It has been observed in the case of John Paily & ors vs. The State of Kerala & ors, that the writ of Mandamus under Article 32 of the Indian Constitution cannot be issued for setting an adjudicatory body or tribunal as it will be a complete abuse of the process.
By: Kriti Dubey, Bharati Vidhyapeeth New Law College
The Apex Court of India, while dismissing the writ petition filed by John Paily in which they sought direction to set up a tribunal that will be working independently, comprised of retired High Court judges who can look into claims of each Parish churches to determine which denomination must have control over each church.
There was another thing as well which the petitioner sought direction to the tribunal regarding the passing over of the church to that denomination that will be forming majority or alternative; the partition of the disputed churches and their properties equally.
There was also a prayer made in front of the court to declare that no judgment shall be allowed to operate against the belief of the petitioners and members of the religious denominations unless the same is not protected by Article 25 and 26 of the Constitution of India.
It was opined that “In the concurrent list of the seventh schedule, entry 11A inter alia Administration of Justice; constitution and organization of all courts, except the Supreme Court and the High Courts, No such mandamus can be issued by this court having due regard to the provisions of Article 245 and 246 of the constitution of India.”
The bench comprising Justice DY Chandrachud and MR Shah Even also stating that the petition filled is the complete abuse of the process since no direction can be issued by this court to the legislature to the state to enact a law.
While dismissing the writ petition, the court added “that the purpose for which the petition was filed as evidenced in the prayer made by the petitioner, that no previous judgment of this court on the subject raised should operate but the petitioners themselves have mentioned the case of KS Varghese v Saint Peter’s and Saint Paul’s Syrian Orthodox Church was the sole reason for instituting writ petition under Article 32 of the constitution. Remedy of the party which is aggrieved by a judgment and order of this court cannot certainly lie by instituting a writ under Article 32. The petition will not be maintainable.”