Monday, March 30, 2009

Shame of a Name and The Great House Hunt

This blog has discussed the issue of housing discrimination several times in previous posts (I, II, III and IV), so it may not be very interesting to go through the legal arguments once again (for those who want to catch up, I have summarised possible legal remedies for dealing with housing discrimination here). I just wanted to share two moving stories being furiously debated on Kafila - personal narratives by Zainab Bawa and Sohail Hashmi (on last count, Zainab's story had 44 comments which themselves make a very interesting read). Also interesting is Anjum Hasan's following account:

...what it means to be a Muslim who is not quite a Muslim. Bangalore, where I now live, is perhaps the most hospitable city in the country but trying to rent a house sometimes means dealing with landlords who wish to first get the matter of religion out of the way. Now wait a minute, I have wanted to say to the house-owner who asks me on the phone if I'm Muslim. I know he is drawing on a pre-existing mental picture. I want to answer him in the negative and hope he gets the implication, which is that not everyone with a Muslim name is ‘Muslim' . But if he misses my subtle point, I will only be encouraging him to continue discriminating against those who conform to the image in his prejudiced head. Better, then, to say – ‘Yes, I am' and try to get across the subtext – ‘And so what?' Which possibly means losing the house, which seems eminently unfair.

These narratives should remind us that behind our sanitised legalese are real people facing real consequences because of choices made by our legal system (for choosing not to act is also a choice). Sohail's anecdote suggests that housing discrimination against Muslims in Delhi is (a) not recent, i.e. not a product of recent ostensible linkages between Islam and terrorism, (b) systemic and widespread enough to dictate basic life choices regarding where to live and everything else that goes with it, and (c) solely based on the religion of the applicant (the use of intelligent and innovative pretexts notwithstanding). Sadly, all we have is anecdotal evidence. This is an issue crying out for statistical analysis so that we can realise the true extent of the problem and test the generality of these anecdotes.

Incidentally, readers may be interested to know that the 2009 election manifestoes of the Congress Party and the CPI(M) promise to establish an Equal Opportunity Commission by law, while the CPI manifesto promises to 'end discrimination in the matter of job recruitment and disbursement of various economic schemes.' (For a detailed discussion on the Equal Opportunity Commission and its potential implications for this discussion, see this article).

19 comments:

How do we know said...

has it occured to you that some of the reasons may be religious? For instance, as a vegetarian, i could not rent my house to a non veg tenant. Most Muslims are non veg.

But if the tenant is a vegetarian, i would have no issue with the religion. I would worry about ability to pay rent and stay employed.

For some other Hindus, the entry of go-maas(beef) into houses owned by them may be an issue.

Just presenting the other side of the issue..

Talha said...

I remember having a discussion with Tarunabh here in oxford specifically on this aspect , and I am sure he will have something cogent to say.

'How do we know' has a point, in as much some landlord would try to retain a measure of control over things that go on a property that is owned by them. However, it moves on a rather false premise to conclude without further inquiry to say that muslims would necessarily consumer beef.

I have following points to make.

1. Even non-muslims occupants may consume beef in the said premises. People who are not muslims do eat beef, and thus without specific inquiry one cannot reasonably conclude on the basis of "name".

1A. Even some muslims out of respect for cultural milieu do not consumer beef. After prohibition on cow slaughter what is available is "buff"; and so I am not sure if argument that applies to beef applies with equal force to buffalo meat.

2. Rather than denial of access to housing it can well be a negotiated term of contract stipulating damages for consumption of beef in that premise (akin to fine on smoking in some areas to draw a loose analogy).

3. How do we know that purported classification between vegetarian and non-vegetarians is not actually a guise for discrimination between muslims and others; and even within hindus one that favours certain upper castes in hindus (thus hit directly by constitution in an oblique way).

4. Final point, why should the landlord be allowed to have so much control over his or her property. Drawing limitations on ownership through rules of property (eg. rules against perpetuity) is not something unknown to the property law jurisprudence.

tarunabh said...

yes, it has. in fact, i do believe that there are at least some cases where discrimination is not motivated by prejudice but sincerely held religious belief (i think the distinction can be a fine one, but still very important). and as a liberal, i do believe that forcing people to act against their sincerely held (even if misguided) religious beliefs must be done sparingly and with regret--and only in cases where the harm done by allowing the person to act on their religious belief is overwhelming. a good example is obviously untouchability against dalits, which at least some people practice due to their sincerely held religious beliefs. we therefore need to ask
(i) whether discrimination against muslims, even when inspired by sincerely held religious beliefs rather than prejudice, is akin to purity-pollution ideas behind untouchability which degrade the humanity of the person being discriminated, and
(ii) whether the harm done by discrimination is so pervasive that it needs to be addressed. this will depend on how widespread the practice of discrimination is--if only 5% landlords discriminate, it may not be a good enough reason to intervene, but discrimination by 70% landlords may tip the balance (the figures are used just by way of example, rather than reflecting any formula).

