-Mathews J Nedumpara
The Petitioners are constrained to file this review, sadly, only because this Honble court, the Petitioners beg to submit with all humility and with utmost respect, failed to record the core of their contention that the instant church in question, and for that matter not a single out of the 1064 churches of the Malankara Syrian Jacobite Church, was a party to the Samudayan case which has culminated in the judgement of the 5-judge constitution bench of the Supreme Court, namely, AIR 1959 SC 31 and, therefore, the said judgement is not binding on the Petitioner church and others. Had this Hon’ble Court recorded the said contention, this Court would have certainly allowed the plea of the instant Review Petitioners. This Court has passed orders in favour of the Orthodox faction, directing forceful takeover of the instant Church and other churches on the sole premise that by virtue of the judgement of the Supreme Court of the year 1958, which was mistakenly followed as binding in the subsequent cases of 1995, 2017 and 2018, the so-called 1934 Constitution of the Orthodox faction was held to be binding.
Sublato fundamento cadit opus – when the foundation is removed, the superstructure falls. The 1958 judgement was not binding on the instant Church or any one of the 1064 churches because none of the churches were a party to the suits culminating the 1958 judgement. Nobody can be bound by a judgement where one is not a party. That is the very foundation of the doctrine of res judicata. The 1958 judgement is one rendered void ab initio.
By oversight or otherwise, the said fundamental aspect came to be omitted. It is said even Homer nods at times. No human institution, howsoever high, is infallible. Roma locuta est, causa finita est, the doctrine of the Holy Roman Empire which was indeed an aberration of the classical Roman law principle, has been put to desuetude, nay, disuse. Today, even the Pope does not claim infallibility. The instant Review Petition is instituted in the unstinted faith that this Court will most graciously acknowledge that to err is human, and that it is its duty to undo the error, lest justice should be denied.
The Churches should be governed by democratic principles, according to the will of the parishioners, in consonance with the constitution of the individual churches. In churches where the Jacobite faction is in majority, they should be free to administrate according to their faith, and in churches where the Orthodox faction is in majority, they should be equally free to conduct the affairs according to their constitution or faith. By acknowledging and correcting the error on the part of this Court, the church litigation could be brought to a peaceful end, to the benefit of not only the believers, but the public at large, who are much perturbed about the unfortunate clashes in the name of religion.