It is over heard that a public litigation field by the reformist group against Sayedna for the right of ex-communication long back has at last come on the board.
Can any one give reference to the data of this case any where on the net?
Public litigation in supreem court
Re: Public litigation in supreem court
There were 3 reasons behind enactment of the Prevention of Excommunication Act 1949:
1) During Independence Movement Sayedna Taher Saifuddin had supported Jinna and Muslim league where as the sons of Sir Adamji Peerbhoy and other reformists had wholeheartedly supported Mahatma Gandhi and National Congress. After independence they persuaded Congress leaders to legislate against Excommunication, which is perpetuating horror in the community.
2) U. N. O. declared ‘the carter of Human Rights’ in 1948 and newly formed Congressmen were inspired by this declaration.
3) Few years before Independence of India while passing through the footpath outside Sir Adamji Peerbhoy Sanitorium at Charni Road, Bombay early in the morning Mr. Morarji Desai had spotted the naked dead body of Amtullah bai, daughter-in-law of Sir Adamji Peerbhoy. He was shocked at the brutality of Bohra High Priest.After independence he became the Home Minister of Bombay Province.
Therefore a bill against excommunication was piloted in the legislative assembly. The Chief Minister B.G. Kher and Home Minister, Morarji Desai while piloting the bill had said that the Bohra High Priest, "Mullaji is running a government within a government" and that "his powers have become Monstrous".
The bill was passed and it was called 'The Prevention of Excommunication Act - 1948.'
The Prevention of Excommunication Act was a short one with six sections. Section 3 - the main operative section-invalidated all excommunication of members of any religious community. Excommunication was defined in Section 2 to mean "the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member." Thus a person's right to worship in any religious place or right to burial or cremation was included as a right legally enforceable.
The Act was applicable to all religious communities. But only the Dawoodi Bohra head, Sayedna Taher Saifuddin challenged it in the Bombay High Court praying to declare it ultra vires the Constitution. But the High Court upheld the Act's validity in 1953 and rejected Sayedna's application.
Sayedna Taher Saifuddin soon realised his mistake to align with Jinna and Muslim league. He strove to establish contact with Congress leaders. In few years hard effort he could enroped in his pious-image-net Congress leaders like President, Rajendra Prashad, Prime Minister, Jawaharlal Nehru etc. Through Dr. Zakir Husain and rich donation he managed to become Chancellor of prestigious Aligarh Muslim University.
He could developed enough political leverage through his superior material resources provided by the community. Once he succeeded he filed a writ petition in the Supreme Court in 1958, under article 32 of the constitution.
He argued that the Act violets his fundamental rights to practice religion freely according to the faith and practices of the community - a right guaranteed to him by Article 25 of the constitution and manage community's religious affairs guaranteed by article 26. He therefore pleaded that the court should issue an appropriate write to restrict the State of Bombay, its officers, servants and agents from enforcing the provisions of Act against him or any other members of the community.
Thus the Chief Justice, B. P. Sinha constituted a 4 Judges bench of A. K. Sarkar, K. C. Dasgupta, J. R. Mudholkar and himself. The petition was upheld by three judges who supported excommunication only religious ground, pure and simple. But the Chief Justice himself gave a dissenting argument which is very important in the case now coming on the writ petition filed by the Central Board based on the reports of two inquiry commotions. Therefore we are giving below the dissenting judgement given by the Chief Justice B. P. Sinha who rightly considered excommunication INVALID on any ground including that of religion:
Chief Justice B. P. Sinha very pertinently observed that: "The Act is also aimed at ensuring Human Dignity. No body had the right to deprive others of their Civil Rights simply because the letter did not confirm to a particular pattern of conduct." "It now remains to consider the main point in the controversy which was, as a matter of fact, the only point urged in support of the petition, namely, that the Act is void in so far as it is repugnant to the guaranteed rights under Arts 25 to 26 of the Constitution. Art 25 guarantees the right to every person, whether citizen or non-citizen, the freedom of conscience and the right freely to profess, practice and propagate religion. But this guaranteed right is NOT an absolute one. It is subject to (1) public order, morality and health, (2) the other provisions of Part III of the Constitution, (3) any existing law regulating or restricting an economic, financial, political or other secular activity which may be associated with religious practice, (4) a law providing for social welfare and reform, and (5) any law that may be made by the State relating or restricting the activities aforesaid or providing for social welfare and reform.
