Rights of Dai and Rights of Bohra individuals
Posted: Mon Apr 02, 2012 12:35 pm
In C.A. No. 272 of 1960, Judgment dated March 17, 1961 of the Supreme Court of India; the power of excommunication given to the Dai is only in the religious matters pure and simple. And the appropriate procedure and manner of expulsion to be followed by the Dai to excommunicate a member of the community is clearly laid down by Judicial Committee of the Privy Council.
According to this procedure the Dai is required to give in writing a ‘Show Cause’ notice to the accused person clearly pointing out his/her faults of non-conformity to religious practices and wait for his/her reply. The accused person has to give the reasons or explanation in writing. Then Dai is required to call a meeting of the concerned Jamaat members in which the contents of the ‘Show Cause’ notice and the reply of the accused person would be read out in front of Jamaat members and the Jamaat would decide whether the accused is to be excommunicated or not. (The Bohra Dai has never followed this procedure laid down by the H’ble Supreme Court.)
The expelled person does NOT loose the rights like worshiping in places of worship, marriage, burying the dead in the community’s burial grounds and other use of properties belonging to the community, as all these are his/her civil rights and not purely religious rights.
Dai claims that he is the religious head of the community and also the trustee of the community’s property. Even a theological head has got to perform acts which are not wholly religious but may be said to be quasi religious or matters which are connected with religious practices, though not purely religious. Dai’s action touching the civil rights of the members of the community are justiciable and not outside the pale of interference by the legislature and judiciary. Hence though the Act may have its repercussions on the religious aspect of excommunication, in so far as it protects the civil rights of the members of the community it has not gone beyond the provisions of Art. 25 (2) (b) of the Constitution.
Social reforms are protected by the Art. 25 (2) (b) of the Constitution.
Dignity of the individual and the freedom of conscience enshrined in the Preamble and in Art. 25 (1) of the constitution.
The Dai’s right to administer the property is not questioned. But he must administer as per law and law tells him not to withhold the civil rights of an indiviual member of the community to a communal property. In Dawoodi Bohra community, a person excommunicated as a result of his/her non-conformity to religious practices is not entitle to use the communal mosques, burial grounds and other property treating him an outcast. No other members of the community including his blood relations can have any social contacts, though the Act is intended to do away with all that mischief of treating a human being as a Pariah, and depriving him/her of his/her rights of human dignity and freedom of conscience. The position of the excommunicated person becomes that of an Untouchable in his own community, which is strictly declared Void in Art.17, enforcing Untouchablity punishable in law.
The Misaq, which was altered and deviated by 51st Dai, Sayedna Taher Saifuddin giving autonomous powers to Dai, has clauses directly interfering with the civil and constitutional rights guaranteed to every individual citizen.
The clauses in misaq such as:
1) If Dai of the time calls upon you to war against his enemy then you should make war. Enemy of Dai is your enemy. (Tomorrow if the government of a country takes action against Dai and the country becomes enemy of the Dai should the Bohra take up arms against their own country?)
2) You should accept the order of Dai in all things. (Is this not against the individual’s right of freedom of conscience?)
3) If a Bohra breaks the Misaq all his possessions like moveable, cash, house, utensils, jewels, ornaments, male and female servants and all worldly materials will be looted.
4) And if he has a wife that wife becomes forbidden to him. The breach of Misaq has the effect of three Talaq.
5) If he performs Hajj thirty times with naked feet even then God shall not forget him his sin of breaking the Misaq unless he takes Misaq again from his true master then and then God shall accept his Hajj, his prayers, fasts and other deeds. (It means the Dai’s powers are superior than the powers of God)
The Conditions of Raza such as:-
Without Dai’s Raza
1) Bohra will not be allowed to marry
2) Bury the dead in Bohra cemetery
3) Vote in election
4) Read a newspaper or magazine
5) Open and run a social institution
6) Spend his wealth on social cause
Hence Misaq and Raza amount to the Dai’s interference in secular rights of a Bohra individual.
Therefore, the practices of Misaq, Raza and Jamatkharij (Baraat) are in violation of Bohras’ Human rights and civil liberties enshrined in the Preamble and in Articles 25 (1), 19 (1) (a), 19 (1) (c) and 19 (1) (g) of the Indian constitution.
