Can Cooperative Housing Societies Deny Membership to Apartment Owners? — A Constitutional and Legal Analysis

Abstract

It must be mentioned that there is an important regulatory role of cooperative housing societies in regulating the residential community in the urban environment of India. In particular, cooperative housing societies may regulate membership and discipline of the residents. However, sometimes conflicts arise when the society decides to refuse to give membership to individuals without any specific justification, such as religious beliefs, food preferences, marital status, and so forth. Hence, it becomes imperative from the legal perspective to define whether the cooperative housing societies are free to take certain decisions and use their power or these activities are limited according to the Constitution principles of equality and non-discrimination.[1]

This paper aims to analyze the legal aspects of management by cooperative housing societies, examine court precedents, and investigate the relationship between freedom of association and constitutional morality.

 

Introduction

 

Rapid urbanization and population growth have resulted in an increased need for cooperative housing societies in India. Cooperative societies in metropolitan cities that depend on apartments as the preferred mode of accommodation act as managing agencies overseeing the upkeep and regulation of such housing complexes. Although these cooperative societies are supposed to foster collective well-being and peaceful coexistence, disputes sometimes arise when they refuse admission to certain apartment owners or purchasers.

Individuals seeking membership from these societies have been denied based on reasons such as religion, caste, diet, profession, marital status, and other social affiliations. This phenomenon has prompted much discussion about discrimination in housing and the extent to which cooperative societies are entitled to act autonomously in choosing their members. The legal aspect surrounding the debate is that such societies are afforded constitutional protection based on the freedom to associate, and individuals, on the other hand, have similar protections through equality and dignity.[2]

Several legal judgments in Indian courts regarding the topic will be examined in the article. The article attempts to evaluate whether there are any limits to the power of cooperative housing societies to reject application for membership among apartment owners.

1. Legal Framework Governing Cooperative Housing Societies

THE said act provides certain procedures regarding the eligibility for membership, transfer of shares and grounds on which membership may be rejected. Societies have the power to make bye-laws but such bye-laws should be in harmony with the statues and the public policy.

Another relevant legislation governing the societies working in different states is the Multi-State Cooperative Societies Act, 2002[3] that emphasizes democratic control and member participation. Some of the cooperative principles include equality, openness and voluntary membership.

Constitutional Provisions are also important in the context of this topic

Article 15 of the Constitution of India[4] protects against discrimination with respect to religion, caste, sex, or place of birth. Similarly, Article 21 of the Constitution of India[5] has been interpreted in such a way that there is a right to life with dignity and a right to shelter included in it.

It must be mentioned that there is an important regulatory role of cooperative housing societies in regulating the residential community in the urban environment of India. In particular, cooperative housing societies may regulate membership and discipline of the residents. However, sometimes conflicts arise when the society decides to refuse to give membership to individuals without any specific justification, such as religious beliefs, food preferences, marital status, and so forth. Hence, it becomes imperative from the legal perspective to define whether the cooperative housing societies are free to take certain decisions and use their power or these activities are limited according to the Constitution principles of equality and non-discrimination.

The cooperative housing societies in India are regulated by the legislation of each state in India and enjoy various rights to admit members, manage properties, and settle disputes. Some of the legislation related to this topic include Maharashtra Cooperative Societies Act of 1960[6] that applies to many housing societies in metro cities of India. According to Article 14 of the Indian Constitution[7], all citizens have equal protection under the law, meaning that no action could be considered as arbitrary.

However, cooperative societies tend to refer to Article 19(1)(c) of the Constitution of India,[8] which provides for the fundamental right to freedom of association. Societies maintain that this provision provides for the freedom to associate as well as determine the terms of such association in order to retain the character of the same.

The constitutional conundrum, thus, consists of reconciling the right of cooperative societies to retain their independence while at the same time ensuring that individual rights of equality are not compromised.

1. Judicial Interpretations and Landmark Decisions

The Indian judiciary has been very instrumental in determining the extent of powers enjoyed by the cooperative housing societies. There have been various cases involving conflicting issues regarding these societies. One of the most important cases in this regard is the one of Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies.[9] In this particular case, a restriction had been placed upon membership in the cooperative housing society whereby membership was only confined to the Parsi community.  Whereas a non-Parsi purchaser applied for membership, the society rejected the application based on its bye-laws. The Supreme Court validated the bye-laws of the society and accepted the independence of a cooperative society as regards to determination of its membership. It was ruled that associations voluntarily constituted by persons having common objects must be permitted to maintain their existence as well as composition.

Compulsion to accept such persons in society who are opposed to the bye-laws would be violation of the liberty of association enshrined in Article 19(1)(c)[10]. But it should be noted that this judgment received severe criticism from various quarters. They opine that the said judgment indirectly upholds discrimination and does not take into consideration the equality principles laid down in our Constitution.

