Jayanagar is one of the largest residential areas in Bangalore. The population is mostly dominated by upper-class Hindus and is extremely notorious in its treatment towards Muslims and sometimes to Christians too, with respect to letting outhouses.[3] They mask their prejudice mostly in the garb of not letting houses out to non-vegetarians (which is problematic on its own). The tolerance level is higher for Hindu non-vegetarians (preferably non-SC/ST), then Christians, then SC/STs and then Muslims.

These incidents and many more in addition to them provide a propitious opportunity to discuss housing apartheid, which is not peculiar to a particular area or city. The examples stated above display instances of housing apartheid in most cosmopolitan cities in the country. They illustrate discrimination and prejudice, either overtly or covertly, and, in my opinion, are in direct violation of Article 15 of the Constitution of India[4].

The concept of housing apartheid is elucidated herein by first discussing the infamous Supreme Court case, Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (Urban),[5] which allowed for setting up of segregated housing societies, and then proceed to evaluate the constitutional provisions in the context of right to housing, for Muslims in particular, and finally query into the feasibility of regulating the private sphere in this context.

The case

In the Zoroastrian Co-operative Housing Society Limited case,[6] members of the Parsee community established a housing society and limited membership to the co-operation, through a bye-law, only to persons belonging to that community. The Respondent applied to the society, seeking permission to demolish the building and use the space for construction of a commercial building. Permission was not granted as the bye-laws of the society did not allow for the use of the property for commercial purposes. Subsequently, when he applied for permission to construct residential flats to be sold to Parsees, he was permitted to go ahead. When he entered into negotiations with a builders’ association for sale of property, he violated the restriction placed upon him with respect to not allowing membership of non-Parsees in the co-operative society. The matter reached the High Court of Gujarat when the society challenged such a violation. The High Court rejected the claim of the society and held that restricting membership would amount to a violation of the right to property and Article 300A. Subsequently, the society went on appeal to the Supreme Court of India, wherein the claim was upheld and the court held that the bye-law was not in contravention with Section 4 of the Gujarat Co-operative Societies Act which laid down that any bye-law which contravenes public policy would not be recognised. The court’s understanding of this provision was that public policy has to be located within the confines of the Act and not look for constitutional principles or provisions unless explicitly provided by the Act.  This judgement also held that a co-operative society does not come under the fold of a ‘state’ under Article 13 of the Constitution of India[7] and accordingly, a fundamental rights challenge cannot be held valid as they are attracted only when a state action contravenes these rights.

This is an extremely verticalist interpretation of the Constitution[8] and potentially bad in law. By taking this approach, the court has completely disregarded the obligation of non-state actors in not violating fundamental rights. For example, Article 17 of the Constitution[9] would be rendered a toothless provision if it is not enforceable against non-state actors. Another example that is closer to the topic in discussion is the case of Vishaka v. State of Rajasthan,[10] wherein, the Supreme Court issued guidelines and norms to be followed in order to prevent instances of sexual harassment against women at workplaces. Observance of these guidelines would not have been effective if state actors were the only bodies expected to do so. Horizontal application of fundamental rights, i.e., a rights challenge enforceable against both state and non-state actors, was etched out clearly in this case.

Right to housing

The Supreme Court has endorsed a segregationist view by allowing community based housing, despite religion being an explicitly mentioned ground for non-discrimination.[11] The Indian society has undergone the trauma of partition, and in this framework, it is important and would be a highly mature approach if consideration is given to what it means for a minority community to practice, profess and propagate their religion, without having the fear of being discriminated against, and the degree to which the right to dignity may enable an individual or a group of persons to enjoy the right to freedom of religion without the expectation and fear of either implicit or visible manifestations of hate and incitement to religious hatred.

The ease with which the Supreme Court allowed for such a discriminatory practice based on a specified ground to pass gives a huge leeway for other discriminatory practices based on non-specified grounds to be carried out, such as refusing housing on grounds such as HIV status, sexual orientation, disability, language etc.[12]

What can be done about it?

The Justice Sachar Committee Report (Report on Social, Economic and Educational Status of the Muslim Community of India), 2006 was submitted by the expert level group set by the Ministry of Minority Affairs.[13] It was recommended by this report that an Equal Opportunities Commission (EOC) be set up to keep a check on discrimination against minorities. The Madhava Menon Committee was set up in order to examine and analyse the structure and functioning of the EOC. This committee proposed the draft EOC Bill in 2008.[14] The Union Cabinet on 20 February 2014 gave its nod to the setting up of this Commission.[15]

While this Commission seeks to make a paradigm shift in the way equality is understood in the traditional sense, it is also onerous on the Commission to not exclude the housing sector from its immediate scope. Several critics have opined that such an Act would pervade into the private sphere of the landlord with respect to the choices that he/she would want to make about who to let out the house to. However, with the horizontal application of fundamental rights, such a problem would not arise as a violation of Article 15 would be enforceable against a private party too.

In arguendo, if such an application of fundamental rights were not allowed then, such a restriction on the choice of the landlord should be considered as a reasonable restriction as a direct co-relation can be made to increasing ghettoization of certain communities due to the practice of housing apartheid.[16]

Conclusion

The Zoroastrian Co-operative Housing Society Limited case narrowed down the scope of constitutional interpretation. However, with the coming of the EOC, the right to housing has to be construed as a constitutional guarantee and only when this is done can the principle of minority protection, which is one of the foremost responsibilities of the Constitution, be said to have been achieved to an extent.