No power to ban

In the first major setback to the two-and-a-half-year-old board of trustees of the Bombay Parsi Punchayet (BPP), a divisional bench of the Bombay High Court has ruled that the trustees have no power under the trust deed to bar a duly ordained Parsi Zoroastrian priest from performing religious ceremonies at Doongerwadi, the Godavra and Shapoor­ji Fakirji Jokhi agiaries.

Delivering the historic judgment on March 11, Justices Dr Dhananjay Chandrachud and Anoop Mohta told a packed court room that if the trustees took onto themselves powers not conferred in the deed of trust there was "likely to be… grave abuse” of authority. Noting that times have changed since the judgment of Justices Dinshaw Davar and Frank Beaman of 1908 much of which would be "anathema” to people today, Chandrachud stated, "To place (matters) in perspective is not to destroy a faith.” The trustees do not have the powers to ordain or divest a priest of his ecclesiastical standing.

Before delivering the judgment Chandrachud said that he and Mohta debated the issue considerably and though they may be "right or wrong we had to take a decision.”

The court ordered the resolution passed by the BPP banning the priests to be revoked and the notices placed at Doongerwadi and elsewhere to be removed. The BPP counsel Rafiq Dada requested time to carry out the instructions and was granted four weeks. It is expected that the BPP may contest the judgment in the Supreme Court.

WAPIZ cited

Seven days earlier when the hearings were drawing to a close, as the clock inched towards the closing time of 5.30 p.m., counsel for the five interveners Edul Bharucha was just concluding a blistering attack on the BPP/World Alliance of Parsi Irani Zarthoshtis (WAPIZ) combine in the "renegade” priests case. He noted they had in The BPP Review of July 2010 stated that former solicitor general of India Tehmtan Andhyarujina and former Supreme Court Justice Sam Variava should not have attended the BPP hosted function held on June 19, 2010 to felicitate the new Chief Justice of India Sarosh Kapadia as the duo had sided with the petitioners in the priests case.

Bharucha wanted to point out the arbitrariness of the BPP trustees in excluding people if they thought differently from the fundamentalist trustees when counsel Jimmy Avasia was on his feet to present a copy of the fortnightly WAPIZ Page in which senior counsel Iqbal Chagla was attacked for his remarks made in an earlier hearing of the priests case before Bombay High Court Justice V. M. Kanade.

An appalled Chandrachud instructed the BPP/WAPIZ combine to "apologize in a prominent publication… lawyers should not be targeted… if lawyers are targeted judges will be targeted next.” It was the court’s duty to "protect the institution of justice.” BPP senior counsel Rafiq Dada said he knew nothing about the offensive article but if the BPP had published such material he would not accept any further briefs from them. BPP counsel Percy Ghandy countered that the WAPIZ Page was not a BPP publication. But when Chandrachud was informed two trustees of WAPIZ are BPP trustees, he demanded the apology. The judge said the bench would be reconvening in the afternoon of March 11 and he wanted to see a prominently published retraction that day. (Chandrachud did not insist on the apology when the court convened on March 11. There was no WAPIZ Page in the Free Press Journal of March 11 and no apology was published.)

The appeal hearing filed by the two petitioners Jamsheed Kanga and Homi Khusrokhan began on February 28, 2011 almost a year after Kanade refrained from passing any order on the Originating Summons (OS) advising the petitioners to file a civil suit instead. Chagla told the divisional bench that an OS was an economic and quick way of seeking justice. All the court had to decide on was whether the BPP trust deed permitted the trustees to bar a beneficiary from choosing a priest of his choice.

Chagla: "Tomorrow why not say (counsel) Mr Fredoon De Vitre (pointing to him) is not a proper Zoroastrian?” Can the trustees stop him or say that he smokes and therefore he is barred from a religious place? "This is the Talibani­sation of the religion.”

