Discrimination in housing

THE malady is too deep and long-lasting to be cured by palliatives. The Centre plans to penalise improper discrimination in housing not by amending the law or enacting a new comprehensive Act but by framing rules to the Real Estate (Regulation and Development) Act, 2016. Worse, “it will desist from specifying the exact nature of discrimination”, an official of the Ministry of Housing and Urban Poverty Alleviation said ( The Indian Express , June 12, 2016). The rules, a purely executive function that can be deleted with ease, will be notified by October 31.

Against this background, the paper on “Discrimination in the rental housing market in Delhi, India”, by two scholars, Saugato Datta and Vikram Pathania, published in May, has not appeared a day too soon. It was prepared within a project of the United Nations University World Institute for Development Economics Research on “Discrimination and Affirmative Action: What have we learnt so far?” (WIDER Working Paper 2016/55). Saugato Datta is managing director, ideas42, a United States-based behavioural design laboratory. Vikram Pathania is with the University of Sussex, United Kingdom. They contributed an article to The Indian Express (June 4, 2016) that began thus: “Earlier this month, this newspaper reported that a Muslim IAS aspirant in Pune resorted to a ‘Hindu’ pseudonym to overcome the difficulty of obtaining paying-guest accommodation. Keen followers of the news from India, like us, recognise this as an example of periodic reports from cities across the country about the difficulties facing middle-class Muslims (not to mention the occasional film star) in the rental or property market. This should disturb anyone who believes that people’s access to important things like housing, schooling, or jobs should not be determined by things over which they have no control, such as which community they were born into.”

The 30-page Working Paper has a mass of statistics and a good bibliography. The abstract they prepared for the paper summarises their findings. “Using an audit experiment carried out on [one] of India’s largest real estate websites , we document striking variations between landlords’ treatment of upper-caste Hindus, Other Backward Castes, Scheduled Castes, and Muslims. We find strong evidence of discrimination against Muslim applicants, both in terms of probability of being contacted and the number of contacts, relative to upper-caste Hindu (UC) applicants, in the rental housing market in Delhi and its largest suburbs. While the probability that a landlord responds to an upper-caste applicant is 0.35, this is only 0.22 for a Muslim applicant. We also find suggestive evidence that when landlords respond to both UC and Muslim applicants, they call back the UC applicant sooner. Muslim applicants are especially disadvantaged when applying to rent one-bedroom houses; there is an additional 20 percentage points reduction in the probability of a callback. In contrast, we find no clear evidence that landlords are less likely to respond to Scheduled Castes and Other Backward Classes. However, our estimates may understate the true differentials in callback ratios as a result of our failure to perfectly link all callbacks to a listing ” (emphasis added throughout). The situation is, in fact, far worse.

They fairly acknowledge the difficulties in a project of this kind. Some cases reported last year and earlier tell their own tale: Zeeshan Ali Khan, a 22-year-old MBA graduate, was denied a job by a Mumbai firm because he was a Muslim. A 25-year-old public relations professional, Misbah Nayeem Qadir, employed by a consultancy firm, was forced to vacate a flat in Mumbai because she was a Muslim. She was told: “The builder does not allow Muslim tenants in the building.” Things are no different in Delhi. Muslims find it difficult to find a place to rent or buy in upscale localities. They are forced to confine themselves to Muslim ghettos. The information technology professional Azam Raza Zaidi was turned away twice when he went house-hunting in an upscale area and in a residential society in Noida. Farah Zeba, an MBA in finance, had a similar story to tell. She was bluntly told to look for a house in only “your Muslim areas”, like Jamia Nagar, when she went house-hunting. Alarmingly, according to Tasleem Ahmed Rehmani, president of the Muslim Political Council of India, there has been a sharp increase in this kind of discrimination in the last 30-odd years.

Interfaith couples face similar problems. Nor is religion the only ground for discrimination. Last May, a 27-year-old businessman was told that he could not buy a flat in Malad in Mumbai because he was a “Maharashtrian”. Single men and more so single women face similar problems. In many a case, denial of housing entails denial of employment, especially in cities such as Mumbai and New Delhi. People throw up their hands in despair as if to suggest that no redress for such complaints is possible. “It is a private affair between two persons, the prospective tenant or buyer and the owner of the property.” The state readily nods its head. Never too helpful, it will be less so under its present steward, the Rashtriya Swayamsewak Sangh pracharak Narendra Modi. The Gujarat pogrom, staged under his watch, was bad enough. The subsequent displacement of Muslims, for which he is also responsible, reveals his stripes glaringly.

However, if the executive and Parliament, in which the Bharatiya Janata Party (BJP) commands a massive majority, will not help substantially, the judiciary can; if only it will. The law can provide redress, provided judges exert themselves.

