Over the last one month, the issue of housing discrimination in Indian metropolises has firmly established itself at the forefront of political and social debate. Through personal anecdotes and sociological analysis, it has become clear that housing discrimination works as a mechanism of social segregation and exclusion, whether practiced directly or indirectly, and whether by the majority or minorities. More importantly, housing discrimination is one aspect of a number of private discriminatory practices relating to employment, accommodation, and access to public goods, which by all accounts, continue to flourish in India. Private discrimination, therefore, is one of the significant civil rights issues of our time. And as a civil rights issue, it deserves some long-overdue attention by the legislature and the courts.
The immediate response by the police has been predictable. A private firm’s refusal to consider an MBA graduate’s job application on the grounds of religion, and a private builder’s refusal to sell a flat to a Muslim, have resulted in charges under Section 153B of the Indian Penal Code. Section 153B is a legal provision designed to counter hate speech. Among other things, it punishes statements that call for denying people citizenship rights on the basis of their group affiliations. Clearly, this is an ill-fitting remedy. Using it to tackle a problem as systemic and pervasive as private discrimination is like applying band-aid to a cancer.
What, then, is the solution? Let us consider the specific case of housing discrimination, and use it to think through issues of private discrimination more generally. Housing discrimination and the construction of ghettoes is not a problem unique to the India of 2015. In the middle years of the 20th century, for instance, homeowners in the United States, Canada and Europe would regularly draft covenants refusing to sell or lease property on explicitly racial or religious lines. Examples include refusal to sell to “people of the Negro or Mongolian race”, to “Jews or persons of objectionable nationality”, to “any person of the Jewish, Hebrew, Semitic, Negro or colored race or blood.” In the absence of legislation covering such conduct, the aggrieved parties approached the courts.
A brief history
To the courts, such covenants presented a tricky legal question, because they stood at the intersection of the private right of contract, and the social evil of segregation and discrimination. Nonetheless, judiciaries came up with innovative solutions to deal with the problem. The American Supreme Court refused to enforce such contracts. The English House of Lords and the Canadian Supreme Court held that terms such as “Negro race” or “Jewish blood” were too vague and uncertain to pass legal muster. Most significantly, Justice Mackay at the Ontario High Court held that “the segregation and confinement of particular groups to particular business or residential areas” was against the public policy of the state, and consequently, overrode the freedom of contract. But the apotheosis of this approach was reached in a 2010 decision of the South African constitutional court. That court invalidated a racially restrictive testament by invoking the constitutional values of non-discrimination and equality, and by holding that such values had a “radiating effect” that allowed them to be invoked not merely against State-sanctioned discrimination, but against private acts as well.
Looking at a long and ignominious history of apartheid, a system where discrimination operated at the level of everyday life in myriad ways, the South African constitutional court’s concern with tackling private discrimination by invoking the Constitution made perfect sense. India too, has a similar history of excluding whole groups from the economic and social life of the community, via the everyday operation of the caste system. But in the only housing discrimination case to come before it, the Indian Supreme Court seemed oblivious to this history. In a 2005 judgment, Zoroastrian Cooperative Housing Society vs District Registrar, 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.
As Alok Prasanna Kumar and Srijoni Sen pointed out in The Wire last week, Zoroastrian Cooperative is perceived to have closed off the judicial route as a remedy for housing discrimination. That judgment, however, was delivered by a bench of only two judges, and there are good reasons why it should be discarded by a larger bench, or at least restricted to its specific set of facts. The Zoroastrian Cooperative Court conflated the freedom to contract, which is an economic freedom created and regulated by law, with the constitutional freedom to associate, which stands on a much higher pedestal. It referred to the Parsis’ rights as a minority to conserve their culture, a consideration that does not extend to the majority of private discrimination cases. Most crucially, however, in holding that the Constitution does not speak to private acts, the Court ignored an important, but largely forgotten clause of the Constitution: Article 15(2).