He mentioned again that the OS "was not a religious vs irreligious issue.” He alleged that the trustees sought the views of priests to back their diktats. "They cannot abdicate their responsibility to take a decision and put it onto a third party!” he countered. "They had no right to defrock. A priest who has done his navar and martab ceremony is a priest for life. Also, since there are no further ceremonies after the navar-martab, there can be no high priest.”

In his arguments rebutting Chagla’s contentions Dada questioned the motives of the petitioners alleging they were "against the dakhmenashini system. They can go and establish their own system elsewhere.” Just because there were no vultures "does it mean the whole system goes?” he queried.

Ghandy stated "the rays of the sun decompose the body.” Dada believed the issues "can’t be handled by an OS.”

Chandrachud inquired if prayers for the deceased were said at Doongerwadi if they opted for cremation.

Chagla: "Not a single prayer for those cremated are recited at Doongerwadi.”

In response to the judge’s query as to how long the bodies take to dehydrate, Ghandy replied six days. Chandrachud questioned if any scientific analysis had been done on the system. Ghandy claimed a study had been done which showed no diseases occurred. The corpse bearers enter and exit the dakhmas daily but had not taken ill. He noted the system originated in Iran and that in Tibet they had sky burials. "According to my clients it’s a most eco friendly system.”

Chagla: "We live in a city,” not in Tibet. The installation of the solar panels has proved that the dakhmas were not functioning as planned.

Dada: "Parsis consider it sacrilege if a body is consumed by fire. Fire is the sixth creation of Ahura Mazda. If they want a different system let it be after a trial (not an OS). There is no place more sanctified than the Towers of Silence. Every part has significance and sacred elements. You won’t find them in a burial ground or crematorium.”

Chandrachud inquired if both priests were Parsi Zoroastrian. Dada replied they were but the two were "not in agreement.” One (Mirza) is clearly not aggrieved.

Chandrachud: "The beneficiaries are aggrieved.” The ban would have a chilling effect on other priests. The priests were being told "if you want to return to the fold i.e. the Towers of Silence, you better not do” funerary ceremonies for those opting for alternate methods of disposal. "Who holds them unfit and arrogates power to exclude them?” he queried. "We are only asking you (the BPP) to look at the writing on the wall. Your clients must not be viewed as retrograde. Consider alternate forms. Why divide them (the community). Keep them within the fold. There should be consensus on reforms taking place in society… Don’t go by the original intent (of the settlors).” He noted such a case comes up once in a hundred years and it would be an appropriate opportunity to find solutions. "Parsis like discipline, dignity… they are role models for what India should be.”

Dada: "A series of warnings were given to them by their own panths (diocese)… The priests takes an oath” to follow the religious rules laid down by their panths.

"The community needs to address” these differences, remarked Chandra­chud. "Two distinguished lines of professionals are lined up on either side.” He noted that prominent members of the community such as Burjor Antia, Homi Ranina and Eruch Desai favored the BPP line while Andhyarujina, Dilnavaz Variava, Anu Aga and others sided with the petitioners. "How does the community propose to answer this question? When you don’t have dakhmas Parsis are permitted” to opt for alternate means. "In which case what is wrong if a full canopy of prayers is recited?” In south Bombay the area where the towers were located was peripheral to the city. "Now it has become the heart.”

"You have taken one step forward with solar concentrators. What do you propose to do? Are you not going to resolve the issue in the community?… You need to carry the community with you… Find a solution. Deal with the issue. We expect some form of leadership from your clients. The community will remain one.” If not, dissent would increase. "You can’t stop interfaith marriages. These are emotional issues,” not legal or rational ones. "You must understand the concern of the young of the community. A large number of Hindus shun cremation by fire” because of the ecological effects, amongst other reasons. They opt for electric cremation.

Dada: "This is a religious issue. Not secular. It’s a matter of serious principles… We are dealing with sensitive religious issues… In 2001 the trustees took a position” on offering a bungli for funerary prayers to be done for those opting for cremation. "The high priests came down on them…”

"There are only three methods of disposal so what should I have?” These are aspects of belief. "We feel they are unfit to function as priests.” He noted the Athornan Mandal had passed a resolution condemning the duo. "The Athornan Mandal is the aegis body of the priests.”

