K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN ORTH. & ORS.

p. 100 Copy page pinpoint

62Copy pinpoint62. Shri Chander Uday Singh, learned senior counsel appearing on behalf of the respondent in CA No.8789of2015 has submitted that the 1934 Constitution vests the power of appointment of Vicars in the Diocesan Metropolitan. In addition, he submitted about the Seminary Suit, Arthat Suit, Samudayam Suit, the 1995 judgment and subsequent B ·position up to 2002 till holding of elections pursuant to the judgment of

1995. It was contended that certain matters stood concluded. The appellants have violated the mandate of the 1995 judgment of this Court, having dodged the elections as directed in the consent orders of this Court. The patriarch faction tried to overreach the court by framing a new Constitution even while this Court was hearing Justice Malimath C report and thus they are not entitled to any indulgence in the appeals. The approved Canon of the Church is the Hudaya Canon written by Bar Hebraeus i.e. the Canon as the one printed in Paris in the year 1898 wherein it is stated that the Patriarch of Antioch shall not enter the eparchy of Tigris by way of administration, except when invited. The D creation ofCatholicos in 1912 in Malankara conferringjurisdiction over India, Ceylon, and Burma was neither against the scriptures nor faith as held by this Court in the 1995 judgment. He has also referred to certain provisions of the Constitution. This Court has laid down in 1997 that every person claiming to hold any office or post in the church shall be bound by and shall swear allegiance to the 1934 Constitution.

63Copy pinpoint63. In the case of Syrian Church at Mannathur, it was submitted by Shri E.M.S. Anam, learned counsel that certain dispute which took place in 2011 have been pointed out as to the perforrpance of ceremonies of the Church and due to law and order problem created, the Sub- Divisional Magistrate took possession of the D-1 Church on 25.12.2011. F Udampady of 1890 does not hold the field. The Church had been administered under the 1934 Constitution as reflected from accounts etc. The Patriarch faction illegally conducted a parallel meeting on 20.3.2002 at Puthencruz and formed a new Sabha called Jacobite Syrian Christian Church and framed the 2002 Constitution to bypass the judgment of this Court and to create pandemonium and chaos and the pothuyogam dated 30.3.2003 was convened by the Vicar, and the members of the erstwhile Patriarch faction demanded adoption of the 2002 Constitution which was refused by the Vicar and the majority of Parishioners. The 2002 Constitution has never been adopted or accepted. Udampady was not required to be compulsorily registered. It was not the document of the creation of a Church but only for its administration.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 101 ORTH. & ORS. [ARUN MISHRA, J.]

64 ..Following questions arise in the matter: A .A. Whether 1995 judgment is binding the appellants? If yes, to · what extent? B. Abandonment of pleas/objections to revival ofCatholicate, the validity of 1934 Constitution. B C. In Re: Parishioners have right to follow own faith under article 25 of the Constitution of India and manage affairs under Ar- ticle 26 of Constitution oflndia. D. Repudiation of spiritual authority/ supremacy of Patriarch by the Catholicos. · c E. In Re: 1934 Constitution is in terms of a contract, enforceable at present. F.. In Re: Udampady- Enforceability, of binding nature and 2002 Constitution D G. Effect of non registration of the 1934 Constitution and of registered Udampady. H. Maintainability ofMannathur Church suit. I. Framing of Scheme under Section 92 of CPC J. Whether in the facts interim arrangement to continue. E

IN RE: WHETHER THE 1995 JUDGMENT IS BINDING ON THE APPELLANTS? IF YES, TO WHAT EXTENT?

65Copy pinpoint65. It was submitted by Shri K. Parasaran, learned senior counsel and other learned counsel appearing on behalf of the appellants that the findings recorded in para 158(8) of the 1995 judgment which became part of the decree, that so far as the declaration to the effect that the Malankara Church is Episcopal in character is concerned, this Court had held that it is Episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution also governs the affairs of the Parish Churches and shall prevail. It was submitted by learned senior counsel that the decree runs contrary to the observations made in Para 154 of the judgment in which it has been mentioned that in the absence of the Parish Churches it cannot be declared that the prope1iies held by Malankara Parish Churches vest in the Catholicos. In our opinion, the submission is wholly untenable. The representative suit was decided in H

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A 1995 and the judgment is binding even on those who were not parties to the case. All the Parishioners are bound bythe judgment to the extent it has decided the matter. There is no conflict in the decree as well as the aforesaid observations that have been made by this Court. The majority opinion has left open the question that the property whether it is held by B the Parish Churches or vested in the Catholicos and Para 155(8) deals with other rights and nature of the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases. Though on the basis of Bhikhi Lal v. Tribeni AIR 1965 SC 1935 it was submitted that the decree has to be in accordance with the - c judgment, we find that the decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with the findings recorded in the judgment and in the decree. The decree is in accordance with the aforesaid dictum of this Court.

66Copy pinpoint66. Learned senior counsel also urged that as per section 35 of the Specific ReliefAct, 1963 the declaration made by this Court is binding only on the parties to the suit or persons claiming through them respectively . The appellants were not parties to the suit nor they are claiming through the parties therein. Relying on Razia Begum v. E Sahebzadi Anwar Begum, 1959 SCR 1111, it was urged that the declaration operates only in persona. We are unable to accept the submission. The relief which was sought in the main suit and led to the 1995 judgment was to declare the Malankara Church to be Episcopal in character and is not a union or federation of autonomous church units and is governed in its administration by the Constitution of the Malankara F Chw·ch. It was also prayed that defendants I to 3 has no competence to ordain priests and deacons for Malankara Church and that they were not legally consecrated Metropolitans of the Malankara Church and defendants 4 to 8 were not legally ordained priests or deacons of the Malankara Church. Prayer was also made to declare that any priest G who refuses to recognize the authority of the first plaintiff and other Metropolitans under him was not entitled to administer in any of the Malankara churches or its institutions. Permanent prohibitory injunction was claimed against defendant Nos.] to 3 from ordaining priests or deacons or performing any other sacraments, service etc. for the Malankara Church or its institutions. The Division Bench had decreed H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 103

.. ORTH: & ORS. [ARUN MISHRA, J.]

the main suit. In the 1995 judgment this Court referring to the Year 1654 A events, observed that the authority of the Patriarch extended only to spiritual affairs but not to the temporal affairs of the Malankara Church. There was the revival ofCatholicate in 1912 by Patriarch Abdul Messiah, and that brought a qualitative change in the situation. A-14, the Kalpana was issued which fact was not disputed by the Patriarch group, and A- B 13 which was preceded by A-14 empowered the Catholicos to ordain Metropolitans and other officials of the Church in accordance with the canons of the Church and also to consecrate holy Moron. The powers of consecrating holy Moron that vested in Patriarch, came to be vested in the Catholicos by the Patriarch himself.

67Copy pinpoint67. The third Catholicos was elected as the Malankara Metropolitan · C and thus the powers of both were concentrated in one person i.e. the spiritual and temporal powers. This Court also observed that the Patriarch in the year 1972 could not have exercised the power of appointment of getting ordaining the priests and deacons through his delegate as observed in Para No.134 of the 1995 judgment. This Court clearly held that even ifit is held that by Kalpana',sA~ 13 andA-14 the Patriarch is not denuded of the powers delegated by him to the Catholicos, he could not have unilaterally exercised those powers which were delegated and he could have exercised those powers thereafter in consultation with the Catholicos and the Malankara Sabha (Association) and of course in accordance with the. 1934 Constitution. This Court also held that it was necessary for the reason (i) to avoid creating parallel authorities leading to conflict and confusion and (ii) the acceptance by the local people. Thus this Court clearly held that the Patriarch could not have purported to exercise unilaterally the powers delegated by him to the Catholicos under A-14.

68Copy pinpoint68. This Court also held that when the Patriarch had recognized the Catholicos, he did so with the full knowledge. Reliance was placed on Kalpana Ex. A-19 dated 9.12.1958. It was also held that Kalpana's A-19 and A-20 were not issued in an abrupt fashion. Under Kalpana Ex. A-20 the Catholicos accepted the Patriarch subject to the Constitution passed by the Malankara Association. The members of the Patriarch G group swore loyalty to.the 1934 Constitution. The Patriarch abandoned whatever objection he had by his acts and declarations in the year 1964 when he came to India on invitation from the Malankara Synod and consecrated and duly installed the new Catholicos who was elected by, the Malankara Association in accordance with the 1934 Constitution. H

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A Before that, the Patriarch also took care to define the territorial jurisdictions of the Patriarchate and the Catholicate. The Middle East that was supposed to be under the jurisdiction of the Catholicos was excluded from his jurisdiction confining his authority to India and East alone. In our opinion this defining of the territorial jurisdiction also recognized the power ofthe Catholicos both in spiritual as well as temporal 8 matters.

