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Cite as: [2012] PTSR 1697, [2012] WLR(D) 214, [2012] EWCA Civ 983

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Neutral Citation Number: [2012] EWCA Civ 983
Case No 8BM304582

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
HHJ DAVID COOKE
Case No 8BM30458

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/07/2012

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE HOOPER
and
LORD JUSTICE PITCHFORD

____________________

Between:
MOHINDER SINGH KHAIRA & Ors
Appellants
- and -

DALJIT SINGH SHERGILL & Ors
Respondent

____________________

MR MARK HILL QC (who did not appear below) and MR JK QUIRKE (instructed by Seymours Solicitors LLP) for the Appellants
MR ROBERT PEARCE QC (instructed by Ford & Warren) for the Respondents

Hearing date: 18th May 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Mummery:

    Introduction

  1. These proceedings, which were instituted on 25 June 2008, originated in disputes about the trusteeship and governance of two Gurdwaras used by members of the Sikh community as meeting places for religious worship. One Gurdwara is in Birmingham. The other is in High Wycombe.
  2. The claim and the counterclaim are the subject of orders made by the Charity Commission under s. 33 of the Charities Act 1993. The relief claimed is for declarations that the defendants have been removed from their positions as trustees and officers of the Gurdwaras in dispute and replaced by the claimants as lawfully appointed trustees and officers. Injunctions and other ancillary relief are also claimed.
  3. Four years on the appellants (the defendants) want the court to grant a permanent stay or to strike out the case. They say that it should not be allowed to go on, because the trial judge would be faced with the impossible task of resolving issues between the parties about the religious doctrines and practices of adherents of the Sikh religion. They are not legal questions. They are questions which a court has no business deciding, because, if it attempted to do so, it would become embroiled in religious controversies about subjective beliefs and the linked internal affairs of a religious body on none of which can the court properly make a judicial ruling.
  4. The key questions in the case are whether the 9th claimant, Sant Baba Jeet Singh Ji Maharaj, is, as he and his fellow claimants assert, "the Third Holy Saint" and whether he is "successor" (via the Second Holy Saint) to the First Holy Saint, who was the founder of the Gurdwaras in the 1980s. In rather more concrete terms, is the 9th claimant in the designated line of spiritual succession that entitled him to exercise a power conferred by the trust deeds of two religious charities to remove the defendants as trustees and to replace them with his fellow claimants?
  5. The basis of the defendants' strike out application is that the contested claim to be the "successor" unavoidably turns on matters of religious faith, doctrine and practice on which the parties hold differing inward beliefs and allegiances. A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence: it is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice. As disputes about that kind of truth are outside the recognised perimeter of judicial competence, the judge below should have granted the application to stay the proceedings and refused permission to amend the pleadings. This appeal should therefore be allowed.
  6. The respondents (the claimants) disagree and say that the issues in these proceedings are justiciable in the English courts. They have brought the case to secure the due administration of valid charitable trusts for the advancement of religion, which were established under, and are governed by, English law. The critical issue is the meaning and effect of two English trust deeds, which confer a power on the "successor" of the First Holy Saint to appoint and remove trustees of the two charities. The claimants say that that is a question of construction. They also claim that they can prove that the 9th claimant is the Mukhia (or Head) of Nirmal Kutia, a Sikh institution based in the Punjab. As that Mukhia, the 9th claimant is "successor" within the meaning of the trust deeds. On that view the case is within the inherent jurisdiction of the court to uphold and enforce public trusts and their due administration. The judge was right to dismiss the defendants' application for a stay and to grant permission for the claimants to amend their Particulars of Claim. The appeal should be dismissed and the case should be allowed to proceed to trial in the usual way.
  7. Removal and appointment of trustees

