• The Dawoodi Bohras are members of the Muslim community’s Shia sect. The Dawoodi Bohra community has inherited a distinguished heritage and rich historical legacy which traces to the Fatimi imams.
• Their leader is known as the Al-Dai-Al-Mutlaq, who first operated from Yemen and then, for the last 450 years, from India.
• The current and 53rd leader is His Holiness Dr. Syedna Mufaddal Saifuddin.
• The main language of the community is Lisan al-Dawat, a dialect of Gujarati with inclusions from Arabic and Urdu. The leader of the community has the right to excommunicate its members.
• Excommunication includes the action of not being allowed to access a mosque belonging to the community and not being allowed to have a burial dedicated to the community.

3. Practice of ex-communication

• On November 1, 1949, the Bombay Prevention of Excommunication Act (now repealed) was enacted, which sought to prevent the practice of excommunication prevalent in certain communities, as it led to the deprivation of legitimate rights and privileges of its members and in keeping with the spirit of changing times and in the public interest.
• The law defined excommunication as 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.
• It invalidated excommunication of any member, "notwithstanding anything contained in law, custom, usage" for the time being in force.
• A member of the Dawoodi Bohra community filed a suit in 1949, saying the Act rendered certain orders passed by their leader unlawful. Other cases also came before various courts.

4. Legal validity of Excommunication

• The 51st leader of the community challenged the constitutional validity of the act in 1962 stating it violated fundamental rights guaranteed in the constitution under Article 25- Freedom of conscience and free profession, Practice, and Propagation of religion. Article 26-Freedom to manage religious affairs.
• It was submitted that the power of excommunication was part of the management of community affairs in matters of religion.
• It was also submitted before the SC that the power to excommunicate is not absolute or arbitrary.
• The expulsion from the community can be effected only at a meeting of the Jamat. The person concerned will be even given a due warning and an opportunity of mending.
• The practice was also claimed to be essential.

5. Contentions

6. Supreme court View

• The supreme court held in 1962 that Dai's position is an essential part of the community. The power to excommunicate is to enforce discipline and preserve the denomination and not to punish.
• The judgment came in a challenge to the Bombay Prevention of Excommunication Act of 1949.
• In October 2022, the court said that it would consider whether the practice of excommunication that was protected by the 1962 order can continue.
• Lawyers representing the Al-Dai-Al-Mutlaq submitted that the petition had become infructuous since the impugned Act had already been repealed by the 2016 Act.
• The petitioners (Central Board of Dawoodi Bohra Community) argued that a nine-judge Constitution Bench was going to consider the broad issues on the interpretation of Articles 25 and 26 but the specific issue challenging the constitutionality of excommunication may not be considered by it and sought a decision on that limited issue. 

7. What exactly did the supreme court say recently?

• A Constitutional Bench led by Justice S K Kaul said that the 1962 judgment needed a relook. The court held that the consideration was needed mainly on two grounds: balancing the rights under Article 26(b)-the right of religious denominations to manage their own affairs in matters of religion - and Article 21- whether the practice can be protected under Article 26(b) when tested on the touchstone of constitutional morality.
• The court said both these issues are covered by questions pending for the consideration of the nine-judge Bench and requested the Chief Justice of India to tag it with the matters pending before the nine-judge Bench.

8. What is Sabarimala's review Petition?

• The apex court had on September 28, 2019, by a 4:1 verdict held that the devotees of the Sabarimala deity Lord Ayyappa do not constitute a separate religious denomination and therefore cannot claim the benefit of Article 26 of the Constitution of India.
• It also said that the exclusion of women between the ages of 10 to 50 years from entry into the temple is violative of Article 25 of the Constitution.