St.Marys Orthodox Syrian Church vs The State Of Kerala
2021 Latest Caselaw 20632 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
          Tuesday, the 5th day of October 2021 / 13th Aswina, 1943
                           WP(C) NO. 30976 OF 2019
PETITIONERS:

  1. ST.MARYS ORTHODOX SYRIAN CHURCH VADAVUCODU, ERNAKULAM DISTRICT,
     REPRESENTED BY ITS TRUSTEE, PETER VARKEY.

AND OTHERS.

RESPONDENTS:

  1. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
     SECRETARIAT, THIRUVANANTHAPURAM-695 001.

AND OTHERS.

     Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct respondents 2 to 7 to afford adequate and effective
police protection to the 4th Petitioner to conduct religious services and
worship in St Marys Orthodox Church, Vadavucode and Petitioners 2 and 3
and other Parishioners of the church to conduct to religious services and
worship in the 1st Petitioner church, its cemetery and kurishupallees
without any threat, obstruction or interference from respondents 8 to 14
or any others under them pending disposal of the above Writ Petition.
     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
17/09/2021 and upon hearing the arguments of M/S V.PHILIP MATHEWS & JEPH
JOSEPH Advocates for the petitioners, SHRI.ASOK M.CHERIAN, ADDITIONAL
ADVOCATE GENERAL for R1 to R7 , SRI.K.P.SREEKUMAR, Advocate for R8,R11 R13
& R14, SRI.P.J.PHILIP, Advocate for R9, SMT.SMITHA GEORGE, Advocate for
R10 &R12 and of M/S.C.A.NAVAS, .T.K.SASIKUMAR,V.S.AFSAL KHAN, K.I.SAGEER,
PRASHEEL PRAKASAM Advocates for Addl. R15 to R19 sought to be impleaded,
the court passed the following:
           DEVAN RAMACHANDRAN, J.
  ========================= ==========
W.P.(C)Nos.27219, 25645, 27081, 30976, 34049 of
2019, 8308, 18091, 13556 of 2020 & 1409 of 2021
 ====================================
       Dated this the 5th day of October, 2021

                            ORDER

When these matters were considered today,

the learned Senior Counsel - Sri.K.Ramakumar,

Sri.P.Viswanathan, along with Sri.K.P.Sreekumar,

Sri.Dinesh R.Shenoy, Sri.Alias M.Cherian,

Sri.Sabu Thozhuppadan, Sri.Sreekumar(Chelur),

Sri.P.Thomas Geevarghese and Sri.Nandagopal

Nambiar appearing for various respondents, did

not contest that, after the Hon'ble Supreme

Court delivered K.S.Varghese v. St.Peter's and

St.Paul's Syrian Orthodox Church [2017 (15)

SCC], the various constituents Churches of the

Malankara Orthodox Syrian Church can only be

governed by the 1934 Constitution. They

unequivocally conceded that only the Clergy

appointed under the said Constitution can lead

services in the Churches; and that only the

Vicar thereunder can head the Management of the

individual Churches.

W.P.(C)No.27219/19 & Con.Cases

2. However, the apprehension of the

respondents were that even when they abide

K.S.Varghese (supra) implicitly, the petitioners

and persons owing allegiance to them are anxious

only to grab the Church and oust anyone who is not

of their choice.

3. I, therefore, asked Sri.S.Sreekumar,

learned Senior Counsel, instructed by Sri.P.Martin

Jose - learned counsel; Sri.Roshen D.Alexander -

and Sri.Philip Mathews - learned counsel appearing

for the petitioners in these matters, whether any

of their clients have the intention of keeping

away any Parishioner from the Management of the

Churches, to which, their reply was strongly to

the negative; adding that their clients are also

equally, if not more obliged, by the terms of the

1934 Constitution.

4. Sri.Mathews Nedumpara and

Sri.S.K.Premraj Menon - learned counsel appearing

for some individuals seeking to be impleaded in

these cases, however, had a different take that W.P.(C)No.27219/19 & Con.Cases

K.S.Varghese (supra) does not lay down the right

law, and that it is only the constitutional

judgment of the Supreme Court in the 'Samudayam

Suit' that can obtain any primacy. In fact,

Sri.Mathews Nedumpara went on to the extent of

saying that none of the Supreme Court judgments

relating to the Malankara Church can be treated as

laying the correct law or to be given the respect

of being precedents, and that the declarations

therein cannot operate as res judicata or as

binding precedents, under the concepts of stare

decisis.

5. In other words, what Sri.Mathews

Nedumpara seems to say, in my assessment of the

long winding arguments he made, was that

notwithstanding K.S.Varhese (supra), individual

Parishioners can still maintain suits with respect

to the internal Management of Churches, as also

with respect to ecclesiastical and temporal

aspects.

