New Delhi, Sep 20 The Supreme Court on Tuesday agreed to examine whether practice of excommunication in the Dawoodi Bohra community can continue as a "protected practice" against the backdrop of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016.
A five-judge bench, headed by Justice Sanjay Kishan Kaul and comprising Justices Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari, will begin the hearing on the matter on October 11. The reference to a five-judge constitution bench was based on a 1962 judgment of another five-judge nench in the Sardar Syedna Taher Saifuddin vs the State of Bombay case.
Solicitor General Tushar Mehta, on his part, submitted that the matter concerns religious freedoms and emphasised on referring it to the Sabarimala bench.
Senior advocate Fali Nariman, representing the Bohra community, argued that the 2016 Act provides remedy to all victims of social boycott and a complaint can be registered with the nearest magistrate, in case of apprehension of social boycott by a religious body. Therefore, the questions posed in the case have become moot, he added.
In 1962, the apex court had held that religious faith and tenets of the Dawoodi Bohra community gave its religious heads the power of excommunication as part of their "management of religious affairs" under Article 26(b) of the Constitution. This verdict had come on a challenge to Section 3 of the Bombay Prevention of Excommunication Act of 1949.
It was argued before the top court that after the 2016 law, the 1949 Act had become non-existent and the excommunication is not legally feasible now and the current law deals with several kinds of social boycott. Another counsel in the matter argued that a general law on social boycott would not be sufficient to protect members of the Bohra community facing excommunication.
The bench was informed that excommunication, through the 1962 judgment, was protected as a religious practice under Article 26(b) of the Constitution. A counsel said his clients have challenged the practice. It was argued that the religious heads of the community would never themselves say excommunication is bad.
The 2016 Act had identified 16 types of social ostracisation and made them illegal, punishing the perpetrators with imprisonment for upto three years.
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