2002
{Source:- Indian Express dt. 27-Dec-02)
Legal loopholes delay resolution of dispute in Malankara Church
KOCHI: The century-old dispute in Malankara Church, if not diffused through negotiations, will be back to square one, as many legal loopholes stand in the way of the Orthodox Church claiming absolute right over disputed churches and of the State Government enforcing the Supreme Court verdict.
The apex court verdict, the subsequent convening of Malankara Association, the election of Baselious Marthoma Mathews II as Malankara Metroplitan etc. have apparently put the Orthodox Catholicos in supremacy over the 1662 parish churches, their properties and institutions. However, certain legal lacunae prevent the Orthodox faction from claiming absolute success.
The following is the crux of the Supreme Court ruling: The Patriarch of Antoch is the supreme spiritual head of the Church, but lacks temporal powers over the Church. The expression `Throne of St.Thomas' is honorific. The meeting convened by the Orthodox faction in 1934 after serving notice to all concerned, was valid. Consequently the decisions taken at the meeting are valid. The parallel meeting held by Jacobites was void for want of notice to all. The selection and consecration of the Catholicos and Metropolitans belonging to Jacobite faction were void. They have no powers or privileges until they declare allegiance to the 1934-constitution.
It was against this background that elections to the Malankara Association and the managing committee were held on March 20, 2002 under court supervision. The association approved the appointment of Baselious Marthoma Mathews II as Malankara Metropolitan and took other decisions. The Supreme Court on July 12, 2002 approved the appointment and the other decisions as ``final and binding'' and said that it was ``not open to challenge in any court or other forums.''
In this circumstance, the 1662 parish churches in and outside Kerala came under the Episcopal and temporal administration of the Catholicos, claims the Orthodox faction.
Meantime, however, the Jacobites walked out of the Malankara Association, which is a voluntary association of parish churches through their representatives, and formed another by name Jacobite Syrian Christian Association, with its own constitution.
What are the consequences of such severing of ties by the representatives of 489 parish churches? The resolution of the dispute depends solely on the answer to this question.
According to the Orthodox faction, the Jacobites formed a new Church and thus relinquished the claim over Malankara Church. But the Jacobites claim that they have relinquished only the right over the common properties of the Malankara Association. The parish churches do not form such common properties; rather they belong to the members of the respective parish.
They find support for this argument in the Supreme Court verdict. The court had not accepted the finding of a Division Bench of the Kerala High Court that the parish churches are constituent parts of Malankara Church and that their day-to-day administration vests in the Parish Assembly subject to the constitution and supervisory power of Malankara Metropolitan.
Instead, the Supreme Court held that the parishes were not parties before the courts and so ``no declaration can be granted affecting the rights of the parish churches in their absence, nor can it be declared that the properties held by the parish churches vest in the Catholicos or Malankara Metropolitan or the Metropolitan of the concerned diocese.''
Again, if the parishioners decide to come out of a purely voluntary association and form another, they are protected by Article 19(1)(c) of the Constitution of India (fundamental right to form association or unions), Article 25 (right to profess, practice and propagate religion) and Article 26 (the right of every religious denomination or any section thereof to own and acquire movable and immovable properties and to administer them according to law).
In short, Malankara Association or the Malankara Metropolitan can claim right over the parish churches only if they form part of the association. Or else they should file a suit, impleading all the 1662 churches, and secure a declaration that parish churches and their properties belong to him.
Thus, by disassociating with Malankara association, the 489 churches slipped out of the net. If the Orthodox are not in mood to accept this position, naturally, there will be a fresh round of litigation right from various subordinate courts up to the apex court. This would happen even if the Kerala High Court grants police protection sought for by the Orthodox to exercise their rights.