respondents were represented by Senior Advocates Fali Nariman, Darius Khambata, Parag Tripathi, PH Parekh briefed by a team of Advocates from Parekh and Co..[Read live coverage below]