Excommunication Within the Dawoodi Bohra Community

**Madhu Murari K and Nachiketa Narain

Part I:

Introduction

The Dawoodi Bohra community, an offshoot of Shia Islam, vests its Head Priest or the Dai-ul-Mutlaq (“Dai”), with significant religious authority, one of the most notable being the power to excommunicate members of the community. The result of excommunication, properly and legally effected, involves exclusion from the exercise of religious rights in places under the trusteeship of the Dai. Socially, the person faces isolation from community functions and events, which further deepens the gravity of the penalty. 

The authors would delve into the question of constitutional validity of this practice of excommunication within the Dawoodi Bohra community currently pending before the 9-judge bench of the Supreme Court in Kantaru Rajeevaru v. Indian Young Lawyers Association (Sabarimala Review).

Justice Chandrachud rightly stated that the Constitution of India (“Constitution”) is not, and in fact, it could not have been oblivious to religion. The authors highlight that there are broadly two aspects pertaining to Indian Secularism: One, that every person has been granted the liberty to freely practice their religious conscience without undue interferences and discrimination. Two, that it ensures that the religious practices are in consonance with the values inherent to the Constitution and that these practices do not work to the detriment of its citizens. The Constitution seeks to promote liberty in matters of belief, faith and worship all the while ensuring that the said liberty produces a compassionate and humane society marked by the equality of status among all its citizens.

It is the second aspect which would be the purview of the instant article (Part I and II). The prime tenets that would be delved into this particular article are: firstly, the practice of excommunication within the Bohra community; secondly, a strong emphasis on the dissenting opinion by Sinha J. in Sardar Syedna Tahir Saifuddin v State of Bombay (“Sardar Syedna”) which attempted to provide constitutional protection of not only for the community but also from the community along with analysis of the concept of ‘Civil Death’ of a person; thirdly, build upon as to how the practice of excommunication essentially operates in violation of Article 25 and, further, as untouchability under Article 17.

It is relevant to highlight that in this article the authors would not go into the intricacies of the contentious Essential Religious Practices Test (“ERP test”). Rather, the authors, relying on the dissent by Sinha J. in Sardar Syedna, would flip the perspective and look at the nature of the practice, as to whether the practice pertains to the civil rights and permeates in the civil life of the people. 

The Backdrop And Its Current Relevance

Excommunication as a result for person’s non-conformity to religious practises bars them from using communal mosque, burial grounds, or property, treating them as an outcast with no social or religious contacts from the community.

The Bombay Prevention of Excommunication Act, 1949 (“1949 Act”), was enacted in Maharashtra, aiming to end this dehumanizing practice and uphold dignity and conscience.

In Sardar Syedna, the Dai challenged the Act, claiming it violated Article 25(1) and Article 26(b) of the constitution. The State countered that excommunication was not essential to religion and was overridden by Article 25(2)(b) for social reform. By a 4–1 majority, the Hon’ble Supreme Court majority struck down the Act.

In 1986, the reformist Central Board of Dawoodi Bohra Community petitioned to reconsider Sardar Syedna and revive the 1949 Act. Meanwhile, Maharashtra’s 2016 Protection of People from Social Boycott Act outlawed 16 ostracism forms, including excommunication, with up to three years’ imprisonment.

In 2023, a five-judge bench speaking through Justice Abhay S. Oka referred the Board’s petition to the Sabarimala Review, which is heard by nine judge bench due to overlapping legal questions presented in both cases.

The Dissent of Justice Sinha And The Concept Of Civil Death

Before delving into Sinha J.’s dissent in Sardar Syedna, the authors would first refer to the majority opinion authored by Das Gupta J., in which he held that Articles 25 and 26 of the Constitution protected not just thought and belief, but practices that were essential, or integral, parts of religion. Also holding, that the Dawoodi Bohras qualify as a denomination under Article 26, entitling them to manage religious affairs, including excommunication as integral to community identity and cohesion. The State cannot abrogate such core practices under social reform pretexts, rendering the 1949 Act violative of Articles 25 and 26.

Ayyangar J. concurred, particularly critiquing that use of the broad phrase “social reform” cannot reform religion “out of existence” by stripping fundamental faith aspects.

The dissenting opinion was given by Sinha J.,  wherein he noted excommunication as excluding individuals from worship, burial grounds, and community property are all disputes which are civil, not purely religious. Thus, it falls outside Articles 25(1) and 26(b), which cover only fundamentally religious matters.

