John K A vs State Of Kerala

A.Muhamed Mustaque, J

These appeals are filed by the petitioners in the writ petitions. The learned Single Judge dismissed the writ petitions as the same are not maintainable. The challenge in the writ petitions relates to the consecration process of Catholics of the Syrian Orthodox churches without inviting the patriarch of Antioch. The writ petitions were essentially filed in the light of the declaration of law in regard to the affairs of the parish churches, which is a part of the Malankara Church, in view of the decision of the Apex Court in K.S Varghese v. St. Peter's and Paul's Syrian Orthodox Church [2017 (3) KLT 261 SC]. The writ petitioners approached this Court for implementation of one of the directions issued in the above case invoking the writ of mandamus. The said direction of the Apex Court is found in paragraph 157, which reads thus:

“If   any   one   shall   be   consecrated   as Catholicos, the Association shall elect him to that office. The Synod shall consecrate the person as Catholicos and there shall be invitation to Patriarch when the Catholicos is to be consecrated and if the Patriarch arrives, he shall consecrate the Catholics with the co-operation of the Synod. S.114 is extracted hereunder: ” (Omitted)

They also seek a declaration to the effect that the   consecration  process  completed  without  inviting  the patriarch for consecration is against the judgment of the Apex Court in K.S Varghese case (supra).

The   learned   Single   Judge   held   that   civil disputes between the parties cannot be decided in writ jurisdiction.

We have no doubt that the judgment of the Apex Court would govern the parties in respect to the Malankara Church. The point that arises for consideration is whether a writ can be issued to implement the judgment of the Apex Court or not.

The power of the High Court under Article 226 of the Constitution of India to issue various writs is relatable to the public law remedy. If there is no public law element to invoke Article 226 of the Constitution, the High Court cannot act on prayers to implement the judgment of the Apex Court. It is to be noted that as far as the law is concerned, the decision in K.S Varghese case (supra) is rendered on private law premise as the disputants were private parties and the dispute related to the Malankara Church. The writ jurisdictions are predominently a public law remedy, and not a private law remedy. The domain of Private law is governed by the relationship of the individuals or private entities. Public law is the regulation of legal systems related to the general public, society or state. The writ court is not an executing court of the judgment of the Apex Court. If the judgment of the Apex Court is capable of being executed through ordinary civil court, the writ court should not take up the task of implementation or enforcement of the judgment of the Apex Court or this Court.

However, there are situations where the writ court may have to intervene in private law as well, when such enforcement or implementation of the judgment predominantly has a public law element. That would arise when public officials or the state is required under law to ensure enforcement of the decree or judgment of the Apex Court, this Court or any other court. So also, in a situation when there are no effective remedies available to execute the decree or judgment of the civil court. In fact, in regard to enforcement of the K.S Varghese case (supra), this Court had given police protection, as an aid, based on the declaratory relief granted by the Apex Court in the K.S Varghese case (supra). It is appropriate to refer to the judgment of this Court in W.P (C) No.33316 of 2019 in paragraph 11 which reads thus:

“Law and order is a matter of governance. Th civil court has no role in itself to interfere or supervise the matter of governance. The civil court has only limited jurisdiction and power. It can order police assistance as an aid to execute the decree. When nothing remains as executable, the executing power of the civil court cannot be invoked for the police protection alone. The constitutional courts are not only the courts of arbiter resolving disputes but also courts protecting rights guaranteed to the citizen. The constitutional courts have a duty to maintain and uphold the rule of law. When there is a challenge to the rule of law by a citizen who is bound to obey the same, the court can step in by invoking its power of mandamus. The court has to consider whether any effective measures are available otherwise. If there are no other measures, this Court has to invoke its power of writ for the reasons of justice.”

Therefore, in order to issue a writ of mandamus or any other writ, petitioners need to demonstrate existence of public law element for the state or public officials to enforce or implement the order. Ordinarily, the constitutional court need not be expected to implement the decree or judgment like an executing court, except when there is a public law element, in enforcing such a decree or judgment.

In this case, we find there exists no public law element. If the consecration of Catholics is not in accordance with the directions of the Apex Court, the executingcourtcanverywellensurethe implementation of the directions. It is for the executing court to decide whether the directions have been followed or violated and to decide on the execution of the directions. This Court cannot assume violation of direction, to issue a writ of mandamus without essential fact findings. That fact finding cannot be embarked upon unless such fact finding overlaps with the public law element. In a dispute involving pure private law element, the constitutional court shall not invoke writ jurisdiction to enforce a judgment, unless enforcement itself lies on Public Law. There exists absolutely no public law element in this case. We, therefore, are of the view that the writ petitioners failed to make out a case for issuance of the writ of mandamus. Thus, appeal fails. Accordingly, dismissed. No order as to costs.