Article 25 of the Universal Declaration of Human Rights, adopted unanimously by the U.N. General Assembly on December 10, 1948, enjoins the U.N.’s members to “strive” to respect everyone’s right inter alia to “food, clothing, housing …”. Article 11 of the International Covenant on Economics, Social and Cultural Rights, adopted by the General Assembly on December 16, 1966, records that the state parties to the covenant “recognise the right of everyone to… housing, and to the continuous improvement of living conditions”. Article 16 binds the states to “submit… reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognised herein”. Submitted initially to the Secretary-General, the reports are sent to the U.N.’s Economic and Social Council for its examination. India ratified this covenant on May 27, 1979. In law, the covenant is a binding international treaty.

But there is something that is even more binding. It is the judicially enforceable fundamental right embodied in Article 21 of the Constitution of India, which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Thanks to a series of rulings by the Supreme Court over the past 30 years, it is now firmly, irrefutably established that the word “life” implies much more than mere animal existence. It means a decent, dignified existence which includes explicitly a roof over the head—the right to housing. Here are some of cases on the point:

1. Olga Tellis & Ors vs Bombay Municipal Corporation & Ors (1985) 3 Supreme Court Cases 545. This was a case concerning the pavement dwellers of Mumbai. Chief Justice Y.V. Chandrachud said: “The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of that, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life.”

But how is he to earn a livelihood unless he has a roof over his head? The judge added: “That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The writ petitions before us undoubtedly involve a question relating to dwelling houses, but they cannot be equated with a suit for the possession of a house by one private person against another.… To lose the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.”

The court therefore ordered: “Stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance.” This was 30 years ago. The court developed the law further.

2. Shantistar Builders vs Narayan Taotame & Ors (1990) 1 SCC 520 at page 527. The court held: “Basic needs of man have traditionally been accepted to be three—food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect—physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be a mud-built thatched house or a mud-built fireproof accommodation.”

3. Chameli Singh & Ors vs State of U.P. & Anr (1996) 2 SCC 549. The court said: “Article 25(1) of the Universal Declaration of Human Rights declares that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing, medical care and necessary social services’. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, 1966, laid down that state parties to the covenant recognise ‘the right to everyone to an adequate standard of living for himself and for his family including food, clothing, housing and to the continuous improvement of living conditions’. The state parties will take appropriate steps to ensure realisation of this right. In P.G. Gupta vs State of Gujarat , (1995) Sup. (2) SCC 182, a bench of three judges of this court considering the mandate of human right to shelter read it into Article 19(1)(e) and Article 21 of the Constitution of India to guarantee right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.…

“In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth…. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc. so as to have easy access to his daily avocation.… Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right . As is enjoined in the Directive Principles, the state should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting” (pages 553, 555-556).

4. J.P. Ravidas & Ors vs Navyuvak Harijan Utthapan Society Ltd (1996) 9 SCC 300: “Right to residence is a part of life enshrined in Article 21.”

5. Shiv Sagar Tiwari vs Union of India & Ors (1997) 1 SCC 444. The court remarked: “May we also observe that life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in urban areas is ordinarily at places away from one’s own home and hearth, shelter would be necessary—be it a house or even a pavement” (page 447).

Duty of the state & private individuals

These cases established that the citizen’s right to a dwelling implies necessarily a duty on the part of the state to provide a dwelling. The judges were realistic. They never ordered the state to construct dwellings , only not to deprive the citizen of one that is available to him. Prevention of such a deprivation is therefore judicially enforceable. All the more so if the refusal be any of the reprehensible and uncivilised grounds of race, religion, caste, gender etc.

There are times when a single judge alone makes observations that foreshadow the future development of the law. Justice K.K. Mathew’s observations in Sukhdev Singh vs Bhagatram Sardar Singh Rahivanshi ((1975) 1 SCC 421) belong to this class. Article 13(2) of the Constitution makes the Fundamental Rights enforceable only against “the state”, while Article 12 defines it to include the government, the legislature and all “local or other authorities” in India. In Ajay Hasia vs Khalid Mujib Sehrawardi ((1981) 1 SCC 722), the court gave the words “other authorities” a wide meaning. But well before that, in the Sukhdev Singh case, Justice Mathew gave them, perhaps, a wider meaning which is very relevant. He invoked the American concepts of “state action” and “business affected with public interest”. If they are valid in the haven of private enterprise, they are all the more so in India where the state is remiss and society suffers gross inequalities.

No building crops up without state aid in land, electricity, water and other amenities. Budgetary constraints prevent the state from constructing dwellings for all. Builders of homes, therefore, perform a public function and constitute “the state”.

Justice Mathew said: “The need to subject the power centres to the control of Constitution requires an expansion of the concept of state action. The historical trend in America of judicial decisions has been that of bringing more and more activity within the reach of the limitations of the Constitution: The next step would be to draw private governments into the tent of state action. This is not a particularly startling proposition, for a number of recent cases have shown that ‘the concept of private action must yield to a conception of State action where public functions are being performed’.”