He emphasized that Excommunication strips membership, civil rights, and social ties, reducing individuals to outcastes or pariahs, inflicting enduring ostracism. Accordingly, he underscored the legislative intent of the 1949 Act which eradicates this practise, restoring dignity and conscience against merely holding divergent views.

He further drew a parallel between the excommunicated persons to “untouchables,” who are subjected to exclusion and denial of access to common resources, thereby perpetuating segregation. Thus, this Act fulfils Article 17’s abolition of untouchability by proscribing such practises.

Thus, he concluded that excommunication’s civil, social, and human consequences which are contrary to constitutional ethos of equality, dignity and fraternity, cannot be protected under the scope of religious freedom guaranteed by the constitution.

looking from the ‘civil’ perspective

The authors would flip the perspective; essentially, rather than assessing whether the practice is primarily or essentially religious, the authors would assess whether the practice permeates the civil life of the individual and subject it to the rigours of Article 25 and 17 of the Indian Constitution. This line of thought stems from Sinha J.’s dissent in Sardar Syedna.

The requisites to apply Article 17 and 25 are different. While this flip in perspective is plausible without subjecting the practice to any other requirement when applying Article 17 as it is a wide provision that prohibits untouchability in any form, the problem arises while applying Article 25. This is because Court’s interference under Article 25 is attracted only when the ERP Test is refuted. To this end, the authors posit that the ERP test is constitutionally misplaced and that, as Mathew John stated, “the ERP test sits uneasily within the normative structure of the Indian Constitution.” Rather than relying on a test whose constitutional validity itself is under challenge, the authors, in furtherance of maintaining the brevity ought to be maintained in this piece, would not delve into refuting the ERP Test in depth.

Therefore, subjecting the practice of excommunication to whether it impacts the civil rights of an individual, one is inclined to infer that the position of an excommunicated person becomes that of an untouchable in her community. This practice essentially leads to, what Sinha J. calls as, “Civil Death” of an individual: mischief of treating a human being as a pariah, and of depriving her of her human dignity and of her right to follow the dictates of her own conscience. This practice surpasses the purely religious realm and enters into the basic liberties of the person, producing a form of social ostracism in which those who dissent from what is accepted are punished by depriving them from the community.

Part II:

Excommunication in the context of Right to Freedom of Religion

Under this part, the authors would establish as to how Article 25 is violated by the practice of excommunication. Firstly, the authors would delve into how right of the individual under Article 25 is superior to denominational right under Article 26. Secondly, right to freedom of religion, as a whole, is subject to other provisions of equality, liberty and personal freedoms recognised in the other provisions of Part III of the Constitution.

Article 25 protects the equal entitlement of all persons to a freedom of conscience and to freely profess, protect and propagate religion. By all persons, the Constitution means every individual in society without any distinction. By speaking of an equal entitlement, the Constitution places every individual on an even platform. Having guaranteed equality before the law and the equal protection of laws in Article 14, the draftspersons specifically continued the golden thread of equal entitlement as an intrinsic element of Article 25, essentially, the freedom of conscience and of the right to profess, practice and propagate religion. The nature of Article 25 as a constitutional right is of a right conferred on an individual and this is because of the fact that it is within an individual that a conscience inheres. Article 25(1) provides for a right which the Constitution recognises as dwelling in each individual.

At this juncture a question of crucial importance crops up. The question pertains to the tension inherent in Article 25 and 26 striving for freedom of religion for individuals and communities respectively. There might arise situations, such as in the instant issue, where these two provisions become competing claims which are seemingly irreconciled unless one bows down to the other to achieve a workable modus vivendi.

The observations of the Hon’ble Supreme Court in Venkataramana Devaru and Ors. v. State of Mysore most pertinently harmonised this inherent tension between the individual right under Article 25(2)(b) and the denominational right under Article 26(b). The Court held that where denominational rights substantially reduce the right conferred by Article 25(2)(b), the right of the individual under Article 25 would prevail over denominational right under Article 26. This ensures that the constitutional guarantee under Article 25(2)(b) is not destroyed by exclusionary claims which detract from individual dignity. This argument is further bolstered by the fact that Article 25 has the essence of the thread of Article 14 as it is that value of equal entitlement of an individual that embodies Article 25 unlike Article 26.

