Entitled to enter? - V

Stating that the sacred fire in the agiaries is considered the son of God, advocate Aspi Kapadia who appeared on behalf of 93 residents of Valsad claimed admission to the local fire temple by Parsi women married to non-Parsis would "hurt their (his clients’) religious sentiments.” Noting that the Valsad population was between 200 to 300, he declared his clients constituted a significant proportion of the local population. The case "not only affects the parties to the petition” but many others. Former Valsad resident Goolrookh Gupta has challenged the Valsad Parsi Anjuman (VPA) ban on entry to the agiary and Towers of Silence in Valsad. The VPA contends that after her marriage to a Hindu, Mahipal Gupta, she ceases to be a Zoroastrian.

Noting that the religion provides for "different facets” as versus the legal angle, Kapadia believed a writ petition (WP) as versus a civil suit did not allow for "detailed scrutiny of facts. No cross examination is available… no inputs.” He questioned the maintainability of a WP against a trust and whether "the High Court can pass any orders on religious issues.” WPs are usually evoked against the state, not private parties.

Goolrookh Gupta: fighting bias

Even if the petitioner was married under the Special Marriage Act (SMA), 1954 according to religious diktat she ceased to be a Parsi Zoroastrian, Kapadia told a three-member bench of the Gujarat High Court headed by Justice Jayant Patel on November 24, 2011 in Ahmedabad. The other two on the bench are Justices Akil Kureshi and R. M. Chhaya. Kapadia cited Ilm-e-khshnoo­mist Adi Doctor’s affidavit as stating that the religious texts or Nasks numbered 21 originally but now were reduced to only one, the Khordeh Avesta. (The rest) were "destroyed over the ages on account of various reasons including sovereign invasions. The religious practices and tenets of the Parsi Zoroastrians today are based on customs and traditions which have been followed since time immemorial. These customs, traditions and practices have religious as well as mystical backgrounds…

"The petitioner has produced the certificate of marriage which reflects that the marriage was registered under Section 13 of the SMA, 1954. The certificate does not reflect anything more than that the marriage was solemnized under section 12 of the Act. Section 12 of the said Act provides that the marriage may be solemnized in any form which the parties choose to adopt... No details of the form in which the marriage is solemnized have been provided by the petitioner or in any of her affidavits… If the marriage is solemnized under any religion other than Zoroastrian, the petitioner would cease to be a Parsi Zoroastrian.”

Noting that the SMA amendment which did not require either party to renounce their religion came into force only after 1954, Kureshi observed that the religious text could not have foreseen such a development. Nor would the texts state "how to deal with such an issue… what would the religion say? The question only arose in 1954. The religion would not have said therefore you are not a Parsi.”

Patel: "Her status continues to be” that of a Parsi Zoroastrian.

Kapadia: "No section says that she can continue” to be a Parsi Zoroastrian.

"The law and religion treat that person differently,” remarked Kureshi.

Patel inquired if for men "it is permitted” to marry under SMA and remain Parsi Zoroastrians. When told "yes” he noted wryly, "the rules are made by males.”

Sharad Vakil, counsel for the VPA quipped: "God speaks to man.”

Percy Kavina, counsel for Gupta, added: "God is a he.”

Kureshi: "If a female, the community would have spread further.”

Kapadia alleged Gupta married "as per Hindu rites.” Kureshi noted that if either party is not a Hindu "that marriage is not valid. Nevertheless under Section 12 (of the SMA) the marriage would be valid… There is no presumption that she has become a Hindu” because she underwent a Hindu marriage ceremony. A marriage may be performed for convenience or to assuage the sentiments of the families. "In such a marriage if a couple were charged with bigamy, the charge will fail.”

Kapadia said such a marriage "raised a suspicion. Is there not a possibility” that she converted?

Patel: "The basis of her petition is that she is a Parsi. She is not embracing the Hindu religion. She says she has a right,” to profess and practice her faith.

To bolster his argument on exclusivity of the community Kapadia said at jashans, even in private homes, non-Parsis were not permitted.

Kavina: "Not in my house. Not in thousands of cases.” He stated the exclusion "is not an integral part of the religion. It is a self-imposed restriction, not the face of holy writ.” Kapadia noted that wearing the sudreh and kusti "is an integral part of the religion. There are some who do not wear the sacred garments. That does not mean that it is not an integral part. It (merely) ceases to be a religious practice.” He argued that these were "customs and traditions practiced for the last 1,300 years. This implies force of law.”

Patel: "It does not, if it goes against the Constitution” of India.

Kapadia spoke about how entry to the fire temple is restricted to Parsi Irani Zoroastrians and only an ordained priest is permitted to enter the kebla where the sacred fire is kept. Food that is prayed upon may only be consumed by Parsis. If a fire temple is to be painted or repaired, the fire is shifted and that too surreptitiously so that non-Parsis may not eye the flame.

Kavina: "Don’t ask us a question (whether) we are living in the dark ages.”

Kapadia: "(This is what) the religion says.”

Kavina: "The religionists say.”

Patel: "What religionists say may not be religion… Identity in law is conclusive.”

Kapadia: "Subject to religion.” He referred to the affidavits of the high priests supporting his contention.

