K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN ORTH. & ORS.

religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere . dogma or precept or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be predominant facets of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion. Even to different persons professing the same religious faith some of the facets of religion may have varying significance. It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what ·are matters of religious belief or religious prac;tice. That is far from saying that it is not possible to state with reasonable certainty the limits within which the C Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with J) religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence - factual or legislative or historic - presented in that ·1 context is required to be considered and a decision reached."

110. This Court also dealt with the proposition whether abolition of hereditary right to appointment was violative ofArticles 25 and 26 of the Constitution. It was held that hereditary right is not essential part of religion or matter of religion or religious practice in A.S. Narayana Deekshitulu (supra), this Court held as under: "119. The real question, therefore, is whether appointment of an archaka is governed by the usage and whether hereditary succession is a religious usage? If it is religious usage, irwould fall squarely under Article 25(1 )(b) of the Constitution. That 0 question was posed in Seshammal's case wherein this Court considered and held that though archaka is an accomplished person, H

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A well-versed in the Agamas and rituals necessary to be performed in a temple, he does not have the status of a head of the temple. He o~es his appointment to Dharmakarta or Shebait. He is a servant of the temple. In K. Seshadri Aiyangar v. Ranga Bhattar the Madras High Court had held that status of hereditary archaka of a temple is that of a servant, subject to the disciplinary power B of the trustee who would enquire into his conduct as servant and would be entitled to take disciplinary action against him for misconduct. As a servant, archaka is subject to the discipline and control of the trustee. The ratio therein was applied and upheld by this Court and it was held that under Section 56 of the Madras c Act archaka is the holder of an office attached to a religious institution and he receives emoluments and perks according to the procedure therein. This Court had further held that the act of his appointment is essentially a secular act. He owes his appointment to a secular authority. Any lay founder of a temple may appoint an archaka. The Shebait or Manager of temple exercises essentially a secular function in choosing and appointing the archaka. Continuance of an archaka by succession to the office from generation to generation does not make any difference to the principle of appointment. No such hereditary archaka can claim any right to the office. Though after appointment the archaka performs worship, it is no ground to hold that the appointment is either religious practice or a matter of religion. It would thus be clear that though archaka is normally a well-versed and accomplished person in the Agamas and rituals necessary to be ··· performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power ofa trustee or an appropriate authority prescribed in the regulations or rules or the Act. He owes his existence to an order of appointment - be it in writing or otherwise. He is subject to fhe discipline on a par with other members of the establishment. Though after appointment, as an integral part ofthe daily rituals, he performs worship in accordance with theAgama Shastras, it is no ground to hold that his appointment is either a religious practice or a matter of religion. It is not an essential part ofreligion or matterofreligion or religious practice. Therefore, abolition of the hereditat)' right to appointment under Section 34 is not violative of either Article 2S( l) or Article 26(b) of the Constitution. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 143 ORTH. & ORS. [ARUN MISHRA, J.]

120. It is true that the position of the office of Pedda Jeengar or A Chinna Jeengar as a religious head in the context of mathadhipathi ofRamanuja sect was upheld by the Privy Council, yet as regards his right in the Lord Venkatarainana temple, he performs the office as a nominee and, therefore; he als°o owes his existence to the nomination which is antithesis to hereditary succession. Every B Mirasidar or. Gamekar equally cannot claim hereditary right to continue to perform the duties from generation to generation. They ·all are servants or members of the establishment !fable to disciplinary jurisdiction. Consequently, they stand along with the · priest (archaka) of the temple of Sri Balaji. It is tme that hereditary rights of archaka or other officecholders are in vogue in most of the State Acts and no attempt therein appears to have been made to abolish them, yet their inaction or omission to amend the law is no ground to hofd that the legislature lacks the- power to do so or that they are in violation of the Constitution. In fact, it is not the submission ofShri Parasaran that the legislature lacked competence to enact Sections 34 and 144 of the Act. Therefore, the abolitiOn of their rights do not violate either Article 25(1) or Article 26(b) of the Constitution.

124. A conjoint reading thereof preserves the existing customs, performances, religious worships, ceremonies and poojas according to Sampradayams and Agamas followed in such. institutions. E Section 142 issues an injunction against an officer from interfering with such -observances. Yet it would not, by operation thereof, amount to revival of what has been expressly abolished under Section 34( I)(b) of the Act. Abolition of hereditary principle on · the basis of custom or usage to a holder of an office for continuance F· in that office is one facet, and performance of ceremonies, practices, customs of usages is another. Both cannot be mingled. - in the same water. Both are distinct and separate from each other; It would,· therefore, be incongmous to accept the contention of . petitioners that the rightto continuance in office on the basis of custom and usage independently survives. The further contention G is that interference with matters based on custom or usage.relating to ''.religious institution" as defined in Section 2(23) amouilts to interference with the freedom ofconscience and free practice of . religion. Therefore, it is violative of Article 25( 1) and is untenable H

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A in Jaw. As held earlier, being secular actions they are not integral parts of the religion or religious matters." This Court held that with the abolition of the hereditary right, the right to a share in collections, as per custom also stands abolished. Prescription of the qualifications for appointment under the Andhra B Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 was held to be valid and legal and not arbitrary, unjust and unfair. The provision of transfer of Archaka (Priest) from one temple to another was also upheld and not declared arbitrary or ultra vires or unjust. c 111. Shri V.K. Biju, learned counsel has relied upon Commissioner of Police & Ors. v. ,4.charya Jagadishwarananda Avadhuta & Ant: {2004) 12 sec 770 in which it was held : "9. .. .. What is meant by 'an essential part or practices of a religion' is now the matterof elucidation. Essential part ofreligion 0 means the core beliefs upon which a religion is founded. Essential practice means those practices means those that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the super structure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is-to find out whether the nature of religion will be hanged without that part or practice. If taking away that part or practice could result in fundamental change in character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. No body can that that essential part or practice of one's religion has changed from a particular date or by an event, Such alterable parts or practices are not the "core" of religion where the beliefs is based and religion is founded upon. It G could be treated as meme embellishments to non-essential part or practices"

112. Reliance was also placed on Sardar Syedna Taher Saiffadin Saheb v. State of Bombay ( 1962) SCR Supp 2 at 496 on observation that the protection of Articles 25 and 26 is not limited to the matters of doctrine, and extends to acts done in pursuance of religion and therefore

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 145 - ORTH. & ORS. [ARUN MISHRA, J.]

contained a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of religion. There is no dispute with respect to the aforesaid proposition b[1t the said guarantee does not extend to appointment of Vicars/priests, deacons etc. Reliance was also placed on S.P.Mittal v. Union of India ( 1983) ·I SCC 51 thus: "12. It is readily seen that the several provisions of the Constitution B where the expressions "religion" and "religious denomination" are used are either those which are concerned with equality and equal opportunity or those which are concerned with freedom of religion. Article 15(1 ), Article_ 16(2), Article 23(2), Article 29(2) are the·. s~_veral equality and equal opportunity clauses of the Constitution · which bar discrimination on the ground ofreiigion, and-they place C religion in equation-with race, caste, sex, place of birth, residence and language for the purposes of the various aspects of equality dealt with by them. Article 30 recognises the existence of minority groups based on religion along with minority groups based on language. Articles 25 to 28 deal with the Right to Freedom of D Religion which, as we said earlier is traceable to the idea of "Liberty of thought, expression, belief. faith and worship" in the Preamble to the Constitution. Article 25 guarantees freedom of conscience and the right freely to profess, practise and propagate religion, but saves laws regulating or restricting any economic; financial, political or other secular activity which may be associated E with religious practice. Rel!ding Article 25 in the background of the proclamation regarding Liberty in the Preamble to the · Constitution, we may safely conclude that the Constitution views religion, as comprising thought, expression, belief, faith or worship, as involving the conscience and as something which may be F: professed, practised and propagated and which is any man's attribute in the same manner as race, sex, language, residence etc. We also see that economic, financial, political or other secular activity may be associated with religious practice though such activity is not covered by the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion. G So, the Constitution considers religion as a matter of thought, expression, belief, Jaith aµd worship, a matter involving the conscience and a matter which may be professed, practised and propagated by anyone and which may even have some secular _ activity associated with it. We have already said that any freedom · H

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A or right involving the conscience must naturally receive a wide interpretation and the expressions "religion" and "religious denomination' must, therefore, be interpreted in no narrow, stifling sense but in a liberal, expansive way." There is no dispute with the aforesaid proposition bqt the decision B has no application.

113. Reliance has been placed on N. Adithayan v. Travancore Devaswom Board &Ors. (2002) 8 SCC I 06 thus: "7. This Court in Commr., HRE v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt! (known as Shirur Mutt case) c observed that Article 25 secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. It was also observed that what is protected is the propagation of belief, no matter whether the propagation takes place in a church or monastery or in a temple or parlour meeting. While elaborating the meaning of the words, "its own affairs in matters ofreligion" inArticle26(b) it has been observed that i!} contrast to secular matters relating to administration of its property the religious denomination ororganimtion enjoys complete autonomy in deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. In Venkataramana Devaru v. State of Mysore2 it has been held that though Article 25(1) deals with rights of individuals, Article 25(2) is wider in its contents and has reference to rights of communities and controls both Articles 25( I) and 26(b) of the Constitution, though the rights recognized by Article 25(2)(b) must necessarily be subject to some limitations or regulations and one such would be inherent in the process of harmonizing the right conferred by Article 25(2)(b) with that protected by Article 26(b).