  8. The claimants and the defendants are members of the Sikh community. Most of the parties to this dispute have either been or are trustees of one or other of the Gurdwaras. No-one challenges the charitable status of the trusts. HM Attorney General has been joined as a party in his capacity as the constitutional protector of charity, but he has taken no part in this appeal.
  9. The trust deeds contain an express power to remove and appoint trustees. The power was originally vested in the First Holy Saint. The present disagreement is about whether the 9th claimant became entitled to exercise that power following the death of the Second Holy Saint in March 2002.
  10. In support of the assertion that the power is now exercisable by the 9th claimant as "successor", the claimants rely on a range of matters described in more detail below. They include the outcome of litigation in the Indian Courts where his claim to be the Mukhia of the Nirmal Kutia Johal was upheld. The claimant trustees allege that the 9th claimant has validly appointed them to replace the defendants as trustees of the Gurdwaras.
  11. The defendants deny that. They do not believe in the legitimacy of the 9th claimant as "successor" nor do they believe that they owe any inward allegiance to him. They do not accept that he had, or has, power to appoint fellow claimants as new trustees of the charitable trusts in their place. The jurisdiction of the court to construe the terms of charitable trust deeds is not disputed. The defendants' point is that the critical question whether the 9th claimant is, as he claims to be, "successor" of the First Holy Saint, cannot be answered by a legal process of construction alone.
  12. The court would have to look beyond the wording of the deeds for objective criteria, which it could apply to answer the question of succession, and to resolve the disagreements about the internal governance of the religious affairs of the Gurdwaras. The defendants say that it is impossible for the court to do that, as it would involve venturing into a judicial no-go area of religious doctrine and practice-a "judicial no-man's land", as Lord Wilberforce (see below) once described what lies beyond the land of justiciability.
  13. In the absence of relevant legislation, it is for the courts to define the nature and scope of the judicial process. A definition or description of the judicial process inevitably sets limits to its scope of application. The good sense of the judiciary has led to the recognition of boundaries of the constitutional authority and judicial competence of municipal courts in such sensitive areas as transactions between foreign sovereign states and matters of religious belief and practice.
  14. I turn to consider the principle of non-justiciability discussed in the authorities which illustrate where and how the boundary is drawn.
  15. The law

  16. Mr Mark Hill QC, appearing for the defendants, and Mr Robert Pearce QC, appearing for the claimants, made excellent submissions on the nature of the non-justiciability principle in general, and on its particular application to the doctrines and practices of religious communities with particular reference to cases where the religion and its institutions are not established by law as part of the State: cf the established constitutional position of the Church of England and of Anglicanism.
  17. The basis of the general principle on which the English courts decline to entertain legal proceedings as non-justiciable was analysed by Lord Wilberforce in his opinion in Buttes Gas and Oil v. Hammer (No 3) [1982] AC 888. The court stayed that case on the ground that, if it had gone on, the court would have become involved in adjudicating upon transactions between foreign sovereign states. Lord Wilberforce identified (at p.938B-C), as one of the factors for judicial self-restraint or abstention, the absence of "judicial or manageable standards by which to judge these issues" leading to what he described as a "judicial no-man's land." He said that the principle is not one of judicial discretion: it is "inherent in the very nature of the judicial process."
  18. How does that principle apply to a case involving a dispute about the legitimacy of the person claiming to be spiritual leader and its impact on the internal governance of religious charities? The claimants say that, where there is "a bond of union" (see below) between the adherents of a religion, like Sikhism, that bond will supply the "judicial or manageable standards" against which the conflicting contentions of the parties can be judged on a given state of facts. Whether or not there are such standards, against which the contentions of the parties can be judged, depends on the precise nature of the pleaded issues for the decision of the court.
  19. The defendants say that there is no agreed or recognised set of objective standards by reference to which this particular dispute about succession to the spiritual leadership of a Holy Saint can be resolved in a secular municipal court. Religious doctrine and practice are faith matters: such beliefs and practices may be open to different interpretations by different adherents at different times and in different places.
  20. The defendants say that in this case the identity of the "successor" to the First Holy Saint can neither be gathered from the terms of the trust deeds themselves nor are there "judicial or manageable standards" objectively ascertainable from a "bond of union": the dispute is one of religious doctrine and practice and, as such, is "off limits" for English courts of law.
  21. In my judgment, the authorities on the role of the courts in litigation about religious affairs establish, with a reasonable degree of certainty, that the courts abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition. The courts also exercise caution in adjudicating on the fitness or otherwise of a particular individual to carry out the spiritual duties of a religious office, although there are some employment rights cases in which jurisdiction has been exercised on the basis of the existence of a contract of employment and of statutory rights not to be unfairly dismissed or discriminated against on a prohibited ground.
  22. General Assembly of Free Church of Scotland v. Lord Overtoun [1904] AC 515 (the Free Church case) is a case well known to trust and charity lawyers on the difficulty in determining, even at the highest level, the proper limits of justiciability. The lengthy multiple and divided opinions running to nearly 260 pages are more taken up with the particular circumstances than with a general discussion of the principles of justiciablity. Mr Pearce QC cited a passage from the opinion of Lord Davey. He in fact changed his mind about the outcome of the case, but that does not affect the legal principles laid down by him. He said that he disclaimed the right of a civil court to discuss the truth or reasonableness of religious doctrine or on differences of interpretation or on matter concerning the conception of "a perfect and infinite Being" , but added that "the more humble, but not useless function" of the civil court was:-
  23. "…to determine whether the trusts imposed upon the property by the founders of the trust are being duly observed…the question in each case is, What were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created?" (pp 644-5)
  24. Lord Davey did not think that the court has "any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the association is not vital, essential, or fundamental, unless the parties have themselves declared it not to be so."
  25. Mr Pearce QC relies on the quoted passage for the proposition that, although the courts cannot decide the truth or falsity of propositions of religious doctrine or the governance of a religious institution in the abstract, the courts can decide whether or not a particular set of facts falls within or outside a previously agreed set of principles or "bond of union." The courts can determine whether, for example, a body of believers has departed from observance of the basic tenets of the original bond and thereby forfeited civil rights, such as the benefit of using charitable trust property donated, dedicated or acquired for the original bond of union.
  26. Mr Pearce QC submits that the disputes in this case about the status of the 9th claimant as "successor", about his powers and about the trusts of the Gurdwaras likewise arise from a "bond of union" and fall within that class of case which is justiciable by the court.
  27. Mr Hill QC cited a host of instances showing that the civil courts have consistently declined to go into the judicial no-man's land of religious doctrine and practice: R v Archbishops of Canterbury and York ex parte Williamson Court of Appeal 1 March 1994 (no arguable challenge to ordination of women priests, also considered by the Court of Appeal in September 1996); R v .Chief Rabbi ex parte Wachmann [1992] 1 WLR 1036 (no ruling by way of judicial review on 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 the executive committee); R v. Provincial Court of the Church in Wales ex p Williams (23 October 1998-Latham J - no judicial review of the decision of a court of the disestablished Church in Wales removing a minister for misconduct); Varsani v Jesani ]1999] Ch 219 (conditions established for ordering a scheme where there had been a religious schism and the court was concerned with the fate of a charitable trust fund established to promote the faith of a Hindu religious sect, each side in the litigation alleging that the other had departed from the tenets of the faith: 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) (Gray J staying a claim for damages for libel as raising non-justiciable issues whether the claimant was a validly consecrated bishop); His Holiness Sant Baba Jeet Singh Ji Maharaj v. Eastern Media Group Ltd [2010] EWHC 1294 (QB) (Eady J staying a claim for damages for libel brought by the Third Holy Saint raising the issue whether he was installed as Head of Nirmal Kutia Johal, which turned on a non-justiciable issue of Sikh doctrine and practice); see also [2011] EWCA Civ 139 on application for security for costs; Shergill v. Purewal [2010] EWHC 3610 (QB) 15 December 2010-Sir Charles Gray staying a claim for damages for libel brought by the first claimant in these proceedings as raising doctrinal issues relating to the Sikh religion and traditions) and [2011] EWCA Civ 815 allowing an appeal against order for costs.
  28. It is not contended by Mr Hill QC that religious bodies or groups enjoy a spiritual independence or freedom that places them above, or exempts from, the law of the land, or that religion inhabits a "civil rights-free zone." The argument is that it has long been realistically recognised that a line has to be drawn between what can and cannot properly be decided by a secular municipal court in disputes relating to religious doctrine and practice, including internal governance.
  29. In my judgment, Lord Wilberforce in the Buttes Gas case gives the courts the clearest and most authoritative guidance that can be found in the authorities about the basis on which a line is drawn between justiciable and non-justiciable issues. It must be done with caution, especially in cases where the civil rights of the parties, such as property and contract, may be affected.
  30. I turn to the facts in this particular case.
  31. Background facts