6. The learned Additional Advocate General - W.P.(C)No.27219/19 & Con.Cases

Sri.Asok M.Cherian, submitted that the State

affirms by K.S.Varghese (supra) and takes the view

that only the Vicar and Clergy appointed under the

1934 Constitution can be allowed to lead services

and Manage the Churches. He submitted that,

however, on account of the COVID-19 pandemic

scenario and its consequent disruptions, Police

are not in a position to afford effective

protection to all the Churches at a given time;

and, therefore, prayed that this Court grant the

State enough space to work on the modus of

implementing K.S.Varghese (supra), on a step to

step basis.

7. I must record upfront that no Court - and

most of all this Court - will find any pleasure in

sending Police or other forces into any Church for

implementation of a judgment. However, if this

Court is pushed to it, certainly that option will

have to be explored and necessary force may have

to be ordered.

8. As matters now stand, I am of the firm W.P.(C)No.27219/19 & Con.Cases

view that the persons who were earlier calling

themselves "two factions" will now have to

understand that the litigative travel with respect

to the Malankara Church has now ended with

K.S.Varghese (supra), since the Review attempted

against it has also be dismissed by the Hon'ble

Supreme Court.

9. Perspicuously, therefore, this Court

cannot recognize fractions within the Malankara

Church; nor can this Court countenance any action

from any person in violation of its 1934

Constitution.

10. Apodictically thus, the Vicar appointed

under the 1934 Constitution will have to be the

head of the Management of each of the constituent

Churches, and that the Clergy appointed under the

said constitution will have to lead its services.

11. It is also without need to say that every

parish member - whether he belonged to one of the

now extinguished factions in the past - will

obtain the unbridled right to take part in the W.P.(C)No.27219/19 & Con.Cases

activities of the Church, inclu1ding its

Management, by either offering as candidate in the

elections or as a voter, as long as he abides by

the 1934 Constitution, as has been declared by the

Hon'ble Supreme Court, through the process

established.

12. Viewed from the afore perspective, one

would certainly fail to understand how the rift

between these two sections of people are still

continuing and how they call themselves "two

factions", even at this point of time.

13. Mercifully, the deliberations at the Bar

gives me a glimpse of hope because both sides

agree that the 1934 Constitution applies in its

full force and that all the Parishioners are bound

to abide by the same.

14. However, it cannot be lost sight of that

the erstwhile 'factions' were led by their own

wise men and Heads of ecclesiastical and temporal

matters. Certainly, these persons will require to

now analyze the situation unfolding in front of W.P.(C)No.27219/19 & Con.Cases

them and decide how the long standing bitterness

between these two sections of people can be

resolved.

15. This is not a mere hortative hope

expressed by this Court, but it is the imperative

need, on account of K.S.Varghese (Supra), because

from the time of the said judgment, factionalism

in the Malankara Church cannot be in any manner

countenance or condoned.

16. The various Senior Counsel and the

counsel appearing for the parties today inform me

that steps have already begun between the persons

at the helm of affairs of the erstwhile "factions"

to find peace and to put a quietus to the ongoing

issues between them.

17. In fact, some of the learned counsel

appearing for the respondents inform me that a

meeting of the persons who matter with respect to

an earlier faction - which was called "Jacobite

Faction" - has already called on 15.10.2021 and

that they are trying to find out means as to how W.P.(C)No.27219/19 & Con.Cases

the 1934 Constitution can be implemented, without

any further bitterness or strife.

18. I certainly appreciate this effort

because, as I had earlier suggested when this

matter was considered by me, the continuance of

the 'dispute' can only help vested interests and

not the real devotees on either side.

19. If this Court is to send forces for

the purpose of implementation of K.S.Varghese

(Supra), certainly chances of untoward incidents

cannot be discounted and this is confirmed by the

learned Additional Advocate General, Shri.Ashok

M.Cheriyan.

20. As I have also said above, it is not

this Court's first option to do that, but the last

one; which will become inevitable if the both

sides do not agree, using their good conscience

and reasoned mind, to understand that K.S.Varghese

(Supra) has now put an end to the litigation,

based on the rival factionalism which existed in

the past.

W.P.(C)No.27219/19 & Con.Cases

21. I, therefore, adjourn these matters

to be called on 26.10.2021; with a fervent call to

all the people who matter on both sides, to abide

by K.S.Varghese (Supra) and by the 1934

Constitution and permit the churches to function

as abodes of God, rather than places of war, to

which some of them have been now virtually reduced

to.

22. I, however, deem it necessary to

caution both sides that if the recalcitrance and

belligerence to abide by K.S.Varghese (Supra)

continues, this Court will not shy away from

enforcing its constitutional obligations of even

using the Police force to ensure that the 1934

Constitution is properly implemented in the

various constituent Churches of the Malankara

Syrian Orthodox Churches.

Needless to say, until 26.10.2021, the

Superintendents of Police and the Officers under

their command, will ensure that the areas where

the constituent churches are situated are W.P.(C)No.27219/19 & Con.Cases

protected from any violation of law and order by

any person and that no attempt to breach peace or

commit violence is tolerated or permitted from any

person on either side of the divide; and that the

properties and assets of the Churches are

sufficiently protected.

Sd/-

DEVAN RAMACHANDRAN JUDGE H/o akv/MC

05-10-2021 /True Copy/ Assistant Registrar