The right to choose your neighbors

Can Parsi Zoroastrians have a co-operative society of their own in which membership (and therefore flats) would be given only to Parsi Zoroastrians? "Yes,” says a recent judgment of the Supreme Court.

The recent Supreme Court decision in the Zoroastrian Co-operative Housing Society Limited and another v. District Registrar Co-operative Societies and others: 2005 (4) Scale 156, has been the subject of public debate in which ill informed people have ex­pressed irrelevant views on the undesirability of the growth of unhealthy communalism and so on.

Before the Supreme Court the question was not one of oppos­ing or supporting the growth of unhealthy communalism.

The only question before the Supreme Court was: "Is there any law which prohibits a co-operative society from restricting its membership to particular persons of a particular religion or community?”

The answer of the Supreme Court was: "No. At present there is no law which prohibits a co-operative society from restricting its membership to persons of a particular religion or community.”

Now at the outset it must be remembered that the Supreme Court itself has said repeatedly [and most recently in 2004 (10) S.C.C. at pg 70] that a "Judicial decision is an authority only for what it actually decided — It is not an authority for any implication, assumption or inference derived from the judgment.”

Earlier decisions of the Gujarat, Madhya Pradesh and Bombay High Courts had held that the government authorities had the right to prohibit the operation of co-operative society byelaws which required that only Parsi Zoroastrians could become members of a particular society.

The question is of course not confined to Parsi Zoroast­rians. It is of a wider importance and applies to co-operative societies of all communities.

Earlier decisions of the Gujarat, Bombay and Madhya Pradesh High Courts proceeded on the basis that if any provision was made in the byelaws of a co-operative society, like confining member­ship in a society to a caste, religion or group, the same would be opposed to public policy and hence unenforceable.

These Gujarat, Bombay and Madhya Pradesh High Courts’ deci­sions illustrate a tendency on the part of some judges to allow (generally unconsciously) their personal preferences to affect their judicial pronouncements.

The result is that instead of impartially interpreting and applying the law to the facts of the case before them, such judges tend to overstep their judicial powers and indulge in what one may call judicial legislation.

Such judges overstep the boundary between judicial powers and legislative powers. They fail to realize that in their zeal to promote what they believe is a good cause they adopt an over-activist approach encroaching upon the legislative sphere.

Judicial activism when carried too far requires to be judi­cially controlled. This is what was done by the Supreme Court in the Zoroastrian Co-operative Housing Society’s case.

As the Supreme Court said much earlier in Punjab Land Deve­lopment v. Presiding Officer : 1990(2) U.J.(SC)313 "In Duport Steels v. Sirs (1980) 1 WLR 142, the House of Lords observed that there was a difference between applying the law and making it, and that judges ought to avoid becoming involved in controversial social issues, since this might affect their reputation for impartiality.”

Contrary to the earlier decisions of the Gujarat, Bombay and Madhya Pradesh High Courts, the Supreme Court has now decided that "it is open to the members of the Parsi community 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 object of advancement of the community.

"It is also open to the members of that community, to come together to form a co-operative society and to prescribe that members of that community for whose benefit the society was formed alone could aspire to be members of that society.”

The judgment of the Supreme Court in the Zoroastrian Co-operative Housing Society’s case is a long and interesting one.

Briefly analyzed, the Supreme Court judgment says:

"Membership in a co-operative society only brings about a con­tractual relationship among the members forming it, subject of course to the relevant Act and the rules... The freedom to con­tract available to a citizen cannot be curtailed or curbed rely­ing on the fundamental rights enshrined in Part III of the Con­stitution of India against State action.”

As they are at present, the relevant Acts and rules do not prohibit any byelaw providing that the qualification for member­ship should be that the applicant belongs to a particular commun­ity or religion.

"Unless appropriate amendments are brought in the various Co-operative Societies Acts incorporating a policy 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 one in terms of its byelaws.”

The Supreme Court also said, "It is true that in secular India it may be somewhat retrograde to conceive of co-operative societies confined to a group of members or followers of a particular religion, a particular mode of life or a particular persuasion. But that is different from saying that you cannot have a co-operative society confined to persons of a particular persuasion, belief, trade, way of life or a religion.”

For these reasons the Supreme Court ultimately held: "So long as this position holds, we are of the view that it is not possible, especially for a registrar who is an authority under The Co-operative Societies Act, to direct a co-operative society to admit as a member, a person who does not qualify to be a member as per the byelaws registered under the Act. Nor can a registrar in terms of Section 14 of the Act direct a society to amend its byelaws since it could not be said that such an amendment, as directed in this case is necessary or desirable in the interests of the appellant Society.”

Some people have welcomed this Supreme Court decision in the Zoroastrian Co-operative Housing Society case. Others have been critical of it. Unless the law is changed, the final judicial word has now been spoken.

Therefore, on the law as it is now, byelaws of co-operative societies providing that only members of a particular community or religion are qualified to become members of that society and to be allotted residential or non-residential premises therein are valid and enforceable and cannot be directed to be changed.

The decision will be welcomed by those who believe that the welfare and growth of any particular religious or communal group (especially of a minority group like the Parsis) would be furthered and safeguarded by members of that group residing among people belonging to the same religion or community.

On the other hand, people who are not concerned with, or are critical of communal or religious groups wishing to reside to­gether may seek to have the effect of the judgment nullified by changes being made in the law.

As the old song put it "Que sera sera — whatever will be, will be.” However, even if the Supreme Court judgment is rendered ineffective by changes being made in the Co-operative Societies Acts and rules, it would be worth bearing in mind firstly that such changes may themselves be legally challengeable and secondly that there are other lawful ways which can be usefully explored by which small communities like the Parsis can try to ensure that they can continue to stay together in harmony among themselves and with friendliness towards fellow citizens of all communi­ties.

A solicitor of the Bombay High Court and an advocate of the Supreme Court, Nadir Modi fought to uphold the legality of the covenants restricting the use of over 100 buildings in the Mancherji Joshi Parsi Colony, Dadar, for Parsi Zoroastrians. Founder chairman of Young Collegians Zoroastrian Association, he is chairman of the Athornan Mandal and a trustee of the H. B. Wadia Atas Bahram.