“Why leave one divisive issue?”

No sooner had the Supreme Court accepted on April 27, 2015 the mediation terms hammered out between the petitioners Bombay Parsi Punchayet (BPP) trustees and the respondents Jamsheed Kanga and Homi Khusrokhan under the aegis of former Supreme Court Justice Sujata Manohar, that emails supporting and condemning the settlement poured forth.
Bapoo Malcolm, the lawyer for the unsuccessful intervener Jamshed Salamat Irani opined "the order applies only to the parties to the suit… Madon and Mirza are not the party to the suit… therefore they are outside the ambit of the order. It is not applicable to them. Only to the parties in the proceedings.”
The settlement terms barred only Ervads Framroze Mirza and Khushroo Madon from praying at Doongerwadi and the two fire temples controlled by the BPP while permitting all other priests to perform ceremonies at the three venues.
In another email on April 30 Malcolm noted, "This morning, I had talks with senior advocates and counsel. All confirmed my views, sent yesterday, that the order of the Hon. Supreme Court of India is applicable only to the ‘parties’ to the suit and no one else. Madon and Mirza are out of the loop. So are you and I and everybody else…
"If they (Kanga and Khusrokhan) have the guts, they should approach the Bombay High Court (BHC) and seek a clarification whether the order stands or not…

Doongerwadi gates closed to Ervads Framroze Mirza and Khushroo Madon

Pavilion at Doongerwadi

"Madon can pray at any time at Doongerwadi. Trying to stop him will mean a contempt of court and violation of his rights; punishable with compulsory imprisonment and a fine.”
Malcolm’s opinion drew a derisive response from community activist Homi Dalal who noted in an email the same day, "My only question as a layman is instead of challenging the guts of others, why can’t he (Malcolm), being a known lawyer approach the BHC and seek clarification. People will be very happy if he succeeds. But I am sure the judge will die laughing. I don’t think any counsel in proper senses may try this. If there is any provision to do so he must try to (litigate) himself. Why is he is making the mistake of trusting Kanga and Khusrokhan? On one side he is accusing them of making a mess and on (the) other side he is asking them to seek clarification from the BHC.”
World Zoroastrian Organisation Trust Funds managing trustee and former BPP trustee Dinshaw Tamboly in an email dated May 1, 2015 to the Parsi Press noted, "The present BPP trustees may have won a battle but have lost the war.
"After a war must come peace (not the threat of further litigation).
"My humble request to the present BPP trustees is to reconsider their stand and allow the two priests to now pray at the Doongerwadi. As it is, other priests now have the legal licence to perform anywhere they wish and for whatever form of disposal the family of the deceased may decide upon.
"I sincerely hope the present trustees will show magnanimity in the matter.
"Some community members have taken to criticizing Kanga and Khusrokhan for conceding this one point (the bar on Madon) without taking into account the overall success they have achieved. The critics are welcome to their opinions, but I for one commend and congratulate (the duo) for having displayed grit and determination in having taken up the issue, for having walked the talk, and for succeeding in liberating the priests and laity from following injunctions they are not comfortable or willing to comply with.”
Tamboly’s point of view was endorsed by BPP chairman Dinshaw Mehta who noted in an email dated May 1, 2015, "I completely agree with you that two priests should no longer be victimized if all others are allowed. I will put it before the BPP board for their approval.”
BPP trustee Muncherji Cama emailed Tamboly on May 1, 2015 stating, "I fully endorse your views.” (Mehta and Cama are in a minority on the BPP board. The board is therefore unlikely to rescind the ban – editors)
Lawyer Karl Tamboly in an email dated April 29, 2015 noted, "One perhaps does not notice that being a litigant in our great and grand legal system is actually a very frustrating affair, especially when one is in the right. Maybe it’s time to get out of the armchair and actually go into the battlefield before passing judgment. I don’t think it’s fair to put down what Homi and Jamsheed have achieved selflessly for the rest of us… Let us not forget that without (them), the BPP trustees would till today be assuming religious powers and we would be far worse off than we are in with the consent terms as they stand today.”
Centre for Advancement of Philanthropy chief executive officer and former BPP trustee Noshir Dadrawala in an email dated May 1, 2015 noted, "One hopes the ‘defenders of the faith’ will put ego aside and bring back peace and harmony in the community. No welfare or development is possible in an atmosphere of hate and division.”
In an email dated May 1, 2015 to Khusrokhan, Dadrawala who termed the settlement a "Pyrrhic victory” reiterated, "If I was in your shoes I would not have signed this settlement… For two-and-a-half years I stood alone against six hostile trustees despite two votes of no confidence by six colleague trustees, public humiliation in various newspapers, once a gehrao in the BPP board room, stood alone fighting for my right as a trustee at the CC’s (Charity Commissioner’s) office… wasting like you hours and hours of my valuable professional time and much more (so I know exactly what you say and mean)… but I did not sell-out on the rights of 40 because of the 64 that the team confirmed out of 104 allotments.”