Article 15(2) states:
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to… access to shops, public restaurants, hotels and palaces of public entertainment…
A remedy to combat private discrimination
As is evident, Article 15(2) addresses private discriminatory acts, although its scope seems narrowly limited to “access… to shops”. But despite its restrictive wording, Article 15(2)’s drafting history reveals that the framers intended it to apply to a far wider range of discriminatory practices. When Ambedkar was clarifying the meaning of the article on 29th November 1948, he stated that the word “shop” was used in “in the most generic term one can think of… [that is, a] place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service.” He was subsequently asked whether it applied to doctors and lawyers. His answer was “it will include anybody who offers his services.” In the final reading of the Constitution, on 22nd November 1949, Ajit Prasad Jain discussed the provision in the context of a long history of private social discrimination against women, Scheduled Castes, untouchables, and other groups, which had long blighted Indian society.
The drafting history of Article 15(2) makes it clear that in using the word “shops”, the framers intended to outlaw discriminatory economic transactions that leveraged the market to exclude unpopular groups from access to basic goods. But the Article was rarely, if ever, used by the Courts in this spirit, until in 2011, another two-judge bench of the Supreme Court performed an important task of historical retrieval. In IMA vs Union of India, 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 crucial remedy to combat private discrimination across a range of arms-length economic transactions including, potentially, housing covenants and employment contracts.
Nonetheless, there is only so much strain that can be borne by the words “access” and “shops”. Furthermore, much like Section 153B of the IPC, Article 15(2) is, at best, a piecemeal, case-by-case solution to a structural problem. Private discrimination must ultimately be tackled by a carefully calibrated law, which takes into account the values of private choice and economic freedom, while ensuring that in a stratified and unequal society, such choices do not lead to further exclusion and discrimination. In framing such a law, the legislature has no shortage of models: Canada, the United Kingdom, South Africa and the United States, to name just a few countries, have extensive legislation dealing with private discrimination (and, in particular, housing discrimination).
What might such a law look like? While the details will need to be worked out by legal experts, private discrimination legislation must address three crucial aspects. The first is the grounds on which discrimination must be outlawed. Articles 15(1) and 15(2) of the Constitution already provide us with a blueprint: religion, race, caste, sex and place of birth are all sites of social stratification and historical injustice. In the sixty-five years since the framing of the Constitution, however, insights into other facets of discrimination have emerged, which were not available to the framers. For instance, disability, pregnancy and sexual orientation are three other grounds that legislation ought to take into account by going beyond the Constitution.
The second aspect is the scope of the anti-discrimination law. It is here that a delicate balance must be drawn between personal choice and social equality. One cannot, for instance, enforce norms 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. A helpful approach might be to delineate the operation of the law along three axes: of space, action and nature of relationship. In terms of space, a private discrimination law, for instance, would apply to the workplace, but not to the home; in terms of action, it would apply to those who provide services to the general public in return for consideration, but not to a church or a math; and in terms of the nature of relationship, it would apply to relationships of employment, or arms-length economic transactions, but not to intimate associations, or associations of a non-economic character.
Lastly, the most knotty issue is that of defining discrimination. It is now widely accepted that discrimination can take two forms: direct or indirect. Direct discrimination involves unfavourable 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. For instance, denying a house to a Muslim because of his or her religion is a case of direct discrimination on the basis of religion; on the other hand, termination of employment upon pregnancy is indirect discrimination on the basis of sex. Indirect discrimination often overlaps with (but is not identical to) pretext-based discrimination. For example, refusing to sell or let a house to non-vegetarians avoids falling foul of direct discrimination on the basis of caste or religion, but is often nothing more than an insidious attempt to make an end run around the legal prohibition. In cases of indirect or pretext-based discrimination, legislatures have imposed heavy burdens of justification in order to ensure that that the basic purpose of discrimination law is not subverted.
These sketchy suggestions are meant to serve as nothing more than a point of departure for a long overdue conversation about what a comprehensive anti-discrimination law, sensitive and alive to Indian conditions, might look like. Ultimately, it is important to remember two things: first, that we have long been an unequal society, where relations of power, domination and subordination have played themselves out not through the relationship between State and individual, but between groups leveraging the economy, the marketplace and society as tools of social exclusion; and secondly, there must always be a balance between the freedom of private choice, and the social goal of achieving an egalitarian, non-oppressive society. It is within this framework that an Indian anti-discrimination law, which is sorely needed, must find its form and utterance.
The author thanks Tarunabh Khaitan and Danish Sheikh for their inputs.
Gautam Bhatia is a Delhi-based lawyer and legal academic.