69Copy pinpoint69. This Court had also found that it was not open fo the Patriarch or his followers to contend that revival of Catholicate was not in accordance with the religious tenets and faith of the Syrian Jacobite Christian Church; that the Constitution of 1934 was not duly and validly passed. Thus this Court also found that the revival of Catholicate reduced the power ofPatriarch to a vanishing point. The power and authority of the Catholicos as per Kalpanas A-13 and A-14 were atlirmed. re- enforced and enlarged in the 1934 Constitution.

70Copy pinpoint70. This Court has clearly held that the Patriarch could not have unilaterally appointed priests etc. through his delegate. It is one thing to say that the Patriarch could do these things in cooperation with the Catholicos but the ordaining of the priests and Metropolitans by him and his delegate without reference to and over the protestations of the Catholicos, was certainly not the right thing to do since it purported to create a parallel administrative mechanism for the church in spiritual/ temporal matters. The aforesaid findings and the declaration in the aforesaid decree that was passed in the 1995 judgment extracted above, in a representative suit, is binding. This Court in R. Venugopala Naidu & Ors. v. F Venkatarayulu Naidu Charities & Ors. ( 1989) Supp 2 SCC 356 has dealt with the suit under section 92 and Order I Rule 8 ofCPC and it was held that such a suit is the representative action of a large number of persons who have a common interest. The suit binds not only the parties named in the suit but all those who are interested in the trust. It is · for that reason Explanation 6 to section 11 CPC constructively bars by G res judicata the entire body of interested persons from re-agitating the matters directly in issue in an earlier suit under section 92 CPC. This Court has laid down thus: "11. It is not necessary to go into the finding of the High Cou11 that two of the appellants being Muslims can have no interest in H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 105 ORTH. & ORS. [ARUN MISHRA, J.]

the trust as the other two appellants claim to be the beneficiaries A of the trust and their claim has not been negatived. Moreover, the trust has been constituted to perform not only charities of a religious nature but also charities of a secular nature such as providing for drinking water and food for the general public without reference to caste or religion." B Section l l read with Explanation 6 is extracted hereunder: "SectiOn 11: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigatin.g c under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves D . and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."

71Copy pinpoint71. Order 1 Rule 8 is an exception to the general rule that all persons interested in the suit are to be mage parties thereto. The object for which the provision is enacted is to provide an exception to the ordinary E procedure in a case where common rights of community or members of such association or large section are involved. It will be practically difficult to institute the suit under the ordinary procedure by impleading every person in which every individual has to maintain account by a separate suit and to avoid numerous suits being filed for a decision on the common question. Order I Rule 8 had been enacted so as to simplify the procedure. F In case parties have bona fide litigated the question and there had been no collusion in such a suit, the decision would bind the others. The rule entitles one party to represent many and the action is maintainable without joinder of otber parties. Order I Rule 8 pre-supposes that there are numerous persons having the·same interest. One or more such persons G with permission of the court.may sue or be sued or may defend such suit on behalf of the persons so interested. In such a case notice has to be given as per Order I Rule 8(2) by way of public advertisement and then any person on whose behalf or whose benefit the suit is instituted or

- defended has a right to apply to the court to be made a party to such a .H --<

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72Copy pinpoint72. It was submitted that disputes as to faith and worship in the church have to be decided in their presence so as to bind the Parishioners. In our opinion, the Parishioners were parties in the previous suit decided in 1958 and 1995 and earlier thereto. The question cannot be reopened again and again by them on the ground that they were not parties individually, otherwise the representative suit and issues as well as the right of suing in representative capacity, would Jose entire significance. No doubt it is true as held in Deoki Nandan v. Muralidhar 1956 SCR 756 that the true beneficiaries of religious endowments are not the idols but the worshippers. This principle has also been reiterated in Veruareddi

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 107 ORTH. & ORS. [ARUN MISHRA, J.]

Ramaraghava Reddy v. Konduru Seshu Reddy 1966 Supp SCR 270 A and Bishwanath v. Shri Thakur Radhaballabhji ( 1967) 2 SCR 618. There is no dispute with the proposition that the persons who go in only for the purpose of devotion have a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage. The decisions are based on Hindu religion. However, the principle is one B ttflaw applicable to all religious institutions including the churches having a public character.

73Copy pinpoint73. Much was sought to be extracted from following observations made by this Court in Para 163 of the 1995 judgment: " ... When a particular people say that they believe in the spiritual c superiority of the Patriarch and that it is an article of faith with them. the Court cannot say "no; your spiritual superior is the Catholicos". The guarantee of Article 25 of the Constitution has also got to be kept in view. . . . In all the facts and circumstances of the case, .it would be enough to declare that by their acts and conduct, D-19 has accepted that they are an integral unit within D the Malankara Church and that therefore, the 1934 Constitution of the Malankara Church shall govern them but subject to their own Knanaya Constitution until such time the Knanaya Church Samudayam decides otherwise." [Emph~sis supplied]. E This Court with respect to Knanaya Church has made the aforesaid observations. There is no dispute with the aforesaid observation about the spiritual superiority of the Patriarch and that it is an article of faith . with certain Parishioners and if for certain purpose, certain people may believe in the spiritual superiority of Catholicos, this is not for this Court F to say that your spiritual superior is not the Catholicos. The question of appointment ofVicar and priests etc. is a secular matter and not a spiritual one as discussed hereinafter. Nothing prevents the Parish1oners having faith in the Patriarch to believe in his spiritual superiority. The question in the .instant case is.how .the Malankara Church is to be managed. As G per the individual faith, they can have their own management or management has to be separated from the spiritual faith that is protected in the right as enshrined under Article 25 of the Constitution oflndia., ' . 74. 1t was submitted that in case the declaration in the 1995 judgment that the 1934 Constitution is binding on the Parish Churches H

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75Copy pinpoint75. The submission cannot be made successfully as it ignores and overlooks the mandate of Explanation 6 to section 11 and provision of Order I Rule 8(6) CPC. The previous suitwas a representative suit and the present appellants/churches are deemed to be parties in the representative suit as they could have applied for defending their rights or to sue as the case may be i.n the previous suits which had been decided by this Court. Thus there is no question of violation of the principle of natural justice in the case in hand. It was submitted on the other hand by Shri K. Parasaran, learned senior counsel, that in a case of dispute as to property right which has to be decided as per civil law only and not ecclesiastical law, and there has to be a specific plea with regard to properties of each Parish Church by giving particulars of such properties and no such plea is made by the plaintiffs in the suit out of which the appeal arises nor it was so raised in the 1995 case. We find that the aforesaid submission is ofno use to the present appellants. On one hand, they have submitted that the previous 1995 judgment has left certain issues open as to properties of Parish Church, and on the other hand, they are raising the aforesaid submission. However, the aforesaid submission does not affect the declaration so granted in the instant case.

76Copy pinpoint76. It was submitted that the 1995 judgment has no binding effect. It would be having only the evidentiary value under section 13 of the Indian Evidence Act. Reliance has been placed on the decision of this F Court. in Sita/ Das v. Sant Ram Das AIR 1954 SC 606, Shrinivas Krishnarao Kango v. Narayan Devji Kango 1955 I SCR I and lirumala Tin1pati Devasthanams v. K.M Krisnaiah (1998) 3 SCC

331. We are unable to accept the submission. The finding of this Court . which operates as res judicata is about the binding nature of the 1934 G Constitution on the Parishioners and Parish Churches. This Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The l 995judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 109 ORTH. & ORS. [ARUN MISHRA, J.)

unambiguous with respect to binding nature of the 1934 Constitution . .It . A was submitted that the Parish Churches even after the 1934 Constitution, can decide to make their own Constitution in the exercise of their fundamental right to freedom of religion under Article 25 so as to follow the faith of spiritual supremacy of the Patriarch. The submission is attractive but is not acceptable as what is the meaning of spiritual supremacy, what is, inter alia, the effect of establishment of Catholicos · and what is the delegation of power as per Kalpana made by.the Patriarch, what he has accepted subsequently in 1958 and 1964 and the respective rights of management of Parish Church would have to be decided. In our opinion, it would not be open to any faction or group to adopt any particular system of management of.Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy in the instant case, is an effort to illegally take over the management of the Churches by rival factions in derogatiOn D of delegation of powers, as would be apparent from the discussion to be made hereinafter with reference to the provisions of the Constitution and Kalpanas. The power with respect to Orthodox Syrian Church of the East is the Primate i.e. Catholicos. Though the Primate ofthe Orthodox Syrian Church is the Patriarch ofAntioch. Certain spiritual powers have also been vested,in Malankara Metropolitan, as per section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and to render religious services under~he guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus under the garb of spiritual supremacy which had reached a vanishing point due to the establishment ofCatholicos and Kalpana, and the 1934 Constitution G which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy .it. It is not the fight for spiritual gains but for other purposes as is apparent from the discussion made hereinafter. H

