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In an attempt to seek clarity on the legal position over the use of the Doongerwadi bunglis by those opting to choose a system other than dakhmanishini, eminent senior counsel are working on an Originating Summons to be filed in the Bombay High Court. The summons will ask the Court to interpret the 122-year trust deed. The petitioners are eminent members of the community, including former municipal commissioner Jamsheed Kanga, while the defendants will be trustees of the Bombay Parsi Punchayet (BPP).

Earlier, in his column "Parsi Tari Arsi” (The Bombay  Samachar, December 10, 2006), solicitor Berjis Desai had published extensive extracts from the draft of the Originating Summons, according to which the Bombay High Court will have to decide "Whether the defendants are under the General Trust Deed dated September 25, 1884 enjoined to permit the use of the Doongerwadi facilities ‘for the performance of religious rites and ceremonies’ to the members of the Parsi community professing the Zoroastrian religion who in the present situation opt for an alternate mode of disposal of the body?”

The second question on which clarification is sought reads: "Whether it would be lawful… for the defendants to implement the resolution passed by them on February 6, 2001 to allow bungli facilities for those Parsi Zoroastrians who wish to opt for alternate modes of disposal other than dakhmenashini?”

It may be recalled that in 2001 a resolution was passed by the BPP trustees to allow prayer facilities and all other obsequies to be performed at Doongerwadi for those who opted for other modes of disposal, but the then trustees buckled under pressure from fundamentalist groups and failed to implement their own resolution.

The draft of the proposed Originating Summons goes on to say that "the defendants have often used the excuse that many of the High Priests of the Parsi community have opined that not an inch of land should be given by the defendants at Doongerwadi or elsewhere for the prayer ceremonies of those Parsis who opt for alternate modes of disposal…. Today there are only five designated High Priests in the Parsi community and all of their titles are hereditary. They are the head priests of their respective atash behrams… The High Priests are not appointed to their positions on merit nor do they have to fulfill any criteria to become High Priests…. It must be pointed out that some of the High Priests are highly educated. It is also important to note that a ‘High Priest’ is merely a title and there is no real difference between the High Priests and the other priests of the Parsi community.”

Even more important is the fact that "there is no supreme religious authority or a supreme infallible Pontiff in the Zoroastrian religion…. The decision-making powers with respect to the Doongerwadi lie solely with the defendants and not with the High Priests or with the fundamentalist group or with the reformist group…. The Zoroastrian community has elected the defendants to take decisions and to lead the community, but sadly the defendants have failed to do so.”

The Originating Summons provides the court with a detailed history and background of the traditional Parsi method of disposal of the dead and the reasons why the Doongerwadi lands at Malabar Hill were acquired for the purpose. The first dakhma was built there in 1669 when the area was a jungle and there was no dearth of scavenging birds. In fact tigers freely roamed the forests around Bombay and a tiger was last spotted in Malabar Hill in 1822. In today’s urbanized Bombay the pressure of unbridled population has resulted in a dearth of scavenging birds. There are no vultures left at Doongerwadi, leading to a failure of the traditional method of disposal of the body.

"In order to solve the problem faced at Doongerwadi (the petitioners) conceived the idea of installing solar concentrators over the dakhmas… in 2001. These solar concentrators concentrate the rays of the sun onto the corpses in order to dehydrate and decompose the corpses faster. The efficacy of the solar concentrators will come down if the sun is covered by clouds… particularly… during the monsoon months…. The solar concentrators have to a large extent helped in improving the situation (but) the problem has not been completely solved.”

From time to time residents of nearby buildings have complained of a nauseating stench emanating from the direction of the dakhmas. However, the Parsi community remained ignorant of the scale of the problem until Dhun Baria circulated photographs and a short video clip of the insides of a dakhma with its macabre contents. These visuals ultimately made their way to the national press and television, exposing our age old practices to open debate and even ridicule. They also galvanized Parsis into awareness and they began to clamor for a change in the current system through articles and letters in the Press, both national and Parsi, and through written appeals to the BPP trustees.

The petitioners submit that "the General Trust Deed… provides that the Doongerwadi lands are to be used for every member of the Parsi community professing the Zoroastrian religion ‘as a place for exposure of the dead’ and ‘for performance of religious rites and ceremonies’… Members of the Parsi community professing the Zoroastrian religion who in the present situation opt for an alternate mode of disposal of the body (are) also entitled to use the Doongerwadi property ‘for the performance of religious rites and ceremonies’ and the defendants are bound and liable to permit such user.”