The learned judge then distinguishes between religious activities and those, which are associated with religion and this is a vital distinction. He says: "The expression 'matters of religion' in Art. 26(b) and 'activities associated with religious practice' do not cover exactly the same ground. What are exactly matters of religion are completely outside State interference, subject of course to public order, morality and health. But activities associated with religious practices may have many ramifications and varieties-economic, financial, political and other-as recognized by Art 25 (2) (a). Such activities, as are contemplated by the clauses aforesaid cover a field much wider than that covered by either Art 25(1) or Art 26 (b). Those provisions have, therefore, to be so construed as to create no conflict between them. We have therefore, to classify practices into such as are essentially and purely of religious character, and those which are not essentially such." The learned judge, therefore, maintained, "Actions of the Dai-ul-Mutlaq in the purely religious aspect are not a concern of the courts, but his actions touching the civil rights of the members of the community are justifiable and not outside the pale of interference by the legislature or the judiciary. I am not called upon to decide, nor am I competent to do so, as to what are the religious matters in which the Dai-ul-Mutlaq functions according to his religious sense. I am only concerned with the civil aspect of the controversy relating to the constitutionality of the Act, and I have to determine only that controversy."
Whereas other judges, caring more for the technicality than the spirit of justice, could not appreciate the deeper implications of the power of excommunication vested in a religious authority, but Justice Sinha did.
The reformists have always maintained that the plight of an excommunicated Bohra becomes worse than that of an untouchable. Justice Sinha appreciated this when he observed: "On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practice to be void has only carried out the strict injunction of Art 17 of the Constitution, by which untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld."
However, the majority of the judges decided otherwise and the "Prevention of Excommunication Act" passed by the Bombay Legislative Assembly was declared ultra vires the Constitution by the Supreme Court.
This was a major jolt to the community, which was hopping that the Highest Court in this country would help them to uphold their human dignity and freedom of conscience and liberate them from the tyranny of their masters.
Review Petition in the Supreme Court filed by the Reformists: By the present Writ Petition, the Petitioners respectfully pray that this Hon'ble Court may reconsider its earlier decision in the matter of Sardar Syedna Tahir Saifuddin Saheb Vs. State of Bombay reported in 1962 (Supp 2) SCR 496, which, by a majority of 4:1, held that the Bombay Prevention of Excommunication Act, 1949 (Bombay Act No. 42 of 1942), was violative of Article 26(b) of the Constitution of India, and directed the then State of Bombay not to enforce the provisions of the said Act. The said Act, however, continues to remain on the statute hood, and has been annexed at Pg 51-53 of the Paper Book as Annexure - 'A'.
By the aforesaid decision this Hon'ble Court held that the act had the effect of prohibiting not merely excommunications made on secular grounds, but also excommunications made on purely religious grounds, and therefore violated the rights of a religious denomination to conduct its affairs in matters of religion. It is submitted that materials were not placed before the Hon'ble Judges hearing Saifuddin's case to show that the Act was a measure of social reform, and was therefore protected by the provisions of Article 25(2) (b), this argument does not appear to have been seriously pressed before the Court.
The present Petitioners are the Central Board of Dawoodi Bohra Community, which is an organisation of Dawoodi Bohras of a reformist persuasion, having as its members both individuals and Jamaats. The second Petitioner is a reformist Dawoodi Bohra, who is himself a victim of Excommunication or Baraat.
The Petitioners are endeavouring to show before your Lordships that in the Dawoodi Bohra Community, excommunication/Baraat is practised on grounds which have nothing to do with religious apostasy, and results in the breaking up of Marriages, separation of close family members and friends from one another, closing down of institutions formed for the welfare of the Community and above all, expulsion of those who maintain any kind of social intercourse or personal contact with an expelled member. It results in untold personal misery and anguish totally inconsistent with the principles of the dignity of the individual and the freedom of conscience enshrined in the preamble and in Article 25(1) of the Constitution.
The Kothar lied low for 10 years after the exposure of its Inhuman Activities by the reports of two Inquiry Commissions and the Review Petition filed by Central Board of Dawoodi Bohra Community based on these reports in 1896. Sayedna’s son Huzefa Mohiyuddin filed his first reply on 9th March 1996. Central Board immediately filed the reply in the Supreme Court refuting the Huzaifa’s point by point. Huzaifa filed his second reply again after 8 years, which replied by the Central Board immediately.
