Is Unity in Diversity a Housing Joke in India?

Restrictive covenants relating to membership in housing companies have been held to be valid in India when they are not explicitly prohibited by laws relating to the governance of such companies. NITIKA PLUS reviews relevant case law and advocates for anti-discrimination law in India.


DR BR Ambedkar noted, “Every Hindu village has a ghetto. The Hindus live in the village and the untouchables live in the ghetto.He thus urged oppressed communities to move to cities because he believed in their potential for transformation. He did not know that these so-called “liberating spaces” would continue to perpetuate identity discrimination.

A recent to study in India’s 10 largest cities, the use of neighborhood-level census data revealed that there is spatial segregation based on caste, religion and ethnicity.

Dalits, Adivasis and other members of minority communities continue to reside in ghettos, even in cities, as they face discrimination in private sector housing.

Compare relevant case law

It is interesting to note that despite the widespread discrimination that prevails in private sector housing, there is not much case law regarding the same. This can be assigned the fact that most of the rights listed in Part III of the Constitution of India are only enforceable against the action of the State.

However, there have been recent noteworthy developments regarding the validity of restrictive membership in cooperative housing societies for people of particular sects or religions, as they were governed by statutes. Two important judgments in this regard are Zoroastrian Co-operative Housing Society Limited v. district registrar (2005) and Delhi Dayalbagh Coop. House Building Society Ltd v Registrar (2019).

Read also : India’s Huge Housing Problem: Legal Innovations Can Lead the Way

In the first case, the Supreme Court was called upon to rule on the validity of a by-law which limited membership in a housing cooperative to Parsis only. The regulation was held valid by the Supreme Court, as it held that there was nothing in the provisions of the Gujarat Cooperative Societies Act, 1961 removing restrictions on membership and the company was free to develop regulations that restricted membership to people from the Parsi community.

In this latest judgment, which is also the most recent Supreme Court ruling on the matter, the Delhi High Court verdict was upheld by striking down a Delhi Dayalbagh Housing Society regulation, which limited membership to individuals. of the Radha Soami sect. . The Court ruled that the regulation contravened the provisions of the Delhi Cooperative Societies Act 2003, which clarified cooperative principles in its first annex and prohibited discrimination of members on the basis of caste, race, religious considerations, etc.

Read also : Discourage private discrimination, constitutionally

The question of constitutional morality

However, the conclusion that can be drawn from these two judgments is that the Supreme Court was concerned only with the statutory interpretation of the respective laws on cooperative societies and refrained from applying a constitutional test. In Zoroastrian cooperative society, the Court made no reference to Article 15 (2) of the Constitution, which prohibits private discrimination.

With reference to debates of the constitutional assembly, and in particular, to the statements of the member of the assembly S. Nagappa, we see that the term “shop” used in Article 15, paragraph 2, is defined as a place where one can buy labor or goods by paying money. Thus, it is intended to cover all forms of private economic transactions.

In addition, the Court attempted to justify the performance of a discriminatory private contract by invoking the defense of freedom of association provided for by Article 19 (1), point (c) and in so doing, he completely failed to delve into the “reasonable restrictions” defined under Article 19 (4). Restriction of fundamental rights on the grounds of “morality” must be examined in the light of the text and the spirit of the Constitution. As Judge DY Chandrachud has it underline, this constitutional morality must be situated in the principles of freedom, equality, fraternity and individual autonomy, as written in the Preamble of our Constitution.

Judge PK Balasubramanyan, delivering the judgment in the Zoroastrian cooperative society case, called “homogeneity in the form of caste as a means of living harmoniously in a cooperative society,” Which one is in stark contrast to the principle of fraternity inscribed in the Preamble, and seeks to perpetuate the very “ghettoization” that Ambedkar disapproves of. The term “brotherhood” was added to the preamble by Dr BR Ambedkar to end societal divisions based on caste and religion. Thus, the Supreme Court clearly did not apply the prism of “constitutional morality” to justify freedom of association as a ground for discrimination in housing.

In Delhi Dayalbagh Cooperative Society, the High Court evoked the idea of ​​fraternity or bandhuta and expressed concern about discrimination in housing. In addition, he also discussed how the maintenance of discriminatory administrative regulations would affect the rights of legal heirs, who may or may not affiliate with religious beliefs or the identity of their parents, and would thus be deprived of their inheritance rights. under traditional law of succession.

These concerns are, however, not taken into account by the Supreme Court, which only dealt with the specific legal question at issue, on the basis of the factual matrix of the case.

Read also : The ARHC program does not solve rental housing problems

The need to emulate anti-discrimination laws in India

Therefore, India still needs a judicial precedent which declares that restrictive covenants based on caste, religion, etc., in the transfer of property must be cancel ab initio. The Supreme Court ruling in Indian Medical Association v Indian Union (2011) can be seen as a guide in this regard. The Court held that private schools, as service providers, fall within the scope of “shops” and are therefore subject to Article 15 (2). This interpretation of Article 15 (2) could therefore be one of the means by which the judiciary could fight against private discrimination in housing.

The case of Shelley vs. Kraemer (1948), decided by the Supreme Court of the United States is also relevant in this regard, as it held that seeking the judicial application of discriminatory covenants would amount to state action and thus violate the constitutional right to equal protection.

The most effective remedy to tackle the problem of discrimination in housing would be to have anti-discrimination legislation that balances social equality and personal choice in the alienation of property.

Anti-discrimination laws in countries such as the UK, Canada, South Africa, and the US, among others, could serve as models for the same. For example, the UK has the Equality Act, 2010, who has was an essential piece of legislation in the fight against discrimination in housing. In New Zealand, covenants prohibiting particular ethnic groups or races from buying property would be inconsistent with the law. Human Rights Act 1993, and can be canceled.

Read also : How States can lead the fight against discrimination

The Bill against discrimination and equality, introduced by Indian MP Shashi Tharoor in Lok Sabha in 2017, was a major private member’s bill, which lapsed as the previous Lok Sabha did not show sufficient interest in it. The Center for Law and Policy Research has since produced a Equality Bill in 2021 to facilitate the pursuit of public discourse on the subject.

Unfortunately, such academic initiatives are unlikely to succeed unless the Executive and the Judiciary also show the same concern for achieving their goals.

(Nitika More is a 2nd year LL.B. student at OP Jindal Global University. The opinions expressed are personal.)

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