Overview
The decision of the Privy Council in the Burhanpur Dargah Case which upheld the right of the Dai al Mutlaq was annulled by an act passed by the Bombay Legislature under the leadership of Mr Moraji Desai. This act was known as the Prevention of Excommunication Act. Empowered by this act, earlier excommunicated members instituted suits in court. Dawat was confronted by legal challenges backed by statutory law. After much deliberation, Syedna Taher Saifuddin Saheb decided to challenge the validity of the Act on the grounds of violation of fundamental rights of the Dawoodi Bohra Community guaranteed by the Indian Constitution.
There were basically three parties in this case. Dr K. Munshi, a leading constitutional lawyer and ex-minister of Jawaharlal Nehru Government represented Syedna Saheb. On the opposite side the Attorney General of India, Solicitor General for India and Advocate General of Bombay appeared amongst others. Dawat’s enemies intervened as interveners engaging their own advocate.
Case of Syedna:
It was argued that the Act went against the right to practice religion according to one’s own faith as promised by Article 25 and 26 of the Constitution. And that the practice of excommunication was essential to the purity of religious denominations because it could be secured only by removal of persons who were unsuitable for membership of the community.
Case of the Government of Bombay Province:
It argued that the right and privilege of the Dai al Mutlaq did not include the right to excommunicate. And that the Prevention of Excommunication Act was enacted by a competent legislature and was under the limits of Article 25 and 26.
Case of the Intervener:
It challenged the appointment of the Dais from the 47th Dai to the 51st. It also argued that excommunication was out of date in modern times and opposed to fundamental human rights.
Supreme Court Judgment:
The Supreme Court held that the Act violated the fundamental right of the community to manage its own affairs in matters of religion. It also acknowledged that excommunication had been practiced by the Muslims from the earliest times: the Prophet, the Imam and the past Dais had practiced excommunication with dissenters. The Supreme Court ruled: “A community has a right to insist that those who claim to be within its fold are those who believe in the essentials of its creed and that one who asserts that he is a member of the denomination does not, at least, openly denounce the essentials of the creed, for if everyone were at liberty to deny these essentials, the community as a group would soon cease to exist”
When news of the verdict reached Syedna (RA) he bowed in sajda to express his gratitude to Allah. He then told the Jamaat of Ujjain: This fathe mubineen can be attributed to Syedna Najmuddin (RA).
Excerpts from “Overview of Judicial and Legislative Triumphs” by Abdulhusen M. Haidermota
