Adv. Mathews J. Nedumpara
To the faithful of the Syrian Orthodox Church of Antioch and all the East, my fellow countrymen
1. The faithful of the Syrian Orthodox church of Antioch and all the East, (the Patriarch faction) are denied their freedom of conscience and faith guaranteed by the Constitution of India; not by the government or any law enacted by the Parliament, but as a result of judgements of the Supreme Court. My clients, the faithful of the Syrian Orthodox church- the Patriarch faction, blame Justice Mishra of the Supreme Court. And the extent of their anger, pain and anguish is reflected in the social media of the faithful of the Patriarch faction.
2. The pertinent question therefore is, are the faithful justified in blaming the Supreme Court, and Justice Mishra in particular, for denial of their fundamental right of freedom of faith and conscience and right to practice their religion? My answer is that the Supreme Court cannot be blamed and certainly not entirely. Who has to be blamed? The answer to the question will entirely depend upon the reason which has resulted in the denial of freedom of conscience and faith and the right to practice their religion.
3. I have stated umpteen number of times, ever since I was engaged by the Patriarch faction in defending a few cases in the Kerala High Court and the Supreme Court, the latter I could not appear for soon after I was engaged came the order of Justice Nariman banning me from practicing the Supreme Court for one year which expired only in March 2020.
4. The reason is unthinkably simple, which offers no difficulty for a layman, nay, even a child to comprehend. The church cases have a history of more than 100 years. And the judgement which resulted in the deprivation of the freedom of faith, conscience and the right to practice their religion came at the hands of a five judge constitution bench in Moran Mar Basselios’s case, in the year 1959 (AIR 1959 Supreme Court 31). The judgment of the Supreme Court was the culmination of a suit instituted by the Patriarch faction in the year 1938, namely, the Samudayam suit. The plea therein was that the Catholicos faction who convened a meeting of the church on 26.12.1934 in which a constitution for the Malankara Church was adopted holding among other things that the primacy of the Syrian Orthodox Church of All the East is vested in the Catholicos, including the power to ordain Metropolitans and to consecrate Morone, thereby practically denouncing the primacy of the Patriarch of Antioch, for such powers fall in the exclusive province of the Patriarch of Antioch, and that they had thereby become heretics and had separated from the Orthodox Syrian church of Antioch and All the East.
5. The principle contention of the Patriarch faction before the Supreme Court was that the constitution which was adopted by the Catholicos faction in the year 1934 had taken away the supremacy of the Patriarch as the head of the church in all matters, temporal and spiritual, for he (Patriarch) alone is entitled to ordain Metropolitans and to consecrate Holy Morone. The Supreme Court, however, did not allow these pleas to be raised or decide it on merits, holding that the judgement of the Travancore High Court in the Vattipanam case, namely the interpleader suit (OS No. 94 of 1088) is binding on the Patriarch faction as res judicata in the case, namely, the Samudayam suit.
6. The next phase of the litigation culminated in the judgement of the Supreme Court in the year 1995, namely P.M.A Metropolitan Case. In the said judgment, the judgment of the 5- judge constitution bench of the Supreme Court of 1959 was taken as “res judicata”, and the controversy was not decided on its actual merits. This meant the Supreme Court in 1955, treating the judgment of the Travancore High Court in Vattipanam case as res judicata.
7. The next phase of the litigation culminated in a judgment at the hands of Justice Mishra in the year 2017, namely, K. S Varghese (2017, 15 Supreme Court Cases 333). The said judgement was founded on the premise that the judgements of the Supreme Court of 1959 and 1995 are binding as res judicata, not only on those who are parties to the proceedings in the Supreme Court but even on those who were not. The reason offered is that Vattipanam suit was in the nature of a representative suit. It was held that “full effect has to be given to the finding that the spiritual power of the Patriarch has reached a vanishing point” and that “the 1934 constitution is valid and binding upon the Parish churches”, and that it is not open to any individual church to decide to have their new constitution like that of 2002.
8. The judgements of the Supreme Court, as aforesaid, has meant a declaration by the Supreme Court that there is only one Orthodox Syrian Church, which is the Orthodox faction with the Catholicos as the primate, and the Patriarch of Antioch being reduced to persona non grata with his spiritual powers having reached a “vanishing point”.
9. Ever since, placing reliance on the judgment of the Supreme Court, the Catholicos faction went on to capture churches under the control of the Patriarch faction. The judgment of the Supreme Court came in handy to them for obtaining even orders from the Kerala High Court and subordinate courts to obtain police protection for capturing churches, even where the vast majority of the faithful were of the Patriarch faction, for instance, St. Mary’s Church, Piravom.