8. In Tilkayat Shri Govindlalji Maharaj v. State ofRajasthan dealing with the nature and extent of protection ensured under Articles 25( I) and 26(b), the distinction between a practice which is H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 147 ORTH. & ORS. [ARUN MISHRA, J.)

religious and one which is purely secular, it has been observed as follows: (SCR pp. 621-23) "In this connection, it cannot be ignored that what is protected under Atticles 25(1) and 26(b) respectively are the religious ) practices and the right to manage affairs in matters of religion. If 1 the practice in question is purely secular or the. affair which is controlled by the statute is essentially and absolutely secular in _, character, it cannot be urged that Article 25(!) or Article 26(b) has been contravened. The protection is given to the practice of religion and to the denomination's right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalfof an individual citizen thatthe impugned statute contravenes c his fundamental right to practise religion or a claim is made on behalfofthe denomination that the fundamental right guaranteed to it to manage its ciwn affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management D is alleged to have been contravened are. affairs· in matters of a '.religion. If the practice is religious practice or the affairs are the affairs in matters of religion, then, of course, the rights guaranteed by Article 25( l) and Article 26(b) cannot be contravened. It is tme that the decision of the question as to whether a E certain practice is a religious practice or not, as well as the question ' . as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, . under the provisions of aricient Smritis, all human actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament . and not a contract. Thotlgh the task of disengaging the secular from the religious may not be easy, it must nevertheless be attempted in dealing with the claims for protection under Articles 25( 1) and 26(b). Ifthe practice which is protected under the former is a religious practice, and ifthe right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in - -Y~..._~,

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A that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under Articles 25(1) and 26(b), Latham, C.J. 's observation in Adelaide Co. ofJehovah 's Witnesses Incorporated v. Commonwealth that 'what is religion to one is superstition to another', on which Mr Pathak relies, is of no relevance. If an B obviously secular matter is claimed to be a matter of religion, or if an obviously.secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim because the protection guaranteed by Article 25( I) and Article 26(b) cannot be extended to secular practices and affairs in regard to c denominational matters which are not matters of religion, and so, a claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of D Article 25(1) or Article 26(b). This aspect of the matter must be borne in mind in dealing with the true scope and effect of Article 25( I) and Article 26(b )."

114. In Adi Saiva Sivachariyargal Nata Sangdm & Ors. v. Government of Tamil Nadu & Anr. (2016) 2 SCC 725 the question of E appointment of Archakas came up for consideration before this Court. This Court held that Archakas can be appointed in terms of Agama for the temples but such Agamas have to qualify the test ofArticle 14 which · should not be contrary to the constitutional mandate. This Court has laid down thus: F "43.That the freedom ofreligion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also would hardly require reiteration. Right ofbeliefand practice is guaranteed by Article 25 subject t6 public order, morality and health and other provisions of Part III of the Constitution. G Clause (2) is an exception and makes the right guaranteed by clause (l) subject to any existing law or to such law as may be enacted to, inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu religious institutions of a public ~haracter to all classes and sections of Hindus. Article .26(b) on the other hand guarantees to every religious denomination H

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or section full freedom to manage its own affairs insofar as matters of religion are concerned, subject, once again, to public order, morality and health and as held by this Court subject to such laws as may be made under Article 25(2)(b). The rights guaranteed by Articles 25 and 26, therefore, are circumscribed and are to be enjoyed within constitutionally permissible parameters. Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the constitutional court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms 0 guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity. Without such a determination there can- be no effective adjudication whether the claimed right . is in conformity with public order, morality and health and in accord · with the indisputable and unquestionable notions of social welfare and reforms. A just balance can always be made by holding that E the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exerCise thereof must always be restricted and restrained.

49. The difficulty lies not in understanding or restating the F . constitutional values. There is not an iota of doubt on what they - are. But to determine whether a claim of State action in furtherance thereof overrides the constitutional guarantees under Articles 25 and 26 may often involve what has already been referred to as a delicate and unenviable task ofidentifying essential religious beliefs , · and practices, sans which the religion itself does not survive. It is G in the performance of this task that the absence of any exclusive ecclesiastical jurisdiction of this Court, if not,9ther shortcomings and adequacies, that can be felt. Moreover, there is_some amount of uncertainty with regard to the prescription contained in the Agamas. Coupled with the above is the lack of easy availability H

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A of established works and the declining numbers of acknowledged ( ' and undisputed scholars on the.subject. In such a situation one is reminded of the observations, if not the caution note struck by Mukherjea, J. in Shirur Mutt6 with regard to complete autonomy of a denomination to decide as to what constitutes an essential religious practice, a view that has also been subsequently echoed B by this Court though as a "minority view". But we must hasten to clarify that no such view of the Court can be understood to be an indication of any bar to judicial determination of the issue as and when it arises. Any contrary opinion would give rise to large- scale conflicts of claims and usages as to what is an essential c religious practice with no acceptable or adequate forum for resolution. That apart the "complete autonomy:: contemplated in Shimr Mutt (AIR 1954 SC 282) and the meaning of "outside authority" must not be torn out of the context in which the views, already extracted, came to be recorded (p. I 028). Tile exclusion- of all "outside authorities" from deciding what is an essential D religious practice must be viewed in the context of the limited role of the State in matters relating to religious freedom as envisaged . by Articles 25 and 26 itself and not of the courts as the arbiter of constitutional rights and principles. 5.0. What then is the eventual result? The answer defies a E straightforward resolution and it is the considered view of the Court that the validity or otherwise of the impugned G.O. would depend on the facts of each case of appointment. What is found and held to be prescribed by one particular or a set of Agamas for a solitary or a group of temples, as may be, would be determinative of the issue. In this regard it will be necessary to re-emphasise what has 'been already stated with regard to the purport and effect of Article 16(5) of the Constitution, namely, that the exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 so Jong as such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23-5-2006 by its blanket fiat to the effect · that, "Any person who is a Hindu and possessing the requisite qualification and training can be appointed as a Archaka in Hindu

K. S.. VARGHESE & ORS. v; ST. PETER'S & PAUL'S SYRIAN 151 ORTH. & ORS. [ARUN MISHRA, J.]

temples" has the potential of falling foul of the dictum laid down -A in Seshammal (1972) 2 SC.C 11. A determination of the contours of a claimed custom or usage would be imperative and it is in that light that the validity of the impugned G.O. dated 23-5-2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised. _The necessity of seeking specific judicial verdicts in the future is inevitable and unavoidable; the contours of the present case and the issues arising being what has been discussed."

115. As a matter of fact from the discussion made in the 1995 judgment and theivarious documents referred to therein, it is apparent that the Patriarch of Antioch has not exercised the power earlier with respect to the appointment of priests etc. Be that as it may. He has re- established the Throne of Catholicos in 1912 under a Kalpana in which he _has dedicated the power tci the 1934 Constitution which has been accepted by the iS8uance ofKalpana and by establishing Catholicos-III in 1964 by consecrating Malankara Metropolitan. It is apparent that the D 1934 Constitution has to hold the field and it is not the spiritual right - within the spiritual domain even if the Patriarch ofAntioch is supreme to appoint Vicars/priests. - - - -

116. The provisions in 1934 Constitution are binding. Seetion I thereof provides that the Primate of the Orthodox Syrian Church is the E Patriarch of Antioch. However section 2 takes care that the Malankara a Church which is division of the Orthodox Syrian Church, was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the Eas!, and the "Primate" of the Orthodox Syrian Church of the East is the "Catholicos". Sections I and 2 are extracted hereunder: F "l. The Malankara Church is a division of the Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is the i>atriarch of Antioch.

2. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the 0 Primate of the Orthodox Syrian Church of the East is the - Catholicos."

117. The appointment of Vicar is dealt with in section 38 of the Constitution. There shall be a Vicar for every Parish Church; other Priests, if any, shall be assistants of the Vicar. The Vicar shall be the joint ste_ward H

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A with the Kaisthani of the assets of the Parish. The Diocesan Metropolitan has the authority to appoint, remove or transfer the Vicar and other priests. Sections 38 to 40 ofthe 1934 Constitution are extracted hereunder:

38. There shall be a Vicar for every Parish Church; other Priests, if any shall be assistants of the Vicar.

B 39. The Vicar shall be the joint steward with the Kaisthani of the assets of the Parish. The monies of the Parish shall be deposited in joint names of the Vicar and the Kaisthani or in the name of any one of them with the consent of each other. But an amount as fixed by the Managing Committee can be retained with the c Kaisthani.

40. The Diocesan Metropolitan has authority to appoint, remove or transfer the Vicar and other priests. When the Vicar is so removed or transferred, his stewardship will also terminate.

