“The spirit of liberty”

I read with great interest "The spirit of liberty” (Parsiana, October 7, 2005). My son who did his BE in computers, and was ordained as a navar and maratab in Navsari, went to Bradley University in USA and completed his MS in computers, all at my cost. A few years ago, one fine day my son phoned his mother and told her he was getting married in five days’ time and that too to an American girl.

My wife goes to Chicago now and again but I have broken off all relations with my son. No doubt many of our community members would brand me as an "orthodox” but I don’t care about it.

Some members of the community would raise merry hell if my grandchildren want to visit our agiaries as they vehemently oppose the children of a Parsi Irani married outside the community.

The only reason why these children cannot enter our agiaries and atash behrams is not because of any religious dictats, but because these places of worship are established under a trust deed registered with the government, specifying that only Parsi or Irani Zoroastrians are allowed inside.

As you mention, under articles 25 and 26 of the Constitution of India any individual or a group of individuals has got a fundamental right to establish, manage and run places of worship, subject to the limitations contained in those two articles.

Thus if the Association for Revival of Zoroastrianism (ARZ) goes ahead and establishes a dadgah under a suitably constituted trust deed no power on earth can stop them from running it. So ARZ must not get scared but on the contrary start collecting funds and establish a fully consecrated dadgah as per Zoroastrian rites.

In their advertisements ARZ should mention their activities, future programs, financial credibility, address, etc.

Capt DARA E. DRIVER

The editors reply

The judgment by the Privy Council in Saklat vs Bella, 1924 states that while the trustees of an agiary may treat a Zoroas­trian who is not a racial Parsi "as a trespasser… it does not follow that they are bound to so treat” them. Thus the trustees are empowered to admit non-Parsi Zoroastrians into a fire temple if they so want. We quote relevant extracts from the judgment:

Some time in 1899 a Goanese Christian named Jones with his wife arrived in Rangoon. They were in humble circumstances, and the wife applied for assistance to a Parsi of good position at Rangoon, Bomanji Cowasji, stating that she too was a Parsi. He befriended her till he went to England in 1900 and then asked his brother Shapurji Cowasji to look after her and the child, to which she had just given birth, the respondent Bella. The father died and when her mother died shortly afterwards, Shapurji, who was a defendant in this suit, but died pending the appeal, took Bella into his own house, and he and his wife treated her as their own child.

When Bella was nearly 14 it was desired that the initiation ceremony into the Zoroastrian religion called navjote should be performed for her, but the local Head Priest at Rangoon refused, chiefly because — as it appears from his evidence — he thought it would be unpopular with the Parsi community. Advantage was then taken of the temporary presence of some other priest, who performed the ceremony; and after that invitations were sent by the Head Priest to Bella to come with Shapurji and his wife to the temple on festival days. Three such invitations were sent, the High Priest said, with the expectation that they would not be accepted; but on the third occasion, being March 21, 1915, Shapurji brought her and put her within the sacred precincts facing the sacred fire, and in such a position that she went through all the ceremonies like other worshippers.

This proceeding gave great offence to a number of members of the Parsi community in Rangoon, and on March 31, this suit was brought by three members of the Parsi community, who stated that they brought it not only on their own behalf but on behalf of a large number of members of the Parsi community at Rangoon, against Bella and against Shapurji, stating that the temple was held on trust for the free and unrestricted use of the Parsi inhabitants in Rangoon professing the Zoroastrian faith… and averring that the defendants had by their acts "not only wounded the religious feelings entertained by religiously inclined Parsis, but also caused the desecration of the said sacred temple.”

In another paragraph of the plaint, they stated that only members of the Parsi community professing the Zoroas­trian religion were entitled to the use of the temple, to the access of the sacred precincts, and to attend, witness or take part in any religious ceremonies held therein, and that it was never the intention of the Parsi community that the children of non-Parsi fathers should be allowed the use of the temple. They further said that even assuming that Bella could be duly admitted into the Zoroas­trian religion, and assuming that her mother was a Parsi, even then she could not be considered a Parsi or a member of the Parsi population. They prayed for a declaration that Bella was not entitled to use the temple or to attend or to participate in any of the religious ceremonies performed therein and for injunctions to restrain her from entering the temple and Shapurji from taking her there…

The Parsi community had grown up to be such a distinct body, and admissions into it from outside had been so very rare, that at the time when these grants at Rangoon were made the Government must have intended that the temple should be for the benefit of professing members of the Parsi community i.e. racial Parsis or people deemed after a long lapse of ages to be racial Parsis.

But this does not exhaust the matters to be determined on the present appeal. It determines that the respondent Bella has no right of entering into the temple and may therefore be excluded or extruded from the temple by the trustees. They can treat her as a trespasser. But it does not follow that they are bound to so treat her…

When property is set apart for public or charitable uses, it will be a malversation to apply any of the funds for persons who are not objects of the trust. Those who are objects of the trust must have all the benefits they require; and if there is a surplus, it must be left to the courts to make a cy près application of it. But when the subject matter of such a trust or charity is the rendering of some convenience or service of such a nature that it will not hurt the lawful recipients if others share with them, their lordships are aware of no case in which it has been held that the trustees are bound to exclude persons who have no legal title to share. They may do so; they may treat all such persons as trespassers and say: Sic volo sic jubeo, stet pro ratione voluntas. Thus I will thus I command, let it stand. But if they choose to admit to the benefit of some park or garden established for a particular district some persons from over the border or to admit to a public library destined for a particular municipality persons from outside, or what is perhaps a nearer analogy, admit to the hearing of a lecture by a university professor persons not members of the university, this of itself furnishes no ground of complaint. If the numbers admitted are too large or the persons are disorderly or unpleasant in their habits or in any way substantially interfere with the convenience or benefit of those for whom the endowment was created, the trustees may be required to exclude them. But the mere claim of A that B shall not share in such a benefit because B is not within the terms of the foundation is not one that courts would encourage…

The intrusion of an unbeliever into a place of religious worship might well be a case of substantial interference with the devotions of worshippers. But the plaintiffs have failed to make out that Bella was not a Zoroastrian. They suggested indeed that her conversion was impossible, or at any rate that it had not been completed by due initiation, but their lordships agree with the Judge of first instance that this suggestion was not established; while, except in the evidence of one unsatisfactory witness, there was nothing to show that Bella’s presence would be thought to cause desecration, if once it was accepted that she was a Zoroastrian…

Then they claim an injunction to restrain the defendant Bella from entering and the other defendant, now dead, from bringing her into the temple to attend the religious ceremonies. This is a claim for an injunction to prevent the repetition of an alleged trespass. It must, therefore, first be established that there was a trespass and one for which damages, though possible only nominal, could be recovered. But for trespass upon land the only person to bring the action is the person in possession of the land, that is the trustee. That a beneficiary or two or three beneficiaries of a trust for public purposes may bring a suit for trespass against an intruder is a novel principle of jurisprudence; and the case is not made stronger by the suggestion that several other beneficiaries agree with them.