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A . 77. Shri K. Parasaran, learned senior counsel is right in his submission that the declaration sought in the form that the Church is governed by the 1934 Constitution as upheld by the Supreme Court, should not have been prayed in the form as if this Court had declared it as it could be a ground and a legal aspect. The declaration ought to have been sought that the Church is governed by the 1934 Constitution only and not adding prayer as upheld by this Court. He is right that the declaration in such form ought not to have been sought but in our opinion further submission is not correct that the declaration so sought, has ·adversely affected the decision of the trial court as well as the High Court. We have gone through the decision and have found that we have not been influenced by the declaration caused in the aforesaid form and no prejudice has been caused to the appellants. · IN RE: ABANDONMENT OF PLEAS/OBJECTIONS TO THE REVIVAL OF THE CATHOLICATE, THE VALIDITY OF THE 1934 CONSTITUTION.

78Copy pinpoint78. The appellants, Patriarch faction contend that the Catholicos being seated on the Throne of St. Thomas, etc. cannot bind them in perpetuity. It was submitted by Shri Parasaran, leacned senior counsel that at paras 155(6) and (7) in the majority opinion, Hon. Jeevan Reddy, J. had observed that the Patriarch and the Patriarch group are deemed E to have given up or abandoned all or objections with regard to the revival of the Catholicate, validity of the 1934 Constitution, Catholicos seat on the Throne of St. Thomas in the East and acceptance of the Patriarch by the Catholicos 'subject to the Constitution'. He has vehemently contended that this, however, will not mean that the appellant is perpetually bound to remain part of the MalankaraAssociation for all times to come. F Nor can they be disabled from pursuing their faith i.e. the Patriarch being the spiritual superior and appointing a Vicar, performing spiritual .ceremonies, conforming to that faith. Firstly we are unable to accept the aforesaid submission. When the Church is a Parish Church and since time immemorial it is a Parish Church and is a part ofMalankara Church, G ·it has to perpetually remain as such. Under the garb of pursuing their faith of the Patriarch being superior, they cannot create a parallel system of appointing a Vicar for performing spiritual/religious ceremonies conforming to that faith, as an appointment of Vicar is not a spiritual matter. It is a secular matter. Thus the submission so as to dilute the finding at paral55(6) and (7) of the 1995 judgment cannot be accepted. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 111 ORTH. & ORS. [ARUN MISHRA, J.]

The decision in Sha Mulchand & Co. Ltd. v. Jawahar Mills 1954 SCR A 351, a decision of 4-JudgeBench, has been relied upon and the same is reproduced below: ".. . Unilateral act or conduct of a person that is to say act or conduct of one person which is not relied upon by another person to his detriment, is nothing more than mere waiver, acquiescence B or !aches, while act or conduct of a person amounting to· an abandonment of his right and inducing another person to change his position to his detriment certainly raises the bar of estoppels . . . .·whatever be the effect of mere Waiver, acquiescence or !aches on the part of a person on c his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, by the authorities, that mere waiver, acquiescence or !aches which does not amount to an abandonment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest... ' D A man who has a vested interest and in whom the legal title lies does not and cannot lose that title by mere !aches or mere standing by or even by_ saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment; that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost ·1 by what is loosely called abandonment or waiver, but even then if is not. the abandonment or waiver as such which deprives him of his title but the estoppels which prevents him from asserting that F: his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides_ in him to another, were not duly observed. G Faz!Ali., J. and I endeavoured to explain this in Dhiyan Singh v. Jugal Kishore -What happens is this. The person estopped is not allowed to deny the existence of facts, namely the actings of the parties and so.forth which would in Jaw bring about the change in legal status, namely, the extinguishment of his own title H

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A and the transfer of it to another, for estoppel is no more than a · rule of evidence which prevents a man from challenging the · existence or nonexistence of a fact. Once the facts are ascertained or by a fiction of law are deemed to exist, then it is those facts which bring about the alteration in legal status; it is not the estoppel as such nor is it the abandonment or waiver per se" .. 8

79Copy pinpoint79. It was further submitted that the decision of 4-J udge Bench is binding on a Bench of3 Hon. Judges as laid down in S.H. Rangappa v. State of Karnataka & Ors. (2002) I SCC 538. The decisio11of1995 is in conflict with the observations in Sha Mulchand & Co. Ltd. (supra) . .If estoppel was not pleaded the question of abandonment will not arise. C It was also submitted that in Vattipanam Suit, the review was permitted on the ground that the following findings would not be reopened: ·"(a) As to the authenticity of Ex.A~ 18, the version of Canon Law produced by Defendants 5,6 and 42. o {b) As to the power of Patriarch to excommunicate without the intervention oft~e Synod; and (c) As to the absence of an indirect motive on the part of the Patriarch which induced him to exercise his power of excommunication." E In the 1995 judgment, the ex-communication of the Catholicos was held to be invalid since there was no permissible or relevant ground for the same. Thus it was submitted that the supremacy of Patriarch cannot be denied by Catholicos group. Such a denial would alter the fundamental faith of the Patriarch followers who have been forced to form their own association for safeguarding their spiritual and religious interests. We find no merit in the aforesaid submission as the decision in Sha Mulchand & Co. (supra), is that the question of waiver, acquiescence or !aches may sometime not amount to an abandonment of the right or create an estoppel in certain circumstances. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere !aches or by saying that he has abandoned his right, unless there is something more; namely inducement of another party by his words or conduct to believe the truth of that statement and so as to make him act upon it to his detriment. Then such a person would be bound by estoppel. It is not abandonment or waiver, which prevents H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 113 ORTH. & ORS. [ARUN MISHRA, J.]

him from asserting that the legal forms were not duly observed. In the A instant ca~e the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara 8 Church which is a division of the Orthodox Syrian Church. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpana 's, establishment of the office ofCatholicos and other historical facts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is bound by itand cannot wriggle out of it and make the entire Parish Church system topsy-turvy. Thus the 3- Judge Bench decision in the 1995 judgment cannot be said to be contrary to the 4-Judge Bench decision in Sha Mulchand (supra) but on a closer scrutiny, Sha Mulchand (supra) does not buttress the plea of the· appellants but negotiates against it. Too much cannot be made out of the observations made by this Court that the Patriarch carinot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church E is to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself in the form ofKalpana. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 F Constitution and cannot be permitted to commit regular breach and device ways to circumvent the judgment of this Court by one way or the other and under the garb of spiritual fight wrest the temporal control of the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that, the powers can be exercised under the umbrella of spirituality to interfere G in the administration of the Church and creating a parallel system of appointing Vicars and Priests etc. which will paralyze the functioning of the Churches for which they have been formed and it would be against the very spirit of creation of trust from time immemorial which inheres H

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80Copy pinpoint80. It was submitted that the Parishioners have a right to follow their own faith under Article 25 of the Constitution oflndia and that the Preamble to the Constitution of India guarantees the liberty of thought, expression, belief, faith, and worship. Article 25 guarantees to all persons, the freedom of conscience and to profess, practice and propagate religion. Article 26 guarantees to all religious denominations the freedom to manage its own affairs in matters of religion. Again reliance has been placed upon the observations made by this Court in the 1995 judgment at para J63 that when a particular people say that they believe in the spiritual superiority of the Patriarch and that it is an article of faith with them, the Court cannot say "no, your spiritual superior is Catholicos". As Article 25 permits a person to have such a faith, there is no dispute with the aforesaid proposition. It is open to any Parishioner to have faith in the spiritual superiority of the Patriarch. A right to freedom of professing one's faith and religion is enshrined in Article 25 of the Constitution which gives freedom offaith and worship, subject to public order, morality and health and other provisions of Part III ofthe Constitution. The freedom is guaranteed to 'persons' as opposed to 'citizens' as in Article 19. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 115 ORTH. &.ORS. [ARUN MISHRA, J.]

Therefore, each Paristrloner has a right to freedom of religion. It was submitted by Shri K. Parasaran, learned senior counsel, that 'public order' was examined by this Court in Ram Manohar Lohia v. State of Bihar ( 1966) I SCF-. 709 wherein it was observed: . "The contravention oflaw always affects order blit before it can be said to affect public order, it must affect the comnilmity or the public at large .... lt will thus appear that just as "public order" in · the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of Staie", "law and order". One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public .order and the smallest circle c represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State."

