Let us ask of ourselves what is the essence of free choice and would everyone desire to have the freedom to choose. Even the freedom not to make a choice would in effect be a fall out of the freedom to choose!
Would one not want to have the freedom to choose what to eat, the colors to wear, the educational institution to study in, the occupation to enter upon and the hobbies to pursue? Would it be acceptable for someone else to impose restrictions on where one can reside, who to fraternize with, the beliefs one holds, the contractual obligations one chooses to bind themselves unto? It is submitted that the framers of the Indian Constitution never intended that it's citizens ought not to retain their own identity. Even assuming that they did, in practice, multicultural societies cannot be brought into existence by a piece of legislation.
For all those who believe in the freedom to choose; the latest supreme court judgment passed on 15th April,2005. in the case of Gujarat Zoroastrian Cooperative Housing Society reported in jt. 2005 (4) SC 337, (i) passed by Their Lordships the Hon'ble Mr.Justice B.N.Agrawal & the Hon'ble Mr.P.K.Balasubramanyan (where the Hon'ble Supreme Court has held that discrimination on the grounds inter alia of religion is permissible in connection with membership to a co-operative housing society), is a resounding reinforcement of such beliefs.
The facts in brief of the said case are as under: -
(a) Certain land was acquired by the Government and allotted to a Society for construction of houses. Several persons belonging to the Parsi community joined together and establish a housing society (Appellant). The said Society in it's turn allotted plots to it's members. The Bye-laws of the said society clearly provided that a member can sell his share only to a person belonging to the Parsi Community, with the previous sanction of the Society.
(b) The second respondent's father, being a person qualified under the bye-laws was allowed membership to the said society. Subsequently, the property devolved upon the second respondent who obtained permission from the said Society for demolition of the existing structure and construction of residential flats to be sold only to persons belonging to Parsi community. However the second respondent did not act upon the proposal for several years. The said society filed a case before the Board of Nominees for injunction restraining the second respondent from making any construction or transferring the property without the permission of the Society, since it apprehended that the second respondent may sell the property in contravention of the bye-laws.
(c) The main issue for consideration was whether the society's bye-laws providing restrictions on the transfer of interest to any one other than a Parsi, was valid. Allowing the appeal and setting aside the orders of the authorities and the Judgment of the Hon'ble Bombay High Court, the Hon'ble Supreme Court held that when a person accepts membership of the society submitting himself to the bye-law and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior permission of the Society to a person qualified to be a member, it cannot be held to be an absolute restrain on alienation, offending Section 10 of Transfer of Property Act. Having submitted to the self imposed partial restriction the member cannot turn around later and question the same. The restriction on the transfer contained in the bye-laws was in the interest of the Society and it's members and consistent with the object with which the society was formed. The Hon'ble Supreme Court accordingly set-aside the directions given by the Authorities to admit the third respondent as a member.
The main legal issues that arose for consideration in the abovementioned case are as follows:-
(a) Can a society be formed or if formed, membership in such society be confined to persons of a particular persuasion, religion or belief?
The Hon'ble Supreme Court was of the view that so long as the approved bye-law stands and the Act does not provide for invalidity of such a bye-law, it could not be held that the formation of such a society under the Act would be opposed to a public policy and consecutively liable to be declared void or the society directed to amend its basic bye law relating to qualification for membership. Thus, unless an amendment was brought to the co-operative societies Acts in the various states, it would be permissible to direct the societies to have bye-laws restricting membership based on its own criteria. It is true that in secular India it may be somewhat retrograde to conceive of cooperative societies confined to group of members or followers of a particular religion, a particular mode of life, a particular persuasion. However, 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.
(b) Can a citizen's freedom to contract be curtailed or curbed?
The Hon'ble Supreme Court was of the view that every citizen has the right to enforce their fundamental rights enshrined in Part-II of the Indian Constitution. However, such a freedom cannot be extended to challenge their rights to enter into a contract. Under the Indian Contract Act, a person has the freedom to enter into a contract. The bye-laws of a cooperative society setting out the terms of membership to it, is a contract entered into by a person when he seeks to become a member of that society. Even the formation of the society is based on a contract. Section 23 of the contract Act provides that where consideration and object are not lawful the contract would be void. For Section 23 to apply it must be forbidden by law or it must be of such a nature that a Court would regard it as opposed to public policy. If we proceed on the basic premises that public policy in relation to a cooperative society is to be looked for within the four corners of the Act, the very enactment under which the very society is formed, a bye-law (that does not militate against any of the provisions of the Act), cannot be held to be opposed to public policy unless it is immoral or offends public order. It cannot be said that a person bargaining for membership in a society or for coming together with those of his ilk to form a society with the objects as set out in the bye-laws subscribed to by him, can be considered to be doing anything immoral or against public order.