The other significant case which may be mentioned here is Damyanti Naranga v. Union of India.[11] In this case it was ruled that just as there is a right to constitute a society there is also a right to retain the association with those whom one has chosen to associate with. It must, however, be pointed out that cooperative societies do not have arbitrary powers in respect of their membership. In State of U.P. v. C.O.D. Chheoki Employees’ Cooperative Society Ltd., [12]the Court emphasized that fairness and reasonableness were crucial in any matter connected with membership and governance.

It can be seen from the recent judgments of courts that the problem of housing discrimination has become a matter of great concern. Various High Courts have taken an objection to the discriminatory attitude shown by cooperatives in connection with religion, food habits, or marital status when these affect constitutional morality and respect for individuals.

1. Critical Analysis

Discrimination by cooperative housing societies in denying membership to persons poses a complex question of balancing between individual autonomy and constitutional principles. On the one hand, it is clear that the societies are entitled to organize their activities; but on the other hand, there could be a tendency to discriminate against persons because of the unlimited discretion left with these societies.

First of all, discrimination leads to social segregation, which means that the members of cooperative societies will remain separate communities because of certain religious, caste, or personal factors.  Secondly, another issue here is that there is a dearth of anti-housing discrimination laws in India.  Whereas there are several other countries like the USA and UK that have enacted legislation prohibiting any discrimination in housing, India does not have any laws pertaining to the issue. For example, the Fair Housing Act of the United States[13] prohibits any discrimination whatsoever on the basis of race, color, religion, sex, or national origin in the course of any transaction relating to housing. On the other hand, the obligation to ensure equality in terms of housing and accommodation comes about in the case of the United Kingdom from the provisions of the Equality Act.[14]

Victims of discrimination in housing in India may turn to the Constitution and some statutory provisions, which could offer inadequate solutions to the private discriminatory practice. The legal void thus leaves too much room for discretionary action by the societies without proper scrutiny. The rationale used by the Court in Zoroastrian Cooperative Housing Society is also questionable from the perspective of constitutional morality.[15] Constitutional morality now tends towards inclusiveness, dignity, and substantive equality. Thus, permitting societies to deny membership to individuals purely on the basis of identity could be seen as inconsistent with these emerging principles of constitutionalism. However, taking away their independence could pose a few problems.

 

1. Recent Developments and Controversies

 

The problem of housing discrimination has gained increasing prominence in public consciousness, as people have become aware of housing issues through media reports.

Several cases where housing has been denied to individuals on the basis of religion, gender, marital status, inter-faith relations, and food habits have brought to attention the problem of discrimination in residential societies.

Some state governments, especially in Maharashtra, have introduced guidelines advising against discriminatory decisions taken by cooperative housing societies without proper cause and justification.

There has also been increased judicial interest in addressing housing discrimination as an issue of constitutional morality and human dignity[16]. While the independence of housing societies continues to be recognised, there is a growing trend toward harmonising such autonomy with constitutional values.

At the same time, civil society organisations and legal experts have argued for anti-discrimination legislation in relation to housing discrimination in India. The intention here would be to formulate anti-discrimination laws, which will protect individuals from discrimination while also leaving open the scope for independent decision-making by housing societies.

This debate throws up the constitutional challenge of maintaining a balance between private autonomy and constitutional requirements in situations affecting basic rights.

Suggestions and Way Forward

India needs a proper legislation that addresses issues related to discrimination in housing and admissions. Legislation needs to be enacted by parliament that prevents discrimination in admission by making denial of such housing illegal. Proper guidelines need to be issued concerning denial of membership by cooperative societies. Such denial should be based on reasonable grounds that can be sustained legally. There is also a need for strict monitoring by registrar of cooperative societies to ensure observance of both constitutional principles and statutory laws. Proper procedures to address grievances need to be put in place.

Judiciary can contribute to this process by creating jurisprudence that promotes compatibility between associational freedom and constitutional principles. There is a need for judicial protection of individual rights against discriminatory practices under the guise of association. Public education and social sensitization should also take place. Societies need to appreciate the importance of having a diverse membership since it enhances democratic principles.

Conclusion

The issue of denying membership in cooperative housing societies remains one that is very complex and controversial. Although cooperative societies enjoy the power to regulate their internal matters, such power should not be used in a way that creates a discrimination or social exclusion environment.

In the past, judicial pronouncements in India have tended to be protective of the independence of voluntary associations.[17] Nevertheless, there is increasing need for greater consideration of equality, dignity, and inclusiveness under modern constitutional values. Absent anti-discrimination laws, there is an urgent need for a proper balancing between the right of free association and individual rights to equality and fair access to housing[18]. Cooperative housing societies cannot be islands that operate outside the framework of constitutional values. As India undergoes urbanization and diversity, the time has come for the law to move away from prejudice and social exclusion and towards equality and human dignity.

