[Malankara Church] Kerala High Court declines to interfere in consecration of new Catholicos

The Kerala High Court recently upheld a single-judge's order that had declined to interfere with the consecration of new Catholicos at the Malankara Orthodox Syrian Church, which was done without canonically inviting the Patriarch of Antioch [KA John & Anr v. State of Kerala & Ors.]..A Division Bench of Justices A Muhamed Mustaque and Sophy Thomas was considering an appeal moved by parishioners of St Mary’s Syrian Orthodox Cathedral at Piravom, previously with the erstwhile Jacobite faction, challenging the consecration which according to them was carried out in contravention of the directions of the Supreme Court in KS Varghese v.St. Peters & St. Pauls Syrian Orthodox Church & Ors. The High Court reaffirmed that the judgment of the Supreme Court would govern the parties with respect to the Malankara Church. .However, the High Court held that the writ court is not an executing court of the judgment of the apex court, especially when it purely involves private law, as in the instant case. "In this case, we find there exists no public law element. If the consecration of Catholics is not in accordance with the directions of the Apex Court, the executing court can very well ensure the implementation of the directions. It is for the executing court to decide whether the directions have been followed or violated and to decide on the execution of the directions. This Court cannot assume violation of direction, to issue a writ of mandamus without essential fact findings. That fact finding cannot be embarked upon unless such fact finding overlaps with the public law element," the High Court held..Further, it was held held that as KS Varghese relates to a dispute involving pure private law element, the High court cannot invoke its powers under Article 226 of the Constitution of India to enforce the same, unless enforcement itself lies on Public Law."If there is no public law element to invoke Article 226 of the Constitution, the High Court cannot act on prayers to implement the judgment of the Apex Court. It is to be noted that as far as the law is concerned, the decision in K.S Varghese case is rendered on private law premise as the disputants were private parties and the dispute related to the Malankara Church," the Court said..The petition filed through advocate Haris Beeran had sought a declaration holding that the consecration of Catholicos without inviting the Patriarch was invalid as it violated the judgment of the Supreme Court in KS Varghese that upheld the validity of the 1934 Constitution as binding on the Malankara Church.A different petition had been filed before the Kerala High Court days before the consecration meeting that was held on October 15 seeking to prevent the consecration of new Catholicos.However, the meeting went on as planned with a new Catholicos, Dr Mathews Mar Severios who adopted the new name of Baselios Mar Thoma Mathews III Catholicos, after he was consecrated.The single-judge had dismissed the plea holding that the Church is not a State under Article 12 of the Indian Constitution, and no writ will lie against churches.In the appeal, the petitioners contended that the single-judge failed to take note of the fact that several orders have been passed by the Kerala High Court itself to enforce the judgment in KS Varghese.Therefore, they sought orders to set aside the single-judge's decision and restraining the new Catholicose from exercising spiritual, ecclesiastical and temporal powers in the capacity of Catholicose of the Malankara Orthodox Syrian Church as his consecration is in violation of the judgment of the Supreme Court in the Varghese case..However, the Division Bench concurred with the single-judge and pointed out that in regard to enforcement of KS Varghese, the High Court had in previous cases granted police protection, merely as as an aid, based on the declaratory relief granted by the Supreme Court. As the High Court found that there exists absolutely no public law element in the instant case, it deemed it fit to dismiss the appeal. .The petitioners were represented by advocates Haris Beeran, Azhar Assees and Anand B Menon. The respondents were represented by Additional Advocae General Ashok M Cherian, Government Pleader Shyamprasanth TC, Senior Advocate S Sreekumar and advocates Roshan D Alexander, Tina Alex Thomas and Harimohan..[Read Judgment]