Jamsheed Kanga and Homi Khushrokhan on the Banning Priests Controversey

From Jamsheed Kanga & Homi Khushrokhan to BPP

Jamsheed G Kanga                                                                                 

Homi R Khusrokhan

To: The Chairman and Trustees of the Bombay Parsi Punchayet

29th July 2014

Dear Mr. Mehta,

We were appalled to read an article in the last issue of Parsi Times titled “This case goes much beyond just banning 2 Renegade Priests….” authored by two of your trustees Mr. Khojeste Mistree and Yazdi Desai. The article is nothing but a concoction of half-truths and misleading statements cleverly put together in order to mislead and confuse an unsuspecting reader. It creates an impression that the BPP have no option today but to go back to court,which is completely incorrect. The reader has not been given the slightest indication that in the intervening period of 3 years there have been over 20 settlement meetings and that till recently there was a well-thought-out and painstakingly crafted settlement under consideration between us, which addresses the majority of theconcerns (and canards) raised in the said article.  In fact, the Trustees kept calling us for settlement meetings, which was obviously only a sham.

It makes us wonder why these two gentlemen sat with us and participated in these mediation discussions (often extremely unpleasant) for over 3 long years. It also amazes us as to how they managed to ‘convince’ 3 of your other trustees to side with them in favour of returning to court. There is not a single legitimate function of the BPP that your Board of Trustees has been prevented from dischargingby virtue of this judgment during the last three years that the judgment has been in force, viz. since April 2011. Our challenge, to the group of trustees who wish to revert to the Court, to show us even one such instance, remains unanswered to this day.

Let us be clear that the Trustees issued an unprecedented ‘FATWA’ and that is what started these proceedings.  We have been very clear from the beginning that it was not the banning of the two priests in particular, which we challenged, but the concept behind it viz. the Trustees imposing their will on members of the Community and taking away the freedom of choice, which is the fundamental basis of the matter.  Such a ‘FATWA’ has never been issued in the past.  These two Trustees are fully aware that this is the heart of the matter, and yet have chosen to mislead the public by pretending that it is Ervads Madan and Mirza which are the reason for the dispute.  Thesetwo gentlemen and all of you have a duty as Trustees for transparency and honesty to the members of the Community.  You cannot mislead in this manner.  We believe you are today duty bound to issue a clarification to the article published, failing which, each of you would be failing in your duty and responsibility to the Community.

The fact that no one can justify the Rs.3 Crores already spent (or rather misused) on this litigation, is no justification for misleading the members of the Community and giving an incorrect impression.  For 3 years, the Trustees have informed the Supreme Court that they wanted a settlement of the matter and sought adjournments. Is this also a false statement made by you to the highest Court of this land?  From the very outset, we had made it clear that the fundamental basis of the Appeal Court Judgment would remain untouched, viz. that the Trustees do not have the power to curtail the right of choice of members of this Community.  Why then have you wasted time and money on these mediation meetings?  Then, please have the courage to say to us that you stand by your illegal, perverse, obdurate view that you have the alleged right to issue such a ‘FATWA’ and fight the matter out in the Supreme Court.  Don’t pretend to us and mislead the Supreme Court that you want to settle the matter.  This article is the final straw, and we will place it before the Supreme Court at the appropriate time.

The proceedings were never about,nor does the Judgment deal with any religious practices, interfaith marriages, Navjote, cremations, etc. and yet members of the Community are being misled that in some manner the Judgment deals with these issues.  The Judgment only deals with the interpretation of the Trust Deed of 1884 and the right of every Parsi Zoroastrian to appoint the priests of his choice at the Doongerwadi and the two Agiaries.

Let us place before you some of the truly astonishing misstatements and half-truths the article contains which need to be set right:

  1. It is on record both in court proceedings in the Bombay High Court and in every one of the 20 or so mediation meeting held so farthat this matter was never regarding the two priests in question but the BPP’s authority to impose a ban on our freedom to choose the priest of our choice. They conveniently forget to mention that there was an overt and explicit warning in the ban to other priests not to follow in the footsteps of Er. Mirza and Er. Madon. As the judgment states “Implicit in it (i.e. the ban) is a veiled threat to others against the reprisals that may follow, if they were to adopt a course of conduct that the Trustees do not countenance”.
  1. It is unimaginable how they can claim today that Er. Khushru Madon is no longer interested in challenging the ban and suppress the fact that another intervener (Mr. J S Irani) together with the ARZ have in fact now sought relief from the Supreme Court on behalf of the two priests that the stay granted by the Bombay High Court on the removal of ban notices should be vacatedforthwith and that they should be allowed to pray at Doongerwadi.
  1. The High Priests have every right to guide, advise and counsel the communityon what they should or should not do,but,clearly,Fatwas are alien to our faith and cannot be accepted. A person can choose to be guided by the High Priests or choose not to be so guided.  In any event, the Trustees cannot act beyond their powers or against the terms of the Trust Deed.  This is what you have done.  The choice of disposal of mortal remains, the choice of priest to offer prayers at the sad moment of death are matters best left to the families of the deceased and others cannot and should not interfere with these difficult decisions, least of all the BPP, at the painful point of separation from loved ones.

