A cardinal human right

The judgements of Petit vs Jeejeebhoy and Saklat vs Bella are pre-Constitution of India judgements. During this period, there were hardly any instances of a Parsi woman marrying a non-Parsi and raising her child as a Zoroastrian. Such instances have been fairly commonplace in the last four decades. Equality of gender is a cardinal human right, which is universally accepted. Equality between the sexes is included in the equality "in dignity and rights” of all human beings declared by Article 1 of the Universal Declaration of Human Rights. Article 2 of the Declaration specifically states that all persons, without any distinction of sex, are entitled to the human rights set forth therein. Apart from this Article 16 of the Declaration stipulates the equal marital and family rights of men and women. Equality of, and absence of discrimination between, the sexes is similarly emphasized by the UN (United Nations) Covenant on Civil and Political Rights (Articles 2.1, 3, 4.1, 23, 24.1, 26) and the UN Covenant on Social and Cultural Rights [Articles 3, 7(a)].

Equality of treatment of men and women is enshrined in the Constitution of India (Articles 14 and 15) and is an integral part of public policy. Any discrimination, as in the present case, is:

repugnant to the Constitution of India,

contrary to public policy and

opposed to several declarations of basic human rights.

In my view, the higher judiciary in India (High Courts/Supreme Court) are likely to reverse both the judgements on the above and other grounds.

To answer the queries raised by Parsiana:

File an Originating Summons (OS) in the Bombay High Court to seek an interpretation of who is a Parsi. OS is a fairly speedy process. In the alternative, if an agiary denies admission to a child of a Parsi mother and non-Parsi father, file a suit in the City Civil Court seeking reliefs. However, it is better to commence the litigation in the High Court as an OS. Inevitably, someone will appeal to the Supreme Court against the High Court decision.

The settlor’s wish is indeed paramount. However, when the trust was settled, the prevailing situation (Parsi intermarried woman raising her child as a Parsi Zoroastrian) was naturally beyond the contemplation of the settlor. Hence, any reversal is not "upsetting” the intention of the settlor. Had the settlor been alive today, would he have wanted to exclude such children from entering the fire temple? This is the question that the Court will be urged to answer. I believe that the Court will bend backwards to include such children despite several technical grounds.

Berjis M. Desai is the managing partner of J.Sagar and Company, one of the largest law firms in the country. He writes a weekly column for The Bombay Samachar on community affairs.