  32. First, the position of the 9th claimant. The claimants say that he was duly chosen, appointed and ceremonially installed in the Punjab as the Mukhia of the Nirmal Kutia Johal institution following the death of the Second Holy Saint in March 2002. It is claimed that he was previously an Assistant Saint appointed by the Second Holy Saint, according to custom, with a view to succession on the death of the Second Holy Saint; that he was given a ceremonial robe by the Second Holy Saint to be worn on special occasions and to signify his future succession; that his succession was confirmed by a religious ceremony of turban-tying (Dastar Bandi) on 20 March 2002; that he has been confirmed in the appointment in the presence of other Saints, devotees and followers, including two of the defendants; and that a written resolution confirmed the appointment of the 9th claimant as Third Holy Saint, without any requirement of being named, mentioned or appointed in a will made by the Second Holy Saint.
  33. It is also claimed that a resolution was passed in July 2003 by the management committees of the English Gurdwaras, including the defendants, acknowledging that the 9th claimant was head of the Nirmal Kutia Johal; that there have been other acknowledgements of the appointment of the 9th claimant as successor to the Second Holy Saint; and that in February 2004 the management committees of the Gurdwaras signed a new constitution acknowledging the 9th claimant as having succeeded to the position of Head Saint of the Nirmal Kutia Johal and chairman of the Gurdwaras.
  34. The defendants say that those claims are in issue, that they involve questions of religious doctrine and practice and that they are incapable of judicial determination. On a personal level, the defendants call the 9th claimant "Baba Jeet", which is regarded by him as insulting. They do not recognise his authority as "successor", as he was not appointed by the will of the Second Holy Saint. The defendants also say that the signature of the new Constitution was conditional on the 9th claimant producing a will of the Second Holy Saint appointing him as "successor".
  35. Second , the status and circumstances of the two Gurdwaras.
  36. The Birmingham Gurdwara in Oldbury was the subject of a transfer dated 20 October 1987 to the first three defendants and one T Singh. The premises transferred were intended to be used as a Gurdwara. The transfer was preceded by written resolutions recorded in minutes of 22 April 1987 and 17 May 1987 pursuant to which funds were collected. By a Trust Deed dated 15 January 1991 the original trustees declared, or purported to declare, trusts of the Birmingham property. They were trustees of the religious organisation or society practising and preaching the Sikh faith following the teachings of His Holiness the First Holy Saint resident at Nirmal Kutia in the Punjab, India "or his successor." Clause 5 of the Trust Deed conferred on the First Holy Saint "or his successor" a power to remove trustees and to appoint new trustees to take their place. The 9th claimant purported to appoint the second to fifth claimants to be the trustees of the Birmingham Gurdwara in place of the existing defendant trustees. The Trust Deed also contained provisions for the First Holy Saint "or his successor" to make final and conclusive decisions on disputes about the use of the property, or the construction of the deed or the constitution of the society; and for the trust assets to be held in trust for the First Holy Saint "or his successor" in the event of the society being wound up or ceasing to exist.
  37. The claimants contend that the parties to the Birmingham Trust Deed had authority from the donors of the funds, which were used to purchase the property, to declare the trusts in that deed. The defendants do not agree and say that the relevant provisions in the deed are invalid as an unauthorised delegation of a fiduciary power. The claimants' response is not that the preceding resolutions declared the trusts in which the Birmingham property are held, but that the trusts are evidenced by the resolutions and that the principle of A-G v. Mathieson [1914] 2 Ch 383 at 394 applies, so that the donors of funds collected for informally described and somewhat indefinite charitable purposes are presumed to have constituted the trustees of the funds, as their agents, to declare formally the trusts on which the funds are to be held.
  38. The second property is the High Wycombe Gurdwara. It is subject to a Trust Deed dated 20 September 1993 which has only come to light at a late stage in the litigation. A long lease was acquired by the original trustees of property for use as a Sikh temple. The deed declares that the trustees may only be removed or appointed by the First Holy Saint "or his successor." The 9th claimant has purported to appoint the sixth to eighth claimants as sole trustees of the High Wycombe Gurdwara in place of the existing defendant trustees.
  39. The claimants say that the 9th claimant is entitled to remove and appoint trustees of the Birmingham and High Wycombe Gurdwaras and to direct them as to how property is to be dealt with. It is alleged that the defendants have refused to obey him and usurped control.
  40. The amendments to the pleadings have refined or clarified the allegations in the claimants' case that Holy Saints teach Sikhism, but with distinctive features that are matters of emphasis, not doctrine. The defendants emphasise that the question in the case is not whether the 9th claimant has been accepted by the Nirmal Katia institution as its leader, but whether he is "successor" in the line from the First Holy Saint within the meaning of the trust deeds.
  41. The judgment below