Moreover, all the BPP trustees are fully aware and have been given a copy of a written opinion of a very learned and respected former Judge of the Supreme Court (SrikrishnaJ.) that the Judgment of the Division Bench of the Bombay High Court has no bearing whatsoever on the authority of the High Priests. In fact there is no mention of High Priests or their authority in the entire judgment, as neither the High Priests nor they authority was ever a question before the court.

  1. It has time and again been pointed out by us that role of the BPP is unambiguously circumscribed by a Trust Deed – the General Deed of Trust of 1884, which makes it abundantly clear that there is an obligation cast on the Trustees to at all times“permit and suffer the said piece or parcel of land and the several Towers, buildings and erections thereon standing and being first described in the First Schedule hereto (of the 1884 Deed of Trust) to be used and frequented as heretofore by every member of the Parsee Community professing the Zoroastrian religion as a place for exposure of the dead and for the performance of religious rites and ceremonies”. This is obligation is irrefutable and has been in force for 130 years.
  1. The so-called “Ramifications of the Order” (of the Division Bench of the Bombay High Court) is the most seriously misleading part of the entire article. It is ironic today that it was these same persons,not us, who agitated the verysame issues before the High Court, and, are now attempting to place the consequences of doing so at our door. They chose to use these arguments as a ploy (claiming “serious religious implications”) in order to get our originating summons dismissed. Religion was used (or rather misused) as a mere legal strategy to win a case,when the only issue before the court was a simple interpretation of a Trust Deed. Itwas sought to be widened by the introduction of these same issues, by these same gentlemen, who now allege (incorrectly) that the judgment damages our faith.

The erudite Judgment of the Bombay High Court which they now request should be read by all, in fact,says “To place a perspective is not to destroy a faith”and “The cohesiveness of a faith is maintained by dialogue and not division”. There is great wisdom in this judgment and we would request each of you to read it once again for yourselves.

For your convenience we enclose 2 important extracts from the said judgment:

“18. The Trust Deed plainly makes three things abundantly clear. Firstly, prior to the execution of the Deed of Trust, the trustees of the Parsi Panchayat were endowed with the authority of managing social and religious affairs and/or settling religious, matrimonial and other social disputes between the members of the Parsi Community in Mumbai. Secondly, the position of the trustees of the Parsi Panchayat underwent a transformation upon the execution of the Deed of Trust. At any rate, upon the execution of the Deed of Trust on 25 September 1884, the trustees of the Panchayat became trustees of the funds and immovable properties of the Panchayat. The role of the trustees became divorced from the resolution of religious, social and matrimonial disputes(emphasis added).Thetrustees assumed a secular character. Thirdly, the purpose of the dedication of the properties for the Towers of Silence was that those properties be used as a matter of right by every member of the Parsi Community professing the Zoroastrian religion as a place for the exposure of the dead and for the purpose of religious rites and ceremonies. An obligation was cast upon the trustees to permit and suffer the use of the properties for that purpose. The expression “permit and suffer” recognizes a right in the beneficiaries of the Trust, who are members of the Parsi Zoroastrian Community to utilize the properties for the purpose for which they were dedicated. The right finds a corresponding obligation in the Trustees to permit and suffer the use of the dedicated properties. Enabling provisions are thereupon made, empowering the trustees to keep the properties in good repair. In contrast, the dedication of the properties for the Towers of Silence is mandatory and imperative. A right is recognized in absolute terms in every member of the Parsi Community, who professes the Zoroastrian religion to be able to utilize the Towers of Silence as a place for exposure of the dead and for the purpose of religious rites and ceremonies.  The Deed of Trust is couched in language of width and amplitude. The Towers of Silence constitute a sacred element in Zoroastrian faith. The Settlors of the Trust, therefore, contemplated the dedication of the Towers of Silence as a facility for the exposure of thedead of every member of the Parsi Community professing the Zoroastrian faith. The trustees have not been conferred with the power to exclude. Advisedly, the Settlors conferred an entitlement upon every member of the Parsi community professing the Zoroastrian faith as a matter of an important religious purpose. The lack of an exclusionary provision is, in fact, emphasized elsewhere in the Deed of Trust as well”

“29…….While we have indicated these areas of dispute which were urged before the Court, as a matter of record, we clarify that our decision is not based on adopting one or the other of these perspectives. The Court has been concerned in these proceedings with construing the Deed of Trust and it is the Deed of Trust that we have construed.”

  1. Again ironically, you and Mr Cama asked a day before the article appeared in the Parsi Times to have one more meeting on the last settlement draft, which these gentlemen now describe as a “sell-out”. I am afraid any further meetings would be meaningless and we request you to have a serious discussion amongst yourselves and take a view on the last draft, which we are now reluctant to modify any further as it has become an unending and futile process.While we may have disagreed on many matters, it is to your credit today that only you and Mr Cama appear to have the larger interests of the Community at heart and are very concerned that monies meant for genuine charitable purposes are being wasted on trying to now confirm the ill-conceived fatwa.
  1. We have taken a very serious view of this highly objectionable article, and are considering what further steps need to be taken in respect of the same.

With regards,

Yours sincerely,

S/d J G Kanga                     S/d H R Khusrokhan