Sabarimala Reference | ‘Excommunication is closest it can come to civil death’: Respondents argue

ON THURSDAY, Senior Advocate Raju Ramachandran continued with his submissions regarding the excommunication faced by members of the Dawoodi Bohra Community, as Respondents continued arguments on the thirteenth day of hearings in the Sabarimala Reference.  

‘Excommunication as close as it gets to ‘civil death’’: Senior Advocate Raju Ramachandran

At the very outset of his submissions, Ramachandran  talked about the ingrained fear of reprisal which prevented people from speaking up on the injustices meted out by the practice of excommunication. He cited the findings of the Nathwani Commission report which comprised instances of the crushing  impacts of excommunication in the form of - breaking up of marriages, loss of employment, complete denial of entry into the mosque and the loss of the right to be buried in the graveyard of one’s community which leads to an inescapable form of social ostracisation.

On the practice of excommunication, Ramachandran referred to the Privy Council Judgement of Hasanali v.Mansoorali (1947) which upheld the power of Syedna to excommunicate as a result of which the State in its power had tried twice to safeguard the individuals from this practice by the virtue of bringing forth the the Bombay Prevention of Excommunication Act, 1949 and the Maharashtra  Protection of People from Social Boycott  (Prevention, Prohibition and Redressal) Act, 2016.

The 1949 Act’s validity was challenged by the Syedna with the Bombay High court upholding the validity of the Act. Dissatisfied with the Court’s stance, the Syedna eventually appealed against the decision  in the Supreme Court. The appeal, however, became infructuous due to the death of the original plaintiff. The Syedna had approached the Supreme Court again in 2023. 

During the hearing, Chief Justice of India Surya Kant observed that it was an oversight on the part of the Court by not impleading the members of the Dawoodi Bohra community as a party. The very nature of excommunication was gravely questioned by Ramachandran as he noted that it was ‘as close as it can get to a ‘civil death’’, highlighting the suffering endured by generations of families. He stressed upon the nefarious design of a practice like excommunication which had a debilitating impact on the lives of the victim.

‘Irrespective of nature of excommunication, individual cannot be made hollow’: Justice Ahsanuddin Amanullah

On the issue of the interpretation of the scope and ambit of Article 25, Ramachandran noted that the term ‘ fraternity’, as used in the Preamble, ensured the dignity of the individual. He reiterated Justice M.M. Sundresh’s observation on Article 26 being an extension of Article 25. At this point CJI Surya Kant astutely observed that the case of Dawoodi Bohra Community was different from the other matters within the Sabarimala Reference as in the present case a legislation is in place for the same. Ramachandran also submitted that Article 26 was an expression of Article 25 and reiterated Senior Advocate Darius Khambata’s point on the continuum of Articles 25 and 26. 

Ramachandran underscored that irrespective of the nature of the religious practices of a denomination, it could not have an overarching effect on the individual’s right to religious freedom and that the right of an individual cannot be subordinated to the denomination’s right under Article 26. He also highlighted loss of a watertight compartmentalisation of the fundamental rights as per the ‘Golden Triangle’ expounded in the case of Minerva Mills (1980).