  42. On 12 September 2011 HHJ Cooke made an order dismissing the defendants' application of 12 August 2011 to strike out the proceedings on grounds of non-justiciability of disputes about Sikh doctrine and practice. He also dismissed an application for security for costs against the 9th claimant, who is resident out of the jurisdiction. The judge granted the claimants permission on their application of 1 August 2011 to amend the Particulars of Claim. If this appeal is dismissed, permission will be sought by the claimants for re-amendment of the Particulars of Claim in order to plead the newly discovered Trust Deed for the High Wycombe Gurdwara.
  43. The judge granted the defendants permission to appeal on the central issue of non-justiciability of the question whether the 9th claimant is the "successor" to the First Holy Saint. On 25 February the defendants issued an application for permission to appeal on additional grounds. I made a direction that that application should be adjourned for consideration at the full hearing of the appeal. It is opposed, but it is more convenient to grant it so that the court has a full picture of the legal arguments. The claimants are not prejudiced by the raising of additional legal points for which they seem to be well prepared.
  44. Under an earlier case management decision of 11 March 2011, which has not been appealed, the judge excluded expert evidence of Indian law and of Sikh doctrine and practice. The issues would therefore have to be decided, so far as they can be decided, in accordance with English law.
  45. The judge stated that the thrust of the claim in the proceedings was for the removal of named defendants as trustees of the Gurdwaras at Birmingham and High Wycombe. After summarising the issues and submissions, including the authorities cited, the judge concluded that the assertion of a non-justiciable issue was not a reason to strike out the claim or to refuse amendments which depend upon the concept that the 9th claimant holds the office of the Third Holy Saint. He said:-
  46. "22. Here the position is, in my view, that what is required is not an establishment of the propriety or the validity of a process by which the 9th claimant may or may not have succeeded to come to be regarded as holding the office of Holy Saint but whether, as a matter of fact, he has become sufficiently recognised as the holder of that office to be considered to be a person described as having a particular power in the English deed, the construction of which is before the court. Indeed, it seems to me that where interests in a property are defined by reference to the holding of a particular office the court is required to construe the document and to consider the question whether a particular person does or does not fit the description set out in the document. In doing so it does not make a judgment as to whether that person has been properly appointed in the sense that he satisfies the religious requirements of the institution whose office it is. It only asks the question and only answers the question whether, as a matter of fact, the members of the institution, whatever it is, may be said to have acknowledged or accepted that that person does fill that office.
    23. If it is shown, it seems to me, as a matter of fact that the 9th Claimant has been accepted by a sufficient number of the adherents of the sect or organisation in question-I am being deliberately vague because the precise identity as that is a matter of some contention-then it seems to me that the court can make a finding of fact appropriately and consider whether, on its proper construction, the references to the holder of an office in the document apply to the 9th Claimant. It matters not whether the 9th Claimant has arrived at that position notwithstanding that he did not follow the procedure that led to the appointment of his predecessors, if, in fact, he has been, on the evidence, accepted as holding that position.
    24. I am not in a position to evaluate what the evidence may be. It may be, for instance, that the division of opinion as to whether he is the holder of that office is so great that it cannot be said, once the evidence has been considered, that he has been accepted as the de facto holder of the office. On the other hand, it may be that-an emphasis that is, no doubt, the position taken by the Claimants-that the majority of the adherents of his organisation have accepted him in that position, notwithstanding that there is a minority view of which the Defendants form a part that he does not fulfil the proper religious criteria.
    25. In those latter circumstances it seems to me that the construction of the English document would be likely to be that he is the person referred to in the document and the documents must be construed, therefore, as if the powers fall to be exercised by him."
  47. The judge distinguished the stays of proceedings in the libel cases relied on by the defendants as raising a different question from that in the present case, which was not ruled out by the inability of the court to enquire into matters of religious doctrine.
  48. Defendants' submissions

