01 December,2018 11:00 AM IST | Mumbai | Arita Sarkar
The Anjuman Atash Behram
At 11 am on Friday, the Parsis present in courtroom 52 of the Bombay High Court waited for Chief Justice Naresh Patil and Justice RG Ketkar to announce the fate of their sacred Atash Behrams. That anticipation was replaced with disappointment as soon as they announced that the tunnel boring work will be allowed to continue as part of the Metro III project, subject to certain conditions.
After the order was pronounced, senior counsel Navroz Seervai, representing the Parsi community, asked for an extension on the stay order for two weeks until they were able to approach the Supreme Court. Chief Justice Patil turned down their request. The order stated that the plea to extend the stay was rejected, since the Metro III project involves huge costs and any delay in the project may further escalate it.
Judges unconvinced
The primary thrust of the argument made by Seervai focused on Article 25 of the Constitution (freedom to religion). The judges, however, were not convinced with the arguments or the evidence placed on record. Referring to the argument that the construction of the tunnel beneath the fire temple would desecrate the sacred premises, the order states, "The Metro tunnel is to be bored 60 to 65 metres underneath. It goes to one corner of the Atash Behram premises at a safe distance from karshas, therefore, the theory that drilling of the tunnel would desecrate the Atash Behram is not convincing and logical, much less the tenets of the Zoroastrian religion."
Referring to Seervai's argument that the spiritual circuits of the Atash Behrams will be breached and negative forces will attack the holy fire if the tunnel goes under the fire temples, Justice Ketkar stated in the order, "These beliefs have nothing to do with the Zoroastrian religion or faith. The petitioners have failed to establish that these beliefs are integral to Zoroastrianism. Mere faith or belief of the Parsi community would not render these beliefs for protection under Article 25 of the Constitution of India... The opinions expressed by the High Priests cannot be considered as an essential religious practice as it does not derive its basis from any religious texts or scriptures. "
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Members of the Parsi community were disappointed with the outcome. Ratan Patel, one of the petitioners, said, "The judges could have given us some time to prepare our argument for the Supreme Court and granted a stay. The stay on the Metro work was on for six months. What harm would a couple of weeks do?"
Parsis hurt
The judge's perception wasn't well-received by the religious leaders of the community either. Khojeste P Mistree, a Zoroastrian scholar, said Parsis have been massively hurt because the judges have gone against the religious sentiments of a community, when they could have altered the tunnelling plan. "When you're talking about matters of the spirit, it is a question of faith. It's a great shame that the judges haven't applied the element of human compassion to understand that matters of religion entail faith and belief," he said.
Referring to the reluctance of Metro authorities in cooperating with the community's wishes, he said, "The Metro authorities are totally insensitive to the issue because the Parsis probably don't constitute a large enough vote bank. It's very unfortunate, particularly when the Parsis have contributed hugely to the well-being of not only Mumbai but also the whole of India."
It's in the water
Mistry pointed out that his concern lay more with the well water in the Atash Behrams, which is integral to the Zoroastrian religion. "The well water is critical to the rituals performed in an Atash Behram. As a result of tunnelling, if the water channels change, then for all practical purposes you cannot do any rituals in the fire temple. If the well runs dry, then the fire temple is redundant," he said.
Also disheartened with the judgment was Jamshed Sukhadwalla, who led the legal battle in the matter, which was supported by the entire community. Sukhadwalla pointed out that the tunnel boring machines are only 100 metres away from the Anjuman Atash Behram. "The machines will reach the fire temple within the next 12 days, after which the sanctity of our fire temples will be lost. We've tried our best and not taken it lying down. It's sad that religion has been taken for a ride today," he said. Cannot move four metres...
More than the judgment, Yazdi Desai, chairman of the Bombay Parsi Punchayet (BPP) was disappointed that their plea to extend the stay order had been rejected. "It's a big disappointment and I'm unhappy with the BJP. Narendra Modi talks about Parsis being invaluable, but they cannot move four metres [for us]. We're disappointed that the court didn't given even agree to give a stay. By the time this matter comes up for hearing, the tunnel boring machine would have reached the Atash Behram," he said. One of the BPP trustees, Noshir Dadrawala said, "Our legal team was ready for this outcome. They'll now file the petition in the Supreme Court and we'll hope for relief." Meanwhile, one of the Metro officials who attended the hearing said, "We have to see the conditions we've been asked to follow and figure out how we'll implement them. But we'll start the work soon."
Metro has to follow...
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