10. The judgment at the hands of the Supreme Court in Fr. Issac’s case (2019 (4) KLT (SC) 1) came to be the last nail in the coffin so far as the freedom of conscience, faith and the right to practice religion of the faithful of the Patriarch faction are concerned. The Supreme Court reminding that its judgements in the aforesaid cases is the law of the land under Article 141 of the constitution, warned the High Court of Kerala and the subordinate courts against passing any orders contrary to the said judgments.
11. The faithful of the Patriarch faction of the Orthodox church is still bound. They ask to themselves what made the courts pass an order which has resulted in the absolute denial of their very freedom of conscience, faith and worship. Nobody had been able to give them a convincing answer other than mere figments of imagination like the opposite side having won over the judges or the Modi government carrying a hidden hostile agenda. But what is the truth? It is nothing but the innocent error to notice the innate nuances of the concept of the doctrine of res judicata, res inter alios, stare decisis, judgement in rem and judgement in personam.
• ‘Res judicata’ means a judgment in a case between A and B will be binding on them, no matter whether right or wrong.
• ‘Res inter alios’ means a judgment in a case between A and B will not bind C and D or E and F who were not parties to the case.
• ‘Judgment in rem’ means a judgment which is “binding upon all the world”, namely, even those who were not parties to it.
• ‘Judgment in personam’ means a judgment which will bind only the parties to it. All judgments except those concerning status and title are judgements in personam.
• ‘Stare decisis’ or precedent means a principle involved by a superior court in a previous case for the resolution of an issue which was before it, where none existed, will be applicable to future cases as a guidance.
• Article 141 of the constitution says such principles evolved by the Supreme Court is binding on all courts.
12. In Vattipanam case, the only issue (cause of action) to be decided was of the two rival factions, namely, the Patriarch and the Catholicos faction, to whom the Secretary of State shall pay 3000 pagodas (Rs. 10,000 approx) and nothing else. It was decided in favour of the Catholicos faction. The decision of the Travancore High Court was erroneous. However, since it was at the hands of the Travancore High Court, the highest judicial authority then, it was final, binding and authoritative as ‘res judicata’. The decision of the Travancore High Court was a res judicata so far as the dispensation of the money which was lying in the treasury was concerned- nothing more, nothing less. The said decision could not have been cited in a future case, except as a precedent and there was hardly any room for citing the judgment of the Travancore High Court as a binding precedent. The decision of the Travancore High Court, no matter right or wrong was res judicata. However, the reasoning for the decision is not a res judicata, at best it may have a limited precedential value. However, the 5-judge constitution bench of the Supreme Court failed to appreciate the distinction between the concept of res judicata and stare decisis, and considered the judgment in the Vattipanam case as a binding precedent. The root cause for all the sufferings and injustice is the said error on the part of the 5-judge constitution bench of 1959, which remains even today to be brought to the notice of the court, except at the hands of the humble self.
13. In the Samudayam case, the issue was whether, by the adoption of the 1934 constitution, the supremacy of the Patriarch was abrogated, and whether the Catholicos faction had become heretics and had separated from the Orthodox Syrian church and had established a new church. You may find it difficult to be believed. However, this issue, which was the only issue to be decided in the Samudayam case was not decided on its merits at all. Sadly, the 5-judge constitution bench of the Supreme Court held that since the interpleader suit was converted into a representative suit on behalf of the Jacobite Syrian Christian population of Malabar, the decision in that suit was binding on all members of the Malankara Syrian Christian community as res judicata. This is a horrendous error, though wholly inadvertent. The 5-judge constitution bench ought to have decided all issues on its merits.
14. The judgment in Vattipanam case did not constitute to be res judicata so far as the Samudayam case is concerned because the cause of action is different, even the parties are different. In the Vattipanam case, the plaintiff was the Secretary of State of the British Government. The doctrine of res judicata can have no application where the parties and cause of action are different. At the cost of repetition, it may therefore be asserted that the judgment in Vattipanam case, by no stretch of imagination, can be held to res judicata so far as the Samudhayam suit is concerned. The 5-judge constitution bench of the Supreme Court erroneously took the judgment in Vattipanam case as res judicata because it was a representative suit.
