Saji Koduvath, Advocate, Kottayam.

Abstract of this Article

An Association of Knanites, consisting of persons who married non-Knanites, filed civil suits questioning the practice of endogamy and ‘expulsion’ of a member from the Knanaya Diocese. It was argued that this practice is unconstitutional. They claimed right to continue in their parent churches despite their marriage with a non-Knanite Christian.

• The Association claimed that they had the Fundamental Right under Art. 25 of the Constitution of India to continue, despite their marriage. Art. 25 of the Constitution says –
  • “all persons are equally entitled to freedom of conscience and the right to freely profess, PRACTICE and propagate religion.”
• The Association pointed out that the Apex Court held that the rights protected under Art. 25 and 26 of the Constitution of India were LIMITED to ESSENTIAL and INTEGRAL part of religion and no other (Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402).

• The Association argued that the practice of endogamy or ‘expulsion’ of a member on marriage with a non-Knanite would not come within ESSENTIAL religious practices of religious denomination or right to manage its own affairs in matters of religion.

Knanaya/Catholic Church, resisting the suit of the Knanaya Association, founded their argument upon the verdict in The Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

• Knanaya/Catholic Church claimed that it was a religious DENOMINATION or any SECTION THEREOF entitled to MANAGE its own affairs in matters of religion under Article 26.
  • Therefore, their practice of endogamy and ‘expulsion’ come within rights of DENOMINATION to MANAGE its own affairs in matters of religion.
• Knanaya/Catholic Church pointed out that the Apex Court held that the protection of Articles 25 and 26 is not limited to matters of doctrine or belief; but, they extend also to ACTS done in pursuance of religion.
  • (Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388;
  • Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853).
• Knanaya/Catholic Church further brought up that the Apex Court had denoted – what constituted an ‘essential part of a religion‘ or ‘religious practice’ had to be decided with reference to the doctrines of the particular religion and the practices which were REGARDED by the COMMUNITY as a part of its religion.
  • (Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255;
  • Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay,  AIR 1962 SC 853;
  • Shri Govindlalji Maharaj v. St. of Rajasthan, AIR 1963 SC 1638).

Genuine Legal questions

• 1. Whether Knanites/Diocese constitute a COMMUNITY or religious DENOMINATION so as to claim rights under Art. 26 to manage its own affairs in matters of religion (as claimed by the Catholic Church)?
• 2. Whether Endogamy is REGARDED by the COMMUNITY an ESSENTIAL or INTEGRAL part of Religion, so as to get protection under Art. 25 and 26 (as claimed by the Catholic Church)?
• 3. Rights guaranteed under Article 26 is ‘subject to public order, morality and health’. Does it include the whole ‘Constitutional morality’ in the teeth of Article 14, 15, 17, 21 etc. (as claimed by the Knanaya Association)?

PART I

Knanaya Community in Kerala

Knanites constitute a well-known Christian community in Kerala.  The members of this fraternity believe that they are the endogamous-descendants of Syrian-Jewish group who sailed from Syria and landed Kerala in the 4^th or 8^th century under the leadership of a merchant, Knayi Thoma.  In any case, it is a fact that this sect follows certain cultural and religious practices of their own, for the past several centuries. It is also a fact that this community steadfastly stick on to endogamy; and marriage of a Knanaya person with a non-Knanaya is not conducted in known Knanaya churches. 

Majority of Knanites are Roman Catholic. A portion is with the Syrian Orthodox Church. Distinctiveness of this group is recognised by the Roman Pontiff in 1911 by giving a separate Vicariate (Bishop from their own community, with an independent Diocese), taking note of the century old feud between the Knanites and non-Knanites.

A large number of Knanites in Kerala are migrated to west, especially, USA. A group of these migrants and some progressive youth in Kerala today argue that endogamy is archaic and that it is opposed to Divine law and Cannons of the Church.

Suits in Courts.

Several Knanites filed civil suits claiming rights in their parent churches despite their marriage with a non-Knanite Christian (in a non-Knanite church). Now, an Association of Knanites won the comprehensive suit filed in Subordinate Court, Kottayam wherein they claimed that the practice of expulsion of Knanites from the Knananya churches for marrying non-knanite is against the Divine law, Canon and various Fundamental Rights guaranteed in Article 25 of the Constitution of India.  The appeal therefrom is dismissed by the District Court, Kottayam (on 2. 9. 2022), affirming the decision of the Subordinate Court.

PART II

Article 25 and 26 of the Constitution of India

The association filed the suit on the claim that endogamy is outmoded and irrational. They based their claims on Article 25(1) of the Constitution of India. Article 25(1) reads as under:

• “25(1). Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.”

The Knanaya Church that opposed the suit relied on Article 26(b). It reads as under:

• “26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof  shall have the right
• (a) … …. ;
• (b) to manage its own affairs in matters of religion;
• (c) … …. ; and
• (d) to administer such property in accordance with law.”     

Nexus between Art. 25 and 26.

