Re: Reply to Mr. Dinshaw Tamboly's article of 6th January, 2002 on "The Doongerwadi Imbroglio".
Mr. Tamboly generalizes his article with observations concerning duties and responsibilities of a trustee which he, as a trustee, is expected to discharge impartially and primarily in the interest of the Trust Estate. But has he approached the matter in a non-partisan and impartial manner considering what he says and what he does? Possibly, his own thinking on the issue may be the same as that of DDD-AG.
Mr. Tamboly initiates his arguments by referring to "vituperative" criticism of the Trustees on having decided to allow the construction of a prayer hall at Ambavadi on the Doongerwadi property to be used for post-funeral ceremonies for those not opting for consignment by the traditional system of Dokhmenahsini. Criticism certainly it was, but it would be uncharitable to characterize it as "vituperative" when it was supported by cogent facts and reasonings. It is commendable that listening to this so-called "vituperative criticism" and actually realizing the pulse of the community, two of the trustees have rightly shown statesmanship and changed their stand. Let others also emulate, including Mr. Tamboly.
Mr. Tamboly further says that the initial reaction is always to offer resistance to change. Let Mr. Tamboly know that the resistance on such an important issue will not be initial only. An action which goes to the very heart of the community and to the root of the community's tenets and religion and particularly leading to the endangerment of the community's prize possession, cannot be transient, but constant and unceasing till things are set right. This is not a question of emotions or sentiments as Mr. Tamboly seems to suggest, but takes into account the hard realities and "valid facts" to use the very expression of Mr. Tamboly. What may be true and valid according to Mr. Tamboly is obviously not true and valid according to a predominantly large section of the community, backed by the expert opinions of religious heads, scholars and lawyers including the opinion of BPP's own counsel Mr. Rafique Dada. The decision that is taken, renders the opinion of Mr. Dada completely nugatory. If there was to be such decision, why was there the fašade to consult a Counsel?
Mr. Tamboly refers to changes that have taken place to our religious customs and traditions. Comparisons here are odious. Here is a completely different issue, namely, whether a property settled on Trust by the settlers can be used for a purpose other than that intended by the settlers and more so, when it would strike at the very roots of our tenets, customs and religion for the continuance of which there is no impediment. Nobody denies the right of any member of the community to exit from this world in the manner he chooses, but then he cannot choose or utilize the facilities of a property settled on Trust for a particular purpose, which is antithetical to it and to the wishes of the settlers. Possibly, Mr. Tamboly seems to liken this so-called change to some of the customs, which due to the exigencies of times, can no longer be practised by the community. For example, doing the kusti at the change of every gah or our women being secluded during their menstrual period. It would be sheer absurdity to compare the present issue with such cases which are of a personal nature and do not in any way affect the institutional structures of the community.
Mr. Tamboly further contends that the issue in question has been agitating the minds of many Zoroastrians. How many, may we ask? Two against ninety-eight out of a hundred who prefer to continue with the system? In fact, this statement of Mr. Tamboly proves the point that the decision seems to have been taken to placate this 2% of a very powerful and influential section of the community which is making this demand, and at the same time, ignoring the feelings, sentiments and viewpoint of the remaining 98% of the community. Would Mr. Tamboly with all his claims of impartiality and reasoning have agreed to a similar request if these had been put forward by a group of unknown people? Mr. Tamboly further contends that SDAC has based their stand on sentiments and spiritual aspects, whereas DDD-AG has done so on religious, legal and practical aspects. What a travesty of facts when both on legal and religious aspects, enlightened High Priests, religious scholars and lawyers (not members of the SDAC) have propounded their views with cogent reasoning, irrefutable arguments, including BPP's own counsel.
Mr. Tamboly further says that he has come to his opinion in the larger interest of the community and his stand is likely to cause the least possible impairment. What are the larger interests of the community? Placating the 2% minority or endangering our prized property and hurting the sentiments of 98% of the majority? What is the impairment that he is talking about? Impairment to whom? Has he, the threat of litigation meted out by DDD-AG , in mind? Does his stand really avoid this threat of litigation? Is the vast section of the community likely to accept this totally unjust decision without any challenge? No responsible individual holding such a high position can fail to ignore this.
Mr. Tamboly further contends that no specific references have been provided that a prayer hall has any religious significance, and that since no religion is involved and prayer halls are a matter of convenience, members of DDD-AG also being Zoroastrians strongly feel that they too enjoy the right of being provided the facility of a prayer hall. Mr. Tamboly misses the point completely. Where are the prayer halls constructed? On which land? They are a part and parcel of the Doongerwadi property, which was settled on Trust for the disposal of the dead through the system of Dokhmenahsini. Those who donated the funds for the construction of such prayer halls were only for the convenience of the members of the family who witness the recitation of the four-day prayers for the ceremonies incidental to the disposal of the dead through Dokhmenahsini. Mr. Tamboly further contends that since no religion is involved and prayer halls are a matter of convenience, this facility should also be allowed to the members of the DDD-AG even if the system of crematorium is used. He clearly ignores the observation of Mr. Eruch Desai in one of his articles, that our courts have held that rituals and observances, ceremonies and modes of worship are integral parts of religion.