  49. Mr Mark Hill QC submitted that the issues raised in these proceedings clearly fall within the "forbidden territory" of the non-justiciable; that the appeal should be allowed; and that the action be struck out or permanently stayed on the basis that the defendants would not prosecute their counterclaim.
  50. His main point is that issues of doctrine concerning the internal regulation of the religious affairs of the Gurdwaras and the disputed succession of the 9th claimant are at the heart of the dispute.
  51. The 9th claimant asserts that he was installed as the Third Holy Saint and Head of the Nirmal Kutia Johan religious institution in India. He refers to a form of ceremony involving the giving of robes, the tying of turbans and the approval of other alleged Saints. The dispute of religious doctrine and practice is about the nature, authority and effect of the alleged ceremony as affecting the claimed status of the 9th claimant as spiritual leader of the Nirmal Kutia in India and therefore his entitlement in the terms of the trust deeds to remove and appoint trustees of the Gurdwaras. The defendants deny that the 9th claimant is the true spiritual successor to the Second Holy Spirit, who died intestate without naming an heir to the leadership or to ownership of property.
  52. Thus Mr Hill formulated the central issue for the court's decision as whether the 9th claimant is the duly chosen and appointed leader of a Sikh faith-based community based in India.
  53. Mr Hill pointed to what he described as the changing nature of the claimant's case. Their original pleaded case was that the 9th claimant was entitled to remove and appoint trustees of the Gurdwaras and to direct how the property was to be dealt with and that the defendants had refused to obey him and usurped his control. The claimants deny that they have changed their case: they have simply refined and clarified it.
  54. The claimants were granted permission by the judge on 12 September 2011 to amend their case in order to refine and clarify it. Their basic case, as clarified, is put in a number of ways: that Holy Saints teach Sikhism, but with distinctive features that are matters of emphasis, not doctrine; that the 1991 Deed defined the trusts on which the Birmingham Gurdwara is held; and that the defendants have denied the legitimacy of the spiritual teachings, guidance and instructions of the 9th claimant.
  55. The defendants say that the Gurdwaras promoted mainstream Sikhism and that the 9th claimant and his followers are outside the mainstream of Sikhism, so that he has no spiritual authority to guide or instruct or to be the successor of the First or Second Holy Saint as a matter of the practice of that faith.
  56. The force of Mr Hill's submission is that a decision on any of those issues would involve comparison of the doctrines of mainstream Sikhism and the Nirmal Kutia institution and whether the purposes of the latter were charitable in so far as it involved a direction in the 1991 deed to hold at the unfettered discretion of the First Holy Saint or his successor, such as directing the property to be sold and the proceeds to be sent to India.
  57. The defendants say that the trusts were constituted before the trust deeds of 1991 and 1993, the relevant foundation instruments for Birmingham being the resolutions in the minutes dated 22 April and 17 May 1987. The defendants submit that, under the terms of those deeds, the 9th claimant has no authority to remove or appoint trustees, as he is not the "successor."
  58. Mr Hill went on to contend that the judge erred in a number of respects.
  59. First, he assumed the legitimacy of the 9th claimant, which was the very point in dispute and was a point that was not justiciable by the courts. He pre-judged the issue by construing the powers in the deeds as those exercisable by the 9th claimant being the person so recognised as "successor".
  60. Secondly, the judge wrongly characterised the issue as whether the adherents of the Nirmal Kutia institution had accepted and recognised the 9th claimant as their leader. The issue was more fundamental, namely whether the 9th claimant is Third Holy Saint appointed as regular and valid as a matter of Sikh religious doctrine and practice.
  61. Thirdly, the judge wrongly identified the dispute as one between different factions within Nirmal Kutia as a religious institution, whereas the dispute was a doctrinal one as to the extent to which Nirmal Kutia had departed from the true tenets of Sikhism practised in the Gurdwaras. That was a non-justiciable issue involving adjudication on the distinctive doctrines of Sikhism. Mr Hill emphasised that there is no schism in either Gurdwara where the community of followers of Sikhism regularly meet for worship and prayer in accordance with and in furtherance of the Sikh faith.
  62. Fourthly, the judge wrongly placed the burden on the defendants to produce evidence against the ability of the defendants as the original trustees to settle the terms of the trust in 1991 following the resolutions in April and May 1987. The trusts were declared at that date before the purchase and transfer to the defendants of the property on which the Birmingham Gurdwara stands.
  63. Finally, the judge ought never to have allowed the amendments, because it is a substantial departure from the original case, raises further issues that are also non-justiciable and have no real prospect of success.
  64. Claimants' submissions