Chagla: "It is essentially a voluntary body. It has no statutory power.” A heated discussion took place on how high priests are appointed with Bharucha noting that today high priests come to the profession after having worked elsewhere as lawyers, etc.

Turning to the trust deed Dada said the BPP trustees were "custodians and managers. Not trustees only of the funds and properties.”

Chandrachud: "Is the word ‘dakhma’ used in the trust deed?”

Dada: "No. Exposure of the dead. Every Parsi Zoroastrian has a right to go to the dakhmas.”

Chandrachud: "Where do you get the power to exclude?”

Dada: "Where is the power to appoint a priest of your choice?” He went on to note that unless somebody laid down the rules there would be "complete license or charter” to do whatever one wanted. "If you (trustees) can’t do it, the vada dasturs can’t do it, then no one can do it.”

Chagla termed the religious issues raised "a red herring” to distract the court from the rights bestowed on the trustees by the trust deed. "Dada wasted five hours on religious arguments and only 10 minutes on the trust deed,” he alleged. The OS asked the court to protect the rights of the beneficiaries and ensure the trustees did not exceed their brief. The issue had "nothing to do with (Ervads Khushroo) Madon and (Framroze) Mirza” the two alleged "renegade” priests who were not before the court. Mirza had submitted an affidavit to Kanade stating he supported the ban imposed by the high priests and implemented by the BPP at Doongerwadi and the Godavra and Jokhi agiaries. All three properties are administered by the BPP. Chagla denied that all petitioners were opposed to dakhmenashini. Khusrokhan had interred his father’s corpse in the Towers of Silence.

Chandruchud observed that the right of entry to Doongerwadi could not be answered "with only reference to the trust deed.” When the properties were vested with the trustees it was "implicit” for them to see "whether the properties were properly used or not… (can we tell them) you are custodians of the property but you are (mere) bystanders?” Even though "the trustees’ decision may still be wrong,” the matter "may not fall within the domain of the court.” As a judge he did not want to appear to be a social reformer.

Chagla countered "We are not asking your lordship to be a reformer. The judgment will not affect the religious doctrine at Doongerwadi and elsewhere.” But it was the "duty of the court” to look into the dispute. "The court is bound to answer these questions.” The opposite party has not produced "any evidence to show (the petitioner’s case) is against the religion… Does religion have a geographic jurisdiction (so that) what is okay in one place is wrong in another… what is the great heresy?” Chagla was referring to places outside Bombay where no Towers of Silence exist and ceremonies are performed for those who opt for burial or cremation. Or even in places where the dakhmas exist side by side with cemeteries but no action is taken against priests who perform the funerary ceremonies for those opting for alternate forms of disposal. "Are you going to penalize people for having a contradictory point of view?... There is no pope, no bishop to say what is right or wrong… they (the high priests) must show the provisions in the trust deed regarding performing religious ceremonies and rituals. The high priests cannot sit in judgment on the trust deed or invest the trustees with powers.”

Chagla observed the two priests had been barred because they were performing funerary ceremonies for people who opted to be cremated or for performing the navjote ceremony of the children of Parsi women married to non-Parsi males. These ceremonies were not performed on BPP trust property or any fire temples. People opted for other modes because they were apprehensive that the present system of dakhmenashini was not functioning as it should due to the absence of vultures. The fact that solar panels were erected to focus the sun’s rays onto the corpses in the Towers was proof that the present system was in need of reforms. In the monsoons the panels were ineffective as the incessant rain prevented the bodies from being dehydrated. In the past after the vultures had stripped the body of flesh, the skeleton remains were buried in a mass grave without any religious ceremony or the presence of priests, trustees or senior officials. With the installation of the solar panels, the dehydrated bodies are also similarly disposed of unceremoniously in a mass grave.

Madon and Mirza also recited Zoroastrian prayers for Parsi Zoroastrians opting for dakhmenashini at Doonger­wadi. But because the high priests and BPP trustees disapproved of their religious activities elsewhere, the ban was imposed. "This is the Talibanization (of the BPP and clergy). This is the approach,” bemoaned Chagla.

