Justice Rohinton F. Nariman delivered the Keynote Address at the 12th World Zoroastrian Congress 2022.
Title
Gender Equality: The Rights of Parsi Women After the Advent of the Constitution Of India.
You can view his address here: https://youtu.be/9XvsZNua2oE
Below is a complete transcript of his talk, prepared by Arnavaz Sethna.
Aban Rustomji – Introducing the Keynote Speaker Ervad Justice Rohinton Nariman.
A good morning. Before I start I have to make an announcement. All kids and tweens please meet outside the ballroom for the program that they have. And now it is a great honor to welcome Chief Justice Nariman for Professor Kaikhushru Dinsha Irani Memorial Lecture sponsored by FEZANA and ZAGNY. Recently retired from the Supreme Court of India, Justice Nariman was hailed as a lion of a judge.
Justice Nariman who became the Apex court judge in 2014 disposed 13 565 cases, delivered historic verdicts including Declaration of Privacy as fundamental rights, setting aside of the I.T act provision empowering arrests, decriminalization consensual gay sex and permitting women of all ages to enter Kerala Sabrimala Temple. (applause) Yes, indeed that is an achievement.
As a young lawyer at the age of 37, Justice Nariman was designated as a senior Advocate at the Supreme Court of India. While appointing him, the rule had to be amended as the minimum age for being made a senior in the Supreme Court was 45. He held successively significant positions including the Solicitor General of India.
Justice Nariman obtained his LLM degree from Harvard Law School with his thesis on affirmative action. He was one of the four distinguished alumni worldwide, to be selected by Harvard Alumni Association for an interview in December 2020.
Justice Nariman is a compelling speaker and has delivered many lectures over the years. On April 15th of this year he launched a YouTube channel – Justice Nariman official Channel. He showcases 48 full length videos of his lectures on law, history, religion, music, spirituality and other topics.
Justice Nariman is an ordained priest, a Navar, he is the author of three books – The Inner Fire: Faith, Choice and Modern Day living in Zoroastrianism, Zoroastrianisms and other Faiths, and Discordant Notes the voice of dissent in the court of last resort.
Justice Nariman is passionate about western music, is an avid reader of History, Philosophy, Literature and Science and enjoys nature walks.
At this time please join me in giving a roaring Welcome to our keynote speaker, the one and only Ervad Justice Rohinton Nariman. [Applause]
Ervad Justice Rohinton Nariman:
Fellow Zarthoshties, Ladies and gentlemen – good morning to all of you. I am so happy to be here before you today. The very national anthem that was sung so beautifully today has a Parsi connection. Francis Scott Keys composed it during the 1812 anglo-american war on the HMS Minden, and the HMS Minden was a ship built by the Wadia Master Builders in Surat. (Applause)
I am honored to deliver this lecture in memory of Kaikhushru, he was a very dear friend. If one had to describe Kaikhushru, one would probably describe him as: first, being philosopher and then a great music lover and then everything else, but he didn’t just teach philosophy he practiced it. I recall visiting him long after I was here in 1981-82 when his dear wife Piroja was paralyzed and I couldn’t help remarking that it would be so difficult to look after her here without any help, the kind of help we have in India. And Kaikhushru very philosophically answered me and said when she was able she looked after me I continue to be able and I will look after her. It was such a beautiful answer and so simple. There was obviously a great deal of philosophy packed into that answer over the years and which was disseminated by him.
The theme of today’s talk really begins in 1903 with the marriage of a businessman one of the Tata family R D Tata no less than J R D Tata’s father. JRD Tata you will all know is the only Parsi to have received the highest Indian civilian award, the Bharat Ratna. Now, his father was a widower of 40 plus who fell in love with somebody half his age and she happened to be a French lady. He wanted to marry her. So he brought her to India and there were as many as 60 priests who attended her Navjote ceremony – this is important. It was done in a friend’s house – Adi Sethna’s house, and after she was navjoted there was a wedding, the very evening – on that very evening after which there was a furor as can be expected in the Parsi Community which existed in 1903. Now because of that furor the Parsi Panchayat called the meeting of the entire Community as it were at which meeting the community decided that in order to understand as to whether Susan Tata could be considered to be a member of the Parsi community they would appoint a committee, the committee in turn appointed a sub committee and the subcommittee in turn appointed an expert committee.
