Social Boycott Act
Constitutional Validity and Article 26
The Maharashtra law prohibiting social boycotts is a progressive one, protecting people from social hierarchies that are trying to punish them for transgressing regressive social mores. Since an earlier law outlawing excommunication was struck down by the Supreme Court for infringing the right of religious denominations to manage their own affairs, the constitutional validity of the social boycott law raises questions which this article tries to answer.
Social boycott is a weapon used in rural and some urban communities to reinforce hierarchies and power structures. The more apt term for it may be “ostracism,” where an individual is banished from a society (if not physically, then from all public places and socially) on the judgment of the powers that be for a perceived breach of that society’s rules.
In India, it is deployed against the deprived sections of society—including women and lower castes—but sometimes also the members of the same community to get them to toe the line (Johari 2015). It has been used against women who stepped out of their homes to get jobs, men and women who have refused the diktats of the caste panchayats, and sometimes, out of sheer jealousy and spite. It is aimed at making the lives of the boycotted as difficult as possible, cutting them from all the facilities, social interactions and public places that make life meaningful. It is often used to “punish” Dalit and oppressed communities who try to gain some level of social mobility or economic opportunity.
To address this, in April 2016, the Maharashtra state legislative assembly passed the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 (henceforth, the social boycott act). It seeks not only to criminalise a panchayat or any person who imposes or in any way enforces a social boycott, but tries to take measures to prevent such social boycotts and give relief to those being made victims of such social boycotts by providing them with compensation. It also places an obligation on the district administration to take proactive steps to prevent panchayats and other such bodies from issuing calls for social boycotts. It creates the post of a “social boycott prohibition officer,” who is supposed to help the district administration and other officers in discharge of their duties.
Excommunication Act
This is not the first attempt by Maharashtra to tackle the problem of social boycotts. The Bombay Prevention of Excommunication Act, 1949 (henceforth, the exco- mmunication act) was intended to remove any legal disabilities that may be suffered by a person who had been excommunicated from their community, religious or otherwise. The law declared that excommunications would have no binding effect and would not be enforceable, at the same time imposing criminal penalties on persons who engaged in or enforced an excommunication. Although it does not say so explicitly, the excommunication act also curbed the practice of baraat practised by the Dawoodi Bohras in the state on the directions of the powerful Dai-ul-Mutlaq, the religious head of the Dawoodi Bohra community.
The excommunication act was challenged by Syedna Taher Saifuddin, the then Dai of the community, in the Bombay High Court as being unconstitutional for violating the rights of the community to manage its own religious affairs under Article 26 of the Constitution. In a short, but extremely lucid judgment (Syedna Taher Saifuddin v Tyebbhai Moosaji Koicha and Another 1953), Chief Justice Chagla turned down this challenge on the grounds that the scope of the right of a religious denomination to manage its own affairs under Article 26 could not possibly extend to interfering with the legal rights and privileges enjoyed under law. The Bombay High Court drew a distinction between religious beliefs and practices holding that, while the former was no doubt a part of the freedom of religion protected under Article 25, the latter would not be protected under Article 26 if it was contrary to public health, morality, etc.
A fresh challenge was then filed in the Supreme Court by the Dai-ul-Mutlaq, questioning the constitutional validity of the excommunication act. In a split decision (a rare instance where the Chief Justice of India found himself in the minority), the Supreme Court struck down the excommunication act as being contrary to Article 26 (Sardar Syedna Taher Saifuddin Saheb v The State of Bombay 1962; Dawoodi Bohra case). Four judges, who delivered two separate judgments between them, held that the power of excommunication, being an exercise of the religious power of a denomination or community, was protected under Article 26, and that the excommunication act had not shown any constitutionally permissible basis for its interference with such religious power. That it was a measure of social reform, as was sought to be argued by the state, was swatted away by the Court without much engagement.
The minority judgment written by the then Chief Justice, B P Sinha, disagrees with the majority about the purely religious nature of excommunication among the Dawoodi Bohras, citing previous case law where it was shown to have affected the civil rights of excommunicated persons (Hasanali v Mansoorali 1947). His judgment also tentatively links the act of excommunication with the practice of untouchability, abolished under Article 17, and holds that any such practice which in effect becomes a form of untouchability cannot be given legal and constitutional sanction.
The minority view expressed by Sinha is clearly the better reasoned one and takes into account the true extent of the protection of the freedom of religion guaranteed under the Constitution. While the jurisprudence on the freedom of religion is currently caught in the thorny thicket of what is an “essential religious practice” and what is not (Jacobsohn 2003: 257–58), Sinha’s dissent reflects a world view where the impact of religion on society and an individual’s rights is balanced with the constitutional protection for religious beliefs (Bhatia 2016).
