Borhras and reform
Recommendations of the Nathwani Commission
The Nathwani Commission Report was published in 1979 highlighting violation of human rights of Bohras. Hundreds of people deposed before the commission and gave testimony to the cruel and callous behaviour of the Bohra priesthood. The following is a chapter from the report.
Our enquiry has shown that there is large-scale infringement of civil liberties and human rights of reformist Bohras at the hands of the priestly class and that those who fail to obey the orders of the Sayedna and his 'amils, even in purely secular matters, are subjected to baraat resulting in complete social boycott, mental torture and frequent physical assaults. The misaaq (the oath of unquestioning obedience to the head priest) which every Bohra is required to give before he or she attains the age of majority, is used as the main instrument for keeping the entire community under the subjugation of the Sayedna and his nominees.
On the threat of baraat (social boycott) and the resulting grave disabilities, Bohras are prevented from reading periodicals which are censored by the Sayedna (such as the Bombay Samachar, the Blitz and the Bohra Bulletin); from establishing charitable institutions like orphanages, dispensaries, libraries, etc. without the prior permission of the Sayedna except by submitting to such conditions as he may impose; from contesting elections to municipal and legislative bodies without securing beforehand the blessings of the Sayedna; and above all, from having any social contact with a person subjected to baraat, even if the person is one's husband, wife, brother, sister, father or son. The weapon of baraat has been used to compel a husband to divorce his wife, a son to disown his father, a mother to refuse to see her son, and a brother or sister to desist from attending the marriage of his or her sister or brother.
An excommunicated person becomes virtually an untouchable in the community, and besides being isolated from his friends and nearest relatives, is unable to attend and offer prayers at the Bohra mosque. Even death does not release him from the taboo, for his dead body is not allowed to be buried at the community's common burial ground. Bohra jamaats in India and abroad are not allowed to frame their own rules and regulations, but are subjected to authoritarian constitutions granting absolute power to the Sayedna and his nominees.
Millions of rupees are collected every year from Bohras in India and abroad as customary taxes and nazranas by the Sayedna and his nominees, but the Sayedna is not accountable to anyone for them. The Sayedna also claims to be the owner of all the Bohra mosques and the sole trustee of all Bohras trusts, and where the account of any of these trusts are audited, the work is done by a firm composed of some members of the Bohra community who are also bound by the oath misaaq to the Sayedna.
For obvious reasons, it is almost impossible to improve this situation by organizing a reform movement from within the Bohra community. Any person who fails to obey implicitly the orders of the Sayedna and his 'amils commit a breach of his misaaq and is liable to be subjected to baraat or social boycott. The consequence is that although a large number of Bohras resent the disabilities imposed upon them by the priestly class, they are unwilling to give any public expression to their resentment. We thus found that although a systematic public campaign was organized in the Bohra community to condemn our Commission and to put a stop to its enquiry, quite a few of the campaigners wanted us to carry on the work.
While the majority of dissenters are thus unwilling to express their opposition to priestly domination, those who have the courage to do so are unable to carry on a reform movement within the community. Although they are willing to accept the religious, as distinguished from the secular, authority of the Sayedna as an essential part of their faith, baraat is proclaimed against them, and being thus deprived of social contact with other Bohra brothers and sisters, their movement has only a peripheral impact on the community.
The situation therefore calls for the authority of the state to be invoked for passing suitable legislation to relieve the hardships of the community, without encroaching on the fundamental rights which it enjoys as a religious denomination. Under Articles 25 and 26 of the Indian Constitution, members of the community have the right to freely profess, practice and propagate their religion, to establish and maintain institutions for religious purposes and to manage their own affairs in matters of religion. These rights, however, do not prevent the state from making any law (a) regulating or restricting any economic financial, political or secular activity, which may be associated with religious practice, or (b) providing for social welfare and reform.
We will indicate in this chapter the types of enactments which are required for regulating the economic and secular activities of the Bohra priesthood and for providing social reform in the community. Before doing so, however, it is necessary to emphasize that such legislation is not likely to be passed and implemented unless it receives the active support of all progressive sections of the Indian people, including those belonging to the minority communities. We appeal in particular to Indian Muslims to peruse this report, see the ghastly picture of persecution which it presents, and decide whether legislation is not necessary to regulate the secular activities of the Bohra priesthood and to introduce social reform in the Bohra community.
We recommend the following types of legislation in order to mitigate the evils described in the earlier chapters.
Baraat or social boycott should be made illegal and penalized as an offence. The full facts about the baraat and its consequences were obviously not placed before the Supreme Court when it decided the case Saifuddin Saheb vs. State of Bombay (AIR 1962 S.C. 853). Baraat among the Bohras is not proclaimed for religious apostasy, nor does it merely imply exclusion from communal worship and use of communal property. Baraat is proclaimed for non-conformity in secular matters and it implies complete social boycott, isolation from close relatives and friends, loss of business and employment, and virtual imposition of untouchability. Contrary to the view expressed by the majority of the Supreme Court in the above case, abolition of baraat is undoubtedly a matter of urgent social reform.