There after when case was to come on board for hearing in the Supreme Court the Sayedna’s solicitor, Fali Nariman filed an application IA No. 4 to on 26.7.2004 seeking a direction that the matter be listed before a Division Bench of 2-judges instead of the divisional bench of 7-judges bench. On 17th Nov. 04 a hearing took place in the Supreme Court. Solicitor Fali Nariman argued the case on Sayedna's behalf and Senior Supreme Court lawyer, firebrand Indira Jaisingh on the behalf of Central Board. With the latest order the Supreme Court has directed that matter to be decided that the matter be heard by a Five-Judges Bench.
1) During Independence Movement Sayedna Taher Saifuddin had supported Jinna and Muslim league where as the sons of Sir Adamji Peerbhoy and other reformists had wholeheartedly supported Mahatma Gandhi and National Congress. After independence they persuaded Congress leaders to legislate against Excommunication, which is perpetuating horror in the community.
2) U. N. O. declared ‘the carter of Human Rights’ in 1948 and newly formed Congressmen were inspired by this declaration.
3) Few years before Independence of India while passing through the footpath outside Sir Adamji Peerbhoy Sanitorium at Charni Road, Bombay early in the morning Mr. Morarji Desai had spotted the naked dead body of Amtullah bai, daughter-in-law of Sir Adamji Peerbhoy. He was shocked at the brutality of Bohra High Priest.After independence he became the Home Minister of Bombay Province.
Therefore a bill against excommunication was piloted in the legislative assembly. The Chief Minister B.G. Kher and Home Minister, Morarji Desai while piloting the bill had said that the Bohra High Priest, "Mullaji is running a government within a government" and that "his powers have become Monstrous".
The bill was passed and it was called 'The Prevention of Excommunication Act - 1948.'
The Prevention of Excommunication Act was a short one with six sections. Section 3 - the main operative section-invalidated all excommunication of members of any religious community. Excommunication was defined in Section 2 to mean "the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member." Thus a person's right to worship in any religious place or right to burial or cremation was included as a right legally enforceable.
The Act was applicable to all religious communities. But only the Dawoodi Bohra head, Sayedna Taher Saifuddin challenged it in the Bombay High Court praying to declare it ultra vires the Constitution. But the High Court upheld the Act's validity in 1953 and rejected Sayedna's application.
Sayedna Taher Saifuddin soon realised his mistake to align with Jinna and Muslim league. He strove to establish contact with Congress leaders. In few years hard effort he could enroped in his pious-image-net Congress leaders like President, Rajendra Prashad, Prime Minister, Jawaharlal Nehru etc. Through Dr. Zakir Husain and rich donation he managed to become Chancellor of prestigious Aligarh Muslim University.
He could developed enough political leverage through his superior material resources provided by the community. Once he succeeded he filed a writ petition in the Supreme Court in 1958, under article 32 of the constitution.
He argued that the Act violets his fundamental rights to practice religion freely according to the faith and practices of the community - a right guaranteed to him by Article 25 of the constitution and manage community's religious affairs guaranteed by article 26. He therefore pleaded that the court should issue an appropriate write to restrict the State of Bombay, its officers, servants and agents from enforcing the provisions of Act against him or any other members of the community.
Thus the Chief Justice, B. P. Sinha constituted a 4 Judges bench of A. K. Sarkar, K. C. Dasgupta, J. R. Mudholkar and himself. The petition was upheld by three judges who supported excommunication only religious ground, pure and simple. But the Chief Justice himself gave a dissenting argument which is very important in the case now coming on the writ petition filed by the Central Board based on the reports of two inquiry commotions. Therefore we are giving below the dissenting judgement given by the Chief Justice B. P. Sinha who rightly considered excommunication INVALID on any ground including that of religion:
Chief Justice B. P. Sinha very pertinently observed that: "The Act is also aimed at ensuring Human Dignity. No body had the right to deprive others of their Civil Rights simply because the letter did not confirm to a particular pattern of conduct." "It now remains to consider the main point in the controversy which was, as a matter of fact, the only point urged in support of the petition, namely, that the Act is void in so far as it is repugnant to the guaranteed rights under Arts 25 to 26 of the Constitution. Art 25 guarantees the right to every person, whether citizen or non-citizen, the freedom of conscience and the right freely to profess, practice and propagate religion. But this guaranteed right is NOT an absolute one. It is subject to (1) public order, morality and health, (2) the other provisions of Part III of the Constitution, (3) any existing law regulating or restricting an economic, financial, political or other secular activity which may be associated with religious practice, (4) a law providing for social welfare and reform, and (5) any law that may be made by the State relating or restricting the activities aforesaid or providing for social welfare and reform.