Earlier that day Khusrokhan had sent an email to Dadrawala explaining: "Let me share with you, some of the realities we have had to grapple with for five long years, and then perhaps, you and some of the other addressees will be able to better understand the tough decisions we have had to make along the way and what the choices before us were…
"The question of praying only for ‘relatives’ as a pre-condition for the settlement to proceed is not of recent origin. It started within a few months of the mediation starting, in January-February 2012 (if I remember right) and I may even have some of the mails exchanged with Khushroo at the time. At one stage his giving the affidavit (agreeing to pray for relatives) appeared to be very possible and would have certainly expedited the settlement. However the whole process got derailed when the "Madon-supporters” [Kerssie and Vispi Wadia of Association for the Revival of Zoroastrianism (ARZ) and Malcolm – editors] got into the act... I have had innumerable conversations with (Madon) over the years and I have personally tried to convince him that it is (a) very small sacrifice he is making for the good of all mobeds. He asked me once what do I say if someone asks me to pray at Doongerwadi. I suggested that all he has to say is that ‘I will send my son Fali.’ No one can ever ban Fali if this judgment is upheld. Individuals make personal sacrifices for the greater good all the time and I tried very hard to convince him that this was one such case and that once he made up his mind to give such an affidavit we would praise him publicly and really make a hero out of him for making this sacrifice. But unfortunately the pressures from his ‘supporters’ would not allow him to do so.
"Even at the very last mediation meeting we tried to dislodge the requirement of this affidavit for about half an hour, but the BPP, who he has antagonized in several other ways, would not relent. I remember one of our team even asked ‘Why leave one divisive issue open on the table when the settlement could now really bring the community together again’ – but this was of no avail. So now another controversy starts and this one is mistakenly placed at our door…
"Khushroo certainly does not need to pray at Doongerwadi for his financial needs and for him it is only a question of the feeling of hurt that he is the only one being discriminated against. I can understand the pain a priest feels that everyone under the sun can now pray at Doongerwadi but only he cannot (Mirza having earlier accepted the ban). Jamsheed and I are unfortunately now both conflicted because of signing the settlement, but I wish you or one of your friends receiving this mail could try to find him a legal solution or by reasoning with the BPP. We are all on the same side of the table as far as Khushroo Madon is concerned…
"Please think some of these realities through, before summarily declaring this a Pyrrhic victory. Please put yourself in our shoes and hand on heart tell your addressees what you would have done had you been in our shoes. I am writing at length because little knowledge is always a dangerous thing and it is so easy to use facile and emotive arguments when one is blissfully unaware of the hard realities of the tough choices we have had to make along the way.
"One final suggestion: please, apply your mind as to what you can do constructively to help Khushroo through proper legal means and not merely by the expression of personal views in the social media, which only creates further misunderstandings by misleading those not in the know of things. I think the time has come for us, Jamsheed and I, to pass on the baton to someone else. A caution though, this matter has taken a good few hundred hours of my time and has been a huge emotional drain. I do not regret it because we have achieved what we set out to do -- but as I said –never again!”
Email dated May 1, 2015, from entrepreneur Villoo Morawala Patell of Avesthagen to Khusrokhan: "We succumbed. Khushroo Madon should have got full clearance. It’s not about one person. In fact I say that he was the pivot on which change was to be set. Now it is unclear and every idiot worth his name in the future will make his own call on this judgment. Too many loose ends and open to interpretation. I am sorry it came out sounding this way. There should be absolutely no restrictions on Madon doing prayers at Doongerwadi; only for his family and taking permission from BPP is the final insult. And how petty of these people to isolate only him. It shows a vindictive nature.”
After reading Kanga and Khusrokhan’s clarification (see "An unsettling settlement,” Parsiana May 7, 2015) Morawala Patell conceded, "You and Jamsheed have done a great job and maybe this is the best outcome knowing our community… The girls in our community are suffering and the boys are getting away (a reference to the children of Parsi women married to non-Parsis not being considered Parsis). Khushroo gave them respect and did his best.”
Khusrokhan replied, "The time has come for me to retire from community affairs – it’s been tedious and thankless!”