118. It is apparent from section 40 that the Diocesan Metropolitan D has the authority to appoint, remove or transfer the Vicar and other priests. Section 43 as amended in 2011 contains the provision that the Baptism Register, the Marriage Register, the Burial Register, the Parish Assembly Register and Confession Register shall be maintained by the Vicar and kept in his custody and the Diocesan Metropolitan when on a E visit to the church, these shall be got signed by him. The Vicar shall also keep the fil~s of Kalpana's. Section 43 is extracted hereunder: "43. In addition to the Baptism Register, the Marriage Register, the Burial Register, the Parish Assembly Register and Confession Register, there shall be a Parish Register containing the names and other particulars of all men and women of the Parish entered F regularly under the responsibility of the Vicar and kept in his custody. When the Diocesan Metropolitan comes to the Church on his Parish visit these shall be got signed by him. The Vicar shall keep also the files of Kalpana's (orders) and other documents received from higher authorities of the Church." - G

119. There are several managerial duties which a Vicar has to perform under section 9, of reporting to the respective Diocesan Metropolitan about leaving and joining of a Parishioner of a church. Section 10 deals with payment of subscription and name to be removed from the Parish Assembly Register. In the case of default, Vicar has to write to the Metropolitan of the Diocese as to what shall be done

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thereafter with that member. Other such managerial rights are given in sections 11 to 13. Vicar has to convene the meeting twice in a year of the Parish Assembly. In case Vicar fails to convene it, a request can be made to the Diocesan Metropolitan to convene it. The Vicar shall be the President and other Parish Priests, if any, shall be Vice-Presidents of the Assembly as pointed out in section 15. Under section 18 it is the duty B -- of the Vicar to send or cause to be sent by the Secretary the decisions of the Parish Assembly to the Diocesan Metropolitan. An appeal lies to the Metropolitan against the decision of the Parish Assembly. Vicar has to Inform about the appeal. The Vicar has to be the President of Parish Managing Committee as per section 26. As per.section 27, the Vicar shall report to the Diocesan Metropolitan about the election of the C Kaisthani, the Secretary and other members of the Parish Managing Committee. The Vicar or on his direction the Secretary, shall convene the meeting of the Parish Managing Committee as provided in section

28. The Vicar has to convene the meeting of the Parish Managing Committee at the request of Kaisthani or one-third of the members of . D ·the Parish Managing Committee as provided in section 29; Itis his duty to send summarized statement of accounts passed at the Parish Assembly to the Diocesan Metropolitan as per section 36 and to maintain a register of movable and immovable properties of the church as provided in section

37. A Vicar has to perform certain religious duties as well as managerial duties. The Diocesan Metropofitan has to· control the Vicar as per the E scheme of the Constitution. The Diocesan Metropolitan has been given the authority to appoint a.Vicar for a wholesome purpose in the 1934 Constitution as the Patriarch ofAntioch abroad cannot and is not supposed to exercise the deep and pervasive control over the management of churches such as the appointment of Vicar which is a secular matter and not a spiritual one. Section 94 of the 1934 Constitution deals with the F Malankara Metropolitan. Section 94 confers prime jurisdiction regarding the 'temporal ecclesiastical and spiritual administration is with the Malankara Metropolitan. It is provided that in case there is no Diocesan Metropolitan in any Diocese, such Diocese shall be under the direct administration of the Malankara Metropolitan. As per section 98, it is G open to the Catholicos to hold the office of the Malankara Metropolitan also. Sections 94 and 98 ar.e extracted bereunder: "94. The Prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested H

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A with the Malankara Metropolitan subject to provisions of this constitution.

98. The Catholicos may also hold the office of the Malankara Metropolitan. As.,fhe Malankara Metropolitan, he shall be the President of the Association and the Managing Committee and B the Metropolitan Trustee of the Community properties. The MalankaraM_etropolitan may officially visit all the Parish Churches of the Malankara Church and if found necessary, he may convene the Parish Assembly and the Diocesan Assembly after giving information to the Diocesan Metropolitan. When the Catholicos and the Malankara Metropolitan happens to be two individuals c regulations needed shall be made about their respective rights and powers." With respect to Catholicos provisions ·are contained in sections 99 and 100 which are extracted hereunder: D "99. The throne ofCatholicos was re-established in AD 1912 in the Orthodox Syrian Church of the East, which includes the Malankara Church, and this institution has been functioning ever since in the Orthodox Syrian Church of the East.

100Copy pinpoint100. The powers of the Catholicos include the consecration of E Prelates, presiding over the Episcopal Synod, declaring its decisions and implementing them, conducting administration as representative of the Synod and consecrating the Holy Mooron."

120. The Throne of Catholicos was re-established in 1912. He has the power of consecratioQ of Prelates, presiding over the Episcopal F Synod, declaring its decisions and implementing them, conducting administration as representative of the Synod and consecrating the Holy Moron. The Patriarch is dealt with in section I0 I which is extracted hereunder: "I 0 I . ihe Malankara Church shall recognize the Patriarch, canonically consecrated with the cooperation of the Catholicos." G

121. The prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested in the Malankara Metropolitan and other authorities. It is intended for proper administration of the church and does not run against the H

K. S. VARGHESE & ORS. v. ST. PETER'S- & PAUL'S SYRIAN 155 ORTH. & ORS. [ARUN MISHRA, J.]

concept of the spiritual authority of the Patriarch of Antioch but at the A same time, Malankara Metropolitan enjoys all the temporal, ecclesiastical and spiritual administration powers. Thus the power of the Patriarch of Antioch has reached a vanishing point and he cannot exercise those powers which are lying with various authorities under the Constitution as per the historical background noted in the 1995 judgment since time"" B immemorial. It passes comprehension how the Patriarch of Antioch can manage the day to day affairs in India sitting abroad. It is not contemplated nor he is supposed to do so in view of his Kalpana's and historical facts also indicate otherwise that he had notbeen managing the churches and it is better that the churches are left for the purpose of day to day administration, The powers of appointment of Vicar and priests etc. to the local Malankara church, have rightly been given to the concerned authorities in the 1934 Constitution on the basis of prevalent practices.

122. The submission as to the violation of faith and vfolation ofa right under Article 25 is to be rejected. No doubt about it that a religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets ofreligion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature as laid "down. in the Commissioner, Hindu Religious Endowment.~ v. Sri Lakshmindra E Thirtha Swamiar of Sri Shirur Mutt 1954 SCR} 005. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of· any right ofArticles25 or 26 of the Constitution oflndia. Neither any of F the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Articles 25 and 26 of the Constitution oflndia. The 1934 Constitution cannot be said to be in violation ofArticles 25 and 26 of the Constitution of India. It was suggested that th~ faith . involved in th~ present case refers to apostolic succession from-Jesus Christ, viz., the blessings and grace of Christ descends through an apostle G i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that are in-between like Catholicos, Malankara Metropolitan, and Diocesan Metropolitan etc. It is_ not H

156 SUPREME COURT REPORTS [2017) 9 S.C.R.

A necessary for the· Pope and the Patriarch to appoint Vicar because management of a Church is not a religious ritual.

123. The spiritual powers vest in other functionaries also and obviously spiritual power cannot be the monopoly of any· particular individual howsoever high he· may be. Others are in hierarchy viz. B Diocesan Metropolitan has power to appoint Vicar, Priests etc. as per Section 40. In the matter of ordination of Deacons and Priests by Diocesan Metropolitan or Malankara Matropolitan, a candidate for ordination should have a degree qualification. Power to appoint high Priests (Prelates) is by Catholicos in co-operation with Synod. Bishop and Metropolitan can be consecrated by the Catholicos in conjunction c with Synod, Bishop or Metropolitan has to be elected by the Association after approval by Synod to be consecrated by Catholicos. Person for ordination has to study theology, and on being found fit can be ordained. It is not that only blessing of a spiritual person makes him qualified to perform duties of such posts. Appointment of Vicar and Priests is a D secular matter and there can be legislation also in this regard by sovereigns and can be dealt with by secular authorities also. There is no question of blessings of Jesus Christ not flowing to a person who confesses before a Vicar not appointed by the Patriarch. The spiritual competence of Vicar depends on his own attainments. The dispute appears to be for fulfillment of desire to manage Church for the reasons which are not E related to spiritualism. Spiritual person is supposed to leave all such desires as laid down in Bhagavad Gita by Lord Krishna thus: "Chapter 4, Verse 39:

F 'lktldf;l iPfc\~(Kq(: '6~: I ~ltd lilftdl t:IU:n~lo1tlil01iaJkt 113911

shraddhavan labhatejiianam tat-paral:i sanyaum.drtyab Jiianam Uibdhviiparam shantim achirl!l)adhigachchhati G

[The person, whose highest goal is spiritual wisdom, has abiding faith and controls the senses, attains wisdom quickly and experiences the Supreme Peace]"