of course, there are other considerations. one must ask if there is an incentive-based rather than prohibition-based means of achieving the same objective (i.e. the difference between the kundu approach and the menon approach).

further, it may also be relevant whether the discrimination is against a potential paying guest who will share the same living space, or against a tenant who will be a neighbour but not share the same flat, or by a corporate building society where the landlord is too distant and impersonal.

but these reasons only apply to non-pretextual discrimination genuinely based on religious beliefs - if religion is only a pretext for prejudice (and admittedly, evidentiary issues will arise), very different considerations will arise. so, for example, if a landlord does not ask potential hindu tenants if they eat meat, but refuses renting to muslims on that ground, chances are that religion is being used as a pretext.

pritam said...

I do not think that holding a liberal conception of law would require that there should be minimum interference with actions based on beliefs which might harm a very small number of people. Rather the position should be that even if one person is denied a freedom in an unjustified manner, then the law should ensure that individual freedom gets its support. Tarun’s point on making a choice between prohibition and incentives is sensitive to the concern about the moral limits of the law. If a person feels that her house should not be rented out to a meat eater or one who works in the sewage department, then is the law justified in compelling her to do so? I think yes. The law should/does not force the person to change her beliefs. May be it should not force her to invite such people for meals or parties. But for purposes of housing, the law might be justified in interfering.
Leaving the philosophy aside, Talha’s argument on property might be determinative. But I wonder if it can be a reason for enacting a law. The argument would be useful to justify the constitutional and legal validity of such a law. The argument may also be useful for the judiciary to declare that rights under any statute cannot be excercised in a manner which is based on grounds prohibited by the constitution. You may hold your beliefs for your personal purposes but not when you are acting under powers and permissions given by the state.
The more vital question is to think of effectively regulating housing. Though the equal opportunities commission is a good move, it secures non-discrimination in a negative manner. Affected people would file complaints. But to think of a person looking for a house to fight out an issue where it might not be easy to ascertain whether there was a wrong committed, is unreal. Rather some transparent, efficient and accountable mechanism should be set up to ensure proper rent to land lords and housing to people. The commission is a step forward, but the root of the problem is an unregulated sector where any reason can be invoked thus perpetuating harm on people.

How do we know said...

I can only speak on behalf of people who share the mindset.

I would NOT worry about the religion caste or ethnic background of a potential tenant.

I WOULD worry about non vegetarian food entering the house, about the way the premises will be kept (clean, and well maintained, thank you) and whether the prospective tenant will vacate as contracted or will squat.

But the advice here is very sage - it makes sense to ask about non vegetarian food specifically instead of making assumptions.

Whether landlords should be allowed to have so much control - if we legalise the lack of control over property privately owned by people, the next step will be a reduction in the number of houses available for rent in the market.

ravi srinivas said...

If a houseowner has some preferences in choosing a tenant what is wrong with that.If a person feels that her house should not be rented out to a meat eater -
well that's her choice.She may even forego rent if she cannot find a suitable tenant.If she cannot at all find a tenant, she may relent and change her mind.
In the name of equality and non-discrimination we cannot brush aside choices and preferences of individuals. Discrimination occurs
in some many forms and in so many
guises. Legal interventions that ignore the right to choose and right to use the property and
Equal Opportunity Commissions are likely to end up creating more problems than what they hope to solve.

tarunabh said...

dear pritam, my insistence on pervasiveness was not based on the fact that the 'harm' is only to a small number of people, but that there was not 'adequate harm' to anyone. i am of course, drawing from joseph raz's perfectionist liberalism, where harm takes place only when you dont have 'a adequate range of valuable options' - my argument is that insignificant discrimination does not take the range of options available to the tenant below the range of adequacy (i.e. there are enough other landlords who do not discriminate), and therefore law may indulge a little bigotry/sincere-but-misguided religiousity. that was all. as soon as the harm crosses the threshold even for a single individual, law must intervene. hence, my liberalism is of the Razian rather than the Millian variety (with the delicious irony that perfectionist liberalism is giving a reason to limit the state where non-perfectionist liberalism might give reasons for state action!)

just a clarification on the EOC Bill proposed by menon committee - it is not based on an individual complainant model, rather some group model, which i think will pan out only after it becomes a reality. i have my misgivings about completely excluding individuals, but the proactive role envisaged for the commission is a good one. of course, the menon bill allows teh commission to leave housing issues for another day. also, you must see the kundu report which uses incentives to increase diversity. all are explained in my epw article (email me if you want a copy).

