The judgement of the Bombay High Court in Jamsheed Kanga versus Parsi Punchayet Funds and Properties, has raised a big controversy within the Parsi community. Much of the controversy is due to uninformed public opinion; it is also created by vested interests. It is unfortunate Method To Back Ur Ex Wife that so brilliant and lucidly expounded a judgement should become the subject of unnecessary controversy.
Having read the judgement thrice, I believe its message is best summed up in the words of the Pope: “Know then thyself, presume not God to scan; The proper study of mankind is man”. In contrast, much of the criticism in the Parsi press, recalls Macbeth’s lament: “…full of sound and fury, signifying nothing”.
The appellants moved the court for determining questions relating to the power of the trustees of the Punchayet; the rights of the beneficiaries under a Deed of Trust of 1884; and for the proper administration of the Trust”. The immediate cause for moving the court was a ban imposed by the trustees on two Parsi priests from performing prayers or religious ceremonies at Doongerwadi and two Agiaries, which are vested in the Trust. The ban was imposed because the priests had conducted irreligious ceremonies, according to the trustees. Thus, the trustees exercising powers under the Trust Deed, had sat in judgement over the religious activities of the priests and members of the community. This was objected to by the appellants. .
Interpreting the Trust Deed, the court held that the trustees were not entitled to prevent any ordained Parsi Zorastrian priest from performing religious rites and ceremonies at Doongerwadi and the two Agiaries; the Deed did not empower the trustees to restrain Parsi Zorastrians in their choice of an ordained Priest to conduct religious prayers and ceremonies at Doongerwadi and the two Agiaries; the ban imposed on the two priests was not within the power and authority of the trustees under the Deed.
The attack on the judgement was predictable in its virulence; what is worse, the Judges have been attacked — much of the criticism being wholly unjustified. This was in keeping with the entirely unjustified attacks in the “Parsi” press, during the course of the litigation, against the appellants, the interveners, and their counsel — attacks of which the bench was constrained to deal in measured terms: “The cohesiveness of a faith is maintained by dialogue, not division. The impassioned plea of the appellants even before this court for a recourse to reason, has only been met with reprisals — reprisals against the appellants, the interveners and their counsel”.
As it is not open to Judges to defend themselves, it is left to others to do so. Justice Chandrachud has been accused of being disrespectful of the high priests by referring to them as “certain priests”. The judgement however reveals that the only place where the term “certain priests” is used is when Justice Chandrachud merely reproduces the words used in the pleadings. Justice Chandrachud has used no such words when referring to the high priests. The allegation is therefore totally baseless and unwarranted. I could multiply such instances of unjustified criticism, but refrain from doing so.
What then is the significance of the conclusions arrived at in this landmark judgement? The two most significant are that:
One, it draws a clear distinction between secularity in a country like India and matters of religion, drawing as it does on the fundamental principles laid down in our Constitution – principles which could well be said to reflect the wise counsel of Jesus, when he said: “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (St Matthew).
Two, it cuts through the clutter of specious religious arguments and emphasizes the essential distinction between race and religion — something that is regrettably often lost sight of.
Furthermore, the judgement delivers a message to the community more powerful than the ruling itself — clearly it is a wakeup call for a community that is today suffering from lack of leadership and vision. It is apparent that the Judges were horrified by the schisms being created by the leadership itself, of the minuscule Parsi community; and it contains a plaintive appeal for bodies like the Punchayet to be less divisive and more inclusive in their approach. This would be possible if the Punchayet dealt, as it is empowered to do, with secular issues, leaving it to individuals to conduct their own personal religious affairs. It is not a coincidence that when the matter was carried to the Supreme Court, the Bench expressed similar views, and sent the parties to the mediation of Sriram Panchu.
The appellants and the interveners have done great service to the Parsi community, and need to be commended. So too do their lawyers, led by the redoubtable Iqbal Chagla. They have braved calumny heaped upon them by the respondents, and those that espouse their cause. I am glad that these personal attacks did not deter the appellants, the interveners, or their lawyers from pursuing their cause. The judgement vindicates them in full measure.
(Navroz Seervai is an eminent lawyer and senior counsel in Mumbai)