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.
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