Raghu Karnad said...

As a modern Hindu, my sincerely held religious belief is that only white people are allowed to eat beef in the house.

Suresh said...

From what I can see, anti-discrimination law in the US does allow some types of discrimination. A landlord, for instance, discriminate against pet owners by not allowing pets to be kept on his property. It would appear that the landlord, in fact, can go further: He can allow some to keep pets while disallowing others because pet owners as a group are not protected by the provisions of the anti-discrimination law. (The particular website I referred to does not advocate doing this, though, for obvious reasons.)

Now if we were to apply the US law to India, it would appear that a landlord can discriminate against meat eaters through a proviso disallowing the cooking (and eating?) of meat on his property because non-vegetarians as a group are not protected (unless we want to take matters to that ridiculous level). However, if my understanding is correct, a landlord who does not want pets is obliged to rent his property to tenants who currently have pets if they agree to get rid of them or have them housed elsewhere provided they meet all other requirements. Similarly, I suppose, a landlord who does not want meat to be consumed on his property also obliged to rent out his property to someone who undertakes not to cook/eat meat within the property. What would be illegal is to use the fact that someone has traditionally eaten meat (like many Muslims/Hindus/Christians etc.) to deny him/her the opportunity to rent. Would that be right?

K.V.DHANANJAY said...

Has any tenant, rejected by a landlord on grounds that are being discussed here, sued the landlord for a tort in India? He should.

Religious beliefs dont furnish much basis to deny housing to the needy and a citizen cannot go very far with religious beliefs that preclude participation of members of other religions in secular relationships governed by a rule of law. After all, if you are opposed to gov-meat and you happen to be an employer, you should also be able to open up your employees' lunchboxes, going by the reasoning of some here.

Untouchability, by the way, happens to be a well established practice in the Hindu religion and, everybody here knows, the Constitution of India took that belief away.

Suresh said...

After all, if you are opposed to gov-meat [sic] and you happen to be an employer, you should also be able to open up your employees' lunchboxes, going by the reasoning of some here.

Your analogy is not correct. The correct one would be where an employer does not hire a prospective employee because he/she is not a vegetarian or because he/she is a Muslim or the "untouchable" caste. Now I can't say about discrimination on grounds of food preference, but discrimination on religious or caste basis does happen. [See for instance, “Caste and Economic Discrimination” Special symposium, Economic and Political Weekly 42 (42): 4121-4153, by Paul Attewell, Sukhadeo Thorat, Ashwini Deshpande, S. Madheswaran, Katherine Newman and Surinder Jodkha.]

Secondly, most of the discussion has focused on the appropriate legislation. However, as can be seen from our experience with untouchability, that is the easy part. In order for legislation to be effective, we also need a good enforcement regime. On this, I remain sceptical.

How do we know said...

Now I can't say about discrimination on grounds of food preference, but discrimination on religious or caste basis does happen.
- Very true. And it is also legalised. Minority institutions are legally allowed to preferentially hire people belonging to the said minority community.
However, the "majority" institutions (there aren't any) enjoy no such privilege.

Also, the point here is to understand whether everything that is branded as "discrimination" is actually that. Sometimes, behavior that appears to be discrimination against another faith is actually just a strong personal preferance with some people.

I was thinking of this debate last night and an interesting question came to mind - Christians have roughly the same food habits as the Muslims, and yet, the Christians do not allege the same level of problem in finding a house.

Why would that be?

I have a hypothesis, but would love to hear from the others first.

tarunabh said...

point of information: as the law currently stands, housing discrimination on the grounds of religion is legal. see Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005) The judgment, although dealing with a Parsee housing society, does not make a majority-minority distinction---there does not appear to be any reason to believe that a 'majority' religion housing society will be treated differently.

i really doubt whether meat-eating is the real reason in most cases or just a pretext to hide prejudice against Muslims: majority of Indians (including Hindus) eat meat, and tend not to have trouble finding a house. for what it is worth, this US government department research claims that only 20% of Indians are 'strict vegetarians' (presumably, lacto-vegetarians). Vegetarianism, in many cases, is only a smoke-screen (although there must be a minority of cases where it is not).

tarunabh said...

sorry, the actual link to the US government research is here.

K.V.DHANANJAY said...

Oh! Please!

Take a look at the comments in detail and you will see the basis for my analogy. Of the many, how about this:

"2. Rather than denial of access to housing it can well be a negotiated term of contract stipulating damages for consumption of beef in that premise (akin to fine on smoking in some areas to draw a loose analogy)."

The above talk is about a continuing surveillance. So, a continuing surveillance in a workplace by an employer who might share the views of some here should necessarily lead him to his employees' lunchboxes.