15. A judgment in a representative suit will not bind the whole world or all those who have interest in the Malankara church. A judgment which is a ‘judgment in rem’ will bind even those who are not parties to it. For example, a decree in a suit for divorce between husband and wife where divorce is granted is a ‘judgment in rem’ and will bind the whole world, whereas, where divorce is denied, it is a ‘judgment in personam’ and will bind only the husband and wife. In Roman law, a ‘judgment in rem’ generally was “ut rem ipsam restituat cum fructibus”. In Vattipanam case, no declaration in the nature of “ut rem ipsam restituat cum fructibus” was rendered. The Supreme Court in 1959 went clearly wrong in holding that judgment in Vattipanam case is a ‘res judicata’ in so far as the Samudayam case is concerned. The Travancore High Court in the year 1928, while rendering the judgment in Vattipanam case, could not have visualized issues such as the validity of the 1934 constitution and pronounced a judgment which is final and binding of the constitution to be adopted in 1934. However, the Supreme Court, while holding that the judgment of the Travancore judgment rendered in 1928, is binding as res judicata in the Samudhayam case, has precisely done so, which is a manifest error. The 1959 judgment of the Supreme Court is, therefore, one rendered void ab initio. The Supreme Court, by treating the judgment in Vattipanam case, which is erroneous, but binding on the parties of that particular case, allowed injustice arising out of erroneous decisions applicable to future cases as well, which the court had no jurisdiction to do. The Patriarch faction has no other option than to take this plea, as emphatic as possible, for to do so is well within their right.
16. The 1995, 2017, 2018 and 2019 judgments of the Supreme Court are founded on the judgement of the Supreme Court of 1959. ‘Sublato fundamento cadit opus’, namely, when the foundation is removed the structure falls. The 1959 judgment, being built on sand, that and the the subsequent judgments, all, collapse.
17. The judgment of a court can only bind the parties who are alive, even where it is a representative suit. No judgment can be a legislation. The judgments of the Supreme court of the years 2017, 2018 and 2019 are in the nature of a legislation. It holds that the judgements are binding on even those who are not parties to the proceedings, which is manifestly incorrect.
18. The judgments of the Supreme Court in 2017 and 2019 at the hands of Hon’ble Justice Arun Mishra are in gross misconception of the ‘doctrine of stare decisis’. The said judgement contains no principle which court has evolved for the first time where none existed, for the resolution of an issue which was before it, which would be binding as the “law declared by the Supreme Court”. The province of the court is to declare the law and not to make it, the maxim being “jus dicere non jus dare”.
19. The Supreme court in its judgments in 2017 and 2019 has misunderstood the concepts of ‘res judicata’, ‘res inter alios’, ‘stare decisis’, ‘judgment in rem’ and ‘judgment in personam’, vis-a-vis, representative suits.
20. In res judicata, what is determinative is the numbers. If in a bench of 3 judges, in a case between A and B, two judges were to hold that white is black, that is binding on the parties in that particular case- nothing more, nothing less. However, in a subsequent case between C and D, the number of the previous bench does not matter. The future judge is not bound to follow the erroneous decision of the majority that ‘white is black’. On the contrary, they are bound to follow the minority view that white cannot be black.
21. I believe the answer to the question, whom to be blamed for the great injustice which faithful of the Syrian Orthodox Church of Antioch (Patriarch faction), am sure, is clear to you all. The lawyers who had represented the cause of the Patriarch faction forgot the first principles of jurisprudence, and in particular -besides what I have already pointed out above- the fact that faith is not justiciable.
22. Why faith is not justiciable, the answer is simple. The province of the court is to find out truth based on evidence and materials by allowing the parties to the controversy opportunity to adduce evidence in support of their case as also to contradict that of their opponent. Faith is not based on any evidence and very often is contradictory to scientific evidence. Faith often is blind. Therefore, there is no question of allowing anyone to adduce evidence in support of his faith. Matters such as the transmission of the spiritual grace by the Patriarch of Antioch as the successor of the throne of the St. Peter are matters falling exclusively in the province of faith. No court has the jurisdiction to decide such issues. The constitution bench of the Supreme Court, in 1959 failed to notice that the core issue to be decided is the very jurisdiction of the court to decide temporal matters based on a finding as to the spiritual powers of the Patriarch, a matter falling in the exclusive province of faith, which is, to repeat, non-justiciable. The 2017 judgement went on to hold that “full effect has to be given to the finding that the spiritual power of the Patriarch has reached a vanishing point. Consequently, “he cannot interfere in the governance of parish churches by appointing Vicar, priests, deacons, prelates, etc”. A clear pronouncement on matters of faith which the court has no jurisdiction to trench upon, and that too in a proceedings where the Patriarch is not even a party.
23. The calamity as aforesaid was entirely avoidable, had the lawyers who represented the Patriarch faction cared to pay attention to the fundamental principles of law as aforesaid. Past is past and done. What we need to think is of remedial steps we can take. The first thing is to realize that we failed to conduct the cases effectively. Having realized that, we can seek review of the judgments of the Supreme Court of 1959, 1995, 2017, 2018 and 2019. We can also file a petition under Article 32. To do so is the conventional method. If we were to go by the fundamental principles of law stricto sensu, all that is required is to file a comprehensive civil suit in a representative capacity and/or separate independent suits depending upon the factual situation of the churches concerned. Because, none of the judgments of the Supreme Court are binding on the faithful as res judicata or stare decisis.