We are, however, of the view that in drafting a law for the abolition of social boycott, the defect which induced the majority in the Supreme Court to declare the Bombay Prevention of Ex-communications Act, 1949, to be invalid, should be avoided. It is also desirable that a law against the imposition of social boycott should be of general application and should not be confined to the custom of baraat in the Bohra community. As a model of such a law, we recommend Bill No. 67 of1977 which has been introduced in the Lok Sabha (House of the People) by Dr. V.R. Pandit, M.P. and is circulated for eliciting public opinion. A copy of the Bill is annexed to this Report at Appendix "H".
We have seriously considered the question whether the abolition of misaaq should be recommended as a measure of necessary social reform. There can be no doubt that in so far as the misaaq involves an undertaking to accept the guidance of the Sayedna in the religious matters, it represents as essential feature of Bohra faith and calls for no interference. But we have seen that misaq is so far-reaching as to involve unconditional surrender to the Sayedna in secular as well as religious matters and that it amounts to a virtual charter of slavery.
We have also seen in subsequent chapters that it is the breach of misaaq in secular matters which is made the basis of all-sided persecution of dissenting Bohras. We therefore recommend that the Sayedna should in the first place be requested to limit the misaaq to obedience of his directions in religious matters. If he refuses to do so, the giving of misaaq in its present form should be prohibited by law.
- It is essential that all the trusts where the Sayedna claims to be sole trustee, and the receipt and expenditure of all the customary taxes and nazranas, should be regulated by suitable legislation. Acts like the Wakf Act of 1954 and the Durgah Khwaja Saheb Act of 1955 show that such legislation is constitutionally valid. Since many of the trusts receive income from different parts of India and abroad, and since the customary taxes and nazranas are also collected in India and other parts of the world, legislation for the regulation of such trusts and income should be the responsibility of Parliament rather than of any State legislature. &147;Trusts and Trustees&148; is a topic in the Concurrent list of the Indian Constitution (Schedule VII, List III Item 10).
In respect of such trusts and incomes we recommend legislation as mentioned below:
- The Sayedna claims to be the sole trustee, if not the sole owner, of all Bohra mosques. (We have seen a copy of a judgment of the Madras State Wakf Board dated 1-7-1962, where a claim made by the secretary of a Bohra mosque that the mosque properties were not Wakf properties but were personal properties of the Sayedna, was rejected.) It is necessary to have a law to regulate the management of the mosque properties. The law should provide for a Board of Trustees with the Sayedna as its chairman. It should be necessary to keep regular accounts and the same should be open to inspection by members of the community.
- A similar law is necessary for the management of all the trusts of which the Sayedna or his family members are the trustees. The law should provide a scheme for the appointment of trustees, an independent Secretary and the necessary staff. The Government should have the right to designate a Chartered Accountant to audit the trusts&146; accounts, which should be open to inspection by members of the community.
- In many charitable trusts set up by individual Bohras, the settler was pressurized to make the Sayedna or his nominee the sole trustee. A provision should be included in the enactment visualized by (b) above to enable the District Judge of the district where the office of such a trust is located to frame a suitable scheme for the management of the trust under a more representative Board of Trustees.
Most of the customary payments made by Bohras to the Sayedna or 'amils and described in Chapter XII of this Report are impressed with obligations in the nature of a trust. A separate law is necessary for the accounting of the amounts received and their expenditure for the welfare of the community. The law should provide for a scheme of management by the Board of Trustees who would represent the interests of the entire community, and forgetting the accounts audited by an independent firm of auditors designated by the Government. The accounts should be open to inspection by members of the community.
On the basis of the available material, we are not able to say whether the amounts collected as nazranas and salams described in chapter XII are also trust properties. This will depend on the purpose for which the payments are made. It appears, however, that if the amounts do not partake of the nature of trust property, it would be personal income and would be liable to income tax. Since the amounts are customary payments made on certain occasions, they are not receipts of a casual and non-recurring nature so as to be exempt from income tax assessment.
- We have referred in this Report to the ways in which the Sayedna or his nominees influence the elections to municipal and legislative bodies. We have pointed out that such practice, apart from constituting a corrupt practice when done with the consent of a candidate or his election agent, is by itself an offense of “undue influence” under section 171-C of the Indian Penal Code and is punishable under section 171-F of the Code. We hope that this clarification will result in the discontinuance of such electoral interference by religious heads. In any case, the present law is sufficient to meet the situation and additional legislation is not called for.
- We have seen earlier how Bohra Jamats in India and abroad were compelled to accept authoritarian constitutions under which autocratic powers were granted to the Sayedna and his nominees. Pressure for the acceptance of such constitutions could be exercised because of the force of misaaq and the fear of baraat. If baraat is made illegal and if the misaq is either improved or prohibited, the aggrieved jamaats will be free to make such alterations in their constitutions as they may desire. No additional legislation appears to be necessary for this purpose.