New Judgment: Khaira & Ors v Shergill & Ors  UKSC 33
11 Wednesday Jun 2014
On appeal from:  EWCA Civ 983.
The appellants sought a declaration that certain of the appellants had validly been appointed as trustees of Gurdwaras by the ninth appellant, whom they argue is the Third Holy Saint of Nirmal Kutia Johal, a Sikh institution. The Gurdwara trust deeds purportedly provide a power for the First Holy Saint and his successor to appoint trustees. However, the respondents, being the original trustees of the Gurdwara argue the ninth appellant has no such power and that the proceedings ought to be struck out on the basis of non-justiciability, as it involves questions relating to religious belief and practice.
The application to strike out the claim was dismissed at first instance, however the decision was reversed by the Court of Appeal, holding that it turned on religious beliefs that were not justiciable. The appellants appealed to the Supreme Court.
The Court unanimously allowed the appeal. They held the issues should go to trial. While courts cannot adjudicate on the doctrine of religious belief, they do have the jurisdiction to determine disputes over ownership, possession and control of property held on trust for religious purposes.
Non-justiciable cases fall into two categories, the first comprises cases where an issue is beyond the constitutional competence of the court. Here, the court may not decide the issue even if it is necessary to do so in order to decide some other issue which is justiciable. The second category comprises cases where the issue would be non-justiciable if decided by the court in abstract, but may be resolved if the resolution is necessary in order to decide some other issue which is justiciable. Here, where the court was asked to enforce private rights which depend on a religious issue, the court may determine such religious issues that are capable of objective assessment. The trust deed was such an issue, creating interests which the civil law may and will protect.