“Stay in close contact”

The brief write-up "Stay in close contact” (Events and Personali­ties, Par-siana, May 7, 2005) refers to the recent Supreme Court decision regarding the Zoroastrian Co-operative Housing Society and highlights views expressed in The Times of India from time to time on the subject. The judgment needs to be analyzed and explained in its application to members of the Parsi community. Each co-operative society is governed by the law of the State concerned.

The bye-laws of the Zoroastrian Cooperative Housing Society (the Society) provided that the qualification for becoming a member in the Society was that the person should be a Parsi and that the transfer of the share held by him in the Society should have the previous sanction of the committee of the Society. The Society thus confined its membership to those of the Parsi community. Member­ship in the Society is open membership. The Society cannot thus refuse admission to membership to a Parsi duly qualified under the provisions of the Act, rules and bye-laws of the Society. Further a member may sell his flat only to a Parsi duly qualified to be a member of the Society.

In April 2005, the Supreme Court delivered a path-breaking judgment of great importance to members of the Parsi community in relation to a co-operative housing society holding that the Society (initially registered under the Bombay Co-operative Societies Act, 1925 subsequently regulated by the Gujarat Co-operative Societies Act, 1961 on the reorganization of the States) had the right to insist that the immovable property held by it and the flats constructed thereon have to be dealt by its members only in terms of the bye-laws of the Society and assigned, either wholly or in parts, only to persons qualified to be members of the Society in terms of its bye-laws.

In the absence of any provision in the Act to the effect that no society shall be formed, or if formed, membership in no society shall be confined to persons of a particular persuasion, religion, belief or region, it could not be said that a society would be disentitled to refuse membership to a person who is not duly qualified to be a member in terms of its bye-laws.

The Supreme Court further held that it is open to the Parsi community, a minority which did not claim that status at the time when the Constitution was debated in the Constituent Assembly, to try to preserve its culture and way of life and in that process to work for the advancement of members of that community by ena­bling them to acquire membership in a society and allotment of lands or buildings in one’s capacity as a member of that society to preserve its objects of advancement of the Parsi community.

It is nowhere laid down in the law that a cooperative housing society cannot confine its membership to the people of the same community or religion. Such a society can thus confine its membership to people of the same community or religion. The Society is therefore entitled to refuse membership to any person who is not duly qualified under its bye-laws. This also applies to sale of the property. An existing member can sell his flat only to those qualified to be members of the Society.

Societies based on religious denomination, political ideology, food aptitudes, (vegetarians and non-vegetarians), etc are well-known throughout the country. Public places of worship have their own rules and regulations regarding admission into the congregations. For example, non-Parsis are not admitted into Parsi fire-temples, agiaries and atash behrams. Some Hindu temples also openly state that admission is reserved only to members of that persuasion. Clubs, sporting bodies, labor unions and other organizations have their own rules regarding admission, dress codes, professions practiced, languages spoken, etc. Political parties are freely formed associations of people who share ideologies, caste and class backgrounds and aspirations. All this represents the right of freedom of association guaranteed by the Constitution and is permissible in law.

The Supreme Court judgment upholds the fundamental principle on which all truly democratic societies are based namely the citizen’s home is his castle. He has not only the right to prop­erty but also along with it the right to form an association guar­anteed by article 19(1) (c) of the Constitution of India. This right implies that persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association and to disassociate from those not of their choice, whatever be the basis of that choice.

RUSTOM S. GAE

New Delhi