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Discrimination By Housing Societies (Against Minorities) – Possible Legal Responses

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Muslim Rickshaw Driver

TARUNABH KHAITAN

Recent months have seen several media stories on discrimination against Muslims by housing societies, especially in some western states. A Jain majority housing society in Mumbai denied water and power to its Muslim resident family in March this year. Around the same time, Madhavi Kapur of Pune wanted to sell her apartment to a Muslim family and faced incredible resistance. TV actor Aamir Ali could not find a house in Mumbai because of his religion. Even Saif Ali Khan confessed that he went to a Muslim real estate agent for fear of facing prejudice. Similar stories of forced ghettoisation have come from Ahmedabad as well. The problem is not restricted to Muslims. Other groups have faced similar discrimination in Delhi and elsewhere.
Sometimes, the pretext for denying housing to Muslims is vegetarianism. Paromita Vohra’s short film ‘Cosmopolis: Two Tales of a city‘ captures the issue brilliantly. More shockingly, sometimes the pretext is terrorism. In the aftermath of the recent Bombay attacks, some 300 real estate agents in Surat declared in a meeting that they will not rent or sell houses or shops to any Muslims, apparently because the terrorists who attacked Bombay had ‘local supporters’.

In this post on another blog where I contribute regularly, I lament the fact that we don’t have any systematic study of the problem, only these dispersed stories. Even the Sachar report does not have any data on discrimination on the grounds of religion (or other grounds, including food-preference, marital status, sexual orientation, caste, gender identity and ethnic identity) in the housing sector in India. Can anyone point to any systematic study in this area, even if it is for a small geographical region? If none exists, such data needs to be produced.

THE LAW

Surprisingly, this discriminatory 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) of the Constitution. 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.

POSSIBLE LEGAL RESPONSES

What can be done? Article 19(1)(c) of the Constitution is subject to ‘reasonable restrictions’. Any prohibition of unfair discrimination will definitely be reasonable, and therefore nothing prevents the Parliament from making such a law.

There have been recent reports which I have studied in this recent article in the EPW. To quote from the article:

Sachar Committee’s (2006) ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ … made two specific recommendations designed to benefit all vulnerable groups, not just Muslims: (1) …the Committee recommends that an Equal Opportunity Commission (EOC) should be constituted by the government to look into the grievances of the deprived groups, (2) enhancement of diversity in different spaces should be seen as a larger policy objective… The idea of providing certain incentives to a “diversity index” should be explored… … …Two separate expert groups were set up as a follow-up measure to look into these two suggestions in further detail. The first expert group, chaired by Madhava Menon (2008), was asked to “examine and determine the structure of an Equal Opportunity Commission”. It submitted its report in February this year. The second expert group, chaired by Amitabh Kundu (2008) to “propose ‘diversity index’ and to work out the modalities for implementation” submitted its report in June 2008.

The Menon Committee Report proposed an Equal Opportunity Commission Bill, which outlaws discrimination on several grounds (including religion) in the education and employment sectors (whether public or private). The main flaw in the Bill is that it leaves out the housing sector from its ambit, with the possibility of inclusion in the future. If the Bill becomes law, and includes the housing sector within its ambit, denying housing because of someone’s religion will become unlawful. The Bill is astute enough to cover ‘indirect’ discrimination as well – therefore, discrimination on grounds like food preference which have a disproportionate impact on Muslims will also be prohibited. 

The Kundu Committee Report complements the Menon Committee Report. It starts from an assumption that in a non-discriminatory world, all public spaces will be diverse (public “spaces” include privately owned business, housing societies and schools since the functions they perform are of a quasi-public nature). If hiring, admitting, leasing and selling policies are non-discriminatory, the social mix of a workforce, students or housing society will roughly reflect that of the society itself. Since this is not the case, positive action is needed. It therefore recommends that educational institutions, businesses and housing societies which improve their diversity ratio (based on caste, religion and gender) of their students, workforce and residents respectively will get financial incentives from the state.

The most important discursive leap in these reports is that they transcend the majority-minority divide. Menon Committee offers help only to objectively determined ‘deprived groups’ (which theoretically can be a majority group as well). The Kundu report encourages diversity in both directions – a Muslim-only workforce will get the same incentives to diversify as a Hindu-only workforce.

One important drawback of the two reports is the fact that they recommend independent enforcement mechanisms in the form of two separate commissions. There is already a plethora of commissions dealing with several aspects of equality. More commissions will mean more turf-wars and red-tape. What is needed is a single, streamlined and powerful Equality Commission which can deal with all issues of discrimination, diversity and affirmative action on all grounds, including caste, religion, tribe, race, sexual orientation
, language and gender. The existing commissions can be merged into this single and efficient commission.

These reports have not received the attention they deserve, not even from Muslim leaders and intellectuals. A public debate to identify and fill the loop-holes, followed by enactment by the Parliament can lead the way for a more inclusive and diverse society. Ignoring them and continuing to see social justice only through the much-maligned lens of reservations will be missing the boat.

Tarunabh Khaitan is a lecturer in Law at St Hilda’s College, University of Oxford. He can be reached at tarunabh [at] gmail.com and his personal website is at http://sites.google.com/site/tarunabh/.

Photo: Muslim Rickshaw Driver

 

Article sourced from :http://indianmuslims.in/discrimination-by-housing-societies-possible-legal-responses/

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