K. S. VARGHESE & ORS. v. ST. PETER'S &PAUL'S SYRIAN. 157 ORTH. & ORS, [ARUNMISHRA, J.] . . . • • ! ' :

124. Shri Mohan Parasaran, learned. senior counsel, urged that ·A a granting the reliefs as sought for in the plaint would result in sii~ation favoring one party over another and bringing religious imbal:mce als.oJn this regard he relied on observations of European Court of Human Rights (ECtHR) in the case of Supreme Holy Council oftheMuslim Community v. Bulgaria, wherein. ECtHR while considering a claim by one of two .B rival groups claiming leadership ofMuslim community in Bulgaria held that ·there had been violation as the state actions had the effect of compelling the divided community to have a single leadership against the · will of one of the two factions. It stated that the role of the authorities in a situation of contl ict between or within religious group was not to remove the cause of tension by elimination of pluralism, but to ensure that the 'C competing groups tolerated each other. State measures favoring 'a particular leader of a divided religious community would constitute infringement of freedom ofreligion." · " ' ·: . · ,. " '

125. The question is whether on the division of community, there is devision of control and management and property of church. D Supremacy issue of Patriarch ofCatholicos has been raised unnecessarily. It is a Diocesan Metropolitan as per Section 40 of the Constitution who has the power to appoint Vicar, priests etc. and there is other hierarchy · provided. Even Catholicos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. Shri C.V. Singh, learned counsel, is right in contending tnat no office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However; the Patriarch occupies the higher post in the hierarchy i.e. he has an .Q.onour or precedence if he is present that is in a sense he is the first among equals - "primus inter parties". The Church functioning is based on , division of responsibilities a~ various levels. The division of power is for the purpose of management and does not militate against the basic character of the church being Episcopal in character. In Halsbury's Laws of England, vol. 14, para 562, right of G Parishioners has been described thus : "to enter the chµrch, remain there for purpose of participating in divine worship to have a seat and to obey the reasonable directions of the church to ordain." .H

158 SUPREME COURT REPORTS [2017] 9 S.C.R.

A The highest authority ofMalankara church ofthe east is Catholicos being its primate as recognised in Section 2 of 1934 Constitution. What is sought for and intended is wholly uncalled for, wholly unnecessary and unpalatable. Community may divide but churches and places of worship cannot be divided. They have to be respected for the sake of B religion and to exercise their coveted rights under Articles 25 and 26 and for preservation of such rights. We are not oblivious of the fact that still there may not be truce and peace in the church which cannot be helped. A person interested in spirituality may attain it by karma, dedication to deity, concentration and controlling senses as stated in Gita by Lord Krishna; c "Chapter 7, Verse 4:

~~:li~~~d'il I 31$!?11R$d\4~1ita:911yt1d<EillII411 D

bhtimtrciipo 'nalo vayuh kham mano buddhtr eva cha ahanka.ra ifiyam m¥1.bhinnii. prakritir a$hfadhti

[Earth, water, fire, air, mind, iritellect and the ego - these are the E 8 divisions of My .separated matter (Prakriti) that is Prakriti comprises not only the material world of matter of energy but also the inner world of thoughts, emotions and the ego.]" "Chapter 3, Verse 29: F

pro.krimr gul)a-sammu{ihiih sajjante gul)a-karmasu G tiin alcrttsnfI-l'ido mandan /rritsna~vin na vichiilayet

[People who are influenced by the senses, remain attached to sense objects and the material aspects of the world. The wise should not disturb these ignorant people, whose knowledge is incomplete.] H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 159 ORTH. & ORS. [ARUN MISHRA, J.]

For persons who are professing the religion for temporal gains, no A one can show them spiritual way. They are free to have the'ir pursuit and excel in that too but not at the cost of the very deity and church or religious place itself. The 1934 Constitution cannot be said to be an instrumenot of injustice or vehicle of oppression. Thus the decision of American Express Bank Ltd. v. Calcutta Steel Co. ( 1993) 2 SCC 199 B is of no avail.

126. It was urged by Shri C.S. Vaidyanathan, learned senior counsel, that the Parishioners own the property of the Parish Church and the Cemetery and they cannot be deprived of that right by reason of the office holders of the Parish Churches by not subscribing to the 1934 Constitution. The attempt by Catholicos is to take away ancient churches and bar the Parishioners from entry to the churches and cemetery. The submission is not at all plausible. The properties would-always remain to be Malankara Church properties. Only Office holders have fo subscribe _to the 1934 Constitution as held by this Court. The Parishioners can take no church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the ceme~ery can be confiscated by anybody. It has to remain with Parishioners as per the customa1y rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in E Malankara Church.

127. It passes comprehension as to how irreconcilable differences in faith have been sought to be created in flimsy manner to and divide Church into the Patriarch and Catholicos factions whereas they are part of the Malankara Church, whereas the dominant faith is the common, ·F Malankara church is one, and Orthodox Syrian Church is the same. Only intention differs. Hence, law and order situation has arisen which cannot be scenario for,,;piritmil attainments with embodiment of tolerance and equality of all human beings and living creatures. The depth in sight beyond the sensual eye sight is required for spiritual gains. For the reasons a· best known to the parties, fight is going on regarding the management _ which is wholly uncalled for. If church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is the only way by which we can expect that peace will come to the Chu~. For the unrest and ugly H

160 SUPREME COURT REPORTS (2017] 9 S.C.R.

A situation no reason, good, bad or otherwise exist which can be legally recognized.

128. In our opinion, there is no force in the submission of Shri Vaidyanathan, learned senior counsel, that if services and ceremonies conducted by only those Vicars and priests who are appointed in B accordance with the 1934 Constitution, would be violative of the basic object of the Parish Church. As already discussed we find no force in the submission. Diocesan Metropolitan appoints Vicar under the 1934 Constitution. It does not impinge upon the object of the Parish churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan C as apparent from various decisions and provisions in the 1934 Constitution. This is the position prevailing since long. As already discussed, Vicars or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the D Parishioners. Deacons and Preist for ordination are required to undergo successfully, theological studies and principle has to certify as to their fitness. For ordination as Korooyo (Reader) successfully clearing of 3 years study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical E document.

129. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. Other provisions that we have discussed with respect to appointment detailed out in the 1934 Constitution. In the absence of anything having been provided in F Udampady, the 1934 Constitution would hold the field.

130. Faith is tried to be unnecessarily divided vis a vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an actionjustto gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under article 25 and 26 of constitution oflndia in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. Why there is such dispute is most unfortunate and is for inexplicable reasons. There is no good or

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 161 ORTH. & ORS. [ARUN MISHRA, J.)

genuine cause for it. As a matter of fact the 1995 judgment settled such disputes, between the parties. This court has tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. We are unable to accept and appreciate why for the Patriarch himself should appoint Vicar, Priest etc. The Diocesan Metropolitan as per the Constitution of 1934 appoints B· vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is rurining a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it C can be done only in that manner and not otherwise. This Court in 1-995 Judgment made it clear that the Patriarch has no such authority, he could not exercise any such spiritual power unilaterally as done in 1972 which became the cause of unrest in Church. The appointment of Vicar, Priest by the Patriarch or through delegate unilaterally was held to be not · D permissible in the decision of 1995 even if he has such powers. It appears he has no such power to interfere in the management of the church and now that question is agitated again and under the same guise ofsupremacy such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional ·provisions or authority of Patriarch. Thus there is no question of violation E of Parishnors rights and applicability of decisions in Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Basheshar Nath v. LT. Commissioner AIR 1959 SC 149 and Nar Singh Paul v. Union of India 2000 (3) sec 588. IN RE : REPUDIATION OF THE SPIRITUAL SUPREMACY F OF THE PATRIARCH BY THE CATHOLICOS:

131. It was submitted by Shri K. Parasaran, learned senior counsel appearing for the appellants, that as far back as 1889 in Seminary suit, it was established that the authority of the Patriarch had never extended to the government of temporalities of the Church. It was reiterated in G the Arthat suit in 1905. Therefore any reference made thereafter to the · power of the Patriarch being reduced to a "vanishing point'', is with · reference to his spiritual power. In O.S. No.4 of 1979, the relief prayed· was that the Church was autocephalous which means independent of Patriarchal authority and there are instances. where Cat_holicos have H

162 SUPREME COURT REPORTS (2017] 9 S.C.R.

A repudiated the supremacy of the Patriarch as discussed by this Court in the 1995 judgment.

"134. At this stage, what appears to have triggered the dispute again is the nomination of a delegate to Malankara Sabha by the Patriarch in the year 1972. This nomination implied the exercise B of active spiritual supremacy by the Patriarch over Malankara Church which was evidently not relished by the Catholicos and other members. Under a letter dated February 16, 1972 (Ex.A.76) the. Catholicos and nine Metropolitans including the members of the erstwhile Patriarch group requested the Patriarch not to send c the delegate. They pointed out that sending such delegate will lead to disturbance of peace and to dissensions among the Malankara Church. The Patriarch did not pay heed to this request. On the contrary, he wrote back to the Secretary to the Malankara Association (Ex.A.192 dated July 9, 1973) that he is not aware of any such Sabha or of the Malankara Association. His delegate arrived in Malankara and started ordaining priests and deacons. The Catholicos objected to this activity of the delegate by his letter Ex.A.79 dated August 7, 1973 addressed to the Patriarch. Nothing happened. On September 1, 1973, the Patriarch himself ordained the first defendant in 0.S.4of1979 (the main suit now before us) as Metropolitan of the Evangalistic Association of the East. Then started a series of correspondence between the Patriarch and the Catholicos each accusing the other of several ecclesiastical violations.

