The Justiciability of Religion

Abstract

In Shergill & Others v. Khaira & Others [2014] UKSC 33 the UK courts considered whether a Sikh Holy Saint had the power to dismiss trustees who questioned his ‘succession’ to the religious institution of the Nirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were ‘non-justiciable’, reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their ‘justiciability’ before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. In Shergill the Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (the issues arising under which must be determined), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). But Shergill also went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court’s unfamiliarity with other faiths.

Keywords: Sikh Religion, Shergill, Justiciability, Public Law, Free Church Case