Varun

Housing Discrimination in India, Religion based restrictive covenant that is, an agreement between the property holders to not lease or rent to “people of the Muslim, Christian or other Abrahamic faiths, or even lower-caste Hindus valid or not?

Varun Kumar 25 Oct 2017

Housing Discrimination in India, Religion based restrictive covenant that is, an agreement between the property holders to not lease or rent to “people of the Muslim, Christian or other Abrahamic faiths, or even lower-caste Hindus valid or not?

1. INTRODUCTION: In this research paper we will be dealing with the issue of housing discrimination in India. This research paper includes various legal issues and questions of law, such as, whether religion- based restrictive covenant that is, an agreement between the property holders to not lease or rent to “people of the Muslim, Christian or other Abrahamic faiths, or even lower-caste Hindus”, is valid or not? Another aspect is the possibility of the anti-discrimination law. Therefore, a slight balance must be drawn between individual choice and social equality. However, one cannot, for example, implement standards of non-discrimination upon people with respect to choices about their intimate relationships; nor can one ask religious institutions to admit every applicant for membership into their fold, regardless of his or her religion.

2. WHETHER RELIGION BASED RESTRICTIVE COVENANT THAT IS, AN AGREEMENT BETWEEN THE PROPERTY HOLDERS TO NOT LEASE OR RENT TO “PEOPLE OF THE MUSLIM, CHRISTIAN OR OTHER ABRAHAMIC FAITHS, OR EVEN LOWER-CASTE HINDUS”, IS VALID OR NOT:  An agreement between the property holders containing a religion based restrictive covenant is not valid and against public policy and unconstitutional and against the provisions of The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by the United Nations General Assembly on 21 December 1965. India ratified the Convention in 1968. The Convention has come into force on 4 January 1969. There are wide-ranging limitations on the freedom of contract in India. Article 15(2) of the Constitution prohibits any shop, restaurant, and hotel or entertainment venue from denying access to any citizen on the basis of the protected characteristics. It makes no difference whether the shop or hotel is owned by private parties – it is still bound by Article 15. The Indian Contract Act, more generally, voids contracts that are opposed to public policy.

In Zoroastrian Cooperative Housing Society v. District Registrar, AIR 2005 SC 2306, the Supreme Court upheld the by-laws of a Parsi Housing Society that prohibited selling property to non-Parsis. It did so by invoking the Parsis’ fundamental right to the freedom of association, their rights as a minority to preserve their culture, and by refusing to apply constitutional principles to private contractual acts.

In IMA v. Union of India, (2011) 7 SCC 179, Justice Sudershan Reddy invoked the drafting history to hold that since private schools were service providers, they came within the scope of the word “shops”, and were subject to Article 15(2). If this logic is taken further, then Article 15(2) can become a vital remedy to fight private discrimination across a range of arms-length economic transactions including, potentially, housing covenants and employment contracts.

Countries like Canada, the United Kingdom, South Africa and the United States, have extensive legislation dealing with private discrimination, particularly with housing discrimination.

In Karma Dorjee & Ors V. Union of India and Ors, 2016 SCLT 1722, the Supreme Court held that, We are of the view that in order to enhance a sense of security and inclusion, the Union Government in the Ministry of Home Affairs should take proactive steps to monitor the redressal of issues pertaining to racial discrimination faced by citizens of the nation drawn from the north-east. For that purpose, a regular exercise of monitoring and redressal should be carried out by a Committee.

In Corrigan v. Buckley, 271 U.S. 323 (1926, Supreme Court of the United States), the U.S. Supreme Court held that, Private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment; but it is violative of the equal protection clause of the Fourteenth Amendment for state courts to enforce them.

In Buchanan v. Warley, 245 U.S. 60 (1917, Supreme Court of the United States), a unanimous Court declared unconstitutional the provisions of a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons. During the course of the opinion in that case, this Court stated: "The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire.

In Harmon v. Tyler, 273 U. S. 68 (1927, Supreme Court of the United States), a unanimous court, on the authority of Buchanan v. Warley, declared invalid an ordinance which forbade any Negro to establish a home on any property in a white community or any white person to establish a home in a Negro community, "except on the written consent of a majority of the persons of the opposite race inhabiting such community or portion of the City to be affected." 

In Richmond v. Deans, 281 U. S. 704 (1930, Supreme Court of the United States), there, a Negro, barred from the occupancy of certain property by the terms of an ordinance similar to that, in the Buchanan case, sought injunctive relief in the federal courts to enjoin the enforcement of the ordinance on the grounds that its provisions violated the terms of the Fourteenth Amendment. Such relief was granted, and this Court affirmed, finding the citation of Buchanan v. Warley and Harmon v. Tyler, sufficient to support its judgment.

In Clayton v Ramsden, [1943] AC 320 (English House of Lords), the condition was void for uncertainty. Lord Russell of Killowen said: ‘the courts have always insisted that conditions of defeasance, in order to be valid, should be so framed that the persons affected (or the court if they seek its guidance) can from the outset know with certainty the exact event on the happening of which their interests are to be divested.’

3. CONCLUSION: In nutshell we can conclude that, religion based restrictive covenant that is, an agreement between the property holders to not lease or rent to “people of the Muslim, Christian or other Abrahamic faiths, or even lower-caste Hindus”, must be declared void, unconstitutional and violative of the provisions of Human Rights Act, 1963 and The International Convention on The Elimination of All Forms of Racial Discrimination (CERD), 1965. It is now extensively accepted that discrimination can take two forms: direct or indirect. Direct discrimination involves unfavorable treatment to a person because of a particular personal characteristic, such as her sex, caste, religion or race. Indirect discrimination occurs when a seemingly neutral norm operates in a manner that overwhelmingly burdens people sharing a particular characteristic.

4. BIBLIOGRAPHY:

1.      DR. R.K. Sinha, The Transfer of Property Act, 1882 (16th ed., 2015).

2.      Prof. S.N. Misra, Indian Penal Code (19th ed., 2014).

3.      DR. J.N. Pandey, Constitutional Law of India (52nd ed., 2015).

4.      P.M. Bakshi, The Constitution of India (14th ed., 2017).

5.      H.M. Seervai, The Constitutional Law of India (4th ed., 2015).  

6.      DR. Sir Hari Singh Gour, Indian Penal Code (15th ed., 2015).

7.      DR. Sir Hari Singh Gour, Commentary on The Transfer of Property Act, 1882 (14th ed., 2016.

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