EXCOMMUNICATION OF CATHOLICOS BY PATRIARCH: F

135. On August 7, 1973 the Catholicos sent a telegram to Patriarch to the following effect:

"Local newspapers report your holinessintention to consecrate one of our priests as Bishop. We unequivocally object to such action if contemplated by your Holiness as uncanonical and as a clear violation of 1958 peace agreement. (Letter follows)."

In the confirmatory letter, the Catholicos stated that there was no necessity for the Patriarch to send a delegate to Malankara and added further:

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 163 ORTH. & ORS. [ARUN MISHRA, J.]

"The Catholicate of the East is an autocephalous which consecrates its own Bishops and its own Morone. This autocephaly is a fact quite independent of the name of our Throne. The autonomy exercised by the Catholicate over Malankara has been well established. It was for no other reason that your Holiness in May, 1964 expressed a desire to delimitthe geographicalj urisd!Ction of this heirarchy".(Emphasis added)

136. The Catholicos then referred to the re-definition of the geographical jurisdictions of both the Patriarch and the Catholicos prior to installation and to the installation of the new Catholicos by the Patriarch on May 22, 1964. He also referred to the activities of Mar Thimotheos, the delegate of Patriarch whom the Catholicos C described as a troublemaker. The Catholicos stated that the activities of the delegate would have constituted a sufficient ground, normally speaking, for him to projest against his actions with the Patriarch but that he has not taken such action only because he considers his link with Patriarchate as valuable. Finally, D he protested against any proposal to conserate Metropolitans for Ind'ia by Patriarch and stated that any such action would be treated as an uncanonical action.

137. After receiving the above letter of the Catholicos, the Patriarch communication a list of chages to the Catholicos on E January 30, 1974 (Es.A.80). This letter is in the nature of a show- cause notice calling upon the Catholicos to answer the charges levdled against him within one month. It is unnecessary to detail the charges herein. The main grievance of the Patriarch was the attempt of Catholicos to style himself as the head of an independent Church ofMalankara and repudiation of the Patriarchal authority. F . The letter also complained of the "most discourteous and impudent manner which is unbecoming from the Catholicos" in which the letter dated August 7, ·19.73 was addressed to him.

138. On March 9, 1974 the Catholicos replied to the Patriarch stating that the Patriarch has no jurisdiction to level any charges G against him or to ask for his explanation. He stated that the only authority to do so is the Malankara Episcopal Synod. He stated that the charges co.mmunicated by the Patriarch have been · forwarded to the said Synod for consideration and appropriate action and that the Synod has assumed jurisdiction in the matter. H

164 SUPREME COURT REPORTS [2Q l 7] 9 S.C.R.

A A similar letter was addressed by the Secretary of the Malankara Synod on March 5, J974 to the Patriarch. This letter also asked the Patriarch to prove his charges against Catholicos before the Malankara Synod. This exchange went on with the language and tone of each letter becoming more and more discourteous towards each other. Suffice it to mention that on July 5, 1974 the Malankara Synod met and not only justified the actions of the Catholicos but found the Patriarch guilty of several ecclesiastical violations. A copy of the proceedings was forwarded to the Patriarch."

132. It was pointed out that writ petitions were filed before the Kerala High Court in the years 2004 and 2008. A writ petition was filed C in the year 2008 by representatives of the Catholicate before the Kerala High Court to restrain the Patriarch from indulging in prohibited religious activities on the ground that it will violate the Foreigners Act and the Visa Manual. The said writ petition was dismissed. In view of repeated repudiation of the supremacy of the Patriarch, the followers of the D Patriarch have framed a new Constitution for themselves in 2002 and disassociated themselves from the Association. It has been urged that the framing of the 2002 Constitution is iri conformity with the 1995 judgment as observed by this Court with respect to Knanaya Church, and now they are functioning for the last 15 years under the Constitution of2002. E

133. It was further urged that even though the Patriarch's power may have been reduced to a vanishing point, the Patriarch may not be a mere 'glorified cipher'. In this regard the decision of this Court in Samsher Singh v. State of Punjab & Am: (1974) 2 SCC 831 with respect to the power of the President oflndia has been referred to. It F was also submitted that section 101 of the 1934 Constitution which provides that the Malankara Church shall recognize the Patriarch, canonically consecrated with the cooperation of Catholicos, cannot be interpreted to mean that Catholicos can dictate as to who can be appointed as the Patriarch. The Patriarch is appointed by the Universal Synod in G accordance with the applicable Canon and has to be recognized by the Catholicos if he is canonically consecrated. The cooperation of the Catholicos was sought presumably to avoid a situation similar to the time when the Sultan of Turkey withdrew the 'firman' recognizing Abdul Messiah as Patriarch and instead Abdullah II was recognized as the Patriarch. Therefore when there is a dispute as to the legitimacy of a H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 165 ORTH. & ORS. [ARUN MISHRA, J.]

person claiming to be the Patriarch, only, then Section I01 comes into A play and the canonically consecrated Patriarch with cooperation of catholicos can be recognized as legitimate. There is no pleading in the present suit as to 'legitimacy of the Patriarch currently holding the office. As per information available from 14.9.1980 till 21.3.2014, Ignatius Zakka II was the Roman Patriarch of Antioch. He was the same Patriarch B who was in office during the 1995 judgment against whom the Catholicos group had filed a wrifpetition in the Kerala High Court. In the absence of pleadings they cannot refuse to recognize him and take shelter of Section 101 of 1934 Constitution. The expression 'cooperation' appearing in section 101 of the 1934 Constitution must be interpreted to mean only a formal acknowledgement on the part of the Catholicos in recognizing C the Patriarch canonically consecrated. Further it was submitted that this Court has laid down that in Para 155(3) of the 1995 judgment that the Patriarch could exercise the power in consultation with the Catholicos. Consultation does not mean concurrence as held in L & T McNeil Ltd. v. Govt. of T.N. (2001) 3 SCC 170 and State of Gujarat & Anr. v. D Justice R.A. Mehta (Retired) & Ors. (2013) 3 SCC I. Only intimation would be required in this case: There is nothing to prevent the Patriarch from exercising the powers even if the Catholicos disagree, as the Patriarch of Antioch is spiritually superior. No consent or permission is required of the Catholicos. The observations made at Para 158 of the 1995 judgment of this Court with respect to the Constitution of a E representative body have been relied upon. The same is extracted hereunder: "158 ... .It is thus clear that the MalankaraAssociation was formed not only to manage the temporal affairs of the Church but also its religious affairs and that the appointment of Metropolitans was subject to acceptance by the people ofMalankara. The emphasis is upon the people of Malankara and not upon the individual Churches/ Parish Churches .... It thus appears that while the membership of the MalankaraAssociation is limited to one priest and two laymen elected by each Parish Assembly, the membership of the Malankara Church as such consists of all men and women, who accept the tenets and the faith .... if the Malankara Association is to be vested with the control over the religious and communal affairs of the entire Malankara Christian community, it must truly and genuinely reflect the will of the entire spectrum of H

166 SUPREME COURT REPORTS [2017] 9 S.C.R.

A the community. A powerful body having control over both reasonable and fair manner.... It may, therefore, be necessary to substitute clause (68) [now clause (71 )] and other relevant clauses of the Constitution to achieve the aforesaid objective which would also affirm the democratic principle, which appears to be one of the basic tenets of this Church ... " B

134. It was also urged by Shri K Parasaran, learned senior counsel that the interpretation of the above observations is not sustainable. The Malankara Association though was entrusted with the management of religious and communal affairs, the exercise of spiritual function was not entrusted to the Catholicos to the exclusion of the Patriarch. This c Court held in the 1995 judgment that the even if he has power to do so Patriarch cannot exercise the power unilaterally. The observation made by this Court with reference to the democratic principle has to be understood in the context of representing the entire spectrum of the community relating to governance and administration. Religion and faith D are not governed by democracy. Subsequent orders were passed. They were related to administration and management and did not touch upon the exercise of spiritual functions. 13 5. None of the aforesaid submissions are acceptable for various reasons. It is apparent from MM B Catholicos v. T.Paulo Avira (supra) E and the 1958 judgment rendered by this Court that similar issues with respect to repudiation of powers of the Patriarch by the Catholicos group were raised. As apparent from the aforesaid extracted texts.

136. In 1879, Seminary suit OS No.439/1054 was filed. While the plaintiff asserted the supremacy of Patriarch in consecrating and F appointing Metropolitans from time to time to govern and rule over the Malankara Edavagai, sending Moron (the sanctified oil) for baptismal purposes, receiving the Ressissa from the community to maintain his dignity and in generally controlling the ecclesiastical and temporal affairs of the Edavagai, the defendant denied such Patriarchal supremacy. Suit was decided by the judgment ofTravancore Royal Court of Final Appeal G in 1889. The conclusions inter alia arrived at were that the ecclesiastical supremacy of the Patriarch of Antioch over Malankara Syrian Christian Church in Travancore had all along been recognized and acknowledged by Jacobite Syrian Christian community and their Metropolitans. However, the authority of Patriarch never extended to the government of H · temporalities of the church. It was also held that the Metropolitan of the

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 167 ORTR & ORS. [ARUN MISHRA, J.]

