Police Protection Can't Be Used To Enforce Church Possession Rights Not Adjudicated By Civil Court: Kerala High Court In Malankara-Jacobite Dispute

The Kerala High Court on Thursday (August 13) held that police protection cannot be used to enforce a claimed right to possession of church properties where that right has not been adjudicated by a competent civil court.

Allowing seven writ appeals arising from the Malankara-Jacobite church dispute, the Division Bench of Dr Justice A.K. Jayasankaran Nambiar and Justice Preetha A.K. set aside Single Bench orders granting police protection to vicars and parishioners of the Orthodox faction and issuing consequential directions regarding possession of the churches and performing religious rites.

The Court, however, clarified that nothing would prevent the petitioners from approaching a competent civil court for adjudication of their claims regarding possession of the church properties.

The appeals arose from writ petitions filed by constituent parish churches of the Malankara Orthodox Syrian Church and their vicars appointed under the 1934 Constitution. Relying on the Supreme Court's decision in K.S. Varghese, they had sought police protection against alleged obstruction by members of the rival faction and incidental directions for handing over possession of the churches and their properties.

For context, by the judgment in K.S. Varghese v St. Peter's and Paul's Syrian Orthodox Church and Others (2017), the Supreme Court had effectively given the Orthodox church the management of the various churches in Kerala.

The Single Bench had granted the reliefs sought, including protection to enable the vicars to enter the churches and conduct religious services without obstruction.

During the pendency of the appeals, however, a coordinate Bench of the High Court decided connected contempt appeals after the Supreme Court had remitted the matter for fresh consideration. The coordinate Bench held that although the law declared in K.S. Varghese would apply in resolving disputes concerning the management of parish churches governed by the 1934 Constitution, the decree in that case could not be treated as one applicable to all constituent parish churches of the Malankara Orthodox Syrian Church.

In view of this, the Division Bench held that police protection for enforcement of a civil right, such as possession of church property, can be granted only where there is a decree of a competent civil court adjudicating that right and that decree has been violated.

It further observed that a petition under Article 226 of the Constitution seeking police protection cannot substitute for a civil suit in which disputed questions concerning title, possession or competing rights of management can be adjudicated.

The Court found that there had been no evidence-based adjudication by a competent civil court regarding the disputed possession or ownership of the properties in question. It consequently held that the writ petitioners could not obtain police protection merely by relying on K.S. Varghese.

It thus allowed the appeals challenging the police protection.

Earlier this week, a statement was submitted on behalf of the government stating that the Chief Minister has intervened in the matter and intend to mediate the dispute between the two factions. 

In a postscript, the Court recorded the same and observed: 

"We also recorded the States statements which were filed.. And the above statement is recorded writ appeals are closed in the hope that the measure proposed by the State government would yield effective results....We are aware that in matters of governance it is preferable for the State to adhere to the neutrality principles and call for restraint and non- interference by the State in religious matters save in cases where they entail infringement of the rights of citizens to … However, when disputes arise among the citizenry on such matters leading to law and order issues that affects the public at large, it is the duty of the State to intervene through mediation, conciliation or as a last resort to executive action and even legislation so as to ensure lasting peace and order among public at large." 

Background

The Orthodox-Jacobite dispute centres on church governance and authority. Both factions trace origin to ancient St. Thomas christian tradition. The Orthodox faction maintains that the Malankara Church is an autonomous church headed by the Catholicos of the East in India, while the Jacobite faction recognises the Patriarch of Antioch in Syria as its supreme spiritual authority. 

The petitioners in the original writ petition has contended that although the church was a constituent church of the Malankara Orthodox Syrian Church, it had been under the parallel administration of the Jacobite faction since 1995. They alleged that Vicars appointed by the Diocesan Metropolitan in accordance with the 1934 Constitution were being prevented from entering the church premises and conducting religious services.

The Court thus directed the police to take appropriate steps to ensure compliance with the Supreme Court's judgment and ordered that adequate protection be provided to the lawfully appointed Vicars under the 1934 Constitution to enter the church and conduct religious services without obstruction from the respondents or anyone claiming through them. 

This direction was challenged in the present appeal. 

Case Title: Fr. Thomas Pulayath v St. Tomas Orthodox Syrian Church Cherukkunnam and connected matters

Case No: WA 378/ 2023

Citation: 2026 LiveLaw (Ker) 442

Counsel for Appellant: Sreenath Vijayaraghavan, P. Vijayaraghavan, P.V. Elias, Aswini Sankar R.S, T.H. Aravind, S.M. Prasanth

Counsel for Respondent: Roshen D. Alexander, Alan Papli. Asok M. Cherian, T.S. Shyam Prasanth, P.A. Mohammed Shah (Addl. AG)

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