Friday, March 28, 2008

Discrimination by housing societies - need for legislation

The recent case of a majority-Jain housing society in Mumbai denying the only Muslim family living there power and water is not the only one of its kind. Since the Mumbai bomb-blasts in 1993, Muslims in particular, but 'meat-eaters' and 'drikers' as well, have been denied housing in the city. One wonders what the situation might be in post-Godhra Gujarat, and even rest of the country.
Surprisingly, the trend received endorsement from the Supreme Court in its decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005), where it allowed a housing society to rent and sell accommodation only to members of a particular religious community (in this case, Parsees) citing the freedom of association under Article 19(1)(c). The Court held that the co-operate was not 'State' under Article 12 and therefore was not bound by the duty not to discriminate on the ground of religion under Article 15. [Sushant, thanks for clarifying this point.]
Be that as it may, a national legislation prohibiting discrimination by public and private housing societies on Article 15 grounds, as well as other grounds like food preference, disability, sexual orientation, age, gender identity, HIV-status and such other grounds is imperative. Surely such legislation aimed at securing one of the primary constitutional goals of equality will be a reasonable restriction on the freedom of association.
PS - Similar arguments can be made for prohibiting discrimination on such grounds in private employment, but that is for another post.
PSS - A passing reference is in order for the latest SC judgment in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (decided on 14.03.2008). The Court agrees (para 26) that the right to eat what one wants is protected by Article 21. Yet, it upholds a Gujarat government ban on selling meat for nine days, surprisingly citing similar bans by Akbar in the past. Can protection of religious sentiments of vegetarian religious groups be a legitimate and important enough state purpose to violate fundamental rights, howsoever slightly? Isn't there also an issue of discriminating on the basis of food-preference, which is indirect discrimination on the ground of religion and caste? I am not arguing that the state can never prohibit certain types of food, but the reasons for doing so must be secular and important enough to curb fundamental rights. [The judgment is not available online yet, but I have a copy - if you want it, email me at tarunabh at gmail dot com.]
PSS - This is a news story about ghettoised housing in Gujarat post 2002. Talha, thanks for the link.


ravi srinivas said...

What has been done to the muslim family is unjust.Such practices are blatantly discriminatory and
should not be allowed. I wonder how a government can ban particular type of food that too
for 9 days. I think in some states
there is a ban on abbatoirs on the birthday of mahavira and wine shops are closed on Oct 2nd..I understand that in some cities (e.g.hardwar) declared as holy cities meat/egg is banned
in some areas/within some distance
from the temple.Has the Supreme
Court upheld such practices.

The judgment in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies raises many questions.
Whether the right under Article19(1)(c) be extended to that extent.
As minorities Parsis are entiltled
to some fundamental rights but the
rights being questioned here are applicable to all. Let me give
an example, Can a society form
a hospital exclusively for members
of a particular community/group and
deny medical treatment to others
under Article 19(1)(c).

tarunabh said...

In response to your second point, the only express right allowed to religious minorities (as a group) is the right to form their own educational institutions and preserve their culture in Articles 29 and 30 of the Constitution. By implication, all other forms of associations cannot exclude on grounds of religion. To be sure, even the Article 29 & 30 rights can be invoked only by 'minorities', whereas many housing societies have religious majorities being exclusive.

In any case, across the commonwealth (with some exceptional judgments to the contrary in the United States in the context of sexual orientation), the right to association has been held to be subservient to the right to equality. The situation is more complication when right to speech and right to equality conflict (e.g. in hate speech cases) and there is genuine disagreement. But freedom of association has rarely been used to exclude groups otherwise protected by equality clause.

Anti-discrimination legislations imposing civil liability on employers, housing societies, insurers etc. exist in the US, the UK, Canada, EU, South Africa etc. India is actually exceptional in not having one. The 1955 Civil Rights Act in India that prohibits certain types of caste discrimination is useless, and by making it a criminal offence (and therefore requiring proof beyond reasonable doubt), it is unimplementable. Hopefully the government will act on the Sachar Committee recommendation and bring legislation to impose civil liability on all types of discrimination, not just religion. Otherwise, our society will continue to become increasingly ghetto-ised.