Article 25(1) secures fundamental right to ‘persons’. Article 26 protects right of the ‘denomination or any section thereof’. Clause (b) of Article 26 provides right ‘to manage its own affairs in matters of religion’.

Read Blog: Secularism and Art. 25 & 26 of the Indian Constitution

PART III

CONTENTIONS OF THE ASSOCIATION That Stands For Declaring Endogamy, Illegal

1. Endogamy is not an ESSENTIAL or INTEGRAL part of Religion.
2. The teachings of Christ, Divine Law etc. stand against endogamy
3. Even if Knanaya community can maintain ‘endogamy’, that cannot be made use by the Diocese.
4. Canon and common law do not allow expulsion of the members in a Diocese for marrying a catholic from another Diocese.
5. Endogamy is an unpleasant practice, and it is opposes to Constitutional Morality and Individual Rights affirmed in the Constitution of India.

1. Endogamy is not an ESSENTIAL or INTEGRAL part of Religion  

It is held in The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, as under:

• “Under article 26(b), therefore, a religious DENOMINATION or organisation 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.” 

The rights protected under Art. 25 and 26 of the Constitution of India are LIMITED to ESSENTIAL and INTEGRAL part of religion and no other, as held in Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402. It is held in this decision as under:

• “Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential and integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and integral partof it and no other.”

2. The teachings of Christ, Divine Law etc.

The teachings of Christ, Divine Law (The Bible), provisions of Canon etc. unequivocally stand against the practice of endogamy.  Bible (Galatians – 3: 28) proclaims that ‘there is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus‘. Devine law is fundamental; no one can disdain Divine law.

When a new vicariat (diocese) was formed in 1911 for Southists (Knanaya), no whisper at all was made in the Bull of Pope to the effect that the people of new vicariat can ignore any basic principle that made fundamentals of Catholic Church.

Canon says that the membership of a Catholic is in his ‘sui juris’ church – that is, in the Rite which he joins or is included. The Knanites in Kerala are under the Syro Malabar Rite. No independent claim can be raised by Knanites as to the very fundamental matters including the membership in the Church.

3. Even if there is ‘Knanaya Community’, the members cannot be estranged from ‘Diocese’

Even if it is assumed that there is ‘Knanaya Community’ with their own characteristic practices, no one can be expelled from the ecclesiastical ‘Diocese’ under which Knanites are are grouped-in (for he/she had married a non-Knanite); because, it is not supported by any of the provision of Canon and other laws applicable to the Church.

4. Constitutional Morality and Individual Rights

Rights guaranteed under Article 26 is ‘subject to public order, morality and health’. Therefore, the ‘Constitutional morality’, and individual rights that gain primacy, enshrined and projected in Article 14, 15, 17, 21 etc. are to be aptly regarded while considering the rights of ‘religious denomination or any section thereof’ in Article 26. They make it clear that endogamy is opposed to Constitutional morality. In any event, it is illegal, in the teeth of Article 14, 15, 17, 21 etc, to estrange a catholic from a Knanaya church for he married a non-knanaya.

PART IV

CONTENTIONS OF THE KNANAYA DIOCESE That Stands For Endogamy

1. Article 25(1) is subject to Article 26.
2. For a denomination no ‘distinctive’ faith is needed.
3. Denomination Enjoys Complete Autonomy.
4. Religious Practices are as important as Faith.
5. Excommunication on Religious Grounds – part of Management by the Community.
6. Durgah Committee verdict is an Odd Decision.

1. Article 25(1) is ‘subject to’ Article 26

Article 25(1) speaks about fundamental right secured to ‘persons’.  Article 25(1) begins with the words – ‘subject to other provisions of this part’.  It includes Article 26(b).  Therefore, the right of denomination or section thereof prevails over the personal right under Article 25(1).

From the above, it is clear that the argument on ‘Constitutional morality’, with reference to other Articles in the Constitution, has to be looked into in the light of of the clause in Art. 25 that it is ‘subject to’ Art. 26.

2. For a denomination no ‘distinctive’ faith is needed

Knanites constitute a denomination. They can claim rights under Art. 26. It is admitted by the parties to the suit that the Knanites have common spiritual organization and distinctive name. It is noteworthy (from Shirur Mutt case) that to acquire the denominational-status, ‘distinctive faith’ is not needed.

In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) it is observed –

• (1) Article 26 contemplates not merely a religious denomination, but also a section thereof.
• (2) Denomination contemplates the Mutt or the spiritual fraternity, Organization, sect or sub-sect.
• (3) Definition of denomination in Oxford Dictionary is referred to in this decision.   It defines denomination as – collection of individuals having a
  • distinctive name,
  • common faith and
  • common spiritual organization.

In Acharya Jagdishwaranand Avadhuta v. Commr. of Police, AIR 1984 SC 51, referring earlier decisions, including Shirur Mutt, it is held as under:

• “Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious DENOMINATION, within the Hindu religion.” 