Now, the expert committee consisted of 11 High priests and Scholars – now this is very interesting – go back to 1903. The expert committee after deliberation opined, nine against two, that Zoroastianism is a proselytizing religion, it believes in conversion – first very important thing it said – then it said that if somebody who has neither a Parsi father nor Parsi mother wishes to become a Zoroastrian in India, the doors are not closed on him or her (applause) – its amazing to go back to 1903 and in 1903 they said that if a committee set up by the community is satisfied that the person is bona fide wanting to become a Zoroastrian, then watch him or her for a period of one year probation of one year, see how they behave in that year and after that year is over if the person passes the test you can Navjote the person but after a barashnum which is a ceremony of nine nights of purification, and then such person can get admittance.
Now the expert committee report written by Jivanji Modi who was a prominent priest and author was tabled before the committee which appointed the expert committee, that Committee in turn was evenly divided so it went back to committee number one and from committee number one it went back to the Parsi majlis and the Parsi Community thumpingly turned down the expert committee report and said no, not only should your father be Parsi but your mother should be Parsi as well and as a result the Parsi panchayat then passed a resolution which said only persons of Parsi fathers and mothers can gain admittance into anything meant for Zoroastrians in India. This was followed by a corrigendum which said however no, custom and usage somehow has allowed Parsi fathers and alien mothers, as they put it at that time, their children to come in and therefore with the corrigendum we will rest at this position in law.
Now R D Tata naturally went to court and he went to court with six others – he happened to be plaintive number six. He also dragged in Sir Ratan Tata who was his cousin who was plaintiff number four, but didn’t make his wife a party this is of some significance and the five Trustees of the Parsi panchayat were made defendants.
The suit was filed in 1906 and it concerned two things, we are concerned with only one of the two things – one whether the trust was properly set up and were the trustees validly appointed, and two who happens to be a Parsi Zoroastrian under our law.
The written statement of that suit which I fished out from the Bombay high court records actually speaks of another lady as well, a Rajput lady who apparently was also navjoted at about that time. She happened to be the mistress of some Parsi gentleman and had produced a number of children for him so therefore there were these two instances which the court was concerned with. And when the suit came to trial – in those days the suit came to trial pretty early, you had Sir Dinshaw Davar who was the first Parsi judge ever appointed to the Bombay High Court as the presiding judge and Justice Frank Beeman as judge number two. Frank Beeman turned blind ultimately and because of his blindness in 1928 the poor man dived into a swimming pool without water and met his end in Switzerland.
Now these two judges were therefore tasked with discovering as to whether the trustees were validly appointed and as to who is a Parsi Zoroastrian. The hearing went on for a mammoth amount of time in those days for over two months and judgment was then delivered in November 1908. Two separate long rambling judgments by each of the judges. Put before the court were three interesting instances of conversion on Indian soil – now mind you the court proceeded on the footing that Zoroastrianism is a religion which says that you must convert – the question was whether you can convert on Indian soil.
So what was put forward was first the case of some Hindu Pundits, now this was very early and at the time we are told the time of Nariosang Dhaval so it’s at least a thousand years old. These three pundits are mentioned in a text called the dhup nirang and their names are given interestingly enough one is Bio, one is Djsul and one is Schobul. Now these three pundits, we are told, from the dhup nirang were persons who took to the kind of fire worship we believe in, and actually converted, so this was cited as instance number one. Dinshaw Davar pooh poohed this and said very likely contrary to the text before him that they were persons who helped us and therefore probably not converted. Frank Beeman didn’t buy that argument and said no, very probably they were converted, but anyway that was so long back that let’s try and come to some later instances.