81Copy pinpoint81. It was further submitted by him that those who believe in apostolic succession through St. Peter forms on~ denomination (viz. D Patriarch group) and those who believe in apostolic succession through St. Thomas forms another denomination (viz. Catholicos group) within the same religion (viz. Christianity). As to the concept" of denomination, this Hon'ble Court in Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR I 005 at E I022 held as follows: " ... The word "denomination has been defined in the Oxford Dictionary to mean "a coHection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name". F ... After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a: religious denomination, as it is designated by a distinctive name - in many cases it is the name of the founder - and has a common faith and G common Spiritual organisation. The followers ofRamanuja, who are known by the name ofShri Vaishnabas, undoubtedly constitute a religious, denomination; and so do the followers of Madhwacharya and other religious teachers," [Emphasis supplied] H

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A This Court further observed (at pgs. I 028-1029) that: · " ... Freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions, which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or B organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration c of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the insti~ution and its endowments by incurring wasteful expenditure on rites and.ceremonies. It should be noticed, however, that under Article 26(d), it is the fundamental right Ofa religious denomination or its representative to administer its properties in accordance with law; and the law, therefore~ must leave the right of administration to the religious denomination itself subject to such rest,rictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26." [Emphasis supplied]

82Copy pinpoint82. It was urged that the Vicar holds a very important position in the Church; he conducts the Holy Mass, the Confession, Anointing of the Holy Moron arid other sacraments and ceremonies. He also collects the donations made to a particul~r Church. When the majority of the Parishioners who contribute to such donations belong to the Patriarch group, the use of such contribution to further the cause ofCatholicos by the trustee would result in a breach of tmst of the donors and beneficiaries. Appointment of the Vicar in a Patriarch-majority Church by th~ Catholicos who believes in apostolic succession through St. Thomas is also not in consonance with the faith of the Patriarch followers who believe in apostolic succession through St Peter. Confession is one of the most important sacraments. Those who believe in the superiority of Patriarch 1

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 117 ORTH. & OR:S. [ARUN MISHRA; J.]

cannot be asked to make confessio~ to a Catholicos Vicar. It conflicts with the faith of apostolic succession through St. Peter and not through St. Thomas.

83Copy pinpoint83. On the strength of the aforesaid judgment,it was further urged by Shri K. Parasaran, learned.seni()rcounseHhat the Patriarch group forming a religious denomination ha5fftindamental right to decicie what rites should be performed in theirParlsht::hufches;whowouldperform them and how they should be performed .in accordance with theirfaith. It was further submitted by hirn'th~tthe Vicar holds a very important position in the Church; lie conducts the Holy .Nfass, the Confession, Anointing of the Holy Mor<marid other sa~m.ents and ceremonies.- He C also collects the donations maaeto 11patticµlar Cht!i.cli: When the majority of t~e Parishioners who.. contribute to.\:. ssil.c.h ·®11 . a~i.ons be. long to the Patnarch group, the use of such cQttti'#mtton .to. further the cause of Catholicos by the trustee Would result.ln,abr~ach oftrust of the donors and beneficiaries. It was further sulJ.mitted by him a,s to the issue of , 'faith', it is not relata~le to a particµlarCanon~ but to theltiode of apostolic to succession. The faith involved in the ·preSeJitc~se refers' apostolic successi()n from Jesus ChriSt·viz. the blessings and. Grace of Christ descend through an apostle viz. St. Peter or St. Thomas, as the case may be, and from the said apostle to the Pope/Patriarch who.appoint a Vicar. E

84Copy pinpoint84. It was farther submitted by Shri K. Parasaran, learned senior counsel that the Patriarch of Antioch is a Pope. Following apostolic succession, through Jesus Christ and St. Peter, the sacrament descends on the Patriarch. The Vicar primarily- holds a religious office and represents the Patriarch, as if the Patriarch himself is present when confession is made to the Vicar.The definition of'apostolic', as found in F Ramanatha Aiyar's Law Lexicon (Yo LIV), is: Cl · •,- .· • Having full powers to represent the Pope as. if he were present The definition of 'Patriarch', as found in the Oxford Dictionary, is: G •A bishop of one of the most ancient Christian sees (Alexandria, Antioch, Constantinople, Jerusalem, arid formerly Rome). • The head of an autocephalous or indeperident Orthodox Church. ,·

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A • A Roman Catholic bishop ranking above primates and metropolitans and immediately below the Pope, often the head of a Uniate community. The definition of Pope, as found in the Oxford Dictionary, is:

B •The Bishop of Rome as head of the Roman Catholic Church. •The head of the Coptic Church, the Bishop or Patriarch of Al exandria. The definition of Vicar, as found in the Oxford Dictionary, is: • (in other Anglican Churches) a member of the clergy deputizing c for another. • (in the Roman Catholic Church) a representative or deputy of a bishop. • (in the US Episcopal Church) a member of the clergy in charge of a chapel. D • A cleric or choir member appointed to sing certain parts of a cathedral service.

85Copy pinpoint85. Shri K.Parasaran, learned senior counsel, further submitted that the act of appointment of the Vicar may be a secular act but the office he holds is of a religious nature. The faith is that when confession is made to him it is transmitted to the Patriarch, then St. Peter, ultimately reaching Jesus Christ, and then the sinner is forgiven. If the Vicar does not owe his appointment or faith to the Patriarch, the flow of religious efficacy and blessings flowing through Jesus Christ, through St. Peter and then through the Patriar<:h are snapped. If confession is made to a F Vicar who does not follow the Patriarch faith, it is not deem to be made in the presence of the Patriarch. Merely because the appointment of the Vicar may be a secular act, which does not lead to an inference that the functions exercised by him are also secular. The Vicar in order to be appointed has to meet the required spiritual qualification of owing allegiance to the Patriarch. It is for this reason that the District Collector G thought it fit to make an interim arrangement, which is approved by this Court vide order dated 14. l 0.2015, under which two Vicars are appointed - one who follows the Patriarch faith and the order who follows the Catholicos faith. It is a sacrament for the reason that it flows through apostolic succession as if the Patriarch himself is present when the Vicar H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 119 · ORTH. & ORS. [ARUN MISHRA, J.)

• performs religious acts. That is why in the 1995 judgment, the majority declares the law, which is applicable to all Churches whether Malankara Church or Parish Church at Para 163, reproduced earlier. 1 I

86Copy pinpoint86. It was urged that a Vicar of a Catholicos group coul~ not be thrust on a worshipper of Patriarch faith against his will. The freedom guaranteed under Article 25 of the Constitution oflndia will prevail over anything contained to the contrary in the 1934 Constitution. Fundamental rights guaranteed under Part III of the Constitution cannot be waived, nor can the principle of estoppel operate against an assertion of such rights as held in Olga Tellis v. Bombay Municipal Corporation1(1985) 3 sec 545. c

87Copy pinpoint87. Shri Anam, learned counsel, urged that as per section 10 I of the Constitution and relying on the Canon of 1898 the Patriarch has no right to interfere; "The relevant provision in the Canon is extracted below : "The Patriarch shall not be consecrated without the D agreement of the Maphrian, if he is alive. Otherwise, the Easterners have authority to consecrate themselves the Maphrian." " The canon law is an express bar from any person being consecrated as Patriarch 'without the agreement of the Maphrian". E ,. "Maphrian" is the Catholicos of the East as evident from Chapter VII of the same Canon. The said provision is extracted below :- "Henceforward !he Great Metropolitan of the East has been granted authority to consecrate metropolitans in the East, like the patriarch and he shall be proclaimed Catholicos. When he is present F in a synod of the westerners, his seat shall be placed above all metropolitans, along with thepatriarch ofJerusalem." That Maphrian is the Catholicos ofthe East is found in the judgment of this Hon'ble Court in 1995 Suppl (4) SCC286. Thus any person NOT consecrated in accordance with the Canon approved under G Sec. 5 of the 1934 Constitution is not a Patriarch recognized under Sec. I 0 I of the 1934 Constitution."

88Copy pinpoint88. It was also submitted by Shri Anam, learned counsel, that the Malankara Orthodox Church was established as early as 52 A.O. by St.

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A Thomas, an apostle of Jesus Christ, the Patriarch came to the Indian Church much later only in 1654. The events for more than a century indicate that he created dissension in the Indian church and ultimately re-established the office of the Catholicate. He submitted that b'y a limitation of the jurisdiction and delegation there was divestiture of the powers by the Patriarch and he could not have exercised those very B powers in view of the Kalpana issued by him and the 1934 Constitution.

