Legal notice to Govt. of Kerala

ജോയിന്റ് ക്രിസ്ത്യന്‍ കൗണ്‍സില്‍ പ്രസിഡണ്ട് ശ്രീ പി. എ. ലാലന്‍ തരകന്‍, പാറായില്‍, എഴുപുന്ന, പള്ളിഭരണത്തിന് നിയമം ഉണ്ടാക്കണമെന്ന് ആവശ്യപ്പെട്ടുകൊണ്ട് കേരള ചീഫ് സെക്രട്ടറിക്ക് ബാബുപോള്‍ അസോസിയേറ്റ്‌സ് മുഖാന്തിരം നല്‍കിയ 

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                                                      നിയമ നോട്ടീസ്:

This legal notice Sent by Joint Christian Council on 09/07/2012 to The Chief Secretary, Government of Kerala, Trivandrum.

Under instructions from our client Sri. P A Lalan Tharakan, Parayil, Ezhupunna, President of Joint Christian Council, Kerala, we issue the following notice to you.

Our client states that The Government of Kerala had appointed a Law Reforms Commission in the year 2006,  which was chaired by Justice V. R. Krishna Iyer to look into Law reforms in the State of Kerala that needed to be enacted, repealed and revised to cater to the welfare of its people.  Recognizing the discrimination the Christian community faced with regard to the administration of their common wealth, the commission recommended that a law be enacted for the administration of wealth and property of the Christian Churches. As per the Constitution of India, wealth and finances of religions should be administered according to law. Kerala Government have been keeping a Nelson’s eye on the matter due to the fear of the vote banks of Bishops and priests. The Christian clergy have robbed the finances and wealth of ancient churches and have dismantled the traditional system of community governance.

SOME CONSTITUTIONAL BACKGROUND

Article 25 of the Constitution of India states as follows:

 “(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 freely to profess, practice and propagate religion.

(2)  Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a)  regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b)  providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Indian constitution envisages to establish India as a secular State. Though the Constitution recognizes different religions, it does not enumerate the number of religions in India. All religious groups enjoy equal right. No religion should get preference over other religions, big or small.

Hindu religion, faith and practice being native, the fathers of the Constitution thought that it was their duty to bring it under law, so as to realize the visions of social reformers like Swami Vivekananda, Mahatma Gandhi, Sree Narayana Guru and many other eminent Hindu reformers.

Pre-independent days Hindu religion was infected by caste system which was a great bane on Hindu religion. “Manusmrithi” became the norm of Hindu socio-cultural life.

The fathers of the Constitution wanted to remove from Hinduism many of the social evils which were repugnant to modern society and basic Hindu theology.

While the core faith of each religion was untouched by Constitution, peripheral growth of religions which grew during the past centuries were to be pruned according to the demands of time.

While Article 25 gives freedom of worship and conscience to the persons in India, the Constitution reserved the powers to regulate the secular matters of the religion to the State.

This is made clear in Article 26 of the Constitution, which reads as follows

“Freedom to manage religious affairs—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a)  to establish and maintain institutions for religious and charitable purposes;

(b)  to manage its own affairs in matters of religion;

(c)   to own and acquire movable and immovable property; and

(d)   to administer such property in accordance with law.” 

In Article 25 of the Constitution quoted above, there is no bar in enacting laws for regulating or restricting any economic, financial, political or other secular activity which is associated with religious practice.

Article 26 permits the religions to acquire wealth and manage its own affairs in matters of religion, the finances of the religion should be administered according to law.

The Constitution does not define religion. How many religions are there in India is any man’s guess. The sections of each religion are all considered as one. There are different varieties of Christian religions in India, Catholics, Orthodox, Jacobites, Marthomites, CSI, CMS, Pentecostal etc. Among Muslims, there are Sunnis, Shias, Wahabees etc.  Constitution does not differentiate between one sect and the other within religions.

Even before freedom, Hindus, Muslims, and Sikhs had laws enacted by the government to regulate and administer the secular affairs of these religions.

Constitution looks at the religion as a community of the people and the religious community is formed by the will of the people. Religion is a voluntary organization, and as such the wealth of religions is communal in nature.

India being a democratic country, its affairs are to be run under the Constitution and law in a democratic manner. Hence the financial, economic and secular matters of religions also should be run under the authority of law enacted by the Parliament or Assembly. This is specifically stated in Article 26 (d) “to administer such property in accordance with law”. 

Christians in India according to their belief and tradition have been living in India from the 1st century A D. They had developed a customary system of financial administration known as ‘Law of Thomas’. Church historians have brought out the salient features of ‘Law of Thomas’.

Rev Dr. Xavier Koodapuzha, the Church Historian describes the administration of the Indian Church prior to the arrival of Portuguese.

''The Church administration of the Thomas Christians too did bear characteristics very close to the New Testament background. Their administration was of a decentralized type drawing inspiration from Acts 6: 1-- 6, Here we find excellent example of priority given by the Apostles''.