Talha Abdul Rahman said...

This article published in the Frontline contains interesting insights of muslim ghettos that have emerged in Gujarat after the riots.

There is also a documentary by Samina Mishra called "The House On Gulmohar Avenue" that brings out eloquent examples of ghettos in New Delhi itself, viz. Jamia Nagar etc.

One important point that must be noted is that activities like this prevent muslims from merging into the mainstream - and forces them to live in intellectually cloistered localities, because of which the real muslim culture (as opposed to publicized 'jehadi' image of a mussalmnan) remains unknown - which only fertlizes distrust breeding from ignorance.

A part of any such housing policy must also see this as a tool of bringing muslims into the mainstream, and not just from the perspective of discrimination.

Sushant said...

Quoting from the judgment on the issue of State
A co-operative society is not a
state unless the tests indicated in Ajay Hasia are satisfied. There is no
case here that the appellant society satisfies the tests laid down by Ajay
Hasia so as to be considered to be a state within the meaning of Article
12 of the Constitution. The fundamental rights in Part III of the
Constitution are normally enforced against State action or action by
other authorities who may come within the purview of Article 12 of the

Just the next argument caught my attention

" It is not possible to argue that a person has a fundamental
right to become a member of a voluntary association or of a co-operative
society governed by its own bye-laws."

I guess we still have fundamental right not to be discriminated against religion for member of a housing society. Well Court doesn't think so and throws back to the state legislatures saying that amend your laws for the cooperative societies.

ravi srinivas said...

To what extent state can intervene in such cases of 'discrimination'.
Can state mandate that such societies should include members from other communities also. I am
against discrimination on religious
grounds but I am not for forcing
'non-discrimination' through such
measures.As the judgment observes there are women only co-operative societies.How can the state which
discriminates in the name of reservations can claim any moral
authority to force such 'non-discriminatory' practices.
Simple solutions like coercion
by state will be counter productive.

Talha said...

I agree, Coercion is counter productive. I think, a better solution would be to offer tax-linked incentives to "mixed housing" societies. Also, while it may not be feasible to have coercive methods to end discrimination, there must be some kind of remedy (or complaint) mechanism where those discriminated could complain and get their rights vindicated.
I imagine that under rent control legislation if houses were "available" they had to be rented out.

Eclectic Investor said...

The behavior of the Jain society toward a Muslim family is unjust and beyond the Jainism that it practises. However let me present another dimension.
I am Christian and I lived in a cosmopolitan society that initially had a specific anti-Muslim stance but later diluted to let some Muslim families in.
However, the Muslims on their part continued with horrific slaughter of lambs and goats on Ids in the premises of the society.
Some cultures have slaughter of animals as the flowing of their blood on ground as a ritual, but they should also consider the religious sensitivities of others.
Eating beef and mutton may be normal for Christians, Muslims and Parsis but I know Jains who will shudder at the though.
There is some justification for the Supreme Court ruling.

A. Patrawala Advocate said...

Zorostrian verdict by the Apex Court was threat to the unity and integrity of the nation but thank to God that by vrtue of 97th Constitution Amendment Act, 2011, it is no more good law. President of India Her Excellency Pratibha Patil has obliged the nation through the complaint of a concerned citizen.

Tarunabh Khaitan said...

Dear Mr Patrawala - could you please explain how the 97th Amendment overturns the Zoroastrian Housing decision? Thanks. I suppose the new Article 43B which requires the state to encourage 'democratic control' of a co-op may be read to invoke a substantive notion of democracy which includes non-discrimination. Is there a more obvious reading which I have missed?

Anup Parashar said...

Dear Mr. Tarunabh In my society they are trying to pass a resolution in General Body meeting that only family will be allowed as Tenant and NOC for Leave & Licence would not be given in case Tenant is single womam , Bachelor or group of young working boys & girls. Can they dicriminate between the Tenannt. The Societ has all flat of 1BHK about 400 sq ft area and it is difficult to get family as Tenant for such small flat. Is there any court order to stop this discimination, if so, can you provide me copy in my mail