(c) Can a member of a society (exercising his right of association), take up the stand that the restriction he had placed on himself by entering into a contract with the society, is in violation of his fundamental right of freedom of movement, trade or right to settle in any part of the country?
The Hon'ble Supreme Court was of the view that it would be a fallacy to consider, in the context of cooperative societies, that the surrendering of an absolute right by a citizen who becomes a member of that society, could subsequently be challenged by that member by taking up the position, that the restriction he had placed on himself by entering into the compact, is in violation of his fundamental right of freedom of movement or of trade. He exercises his right of association when he becomes a member of a society by entering into a contract with others regulating his conduct vis-a-vis the society, the members constituting it, and submerging his rights in the common right to be enjoyed by all and he is really exercising his right of association guaranteed by Article 19(1)(c) of the Constitution of India in that process. His rights merge in the rights of the society and are controlled by the Act and the bye-laws of the society. It is true that in the activities of a society, as envisaged by the bye-laws, the society may acquire rights or incur obligations which may be enforced. But the incurring of such an obligation or the acquiring of such a right cannot stand in the way of the right to form an association guaranteed by Article 19(1) (c) of the Constitution available to the members of the society who formed themselves into the appellant society.
(d) After having entered into a contract with the society - agreeing on restrictions as to free transferability, would it thereafter be open to challenge the validity of that contract?
Public places of worship also have their own rules and regulations regarding admission into the congregation. For instance, many Hindu temples openly state that admission is reserved only to members of that persuasion. Moreover this is narrowed down further that several such places of worship actively deter, if not categorically prohibit, women or those belonging to the so-called lower castes from entering. Clubs, sporting bodies and other organizations have exclusionary rights of admission, which include everything from dress codes to professions practiced or languages spoken. But perhaps where the right of freedom of association is most frequently and openly exercised in India is on the hugely popular matrimonial columns of newspapers. Almost without exception all the ads clearly stipulate the caste of the candidate sought. Are caste based matrimonial ads violative of the Constitution as liberal arguments would have it? Certainly not. They are, in fact, a public testament of the freedom of choice which is the bedrock of a democratic society.
The Hon'ble Supreme Court was of the view that respondent no.2 became a member of the Society of his own volition acquiring the rights and incurring the obligations imposed by the approved by-laws of the Society. It is not open to respondent no.2 to approach the authorities for relieving him of his obligations attaching to the acquisition of membership in the Society. It is also not open to the authorities under the Act to relieve him of his obligations in the guise of entering a finding that discrimination on the basis of the religion or sex is taboo under the Constitution in the context of Part III thereof.
(e) Have the provisions of section 10 of the transfer of property act (applying to a case where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest in the property), been violated?
Section 10 of the Transfer of Property Act relieves a transferee, of immoveable Property, from an absolute restraint placed on his right to deal with the property in his capacity as an owner thereof. As per Section 10, a condition restraining alienation would be void. The Section applies to a case where property is transferred subject to acondition or limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restraint must be an absolute restraint. The restriction, if any, is a self-imposed restriction. It is difficult to postulate that such a qualified freedom to transfer a property accepted by a person voluntarily, would attract Section 10 of the Act. Moreover, it is not as if it is an absolute restraint on alienation. Respondent No.2 has the right to transfer the property to a person who is qualified to be a member of the society as per it's bye-laws. At best, it is a partial restraint on alienation. It cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. He has voluntarily submerged his rights in that of the society.
In conclusion, it can be stated it is open to a community to try to preserve it's 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 it's object of advancement of the community. It is also open to the members of that community who came together to form the cooperative society, to prescribe that members of that community for whose benefit the society was formed, alone could aspire to be members of that society. So long as the law stands today, it would thus be impermissible to curtail a society's freedom to choose. As a consequence of this, it would follow that a person who has dominion over certain property, can then exercise his freedom to choose the manner of dispensation of that property. If one has the money to purchase a vehicle and does so, without breaking any laws, that person will have the right to choose whom to take for a ride and whom to exclude. It would not be abhorrent if the owner of that vehicle chose only to take persons of his own religion for a ride in his car. An individual not only has the right to property but along with it the right to freedom of association. The right of the citizen to associate with whoever he or she chooses necessarily includes the obverse; the right to disassociate from those not of his or her choosing, whatever be the basis of that choice. The right to freedom of association is parallel to the right of freedom of expression and also the essence of free choice.
Authored by Sunita J. Masani......... [September, 2005]