Are matters of doctrine justiciable? – Khaira v Shergill

Today the Supreme Court begins hearing the appeal from Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983. Eight of the appellants sought a declaration that they had been validly appointed as trustees of gurdwaras in Birmingham and High Wycombe by the ninth appellant who (they contend) is the Third Holy Saint of Nirmal Kutia Johal, a Sikh institution based in India. The trust deeds of the gurdwaras in question empower the First Holy Saint “and his successor” to remove and appoint trustees. The respondents – the original trustees of the gurdwaras – argue that the ninth appellant has no power to remove and appoint trustees of the gurdwaras.

The respondents applied for a strike-out or a permanent stay of the proceedings on the basis that the action raised non-justiciable questions of religious belief and practice. At first instance HHJ David Cooke, sitting as a judge of the Chancery Division, dismissed the application; but the Court of Appeal (Mummery, Hooper and Pitchford LJJ) unanimously reversed that decision. The principal question before the Supreme Court, therefore, is this: “whether the proceedings unavoidably raise non-justiciable issues of religious belief, doctrine and practice”.

As Mummery LJ pointed out in the Court of Appeal at para 24, there is a raft of cases demonstrating the proposition that the civil courts do not adjudicate on matters of religious doctrine and practice:

  • R v Archbishops of Canterbury and York ex p Williamson [1994] CA (no arguable challenge to ordination of women priests);
  • R v Chief Rabbi ex p Wachmann [1992] 1 WLR 1036 (no judicial review of questions of Jewish law or of the religious function exercised by the Chief Rabbi in deciding that a rabbi was no longer morally and religiously fit to hold rabbinical office);
  • R v Imam of Bury Park Mosque, Luton ex p Sulaiman [1993] EWCA Civ 36 (no judicial review of the decision of the imam of a mosque on eligibility to vote in an election for membership of its executive committee);
  • R v Provincial Court of the Church in Wales ex p Williams (23 October 1998) (no judicial review of the decision of a court of the (disestablished) Church in Wales to remove a cleric for misconduct);
  • Varsani v Jesani  [1999] Ch 219 (in a situation where each side alleged that the other had departed from the tenets of the faith it was not necessary to determine the doctrinal validity of either faction’s beliefs, even if that were justiciable);
  • Blake v Associated Newspapers [2003] EWHC 1960 (QB) (claim for damages for libel stayed because it raised non-justiciable issues as to whether or not the claimant was a validly-consecrated bishop);
  • His Holiness Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group Ltd [2010] EWHC 1294 (QB) (claim for damages for libel stayed because whether or not the Third Holy Saint was installed as Head of Nirmal Kutia Johal turned on a non-justiciable issue of Sikh doctrine and practice);
  • Shergill v Purewal & Anor [2010] EWHC 3610 (QB) (claim for damages for libel stayed because it raised non-justiciable doctrinal issues relating to the Sikh religion and traditions).

Regular readers will be aware that the issue of the justiciability of religious beliefs has also surfaced in the criminal courts very recently over the issue of a summons against the President of the Church of Jesus Christ of Latter-day Saints, Thomas S Monson, alleging that asking members of the LDS to give tithes while promoting theological doctrines that “might be untrue or misleading” could be in breach of the Fraud Act 2006.

Whichever way the Supreme Court decides, its judgment will warrant careful analysis. It would be rather surprising if the Court were to go against a line of cases that goes back at least as far as Gilmour v Coats [1949] AC 426 – but when an issue gets as far as the SC the outcome is impossible to predict with any degree of certainty.