Jacobite Syrian Church in Travancore shall be a native of Malabar and accepted by the people as their Metropolitan. 13 7. Arthat suit was also filed in 1877. The Patriarch_ of Antioch did not relish he judgment of the Royal Court ofTravancore. The judgment in Arthat suit was passed on 15 .8.1905. The Cochin Court of Appeal reaffirmed the findings of the Travancore Royal Court in which it was declared by the Cochin Court of Appeal "while the Patriarch of Antioch is the spiritual head ofMalankara Syrian Jacobite Christian Church, the church and their properties are subject to the spiritual, temporal and ecclesiastical jurisdiction of the Malankara Metropolitan. In other words the Patriarch's claim of control over the temporal affairs of the Malankara . Church was rejected once again." The revival of the Catholicate !ook c ' place in 1912. It was by two Kalpana i.e. Ex. Al3 and Ex. Al4. On 16.4.1913, Mar Ivanios who was consecrated as the Catholicos died. The post ofCatholicos remained vacant from 1913 till 1925. In 1925 one Mar Geevarghese Philixinos ofVakathanam was in$talled as the second .Catholicos. On ·17.12.1928, Geevarghese Gregorius was installed as the third Catholicos. Second arid third Catholicos were appointed without reference to the Patriarch. Vattipanam suit was filed as the dispute arose with respect to the interest on 3000 Star Pagodas. Suit was filed in 1913, which was converted into a representative suit. Defendants I to 3 represented the Catholicos group. Defendants 4 to 6 represented the Patriarch group. The District Judge held that the first defendant belonging to Catholicos is a validly appointed Malankara Metropolitan, having been accepted by the community at the installation meeting held in I084. It was also held that the withdrawal of recognition by the Sultan of Turkey did not deprive Abdul Messiah of his purely spiritual functions and powers and that the ex-communication of the first defendant by Abdulla II was invalid. Patriarch group filed' an appeal before the High Court of Travancore. Full Bench of the High Court allowed the appeal and reversed the judgment and decree of the trial court in 1923. However defendants 1 to 3 applied for review ofjudgmentand the appeal was re- heard by the Full Bench that was decided on 4. 7.1928 and the decision of the District Judge was upheld and the decree was affirmed. It was held that Malankara Metropolitan was validly appointed. Thus the Patriarch faction had lost in the aforesaid suit also. Thereafter, the 1934 Constitution had been passed in M.D. Seminary meeting dated 26.12.1934 that was held after issuing notices to all churches. H

168 SUPREME COURT REPORTS (2017] 9 S.C.R.

A The Metropolitans of the Patriarchal faction issued notice summoning a meeting of the church representatives for 22.8.1935 to elect the Malankara Metropolitan. The notice stated that none of the persons belonging to Catholicos faction should be elected. Meeting was held on 22.8.1935 and Mar Poulose Athanasius was elected as the B Malankara Metropolitan, and the trustees appointed on 26.12.1934 in M.D. Seminary Meeting were removed. C.M.A. No.74 of 1107 was dismissed for non-prosecution. Thereafter the Patriarch group instituted Samudayam suit on 10.3.1938 which this court decided finally on 12.8.1958.

138. Issue No.14 was framed in Samudayam Suit as to defiance of the authority of the Patriarch. The submission that the defendants by placing reliance on the authority ofthe·Catholicos had become heretics or had voluntarily gone out of the church was not accepted as that had been concluded by the decision ofVattipanam suit. The plea was barred by the principle of res judicata. It was held that defendants 1 to 3 had not become heretics or had not set up a new church by accepting the establishment of the Catholicate by Abdul Messiah with power to the Catholicate for the time being to ordain Metropolitans and to consecrate Moron and thereby reducing the power of the Patriarch over the Malankara church to a vanishing point. It was also held that defendants 4 to 6 of patriarch faction had not been validly elected in the aforesaid meeting convened in 1935. This Court held in the Samudayam suit that issues 14, 15, 16 and 19 were directly and substantially in issue in the interpleader suit (OS No.94/ l 088) i.e. Vattipanam suit, and thus, these questions could not have been re-agitated in the Samudayam suit. With respect to the supremacy of the patriarch it was held that the averment f was based on the new Constitution. It could not be said that the defendant had incurred any disqualification. Assertion of the power of the Catholicos would not mean repudiation of power of patriarch. In the instant case also we find that due to Patriarch's action in the year 1972 of appointment of Vicar and priests etc. unilaterally, created unrest in the church. It again happened in 2002 onwards. It is in that context writ petitions came G to be filed when Patriarch faction was not following the decision of this Court of 1995 and did not participate in the election and in 2002 created a new Constitution of2002 and a parallel administration. The aforesaid writ petitions came to be filed in the High Court. The patriarch and his faction ought to have accepted the judgment of this Court. At the same H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 169 ORTH. & ORS. [ARUN MISHRA, J.]

time Catholicos ought to have respected the authority of the Patriarch. A However ttie level at which the differences reached, in spite of the judgment of 1995 which was binding on all concerned, the action of the Catholicos faction cannot be said to be wholly illegal as an effort was made by Patriarch to divide the church, and therefore they cannot be said to have incurred any disqualification or can be termed as heretics, B The writ petitions were ultimately dismissed but the unpleasant events which happened in the case after 1995 judgment were wholly unwarranted and ought not to have been resorted to by the Patriarch faction. When this Court had appointed Justice Malimath by consent to hold the elections, the decision of l 995 ought to have been respected by the parties. It was the bare minimum respect to the judgment that was expected of the rival factions. Both the factions ought to resolve their differences, if any, on a common platform and in case of necessity to amend the Constitution further, if it became necessary but they could not have taken at all a recourse to create the parallel system for administration of the very churches, creating law and order problem, resulting into closure of the church for substantial time and having two Vicars in the same church, serving in the church at different times each day as per the interim order. The situation where the church has reached is neither expected nor tolerable and church is not meant to be a place for such a masculine culture. The matter was decided in the Vattipanam suit, Samudayam suit and the 1995 judgment and the Patriarch faction ought not to have violated the judgment of this Court in the method and manner in which it has been done. In the 1958 judgment also this court . has laid down by an elaborate reasoning process that the 1934 Constitution is binding on the Parish Churches. M.D. Seminary meeting was properly held in which the I934 Constitution was adopted. It was clearly held in F Samudyam Suit by this Court; "43. Learned counsel for the respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex.59 no agenda was mentioned. Apart from the fact that no such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex.59, specia_lly G because they had all been sent together, did incorporate the agenda set out in full in Ex.59. In our opinion, the M.D. Seminary meeting · was properly held arid the first defendant, who is now the sole appeliant before us, was validly appointed as the Malankara H

170 SUPREME COURT REPORTS [2017] 9 S.C.R.

A Metropolitan and as such became the ex-officio trustee of the church properties. There is no question that the defendants 2 and 3 who are now dead had been previously elected by a meeting of the Malankara Association duly convened and held and were properly constituted trustees. fn this view of the matter it must follow that the plaintiffs can not, even in their individual or representative capacity, question the title of the defendants as validly appointed trustees."

139. The same issue had been re-agitated in 1995 and again the aforesaid questions have been raised about 1934 Constitution. authority of Patriarch and Catholicos, appointment of Vicar/priests etc. which has been dealt with in the 1995 judgment also.

140. The principle enunciated by this Court in respect of Knanaya Church is not at all applicable with respect to Parish Churches where the finding of this Court is otherwise to the effectthat they are bound by the 1934 Constitution. The spiritual supremacy of the Patriarch has not been put into question by the Catholicos faction it was not pleaded that his appointment is not recognized by the Catholicos faction. The Universal Synod in accordance with the applicable Canon appoints the Patriarch. We are of the opinion that in the absence of any dispute as to the identity who is the Patriarch, there is no question ofnot recognizing Patriarch by the Malankara Church hence. Rightly it has not been pleaded, but that does not help the appellants with respect to appointment of Vicar and Priests etc. However, what is the extent of authority of the Patriarch has to be seen and gazed in the light of historical background- Kalpanas - and what has been held in various representative suits from time to time which are binding to the extent the issues decided. We are of the considered opinion that once office of the Catholicos has been re- established, Patriarch could not exercise the powers which have been dealt with in the 1934 Constitution, and conferred on various authorities in hierarchy of church, that too unilaterally to create another centre of power and thereby the Patriarch cannot be permitted to create parallel system of administration by appointing Vicars, Priests and Deacon or another authority of Church. He is bound to act within the four corners of thel934 constitution for the sake of peace in the church. In the temporal matters, Patriarch has no power and the spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 171 ORTH. & ORS. [ARUN MISHRA, J.]

the appellants that he can exercise the powers after informing the A Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, also cannot per se mean exclusion B and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for proper administration. c - IN RE: THE.1934 CONSTITUTION IS IN THE NATURE OF A CONTRACT, ENFORCEABLE AT PRESENT:

