Six years after two Parsi reformist priests were banned from certain fire temples run by the largely-orthodox Bombay Parsi Punchayet, a long-winded litigation about their rights finally concluded with an ironic twist at the Supreme Court on Monday.

In its order on April 27, the apex court accepted a mediated settlement reached between the trustees of the Punchayet and two respondents – Jamsheed Kanga and Homi Khusrokhan – who were fighting for the rights of the reformist priests to perform their duties without interference from administrative bodies like the BPP.

But the final settlement, while upholding the rights of all other reformist priests to pray in BPP-run fire temples, ends up discriminating against the very two priests who were at the heart of the controversy – Framroze Mirza and Khushroo Madon. The duo will now be allowed to perform funeral rites in those spaces only for their immediate family members, and only if they file an affidavit with the BPP.

For the past 15 years, Mirza and Madon have been unpopular with orthodox Parsis for conducting inter-religious marriages, for inducting the children of non-Parsi fathers into Zoroastrianism and performing funeral rites for Parsis who opt for cremations or burials instead of at the traditional Tower of Silence.

The settlement has left sections of the Parsi community confused and indignant as they try to understand the implications of the final court order.

Orthodox versus reformists

Parsi Zoroastrians, a small community of barely 69,000 people, have been witnessing a growing divide between orthodox and progressive factions as their numbers continue to dwindle. In Mumbai, where a large number of Parsis live, the case of the two reformist priests has been a strong manifestation of this divide.

In 2009, the Bombay Parsi Punchayet – an administrative body managing community-owned property worth several thousands of crores – issued a notice prohibiting Mirza and Madon as “renegade” priests from praying at two south Mumbai agiaries (fire temples) and the fire temple inside Doongerwadi, the Tower of Silence where Zoroastrians traditionally consign their dead. The notice also threatened to ban any other priest performing similar reformist rituals in these three BPP-run fire temples.

In 2011, two prominent community members took up the cudgels on behalf of Mirza and Madon – Jamsheed Kanga, a former municipal commissioner of Mumbai, and Homi Khusrokhan, a senior chartered accountant. Kanga and Khusrokhan filed a petition in the Bombay high court refuting the ban on the priests on the grounds that the BPP had no religious authority to issue such a ban.

Their petition was initially dismissed but then taken up, on appeal, by a division bench of the High Court which ruled in favour of the petitioners and stated that the trustees of the Punchayet could not stop ordained Parsi priests from performing their duties in BPP-run fire temples.

Not the end of controversy

In 2012, the BPP appealed in the Supreme Court, where the two parties were asked to go in for an out-of-court mediation that lasted nearly three years and, to the ire of many Parsis, cost the Punchayet more than Rs 3 crore of community funds.

Some BPP trustees, however, believe it was important to defend their case in the highest court. “Most community members don’t understand the genesis of the case – the BPP banned the priests from its agiaries only because they had already been banned by their respective ecclesiastical high priests in 2002,” said trustee Khojeste Mistree, pointing out that the High Court judgement ended up undermining the religious authority of the high priests. “We have had to spend a lot of money on this case but it was not out of choice. And the final settlement is a win-win situation for both sides.”

Not everyone agrees, however. The final settlement, signed by both parties in February and accepted by the court this week, has fuelled talk in the community that Kanga and Khusrokhan have let down the two priests they were fighting for.

‘This is a sell-out’

The settlement order clearly states that the trustees of the Punchayet cannot limit the right of any Parsi Zoroastrian from appointing any priest of their choice to perform religious ceremonies in the three fire temples. But the two priests in question, Mirza and Madon, would be allowed to pray there only on two conditions: they can perform funeral rights for immediate family members alone, and they have to file an affidavit with the BPP if they wish to do so.

“This is a complete sell-out by Kanga and Khusrokhan – they signed a settlement that is actually detrimental to the two priests they claimed to represent,” said Kerssie Wadia, founder-trustee of the Association for the Revival of Zoroastrianism, a reformist Parsi organisation.

While Mirza and Madon were not available for comment, Jehangir Patel, the editor of community magazine Parsiana, said that the settlement has left Madon unhappy. “Mirza had decided a while ago that he would not return to those fire temples, but I know that Madon is surprised, upset and saddened,” said Patel.

Kanga and Khusrokhan have, however, defended their decision to sign the settlement, keeping the larger good of the community in mind. In a joint clarification statement, they claim that they tried very hard to have this clause removed from the settlement, but in vain.

“Finally [we] were compelled to take the difficult call that the benefit to every priest who gains from this settlement for all time to come, far outweighs the benefit to a single individual. In every settlement there has to be some give and take and this unfortunately is the one we had to ‘give’,” said the statement issued by Kanga and Khusrokhan.

‘Punchayet still has sweeping powers’

Kanga, instead, points out the ways in which the settlement has been a victory-of-sorts for the cause of progressive Parsis. “Now, technically, all other priests can pray at those three fire temples and the settlement upholds the 2011 high court judgement which states that the BPP has no religious authority,” said Kanga. “It is not a good situation for the trustees who have a fundamentalist, orthodox agenda.”

Reformist Parsis, however, are more concerned about another clause in the settlement that seems to contradict the clauses that Kanga has highlighted. The order states that BPP trustees “have full power to regulate the performance of religious rites and ceremonies” in the three agiaries and can “take suitable action including exclusion against any priest who, within the Trust property, does any act contrary to religion or misconducts himself”.

“In effect, the settlement gives sweeping powers to the BPP to decide which priests can pray in those properties and which can’t,” said Wadia.

Interestingly, such indignation with the settlement is being expressed from certain quarters of the Punchayet itself. BPP trustee Dinshaw Mehta, for instance, called the settlement “most unfair”.

“These two priests have been unfairly victimised – we should either ban all reformist priests or none,” said Mehta, who claims he signed the settlement only because the majority of the trustees wanted those terms and because the cost of the litigation had risen too much. “But I am going to appeal to the board of trustees to allow these priests to pray in our fire temples.”