A Question Of Trust, A Matter Of Faith

Law  | 17 March 2011  | print

The Bombay High Court’s 11 March decision in the Parsi Priests case has a profound and far-reaching impact, well beyond the confines of the litigation before the court.

Civilization’s future, EM Forster wrote in his July 1941 essay, originally broadcast on BBC, demands something less dramatic and emotional than prattle about love. “Tolerance,” he said, “is a very dull virtue. It is boring. Unlike love, it has always had a bad press. It is negative. It merely means putting up with people, being able to stand things.” Speaking about a post-War England, he was convinced that it was this quality that would most be needed in the years ahead.

Seventy years have passed since that remarkable piece of writing, and it seems clear that in that time we have grown more intolerant not less. Whether it is books, writing, art, religion, skin colour, dress, headgear or form or worship, we seem now only to be defined by hate.

The Bombay High Court’s decision of 11 March 2011¹ in what I will call, for want of a better phrase, the Parsi Priests’ case has been described as ‘historic’ and ‘landmark’. It is both, for its impact is profound and reaches well beyond the confines of the litigation before the Court. Jamshyd Kanga, a former IAS officer, and Homi Khusrokhan, who served as the Managing Director of Glaxo, Wellcome India, Tata Tea and Tata Chemicals, both Parsis, sought the court’s interpretation of the 1884 Parsi Panchayat Trust Deed. The immediate cause for the case was the trustees’ ban on two priests from performing religious ceremonies at the Towers of Silences and at two agiaries. These priests had, it was alleged, conducted ‘irreligious’ ceremonies: funeral rites for Parsis who were cremated; navjots for children of mixed parentage; and marriages of Parsis marrying non-Parsis. The petitioners claimed that management of Panchayat properties—including the Towers of Silence and agiaries—is a secular function, and the trustees cannot ban priests from performing religious ceremonies there. The defence argued that the court was really being asked to determine what is or is not an acceptable Zoroastrian religious ceremony; essentially, that the ‘purity’ of the religion demanded the ban. The defence succeeded in the lower court; the appeal court reversed.

The appeal court’s decision is so exceptionally well-written (by Justice Chandrachud and Justice Mohta; the former wrote for the Bench) that it is a historic landmark for that reason alone. The finest judicial decisions seem always to be rendered thus: driven by heart, conscience and mind, stated simply and logically, without flourish, as honest attempts to find the best possible legal answer to the problem at hand. As in many other things, history in judicial writing is most often made by those who do not consciously set out to make it. But there’s more to it than the writing.

The case concerns one of the most unique communities in India; one that is also uniquely Indian and whose greatest quality perhaps, in a welter of many such, is its remarkable generosity of spirit. It is this spirit that the judgement recognizes when it condemns a narrow, sectarian religious perspective: “At least the Court cannot be a party to encouraging religious obscurantism.”

This is in the context of a very ancient religion, founded 3500 years ago, one whose vast influences are found in unlikely places. Paul Kriwaczek’s excellent book In Search of Zarathustra is about a journey through Central Asia to discover the roots of this faith which speaks of a single universal god and the perennial tension between good and evil; teachings that presaged the teachings of Islam, Judaism and Christianity. In modern writing, the most immediate example of the religion’s influence is, of course, Friedrich Nietzsche’s Also Sprach Zarathustra, in which, following an epiphany, he attempted to reinterpret the religion. Nietzsche’s book itself influenced many: from Richard Strauss and Gustav Mahler² to Stanley Kubrick in 2001: A Space Odyssey, where we are left with suggestions of universal superbeings and the evolution of mankind.

Kriwaczek provides a remarkable two-paragraph summary:

“… A system of ethics and morality founded on faith is no longer valid; the time has come for a new set of values to take its place, beyond good and evil as religion has until now defined them. … One person’s good is another’s evil. None the less, we are responsible for creating values for ourselves and for then living up to them. And the highest of all values is the duty to transcend ourselves, to struggle for the next step in our personal evolution …”

This seems to suggest that understanding and acceptance of personal differences are essential to individual evolution and, therefore, what Forster described as the rebuilding of civilization.

A few pages later comes this astonishing passage:

“On a damp and gloomy morning, the 3rd of January 1889, Nietzsche was walking near his lodgings in the Via Carlo Alberto in Turin … On the other side of the square, in front of the imposing National Library, a carter was savagely beating his horse. The horse fell to its knees. The austere philosopher, who had uncompromisingly condemned pity as a debilitating weakness, sped across the road and flung his arms about the horse’s neck—a gesture of sympathy and solidarity with another living being. It was his last sane and human act. He would never return to his senses again. He had finally passed beyond good and evil.”

Good and evil, sanity, humanity, what it means to be human, and humane; it is but a short hop from Nietzche to Forster, for there are precepts in Zoroastrianism, as in all other religions, which are universal and not bound to dogma. Yet, doctrinaire views—inflexible attachments to practice or theory without regard to practicality—are the favoured weapons of fundamentalists everywhere, people whose most visible qualities are rigidity, intolerance and an opposition to secularism. In their hands even the most moderate and sensible views can be deformed. In 2002, a week after the riots, an HSC examination paper picked up this line from Forster’s essay on tolerance:

“There are two solutions, one of them is the Nazi solution. If you don’t like people, kill them, banish them, segregate them and then strut up and down proclaiming that you are the salt of the earth.”

But what immediately follows in that essay is this:

“The other way is much less thrilling, but it is on the whole the way of the democracies, and I prefer it. If you don’t like people, put up with them as well as you can. Don’t try to love them; you can’t, you’ll only strain yourself. But try to tolerate them. On the basis of that tolerance a civilised future may be built. Certainly I can see no other foundation for the post-war world.”

As Vidhyadhar Date pointed out in a Times of India article on 30 April 2002, Forster also said, “it’s very easy to see fanaticism in other people, but difficult to spot in oneself.” This is obscurantism, too, of another stripe.

The Bombay High Court judgement will now be taken to the Supreme Court. There, hopefully, it will be left untouched, for this is a judgement that India both needs and deserves. In a country which claims to be truly secular by law but which displays every indication to the contrary, this judgement is a reaffirmation of one of our most cardinal Constitutional principles. In it, we hear the distinct echo of Forster’s recommendation for temperance. And we hear, too, the equally distinct voice of Nietzsche calling from the past: “You have your way. I have my way. As for the right way, the correct way, and the only way, it does not exist.”