The BPP "is not a religious trust. These are secular matters. If someone misbehaves on the premises the trustees have every right to say ‘go’ as managers of the property. If a priest appears drunk on the premises he can be turned away. If he cannot keep pace with his co-priest during the ceremonies he can be replaced. "The appointment of priests is a secular function.” For the protection of the trust property "the trustees have powers. That is different from saying ‘I can bar someone whose views do not agree with mine.’

"The relationship between the priest, myself and the dead body is a personal matter,” said Chagla. "How does it impinge on anybody else? If others do not like the priest they may not attend those ceremonies.” If a Zoroastrian priest wished to recite Christian prayers at Doongerwadi and the trust deed did not permit it, they could not be recited.

In response to Chandrachud’s query that a lay person relying on rationality may say the funerary prayers or ceremonies are too long, "shorten them,” Chagla said no one was asking for any "curtailment or a fast track passage.”

He noted at one time the BPP trustees (including the present chairman Dinshaw Mehta) passed a resolution permitting a bungli at Doongerwadi to be used for funerary prayers of those opting for cremation. Subsequently, the resolution was revoked.

"What powers are we to give them (the trustees)? That is the crux of the problem. If tomorrow they say "only deserving members of the community can enter” Doongerwadi there would be "enormous scope for settling scores. It would mean nobody can be cremated” because no priest will want to incur the wrath of the trustees. The trust deed does not give them such powers, argued Chagla.

As time was running short Bharucha who appeared for the five interveners namely, Tehmtan Andhyarujina, Dilna­vaz Variava the late Dr Keki Grant, Anu Aga, Dr Rustom Soonawalla submitted his written arguments and also spoke briefly but passionately. He noted that according to the judgment of The Parsi Punchayet Case of 1908 the two judges noted "the Zoroastrian religion is a proselytizing religion and that its tenets not only permit but energetically enjoin the making of converts.”

He cited from the judgment in which one of the judges, however, opposed conversion in India as "Parsis would soon cease to exist as a community by reason of the rapid invasion of all pauper sweepers and dubras of Gujarat, who would, no doubt, be attracted to the Holy Mazdayasni religion by reason of the fifty three lakhs of rupees in the possession of the defendants, and the other advantages of belonging to the anjuman of the holy Zoroastrians of Bombay.”

Bharucha went on to note that the BPP sort "to implement this racist agenda of preventing the navjote of children born of Parsi Zoroastrian women to non Parsi Zoroastrian fathers even if no claim is made by such children to any facility provided by the respondents... The message being sent to all priests by the Punchayet is that if they dare to pray for the souls of persons who have opted for alternate methods, then they shall be denied their livelihood at Doongerwadi and all other Bombay Parsi Punchayet institutions or even face a total ban…

"Assuming without admitting that the appellants do not believe in the dakhme­nashini system, the matter does not end there. For example take the case where a close relative of either appellant dies. The deceased has left in his/her will that he/she would like to be disposed of by the system of dakhmenashini. Now presume that either of the two banned priests are the family priests of the deceased for many years. In the present situation, the family members of the deceased would not be able to have the last rites and rituals of the deceased (who has opted for dakhmenashini) performed at Doongerwadi by a priest of their choice. This is the crux of the matter and is therefore not a question which is applicable to one or two or a handful of persons, but will have a bearing on every member of the Parsi Zoroastrian community.”

Bharucha observed that while the two priests were being penalized for performing navjotes of non-Parsis, "four high priests had sanctioned the navjote ceremony of an industrialist, Neville Wadia at the… age of about 80 years… who was born of Christian parents and had been baptized a Christian. Two of these continue to be High Priests even today including Dastur (Dr) Firoze Kotwal. In another instance, the grandfather of the present high priest JamaspAsa had performed the navjote ceremony of the French lady (Suzanne — the mother of JRD Tata).”