In any case, take it that I wish to expand this discussion to imagine a scenario not very far fetched from the talk here.

How do we know said...

We start with the assumption that if a Muslim is being denied a house, it is only on grounds of religion based discrimination.

Then we discuss a situation of the minority of landlords who dont care about the religion of the tenant, but about the personal habits of the tenant, including their food habits. (Our example was food habits, because it is a very valid concern in our country.) So what might appear to be religion based discrimination may actually just be a personal belief of the landlord, to which, in all fairness, the owner of a private property is entitled.

Then, we arrive back at the point that such concerns are only smoke screens to effect discrimination.

Basically, we want to believe that religion based discrimination exists and it is condemnable. True for both. But not EVERY Muslim who is denied a house, is a victim of religion based discrimination.

I have already mentioned that the place is not open to any non vegetarian, religion, caste, ethnic background notwithstanding.

How about we try to find the reasons why such religion based discrimination happens? We could start a survey on a relevant website. Perhaps then, we will understand the discrimination prejudice better. We may find that a lot of it is not prejudice, its just incompatibility with the personal belief system, or we may find that the prejudice is so pervasive that its not limited to homes. It extends to employment, to education opportunities, to social opportunities. And THEN, we have, at least, some idea of the size of the monster we are dealing with.

But its not fair to brand all landlords alike, and its not fair to underplay the existence of the prejudice either. Of course, in this, I am not questioning the existence of the prejudice. The base axiom is that such a prejudice exists. Which, in itself, is an assumption, but a valid one methinks.

Suresh said...

Oh! Please!

Spare me this BS. If I'm wrong, say so, and give reasons. And leave it at that.

To Talha's point:

Rather than denial of access to housing it can well be a negotiated term of contract stipulating damages for consumption of beef in that premise (akin to fine on smoking in some areas to draw a loose analogy).

You say:

The above talk is about a continuing surveillance.

And I say:

Says who? There are many leases for apartments (in Europe/US) which contain anti-smoking provisions and designate the entire apartment complex as being "smoke-free." That does not mean the landlord continually monitors the smoke level in each apartment. But she is required to take "reasonable steps" to maintain a smoke-free environment and to initiate action if put on notice by a tenant about the presence of smoke. Having a clause in the contract which specifies non-cooking of meat within the apartment need not amount to continual monitoring.

To the question of whether such intrusive monitoring is at all possible and if it would be legal: Well, in the US, it does happen in the case of some labour contracts which specify drug testing under different conditions. However, different US states seem to have different laws in this regard. Most house/apartment leases in the UK allow for periodic inspection by landlords and letting agents though notice has to be given beforehand.

If your objection to Talha's point (about the possibility of a contract-based approach to the problem of discrimination) is based on an objection to monitoring itself, then I am sorry it doesn't hold.

K.V.DHANANJAY said...

"Oh! Please!"

Talha said...

I read something yesterday and I think its imperative to mention, as it supports some of the points argued here.

Let me first contextualize the reading, I dont want to be quoting out of context.

Context of the reading: While explaining the merits of justifying the grant of 'power' to judges to oversee the decisions of democratically elected people, the author proposed a reliance on the doctrine of proportionality.

The doctrine of proportionality in European Court of Human Rights and under German Constitutional Law (and some other leading jurisdictions including the UK to some extent) involves 4 steps

"First, the court must ask whether the purpose of any rights restriction is legitimate. Second, the court must then ask whether the measure in question is suitable to attaining the identified purpose.
Third, the court must ask whether the measure is necessary for the attainment of the purpose. Finally, the court must establish whether the measure is proportionate in the strict sense, namely whether it strikes a proper balance between the purpose and the individuals’
rights in question." (Ministry of Justice Report)

In this context and on the use of proportionality Beatty writes at 165

"The principle of proportionality is calibrated in a way that makes it acutely sensitive to the personal spaces and values people care about most. The right to discriminate in how one deals with one's property, for example is strongest when it concerns places and objects that are most privately and personal and weakest when what is at stake is generally accessible to the public at large. Property and contract regimes that were well proportioned recognize a person's right to refuse a rent a room to someone of a different race, religion, or sexual orientation if it is situated in his or her home, but not if it is in a large apartment complex. (and it is footnoted to Aahron Barak, "Constitutional Human Rights & Private Law" (1996) 3 Review of Constitutional Studies 218.)


Thus, to my mind, there are legitimate limits to extension of one's personal predispositions.






See also Ministry of Justice Report on use of Proportionality in UK, France, Spain, Germany and European Court of Human Rights onhttp://www.justice.gov.uk/publications/research270907.htm

D. Beatty, The Ultimate Rule of Law (OUP Oxford 2004) at 165