  65. Mr Pearce QC helpfully identified the principal issues on the pleadings in this case, which he said are justiciable by the court:-
  66. (1) Whether the 1991 Trust Deed relating to the Birmingham Gurdwara was ineffective or validly made. It is submitted that this is a question of mixed law and fact.
    (2) Whether the word "successor" in each of the Trust Deeds means "successors to the position of Mukhia of the Nirmal Kutia" or the Second Holy Saint only. It is submitted that this is a question of the construction of the trust instruments.
    (3) If the answer to issue (2) is the former, whether, according to the custom by which successors to the position of the Mukhia of Nirmal Kutia Johal are appointed, it is an essential requirement for the Mukhia to be appointed by will. It is submitted that this is an issue as to the content of a custom, which is in principle capable of being determined on evidence.
    (4) If the answer to issue (3) is no, whether the facts alleged by the claimants, if proved, establish that the Third Holy Saint is the Mukhia of Nirmal Kutia Johal and, for this reason, the person now entitled to exercise the powers conferred on the "successor" by the Trust Deeds. It is submitted that is no different in nature from the question whether any other individual occupies a position in an organisation. Custom constitutes the standard by which the validity of the appointment is to be judged.
    (5) If the answer to issue (4) is yes, whether the Third Holy Saint has adopted beliefs which are inconsistent with the "bond of union" of the founders of the English charities. It is submitted that this and the remaining issues are of the same nature as the questions decided in such cases as the Free Church case in order to secure the due administration of a religious charity by ascertaining the principles, whether relating to faith or governance of the religion for which the charity was founded and the principles professed by those claiming to be entitled to the benefit of the charity .
    (6) If the answer to issue (5) is yes, whether he has thereby ceased to be entitled to exercise the powers conferred on the "successor" by the Trust Deeds, and the powers conferred on him by name by the 2003 Constitution.
    (7) If the answer to issue (5) is no, whether the defendants are nevertheless entitled to disregard decisions made by the Third Holy Saint relating to the English charities.
  67. It was submitted that the issues could be determined by reference to judicial or manageable standards that did not require the court to go into a "judicial no-man's land." The circumstance that Nirmal Kutia or the English charities are religious organisations did not make the issues non-justiciable. The terms of the relevant custom and the sufficiency of the acts performed in relation to it are susceptible of proof in the normal way.
  68. On more general aspects of the case Mr Pearce accepted that the court will not adjudicate in the abstract to determine the truth or reasonableness of religious doctrines, but asserts that the civil courts will adjudicate on aspects of religious disputes concerning civil rights and obligations capable of being determined by legal methodology. Such a case may arise when a division occurs in a congregation formed for religious worship or amongst the followers of a faith. There may be an issue whether those seeking to use the property of a religious trust, institution or other body of persons to advance religion adhere to the original opinions and principles in a manner consistent with the "bond of union" of the charity or whether they have changed their opinions and are liable to forfeit their rights regarding the application and use of the property: see Craigdallie v. Aikman (1813) 1 Dow 1 at 16 and A-G v. Pearson (1817) 3 Merivale 353 at 400, 417-9; Free Church case (above) at 611-3, 617, 626 and 643-5 as instances of the court considering its jurisdiction to enforce a trust for the purposes of the particular original religious objects which the trust was established to promote. The court could conduct an inquiry into what had been the original purposes and established usage with regard to the disputed property, to what extent they were capable of alteration and whether they had been altered.
  69. He points to the fact that the Birmingham Trust Deed is the governing instrument of an English charity; and that the court has jurisdiction to determine issues of construction in connection, for example, with the due administration of the charity. He says that the question whether the 9th claimant is the successor within the meaning of that trust deed is an issue that the court has jurisdiction to determine and that it is necessary to do so to secure the due administration of the charity and will apply its construction to the facts found established by the evidence. The same considerations apply to the more recently discovered, but as yet unpleaded, High Wycombe Trust Deed. It is irrelevant that the courts have decided to decline similar questions in defamation proceedings.
  70. Discussion and conclusions

