The 9 Judge Constitutional Bench of the Supreme Court continued hearing on the 13th day of Sabarimala Reference with the challenge concerning excommunication practices in the Dawoodi Bohra community. Senior Advocate Raju Ramachandran argued that “the individual is at the centre of the Constitution” and denominational rights under Article 26 cannot override an individual’s dignity, liberty and religious freedom under Article 25(1).

Arguing for reformist Dawoodi Bohras, Mr Ramachandran submitted that excommunication results in severe civil, social and religious consequences, including social boycott, breakdown of marriages, denial of access to mosques and burial grounds and effective “civil death” of the individual within the community.

At the outset, Mr. Ramachandran referred to the Nathwani and D.S. Tewati Commission reports to highlight the alleged social consequences and continuing impact of excommunication practices within the Dawoodi Bohra community

When the Bench questioned why affected persons had not challenged the practice earlier or pursued remedies sooner, Ramachandran responded that fear itself was a major reason victims remained silent. He submitted that the consequences of excommunication were so severe that many persons were afraid even to approach courts. “The fear of excommunication includes the fear of approaching the court. Generations of persons have suffered excommunication and it takes courage,” he told the Bench, while arguing that the issue could not be dismissed as merely academic or historical.

He cited several examples demonstrating the social consequences of excommunication, including marriages breaking down under pressure from the religious leadership, social boycott, loss of employment and denial of burial rights. According to him, persons were allegedly excommunicated for acts such as starting cooperative institutions or participating in reformist activities without permission of the Syedna.

Mr Ramachandran argued that the issue before the Court was not merely one of temple worship or denominational discipline, but one involving “the total impact on a person’s life.” He submitted:

“The practice has to be examined from the point of view of the impact. The consequences are secular, affecting the non-religious aspect of a person’s life. They include civil, economic and social consequences: the breaking up of marriages, the separation of close family members, closure of institutions, prohibition from entering burial sites. This is not incidental but deliberate.”

During the hearing, Justice B. V. Nagarathna questioned whether the issue survived after repeal of the 1949 legislation prohibiting excommunication. Ramachandran responded that the Constitution Bench reference itself arose from the challenge to the 1962 judgment in Sardar Syedna Taher Saifuddin, and the issue could not be treated as academic because the consequences of excommunication allegedly continue even today.

The Bench also repeatedly questioned the extent to which courts could interfere in religious practices and denominational autonomy under Article 26. Justice Nagarathna observed that India’s civilisational continuity, despite immense diversity, remained deeply connected with religion, and expressed concern that broad judicial scrutiny of religious practices could lead to numerous future challenges concerning religious institutions.

Responding to concerns regarding judicial intervention, Mr Ramachandran argued that constitutional protections for denominations cannot override individual dignity and liberty. He submitted:

“The right to freedom of religion does not include a right to practice anything which infringes an individual’s fundamental rights to liberty, dignity or equality.”

Adopting submissions earlier advanced by Senior Advocate Darius Khambata, Mr Ramachandran argued that Article 25 protects the individual’s freedom of conscience and religion, whereas Article 26 merely protects the collective organisation of those rights through denominations. According to him, Article 26 cannot be interpreted in isolation from other constitutional guarantees.

Relying extensively on the dissenting opinion of former Chief Justice B. P. Sinha in Sardar Syedna Taher Saifuddin, Mr Ramachandran argued that the majority judgment failed to adequately consider the devastating effect of excommunication upon individual liberty and dignity. Reading from the dissent, he emphasised:

“Can an individual be compelled to have a particular belief on pain of a penalty like excommunication? One is entitled to believe or not to believe a particular tenet or to follow or not to follow a particular practice in matters of religion.”

Mr Ramachandran further argued that Article 25(2)(b), which permits laws for social welfare and reform, was deliberately incorporated by the framers to ensure that harmful religious practices could be regulated through legislation. Referring to Constituent Assembly materials, he submitted that the framers consciously intended social reform laws to prevail where necessary.

Towards the conclusion of his submissions, Mr Ramachandran argued that India’s constitutional identity must ultimately prevail over practices violating dignity and liberty.

“We are a civilisation under a Constitution and therefore nothing which goes against the grain of the Constitution can continue in a civilised society,” he submitted.

Background of the Case

The case relates to the practice of excommunication within the Dawoodi Bohra community, a sect of Shia Muslims headed by a religious leader known as the Dai-ul-Mutlaq or Syedna. Under the traditional structure of the community, the Syedna is regarded as the supreme religious authority and has historically claimed the power to excommunicate members accused of violating religious directives or challenging his authority.

Excommunication in the Bohra community has been described as carrying serious social and religious consequences. Persons who are excommunicated may allegedly be denied access to community mosques, burial grounds and communal institutions, and can face social boycott and ostracisation within the community.

In 1949, the then State of Bombay enacted the Bombay Prevention of Excommunication Act to prohibit the practice. However, in the landmark 1962 judgment Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, a Constitution Bench of the Supreme Court had struck down the law by majority, holding that the power of excommunication formed part of the Dawoodi Bohra denomination’s right to manage its own religious affairs under Article 26(b) of the Constitution.

The controversy resurfaced after Maharashtra enacted another law against social boycott and excommunication, leading to fresh challenges and eventual reference of broader questions concerning the interplay between Articles 25 and 26 to a 9 Judge Constitution Bench. The present proceedings are being heard alongside other matters concerning religious freedom, denominational rights and individual dignity.