Justice Harlan of the U.S. Supreme Court suggested imposition of civil liability for racial discrimination effected not only by the normal officers of the state but also by private individuals. Justice Mathew said: “He perceived state action in rules and practices of hotels, inns, taverns, railroads and places of amusement. He said that innkeepers are exercising a quasi-public employment and that law gives them special privileges and they are charged with certain duties and responsibilities to the public. As to public conveyances, he read the law of common carriers to require the performance of public duties and that no matter who is the agent or what is the agency, the function to be performed is that of state.… I think the later decisions of courts in the USA follow the lead given by Justice Harlan in his dissenting making an assessment whether the operation is private or savours of state action.”

Fuld J., held that even the conduct of private individuals would offend against the equal protection clause if the conduct appeared in an activity of public importance and if the state had accorded to the activity either the panoply of its authority or the weight of its power, interest and support. Justice Mathew added: “In America, corporations or associations, private in character but dealing with public rights, have already been held subject to constitutional standards.… Activities which are fundamental to the society are by definition too important not to be considered government function. This demands the delineation of a theory which requires government to provide all persons with all fundamentals of life and the determinations of aspects which are fundamental. The state today has an affirmative duty of seeing that all essentials of life are made available to all persons.… Assuming that indispensable functions are government functions, the problem remains of defining the line between fundamentals and non-fundamentals. The analogy of the doctrine of ‘business affected with a public interest’ immediately comes to mind.”

The rental of houses in the city of Washington during wartime was held to be a business affected with a public interest ( Block vs Hirsh 256 U.S. 135 (1921)). In Munn vs Illinois (94 U.S. 113 (1877)), Chief Justice Waite said: “Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is ‘affected with a public interest, it ceases to be juris private only’. This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris , I Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” This was said over a century ago.

This does not at all imply a takeover by the state, as Chief Justice William Howard Taft pointed out in Wolff Packing Co. vs Court of Industrial Relations (262 U.S. 522 (1923)). He said: “To say that a business is clothed with a public interest is not to determine what regulation may be permissible in view of the private rights of the owner. The extent to which an inn or a cab system may be regulated may differ widely from that allowable as to a railroad or other common carrier. It is not a matter of legislative discretion solely. It depends on the nature of the business, on the feature which touches the public, and on the abuses reasonably to be feared. To say that a business is clothed with a public interest is not to import that the public may take over its entire management and run it at the expense of the owner. The extent to which regulation may reasonably go varies with different kinds of business.”

What all this adds up to is the following:

1. The citizen is entitled as a fundamental right enforceable by the court to a roof over his head, a right to a dwelling.

2. Correspondingly, there is a duty on the part of the state to provide a dwelling to the citizen.

3. This, of course, is economically impossible. In the circumstances, the builder or the landlord conducts a “business affected with a public interest” since he performs a function which it is incumbent on the state to perform but which it cannot.

4. The public interest in housing therefore attracts the application of the Fundamental Rights.

5. The builder or landlord who denies accommodation on the ground of religion, caste or gender violates the fundamental right to equality (Article 14).

6. He can be sued.

7. The state can legislate to forbid such hostile discrimination, as the U.S. did. If the bearer of private enterprise can legislate, so can India.

Fair housing

The Fair Housing Act, also called Title VIII of the Civil Rights Act of 1968, is a U.S. federal legislation that protects individuals and families from discrimination in the sale, rental, financing or advertising of housing. The Fair Housing Act as amended in 1988 prohibits discrimination on the basis of race, colour, religion, sex, disability, family status and national origin. The Department of Housing and Urban Development (HUD) is charged with enforcing the Fair Housing Act, and the Office of Fair Housing and Equal Opportunity (FHEO) is charged with investigating complaints of discrimination filed with the HUD. The FHEO determines whether reasonable cause exists to believe that a discriminatory housing practice has occurred. If reasonable cause is found, a hearing is scheduled before a HUD administrative judge, who determines whether housing discrimination actually occurred. Individuals who discriminate may be fined, though such decisions are subject to review in the U.S. Court of Appeals.

The Act penalises “directing persons only to areas populated by those of similar race, colour, religion, or national origin when housing is available in other areas” and requiring applicants for services to meet different terms or conditions because of their race, colour, religion or national origin, for example, requiring larger rents or down payments from minority applicants.

In April 2016, the Maharashtra State Legislative Assembly passed the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. It seeks not only to criminalise a panchayat or any person who imposes or in any way enforces a social boycott but tries to take measures to prevent such social boycotts and gives relief to those being made victims of such social boycotts by providing them with compensation. It also places an obligation on the district administration to take proactive steps to prevent panchayats and other such bodies from issuing calls for social boycotts. It creates the post of a “social boycott prohibition officer” who is supposed to help the district administration and other officers in the discharge of their duties. It is a good analogy.

A comprehensive law is unlikely to be sponsored by the BJP regime. But the courts are not powerless to strike down improper discrimination in housing.