Shergill and others v Khaira and others

A religious dispute is not inherently non-justiciable. Courts will not determine the truth of religious beliefs or the validity of rites. They must, however, decide objectively ascertainable questions of doctrine or practice where necessary to enforce civil rights, contractual obligations or religious trusts.

A religious association’s constitution operates as a civil contract. Its governing bodies must remain within their contractual powers and observe fundamental procedural fairness where civil interests are affected. Property dedicated to religious purposes must be administered according to the trust. In a schism, the court may identify the faith’s foundational and essential tenets to determine entitlement to the property, without assessing whether those tenets are true or reasonable.

The proceedings concerned divisions within a Sikh sect associated with Gurdwaras in Birmingham, Bradford and High Wycombe. The appellants claimed that the asserted successor to the sect’s First Holy Saint had validly removed and appointed trustees under trust deeds governing the properties. The respondents disputed his status and authority.

The High Court permitted an amended claim and refused to strike it out: [2011] EWHC 2442 (Ch). The Court of Appeal allowed the respondents’ appeal and permanently stayed the proceedings, holding that the identity of the successor depended upon non-justiciable religious beliefs and practices: [2012] EWCA Civ 983; [2012] PTSR 1697.

The Supreme Court considered whether the trust issues could be tried and whether questions about religious succession, doctrine and fitness were inherently unsuitable for judicial determination.

1. The appeal was allowed unanimously. The Court of Appeal had misunderstood the principle of non-justiciability and should not have stayed the entire proceedings. Questions concerning the trustees’ authority to execute the 1991 trust deed and the interpretation of “successor” were ordinary questions of English trust law and construction.

2. Non-justiciability based solely on subject matter has two principal forms. The first concerns matters outside the courts’ constitutional competence under the separation of powers, including certain transactions of foreign states and parliamentary proceedings. The second concerns claims or defences which engage neither private legal rights nor reviewable public-law questions. An issue within the second category must nevertheless be decided where its resolution is necessary to determine an otherwise justiciable legal right.

3. The Court of Appeal had read Buttes Gas and Oil Co v Hammer (No 3) too broadly. Its reference to the absence of judicial or manageable standards arose from the political acts of sovereign states and the constitutional allocation of foreign affairs. It did not establish that every issue lacking an immediately apparent objective standard is non-justiciable.

4. Courts do not adjudicate upon the truth of religious beliefs or the validity of religious rites. They may determine objectively ascertainable questions of religious doctrine and practice when necessary to enforce civil rights. The religious nature of an obligation or dispute does not prevent enforcement of its civil consequences.

5. Religious voluntary associations are governed by contract. Courts may restrain governing bodies which exceed their constitutional powers or fundamentally breach fair procedure where civil rights or patrimonial interests are affected. Courts also have jurisdiction over property held upon religious trusts. In a schism, they may ascertain the foundational and essential tenets identified by the trust deed or contract of association to determine entitlement to the property. Their task is to enforce the trust, not assess the truth or reasonableness of its doctrines.

6. The validity and construction of the 1991 deed were left for trial because the law and facts were insufficiently developed at the interlocutory stage. The court might also have to determine the sect’s fundamental tenets, the nature of its institution in India, the requirements of succession and whether the asserted successor complied with the trust’s religious purposes.

7. The order of the High Court was restored, including permission to amend the particulars of claim. The proceedings were remitted to the High Court for further directions, including consideration of expert evidence.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, restored the High Court’s order and remitted the proceedings for further directions: [2014] UKSC 33.

2. Court of Appeal: Allowed the respondents’ appeal and permanently stayed the proceedings as non-justiciable: [2012] EWCA Civ 983; [2012] PTSR 1697.

3. High Court: Granted permission to amend the particulars of claim and dismissed the application to strike out the proceedings: [2011] EWHC 2442 (Ch).