The second instance put forward was that of Emperor Akbar. Now Emperor Akbar as all of you know was a remarkable human being he had what was called an Ibadat Khana or a council of world religions – can you imagine a council of world religions in 1578 and 1579 where everybody from everywhere attended. We are told sabeans also attended –sabeans are people who came from Yemen – so there were Jews, there were Buddhists they were all sorts and Mayyaji rana the chief priest from Navsari attended and apparently made such a remarkable impression on Akbar that Akbar had a fire burning in his court after the sessions with Mayyaji rana so the fire had to burn continuously. He then adopted our calendar so that between Akbar and Aurangzeb’s reign if you look at any significant event it will say mah farvardin Roj Behram, for example and most importantly Jamshedi Navroz was celebrated as Diwali is celebrated today in India so that became the major Festival of Mughal India.
So Akbar therefore was said to have been invested with the sadra in the kasti by Mayyaji rana – we are told this directly by the Portuguese priests who attended the ceremony and recorded by many historians including Vincent Smith.
The committee, I mean the … the majlis, back in Navsari were in Jubilation – the emperor ultimately has become Zoroastrian. Now this again Dinshaw Davar pooh poohed by saying how can we say that even though he wore a Sadra and Kasti that he converted because we have no evidence of any Atash Behrams being built by him or any Dakhmas built by him – that was the answer he gave. Beeman said I am prepared to believe that Akbar did become a Zoroastrian and the sufferer of course was Jivanji Modi because he was very harsh on Jivanji Modi for having written a book on Akbar having stated in the book that he was converted and then having tried to wriggle around in the witness box.
But ultimately the two judges differed on Akbar as they differed on the pundits and the third instance was given of an 1882 Mazgaon converts as they were called at that time there’s some 11 persons who were probably illegitimate children of Parsis with dubrans and they were Navjoted between age 35 and 70. And several prominent priests Navjoted them. Now this was accepted by Davar and accepted by Beeman but, said Davar, the father was Parsi so there’s no problem so whether dubran, whether illegitimate or otherwise so long as the father is Parsi it’s all right and then finally Davar went on to formulate what has become our law. Now let me at this juncture tell you that this formulation and the entire discussion on who is a Parsi Zoroastrian would be called obiter dicta in our legal language, why, because Davar decided that the suit itself was not maintainable, again in legal language – it had to be dismissed at the threshold. Now why did it have to be dismissed at the threshold? Because according to him Suzanne Tata was not made a Plaintiff and if she is not a plaintiff she would not be bound with any judgment or decree that followed – so the entire suit therefore on this court went.
How you may ask did he then have this massive dissertation on who is a Parsi Zoroastrian. He explains it himself in his judgment saying oh we spent so many weeks over it months over it and it would be a great travesty if I were not to put down all this remarkable work put before me – anyway that’s not a real answer in law so what he tells us is really no part of a judgment and cannot be regarded as such but to go back to the three categories he laid down – incidentally picked up these three categories from the written statement by the Parsi Panchayat – exactly what they said. First, original descendants of those who came to India that is father and mother both had to be Parsi; second, Irani Zoroastrians who come to India whether temporarily or otherwise and third, is this Parsi father with alien mother.
Now the whole difficulty with this formulation is that you now attempt to bring in something which is like race or ethnicity into a purely religious matter he therefore divided a person into two and he said that every person who wishes now to enter an Agiyari must ethnically or racially first be a Parsi which you only see from The Father’s Side and he must be Navjoted. This leads to many complications. You can have a Parsi father down several generations with alien mothers down the line and ultimately have something like one tenth of a bloodline from your ethnic great great great grandfather, you would be Navjoted no problem you’d be allowed entrance but if you happen to have a mother who was Parsi and you happen to have a father who was half Farsi but the other way around not through his father but through his mother and therefore in your bloodline you are three quarter Parsi, out you went. So this was the first problem with this formulation this so-called ethnic formulation.
