Kerala High Court on Canon Law – Its ramifications are revolutionary


By ValsonThampu

The Kerala High Court order dated July 13, 2021, on an appeal by the Provincial Superior of the Nirmalrani Provincial House and others regarding the applicability of TDS (Tax Deducted at Source) to salaries earned by nuns and priests from government-aided institutions has significant and far-reaching ramifications.

The judgment reiterates that canon law, which is the personal law applicable to the religious in the Catholic Church, cannot override the law of the land. That is, all provisions about the ‘rule of law’ are binding on the civil–as against the theological and doctrinal-aspects of religious orders. No exemption from any of such provisions can be claimed or enjoyed. The fact that any such exemption has been enjoyed in the past cannot constitute an alibi for continuing it. 

Entitlement to such exemptions is not envisaged under Article 25 of the Constitution of India, which pertains to the right to practice, preach and propagate one’s religion. 

It is to be noted that the main argument of the appellant in claiming exemption from TDS was that the nuns and priests are in a state of ‘civil death’. As such, their salaries do not constitute their income. Their salaries stand diverted to their respective religious orders under the canon law, which prescribes that nuns and priests cease to be ‘persons’ on embracing their vocation. They have no personal income and, hence, their salaries cannot be taxed. The High Court, after due consideration, summarily rejected this argument. 

This is a landmark judgment with several prospective domino effects. First, it is reiterated that personal laws cannot neutralize, much less prevail over, the law of the land. It is indeed embarrassing that the contrary was argued, even if it is not surprising that it is. An assumption prevails in certain pockets of the Christian community that religion ought to insulate its practitioners against the law of the land. It is felt that coming under the authority of the law militates against being under the authority of God.

Priests and nuns are the personnel of God and are, for that reason, beyond the reach of the law. This notion is nothing new. It was the principal point of conflict, for example, between Henry II and Thomas Beckett, the Archbishop of Canterbury, which led to the assassination of the latter in May 1161. 

What needs to be recognized is that religion is, in this process, abused as an alibi for legitimising inequality. It is a fact of history that the priestly class in all religions have, all through history, resisted and subverted the ideal of equality. 

Inequality of status is used as a basis for insinuating inequality of merit to one’s advantage. Priests are superior to the laity for the reason that they constitute a religiously superior class. This presumed superiority does not  have to be authenticated by the superiority of merit or nobility of conduct. It is turned into a syllogistic fiction of hierarchical class stratification. It runs as follows. Priests, being godly, are superior to the laity. I am a priest. Ergo, I am superior to ordinary citizens. It is unjust, hence, to treat me on par with them. What needs to be noted in this connection is that the issue of deducting TDS on secular salaries paid to nuns and priests is not merely a financial issue. It is also a status issue. It is basic to creating and sustaining a notion of privilege about the religious. 

This brings us to the meaning of the vow of poverty and the deviousness in using it in a way profitable to religious orders. Much depends on what we mean by poverty. In a spiritual sense, poverty has a reference, primarily, to power. Renunciation of poverty is nothing if power is not renounced.

Entitlement to privilege and unequally favourable treatment for oneself is the essence of power. In the present case, the vow of poverty is used as an alibi for perpetuating a special entitlement. A nun or priest, who works in a State-funded institution, earning the same salaries as other fellow employees do, must be treated differently for no other reason than that they are under the vow of poverty! That is their religious institutions must become rich through their poverty! A more self-contradictory argument cannot be fabricated. 

What happens, if the vow of poverty is applied honestly? The nuns and priests must serve for no remuneration. It is not from TDS that they should seek exemption but from salary itself. TDS is a contingent factor, of which salary is the source. If there is no salary, the question of TDS does not  arise. This will prove their spiritual merit to society at large. At any rate, that is the only way secular employment and the vow of poverty can be reconciled; unless the vow is meant to be used as a ploy to cheat the exchequer. 

What was the case before the High Court order under reference here? As per the canon law, nuns and priests embraced civil deaths. These ‘dead’ non-persons worked. Earned salaries. But, because they were dead, they could not receive their salaries in person. So, their convents received their salaries. But, like in Maxim Gorky’s novel, The Ghosts, continued to exist and generate salaries. These ‘ghostly non-persons remained under the vow of poverty, which enabled their convents to become richer and richer. It would be interesting to assess the amount of tax-free money disbursed in this category and estimate the loss to the exchequer this entailed since 1947. Put in simple terms, religion has been used deviously to evade tax, canon law shielding this abuse. This is typical of the hypocrisy that flourishes in the sphere of religion; especially when the interests of the priestly class are involved. 

This judgment, though indexed to a specific issue, is bound to have wide-ranging ramifications concerning other provisions as well. Take an obvious instance. As per the canon law, a nun who is cast out of a convent, is not entitled to any settlement, no matter how much she earned or how long she served the convent. A question that has never been considered in this regard is as follows. All right, a woman suffers civil death when she becomes a nun. What happens to her when she is dismissed from the order and ceases to be a nun? Does not she ‘resurrect’ as a civil person? If she does, is she not entitled to all considerations and rights as apply to citizens? The argument that she embraced the vow of poverty at the time of her initiation will not hold water at this stage; especially if you go by the notion of ‘civil death’. The religious order was entitled to her income only during the pendency of her civil death. Now that she is not dead, but alive as a person, the convent cannot keep her lifetime earnings. She comes under the provisions of Article 21-the right to life. She has to be re-habilitated adequately and enabled to live in dignity. The provisions of the canon law cannot be invoked to degrade her into destitution. 

Till the July 13, 2021 order of the High Court was pronounced, there was a shadow of doubt on this issue; but not anymore. What the hon’ble court has clarified beyond any shadow of a doubt is that the notion of civil death is not valid in the eye of law about incomes earned by nuns and priests. They are to be treated as personal incomes, not as incomes of convents and religious orders. TDS is charged on their income. So, for fiduciary and legal matters the canon law fiction of ‘civil death’ is irrelevant. That being the case, convents holding back the incomes earned by nuns and priests after they cease to be members of the religious orders is tantamount to unlawful expropriation. It is not only indefensible in law but also execrable in common sense. 

(ValsonThampu is a former principal of St. Stephen’s College, Delhi. The views expressed in this article are those of the author and do not necessarily reflect the official editorial position of DCD).


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