Sabarimala hearing: SC questions maintainability of PILs on Dawoodi Bohra excommunication

During hearings before a nine-judge Constitution Bench in the Sabarimala reference case, the Supreme Court questioned the maintainability of PILs challenging...

What Happened

During hearings before a nine-judge Constitution Bench in the Sabarimala reference case, the Supreme Court questioned the maintainability of PILs challenging the Dawoodi Bohra community's practice of excommunication (known as "kufr" or social boycott)
The bench asked petitioners how a writ petition could challenge an earlier Supreme Court judgment (the 1962 ruling upholding Dawoodi Bohra excommunication) — pointing out that the proper remedy is a review petition or curative petition, not a fresh writ
Petitioners responded that their writ petitions were not "lightly drafted," and pointed to what they called contradictory stands taken by the apex court on the Places of Worship (Special Provisions) Act, 1991 — noting that while a Constitution Bench described the Act as part of the basic structure of the Constitution, writ petitions challenging its validity were simultaneously entertained with interim orders
The nine-judge bench is hearing 66 tagged matters addressing questions of religious freedom, gender discrimination at places of worship, and the scope of community rights under Articles 25 and 26

Static Topic Bridges

Articles 25 and 26 — Right to Religious Freedom

Articles 25 and 26 of the Constitution form the core of religious freedom guarantees in India. Article 25 gives every individual the right to freely profess, practice, and propagate religion, subject to public order, morality, health, and other fundamental rights. Article 26 gives religious denominations the right to manage their own affairs in matters of religion.

Article 25(1): Subject to public order, morality, and health, all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion
Article 25(2)(b): The state may make laws providing for social welfare and reform or throwing open Hindu religious institutions of a public character to all classes of Hindus — this is the "reform" clause
Article 26(b): Every religious denomination or section thereof has the right to manage its own affairs in matters of religion — this is the autonomy clause that often conflicts with Article 25(2)(b)
Articles 27 and 28: Prohibitions on compelling payment of taxes for a particular religion and on religious instruction in state-funded institutions

Connection to this news: The Dawoodi Bohra excommunication case pivots on Article 26(b) — the community contends its right to manage its own internal affairs includes the power to excommunicate members who defy the religious head (Syedna). Petitioners counter that excommunication causes "civil death" and violates the excommunicated person's fundamental rights under Articles 14, 19, and 21.

Indian Young Lawyers Association v. State of Kerala (Sabarimala Case, 2018) — The Original Judgment

In Indian Young Lawyers Association v. State of Kerala (decided 28 September 2018), a five-judge Constitution Bench held by 4:1 majority that the Sabarimala Temple's exclusionary custom — barring women between the ages of 10 and 50 — was unconstitutional.

Bench composition (2018): Chief Justice Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud (majority), and Justice Indu Malhotra (dissenting)
Majority ratio: The devotees of Lord Ayyappa do not constitute a separate religious denomination; therefore, the temple is not protected by Article 26(b); and the exclusionary custom is not an essential religious practice
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 — which backed the exclusion — was struck down as unconstitutional
Justice Indu Malhotra (dissent): Sabarimala devotees do constitute a separate denomination protected by Article 26(b); courts should not interfere in matters of faith and religious tradition
The 4:1 judgment triggered a reference to a larger bench on five constitutional questions

Connection to this news: The Supreme Court bench hearing the Sabarimala reference questioned the intent of the original 2006 PIL that led to the 2018 judgment, calling it a "lightly filed" petition and asking whether the Court should have entertained it at all. This self-questioning by the Court forms the backdrop against which the Dawoodi Bohra excommunication PIL's maintainability is being assessed.

Essential Religious Practices (ERP) Doctrine

The Essential Religious Practices doctrine is a judicial tool developed by the Supreme Court to determine whether a practice challenged on constitutional grounds is truly an essential or integral part of a religion — and therefore protected under Article 25 or 26 — or merely an incidental custom that can be subjected to state regulation or reform.