Essentially, the right of the individual is superior to the right of the Dai, which is essentially a denominational right as it is enforced upon individual by the community at large at the behest of the Dai. The individual right under Article 25 stands violated as the conscience of the individual is undermined due to the practice of excommunication.

At this juncture, the authors go back to the bare provision at hand. The proviso to Article 25 in the form of clause 1 pertinently highlights that Article 25 is “subject to public order, morality and health and to the other provisions of this Part”.

The subjection of the individual right under Article 25 to the other provisions of Part III of the Constitution is a reasoned departure from the position occupied by the other rights to freedom recognised in Articles 14, 15, 19 and 21 and as posited by Chandrachud J., such departure is not a matter without substantive content. This argument may seem counter-intuitive to the earlier argument of Article 25 prevailing over Article 26. However, this is not true because, firstly, as Chandrachud J. rightly highlighted that even though Article 26 was not expressly said to be subject to Article 25 or other provisions of Part III, it has to read in that manner as it is subject to such provisions. Secondly, it is precisely because Article 25 has the thread of Article 14 permeating it that the freedom exercised under it has to be in conformity with the rigours of Article 14 and, by virtue of that, of Article 17 specifically and other provisions of equality, liberty and personal freedoms recognised in the other provisions of Part III of the Constitution.

Article 17: Excommunication as Untouchability

Article 17 abolished the age-old practice of “untouchability”, by forbidding its practice “in any form”. Article 17 is the constitutional promise of equality and justice to those who have remained at the lowest rung of a traditional belief system founded in graded inequality and is enforceable against everyone: the State, groups, individuals, legal persons, entities and organised religion.

The framers of the Constitution left the term “untouchability” undefined. The proceedings of the Constituent Assembly suggest that this was deliberate. A clause providing for the abolition of “untouchability” was contained in K M Munshi’s draft of Fundamental Rights. Clause 4(a) of Article III of his draft provided: “Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of “untouchability” would have to be defined in the law which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub Committee on Fundamental Rights when it met on 14 April 1947 to consider its draft report, decided to add the words “in any form” after the word “Untouchability”. This was done specifically in order “to make the prohibition of practice of “untouchability” comprehensive.

The term “untouchability” referred to a practice prevalent in Hindu society, however,  Jagjivan Ram queried, on 21^st April 1947 in the Advisory Committee, whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal’ untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms: whether it was untouchability within a community or between various communities”.

Taking note of the suggestions and views expressed, the clause was redrafted as clause 6 in the Interim Report of the Advisory Committee as follows: ““Untouchability” in any form is abolished and the imposition of any disability on that account shall be an offence.”

K M Munshi stated that the word “untouchability” need not be defined in the Constitution as it has been “put purposely within inverted commas in order to indicate that the Union legislature when it defines ‘untouchability’ will be able to deal with it in the sense in which it is normally understood”. This indicates that the framers did not wish to make the term restrictive. The addition of the words “in any form” in the initial draft prepared by the Sub-Committee on Fundamental Rights is an unambiguous statement to the effect that the draftspersons wanted to give the term “untouchability” a broad scope. 

In essence, significant feature is that the practice of untouchability” is forbidden “in any form”. The “in any form” prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition. 

Addressing the issue at hand, the practice of excommunication within the Dawoodi Bohra community squarely falls within the four corners of what “untouchability” entails. The answer to the query of Jagjivan Ram highlights that practices of exclusion within a community in any form are prohibited as well. Further, due to its undefined nature, “untouchability” has attained a wide meaning which very well encompasses this particular practice as well.

Conclusion

The practice of excommunication within the Dawoodi Bohra community is a practice that goes against the grain of Article 25 and in substance, rests upon the exclusion of individuals from the community, an exclusion which categorically attracts Article 17 abolishing untouchability in “any form”. As the Supreme Court in Rustom Cavasjee Cooper v. Union of India definitively established, Fundamental Rights in Part III are not to be understood as watertight compartments. Moving away from the rigid approach in A.K. Gopalan v. State of Madras, the Court today adopts a more realistic understanding of fundamental rights, one that sees them as connected, flexible and evolving. Seen in this light, Articles 25 and 17 do not exist in isolation but reinforce each other, making it clear that the practice of excommunication is incompatible with the Constitution’s guarantees.

**Madhu Murari K and Nachiketa Narain are third year students from the Rajiv Gandhi National University of Law, Punjab (RGNUL)

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.