Then, of course, you have the other problem with Iranians because nobody looks into the antecedent of the Iranian who has come here temporarily or otherwise and that was pointed out by the English judge. The Iranian could be a person who could have been, let us say – uh – Shia Muslim for the last 10 Generations who had converted in Iran, because that was permissible, and come here and would gain entrance straight away without … now given these conundrums our law therefore ultimately then resolved itself.
On the question that both judges asked – and they asked put yourself in the place of the Parsi settlor of the trust now that again is legal jargon. Who’s a settlor of the trust is a person who dedicates a piece of land for, let us say, setting up of an agiyari, so put yourself in that person’s place in the 18th century, speculative purely, we don’t know what that person would say and when you put yourself in that person’s place decide whether Mrs Susan Tata should or should not gain admittance. The English judge said perhaps she should but then for every one Akbar … – and she was likened to Akbar – you would have a hundred lower caste Hindus would flood the Agiyaris of Bombay so the entire thing took a caste-turn and Beeman in fact used the word caste and said listen we have actually become a caste in India that is now hard and fast you are either born it or not in at all and nobody else can enter it.
So our law therefore became under the Davar Beeman judgment that you had to First have a Parsi father with whichever mother before you could be navjoted and before you could enter an Agiyari. Susan Tata lost. If I were to put myself in the place of an 18th century settlor the very question the judges asked themselves, I have not the slightest doubt that they’d have admitted Susan – first and foremost she was the wife of an extremely prominent Bombay businessman and secondly she was French so you didn’t look at it with the jaundiced eye of a caste-Hindu, you looked at it from the in those days from the eye of a person who would say look somebody who’s French would be at least equal to us and therefore I/we don’t see why such a person shouldn’t gain admittance. But anyway ultimately the two of them decided that Mrs Tata cannot gain admittance.
Also there would have been a problem with the Rajput lady because had they said yes to Suzanne Tata and no to the Rajput lady, again the law would be in a flux and there’d be no clarity so therefore the baby was thrown out with the bathwater – both went out. Now shortly after – by the way nobody appealed to the privy Council which was the Supreme Court of those days for the colonies. The privy Council tendered advice to his or her majesty and therefore no dissenting judgments were allowed in those days. You had only one judgment which happened to be the opinion of his Majesty’s privy Council who was advised accordingly and then that judgment was therefore enforced. In fact there’s an interesting story told of an Indian privy councilor ….. Jaikar who sat with the English law Lords and they all differ on a question of Hindu law. Jaikar was in the minority and the two English judges decided a particular way, they gave Jaikar the judgement to write it their way. So then finally he had to write a judgment he didn’t believe in which became the privy Council judgment which bound everyone.
The next important judgment in our history is Saklat versus Bella. Now this case unlike the Bombay case originated in Rangoon and it was really A Tale of Three Brothers. You had the eldest, a man called Mehrwanji Kawasji Captain, his middle brother Shapurji and the youngest brother Bamanji. Meherwanji was the Orthodox bastion of the community and it was brother fighting brother in this case. Shapurji was the one who adopted this girl Bella and Bamanji was the Advocate who was the bachelor boy of the three and who very likely was the actual father of Bella. Now what the court was told was something very different – the court was told that Shapurji picked up Bella as a little baby in the hospital. The mother happened to be Parsi – which was a lie – known to him, her name was Rebecca Jones, she was a Goan lady and since she was a Parsi she requested him and said look I am … I am in dire straits, I’m going to die and my husband’s dead already, just please bring up this child and Shapurji obliged. The reality of it is that Bamanji probably produced Bella from Rebecca Jones and then pushed off to England and left his brother with the baby and Shapurji then brought up Bella as a Pars. Now when she was around 14, question arose as to her Navjote and the Rangoon Agiyary had an orthodox priest. So Kaikobad Dastur from Poona was summoned all the way to Rangoon and he did the Navjote. And then finally she gained entrance into the Agiyari.
The moment she gained entrance into the Agiyari the eldest brother got into action and the eldest brother filed a suit. This was now the other way around and made shapurji and Bella the defendants. Why was it called saklat? because he filed it together with another gentleman called Saklat which is why it’s called Saklat versus Bella and this suit went before the first court in Rangoon and then before an appeal court.