The learned judge then distinguishes between religious activities and those, which are associated with religion and this is a vital distinction. He says: "The expression 'matters of religion' in Art. 26(b) and 'activities associated with religious practice' do not cover exactly the same ground. What are exactly matters of religion are completely outside State interference, subject of course to public order, morality and health. But activities associated with religious practices may have many ramifications and varieties-economic, financial, political and other-as recognized by Art 25 (2) (a). Such activities, as are contemplated by the clauses aforesaid cover a field much wider than that covered by either Art 25(1) or Art 26 (b). Those provisions have, therefore, to be so construed as to create no conflict between them. We have therefore, to classify practices into such as are essentially and purely of religious character, and those which are not essentially such." The learned judge, therefore, maintained, "Actions of the Dai-ul-Mutlaq in the purely religious aspect are not a concern of the courts, but his actions touching the civil rights of the members of the community are justifiable and not outside the pale of interference by the legislature or the judiciary. I am not called upon to decide, nor am I competent to do so, as to what are the religious matters in which the Dai-ul-Mutlaq functions according to his religious sense. I am only concerned with the civil aspect of the controversy relating to the constitutionality of the Act, and I have to determine only that controversy."
Whereas other judges, caring more for the technicality than the spirit of justice, could not appreciate the deeper implications of the power of excommunication vested in a religious authority, but Justice Sinha did.
The reformists have always maintained that the plight of an excommunicated Bohra becomes worse than that of an untouchable. Justice Sinha appreciated this when he observed: "On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practice to be void has only carried out the strict injunction of Art 17 of the Constitution, by which untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld."
However, the majority of the judges decided otherwise and the "Prevention of Excommunication Act" passed by the Bombay Legislative Assembly was declared ultra vires the Constitution by the Supreme Court.
This was a major jolt to the community, which was hopping that the Highest Court in this country would help them to uphold their human dignity and freedom of conscience and liberate them from the tyranny of their masters.
Review Petition in the Supreme Court filed by the Reformists: By the present Writ Petition, the Petitioners respectfully pray that this Hon'ble Court may reconsider its earlier decision in the matter of Sardar Syedna Tahir Saifuddin Saheb Vs. State of Bombay reported in 1962 (Supp 2) SCR 496, which, by a majority of 4:1, held that the Bombay Prevention of Excommunication Act, 1949 (Bombay Act No. 42 of 1942), was violative of Article 26(b) of the Constitution of India, and directed the then State of Bombay not to enforce the provisions of the said Act. The said Act, however, continues to remain on the statute hood, and has been annexed at Pg 51-53 of the Paper Book as Annexure - 'A'.
By the aforesaid decision this Hon'ble Court held that the act had the effect of prohibiting not merely excommunications made on secular grounds, but also excommunications made on purely religious grounds, and therefore violated the rights of a religious denomination to conduct its affairs in matters of religion. It is submitted that materials were not placed before the Hon'ble Judges hearing Saifuddin's case to show that the Act was a measure of social reform, and was therefore protected by the provisions of Article 25(2) (b), this argument does not appear to have been seriously pressed before the Court.
The present Petitioners are the Central Board of Dawoodi Bohra Community, which is an organisation of Dawoodi Bohras of a reformist persuasion, having as its members both individuals and Jamaats. The second Petitioner is a reformist Dawoodi Bohra, who is himself a victim of Excommunication or Baraat.
The Petitioners are endeavouring to show before your Lordships that in the Dawoodi Bohra Community, excommunication/Baraat is practised on grounds which have nothing to do with religious apostasy, and results in the breaking up of Marriages, separation of close family members and friends from one another, closing down of institutions formed for the welfare of the Community and above all, expulsion of those who maintain any kind of social intercourse or personal contact with an expelled member. It results in untold personal misery and anguish totally inconsistent with the principles of the dignity of the individual and the freedom of conscience enshrined in the preamble and in Article 25(1) of the Constitution.