Social Boycott vs Excommunication
The last word has not been said on this matter yet. A petition questioning the correctness of the Supreme Court’s judgment striking down the excommunication act has been pending in the Supreme Court since 1986 (Central Board of Dawoodi Bohra Community and Another v State of Maharashtra and Another 1986). This is one of the longest pending cases in the Supreme Court (if not the longest pending case) and it reflects poorly on the Supreme Court that it has not found the time and inclination to hear this important question and decide on the matter.
Parallelly, however, the Supreme Court may be moving slowly, but surely towards Sinha’s view. In the latest judgment on the religious rights of denominations, Adi Saiva Sivachariyargal Nala Sangam v State of Tamil Nadu (2016), the Court has held that the appointment of temple priests must be done in accordance with the agamas (sacred texts describing the manner of worship) only so far as such religious practice does not contravene the other parts of the Constitution. This suggests that a gradual shift may be underway in the manner in which the Court understands the freedom of religion.
The correctness of the Supreme Court’s judgment in the Dawoodi Bohra case aside, there is one key distinction which has to be kept in mind while assessing the constitutional validity of the social boycott act. Whereas excommunication necessarily means that a person’s access to religious places of worship and fellow worshippers is cut off, a social boycott need not necessarily do so. A social boycott of course may involve religious places of worship as well, just as excommunication may have secular consequences for the excommunicated individual. The fundamental difference, however, is in the nature of authority being claimed; excommunication is carried out by someone who has religious authority to do so, social boycotts do not necessarily involve anyone with “religious authority.”
This distinction may seem narrow, but it is significant. The basis for the Court to strike down the excommunication act rests on the claim that it violated the rights of religious denominations to manage their own religious affairs. It was not seriously disputed in the Dawoodi Bohra case that excommunication was, in fact, an exercise of religious authority by the religious head of the Dawoodi Bohras and, therefore, protected under Article 26. Social boycotts, on the other hand, are imposed and enforced by caste panchayats, and such institutions are not, in general, religious institutions.
Should it be challenged in court, the social boycott act is unlikely to meet the same fate as its predecessor law, at least not on the grounds that it amounts to a violation of the fundamental right of religious denominations to manage their own religious affairs.
The constitutional validity of the social boycott act aside, it remains to be seen how effective the law will prove, especially since it has chosen the path of criminal sanction to address the situation. As I have written before, addressing social evils through criminal law does not take into account the massive problems its enforcement will run into, given the weaknesses in the police machinery at the state level (Kumar 2016). The law’s effectiveness hinges on the ability of the police to necessarily take the side of the individual, the weaker and oppressed sections of the society, over their oppressors; something that they have not had much success doing in the context of laws protecting women and Dalits. While applauding Maharashtra for taking a progressive stand, in favour of those victimised through social boycotts, scepticism over the state’s ability to fully enforce this law must be reserved.
References
Adi Saiva Sivachariyargal Nala Sangam v State of Tamil Nadu (2016): SCC, 2, p 725.
Bhatia, Gautam (2016): “Laws That Make Us Human,” Hindu, 25 April, viewed on 11 May 2016, http://www.thehindu.com/opinion/lead/lead-article-by-gautam-bhatia-on-maharashtra-protection-of-people-laws-that-make-us-human/article8516692.ece.
Central Board of Dawoodi Bohra Community and Another v State of Maharashtra and Another (1986): WP (C) 740.
Deshpande, Alok (2015): “Dalit Families Want to Relocate,” Hindu, 5 June, viewed on 11 May 2016, http://www.thehindu.com/news/national/other-states/dalit-families-in-maharashtra-village-want-to-relocate/article7283797.ece.
Hasanali v Mansoorali (1947): LR, 75, IA, p 1.
Jacobsohn, Gary J (2003): The Wheel of Law: India’s Secularism in Comparative Constitutional Context, Princeton, NJ: Princeton University Press.
Johari, Aarefa (2015): “Fifty Years after Court Struck Down Law to Ban Social Boycotts, Maharashtra May Get a Second Chance,” Scroll.in, 18 June, viewed on 11 May 2016, http://scroll.in/article/734977/fifty-years-after-court-struck-down-law-to-ban-social-boycotts-maharashtra-may-get-a-second-chance.
Kumar, Alok Prasanna (2016): “Who Will Bell the Cop?,” Economic & Political Weekly, Vol 51, No 16, pp 10–11.
Sardar Syedna Taher Saifuddin Saheb v The State of Bombay (1962): SCR, Supp 2, p 496.
Singh, Vijay (2015): “Everest Conqueror Shunned by Village,” Times of India, 16 January, viewed on 11 May 2016, http://timesofindia.indiatimes.com/city/navi-mumbai/Everest-conqueror-shunned-by-village/articleshow/45904607.cms.
Syedna Taher Saifuddin v Tyebbhai Moosaji Koicha and Another (1953): AIR, Bom, p 183.
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