“Deadly campaign”

I have read the letter "Deadly campaign” by Dr P. D. Sunavala (Parsiana, October 7, 2006). The system of dakmena­shini has been prevalent in the community for thousands of years, and in Bombay for over 300 years, with no adverse consequences to date. Concerning the alleged foul smell in the vicinity, assuming that it exists, why should anybody visit the vicinity of the property to experience it? Do the streets in Bombay, even in the vicinity of Doongerwadi, give out the sweet scent of the perfumes of Arabia? In any event, is it not a small price to pay to preserve our land and conserve our time-tested tradition? Referendum on the issue is not necessary when statistics show that a preponderantly large majority still prefers the existing system. That deals with his letter in Parsiana.

On the legal aspect of using a part of the Doongerwadi property for an alternative method of disposal, I quote the opinions of my friends, Soli Sorabjee and Rafiq Dada (for whom I have great respect and admiration). As against my views on the subject, Sorabjee says: "In my opinion, the trust property can be used for the purpose of exposure of the dead bodies and also independently for religious rites and ceremonies of Zoroastrian Parsis (unconnected with exposure of the dead bodies).

"It would not be open to the trustees having regard to the provisions of the trust deed to deny the use of the trust property for the purpose of religious rites and ceremonies which are not connected with or related with the exposure of the dead bodies in Towers of Silence.”

Nobody, including me, has ever disputed the position that other religious rites and ceremonies can be performed at the Doongerwadi bunglis. The ceremonies for the Fravardigan-Parav and similar ceremonies are instances on the point. It is only in relation to the paidust, uthamna and incidental ceremonies that the difficulty arises.

With regard to the opinion of Rafiq Dada, I quote the following extracts:

"It is however necessary to bear in mind that the performance of religious rites or ceremonies must be religious rites and ceremonies of the Zoroastrian religion. The whole object of the trust deed is to make a dedication for the benefit of persons professing the Zoroastrian religion and to enable them not only to use the trust lands for the exposure of the dead but also for the performance of Zoroastrian religious rites and ceremonies. It necessarily follows that no rite or ceremony can be performed on the land which is not in consonance with or antithetical to the Zoroastrian faith.

"As stated above, it has been proposed by the DDD-AG (Disposal of the Dead with Dignity-Action Group) that after the first day’s obsequial ceremony is performed at Doongerwadi, the body of the deceased Zoroastrian would be taken from Doongerwadi in a private hearse and arrangement would be made at a place outside the Doongerwadi for the cremation or burial as the case may be of the dead body. At the conference held with me, it has been strongly urged on behalf of the Save Doongerwadi Committee that even the above method would not be permissible under the Zoroastrian religion. If this is so and the Zoroastrian faith does not permit such an act, then the querists cannot give the bunglis for a separate prayer hall for the aforesaid purpose at Doongerwadi.”

Our priests and religious experts have categorically opined that in the Zoroastrian religion no rites and ceremonies can be performed with reference to a method of disposal of the dead through cremation or burial, where dakhmena­shini is available. Our courts have held that rituals, ceremonies and modes of worship are an integral part of religion.

Senior counsel Bomi Zaiwalla has given an opinion, of which the following is an important extract :

"Culled from the language of the trust deed, it is clear that the cemetery property of Doongerwadi is meant only to be used for the funeral ceremonies and religious rites directly connected with the exposure of the dead Parsi Zoroastrians consigned to the Tower of Silence and historically the Parsi Zoroastrian community was frequenting the cemetery property for such religious rites only. In any case then, none did or were expected to conduct funeral or religious ceremonies for those who opted for cremation of the dead as set out hereinafter being against the tenets of the Zoroastrian religion and destroying the very foundation of the faith.”

In one of my articles on the subject, as early as 2001, I had observed:

"Chitty on contract also says to the effect that a document ought to receive that construction which language will admit and which will best effectuate the intention of the parties to be collected from the whole of the document and that greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of the intent.

As stated above, when the aforesaid trust deed of 1884 came into existence, there were no bunglis for the prayers on the Doongerwadi precincts. The existing bunglis came to be constructed much later, and if I recall correctly, during the beginning of the 19th century, out of the funds donated by philanthropic Parsis who surely would have donated them with the intention that they would be used only for the performance of ceremonies for those who opted for the system of the disposal of the dead through dakhmenashini, which was the only system prevalent at Doongerwadi for the last hundreds of years. If that be the intention of the settlers, as it indeed seems to be, it is possible to contend that by allowing the use of these bunglis for religious ceremonies to those who do not desire the bodies being confined to dakhmas may expose the trustees to a risk of breach of trust.”

ERUCH B. DESAI