BREAKING: Supreme Court refers question of Dawoodi Bohra excommunication to nine-judge bench hearing Sabarimala matter

The Supreme Court on Friday referred the issue concerning rights of the Dawoodi Bohra community to excommunicate its members to the nine-judge bench hearing the Sabrimala reference [Central Board of Dawoodi Bohra Community & Anr v. State of Maharashtra & Anr]..A Constitution Bench of Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, and JK Maheshwari held that the1962 judgment in Sardar Syedna Taher Saifuddin v. The State Of Bombay protecting the rights of the Bohra community to excommunicate members required reconsideration. "Decision of constitution bench requires reconsideration. We have recorded reasons. There are two grounds," the Court said. .The Bench elaborated that an examination was needed with respect to balancing rights under Article 26(b) - which gives all religious denominations the right to manage their own affairs in matters of religion - with others rights under Part III of the Constitution, particularly Article 21 (right to life and liberty).The second ground was whether protection can be given under Article 26(b) to the practice of excommunication while being tested on the touchstone of constitutional morality. .Noting that these two issues were covered under questions 3 and 4 of the Sabarimala review judgment, the Bench requested the Chief Justice of India to tag this case with the one before the nine-judge bench."These two issues are covering question 3 & 4 by nine-judge bench. Therefore, we are requesting the CJI to tag this matter with nine-judge bench.".The Supreme Court had in October last year reserved its verdict on whether the plea concerning rights of the Dawoodi Bohra community to excommunicate its members needs to be referred to a larger bench.The question was whether the Bohra community had the right to excommunicate dissidents from its community in exercise of its fundamental rights under Article 25 and 26 of the Constitution.The Bench was examining the correctness of another five-judge Bench 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.However, the enactment of Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act in 2016 outlawed such practice..The respondents had urged the Court to wait for the nine-judge Bench decision in the Sabarimala matter or refer the present case also to a nine-judge Bench.The nine-judge Bench referred to by the parties is slated to settle the legal issues that arose pursuant to the Sabarimala temple entry case.In the Sabarimala case, the issue was with respect to entry of women into the temple in Kerala. Apart from this issue, the nine-judge Bench will also consider three other cases involving women’s rights vis-à-vis religious practices.Counsel for the petitioners had insisted that the issue relating to the constitutional validity of excommunication certainly arose before this Bench and survived the repeal of the 1949 Act.It was emphasised that while the Act of 2016 does say that a community may not boycott somebody, if one is not part of a community after being excommunicated, the Act would not apply to them.Further, an application for amendment of the plea to challenge the practice as unconstitutional had been filed..The petitioners were represented by Senior Advocate Siddharth Bhatnagar, who was briefed by Advocate Jatin Mongia and a team of lawyers from Karanjawala & Co 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 S Nariman, Darius Khambata, Parag Tripathi, PH Parekh who were briefed by a team of advocates from Argus Partners comprising Senior Partner Abeezar Faizullabhoy, Partner Murtaza Kachwalla and Senior Associate SM Algaus as well as a team of advocates from Parekh and Co..The State of Maharashtra was represented by Solicitor General of India Tushar Mehta, along with advocates Siddharth Dharmadhikari, Aaditya A. Pande, Abhikalp Pratap Singh & Shrirang Varma..[Read Judgment]