In 1990, a month after Saddam Hussein had invaded Kuwait, Zainul Abidin Juvale, a merchant navy captain, was hailed as a hero for sailing out of the Middle Eastern country with 722 Indians aboard his ship. "When I risked my life to rescue fellow Indians who faced starvation and death in Kuwait, nobody asked me what my religion was," Juvale said.
Twenty-five years later, he made news again for very different reasons: he was unable to buy a flat in Mumbai because of his religion. As he looked for a flat in the suburb of Bandra, brokers told him that the housing societies in which he wanted to live would not to rent or sell to Muslims because of an unwritten agreement their members had struck among themselves. Juvale isn’t alone.
Across Mumbai, Muslims routinely complain of the problems they face when trying to find a home. Often they have difficulties because housing societies have unwritten agreements not to sell or rent to Muslims.
Ironically, such discrimination is made possible by a law that embodies the spirit of openness and inclusion. This law, the Maharashtra and Gujarat Co-operative Societies Acts of 1962, mirrors the co-operative housing movement's principle of inclusion.
It is, for instance, unequivocal that co-operative housing societies must have open membership, i.e., not decline anyone membership on ethnic grounds. Moreover, even when citing other reasons to turn someone away, societies need to have “sufficient grounds”.
Yet this very phrase, meant to curb discrimination, has allowed societies time and again to exclude people, since it has been left undefined. Take, for instance, the Sahitya Sahawas society in Bandra. Artists and writers formed the society so that could live together with like-minded people.
But over the years, it has also become almost entirely a population of Maharashtrian Brahmins. Societies in other localities in Mumbai have similarly become linguistically, ethnically or religiously homogeneous.
In 2005, the Supreme Court had a golden opportunity to interpret the law in a way that could end this parochialism. It missed the chance. The case related to the Zoroastrian Co-operative Housing Society Limited, formed under the Bombay Co-operative Societies Act 1925 and subsequently brought under the Gujarat Co-operative Societies Acts of 1962. A bylaw in the society's charter restricted membership to Parsis.
The litigation arose when a member of the society wanted to demolish his bungalow and sell the plot to developers, who would then construct residential and commercial buildings on that land. But he could not because of the bylaw, which imposed a total embargo on selling or renting plots to non-Parsis.
The aggrieved member went to court, claiming that this bylaw impeded his constitutional right to own and deal in property and was an example of entrenched religion-based discrimination. The matter went all the way up to the Supreme Court, where the judges could have struck down an inherently discriminatory rule, one that went against both the letter and spirit of the law. It had precedents to guide it.
In 1990, the Supreme Court had struck down similar regulations of the Vishwa Co-operative Housing Society in Churchgate, in downtown Mumbai, and upheld a member’s right to sublet his apartment to tenants of his choice.
In the same year, the Bombay High Court struck down similar rules of the St Anthony Co-operative Housing Society in Chembur, a northeastern suburb of Mumbai, which restricted membership to Catholics. This judgment emphasised that open membership ought to be the basis of a co-operative society, whether one formed for housing or some other purpose.
Ignoring this, the Supreme Court's decision revolved around making a distinction between the society’s legal rights under its charter and the constitutional principles of equality and egalitarianism.
The court emphasised a particular group’s right to preserve its culture, but failed to balance this by acknowledging that such attempts at preservation also led to acts of prejudice. Further, the court ruled that because a society was a private body, it was exempt from having to honour constitutional tenets.
With this judgment, the court opened the door for community to mutate into communitarian and finally to communal.
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Twenty-five years later, he made news again for very different reasons: he was unable to buy a flat in Mumbai because of his religion. As he looked for a flat in the suburb of Bandra, brokers told him that the housing societies in which he wanted to live would not to rent or sell to Muslims because of an unwritten agreement their members had struck among themselves. Juvale isn’t alone.
Across Mumbai, Muslims routinely complain of the problems they face when trying to find a home. Often they have difficulties because housing societies have unwritten agreements not to sell or rent to Muslims.
Ironically, such discrimination is made possible by a law that embodies the spirit of openness and inclusion. This law, the Maharashtra and Gujarat Co-operative Societies Acts of 1962, mirrors the co-operative housing movement's principle of inclusion.
It is, for instance, unequivocal that co-operative housing societies must have open membership, i.e., not decline anyone membership on ethnic grounds. Moreover, even when citing other reasons to turn someone away, societies need to have “sufficient grounds”.
Yet this very phrase, meant to curb discrimination, has allowed societies time and again to exclude people, since it has been left undefined. Take, for instance, the Sahitya Sahawas society in Bandra. Artists and writers formed the society so that could live together with like-minded people.
But over the years, it has also become almost entirely a population of Maharashtrian Brahmins. Societies in other localities in Mumbai have similarly become linguistically, ethnically or religiously homogeneous.
In 2005, the Supreme Court had a golden opportunity to interpret the law in a way that could end this parochialism. It missed the chance. The case related to the Zoroastrian Co-operative Housing Society Limited, formed under the Bombay Co-operative Societies Act 1925 and subsequently brought under the Gujarat Co-operative Societies Acts of 1962. A bylaw in the society's charter restricted membership to Parsis.
The litigation arose when a member of the society wanted to demolish his bungalow and sell the plot to developers, who would then construct residential and commercial buildings on that land. But he could not because of the bylaw, which imposed a total embargo on selling or renting plots to non-Parsis.
The aggrieved member went to court, claiming that this bylaw impeded his constitutional right to own and deal in property and was an example of entrenched religion-based discrimination. The matter went all the way up to the Supreme Court, where the judges could have struck down an inherently discriminatory rule, one that went against both the letter and spirit of the law. It had precedents to guide it.
In 1990, the Supreme Court had struck down similar regulations of the Vishwa Co-operative Housing Society in Churchgate, in downtown Mumbai, and upheld a member’s right to sublet his apartment to tenants of his choice.
In the same year, the Bombay High Court struck down similar rules of the St Anthony Co-operative Housing Society in Chembur, a northeastern suburb of Mumbai, which restricted membership to Catholics. This judgment emphasised that open membership ought to be the basis of a co-operative society, whether one formed for housing or some other purpose.
Ignoring this, the Supreme Court's decision revolved around making a distinction between the society’s legal rights under its charter and the constitutional principles of equality and egalitarianism.
The court emphasised a particular group’s right to preserve its culture, but failed to balance this by acknowledging that such attempts at preservation also led to acts of prejudice. Further, the court ruled that because a society was a private body, it was exempt from having to honour constitutional tenets.
With this judgment, the court opened the door for community to mutate into communitarian and finally to communal.