Government Cannot Plead Helplessness: Kerala High Court Slams State Over Inaction In Orthodox-Jacobite Row

Considering the number of pending cases seeking protection involving churches belonging to the Malankara Syrian Orthodox Church, the Kerala High Court has sought the response of the State in the matter.  

The Court also found that the premise of matters arising from the Malankara Syrian Orthodox Church row was well settled in the landmark decision of the Apex Court in K.S Varghese & Ors v St. Peter's & St. Paul's Syrian Orthodox and Ors [2017(3) KLT 261 SC], particularly because attempts to seek a review of this decision before the Supreme Court had failed. 

The Court further slammed the inaction of the State for failing to comply with the orders issued by the judiciary. 

Justice Devan Ramachandran while adjourning the case, observed: 

"There can be no doubt that issues between the rival parties are still dangerously poised and therefore before I take a final decision on the prayers in these cases, I am certain that the Government must disclose their stand in the matter." 

The Bench established that such response was significant considering that the machinery under the State was what was required to order protection as prayed for in these petitions.

Additional Advocate General Asok M Cherian however submitted that although the State was ready to comply with the said directions, it was finding it difficult to do so on account of the fear of breach of peace and threat of violence. 

To this, the Bench responded as such:

"I am afraid that the Government cannot plead helplessness when they have the mechanism and systems to ensure compliance fo lawful order, through means of law." 

The matter has therefore been adjourned to 29th September for further consideration. 

The State has been directed to inform its stand and the action proposed to be taken to ensure compliance with the directions issued in the KS Varghese case before the Court. 

This development ensued in a petition seeking the takeover of six Orthodox churches by the Orthodox faction, presently under the control of the Jacobite faction.

The court pointed out that the apex court in its final verdict in 2017, gave the Orthodox faction the right to administer 1,100 churches and parishes under the Malankara Orthodox Syrian Church and said there was no ground for the Jacobites to claim any of the churches.

The helplessness of the government under the pretext of issues surfacing if the order is implemented and its silence is frightening as the onus is on the government to implement the orders of the judiciary.

A non-Catholic Christian community in Kerala, the Malankara Orthodox Syrian Church, has two factions – the majority Orthodox, who have their headquarters in Kottayam, and the Jacobites, who consider the Patriarch of Antioch in Beirut as their supreme leader.

The community first split into Orthodox and Jacobite in 1912, but came together in Kottayam for a brief period between 1958 and 1970, following a Supreme Court ruling. Since 1970, they have been at war over church control.

After decades spent in the trial, the apex court in its final verdict in 2017, gave the Orthodox faction the right to administer 1,100 churches and parishes under the Malankara Church and said there was no ground for the Jacobites to claim any of the churches.

Consequent to this, the Orthodox faction has been taking control over churches hitherto run by the Jacobite faction.

While by now the Orthodox faction has taken over a few Churches with directions from the Court after the police was given specific instructions, in some the Jacobite faction is unrelenting.

Key Findings In the KS Varghese Case

Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the parish churches and shall prevail.

The decision in Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of the provisions of Order 1 Rule 8 and Explanation 6 to Section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit i.e. Samudayam suit are also binding on parish churches/parishioners to the extent issues have been decided.

As the 1934 Constitution is valid and binding upon the parish churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the Churches under the guise of spiritual supremacy of the Patriarch.

The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.

Full effect has to be given to the finding that the spiritual power of the Patriarch has reached a vanishing point. Consequently, he cannot interfere in the governance of parish churches by appointing Vicar, priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the Diocese, Metropolitan, etc. concerned.

Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move Church out of the Malankara Church. Once a trust is always a trust.

When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of the 1934 Constitution without the approval of the Church hierarchy.

As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, priests, Deacons, Prelates, etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.

Unilateral exercise of such power by the Patriarch was illegal. 

The Church and the cemetery cannot be confiscated by anybody. It has to remain with the parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the parish churches, would remain in trust as it has for time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.

The faith of the Church is unnecessarily sought to be divided vis-à-vis the Office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact, an effort is being made to take over the management and other powers by raising such disputes as to the supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.

The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management.

The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the parish churches to even frame byelaws in violation of the provisions of the 1934 Constitution.

The Udampadies of 1890 and 1913 are with respect to administration of churches and are not documents of the creation of the trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.

The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadies cannot supersede the 1934 Constitution only because these are claimed to be registered.

In otherwise episcopal Church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22, etc.

The formation of the 2002 Constitution is the result of illegal and void exercise. It cannot be recognised and the parallel system created thereunder for the administration of parish churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.

The 1934 Constitution is appropriate and adequate for the management of the parish churches, as such there is no necessity of framing a scheme under Section 92 CPC.

The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronising parallel systems of administration.

Both the factions, for the sake of the sacred religion they profess and to pre-empt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.

Case Title: St. Mary's Orthodox Syrian Church v. State of Kerala