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print versionSEPARATE BUT EQUAL GHETTOS
by Sanjay Hegde
A PROPERTY broker, Vishal D’souza, was selling a flat for three crores in Bombay’s Hindu Colony, Dadar. He posted the following advertisement on the Real estate site 99Acres. com. " Excellent brand new 2BHK fully furnished flat with cross ventilation, natural light. Cosmopolitan society, no Muslims, with car parking on immediate sale, fifth floor interested please call". Taking exception to this posting, a lawyer Shehzad Poonawala, filed a complaint before the National Commission for Minorities. The commission will no doubt proceed under S. 9( c) which enjoins upon it “ to look into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities†. The property broker has since modified the entry and the site has issued a statement claiming that “.. We are a platform or an intermediary and as per industry practice it is our responsibility to remove any illegal content from our site after it is brought to our notice. We are also examining other listings on the site for any such objectionable content. We are in the process of putting in place checks and processes to prevent the recurrence of such acts. We are deeply embarrassed that our site was misused in this manner.†In private conversation with me, the founder of the site told me that, as abundant precaution, they also had to remove a large number of listings which required “ Muslim Only†, tenants or buyers.
Housing
This case is symptomatic of a greater malaise. Complaints of Ghettoisation by choice or compulsion, are not limited to Muslims alone. Dalits have frequently complained of lack of access to quality housing.
In Ahmedabad, Prof Achyut Yagnik is on record detailing the travails of Dalits who are forced into living in Dalit- only societies.
“ There are more than 300 Dalit societies in the city. In Chandkheda alone, there are 200 societies, most of which have come up after the 2002 riots when people moved out from Gomtipur, Bapunagar and Dani limda area.
You will find construction contractors who only build Dalit societies.†Jayantibhai Jadav, a Congress councillor from Chandkheda and a builder- constructor, said, “ In case a Dalit approaches a upper caste builder for accommodation, he is either directly discouraged or tacitly denied. The upper caste buyers don’t even approach Dalit builders.†There is a corresponding trend of Brahmin- only housing societies as well as Jainvegetarian- only societies. The meat- eating Pathare Prabhus of Girgaum, have now been effaced by the influx of vegetarian Jains and Gujaratis, who have turned many south Bombay housing societies, exclusively vegetarian.
A site called vedicagraharam. com, offers plots in a Brahmins only development on the outskirts of Bangalore. Its application form asks for the gotra, rasi and nakshatram of the applicant as a subtle way of screening out undesirables.
One would have expected the Supreme Court of India, to have enforced desegregation as a necessary concomitant of the Right to Equality and the constitutional prohibitions against discrimination based on grounds of religion, race, caste, sex or place of birth. However in the 2005 judgment in Zorastrian Cooperative housing society’s case, it upheld a bye- law which prohibited non- Parsis from buying property in a Parsi- only society. The logic of the two judge bench was that the bye- law was permitted by the statute which was not unconstitutional.
The Court refused to step into what it thought was the legislative domain.
The judgment says “ The Constitution no doubt provides that in any State action there shall be no discrimination based either on religion or on sex... Unless appropriate amendments are brought to the various Cooperative Societies Acts incorporating a policy that no society shall be formed or if formed, membership in no society shall be confined to persons of a particular persuasion, religion, belief or region, it could not be said that a society would be disentitled to refuse membership to a person who is not duly qualified to be one in terms of its bye- laws...
Retrograde
It is true that in secular India it may be somewhat retrograde to conceive of cooperative societies confined to group of members or followers of a particular religion, a particular mode of life, a particular persuasion. But that is different from saying that you cannot have a co- operative society confined to persons of a particular persuasion, belief, trade, way of life or a religion. It is true that our Constitution has set goals for ourselves and one such goal is the doing away with discrimination based on religion or sex. But that goal has to be achieved by legislative intervention and not by the court coining a theory that whatever is not consistent with the scheme or a provision of the Constitution, could be declared to be opposed to public policy by the court.
Apartheid
A few things are clear from the judgment.
The court has not sanctioned individual bigotry, indeed it thinks that such exclusion by cooperatives is constitutionally retrograde.
The court has, in the absence of legislation, upheld the right of denomination based co- operative societies to confine membership to followers of the particular creed. In the absence of legislation, the court has hesitated to strike down bye- laws and regulations as opposed to public policy.
The court has feared to rush in where legislators have hesitated to tread.
Despite the Court’s timorousness, it is time to have a relook at the problem. India is fast becoming an urban nation with a majority of its citizens living in cities. Our cities, if unregulated can turn into a modern apartheid of “Muslims - only†or “ Jain only†ghettoes. It is said that the day before the 1st battle of Panipat, Babur knew that he would win when he spotted several campfires, specifying communally separate kitchens in the army of Ibrahim Lodi. An army that ate separately could not to Babur’s mind, be expected to fight as one unit. It is time for India to consider whether it can attain equality for its children, if they are brought up in islands of separateness.
Most quality housing, is frameworked under the Co- operative societies Acts of the states. It is time to legislatively outlaw, bye- laws that exclude on grounds of religion, caste or dietary preference. The National Commission of Minorities would also do well to look into the problem and contemplate both the legislative and the judicial options. It ought to file a suitable petition in the Supreme Court, to re- look the Zorastrian judgment which itself emanated as a result of turf- protection by India’s most distinguished minority. The Commission should also look into the possibility of recommending legislative amendments to all Acts, dealing with housing. It is also time for Parliament and State Legislatures to consider the question independently without being prodded by any authority.
Segregation in housing, is a problem which will not immediately disappear even with legislation. Continuing with the status- quo, however is no longer an option for a modern India. Tagore’s India of the fearless mind, cannot be “ broken up into fragments by narrow domestic walls†if our heads are to be indeed held high.
The writer is a Supreme Court lawyer
