Why liberals should rejoice at mediation failure
Berjis Desai
Lest you think we have suffered a bad sunstroke, permit us to explain the heading. Why do we want the liberals to rejoice at the failure of the Supreme Court directed mediation in the infamous ‘banned priests’ case? For multiple reasons.
Flushed with their success in the 2008 Bombay Parsi Punchayet (BPP) trusteeship elections, the World Alliance of Parsi Irani Zarthoshtis (WAPIZ)-Dinshaw Mehta alliance interpreted their win as a mandate for liberal bashing. They first roughed up an aspiring Russian Zoroastrian priestly initiate at Sanjan. Nearly created a public rumpus at the navjote of siblings with interfaith married parents. Finally, in their adrenalin-fired role as defenders of the faith, banned two priests — who did geh sarna for the cremated and the occasional navjote for non-Parsis — from performing ceremonies at Doongerwadi and two agiaries under BPP control. They even toyed with the idea of throwing out one of these priests from his BPP allotted house at Godrej Baug.
In the ensuing legal challenge, the Bombay High Court whacked them so hard that they went whimpering to the Supreme Court. Justices Dr Dhananjay Chandrachud and Anoop Mohta’s order and judgment not only invalidated the ban but made far reaching observations. The learned judges held that the BPP trustees are not "custodians of religion” but merely performing a secular function of holding properties. The trustees cannot "ban” or "excommunicate” or "penalize.” So much for their delusions of grandeur of being the "Defenders of the Faith.” In addition, the Judges observed that the Beaman-Davar judgment was much prior to the constitution of India, and, therefore, its conclusions will now have to be examined in light of the provisions of our constitution and other laws relating to human rights, right to equality and dignity. These observations warmed the cockles of every liberal heart and were immensely encouraging. These observations may not be relevant to the banned priests’ case. However, sometimes, courts give you a package deal and the whole ceiling caved upon the heads of the BPP trustees.
As luck would have it, the Mehta-WAPIZ alliance imploded over the Muncherji Cama-Anahita Desai election. Mediation was a fig leaf to somehow reduce the impact of the far-reaching High Court judgment. Any rational person would have grabbed this opportunity with both hands. With his new found liberal credentials, Mehta almost managed to pull it off. However, as the WAPIZ-controlled majority mechanically oppose every Mehta initiative, the mediation mercifully failed.
Had the mediation succeeded, this terrific judgment would have been set aside or whittled down. Of course, the ban would have been revoked — an entirely pyrrhic victory. As a lawyer, this columnist rejoices every time a matter is settled and the parties liberated from suffocating litigation. However, in this case we were keeping our fingers crossed that the mediation fails. We need not have worried. WAPIZ, these days, is so obsessed with its hatred for Mehta that they want to win every war with him, even though it may mean losing the battle. The liberals must thank Mehta for diverting WAPIZ’s focus.
Of course, more community funds (three crores have already been spent by the BPP) will be frittered away, if litigation drags on any further. As a matter of fact, advocate Bapoo Malcolm, who is intervening, should urge the Supreme Court to make the trustees bear the cost of this litigation from their personal funds for having embarked upon this entirely frivolous move to ban the priests.
The Supreme Court appears to have suggested another attempt at mediation by retired Chief Justice of India Sarosh Kapadia. Although Kapadia is almost revered in the community both for his great integrity and intellect, we have reasons to believe that he may not be too happy to accept. (Kapadia has reportedly declined the request — editors.) Be as it may, the chances of the Bombay High Court judgment now surviving have become rather bright. The Taliban has been thwarted.
If the Bombay High Court judgment finally stands, liberal activists like the Association of Inter-Married Zoroastrians must seize this opportunity and take out an originating summons in the Bombay High Court to determine, once and for all, the status of a child of a Parsi mother who has opted for an interfaith marriage as also the validity of Parsis adopting a non-Parsi child, by citing the Chandrachud-Mohta judgment.
If the demographic decline has to be slowed, it is imperative that the community first places the children of interfaith married mothers at par with those of similarly married fathers. And then logically progresses to welcome the non-Parsi spouses too. Radical though it may sound now, in about three decades to come, even outright conversion will become the norm. This is what will guarantee the survival of the Parsis, not the second coming of the Lord.
The banned priests did not care a farthing for the ban. On the contrary, it gave them massive publicity and increased their revenue. It was like banning the Pope from marrying. Inane and asinine. Whether there is a second coming of the Lord or not, He/She certainly wishes that the community sees the writing on the wall and embarks upon this journey to survive. Bad politics is making good law.
Berjis M. Desai, managing partner of J. Sagar Associates, advocates and solicitors, is a writer and community activist.