 

 

 

BIBLIOGRAPHY

TABLE OF CASES

1. Chameli Singh v. State of U.P., (1996) 2 S.C.C. 549 (India).
2. Damyanti Naranga v. Union of India, (1971) 1 S.C.C. 678 (India).
3. P. Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 3 (India).
4. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 S.C.C. 608 (India).
5. Indian Young Lawyers Ass’n v. State of Kerala, (2019) 11 S.C.C. 1 (India).
6. Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).
7. Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
8. Shelley v. Kraemer, 334 U.S. 1 (1948).
9. State of U.P. v. C.O.D. Chheoki Emps.’ Coop. Soc’y Ltd., (1997) 3 S.C.C. 681 (India).
10. Zoroastrian Coop. Hous. Soc’y Ltd. v. Dist. Registrar, Coop. Soc’ys. (Urban), (2005) 5 S.C.C. 632 (India).

CONSTITUTIONAL PROVISIONS

1. INDIA CONST. art. 14.
2. INDIA CONST. art. 15.
3. INDIA CONST. art. 19(1)(c).
4. INDIA CONST. art. 21.
5. INDIA CONST. art. 38.
6. INDIA CONST. art. 39A.

STATUTES

Indian Statutes

1. Maharashtra Cooperative Societies Act, No. 24 of 1961, INDIA CODE (1961).
2. Multi-State Cooperative Societies Act, No. 39 of 2002, INDIA CODE (2002).
3. Real Estate (Regulation and Development) Act, No. 16 of 2016, INDIA CODE (2016).
4. Registration Act, No. 16 of 1908, INDIA CODE (1908).
5. Transfer of Property Act, No. 4 of 1882, INDIA CODE (1882).

Foreign Statutes

1. Equality Act 2010, c. 15 (UK).
2. Fair Housing Act, 42 U.S.C. §§ 3601–3619 (1968).

BOOKS

1. Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford Univ. Press 1966).
2. P. Jain, Indian Constitutional Law (8th ed. 2018).
3. Madhav Khosla, The Indian Constitution (Oxford Univ. Press 2012).
4. Marc Galanter, Competing Equalities: Law and the Backward Classes in India (Oxford Univ. Press 1984).
5. Upendra Baxi, The Future of Human Rights (Oxford Univ. Press 3d ed. 2008).

JOURNAL ARTICLES

1. Gautam Bhatia, Freedom of Association and the Constitution, 8 NUJS L. Rev. 1 (2015).
2. Upendra Baxi, The Constitutional Quicksands of Human Rights, 40 JILI 1 (1998).
3. Tarunabh Khaitan, Equality: Legislative Review under Article 14, 1 NUJS L. Rev. 131 (2008).
4. Vishaka N. Desai, Housing Discrimination and Constitutional Morality in India, 12 Indian J. Const. L. 45 (2020).

ONLINE SOURCES

1. Ministry of Cooperation, Government of India, https://cooperation.gov.in
2. SCC Online, https://www.scconline.com
3. Indian Kanoon, https://indiankanoon.org
4. PRS Legislative Research, https://prsindia.org
5. United States Department of Housing and Urban Development, https://www.hud.gov

 

 

 

 

[1] (INDIA CONST. arts. 14, 15, 21.)

[2] (INDIA CONST. art. 19(1)(c).)

[3] Multi-State Cooperative Societies Act, No. 39 of 2002, INDIA CODE (2002).

[4] INDIA CONST. art. 15.

[5] INDIA CONST. art. 21.

[6] Maharashtra Cooperative Societies Act, No. 24 of 1961, INDIA CODE (1961).

[7] INDIA CONST. art. 14.

[8] INDIA CONST. art. 19(1)(c).

[9] Zoroastrian Coop. Hous. Soc’y Ltd. v. Dist. Registrar, Coop. Soc’ys. (Urban), (2005) 5 S.C.C. 632 (India).

[10] INDIA CONST. art. 19(1)(c).

[11] Damyanti Naranga v. Union of India, (1971) 1 S.C.C. 678 (India).

[12] State of U.P. v. C.O.D. Chheoki Emps.’ Coop. Soc’y Ltd., (1997) 3 S.C.C. 681 (India).

[13] Fair Housing Act, 42 U.S.C. §§ 3601–3619 (1968).

[14] Equality Act 2010, c. 15 (UK).

[15] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).

[16] Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India)

[17] INDIA CONST. art. 19(1)(c).

[18] INDIA CONST. arts. 14, 15, 21.