89Copy pinpoint89. It is necessary to have a look into the episcopal nature of the Church and its history. Meaning of the word "Episcopal" has been considered in para 79 c of l995 judgment with reference to various dictionaries by this Court thus: "Episcopal' is defined in Websters Comprehensive Dictionary to mean "ofor pertaining to bishops. Having a government vested in bishops; characterised by episcopacy", whereas 'episcopacy' D is defined as under: "Government of a church by bishops." New English Dictionary of Historical Principles by Sir John Murray, Vol. III, explains it to mean: "Theory of Church Polity which places the supreme authority in the hands of episcopal or pastoral orders." 'Episcopacy' is explained in the Faiths of the World by James _Gardner, Vol. I, at p. 836 at under: , "[T]hat form of church government which recognises a distinction of ranks among the ministers of religion, having as its fundamental article that a bishop is superior to a presbyter." 'Bishop' in the same book is defined as under: "[O]ne who in episcopalian churches has the oversight of the clergy of a diocese or district." G 'Metropolitan' is defined in the same book at p. 445 as under: "The bishop who presides over the other bishops of a province. In the Latin church it is used as synonymous with an archbishop. In England, the archbishops of Canterbury and York are both Metropolitans .... The title was not in use before the Council of H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUVS SYRIAN 121 ORTH. & ORS. [ARUN MISHRA, J.]

Nicea in the fourth century .... The rise of the authority of A . Metropolitans seems to have taken place without any distinct interference on the part of the church. The Council ofNicea was the first to give an express deliverance on the subject, particular with reference to the Alexandrian Church. The sixth canon of that council ran in these terms: 'Let the ancient custom which has B prevailed in Egypt, Libya and Pentapolis, that the bishop of Alexandria should have authority over all these places, be still maintained-, since this is the custom also with the Roman bishop. In like manner, at Antioch, and inthe other provinces, the churches shall retain their ancientprerogatives."

90Copy pinpoint90. It is apparent that the Syrian Orthodox Church ofMalankara C accept and acknowledge the theory of apostate's succession. In Faiths of the World, the word 'episcopalians' is explained and itis stated that it is a name given to those who hold that peculiar form of church government that is called 'episcopacy'. The Church of Rome is Episcopalian in its constitution, and acknowledges the Pope as Universal D Bishop, to whom all the various orders of clergy, cardinals, primates, and patriarchs, archbishops and bishops are subordinate. The Armenian Church is similar in government.

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A In Black's Law Dictionary 'Congregation' is explained thus: "An assembly or gathering; specifically, an assembly or society of persons who together constitute the principal supporters of a particular parish, or habitually meet at the same church for religious exercises." B The word is explained in the Faiths ofthe World, Vol. I, at p. 589 thus: "This word, like the term Church (which see) is sometimes used in a more extended and at other times in a more restricted sense. In its widest acceptation, it includes the whole body of the Christian c people. It is thus employed by the Psalmist when he says, 'Let the congregation of saints praise Him.' But the word more frequently implies an association of professing Christians, who regularly assemble for divine worship in one place under a stated pastor. In order t9 constitute a congregation in this latter sense of D the term, among the Jews at least ten men are required, who have passed the thirteenth year of their age. In every place in which this number of Jews can be statedly assembled, they procure a synagogue. Among Christians, on the other hand, no such precise regulation is found, our Lord himself having declared, 'Wherever two or three are met together in my name, there am I E in the midst of them.' Guided by such intimations of the will of Christ, Christian sects of all kinds are in the habit of organising congregations though the number composing them may be much smaller than that fixed by the Jewish Rabbis." The definitions of 'congregationalism' and 'episcopal' have been discussed in para 80 of the 1995 judgment thus: "80. These definitions of'congregationalism' and 'episcopal' have been extracted to give an idea how the expressions are understood as the entire submission of autonomy of the churches is based on whether the parishes are congregational or episcopal. The basic or essential characteristic as appears from the above definitions and explanation of'congregationalism' and 'episcopal' is that in the former the authority vests in the congregation whereas in the latter it is controlled by the bishop as he is deemed to be successor of the apostle. That the Syrian Orthodox Church of Malankaraaccept and acknowledge the theory of apostle H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 123 ORTH. & ORS. [ARUN MISHRA, J.] .

succession is beyond doubt. In Faiths of the World, the word A 'episcopalians' is explained and it is stated that it is a name given to those who hold that peculiar form of church government which is called' episcopacy'. The Church of Rome is Episcopalian in its constitution, and acknowledges the Pope as Universal Bishop, to whom all the various orders of clergy, cardinals, primates, and B patriarchs, archbishops and bishops are subordinate .... The Armenian Church is similar in government to.the Greek Church, theirCatholicos being equivalent in rank and authority to the Greek Patriarch .... All the ancient Eastern Churches, including the Copts, Abyssinians, and others, are Episcopalian. The Church of England is strictly Episcopalian in its ecclesiastical constitution. The claim, c therefore, that they are congregational cannot be accepted." The property of the church as per the .aforesaid discussion of Halsburys' Laws of England vests in the endowment and not in the Parishioners. Thus the proposition that the Parish Churches are totally autonomous and independent in temporal matters, cannot be accepted. D

92Copy pinpoint92. 'Congregationalism' and 'episcopal' have also been considered in the 1995 judgment in paragraph 152 thus : "152. Though in para( I) of the plaint in OS No. 4 of 1979 an as~ertion is made that "the Malankara Orthodox Syrian Church ... is an autocephalous division of the Orthodox Syrian Church E which traces its origin to Jesus Christ and his apostles'', the relief asked for in the plaint is for a declaration "that the Malankara Church is Episcopal in cqaracter and is not a union or federation of autonomous church units ... ". The expression 'Episcopal' appears to have been used in contrast to ;the expression F 'congregational'. In the absence of any material brought to our notice with respect to the meaning of these expressions, we may refer to para 66 of the judgment under appeal where the meaning of these expressions has been explain~d. It reads thus: "Episcopalism is defined in the New English Dictionary of G Historical Principles - By Sir John Murray, Vol. III as 'Theory of Church Polity which places the supreme authority in the hands of episcopal or pastoral orders'. The same dictionary defines the word congregationalism as: 'A system of ecclesiastical polity which regards all legislative disciplinary and judicial functions as vested H

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A in the individual church or local congregation of believers.' Chambers Dictionary, Vol. 4, defines congregationalism as 'the doctrine held by churches which put emphasis on the autonomy ofthe individual congregations'. Congregationalism has for its sign- manual the words of Jesus 'Where two or three are gathered together in my name, there am I in the midst of them.'" B I53. The Division Bench also referred to the judgment of the Kerala High Court in John v. Rev. Thomas Williams48 on the meaning and content of the expression 'congregationalism'. The judgment describes 'congregationalism' as one of the non- conformist Protestant denominations. Relying upon the c Encyclopaedia Britannica, it says that the congregationalism is the name given to that type of church organisation in which the autonomy of the local church or body of persons assembling in Christian fellowship is fundamental. It constitutes one of the three main types of ecclesiastical polity, the others being Episcopacy D and Presbyterianism. It regards church authority as inherent in each local body of believers, as a miniature realisation of the whole church which can itself have only an ideal corporate being on earth. While in practice it is religious democracy, in theory it claims r to be a theocracy since it assumes that God himself rules directly through Christ. It springs from the religious principle that each body of believers in actual church fellowship must be free of all external human control, in order the more fully to obey the Will of God as conveyed to conscience by His Spirit. The essential features of congregationalism are stated to be the autonomy or independence of the individual churches or organisations, though in matters in which the individual charges are interested as a whole and in order to enable the churches to effectively fulfil their responsibilities, they may enter into unions. Congregationalism is stated to be the opposite of Episcopacy which means Government of the Church by the Bishops on the theory of apostolic succession. In other words, the Bishops are supposed to be the successors of the apostles of the Christ. The congregationalists believe that every Christian has the right to perform all functions pertaining to the priestly office and permits the laymen to celebrate sacraments whereas in Episcopal Churches only the ordained priests can celebrate sacraments. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 125 . .. ORTH. & ORS. [ARUN MISHRA, J.] ..

