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Writ Court Can't Implement Decree Without Public Law Element : Kerala HC Dismisses Appeal Challenging Non-Intervention In Consecration Of New Catholicos
Hannah M Varghese
1 April 2022 9:32 AM GMT
The Kerala High Court on Thursday dismissed an appeal moved by Orthodox parishioners against a single-judge order that refused to intervene in the consecration of new catholicos of the Malankara Orthodox Syrian Church without canonically inviting the Patriarch of Antioch.A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas refused to interfere with the impugned order...
The Kerala High Court on Thursday dismissed an appeal moved by Orthodox parishioners against a single-judge order that refused to intervene in the consecration of new catholicos of the Malankara Orthodox Syrian Church without canonically inviting the Patriarch of Antioch.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas refused to interfere with the impugned order noting that there exists no pubic law element in the issue of the consecration process.
"The power of the High Court under Article 226 of the Constitution of India to issue various writs is relatable to the public law remedy. 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."
The Court further noted that K.S. Varghese v. St. Peter's and St Paul's Syrian Orthodox Church was rendered on private law premise as the disputants were private parties and the dispute related to the Malankara Church and emphasised that writ jurisdictions are predominantly a public law remedy and not a private law remedy.
If the judgment of the Apex Court is capable of being executed through ordinary civil court, the writ court should not take up the task of implementation or enforcement of the judgment of the Apex Court or this Court, the Bench held.
"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."
The petitioners are members of the Malankara Church and parishioners of St. Mary's Syrian Orthodox Church, Piravom. They moved the Court aggrieved by the fact that the Patriarch of Antioch was not canonically invited for the consecration of the Catholicos which was held on 15.10.2021.
They sought the implementation of the Apex Court decision, urging that the failure to invite the Patriarch was against the said judgment and the directions contained in the orders of the Supreme Court reminding the State that there cannot be any violation of the order by anyone concerned.
When the petitioners came to know that urgent steps were being taken to consecrate the Catholicos on the next day of the election, they submitted a representation to the Chief Secretary to the Government of Kerala and the Director-General of Police to see that there will not be any violation in the matter of the consecration of Catholicos by anyone.
However, they contended that their representation has fallen on deaf ears and no positive action had been taken so far.
The plea sought a declaration to the effect that the consecration of the Catholicos without canonically inviting the Patriarch for the consecration of the Catholicos is against the judgment in K.S. Varghese case and the directions contained in subsequent orders.
However, the Single Judge dismissed the petitions as not maintainable holding that civil disputes between the parties cannot be decided in writ jurisdiction. Challenging this, they moved the Division Bench.
The Division Bench noted that ordinarily, the constitutional court is not expected to implement the decree or judgment like an executing court, except when there is a public law element in enforcing such a decree or judgment. Therefore, to issue a writ of mandamus or any other writ, the petitioners need to demonstrate the existence of public law element for the state or public officials to enforce or implement the order.
However, since there was no public element in this case, it was held that the executing court should decide whether the directions have been followed or violated and to decide on the execution of the directions.
IThe Bench added that it cannot assume violation of direction to issue a writ of mandamus without essential fact findings which cannot be embarked upon unless such fact-finding overlaps with the public law element.
"In a dispute involving pure private law element, the constitutional court shall not invoke writ jurisdiction to enforce a judgment, unless enforcement itself lies on Public Law. There exists absolutely no public law element in this case."
As such, the Court took the view that the appellants failed to make out a case for issuance of the writ of mandamus and dismissed the appeal.
Advocates Haris Beeran, Azhar Assees and Anand B. Menon appeared for the petitioners while Additional Advocate General Asok M. Cherian, Government Pleader Shyamprasanth T.S, Senior Advocate S. Sreekumar, Advocates Roshen D. Alexander, Tina Alex Thomas and Harimohan appeared for the respondents in the matter.
Case Title: KA John & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 156
