Supreme Court tags the decision of Dawoodi Bohra ex-communication petition with Sabrimala’s nine-judge bench

In the Central Board of Dawoodi Bohra Community & Anr. vs. The State of Maharashtra & Anr. case, a writ petition was filed by the Central Board of Dawoodi Bohra Community. A writ was filed with a motive to issue a writ of mandamus directing the State Government to give effect to the provisions of the Ex-communication Act after reconsidering the decision of the Supreme Court in the case of Sardar Syedna. A Division Bench directed that the petition be listed before a Bench of seven Judges. By a majority, the Constitution Bench held that ex-communication amongst the Dawoodi Bohras forms an integral part of the management of the community. The top Court proceeded to hold that “the Ex-communication Act is void, being in violation of Article 26 of the Constitution of India.” The Supreme Court stated that “the role of the Constitutional Courts to interpret the Constitution considering the changing needs of the society assumes importance.” The right of the religious denomination to manage its own affairs in matters of religion was always subject to morality. 

In the case of Sardar Syedna, the argument that Article 26(b) is subject to morality, was not considered as it was not canvassed and pressed at the time of the hearing. The concept of Constitutional morality which overrides the freedom conferred by clause (b) of Article 26, will not permit the civil rights of ex-communicated persons which originated from the dignity and liberty of human beings to be taken away. The bench of the Supreme Court including Justices Sanjiv Khanna, Vikram Nath, Sanjay Kishan Kaul, J.K Maheshwari, and Abhay S. Oka highlighted that the concepts of equality, liberty, and fraternity are certainly part of our Constitutional morality. Moreover, the bench stated that the Constitutional Court ought not to tolerate anything which took away the right and privilege of any person to live with dignity as the concept of Constitutional morality does not permit the Court to do so. 

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The protection under Article 26(b) granted by the decision in the case of Sardar Syedna1 to the power to excommunicate a member of the Dawoodi Bohra community, needs reconsideration as the said right was subjected to morality which was understood as Constitutional morality. In the case of Sardar Syedna1, the exercise of balancing the rights under Article 26(b) with other rights under Part III and in particular Article 21 was not undertaken by the Constitution Bench.  This question was substantially in issue before the Bench of nine Judges in Sabrimala Temple Review 9JJ. The Apex Court further stated that the decision which will be rendered by the nine Judge Bench will have a direct impact on the questions which arise for determination in this writ petition. Thus, the top Court ordered that the present writ petition deserved to be tagged with a Review Petition pending before the Bench of nine Hon’ble Judges.

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