154. On a consideration of the relevant material placed before A it, the Division Bench has held that while the Orthodox Syrian Church including the Malankara Church is Episcopal in spiritual matters, in temporal matters it is not Episcopal. It referred~ in our opinion rightly, to the judgment of the Royal Court of Final Appeal ofTravancore in Seminary suit where it is observed: B "Parties agree that head of Syrian Church in this country or its Metropolitan should be a properly ordained. Bishop and that regarding temporal affairs acceptance of Malankara Metr~pol itari as such by ~he community is necessary." · It was further held in the said judgment' that "while the c ecclesiastical supremacy of the Patriarch has all along been recognised; authority of Patriarch never extended to Government oftemporalities of the Church". The Division Bench at the same time clarified that it does not mean to hold that the Metropolitan has the jurisdiction over the day-to-day management of temporal affairs of Parish Churches. The Division Bench has also referred D to the Mulanthumthy Synod resolutions which say that the Parish Churches have a degree of autonomy with certain supervisory powers alone being vested in the Managing Committee of the Association or Catholicos or the Malankara Metropolitan, as the case may be. The Division Bench has held th~t: E "Malankara Church though it has some episcopa~ characteristics is not a purely episcopal church. But we are not able to agree that the individual Parish Churches are independent churches or churches with independent status .. ~. The Parish Churches are constituent parts of the Malankara Church and enjoy a degree of autonomy and the administration of the day-to-day affairs vests in the Parish Assembly and committee elected by the Parish Assembly subject to supervisory powers of the Metropolitan - and the provisions of the constitution of the Malankara Sabha do not affect this position." G We are, however, of the opinion that in this suit no declaration can be granted affecting the rights of Parish Churches in their absence nor can it be .declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan or the Metropolitan of the diocese H

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A concerned, as the case may be. Indeed, no such specific relief has been asked for in the suit and without imp leading the affected parties, no declaration can be claimed by the plaintiffs that their church is episcopal in nature, ifthat declaration means that it gives the Catholicos/Malankara Metropolitan/the Metropolitan of the Diocese any title to or any control over"the properties held by the B Parish Churches. We have pointed out hereinbefore that the only place in the plaint where a reference is made to the properties of the Parish Churches is in para 24 where all that it is alleged is that the defendants and their partisans are trying to intermeddle in the affairs of individual churches and are attempting to make use of c the properties of the church to further their illegal and unlawful objects. No list of parish properties is enclosed nor are the particulars of the alleged intermeddling mentioned in the plaint. In the state of such a pleading, the only observation that can be made herein is that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches too, insofar as the said D Constitution provides for the same. In this connection, the learned counsel for the appellants has brought to our notice the following facts: Inasmuch as the plaintiffs asked for a declaration that Malankara Church is an Episcopal Church and appended a list of more than one thousand churches to their plaint, several Parish E Churches came forward with applications under Order I Rule 10(2) of the Civil Procedure Code to implead themselves as defendants to the suit. All the applications were dismissed by the trial Judge against which a batch of civil revision petitions was filed before the Kerala High Court being CRPs Nos. 1029 of 1975 and batch. It was contended by the revision petitioners (Parish F Churches who were seeking to be impleaded in the suit) that if the first relief prayed for in OS No. 142 of 1974 (OS No. 4 of 1979) is granted, it will affect the autonomy and individuality of the individual Parish Churches and, therefore, they should be impleaded as defendants to the suit. This argument was repelled by Khalid, J. (as he then was) in the following words: "I do not think that this apprehension is well-founded. Even under Order I Rule l 0 a party does not have any inherent right to get himself impleaded: that lies in the discretion of the court on being satisfied that the petition is well-founded on merits. The H counsel for the contesting respondents (plaintiffs) would contend

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 127 ORTH. & ORS. [ARUN MISHRA, J.]

that all that the plaintiffs want is for a declaration of the superviSOQ' A and spiritual control over the Church." (Emphasis supplied) Accordingly, the revision petitions were dismissed. If the pJaintiffs mean merely spiritual control by saying episcopal, probably there may be no difficulty in holding that Catholicos and B the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means control over temporal affairs of, or title to or control over the properties of the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the c Parish Churches concerneA.,)t also appears that each of these Parish Churches/Associations has its own constitution, whereunder the general body of the Parishes is declared to be the final authority in temporal matters. All this is mentioned only to emphasise that in the absence of the Parish Churches and proper pleadings and proof. no declaration touching the Parish Churches can be granted D in these suits. In para I03 or'its judgment, the Division Bench has held that while the Malankara Metropolitan has supervisory jurisdiction over the Parish properties as provided in the 1934 Constitution, it cannot be said that the administration of the Parish properties vests in him. It held that the' administration vests in E Parish Assemblies or Parish Churches, subject again to the provisions of the Constitution. In sum, we observe that the 1934 Constitution governs the affairs of the Parish Churches too insofar as it does. The power of the Malankara Metropolitan or the Metropolitan in temporal affairs must be understood in these suits too in the same manner as has been declared in Samudayam ·F judgment, i.e., with respect to the common properties of the Malankara Church as such." (emphasis supplied)

93Copy pinpoint93. ln "The Encyclopedia of Religion", edited by Mircea Eliade, G vol. 3, "Church Polity" has been discussed, its origin and system of appointment of deacons etc. Eventually all the dioceses and provinces of the Roman empire are subject to one of the five Patriarchs ("father- ruler), namely, the bishops of Rome, Antioch, Alexandria, Jerusalem, and Constantinople. Relevant portion is extracted hereunder: H

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A "The governance of the Christian churches has assumed a variety of forms based on historical factors as well as on theological positions regarding the origin or root of ministerial functions. In a descending degree of local autonomy these forms are broadly classified as congregational. presbyter. or Episcopal. but within each category significant modifications exist. After a historical B survey of church governance from its beginnings through the middle Ages, the organization of the major denominations will be considered individually. One cannot speak with precision or certitude about ministry in the early church because it is difficult to date and evaluate the c documentary evidence, including the New Testament writings, and because of differences of organization in the primitive local communities. At the conclusion of an eighty-year evolutionary process there emerged, apparently first at Antioch around AD 110, a threefold hierarchical leadership that gradually became normative throughout the Christian world. The hierarchy ("sacred rule") consisted of three grades: a single bishop charged with the "supervision or over-sight" (episcope) of the community; a group of consultors called presbyters ("elders"); and a subordinate group of deacons, who assisted in the administration of property. Certain functions, such as presiding at the Eucharist, were ordinarily reserved to the bishop. The distinction was thus made between· the people and their leaders, soon called "clergy." who were ordained. that is. set apart for the ministry by the imposition of the bishop's hands. The local church presided over by the bishop was in time known as a ''diocese" or "eparchy". F Church organization gradually accommodated itself to the political divisions of the Roman Empire. The local churches in a Roman province constituted an ecclesiastical province under the presidency of an archbishop or metropolitan who was the bishop of the capital city of the province. By the fourth century the G beginnings of a patriarchal system could be detected in the large regional groupings of provinces. Eventually all the dioceses and provinces of the empire were subject to one of five patriarchs ("father-rule"), namely. the bishops of Rome. Antioch. Alexandria. Jerusalem, and Constantinople. The prominence of these

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 129 ORTH. & ORS. [ARUN MISHRA, J.]

bishoprics may be accounted for on grounds partly theological . A and partly political." [emphasis supplied]

94Copy pinpoint94. In 'The Encyclopedia ofReligion' by Macmillan Publishing Co., New York, Vol. 3, Orthodox and other Eastern churches have been dealt with at page 475. The relevant portion is extracted hereunder:. B "Orthodox and other Eastern churches. The Eastern Orthodox and other Eastern churches are firmly committed to apostolic succession and the episcopacy. The Eastern Orthodox churches accept the first seven ecumenical councils (through the Second Council ofNicaea in 787), as do Roman Catholics. The smaller c Eastern churches, refusing to recognize the third (Ephesus, 432) and fourth (Chalcedon, 451) ecumenical councils, are divided into two Nestorian churches and four others known collecti".ely as non-Chalcedonian Orthodox. [See Nestorian Church; Armenian Church; Coptic Church; Ethiopian Church;-and Syrain Orthodox Church of Antioch] - D The Eastern Orthodox church is not centrally organized but is a federation composed of fourteen autocephalous. or self- governing. churches and seven others. which are known as autonomous. "Autocephaly" connotes the right possessed by ia group of eparchies (dioceses) to settle all internal matters on their own authority and to elect their own bishops. including the head of the church. The boundaries of autocephalies are usually conterminous with those of a state or nation. Four of these autocephalies (Constantinople, Alexandria, Antioch, and Jerusalem) are based upon ancient Christian tradition, as has already been noted. The remaining ten have resulted from modern political developments: Russia, !lomania, Serbia, Greece, Bulgaria, Georgia, Cyprus, Czechoslovakia, Poland, and Albania. The autonomous churches, while to a large degree self-governing, have not' yet achieved full independence: Finland, China, Japan, Macedonia, and three jurisdictions among Russions outside the Soviet Union. (J (The head· of the monastery of Saint Catherine has the rank of archbishop of Sinai; his jurisdiction over the immediate neighbourhood constitutes an autonomous church.) [See also Easter Christianity.]" [emphasis supplied] H

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A It is apparent that the Eastern and other churches are Episcopal and there is a right possessed by a group of eparchies(dioceses) to settle all internal matters on their own authority and to elect their own bishops, including the head of the church.