The suit was decided against Mehrwanji so that Bella could have got admittance but then they decided to go to the privy Council which they didn’t do in the first case and the privy Council then went into the Davar Beeman judgment in detail and ultimately adopted what I may call the Davar formula, as a result of which Bella therefore though Navjoted could not gain entrance as a matter of right into the Agiyari.
But the privy Council said two interesting things: one, that there is no desecration caused to the temple by Bella’s entrance because that is what was harped upon by the plaintiff, she is now Navjoted therefore no desecration, one important thing; and then they also said and left the door slightly ajar by saying, look the Trustees of a particular agiyari can make the distinction between property and the right to worship so if you do not wish to avail of property and you are merely gaining entrance in order to pray along with others, a Trustee may in his discretion allow Bella.
Now that would have meant at that point of time that Bella would gain admittance because the sole Trustee of the Rangoon Agyari was her actual father Bamanji but then forestalling Bamanji, Meherwanji so to it that there were other trustees added so that Bella would not gain admittance and this is how unfortunately the Bella case also ended and how unfortunately therefore our law therefore became an ethno religious law instead of merely being a religious law.
Another important thing Davar and Beeman were shown an 1872 Act, the Act said and defined a Parsi as a person who professes the Zoroastrian religion and spoke of the Parsi religion, this was pooh poohed by Justice Davar by saying the legislators don’t know what they are talking about there’s nothing like a Parsi religion there is only a Zoroastrian religion and therefore I don’t accept that Parsi and Zoroastrian are interchangeable. Incidentally long after in a case called Meherwan versus Sarver Irani in 1916 a single judge went into the evidence in great detail – and there was evidence before Justice Davar as well – that Parsi and Zoroastrian were interchangeably used.
It was pointed out that in Iran Muslims called Zoroastrians, Parsis. Parsi ultimately was something like Persia, the origin of the place from which you came, nothing more and don’t forget when we came here, so many thousand years ago, we didn’t come to preserve our race we came to preserve our religion and Justice Beeman correctly pointed out that we are like the pilgrim fathers or the Jews. The pilgrim fathers ran away from England to preserve their puritanism which was their religion in 1620. And the Jews after 70 A.D in Titus’s destruction of their Third Temple, so to speak, went all over the world in order to preserve their religion so the whole thing was looked at from the point of view of race when it should have been looked at from the point of view of religion because we came here only to preserve our religion and finally therefore the law laid down till the Constitution or the Advent of the Constitution was, so long as you have a Parsi father you are in if you don’t have a Parsi father you are out which meant that girls who marry alien husbands so to speak I am not allowed to bring up their children as Parsi Zoroastrian.
In 1950 we have the constitution of India which comes in – the Preamble speaks of many things including Liberty, Equality, Fraternity. Now Liberty is fleshed out into Liberty of thought, belief, Faith, worship and this further finds itself in the fundamental rights chapter part 3 of our constitution and there is an extremely important article, Article 25 which goes something like this – it says subject to public order morality and health and to the other provisions of this part which means other fundamental rights and persons who wish to enforce those fundamental rights, subject to these two things all persons please mark the word all, have the right equally – Mark the word equally – to conscience first and the right freely – Mark the word freely – to profess, practice, propagate religion.
Now looked at from the point of view of the Parsi lady she certainly falls within “all persons” as does her child – what is she entitled to? She is entitled equally that is equal to her Parsi male, she is entitled equally to do what to freely – Mark the word freely, free again from constraint – freely practice and propagate, now one of the meanings of the word propagate is send down to her children so we have an article which specifically speaks of Parsi women who have this right to propagate their religion which is their Zoroastrian religion no matter who they are married to in favor of their children. (Applause)
Now again constitutional pundits will put two things against me immediately, one Article 25 operates only against the state and not private individuals – easily answered. You have another article in the Constitution which is Article 13 and which says all laws in force which are contrary to the fundamental rights chapter now which has come into force shall be void and of no effect and law and law enforce are defined as including custom or usage, so straight away if you have a custom or usage which recognizes only the Parsi male and not the Parsi female out goes that law. So no problem, State action Doctrine invoked Davar Beeman and the privy Council have to go on this call. Even otherwise Article 25 is couched in general language like some of the other articles which have been construed by the Supreme Court as being articles which reach out to private individuals as well.