Mr. Tamboly further contends that the opinions of prelates, clergy and scholars are mainly on prevailing customs and continuity of tradition. He also complains that other religious injunctions in the scriptures have already been compromised without any protest since it is not possible to adhere to them in the present day and age. As Eruch Desai has already enlightened as above, that our courts have held that rituals, observances, ceremonies and modes of worship are integral parts of religion. With regard to other religious injunctions having undergone a change, what a comparison! Apart from the fact that the system still continues, a decision to allow prayers at the Doongerwadi lands will be tantamount to a change of system. Such a decision would only amount to permitting that which is not in consonance with the objectives of the Trust, resulting in a breach of trust, for which there is legitimate right of protest and suitable action.
Mr. Tamboly further says that the system of Dokhmenashini as is presently functioning is a dilution of the system as was practiced in the days of yore. What particular dilution is he referring to? We all are aware that the same system in vogue which was initiated more than 300 years ago in Mumbai still continues. But even assuming that what Mr. Tamboly says is right, does that give a license to the Trustees to make a breach of trust? In any event, by allowing the DDD-AG to hold prayers on the Doongerwadi property in respect of the bodies disposed off through burial or cremation, are we not introducing any change in the system of Dokhmenashini as Mr. Tamboly seems to suggest? Mr. Tamboly is not only committing a breach of trust it also goes counter to a long established religious injunction.
Mr. Tamboly further contends that what is not prohibited could be presumed to be permitted. Even a layman would know that if a property is settled on trust for a particular purpose, it has to be utilized for that purpose and no other purpose. Can premises let out fro residency be used for business? Can the amount donated for a gahambar fund be used for reciting prayers for those whose bodies are cremated? Even a layman can answer these questions easily.
Mr. Tamboly seems to support the stand of the members of the DDD-AG, many of whom are legal luminaries, who maintain that they are very sure of the legal position and are determined to move the Courts for enforcement of what they believe to be their fundamental rights as Zoroastrians and if the matter were to go to court, the "Pandora's box" will open and the end result can well be imagined. What does Mr. Tamboly expect|? Does he expect that those who agitate a point would say that their point is weak or suffers from infirmity? Is this not a threat at gun-point trotted out to achieve an objective? Should the Trustees succumb to it as Mr. Tamboly seems to have done, ignoring the impartial opinions of the three other legal luminaries, including their own counsel Mr. Rafique Dada? If this is not a partisan approach, what else can it be?
Mr. Tamboly also relies upon Section 438 of the Municipal Corporation Act, which has been in force for more than the last 100 years and on the basis of which the State Government may elect to close down any place for the disposal of the dead if from the information furnished by competent persons and after personal inspection, the Municipal Commissioner shall at any time be of the opinion that such place of worship is or likely to become injurious to health. In support, Mr. Tamboly has referred to the closing down of the Haynes Road Cemetry as far back as 2nd December, 1961, the Hindu Colony Cemetry at Dharavi Road as early as 7th March, 1962 and the Hindu Cemetry at Chembur as early as 26th October, 1964. He has not disclosed as to in what circumstances these three cemeteries were closed down. They may have outlived their utility in those areas. Has he shown that these cases are comparable with the present case of the Doongerwadi property where the system still continues and for the continuance of which, the Trustees have taken commendable steps to strengthen it?
Mr. Tamboly also observes that we cannot risk Doongerwadi being added to the above list of closed down cemeteries. In fact, does he not realize that he is risking the Doongerwadi property by conceding to the request of the DDD-AG by allowing prayers, as so aptly highlighted by Mr. Eruch Desai in his articles of Sunday 9th December, 2001, and 6th January, 2002.
Mr. Tamboly further contends that in his analysis of the situation, he has also taken cognizance of the so-called established legal fact that the laws of the land are superior to the mandate of the people. One fails to understand what this general statement seems to convey. Our law clearly recognizes the right to freely practice one's religion as a citizen of India and that includes the right of members of the Parsi community to freely practice their religion.
Mr. Tamboly lastly contends that by agreeing to the decision, it is his expectation that this vexatious issue would be solved by accommodating diverse view-points in a spirit of give and take and without inviting the intervention of the authorities to the detriment of the Doongerwadi estate and the system of Dokhmenahsini. As stated above, does Mr. Tamboly expect the vast majority not to defend its rights with all its might? Has not the attention of other communities and the powers that be been already drawn to this controversy by needless publication in the cosmopolitan press, as also, the letter which the municipal authorities wrote at the behest of a DDD-AG member, in the matter?. Fortunately for the community there has been no further move in this direction and that tells the tale. Did it not strike Mr. Tamboly who has close contacts with DDD-AG to prevail upon them to avoid tearing the community apart and have the prayers in their own homes as do millions of other Indians. DDD-AG's own supporters are unwilling to extend facilities for these prayers as they do not want institutions under their control to be embroiled in such a controversy. But they have no hesitation in involving the BPP in their controversial demands. This speaks volumes of their commitment to their own cause! So according to Mr. Tamboly the Doongerwadi lands can be alienated in defiance of the settlers' wishes and tinkered with as far as his irreligious position is concerned.
Mr. Tamboly, as Mr. Vajpayee said to General Musharraf, recently, "your actions belie your words".
-Hoshang Wania. Convenor Save Doongerwadi Action Committee (SDAC).
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