Restrictive covenants relating to membership in housing societies have been found valid in India when they are not explicitly barred by laws concerning the governance of such societies. NITIKA MORE examines relevant jurisprudence and makes the case for an anti-discrimination law in India.
DR B.R Ambedkar said, “Every Hindu village has a ghetto. The Hindus live in the village and the untouchables live in the ghetto.” He thus urged the oppressed communities to move to cities as he believed in their transformative potential. Little did he know that these so-called ‘liberating spaces’ would continue to perpetuate identity-based discrimination.
A recent study across India’s 10 largest cities using ward level census data has revealed that there exists 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.
Comparing relevant case law
It is interesting to note that despite widespread discrimination prevalent in private sector housing, there are not many case laws regarding the same. This may be attributed to the fact that most of the rights enumerated in Part III of the Constitution of India are enforceable only against State action.
However, there have been some noteworthy recent developments around the validity of restrictive membership in co-operative 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 vs. District Registrar (2005) and Delhi Dayalbagh Coop. House Building Society Ltd vs. Registrar (2019).
Also read: India’s Humongous Housing Hitch: Legal Innovations Can Show the Way
In the former case, the Supreme Court was called upon to adjudicate the validity of a bye-law that restricted the membership of a co-operative housing society only to Parsis. The bye-law was held to be valid by the apex court, as it opined that there was nothing in the provisions of the Gujarat Co-operative Societies Act, 1961 eliminating restrictions on membership and the society was free to frame bye-laws that restricted membership to persons of the Parsi community.
In the latter judgement, which is also the most recent judgment of the Supreme Court on the subject, the Delhi High Court’s verdict was upheld in invalidating a bye-law of the Delhi Dayalbagh Housing Society, which restricted membership to people from the Radha Soami sect. The Court ruled that the bye-law was in contravention of the provisions of the Delhi Cooperative Societies Act, 2003, which specified the co-operative principles in its first schedule and prohibited discrimination in membership on the basis of caste, race, religious considerations, etc.
Also read: Deterring private discrimination, constitutionally
The question of constitutional morality
Now, the conclusion that can be drawn from these two judgments is that the Supreme Court only concerned itself with the statutory interpretation of the respective Acts 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.
On referring to the constitutional assembly debates, and in particular, to the statements of assembly member S. Nagappa, we see that the term ‘shop’ used in Article 15(2), is defined as a place from where one can purchase labour or goods by paying money. Thus, it is intended to cover all forms of private economic transactions.
Moreover, the Court tried to justify the enforcement of a private discriminatory contract by using the defence of freedom of association as provided for under Article 19(1)(c) and in doing so, it completely failed to delve upon the ‘reasonable restrictions’ defined under Article 19(4). The restriction to fundamental rights on the ground of ‘morality’ needs to be examined in light of the text and spirit of the Constitution. As Justice D.Y. Chandrachud has pointed out, this constitutional morality is to be located within the principles of liberty, equality, fraternity and individual autonomy, as enshrined in the Preamble of our Constitution.
Justice P.K. Balasubramanyan, while passing the judgement in the Zoroastrian Cooperative Society case, referred to “homogeneity in the form of caste as a means of harmonious living in a co-operative society,” which is in stark contrast to the principle of fraternity enshrined in the Preamble, and seeks to perpetuate the very ‘ghettoisation’ Ambedkar frowns upon. The term “fraternity” was added to the Preamble by Dr B.R Ambedkar to end societal divides based on caste and religion. Thus, the apex court clearly failed to apply the lens of “constitutional morality” in justifying the freedom of association as a ground for allowing discrimination in housing.
In Delhi Dayalbagh Cooperative Society, the High Court touched upon the idea of fraternity or bandhuta and expressed its concern regarding housing discrimination. Moreover, it also talked about how the upholding of discriminative bye-laws would affect the rights of the legal heirs, who may or may not affiliate with their parents’ religious beliefs or identities, and would thus be deprived of their succession rights under the traditional laws of inheritance.
These concerns are, however, not taken up by the Supreme Court, which concerned itself only with the specific question of law involved, based on the factual matrix of the case.
Also read: ARHC Scheme Falls Short Of Solving Rental Housing Issues
The need to emulate anti-discrimination laws in India
Hence, India is still in need of a judicial precedent that declares restrictive covenants based on caste, religion, etc., in transfer of property to be void ab initio. The judgement of the Supreme Court in Indian Medical Association vs. Union of India (2011) can be seen as a guiding light in this regard. The Court held that private schools, being service providers, come within the scope of “shops”, and thus, are subject to Article 15(2). This interpretation of Article 15(2) could thus be one of the routes through which the judiciary could combat private discrimination in housing.
The case of Shelley vs. Kraemer (1948), decided by the U.S Supreme Court, is also relevant in this regard as it held that seeking judicial enforcement of discriminative covenants would amount to State action and would thus violate the constitutional right to equal protection.
The most effective remedy to combat the problem of housing discrimination would be to have an anti-discrimination legislation in place which would strike a balance between social equality and personal choice in alienation of property.
Anti-discrimination laws in countries such as the United Kingdom, Canada, South Africa, and United States, among others, could serve as models for the same. For instance, the UK has the Equality Act, 2010, which has been a vital piece of legislation in combating housing discrimination. In New Zealand, covenants banning particular ethnic groups or races from purchasing property would be inconsistent with the Human Rights Act, 1993, and can be voided.
Also read: How states can lead the fight against discrimination
The Anti-Discrimination and Equality Bill, introduced by Indian MP, Shashi Tharoor in the Lok Sabha in 2017, was an important Private Member’s Bill, which lapsed with the previous Lok Sabha not showing sufficient interest in it. The Centre for Law and Policy Research has since drafted an Equality Bill in 2021 to facilitate further public discourse on the subject.
Unfortunately, such academic initiatives are unlikely to succeed, unless the Executive and the Judiciary also show equal concern to achieve their objectives.
(Nitika More is a 2nd year LL.B. student at the O.P Jindal Global University. The views expressed are personal.)