  71. I recognise that the jurisdictional implications of the Free Church case and the cases preceding it, such as Craigdallie, support some of the propositions on justiciability advanced by Mr Robert Pearce QC. The decision in that case involved evidence and argument about tenets of faith. Mr Pearce's point is that, even if it involves the court hearing evidence of the beliefs and practices of the Sikh religion or of the Nirmal institution, the central issue in these proceedings - whether the 9th claimant is the "successor" of the First Holy Saint- is justiciable as affecting the civil law rights of the claimants.
  72. I am unable to agree with Mr Pearce QC on that point for the following reasons.
  73. First, the issue for the decision of the court in the Free Church case needs to be clearly stated. For all the earnest talk of "spiritual independence" of the church from the jurisdiction of the secular courts and the freedom of believers to formulate and re-formulate their beliefs, that case was all about civil property rights under trust law. It was not about deciding the truth of the proposition that a particular person was a holy person and a spiritual leader equipped with fundamental powers affecting the internal governance of a body of believers.
  74. The courts do not decline to decide cases about civil rights, such as property and contract, or statutory rights, such as employment rights, just because there is a religious element. Decisions involving religion are made by the courts, some surprising, but none causing alarm or even rousing much public interest: see Percy v. Board of National Mission of the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28 (employment rights of minister of religion).
  75. The dispute in the Free Church case was between, on the one hand, the Free Church and, on the other hand, the United Free Church, which was formed by the uniting of the Free Church and the United Presbyterian Church following the prolonged period of religious struggle in 19th century Scotland evidenced in the Great Disruption of 1843 and the Second Disruption in 1893. The dispute was about the purposes for which the property of the Free Church was held and whether the tenets of the United Free Church involved a departure from those purposes by no longer adhering to the original basic tenets of the Free Church.
  76. The trust purposes affecting the property of the Free Church were underpinned by the original religious tenets of the Free Church, which then had to be compared with the religious tenets of the United Free Church in order to determine whether their purposes were the same or different. Only in that way would it be possible to say on what trusts, for the promotion of what purposes and for the benefit of what body of religious believers the church property was held; and whether the United Free Church had forfeited rights to the use and benefit from property held on trust to promote a particular set of religious beliefs.
  77. In his published lectures on The Courts, the Church and the Constitution-Aspects of the Disruption of 1843. Lord Rodger brought the most penetrating judicial intellect of his generation to bear on the jurisdictional implications of the Free Church case and similar cases. By following up the calamitous after-effects of the hard fought litigation for congregations and ministers alike (e.g threatened evictions and applications for interim interdicts to prevent the use of church property) and by explaining how Parliament had to come to the rescue, Lord Rodger re-inforces doubts about the wisdom of the courts determining any issues involving religious belief and practice. The Free Church won in the courts, but their numbers were smaller than those in the United Free Church. There followed a Royal Commission, and retroactive legislation, which had the effect of reversing the judicial decision to favour the losing party and of establishing a Commission required to unravel the practical consequences of the majority decision of the House of Lords.
  78. The importance of the decision is that it upheld the principle that members of a body of believers are not legally entitled to discard defining tenets of belief without thereby becoming liable to forfeit the right to use trust property donated, acquired and held to promote the tenets of belief that it has discarded. The application of that principle of trust law affecting charitable bodies and associations to determine a property dispute did not impinge on the exercise of freedom to decide spiritual beliefs and practices nor does it govern the key issue in this case of succession to holy sainthood.
  79. I agree with Lord Rodger that "questions about the place of religion in our public life are far from unimportant" (pp. 93-4, 97-8). Religion gives meaning and purpose to some lives, while having no meaning or purpose for others. There will inevitably be disputes with a religious aspect which, however controversial and profound to those involved, cannot exclude or limit the jurisdiction of the civil courts to determine civil rights. In my judgment, this is not a case of that sort.
  80. First, non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak. That is so where the questions are not matters of law at all, such as subjective inward matters incapable of proof by direct evidence or by inference.
  81. Secondly, the court in this case is being asked to pronounce on matters of religious doctrine and practice. They relate to the validity of the disputed claims of the 9th claimant, who lives outside the UK, to be the holy and spiritual leader of the Nirmal Sikhs and the successor to the First Holy Saint. How can the court possibly decide that kind of question with any degree of confidence or credibility? It is not simply a question of what the word "successor" means, but whether the 9th claimant fits that description. In this case the court will not hear expert evidence on religious belief and practice, as that has been excluded by order of the judge. The evidence that the trial judge hears from the parties and their witnesses is bound to be in conflict. If it were not, there would be nothing to argue about and nothing for the court to decide. Having heard the evidence from the witnesses about whether the 9th claimant is the "successor" and why they believe, or do not believe, that, by what objective criteria is the court to decide, on the balance of probability, whose evidence is the more truthful? I do not think that the issue of succession to holy sainthood is simply one of establishing religious usage by analysing evidence, or by finding facts on the balance of probability, or by counting heads, or by ascertaining the wishes of a voting majority.
  82. That brings me to the third point: the vocabulary of the trust deeds does not answer the question. The deeds are silent on the criteria to be applied by another person who is asked to decide the question. It is not just a legal exercise in the construction of English trust deeds. It will be necessary to investigate the doctrines and practices of Sikhism in order to determine the criteria relevant to the claim of the 9th claimant to be successor of the First Holy Saint. In my view, the question of succession is essentially a matter of professed subjective belief and faith on which secular municipal courts cannot possibly reach a decision, either as a matter of law or fact.
  83. In my judgment, this court should put a halt to this case now. It is being asked to pronounce on a matter on which it cannot speak and should not pretend to speak with authority. The court risks diminishing respect for its own authority, as happened, for example, to the 19th century jurisdiction of the Judicial Committee of the Privy Council, when, in a more religious age, it gave appellate decisions (often ignored) in its ecclesiastical jurisdiction on points of the interpretation of scripture, doctrine, sacraments, ritual and vestments that arose in religious controversies in the established church. Those unfortunate and rather pointless battles in the courts have been rightly described as a cross-fire of jurisdictions that were a gold mine for barristers.
  84. Finally, it serves no useful purpose in these proceedings for the court to give permission to raise the other issues listed by Mr Pearce QC if, as I hold, the court cannot even determine the basic dispute whether the 9th claimant can appoint or remove the trustees i.e. the persons entitled to seek rulings from the courts on such questions.
  85. Result