''In the ecclesial life of the Thomas Christians Palliyogam played a very important role. A yogam consists of the representatives of the families and the clergy of a parish. This assembly is presided over by the parish priest. The yogam discusses the problems connected with the life and activities of the parish, such as the approval of the candidates to priesthood, spiritual welfare of the parish, the financial administration, punishment for public sinners, reconciliation in times of conflict, etc. The candidates for priesthood have to get the ‘desakkuri’, the official approval, of the parish community.....''

.....The members of the assembly enjoyed perfect equality and it was an effective means of maintaining communion and solidarity in the community. The idea of the church as a community of the fellowship was kept alive through the yogam.

"....The local problems of the community were discussed in the parish yogam. Matters of wider importance were discussed in the General Yogam which consisted of  representatives of all the parish in the General Yogam the Archdeacon had a very decisive role. We come across such gatherings before important events of the Church. There were gatherings of this kind before and after the 'Koonan Cross" oath. The general gathering decided to send Fr. Cariatti and others to Rome. The necessary money was raised by the General Yogam. Fr. Paulinus of Bartholomeo, who was a Carmelite missionary in India calls it a republican system of government" (Ecclesial Identity of St. Thomas Christians, P- 64,78, 79, 80, 81).

Arch Bishop Emeritus Mar Joseph Powathil draws a clear picture how churches were administered. He states “The sum total of their particular theological heritage was expressed by the phrase ‘Law of Thomas’ (Thommayude Margam) which implied their Christian heritage specifically expressed in the entire life style of their Church. Thommayude Margam was a dynamic expression of a living theology” (Acts of the Synod of Bishops of the Syro-Malabar Church, P-71)

Mar Andrews Thazhathu the present Arch Bishop of Thrissur has written a book named Law of Thomas “ The Law of Thomas: The Thomas Christians always cherished with the idea that they had ‘the See Of Thomas’ and that their Church was governed by the ‘Law of Thomas’. This idea grew stronger when they came into contact with the western Christian way of life (Latin customs and laws). By the term ‘Law of Thomas’ they meant the customs and laws (consuetudines) which they received through tradition since the time of their Apostle Thomas” (The Juridical Sources of the Syro-Malabar Church, P-6)

During the time of Portuguese colonial invasion in Sixteen Century, Portugal tried to impose a centralized administrative system as developed in Europe. This was resisted by Indian Christians.

After Independence, (mis) using the religious freedom granted by the Constitution of India the Western Church( Latin Church) imposed western systems in the administration of the Indian Churches. All customs and traditions of Indian Christians have been wiped out and financial administration became centralized and clerical. 

The financial administration of the Muslim Community is conducted under Wakf law. The wealth of the Gurudwaras is administered according to Gurudwara Act. Big Hindu Temples are administered by laws enacted by the Centre or State. But there is no law for the administration of the finances of the Christian religion.

The Christian religion especially Catholic Churches have huge movable and immovable property and this is administered by the Priests without reference to the community.

The Government is discriminating the Christian community by throwing them to the mercy of the priests!!

As per the article 26 of the Constitution, all secular activities of the religions should be conducted according to law. The government has not so far enacted any law for the administration of the finances of the Christians. Christians in India are the only religious group who conducts its financial and secular activities outside the enacted law. This is clearly discriminatory in nature.

The Government of Kerala had appointed a Law Reforms Commission in 2006 under auspices of Justice V. R. Krishna Iyer as Chairman.

Recognizing the discrimination the Christian community faced with regard to the administration of their common wealth, the commission recommended that a law be enacted for the administration of wealth and property of the Christian Churches. However, due to political reasons the government of Kerala did not take any step towards enacting a law. Hence the wealth of the Christian community is run lawlessly by the priests. 

As per the Constitution of India, wealth and finances of religions should be administered according to law. Kerala Government have been keeping a Nelson’s eye on the matter due to the fear of the vote banks of Bishops and priests. The Christian clergy have robbed the finances and wealth of ancient churches and have dismantled the traditional system of community governance. Hence, we request the Government of Kerala to enact a law on the lines of what has been proposed by the Law Reforms Commission headed by Justice V R Krishna Iyer and from the features of the Law of Thomas, the traditional system of the administration of churches.

In the above circumstances we hereby notify you that if you fail to take necessary steps so as to prepare the necessary draft of a legislative Bill as recommended by the Law Reforms Commission headed by Justice V.R. Krishna Iyer and the same to be introduced in the Kerala State Legislative Assembly for its consideration, within 60 days of this notice, we will be constrained to take appropriate legal actions against you, without any further notice. In that event, we need hardly emphasis that you alone will be responsible for the costs and consequences that may follow.
(This Legal Notice issued to the Government of Kerala on 09/07/2012 by Babu Paul Associates on 'CHURCH ACT')