141. It was urged by Shri K. Parasaran, learned senior counsel . appearing on behalf of the appellants that the 1934 Constitution is in the nature of a contract and it can be discharged in 3 ways - by performance, frustration and breach. Since the Catholicos have breached the Constitution by repudiating the supremacy of the Patriarch, it stands discharged and no longer binds the appellants. Under section 37 of the Indian Contract Act, 1872 the parties to the contract must either perform or offer to perform their respective promises unless such performance is dispensed with or excused by law. The Catholicos group disallows the Patriarch group to follow their faith as provided in the 1934 Constitution by repudiating the supremacy of the Patriarch. Once they are in breach of the 1934 Constitution and not adhering to the contract, they are not entitled to rely on the same. It is worse to comprehend that the Parish churches where the Patriarch group is in majority, should even confess to a Vicar owing allegiance to the Catholicos, and if they want to follow their faith of supremacy of the Patriarch then the management of the Parish Church properties vesting in t_rust will be forfeited in favour of the Catholicos of the Malankara Church which would be in violation of the provisions contained in Article 25 of the Constitution. We find that the source of the entire problem is that the Patriarchs faction is not ready to accept Vicar and priests and the management which vests not only in Catholicos but also in Malankara Metropolitan, Diocesan Metropolitan. They want to have their own system of management by creating parallel managing groups as noted by this Court in the 1995 H·

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A judgment also. In 1972 genesis of entire problem in the Churches was appointment of Vicar etc. made unilaterally on behalf of the Patriarch. Thereafter this Court had rendered the judgment and held that it was not open to the Patriarch to do it in the method and manner that it was done. Even assuming for a moment that Patriarch was having those powers, he could not exercise them unilaterally and the 1934 Constitution prevails in the churches, is a clear finding of this Court. Thus the Patriarch has also acted against the 1934 Constitution as well as the Canon by which Catholicos have been re-established in 1912 and after delimitation of areas. The Patriarch faction for no good cause is ready to accept the ecclesiastical and spiritual powers ofthe Catholicos and others as provided in the Constitution and Kalpana's and as held by this Court in the previous judgments, It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction ofMalankara Metropolitan. The Patriarch's claim of control over the temporal affairs of the Malankara Church was rejected. It D was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation ofbindingjudgment 1995 E of this Court by the Patriarch factiOn but of other binding precedents too, I• I

It was vigorously urged by- Shri K.Parasaran, learned senior counsel that the 1995 judgment was rendered to reconcile the two warring factions. Observations made by this Court at Para 157 of the 1995 F judgment have been relied upon in which it has been observed that the directions were issued to bring about-reconciliation between the two warring groups and establish peace in Malankara Church which should be desired by every well-meaning member of the Church. The learned senior counsel urged that the conduct of the Catholicos in refusing to recognize the Patriarch undermines the 1995 judgment of this Court. As G a matter of fact when execution of 1995 judgment was pending, in spite of appointment of Justice Malimath with consent of the parties to hold the elections, the Patriarc_h faction took up different stance in the gross violation of dictum, and there was breach of constitution on its part. It was bent upon to circumvent 1995 judgment and created illegally a parallel system of administration and also formed the Constitution 2002 which

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN , 173 ORTH. & ORS. [ARUN MISHRA, J.]

was totally uncalled for and an impermissible action. After formation of the Constitution of2002 they held separate meetings of Patriarch groups, and entire system was usurped. This resulted in various law and order problems as projected in the case and Parish Churches remained closed for quite some time. Once there is a Malankara Church it has to remain as such. No group or denomination can take away the Church and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, in our opinion, it is not open for beneficiaries even by majority to usurp its property or management.

142. Shri K.Parasaran, learned senior counsel, next urged that the Samudayam case has no bearing on the present proceeding. It was submitted that the Samudayam suit was with respect to the common trust property of the Malankara Church. No doubt about it that the dispute in Samudayam Suit was with respect to community property but considering the rival claims, various issues which were raised, had been gone into and the findings had been recorded thereupon in order to decide the said controversy, are binding as suit was representative suit. Thus the issues which have been decided in the suit, cannot be re-opened; including the question of adoption of the I934 Constitution, its validity and binding nature. The applicability and legality of 1934 Constitution was questioned in the Samudayam suit. A ground was raised that by formation of the 1934 Constitution, supremacy of the Patriarch has been taken away. This Court in I995 judgment construed Samudayamjudgment 1 and there is no scope to differ with the sam~. Shri K.Parasaran, learned senior counsel, urged that the High Court has not assigned any reason why the judgment of the trial court was erroneous. We have gone through the judgment and examined the entire case. In our opinion the High Court h~s rightly granted the declaration sought for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just and proper. G

143. It was also submitted that as the Catholicos have repudiated the supremacy of the Patriarch, they have not come to the Court with clean hands. Relying upon Mohammadia Coopi!rative Building Society Ltd. v. Lakshmi Srinivasan Cooperative Building Society Ltd., (2008) 7 SCC 310, it was submitted that the discretionary relief in a suit for H

174 SUPREME COURT REPORTS [2017) 9 S.C.R.

A specific performance cannot be granted to a plaintiff who has come to the court with a pair of dirty hands. We find that in the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They oughtto have followed 1995 judgment and other decisions. That they have not done and have insisted upon their own B system of management that is not permissible. IN RE: UDAMPADY - ENFORCEABILITY, OF BINDING NATURE AND 2002 CONSTITUTION:

144. In Mannathur Church matter, Shri Mohan Parasaran, learned senior counsel, urged that the Church is having its own Constitution in c the form of Udampady of I890 that was a registered document. The High Court has found that in fact the Church had been administered by the 1934 Constitution. The I934 Constitution is applicable to the Parish Churches under the Malankara Church. The submission that the Udampady will prevail cannot be accepted in view of the provisions made in section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of this Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot be re-agitated and reopened under the guise ofUdampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all the Malankara Churches and is holding the field. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail as found by this Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, in our opinion, Udampady cannot hold the field.

145. Shri Mohan Parasaran, learned senior counsel, has also relied upon the Universal Declaration of Human Rights which recognizes the right to form an association, and further goes on to state that no one can . G be compelled to be part of an association. Article 20 is extracted hereunder: "Article 20. ( l) Everyone has the right to freedom of peaceful assembly and association. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 175 ORTH. & ORS. [ARUN MISHRA, J.]

· (2) No one may be compellea to belong to an association." A (Emphasis supplied) .· It was submitted by him that the right to form an association under Article 19{ 1)(c) also carries with it the negative right, i.e. the righfnot to be part of an association which can be inferred from the principle laid down in the case of Bijoe Emmctnuel & Ors. v. State of Kera/a & Ors. B ( 1986) J sec 615 at paras 14-15 which are extracted hereunder: "14. Apart from the fact that the circulars have no legal sanction behind them in the sense that they are not issued tinder the authority of any statute, we also notice that the circulars do. not oblige each and every pupil tO join in the singirig even ifhe has · C any conscientious objection based on his religious faith, nor is any. · · penalty .attached to not joining the singing. On the other hand, one .of the circulars (the first one) very rightly emphasise the importance of religious tolerance. It is said there, "AU religions· . should be equally respected." . D is. If the two circulars are to be so_interpreted as to compel each and every pupil to join in the singing of the National Anthem despite· his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights.guaranteed byArticle 19( 1)(a) -and Article 25 (l)." " E . ,ii- I .

He also relied upon Cheall'v.· APEX(1983) I AUER 1130; Smt. Damyanti Naranga v. The Union of India & Ors. ( 1971) 1 SCC 678; O.K Ghosh v. E.X Josep_h (1963) Supp l SCR 789; Suryapalsingh v. U.P. Government AIR 1951 AH 674; and Sitharamachary v. Sr. Dy. . Inspector of Schools AIR 1958 AP 78. He urged that the 1995 f· judgment cannot be read as ifthe appellant Church cannot leave the Malankara Association as the same would re.suit in infringement of fundamental rights of the majority of the Parishioners who are · beneficiaries in this case belong to the Patriarch faction.

146. We are unable to accept the arguments by Shri Mohan G Parasaran, learned senior counsel for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration ofHuman Rights. In ouropinion; counselis right that no one may be compelled-to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There H

176 SUPREME COURT REPORTS [20 I 7] 9 S.C.R.

A can be an exercise ofunfettered volition notto be a part of an Association but the question in the case is whether one can form another Association within the same Association arid to run a parallel system of management .of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution 2002 to appoint V&caQ, Priests etc., giving a go by to the 1934 Constitution and to form a new Church 11nder the guise of same Malankara Church, it is not permissible, The Malankara Church its properties and other mattors 8R to be 3overned by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to l 934 Constitution. It was a trust created as Malankara church that is supreme, for once a trust always a trust. As per the 1934 Constitution, it is clear that while individual D Parishioners may choose to leave the Church, there is no question of even a majority ofthe Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy. 14 7. It is necessary to look into the various provisions provided in E the 1934 Constitution to deal with the aforesaid aspect. Part I contains the Decillrntion. Sections I, 2, 3 and S are extracted hereunder: " I. The Maltsnkam Church is a division of the Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is the Patriarch of Antioch.

