-Mathews J. Nedumpara
1. Kerala, today, faces the curious scenario of the High Court ordering forceful takeover of the churches of the Syrian Jacobite Christians owing allegiance to the Patriarch of Antioch, in the purported implementation of the orders of the Supreme Court with many a bench of the High Court asserting that ‘rule of law’ being the very basic feature of the Constitution, the executive is dutybound to enforce the judgments of the Supreme Court, even if it would mean deploying central forces. The state government through none less than the Chief Secretary stated on oath that it is dutybound to implement the order of the Supreme Court, and it has taken possession of many churches using force and will continue to take over the remaining churches of the Jacobite faction, and hand it over to the Indian Orthodox Church headed by the Catholicos at Kottayam, that all that the government needs is some time to persuade the parishioners of Jacobite faction, which in the case of Kothamangalam Marthoma Church and many other churches, constitute to be 99 percent. The plea of the state is that as a democratic government, it cannot use force against the believers to drive them out of the church build by their forefathers and deprive them of their fundamental right of freedom of faith, conscience and worship. Still, it says it will implement the judgment, and it has implemented the Supreme Court judgment in large number of cases, instead of pleading that the contempt cases should be dismissed forthwith for what they are seeking is the execution of interim orders of the lower courts in pending suits/proceedings which has attained no finality.
2. The pertinent question which begs for an answer is whether there exists any judgment, at all, of the Supreme Court of which the Government could be accused of non-compliance, much less, contempt. It would shock the conscience of any right-thinking person that there is no such judgment of the Supreme Court at all. Let me elaborate.
3. Mulanthuruthy Marthoman ChurchOn 17th of August, 2020, the Collector took forceful possession of the Mulanthuruthy Marthoman Church which was built in A.D 8th century, where many an epoch-making event in the history of the Syrian Jacobite Church has taken place, in the ‘implementation of the judgment of the Supreme Court’. But the undeniable truth is that till that point, there was never a case in the Supreme Court concerning the Mulanthuruthy Marthoman Church. There was no pending dispute, everything was settled by virtue of a decree in 1967, and the affairs of the church was being conducted peacefully. The judgment which was recently executed by the High Court, compelling the Collector to employ a large posse of police, was only that of the District Court, Ernakulam (Church Court) dated 25.10.2019, substituting a decree of the District Court dated 31.7.1967 in a scheme suit which had already become final and binding way back in 1967. It is impossible in law to have substituted such a decree which had attained finality, except by legislation. It was while an application for review against such substitution, so too, an appeal, revision and a petition under Article 226 against the same was pending before the High Court, that the High Court ordered the Collector to take possession of the church granting police protection for the same. The High Court did not consider that the order has not become final. It was already being subjected to review and appeal, and therefore is not executable, and even if executable, it can only be through the Civil Court. To repeat, so far as Mulanthuruthy Marthoman Church is concerned, there is no judgment or decree of the Supreme Court, at all to be executed, much less a case in the Supreme Court at all concerning the church.
4. Kothamangalam Marthoma Cheriya PalliIn this case, what is being executed in the name of implementation of a final judgment of the Supreme Court is merely an order of temporary injunction granted by the Munsiff Court, Muvattupuzha, in favour of the Vicar appointed by the Metropolitan of the Orthodox faction. It is not even a final order of the Munsiff Court which is capable of being executed. The suit is pending. The Petition under Article 226 in challenge of the temporary injunction is pending before the High Court. Even the trial of the suit has been stayed. In the Kothamangalam Church, 99.99 percent of the parishioners are Jacobites. It is in this church that Saint Eldhos was buried, and devotees of all religions worship the tomb. The police tried to take forceful possession a few times, but gave up because the resistance by the devotees was such that it could not be executed without bloodshed.5. What is stated above is equally true of many churches of which forceful possession was taken by the police in the name of implementation of the judgment of Supreme Court. But what would be mind boggling to anyone is that the Supreme Court did not pass any such judgement at all concerning the churches which have been forcefully taken over, except in the case of the churches of Kolenchery, Varikoli and Mannathur. Only in respect of the said three churches does a Supreme Court order exist, and that was implemented, and nothing further remains. The correctness of the said judgment -a manifest horror because it was an adjudication upon the faith of the Jacobites- holding that the spiritual powers of the Patriarch, the supreme head of the Jacobites, has reached a vanishing point, which no court has jurisdiction to do, is a matter which requires serious discussion.
6. In respect of Kolenchery, Varikoli and Mannathur, the Supreme Court rendered a judgement in K.S Varghese v. St. Peter’s and St. Paul’s Syrian Orthodox Church, as a final court of appeal, in three appeals arising out of representative suits. The said suits being representative in nature the decision in K.S Varghese would bind the parishioners who would have prosecuted the case and nobody else. The Mulanthuruthy Marthoman Church, Kothamangalam Marthoma Church, and for that matter, none of the 50 and odd churches which have been taken forceful possession of, have nothing to do with the judgment in K.S Varghese.
7. Very few know the disturbing truth. The real reason for this tragedy is the misconception of certain fundamental principles of law like the doctrines of res judicata, res inter alios, stare decisis, transit in rem judicatum. To put it in very simple words, in a layman’s language, failure to observe the principles of natural justice, i.e. the simple principle that a judgment between A and B will only bind A and B, and not C and D who are not parties, and who were never heard or defended. So too, misconception of doctrines like judgment in rem and judgment in personam. The judges and lawyers who conducted the cases mistook that a judgment in a representative suit is a judgment in rem (as against the whole world), whereas, it is only a judgment in personam, namely, binding only the parties and privies. In this case the privies would mean the parishioners of the particular church concerned. For example, in a divorce suit between a husband and wife, where divorce is granted, the judgment is in rem, and where it is denied, it is a judgment in personam. What is determinative is not that the suit was instituted in a representative capacity, but the nature of the relief granted. Where there is a change in title/status, the judgment is in rem. These fundamental principles were failed to be taken note of by the constitution bench and subsequent benches in the church cases in 1958, 1995, 2017, 2018 and 2019, to the great misfortune of the Jacobite Christians.
8. What is going on in the name of implementation of the judgment of the Supreme Court is quite laughable, if it were not so tragic. In the name of a non-existent order of the Supreme Court, the Courts are calling for the central forces, finding the state police inadequate, in prying the churches out of the hands of the poor devotees who pledge to protect it even at the cost of their lives. The plea which I have been advancing before the court, ever since I was engaged in the recent past, that the taking possession of the church invoking contempt of court is done in the implementation of a judgment of the Supreme Court which does not even exist, has not been answered or even recorded fully.9. All believe that there exists such a judgment, leaving the Government no option but to execute it, and even the leadership of the Jacobite faction believe that the only way out is the Church Act, a legislation drafted by Justice Krishna Iyer, meant to secure better governance of the churches and its affairs and properties.
10. Nobody has understood that the judgments of the Supreme Court in the various church cases were all without jurisdiction, it being in the province of faith, namely in holding that “the spiritual powers of the Patriarch of Antioch has reached a vanishing point” and therefore, he does not enjoy, not merely any temporal power in the Malankara Church, but even spiritual powers, which the Jacobite Christians refuse to accept because they believe that the spiritual power of the Holy Ghost on the Pentecost day is transmitted from generation to generation only through the imposition of hand by the Patriarch, as the successor of St. Peter. The Court has no jurisdiction to adjudicate upon faith, and therefore its judgments are not binding as res judicata or precedent.
Mathews J. Nedumpara
Advocate, Supreme Court of India