Monthly Archives: February 2013

What ? 36 year wait for justice and still nothing delivered at the Supreme Court of India ?

Supreme Court’s oldest, 36 and 25, keep two sects waiting


Shyamlal Yadav : New Delhi, Mon Apr 23 2012, 02:32 hrs

Of the 60,000 cases pending in the Supreme Court, the oldest one was filed nearly 36 years ago and is a standing example of justice delayed being justice denied. The original petitioner of the 1976 case is now dead and so is his son, while his grandson is said not to be interested in following it up as he is not actively involved with the Arya Samaj, subject of the case.

The next date of hearing has not been fixed. Nor has one been set for the second oldest pending case, filed in 1986, which is waiting for a decision on the size of a constitution bench that would take it up.

The Indian Express used the RTI Act to ask about probable dates for the listing of the two cases — Arya Samaj Education Trust versus Delhi’s Directorate of Education, 1976, and the Central Board of Dawoodi Bohra Community versus the State of Maharashtra, 1986. The CPIO of the Supreme Court responded that both being constitution bench matters, “it is beyond the jurisdiction and scope of the duties of CPIO to comment regarding the next date of hearing.”

The roots of the Arya Samaj case go back to 1973 when the Delhi School Education Act was enacted, under which educational institutions run by the Samaj, too, would have to follow government rules for admission and recruitment. The Arya Samaj approached the Delhi High Court for certain liberties, such as those enjoyed by minority institutions. The High Court delivered a split verdict on November 17, 1975, with one judge observing that “Arya Samaj is a reformed sect of Hinduism… and it is a part of Hinduism and not a separate religion in the UT of Delhi.”

Against the order, J P Gupta of the Arya Samaj moved the Supreme Court with civil appeal No. 687 in June 1976. The petitioner died in 1997, his son Dharm Chand Gupta died last year, and his grandson Pradeep Gupta, sources said, has not been following up the case. As per the Supreme Court website, it was last listed on April 19, 2005.

It was the same month the second oldest case was last listed. It relates to the Bombay Prevention of Excommunication Act, 1949, enacted on November 1, 1949. The Act was aimed at preventing members of the Dawoodi Bohra community from being excommunicated by the community’s Dai-ul-Mutlaq.

The constitutionality of the Act was challenged in the Bombay High Court by Sardar Sydena Tahar Saifuddin Saheb. On February 21, 1952, the High Court decided that the “Act is inconsistent with Article 26 of the Constitution of India”.

In 1962, following an appeal, a five-judge bench of the Supreme Court, too, struck down the Act in a majority judgment. As such, the Dai-ul-Mutlaq has the powers to excommunicate Dawoodi Bohras. Sydena Mohammed Burhanuddin is the present occupant of that post.

“The Dawoodi Bohras are a small, well-knit community in which baraat (excommunication or boycott) can be disastrous. It has ruined the lives of many people, and many families have disintegrated,” says community member Asghar Ali Engineer, now 73, who filed the case that is now pending.

Filed under the advice of late judge V M Tarkunde, his 1986 petition prayed that the Supreme Court “reconsider” the 1962 decision. On April 12, 2005, the day it was last listed, the question whether it should be heard by a bench of five or seven judges remained unresolved.

Age 35+

Case: Arya Samaj Education Trust versus Delhi Directorate of Education

Dispute started: 1973

Filed before SC: June 9, 1976

Present status

Pending, next date not fixed

Last listed on: April 19, 2005

Issue: Whether Arya Samaj Educational institutes should be treated as institutions run by minority community

Petitioner: Jyoti Prasad Gupta, died 1997

Age 26

Case: Central Board of Dawoodi Bohra Community versus State of Maharasthra

Dispute started: 1949

Filed before SC: 1986

Present status

Pending, next date not fixed

Last listed on: April 12, 2005

Issue: Whether head of the Dawoodi Bohra vommunity has right to excommunicate members

Petitioner: Asghar Ali

Engineer, now 73