F 2. The Malankara Church was founded by St. Thomas the Apostle · and is included in the Orthodox Syrian Church of the East and the PriCAAte gf the Orthodox Syrian Church of the East is the Cllttolk:O:l• .3. the ancient and the real name of the Malankara Church is the G Malankara Orthodox Syrian Church although it is also wrongly · called 'The focobite Church', for the same reasons for which the Orthodox Syrian Church has been also called so. · 5 lhe 8P(ltoVed Canon of this Church is the Hudaya Canon written by Bar Ilebraeus (the same Canon book as the one printed in H Paris in the year 18911. )" ~ ' ,. '' .

__ Jj '1..r~lk.

. K. S. VARGHESE & ORS. v. ST."PETER'S & PAUL'S SYRIAN 177 ORTH. & ORS. [ARUN MISHRA, J.]

14,8. As per section '6, every Parish Church shall have a Parish A Assembly and there would be one Parish Register. Entry of each member shall be made in the· Parish Register. It is open to become a permanent member or a temporary member of the Parish Church as provided in section 9. The Vicar has to convene the Parish Assembly meeting as provided in section 12. As per section 13, Parish Assembly shall m~et at least twice in a year. As per section 15 the Vicar shall be the President B As per section 16 there shall be a Secretary for the Parish Assembly. Section 17 provides the duties of the Parish Assembly which shall include . the election of the Kaisthani (Lay Steward), the Secretary and the members of the Managing Committee; and as p,et section 18 the Vicar shall send the decisions of the Parish Assembly to the Diocesan C Metropolitan. Appeal lies against the decision of the Parish"Assembly to the Diocesan Metropolitan under section 19. Section 22 of the 1934 Constitution _deals with apportionment of money. It is extracted hereunder: · "22. After setting apart the portion referred to in Section 122 ** · D hereunder, the balance shall be spent on the following items, in _. the following order of priority and only any balance remaining over may be spent for other rieeds of the Parish and the Church in general:- (a) Day-to-day expenses in connection with the Holy Qurbana, E festivals and other ministrations of the Church. (b) Expenses in connection with the maintenance and upkeep of the.Jarish Church and other Parish buildings. . - . (c) Salary of the Vicar, the other Priests, the Sexton etc; , F (d) Payments due to the Church Centre and theDiocesan Centre .. · (e) Expenses for the Schools, Charitable Hospitals, Orphanages, Sunday Schools; Prayer meetings, Gospel work and the like - conducted by the Parish Church. Section 122. Out of the annual gross income of a Church including G its properties, l 0% for the first Rs 500/-; and 5% for the remaining Rs 500/- to Rs 1500/- and 2.5% for the amount above Rs 1500/- shall be sent every year to the Malankara Metropolitan. If the percentage as stated above of any church is les·s than,Rs I 0/-, not ' . H

178 SUPREME COURT REPORTS [2017] 9 S.C.R.

A less than Rs I0/- shall be sent from that Church to the Malankara Metropolitan under this item." .

149. Section 23 deals with acquisition of immovable property or sale or creation of any charge on immovable property of the Parish church for which decision shall be made by the Parish Assembly with the previous written consent of the Diocesan Mefropolitan and shall be executed by the Vicar and the Kaisthani. Section 23 is extracted· hereunder: · ·' ."23. The acq11isition 9f any immovable property for the Parish Church or the sale or creation of any charge on the immovable. c property of the Parish Church, shall be in pursuance ofthe decision made by the Parish Assembly and the written consent of the Diocesan Metropolitan and shall be executed by the Vicar and the Kaisthani (Lay- Steward)." For every Parish Assembly ther~ has to be a Parish Managing· D Committee as provided in section 24. Its membership is dealt with in section 25. The Vicar and Secretary are the members. The Vicar shall be president of the Parish Managing Committee as per section 26. The Vicar shall reporttothe Diocesan Metropolitan about the election of the Kaisthani, the Secretary and other members of the Parish Managing Committee. Section 28 ·deals with calling of the Parish Managing E Committee meeting by the Vicar.As per section3 l, the Parish Managing Committee shall prepare the yearly budget. Kaisthani (lay-steward) is also a part of the Parish Church and is elected by the Parish Assembly as provided In section 33. He shall maintain correct accounts as provided in section 35 and when the Diocesan Metropolitan comes to the Church, F he shall get the books of accounts signed by Diocesan Metropolitan and · sealed. As per section 36, the Vicar has to send two copies of.the summarized statement of accounts passed at the Parish Assembly to. the Diocesan Metrop0litan for his approval. As per section 37 the movable and immovable properties of the.Paris~ Church shall be entered into a register. G There shall be a Vicar for every Parish Church; other priests, if any shall be assistants of the Vicar as per section 38. The Vicar and other priests shall be appointed, removed or transferred by the Diocesan Metropolitan as per section 40. The Vicar has to maintain various registers as provided in section H 43.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 179 ORTH. & ORS. [ARUN MISHRA, J.]

1SO ..Part 3 of the 1934 Constitution deals with Diocese. There A shall be a Diocesan Assembly as provided in section 4S. Its constitution is provided in section 46 which is extracted hereunder: · "46'. The following shall be the members of the Diocesan Assembly, VIZ

a) A priest from each Parish Church e.lected by the Parish 8 Assembly, provide that if in any Parish Church, there is only_ one priest, he shall be the priest representative of the Parish Church without the need of an elec.tion. b) Men alone who are elected by the Parish Assembly in the manner specified hereunder on the basis of the number of members in the Parish Assembly shall be members of .the Diocesan Assembly.. I. Up to 200 members 1 representative ·

2. · From 20 l to SOO members 2 representatives D .3. From SO I to I000 members • 3 representatives

4. From 1oo I to t 500 members - 4 representatives S. From !SOI to 2000 members - S representatives

6. From 2001 to 2SOO members - . 6 representatives E · - · ' 7. From 250 l to 3000 members - 7 representatives 8.' From 3001t~3500 members - · 8 representatives · 9. From3501to4000 members 9 representatives ·10. Above 4000 members 10 representatives F Members in this Article refer to the members as contemplated --:-;\nd mentioned in the amended Clause (7) of the 1934 Constitution. c) By any reason, if a vacancy arises in the membership of the Diocesan Assembly from any Parish, that Assembly shall elect another person for the remaining period alone and such election G shall be reported to the Diocesan Metropolitan in writing." Section 46 was amended as per 199S Judgment. There has to be election of Diocesan Secretary and appointment of auditor to examine · the accounts of the income and expenditure as per section 47. The H

180 SUPREME COURT REPORTS [2017] 9 S.C.R.

A Secretary shall have to maintain the correct accounts of the income and expenditure under section 51. Section 53 provides that funds of the Diocese shall be deposited in the name of the Diocesan Metropolitan. Section 54 deals with acquisition of immovable property or the disposal of or creation of any charge. Section 54 of the Constitution is extracted hereunder: B "54. The acquisition of any immovable property for the Diocese or the disposal of or creation of any charge on any immovable property of Diocese shall be done by the Diocesan Metropolitan and the Diocesan Secretary jointly and in pursuance of a decision thereto made by the Diocesa.n Assembly and written consent of c the Malankara Metropolitan." For every Diocese there shall be Diocesan Council. Decisions of the Diocesan Metropolitan are appealable to the Malankara Metropolitan as provided in section 62. There snail be a Diocesan Metropolitan as provided in section 63. Section 64 provides the Catholicos in consultation D 'Yith the MalankaraAssociation Managing Committee and according to the recommendation of the Malankara Episcopal Synod allocate Dioceses to the Metropolitans which is extracted hereunder: · "64. The Catholicos in consultation with the MalankaraAssociation Managing Committee and according to the recommendation of E the Malankara Episcopal Synod allocate Dioceses to the Metropolitans. " Section 65 deals with power of Diocesan Metropolitan and the matters concerning faith, order and discipline etc. same is reproduced below: F "65. Matters concerning faith, order and discipline shall, subject to the decisions of the Malankara Episcopal Synod, be under the -control of the Diocesan Metropolitan" As per section 66 the Diocesan Metropolitan shall carry on the G administration subject to the supervision of the Malankara Metropolian. Same is extracted hereunder: "66. The Diocesan Metropolitan shall carry on the administration of the Dioceses under their charge subject to the supervision of the Malankara Metropolitan." H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 181 ORTH. & ORS. [ARUN MISHRA, J.]

Section 67 provides that the expenses of the Diocesan Metropolitan · A on his visit to the churches of his Diocese shall be borne by such churches.

151. Part 4 of the Constitution deals with Malankara Arch- Diocese. It will have an Association by the name of "Malankara Syrian Christian Association" as' provided in section 70. Section 71 provides for membership in representative capacity with term of five years. Section B 76 deals with the registers of movable and immovable properties of the community. Section 76 is extracted hereunder: "76. There shall be a register for the movable a~d immovable properties of the Community and it shall be kept by the Secretary up to date and signed every year by the Malankara Metropolitan C and two members ofthe Committee." ' For every Malankara Syrian Christian Association (Malankara Association), there shall be a Managing Committee aS provided in section