No Finality For Kerala HC's Observation That Church Assets Are Public Trusts & Not Governed By Canon Law : Supreme Court

The Supreme Court on Friday clarified that the observations made by the Kerala High Court in Cardinal George Alencherry's case regarding canon law and the power of the Bishops to alienate church assets are prima facie in nature and no finality can be attached to them.

While dismissing the petition filed by Alencherry, the Major Archbishop of Syro-Malabar Church, to quash the criminal cases filed against him over the land scam in the Ernakulam-Angamaly Archdiocese, the Kerala High Court had observed that church assets are to be treated as public trusts and the canon law provisions conferring unilateral powers to Bishops to alienate church assets must be construed as subject to Section 92 of the Code of Civil Procedure. Taking exception to the general findings made by the Kerala High Court about canon law, two Catholic dioceses- Diocese of Thamarassery and Eparchy of Bathery- filed separate Special Leave Petitions in the Supreme Court. These petitions were considered by the Supreme Court along with the petition filed by Alencherry seeking quashing of the cases.

While dismissing Alencherry's petition, the Supreme Court clarified that the High Court's observations (from para 17 to 39 in the judgment) on Canon Law are only prima facie in nature.

A bench comprising Justices Dinesh Maheshwari and Bela Trivedi stated as follows :

"After having gone through the impugned order passed by the High Court, more particularly the observations made in para 17 to 39 thereof that the said prima facie observations were made in response to the submissions made by the learned counsels for the parties relying upon various decisions of this Court as regards the powers and authority of the Archbishop of Archdiocese with regard to the temporal and spiritual affairs of the Churches. Of course, certain observations are omnibus and general in nature but the same being only prima facie observations made in the impugned order in the petitions filed by the AppellantArchbishop under Section 482 of Cr.PC, no finality could be attached to the said observations"

Therefore, the bench directed the trial court to proceed with the complaints against Alencherry without being influenced by these observations made by the High Court.

Since, these are only prima facie observations, the Supreme Court opined that the petitions filed by the dioceses need not be entertained.

"we are not inclined to entertain the said SLPs filed by the petitioners Eparchy of Bathery and Catholic Diocese of Thamarassery, in exercise of our limited jurisdiction under Article 136 of the Constitution of India, more particularly when the said petitioners have failed to make out any case of grave injustice being suffered to them. As stated earlier, the said observations have been made by the High Court in response to the submissions made by the counsels for the parties in the light of the various decisions of this Court, and the said observations being prima facie in nature, no finality could be attached to them".

High Court criticised for "overzealous" approach

The Supreme Court also criticised the High Court for passing subsequent orders in the case, after dismissing Alencherry's petition, to ascertain the public encroachments by religious institutions. Even after the change in roster, the single judge continued to pass orders and even assumed plenary jurisdiction to advise a legislation on religious endowments, the Supreme Court disapprovingly noted. The single judge also impleaded the CBI as a respondent in the case.

The Supreme Court was of the view that the High Court "in its overzealous approach" exceeded its jurisdiction under Section 482 CrPC by enlarging the scope of the petition and "crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice".

"In our opinion, the jurisprudential enthusiasm and wisdom for doing the substantial justice has to be applied by the courts within the permissible limits. The belief of self-righteousness or smugness of the High Court in exercise of its powers of judicial review should not overawe the other authorities discharging their statutory functions. We may not have to remind the High Courts that judicial restraint is a virtue, and the predilections of individual judges, howsoever well intentioned, cannot be permitted to be operated in utter disregard of the well-recognized judicial principles governing uniform application of law. Unwarranted judicial activism may cause uncertainty or confusion not only in the mind of the authorities but also in the mind of the litigants", the Apex Court observed while quashing the subsequent orders passed by the High Court.

Case Title : Cardinal Mar George Alencherry vs State of Kerala and another

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