In S.P. Mittal v. Union of India, AIR 1883 SC 1, Chinnappa Reddy, J. (Minority) observed: 

• “Any Freedom or Right involving the conscience must naturally receive a wide interpretation and the expression ‘religion’ and ‘religious DENOMINATION‘ must therefore, be interpreted in no narrow, stifling sense but is a liberal, expansive way”. (Indhu Malhotra, J. quoted this portion in Sabarimala case, Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1, observing that the judgment of Chinnappa Reddy, J. was a ‘concurring’ one.)

The majority judgment in S.P. Mittal referred to the argument of Soli Sorabji, Senior Advocate, as to show how the ‘common faith’ doctrine was placed – the argument was that the followers of Aurobindo ‘shared’ common faith (within their denomination).

In other words, to acquire the denominational status, the ‘faith’ of ‘denomination’ need not be distinctive from the faith of others in the same religion.

3. Denomination Enjoys Complete Autonomy

It is held in The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) as under:

• “Under article 26(b), therefore, a religious DENOMINATION or organisation 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.” 

In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, the Apex Court analysed Shirur Mutt case and said as under:

• “7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF ….”

4. ‘Religious Practices’ are as Important as ‘Faith‘

In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) it is held as under:

• “A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual wellbeing, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and dress.”

In Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388, it is observed as under:

• “Religious practices or performances of ACTS, in pursuance of religious belief are AS MUCH A PART of religion as faith or belief in particular doctrines.”

In Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, it is held as under:

• “It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the COMMUNITY as part of its religion ….”

5. Excommunication on Religious Grounds – part of Management by the COMMUNITY

In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, it is held as under:

• “What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the COMMUNITY, through its religious head, “of its own affairs in matters of religion.” The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under cl. (b) of Art. 26 of the Constitution.”
• That excommunication of a member of a COMMUNITY will affect many of his civil rights is undoubtedly true. This particular religious DENOMINATION is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such property. It might be thought undesirable that the head of a religious community would have the power to take away in this manner the civil rights of any person. The right given under Art. 26 (b) has not however been made subject to preservation of civil rights. The express limitation in Art. 26 itself is that this right under the several clauses of the article will exist subject to public order, morality and health. It has been held by this Court in Sri Venkataramana Devaru v. The State of Mysore (1) that the right under Art. 26(b) is subject further to cl. 2 of Art. 25 of the Constitution.”
• “We shall presently consider whether these limitations on the rights of a religious community to manage its own affairs in matters of religion can come to the help of the impugned Act. It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”

6. Durgah Committee verdict is an Odd Decision; All five judges in Durgah Committee changed their Views

In Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402, it was held as under:

• The ‘essential practices’ of RELIGION alone is considered.
• The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion’ may have to be carefully scrutinised by the COURT.

All five judges in Durgah Committee (PB Gajendragadkar, AK Sarkar, KN Wanchoo, K.C. Das Gupta, N. Rajagopala Aiyankar JJ.) changed their views by two subsequent decisions, as to (i) the ‘essential practices’ of RELIGION and (ii) the ‘role of COURT‘ in determining the essential religious practice. It was observed in the subsequent decisions that ‘what was regarded by the COMMUNITY‘ on essential religious practice was important.

Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to the enquiry on integral part of religion, in a subsequent Five Judge Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (BP Sinha, CJ, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, J.C Shah JJ.), AIR 1963 SC 1638. (The bench consisted also of two Judges – K.N. Wanchoo, K.C. Das Gupta JJ. – in Dargah Committee Case, other than Gajendragadkar, J.). It is held in Tilkayat Case as under:

• “In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is REGARDED as such by the COMMUNITY following the religion or not.”
• “This question (as to essential religious practice) will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the CONSCIENCE of the COMMUNITY and the tenets of its religion.”

In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, (BP Sinha, CJ, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, Mudholkar, JJ.) it was held by a Constitution Bench (Sinha, C. J. dissenting) of five Judges (consisted of three Judges in Dargah Committee Case – A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, JJ.) as under:

• “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri Venkatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer v. Syed Hussain Ali and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to ACTS done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITY as a part of its religion.

In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is pointed out that there is apparent conflict between the Shirur Mutt Case and Durgah Committee Case.

It is observed –

• Seven Judges bench of the Apex Court, in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt), held that what were essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION itself.
  • The subsequent Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carved out a ROLE FOR THE COURT in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.Both these decisions ‘seem to be in APPARENT CONFLICT‘.
  • It requires consideration by a larger Bench.

It is further contended that the circumstances that led to issuance of the 1911 Bull is clear from the words of the Bull as well as the documents referred to therein – that is, the letters of the Bishops in Kerala and the representative of Pope. These documents refer to the need of special consideration of Knanites. The subsequent conduct of the Church also is important. It is a fact that Bishops from their own community is ordained for Knanites. Knanaya Diocese has no territorial limit in jurisdiction whereas all other Catholic Dioceses (within Kerala) has territorial limit.

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