Oldest pending case before a constitution bench may be concluded

The oldest pending case before a constitution bench in the country may finally be taken to conclusion, with the Supreme Court on Tuesday fixing a date to examine the 36-year-old case that involves the religious practice of excommunication in the Dawoodi Bohra community.

The excommunication of a member would result in social boycott, besides barring entry to places of worship.

A five-judge bench, led by justice Sanjay Kishan Kaul, set down the 1986 case for a final hearing on October 11, asking all the parties to file their written submissions on the latest legal position and the proposed course of scrutiny as to whether the practice of excommunication in the Dawoodi Bohra community can continue as a “protected practice”.

It was last in 2005 when the Supreme Court listed the petition challenging the practice of excommunication in the community. The constitution bench also includes justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari.

During the preliminary hearing on Tuesday, the state of Maharashtra submitted that the case should be referred to a nine-judge bench, which is already seized of an array of issues pertaining to the scope of judicial review of religious practices in the wake of the Sabrimala shrine judgment.

But the community’s spiritual head, the 53rd Syedna, argued that the proceedings do not survive anymore since the entire controversy revolved around the 1949 Bombay Prevention of Excommunication Act, which stands repealed by a Maharashtra law in 2017.

As on September 1, a total of 493 constitution bench matters, arising out of 54 main cases remained pending in the top court. Of 54 main cases, 42 are five-judge bench cases; 7 are seven-judge bench cases and 5 are nine-judge bench cases. Apart from the excommunication case, some other old cases pending as on date included a 1994 case on state’s right to levy surcharge on sales tax, a 2000 case on reservation of seats for Scheduled Castes, Scheduled Tribes and the Anglo-Indian community and a 2010 case on the issue of sub-classification within reserved seats for Scheduled Castes in Punjab.

After Justice Uday Umesh Lalit took over as the CJI on August 27, a list of 25 five-judge bench matters was published for a hearing in due course. The top court delivered a judgment in one of them on Monday while several others are currently being heard.

The Dawoodi Bohras have a long history of legal fights over the issue of excommunication. In November 1949, the Bombay province passed the Bombay Prevention of Excommunication Act. The community’s then spiritual head, the 51st Syedna, filed a petition against the law on behalf of Dawoodi Bohras.

The plea said the power of excommunication was one of the tools with which Syedna managed the affairs of his sect. In 1962, a five-judge bench of the Supreme Court struck down the 1949 Act, which sought to prevent religious denominations from ousting a member of the denomination.

Twenty-five years after this ruling, in 1986, a writ petition was filed by the Central Board of the Dawoodi Bohra Community, which is considered the representative body of reformist Dawoodi Bohras. The petition cited the findings of a commission headed by justice Narendra Nathwani that was set up in 1977 to find out whether allegations of social boycott by some families were true.

The commission, which submitted its report after two years, said that the complaints were not unfounded and recommended that social boycotts be made illegal.

In 1994, a two-judge bench directed the matter to be heard by a seven-judge bench. But in 2004, the court held that the matter should be first examined by a five-judge bench to determine whether it requires a reference to a seven-judge bench or not.

On Tuesday, senior counsel Fali S Nariman, appearing for the Syedna, pointed out that 2017 Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act has rendered the petition “moot” since the new law not only repealed the 1949 Act, but also outlawed all forms of social boycott, including excommunication.

However, senior advocate Siddharth Bhatnagar, for the petitioners, said that a “general law” specific to Maharashtra on social boycott may not protect the Dawoodi Bohra community members facing excommunication and that the religious heads must be willing to make a statement that they will not resort to excommunication, citing the 1962 apex court ruling.

Nariman refused to make any statement in this regard and rather chose to argue the case on October 11.