  86. I would allow the appeal.
  87. In brief, the judge, who did not have the benefit of such extensive legal argument as this court has received, erred in treating the particular core issue in these proceedings as one that is properly justiciable by the English Courts.
  88. The trusteeship question raised in these proceedings turns on who is "the successor" of the original founder of the temple trusts. The resolution of that issue depends on the religious beliefs and practices of Sikhs in general and the Nirmal Kutia Sikh institution in particular. The issue is not justiciable by the English courts. This does not depend solely on the construction of the trust deeds governed by English law: it is necessary to ascertain and apply objective criteria before a court is in a position to decide whether a person who claims to be "the successor" within the meaning of the deeds is what he claims to be. The conflict in this particular case is not one of objective evidence. The rival groups have differing beliefs and inward allegiances on the issue who is the successor. The English Courts are not equipped to adjudicate on the issue of succession by reference to religious beliefs and practices, either with (or as would be the case here) without, expert evidence. If this case were allowed to go to trial the judge would be placed in an invidious position not unlike that of jesting Pilate, who said "What is truth?" and would not stay for an answer.
  89. The parties and their numerous supporters who filled the court during the hearing should not conclude from this that the courts are letting them down. I would hope that the court is doing them a favour. The costly crudities, the outmoded methods and the unwelcome and often unpredictable outcomes endured in adversarial litigation are to be avoided, if at all possible. Experience teaches that litigation is not always a good way of resolving a dispute, as shown by the Free Church case. It is not the only way of resolving disputes. The parties here would be well advised to engage in some form of alternative resolution procedure. The continuation of these proceedings will only inflict on them and their communities further waste of time and money in the fruitless pursuit of a judicial determination that cannot be made.
  90. Voluntary procedures are available through mediators, including specialists in disputes involving religious charities. Legal procedures may also be available through the scheme-making statutory powers of the Charity Commission. The present litigation has no realistic future in the courts and must be brought to a halt now.
  91. Lord Justice Hooper:

  92. I agree.
  93. Lord Justice Pitchford:

  94. I also agree.


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