95Copy pinpoint95. In Halsbury's Laws of England, Sth Edn., vol. 34 relating to ecclesiastical law, the Constitution of Church of England has been dealt with elaborately. Para 140 deals with appointment of archbishops. The appointment is by election pursuant to the licence granted by the Sovereign under the Great Seal. An Archbishop has authority to visit and inspect the Bishops and inferior clergy ofhis province. The appointment of bishops is by the Crown. It has been dealt with in para 179 and para 183 deals with election of bishop by college of canons. Upon the avoidance of a bishopric, the Crown grants to the college of canons of the cathedral a licence under the Great Seal to proceed to the election of a bishop, with a letter containing the name of the person to be elected. The person nominated must be elected and chosen by the college of canons to the void bishopric within 12 days. The consecration of bishop is by archbishop as provided in Para 189 and it is only a bishop who can ordain priests or deacons as provided in para 197.

96Copy pinpoint96. In England in Parish Churches also it is the bishop or diocese that sets in the procedure for appointment of priests. The Diocese appears to be the in charge within the territory diocese operates with respect to such matters. There can be in future process also. Such procedure is detailed in the booklet for Diocese of Exeter.

97Copy pinpoint97. As per 'Diocese of Southwark' a Parish church in England the priests are again appointed by the procedure initiated by Diocese. F Diocese appoints a designated officer to act as contact person between the interested parties and to till the vacancy of a priest. In Udampady also which have been placed on record of 1913 and 1890 procedure for appointment of Vicar and priests etc. has not been provided. On the other hand, it appears that at no point of time the appointment of Vicar/ priests, deacons has been made by the Patriarch. There is no such material G placed on record indicating that the Patriarch at any point of time prior to has exercised such a power.

98Copy pinpoint98. Before dilating further on the issue, it is also necessary to discuss about the meaning of religious rights, spiritual rights, temporal and secular rights. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN , 131 ORTH. & ORS. [ARUN MISHRA. J.]

The word 'religion' has been defined in Oxford dictionary thus: A Religion: the belief in and worship of a superhuman controlling power, expecially a personal God or gods: ideas about the relationship between science and religion. C details of belief as taught or discussed: children should be taught religion in schools.Ca particular system of faith and worship: the B world's great religions. Ca pursuit or interest to which someone ascribes supreme importance: consumerism is the new religion. The word 'religion' has been defined in Black Law Dictionary as: "A system of faith and worship usu. involving belief in a supreme being and. usu. containing a moral or ethical code; esp. such a C system recognised and practiced by a particular church, sect, or denomination. 0 In construing the protections under the Establishment Clause and the Free Exercise Clause, courts have interpreted the term religion quite broadly to include a wide variety of theistic and nontheistic beliefs."

99Copy pinpoint99. Religion is a very vide expression. With the virtue, as founded on reverence of God, is a system ofDivine Faith and Worship as opposed . to others. As observed in Tom/ins Law Dictionary religion is a habit of reverence towards the Divine nature, whereby we are enabled and inclined to serve and worship after such a manner as have conceived most ac.ceptable is called religion. Religion is ordinarily understood to mean some system of faith and practice resting on the idea of the existence of God that creates and rules. Religion in generic means the religion of man and not the religion of any class of men. In Commissioner of F H.R.E. v. Sri Lakshmindra Thirtha Swamiar, Sri Shrirur Mutt. AIR 1954 SC 282, it has been observed that religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions which do not believe in God or any intelligent first cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who propose that G religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief. There are teaching also which differs from religion. The teachings of Shri Aurbindo are only philosophy and not religion as observed by this Court in SP. Mitta/ v. Union of India, AIR 1983 SC I. H

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A I00. Religion is a collection of cul~ural system, bel.ief systems that establishes symbols which relate humanity· to spirituality and sometimes to moral values. There are 19 major religious groupings in the world and from them a total of I0,000 distinct religions exists. Although only about 270 of those have half a million or more followers. In the US alone over B 2500 different religious faith entities can be observed. Religion is an institution established by man for various reasons. The word 'spiritual' has been defined in Oxford dictionary thus: "1. of, relating to, or affecting the human spirit or soul as opposed . to material or physical things: I'm responsible for his spiritual c welfare Ithe spiritual values of life . .a (of a perso"'n) not concerned with material values or pursuits.

2. of or relating to religion or religious belief; Iran's spiritual leaders. D (also negro spiritual) A religious song of a kind associated with black Christians of the southern US, and thought to derive from the combination of European hymns and African musical elements by black slaves. E " A spiritual person is one who seeks to value and connect himself to higher power or simply his higher self. The word 'spiritual' has been defined to mear in Black~ Law F Dictionary as of or relating to ecclesiastical rather than secular matters. I0 I. Spiritualism is alien to temporalism. One whose desire is for . temporal gains, cannot be said to be on the spiritual path. Same are aliens to each other. One who is really spiritual is far away from the temporal desires. Mere spirit.ual knowledge (gyan) is not enough. Spiritual G wisdom is necessary to be really a spiritual person as said by Lord Krishna in the Gita. Shri Ram Krishna Paramhans, the Indian mystic, has given a simple comparison to distinguish between the two, i.e. gyan .and vigyan. Gyan is knowledge and wisdom is vigyan. A person who has only heard of milk, is ignorant. One who has seen the milk has gyan. H But one who has drunk milk and become strong has attained vigyan.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 133 ORTH. & ORS. [ARUN MISHRA, J.]

I02. Spirituality is born and develops in a person. It may be kick started by religion or revelation. Religion is a manifestation of the flesh. But spirituality as defined by the God as manifestation of his nature. True spirituality is something which is found deep within oneself. It can also be said that spirituality is a form ofreligion but a private and personal form of religion. Spirituality is more personal and private while religion tends to incorporate public rituals and organised doctrines. A twilight zone. Religion and spirituality are two distitict terms associated with faith. Spirituality is more abstract than religion. Religion usually promote a creed and define code of ethics. Spirituality exists in the nebulous realm of the undefinable. Spirituality is a supernatural form of transformation. · C

103. ln "Encyclopaedia of Religion and Ethics by James Hastings 'spirituality has been defined as: "The term 'spirituality' has been used in a great variety of ways. The French have appropriated it as the name for the finer perceptions of life; by the American transcendentalists it is used D as a special mark of superior intellects; it is often applied to those mediums through whom communications from departed spirits are said to reac,!1 common earth; Evangelical Christianity reserves the term to describe the warmer religious emotions; and it has its peoper and peculiar application as the distinguishing quality ofNI' E believers." The substantive 'spirituality' does not occur in Scripture, but the adjective 'spiritual' 'is frequently employed to describe the character of the man who has entered the Kingdom of God. Such a man has the Holy Spirit as the vital, determining principle of his life. Such usage does not permit us to apply the epithet to any one who has been moved in some vague way by holy impulses, for a definite and well-marked character as indicated by this description. Of spiritual persons Newman writes: He [the holy Spirit] pervades us (if it may be so said) as light pervades a building, or as a sweet perfume the folds of some honourable robe; so that, in Scripture language, we are said to be in Him, and He in us." . ,..