Besides these an individual Bohra also has ‘Right to Live’ and ‘Right to Information.’
Chief Justice B.P. Sinha’s dissenting Judgment in 1961
According to this procedure the Dai is required to give in writing a ‘Show Cause’ notice to the accused person clearly pointing out his/her faults of non-conformity to religious practices and wait for his/her reply. The accused person has to give the reasons or explanation in writing. Then Dai is required to call a meeting of the concerned Jamaat members in which the contents of the ‘Show Cause’ notice and the reply of the accused person would be read out in front of Jamaat members and the Jamaat would decide whether the accused is to be excommunicated or not. (The Bohra Dai has never followed this procedure laid down by the H’ble Supreme Court.)
The expelled person does NOT loose the rights like worshiping in places of worship, marriage, burying the dead in the community’s burial grounds and other use of properties belonging to the community, as all these are his/her civil rights and not purely religious rights.
Dai claims that he is the religious head of the community and also the trustee of the community’s property. Even a theological head has got to perform acts which are not wholly religious but may be said to be quasi religious or matters which are connected with religious practices, though not purely religious. Dai’s action touching the civil rights of the members of the community are justiciable and not outside the pale of interference by the legislature and judiciary. Hence though the Act may have its repercussions on the religious aspect of excommunication, in so far as it protects the civil rights of the members of the community it has not gone beyond the provisions of Art. 25 (2) (b) of the Constitution.
Social reforms are protected by the Art. 25 (2) (b) of the Constitution.
Dignity of the individual and the freedom of conscience enshrined in the Preamble and in Art. 25 (1) of the constitution.
The Dai’s right to administer the property is not questioned. But he must administer as per law and law tells him not to withhold the civil rights of an indiviual member of the community to a communal property. In Dawoodi Bohra community, a person excommunicated as a result of his/her non-conformity to religious practices is not entitle to use the communal mosques, burial grounds and other property treating him an outcast. No other members of the community including his blood relations can have any social contacts, though the Act is intended to do away with all that mischief of treating a human being as a Pariah, and depriving him/her of his/her rights of human dignity and freedom of conscience. The position of the excommunicated person becomes that of an Untouchable in his own community, which is strictly declared Void in Art.17, enforcing Untouchablity punishable in law.
The Misaq, which was altered and deviated by 51st Dai, Sayedna Taher Saifuddin giving autonomous powers to Dai, has clauses directly interfering with the civil and constitutional rights guaranteed to every individual citizen.
The clauses in misaq such as:
1) If Dai of the time calls upon you to war against his enemy then you should make war. Enemy of Dai is your enemy. (Tomorrow if the government of a country takes action against Dai and the country becomes enemy of the Dai should the Bohra take up arms against their own country?)
2) You should accept the order of Dai in all things. (Is this not against the individual’s right of freedom of conscience?)
3) If a Bohra breaks the Misaq all his possessions like moveable, cash, house, utensils, jewels, ornaments, male and female servants and all worldly materials will be looted.
4) And if he has a wife that wife becomes forbidden to him. The breach of Misaq has the effect of three Talaq.
5) If he performs Hajj thirty times with naked feet even then God shall not forget him his sin of breaking the Misaq unless he takes Misaq again from his true master then and then God shall accept his Hajj, his prayers, fasts and other deeds. (It means the Dai’s powers are superior than the powers of God)
The Conditions of Raza such as:-
Without Dai’s Raza
1) Bohra will not be allowed to marry
2) Bury the dead in Bohra cemetery
3) Vote in election
4) Read a newspaper or magazine
5) Open and run a social institution
6) Spend his wealth on social cause
Hence Misaq and Raza amount to the Dai’s interference in secular rights of a Bohra individual.
Therefore, the practices of Misaq, Raza and Jamatkharij (Baraat) are in violation of Bohras’ Human rights and civil liberties enshrined in the Preamble and in Articles 25 (1), 19 (1) (a), 19 (1) (c) and 19 (1) (g) of the Indian constitution.
Besides these an individual Bohra also has ‘Right to Live’ and ‘Right to Information.’
Chief Justice B.P. Sinha’s dissenting Judgment in 1961