The Kothar lied low for 10 years after the exposure of its Inhuman Activities by the reports of two Inquiry Commissions and the Review Petition filed by Central Board of Dawoodi Bohra Community based on these reports in 1896. Sayedna’s son Huzefa Mohiyuddin filed his first reply on 9th March 1996. Central Board immediately filed the reply in the Supreme Court refuting the Huzaifa’s point by point. Huzaifa filed his second reply again after 8 years, which replied by the Central Board immediately.
There after when case was to come on board for hearing in the Supreme Court the Sayedna’s solicitor, Fali Nariman filed an application IA No. 4 to on 26.7.2004 seeking a direction that the matter be listed before a Division Bench of 2-judges instead of the divisional bench of 7-judges bench. On 17th Nov. 04 a hearing took place in the Supreme Court. Solicitor Fali Nariman argued the case on Sayedna's behalf and Senior Supreme Court lawyer, firebrand Indira Jaisingh on the behalf of Central Board. With the latest order the Supreme Court has directed that matter to be decided that the matter be heard by a Five-Judges Bench.
Re: Public litigation in supreem court
Thanks for details.
Can you give some refrence like case no.or some other details by which we can search the case on Supreem Court site.
Can you give some refrence like case no.or some other details by which we can search the case on Supreem Court site.
Re: Public litigation in supreem court
Sorry abcd! I was away at Delhi for this excommunication case and could not visit this side. The last order copy of the Supreme Court delivered on December 17, 2004 is in my hand and it states the case as:
I.A. No. 4 in
Writ Petition No. 740 of 1986
Central Board of Dawoodi Bohra Community.
Hope it may help you to get further details of this case on Internet.
I.A. No. 4 in
Writ Petition No. 740 of 1986
Central Board of Dawoodi Bohra Community.
Hope it may help you to get further details of this case on Internet.
Re: Public litigation in supreem court
Some of the references:
A.
http://www.ilidelhi.org/sup.htm
Precedential Value of Judgements of Different Benches of the Supreme Court
Rule of precedents in relation to different Benches of the Supreme Court has been reiterated by the Supreme Court in the Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. I.A. No. 4 (WP) (C) 740 of 1986 (10).
The question raised in this case was as to whether a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Benches of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law, the correctness of which is doubted.
The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing.
In the facts and circumstances of the present case, the Court ruled that it should be heard by a Bench of five Judges.
B.
http://www.interights.org/pubs/Old%20Bu ... 2011.3.pdf
see page 3 of 48
A.
http://www.ilidelhi.org/sup.htm
Precedential Value of Judgements of Different Benches of the Supreme Court
Rule of precedents in relation to different Benches of the Supreme Court has been reiterated by the Supreme Court in the Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. I.A. No. 4 (WP) (C) 740 of 1986 (10).
The question raised in this case was as to whether a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Benches of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law, the correctness of which is doubted.
The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing.
In the facts and circumstances of the present case, the Court ruled that it should be heard by a Bench of five Judges.
B.
http://www.interights.org/pubs/Old%20Bu ... 2011.3.pdf
see page 3 of 48
Re: Public litigation in supreem court
It is yet NOT decided that the matter to be heard by a bench of FIVE judges. A bench of Five Judges was to decide on 12th April for a higher bench but it got adjouned. I was in Supreme Court Delhi, Kothari Shahzada Quide Johar was also present on 12th April. Senior Council for Central Board of Dawoodi Bohra Community, Padma Shree (the title given to her by the President of India recently) Indira Jaisingh's mother is quite serious in Bombay and therefore she came and requested for an adjornment which was granted.
Re: Public litigation in supreem court
Baraat, Excommunication, "Chithi", Social Boycott are the dreaded tools of torture used by dictatorial regimes to punish the meek and the helpless. In the bygone days, we would have our heads cut off for expressing an opinion or asking for accountability. In our modern world, these are the tools used by power hungry organizations to retain their leadership.
In the name of human dignity, I pray to Almighty Allah that the Case is decided against excommunication. Any Religion that practises such terrible and cowardly acts should be punished most severely.
I have seen what happens when innocent men and women are threatened with excommunication just because they asked for accountability of funds in our Jamaat!
"There is no religion higher than truth"...and truth is all that we seek.
In the name of human dignity, I pray to Almighty Allah that the Case is decided against excommunication. Any Religion that practises such terrible and cowardly acts should be punished most severely.
I have seen what happens when innocent men and women are threatened with excommunication just because they asked for accountability of funds in our Jamaat!
"There is no religion higher than truth"...and truth is all that we seek.