Origin: Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (Shirur Mutt case, 1954) — the Supreme Court first articulated the ERP test
The doctrine has been criticised for requiring courts to become arbiters of theological questions — a role courts are ill-equipped for
The nine-judge Sabarimala bench is expected to reconsider the ERP doctrine itself: whether courts should apply it, and if so, by what methodology
The Dawoodi Bohra excommunication question connects to ERP: is excommunication an essential practice of the Dawoodi Bohra faith, and if so, can it nonetheless be curtailed on constitutional morality grounds?

Connection to this news: The PILs on Dawoodi Bohra excommunication are tagged to the Sabarimala reference precisely because both cases require the nine-judge bench to settle the scope of the ERP doctrine, the meaning of "religious denomination" under Article 26, and the relationship between constitutional morality and religious autonomy.

Places of Worship (Special Provisions) Act, 1991

The Places of Worship (Special Provisions) Act, 1991 freezes the religious character of all places of worship as they existed on 15 August 1947. It prohibits conversion of any place of worship from one religion or denomination to another, with the sole exception of the Ram Janmabhoomi/Babri Masjid site in Ayodhya.

Enacted in 1991; Sections 3 and 4 are the operative provisions: Section 3 prohibits conversion of religious character; Section 4(1) declares that the religious character of a place of worship as on 15 August 1947 shall continue
In the Ayodhya judgment (M. Siddiq v. Mahant Suresh Das, 2019), the Supreme Court described the Places of Worship Act as a legislative pledge to secularism and a commitment against retrogression
The Act has since been described by a Constitution Bench as part of the "basic structure" of the Constitution
Multiple writ petitions challenging the Act's validity (or seeking exemptions for specific sites) have been filed and are pending — several with interim orders

Connection to this news: The petitioners in the Dawoodi Bohra case highlighted a contradiction: a Constitution Bench has said the Places of Worship Act is basic structure, yet writ petitions challenging the Act are being entertained with interim stays. They use this inconsistency to argue that the court should not dismiss their own writ petitions as procedurally untenable when it has accepted structurally similar petitions on the Places of Worship Act.

Dawoodi Bohra Excommunication — Background

The Dawoodi Bohra community is a Shia Muslim sect whose supreme religious authority is the Syedna (Da'i al-Mutlaq). The practice of excommunication (baraat or kufr) involves socially ostracising a community member who defies the Syedna's religious authority — effectively cutting off all social, economic, and familial ties.

The Supreme Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962) upheld the Syedna's right to excommunicate under Article 26(b) — the community's right to manage its own religious affairs
The Bombay Prevention of Excommunication Act, 1949, which had sought to prohibit excommunication, was struck down in the 1962 case as violating Article 26
In 2023, a five-judge bench referred the excommunication question to the nine-judge Sabarimala bench, noting overlapping constitutional questions on religious autonomy vs fundamental rights
Petitioners argue that excommunication causes "civil death," violates dignity (Article 21), and may constitute untouchability under Article 17

Connection to this news: The Supreme Court's questioning of PIL maintainability signals that the nine-judge bench may require petitioners to approach via review/curative petitions targeting the 1962 precedent directly, rather than via fresh writ petitions. This procedural question may need to be resolved before the bench addresses the substantive constitutional issues.

Key Facts & Data

Nine-judge bench composition: CJI Surya Kant, Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, Joymalya Bagchi
Sabarimala 2018 judgment: Indian Young Lawyers Association v. State of Kerala — 4:1 majority, five-judge bench
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962): Supreme Court upheld Dawoodi Bohra excommunication under Article 26
Essential Religious Practices doctrine: first articulated in the Shirur Mutt case (1954)
Places of Worship (Special Provisions) Act, 1991: freezes religious character of all places of worship as on 15 August 1947; sole exception is Ayodhya site
66 matters tagged to the Sabarimala reference, covering entry of women into mosques and dargahs, Parsi women's rights to fire temples, female genital mutilation, and excommunication
Article 17: Abolition of untouchability — petitioners argue excommunication is a form of social ostracism akin to untouchability