Swamy Chidanand Saraswatiji has defined spirituality in "the Essence of Spirituality - Service of Others" as: "The essence of spirituality is service. As one goes deeper and H

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A deeper on a spiritual path and as one gets closer to Realisation and Enlightenment, one realises that the Divine resides in all. One begins to see God's presence in every person, every animal, and every plant." The first line in the lshopanishad says: B Isha vaasyamidam sarvam Yat kincha jagatyaam jagat Tena tyaktena bhunjeethaa Maa gradhah kasya svid dhanam

c This mantra tells us that God is manifest in everything in the universe. Alli& Him and all is pervaded by Him. There is nothing which is not God. In the Bhagvat Gita, Bhagwan Krishna says, "/am the Self, 0 Gudakesha, seated in the hearts of all beings: I am the Beginning, D the Middle and also the End of all beings. " When we embark on a spiritual path, or as we walk the path, we must dedicate ourself to cultivating the divine vision and awareness with which we can see the Divine in all. Eytmologically, the English word 'spirituality' is a derivative of E the word 'spirit' which means "animating or vital principle in man and animals". The term 'spiritual' means "concerning the spirit", which is derived from Latin spiritualis, which comes from ''spiritus" or "spirit". Spirituality was meant to imply the mental aspect of life, as opposed to the material and sensual aspects. F Vedantic philosophy lies at the core of Hindu spirituality from the hoary past down to present. According to the tradition, is the process of realisation of this axiomatic truth. The obvious corollary is that one who has realised this truth does not make any distinction between man and any sub-human species and also does not discriminate one man from G another, given the fact that God is at core of every evolved form including human. · I04. In Words and Phrases, Permanent Edition, 39A. 'Spiritualism' and 'spiritualist' have been defined on the strength ofthe decisions referred therein thus : H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 135 ORTH. & ORS. [ARUN MISHRA, J.]

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A communications with departed and disembodied spirits; also one who professes a regard for spiritual things only. Johnson v. State, 65 So.218, 220, 107 Miss. 196, SI L.R.A., N.S., 1183." IOS. The word 'temporal' has been defined in Oxford dictionary thus: B "1. Relating to worldly as opposed to spiritual affairs; secular.

2. of or relating to time. a relating to or denoting time or tense.'' Temporal means worldly, earthly. In Black Law Dictionary the word 'temporal" is defined to mean civil or political power as distinguished C from ecclesiastical power. I06. Thus, we are unable to accept the submissions raised by Shri · K. Parasaran, learned 'senior counsel for various reasons. The ~ppointment of Vicar is not a spiritual matter but is a secular matter. This Court has in Bhuri Nath & Ors. v. State ofJ&K & Ors. ( 1997) 2 .D SCC 745 considered the question for the appointment of priests and the nature of the right of appointment of priests in Shri Mata Vaishno Devi Shrine Board. The priests were performing Puja as per the customary rites and section 2 of the Jammu & Kashmir Shri Mata Vaishno Devi Shrine Act, 1988 gave overriding effect to the Act over any contrary custom, usage or instrument. It declared that the Act shall have the E overriding effect thereon. This Court referred to A.S. Narayana Deekshitulu v. State ofA.P. & Ors. ( 1996) 9 SCC 548 where section 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 abolished the right of the appellants to receive offerings with the abolition of the hereditary rights of Archaka service. F The question arose whether it offended the religion or protection of Articles 25 and 26. It was held that the word 'religion' used in Articles 25 and 26 of the Constitution is personal to the person having faith and belief in the religion. The Religion is that which binds a man with his Cosmos, his Creator or super force. Essentially religion is a matter of personal faith and belief or personal relations of an individual with what he regards as The Cosmos, his Maker or his Creator that; he believes, regulates the existence ofinsentient beings and the forces of the universe. Religion is not necessarily theistic. Areligion undoubtedly has its basis in a system of beliefs and doctrine that are regarded by those who profess religion to be conducive to their spiritual well being. The right to religion guaranteed under Article 25 or26 is not an absolute or unfettered right

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 137 ORTH. & ORS. [ARUN MISHRA, J.]

but is subject to legislation by the State limiting or regulating any activity A - economic, financial, political or secular which is associated with the religious belief, faith, practice or custom. They are subject to reform as social welfare by appropriate legislation by the State. Though religious pracJices and performance of acts in pursuance of religious belief are as much as a part of religion, as faith or belief in a particular doctrine, that 8 . by itself is not conclusive or decisive. What are essential parts 'ofreligion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence - actual or legislative or historic - presented in that context is required to be examined and a decision reached. In secularizing the matters of religion that lire not essentially and integrally C · parts of religion, sec1,1larism, therefore, consciously denolinces all forms of supernaturalism or superstitious beliefs or actions and acts that are not essentially or integrally matters of religion or religious belief or faith or religious practice. A balance, therefore, has to be struck between the rigidity of right to religious belief and faith and their intrinsic restrictions D in matters of religion, religious beliefs or religious practices guaranteed under the Constitution. This Court has distinguished between religious service and the person who performs the service; in the aforesaid decision. The performance ofthe religious service according to the tenets, Agamas, customs, and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent, the,!_egislature E cannot intervene to regu,late. But the service of the priest or Archaka is a secular part. The hereditary right as such is not an integral part of the religious practic.e but a source to secure the s.ervices of a priest independent of it. Though the performance of the ritua Iceremonies is an integral part of the religion, the person who performs the ceremonies is F not a part of spiritual ceremonies itself. With respect to spiritual ceremonies right can be claimed but not with respect to the person who performs it or associates himself with the performance of spiritual ceremonies which is not a right under Article 25. This is a secular right. The custom or usage in that behalf was held not as an integral part of religion. It was held that the legislature has the power to regulate the appointment of G . Archaka, emoluments, and abolition of customary share in the offerings to the Deity. This Court has held thus: "There is a distinction between religious service and the person who performs the service; performance of the religious service H

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A according to the tenets, Agamas, customs, and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent, the legislature cannot intervene to regulate. But the service of the priest (Archaka) is a secular part. The hereditary right as such is not an integral part of the religious practice but a source to secure the services of a priest independent B ofit. Though the performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with the ·performance of ritual ceremonies is not. Therefore, when the hereditary right to perform service in the temple can be terminated or abolished by the sovereign legislature, c it can equally regulate the service conditions sequel to the abolition of the hereditary right of succession in the office of an Archaka. Though an Archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is the holder of an office of priest in the temple. He is subject to the discipline on a par with other members of the establishment. D Abolition of emoluments attached to the office of the Archaka, therefore, cannot be said to be invalid. The customs or usages in that behalf were held not an integral part of the religion. It was, therefore, held that the legislature has the power to regulate the appointment of the Archaka, emoluments, and abolition of E customary share in the offerings to the Deity. The same ratio applies to the facts in this case." I 07. In Pannalal Bansilal Patil & Ors. Etc. v. State of Andhra Pradesh & Anr., AIR 1996 SC1023, Section 144 of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (Act f 30 of 1987) was questioned, which dealt with abolition of shares of trustees etc. This Court held that abolition of system of payment is a matter of legislative wisdom and policy and by this there is no violation of rights under Articles 25 and 26 of the Constitution of India.

108. InA.S. Narayana Deekshitulu (supra), this Court considered G the concept ofreligion under Article 25 of the Constitution ofindia. This Court considered the rituals of various types and made a distinction as follows: "39. Swami Vivekananda in his lecture on "Religion and Science" incorporated in "The Complete Works" (Vol. VI, Sixth Edition) H had stated at page 81 thus:

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 139 ORTH. & ORS. [ARUN MISHRA, J.)

"Experience is the only source of knowledge. In the word, religion is the only science where there is no surety, because it is not taught as a science of experience. This should not be. There is always, however, a small group of men who teach religion from experience. They are called mystics, and these mystics in every religion speak the same tongue and teach the same truth. This is the real science of religion. As mathematics in every part of the world does not differ, so the mystics do not differ. They are all similarly constituted and similarly situated. Their experience is the same; and this becomes law." In Volume II, Ninth Edn. At page 432, Swamiji said that: c "There are two worlds; the microcosm and the macrocosm, the internal and the external. We get truth from both these by means of experience. The truth gathered from internal experience is psychology, metaphysics and religion; from external experience, the physical sciences. Now a perfect truth should be in harmony with experience in both these worlds. The microcosm must bear testimony to the macrocosm and the macrocosm to the microcosm; physical truth must have its counterpart in the internal world, and internal world must have its verification outside.

80. The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed~ To them all must have an equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the Eternal with equality and with equal access and thereby 'exercise greater freedom in his own life. It is essential that the value of law must be tested by its certainty in reiterating the Core of Religious Experience and if a law seeks to separate the non-essential from the essential so that the essential can have a greater focus of attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat visionary." H

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A 109. This Court in A.S. Narayana Deekshitulu (supra) has also held that religion in Articles 25 and 26 has to be construed in its strict and etymological sense. Every aspect of religion is not safeguarded by the Constitution. This Court held as follows: "89. A religion undoubtedly has its basis in a system of beliefs and B doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect ofreligion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion, therefore, c cannot be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles F 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters ofreligion or religious belief or practice.

90. In pluralistic society like India, as stated earlier, there are G numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites etc.; even among Hindus, different denominants and sects residing within the country or abroad profess different religious faiths, beliefs, practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 141 ORTH. & ORS. [ARUN MISHRA, J.]