Now you have, for example, Article 17 which says untouchability is now out of the window and if anybody practices untouchability he is liable to be – in fact he is liable to go to jail because there is an Offensive Act now so that reaches out directly to an individual it’s not the state obviously, you can practice untouchability after the Constitution it’s only individuals likewise article 23 which speaks of begar, slavery etc. Now this equally is a declaratory article which as I told you that all persons have this equal right freely to propagate and therefore this equal right is to propagate as against whom – as against those who bar their entry to an Agiyari or bar their entry to a dukhma for example.
So post our constitution our law seems to be clear but unfortunately there is no direct judgment as yet change can come in one of two ways one is that the community itself demands it now this happened in 1988 as a result of which there were changes made to our succession law to a divorce law and one other interesting thing even the Parsi marriage and divorce Act of 1936 that is long after Davar Beeman, long after the privy Council, spoke of the Parsi religion – very interesting – and one of the grounds of divorces that if the two of you are following the Parsi religion and one of you now gives it up that’s a ground to divorce the partner. So when we come back to legislation, the legislation route is not available in India because, the I don’t think people in Bombay or even in the other places in India, are ready to petition government to change our law so that women and their children can gain admittance. So the only way out then is for a constitution bench to authoritatively pronounce on article 25 and I’m told one such matter is pending in the Supreme Court.
One other interesting thing the vision of the Gathas is very clear on this point it was told to you by several speakers including Kaiki. You have the extremely important lesser sermon as I call it and greater sermon in Yasna Ha 30 and Yasna Ha 45 of the Ushtavaiti – firstly the Ahunavati and then the Ushtavaiti – in yasna 30 verse 2 each person is told to choose for himself a right the expression narem narem khakhyāi tanuye is that is man for man choose for yourself this is fleshed out even better in the next chapter which is yasna 46, but before we come to 46 there’s a very very important verse which I consider perhaps the most important verse in the entire gathas – 45.8 – because that tells you that when the Prophet actually saw God with his Mind’s Eye he says Chashmaini vyadaresem which is Mind’s Eye man what did God tell him God told him follow the path of Asha through Good Thought Good Word Good Deed – this is where we get the Genesis of Good Thought Good Word Good Deed is 45.8 and it is then that ultimately you seek company with the almighty in Garo demand and Garo demand again are two words which are in common use – gavanu to sing and demand domain so the Abode of song which is heaven in which Ahura Mazda resides.
But in yasna 46 you have a direct verse which speaks of women 46.10 and this talks of Na and Gana – Gana is a woman and says that whoever whichever man or woman is to follow the Zoroastrian path that is the path of Asha, I, Zarathushtra will be there in order to ferry them across chinvat pul as we know it – the expression used is chinvato … paretum which is the path of the separator. So if your Deeds are good the path broadens if your Deeds are otherwise down you go.
And one other interesting verse immediately after in 46.12 we are told that a man called Freyana who is Turanian – is not Iranian – therefore Mongol, has followed this path and has been gained admittance into the faith and is one of the great followers of the faith.
So to end this lecture on a positive and hopeful note let us hope that the constitution bench of the Supreme Court looks at Zarathustra’s Vision and the great transformative vision of the Constitution of India as well thank you all very much.
[ Long Applause ]
Arzan Sam Wadia – this was a brilliant fantastic thought-provoking talk. Thank God we recorded it because there is so much of information there that I probably need to see it a few more times to process it. On behalf of the Congress there is a small token of appreciation the actual one is too big for justice Nariman to carry in his luggage back to India so here is just a small thing it will be delivered to him back home. Thank you sir, thank you very much
Applause