Earlier in the afternoon Vakil argued that the word religion had been used in Article 25 and 26 of the Constitution because there was no English equivalent to the word "dharma.” The framers of the Constitution believed "the religion and dharma are one and the same when used interchangeably. It is not so... Dharma has no corresponding word in English. Therefore the word religion is used.

"Dharma is for the stability of society, maintenance of social order and general well-being of mankind. It is identified with truth. There is nothing higher than dharma.” If dharma were substituted for the word religion in Articles 25 and 26 of the Constitution, the present case would not have arisen.

"Enact a law”

"Places of worship are meant to be used in a particular manner. If you want to change the usage, you should enact a law for the purpose of reform. That can only be done by the legislature and not the judiciary,” asserted Vakil in the course of his arguments a week earlier on November 17, 2011.

"We have yet to come across any religion that prohibits entry to members of other faiths,” remarked Patel. This caused Vakil to respond, "I am confining myself to the Zoroastrian faith.”

Countering Kavina’s earlier citation of judgments in the Petit vs Jeejeebhoy case of 1908 and Saklat vs Bella case of 1925, Vakil opined, "None of these judgments... have relevance to issues arising in our case” for they concerned the rights of converts to Zoroastrianism. According to him the book Judgments was important for it confirmed that fire temples and dakhmas are religious places. He read from the judgment in the Petit vs Jeejeebhoy case which states: "Since their advent into India (Parsis) have continued to follow the religion of their forefathers, and wherever they have settled in any appreciable numbers they have built for themselves atash behrams, agiaries, and dar-e-mehers for the performance of their religious worship and the observance of their religious rites and ceremonies and erected dakhmas for the disposal of their dead according to the dictates of their religion.” Explaining the functioning of the dakhme­nashini system, Kavina told the judges that "only special persons can go into a dakhma,” other Parsi Zoroastrians can only go up to a particular point.

Kavina’s reference to the Bombay Parsi Punchayet permitting outmarried ladies to use the Towers of Silence was challenged by Vakil stating that as per this "separate tradition” such ladies are allowed to be consigned only in the Mody dakhma and not the other dakhmas that are open to all. Patel declared: "We will consider this aspect separately.” He was more interested in knowing whether prohibition of entry to a religious temple is permissible to the Supreme Court. "Suppose a non-Parsi wants to visit a Parsi agiary, would you prohibit? In no mosque or Hindu temple… or even church… is there prohibition,” continued Patel. Noted Vakil, "Hindus are governed by Article 25 (2) of the Constitution.”

Alluding to the evolution of Hinduism since the time of Manu Smriti, Patel questioned, "Is it your contention that according to the Hindu religion reform is permissible? Should it be restricted only for the Hindus?” Reading from Article 25 which protects the fundamental rights of a citizen, Vakil stressed that "freedom of conscience and the right to profess any faith cannot be interpreted as a right to enter any temple.” But taking a hypothetical case Patel sought to ascertain, "If a Hindu wants to convert to Islam or a Muslim to Hinduism, is there a bar?... There is no religious prohibition.” Maintained Vakil, "There is a difference between right of entry and entry to a religious place.” According to him, "Agiaries and Towers of Silence are properties of a particular denomination with a right of entrance. This right is not absolute but qualified.”

Patel suggested that Vakil could cite the judgment in N. Adithayan’s case where the Supreme Court held that there is "no justification for permitting only Brahmins to carry out the necessary rites and rituals as priests. The custom of restricting functions of priests or poojaris to Brahmins only is violative of human rights, human dignity, concept of social equality and the specific mandate of the Constitution and cannot be considered an integral part of the Hindu religion.”

The same judgment also states, "The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion… Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”

Vakil though argued that this case dealt with "civil rights and not religious rights” since the issue of who can occupy the position of a poojari does not qualify as a religious right but a "civil right to office or a right to performance of service” as enunciated in section 9 of the Civil Procedure Code. He preferred to rely on the Supreme Court judgment in the case of Valsamma Paul vs Cochin University and others where it was held: "Be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of her husband’s marital home entitled to equal status of husband as a member of the family. Therefore the lady on marriage becomes a member of the family and thereby she becomes a member of the caste to which she moved.”

When Vakil referred to the renegade priests case in the Supreme Court where the Bombay Parsi Punchayet has appealed against the order of the Bombay High Court, Patel sought to know the verdict of the case. He was informed that the Supreme Court has directed that the matter be resolved through mediation. As noted Kavina, "The Supreme Court is supremely optimistic.” Added Vakil, "When issues are so vehemently fought, mediation only helps to bring about peace for some time as between Assam and Nagaland.”

The legal cases cited by Vakil were frequently inaudible three rows behind him, but when his voice could not be heard even by the judges facing him, Patel enquired, "Mr Vakil are you comfortable?” The senior counsel’s health was a cause for concern since hearings for a few weeks had been deferred due to his hospitalization. Although Vakil admitted he had not regained his full vitality, he continued for some more time despite his weak frame but ultimately requested the judges to permit him to end his arguments half an hour prior to the court closing time. The judges readily acceded to his request thinking the defendants had rested their case but were taken aback when he said he would require some more time at the next hearing on November 24.