Analysis
The case concerned Gurdwaras (Sikh temples) which were established under the discipline and headship of His Holiness Brahamgiani, revered 108 Sant Maharaj Baba Gian Singh Ji, the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal (the First Holy Saint). Responsibility for the management of the Gurdwaras was given by the First Holy Saint to various individuals (some described as trustees), with the First Holy Saint having the authority to change any trustee, management member and the whole management system at any time. Numerous documents relating to the establishment, management and constitution of the Gurdwaras had been executed including various memoranda, deeds of trust and constitutions. Following the death of the First Holy Saint and his successor, the Second Holy Saint (Sant Habhajan Ji), a dispute arose concerning the purported removal and replacement of various trustees (including the respondents) by Saint Sant Jeet Singh Ji Maharaj who the appellants claimed was recognised as the head of Nirmal Kutia and had thereby become the Third Holy Saint with power to appoint and remove trustees.
The appellants issued proceedings in the High Court seeking various heads of relief including removal of the respondents as trustees and members of the management committees of the Gurdwaras. The appellants applied to amend their particulars of claim. This was opposed by the respondents who also sought to strike out the claim on the basis that it raised issues which were non-justiciable.
HHJ David Cooke, sitting as a judge of the High Court in the Birmingham District Registry, granted the appellants permission to amend their particulars of claim and dismissed the respondents’ application to strike out the claim.
The respondents appealed. The Court of Appeal allowed their appeal and stayed the proceedings generally, holding that there were no judicial or manageable standard by which the issues could be judged because they turned on the question ‘who is the successor’ of the original founder of the trusts which was an issue which depended on the religious beliefs and practices of Sikhs generally and the Nirmal Jutia Sikh institution in particular and was not justiciable by the English courts.
The respondents appealed to the Supreme Court.
The Supreme Court identified four issues which were likely to be in dispute in the proceedings. First, whether the respondents were right that a deed of trust executed in 1991 (the 1991 deed) was invalid if and in so far as it purported to confer the power to appoint and dismiss trustees on anyone other than the First Holy Saint. Second, whether the reference to successor of the First Holy Saint in the 1991 deed was to be read as limited to Sant Harbhajan Ji, the anticipated and actual immediate successor to the First Holy Saint, or whether it extended to each subsequent successor. Thirdly and fourthly, whether Sant Jeet Singh Ji Maharaj was a successor to the First Holy Saint, in other words, whether he was the Third Holy Saint and whether he has departed from the tenets of mainstream Sikhism and was, on character grounds, unfit to be successor.
Held, allowing the appeal and restoring the order of HHJ Cooke:
- 1) It was difficult to see how the decision to stay the proceedings generally could be justified in light of the first two issues although it was understandable why it might be said that the third and fourth issues were not justiciable. The first issue of whether the original trustees, who were resident in England and held property in England, had the power to execute a document such as the 1991 deed turned solely on the English law of trusts and could not conceivably involve a non-justiciable issue. The second issue turned on a question of interpretation of the 1991 deed and it would be more than strange if a pure question of interpretation of a trust deed executed in England relating to property in England and clearly intended to be governed by English law could not be resolved by an English court.
- 2) The term non-justiciable refers to a case where an issue is inherently unsuitable for judicial determination by reason only of its subject-matter. Such cases generally fall into two categories.
- 3) The first category of cases is where the issue is beyond the constitutional competence assigned to the courts under their conception of the separation of powers. The paradigm cases are cases concerning certain transactions of foreign states where there are constitutional limits on the courts’ competence as against the executive in matters directly affecting the United Kingdom’s relations with foreign states and cases concerning proceedings in parliament where there are constitutional limits on the courts’ competence against that of parliament. In such cases, once a non-justiciable issue is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable. Where a non-justiciable issue inhibits the defence of a claim, this may make it necessary to strike out an otherwise justiciable claim on the ground that it cannot fairly be tried.
- 4) The second category of non-justiciable cases comprises claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law. Some such issues might be non-justiciable if the court were asked to decide them in the abstract. However if their resolution is necessary in order to decide some other issue which is itself justiciable, they must nevertheless be resolved.
- 5) Whilst courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites, where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. Thus the court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust.
- 6) With regards contractual rights, the governing bodies of a religious voluntary association obtain their powers over its members by contract and must act within the powers conferred by the association’s contractual constitution. If a governing body of a religious community were to act ultra vires a member could invoke the jurisdiction of the courts.
- 7) With regards to the court’s enforcement of trusts, courts have jurisdiction to determine disputes over the ownership, possession and control of property held on trust for religious purposes. Civil courts can ascertain the foundational and essential tenets of a faith in order to identify who is entitled to property where parties dispute who has the beneficial interest in property which is held on trust for a religious community.
- 8) In the event of a division within a voluntary religious body, the property held for the purposes of the association will go to the part of the body that adheres to its fundamental religious principles, as identified in its contract of association.
- 9) The court has power to make a scheme cy-près including on the grounds that the original purposes, in whole or in part, have since they were laid down ceased to provide a suitable and effective method of using the property available, regard being had to the spirit of the gift. This power may provide a means of avoiding judicial determination of a religious dispute but if it is not available, the court cannot shirk its duty to determine the matter of civil rights. Accordingly, unless the parties are able to resolve their differences, for example by a reorganisation of the trust purposes cy-près, the court may have to adjudicate upon matters of religious doctrine and practice in order to determine who are the trustees entitled to administer the trusts.
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