Dr Rao VBJ Chelikani
During the 19th and 20th centuries when common people wanted to have a share in the governance, electing a few representatives to rule at central and state levels was considered adequate. Having accomplished it, the political institutions in the Western European countries have been evolving along with the changing times. What is certain, to-day in India that the democratic spirit is well ingrained in the psyche of an average Indian, though not as much as that is desirable after seventy years of democratic experience. But, the same evolution is not reflected in the institutions inscribed in the Constitution since it follows a 3-tier polity of Union, State and Local Governments which is the classical structure of a federal state. Now, in the 21st century, in addition to those who are elected once in five years, there is a need and scope for all the residents to participate in the governance in all aspects and at all levels. There is a strong aspiration of the modern citizen seeking more empowerment, and further democratization of the society in all its aspects. To meet the aspirations of the citizens for more democracy, we should wish that governance should occur at a still lower level and closer to the people. The governments and the regulatory bodies should acknowledge the right of self-determination to the urban communities of families who elect their volunteers to govern them, and who also have a vested interest in their communities.
In addition to those who are elected once in five years, there is a need and scope for all the residents to participate in the governance in all aspects and at all levels. There is a strong aspiration of the modern citizen seeking more empowerment, and further democratization of the society in all its aspects. To meet the aspirations of the citizens for more democracy, we should wish that governance should occur at a still lower level and closer to the people.
- The Principle of Subsidiarity:
In a society where we do not want an excessive concentration of power, especially political power, the principle of subsidiarity is to be adopted. According to it, whatever functions can be done at a closer body, need not be performed by a higher body. We fought pacifically for more than 30 years against the British to get power to govern ourselves in a semi-federal system. We took another 40 years to recognize the rural and urban local bodies as the third tier of our policy. However, in spite of constitutional recognition, it has not been effectively implemented. a) Whereas the distribution of power between the union and the state governments was done by the Constitution under the State List, the Union List and the Concurrent List, the transfer of power between the state government and the local self-governments is to be done by the state legislatures. Article 243W provides the devolution of 18 functions to the urban local bodies in the Twelfth Schedule of the Constitution. b). The National Finance Commission is entitled to take measures to augment the finances of the state government for supplementing the resources of the local bodies, it is to be effectively done based on the recommendations of the State Finance Commission. But, the state government or the ruling political party is always and ever anxious to take up its welfare schemes and use all the finances on them instead of sharing them with the local bodies. c). As a follow-up, the local MLAs, MLCs and the MPs intervene in the distribution of the benefits and use the district administrative departmental machinery to dictate all the local decisions. d). Often, the state departments are forming their own local committees for developmental activities with other political activists which are not in the local bodies, as parallel committees.
Hence, to remedy the present deficiency, one solution that can be suggested is to add directly the present list of the functions to be devolved to the local bodies to the Seventh Schedule of the Constitution, in which case they would become mandatory.
- A Ladder between the 3rd and 4th Tier:
The 3rd tier government is a government for a vast locality and in spite of dividing the same into several wards, the power is not decentralized enough to facilitate peoples’ direct participation. Though some efforts are being made by co-opting civil society activists into ward level governance by way of ward committees and area Sabhas, still, the representative at the ward level feels uncomfortable about his role. S/He is facing somebody else who also represents the civil society, while s/he is representing the political society. This is a situation where the stakeholder is representing himself in the local governance. While the elected representative remains a part of the political organization of the whole state, there is scope for further democratization of the 3rd tier by increasing the role of the civil society organizations, which are also representing the society in all other aspects than political governance. In order to further smoothen the relationship of working together between the corporator or the councilor and the local civil society representatives, it is being increasingly demanded that the political parties do not interfere in the third tier government. Here, there is a room for many more reforms. So far, the functioning of the local bodies has been criticized rightly for being unwieldy, uneconomical, even wasteful, unaccountable and in brief being very ineffective. One solution is to hand over some functions to the stake-holders themselves in a decentralized way. We should remember that during our struggle for independence, we claimed that self-government is always better than good government by outsiders. In the same lines of argument, self-rule is better than a rule by the representative.
- The Fourth Tier:
Now, we are identifying a fourth tier, which can be defined as a micro-urban community or a group of communities which function autonomously in a specified area by way of associational governance. These are mini-municipalities, while still being much bigger than many village Panchayats that are given the status of a separate local government. It is an area-government by the office-bearers of an association, as its representatives, and they keep changing every year. However, the interaction and cooperation of the members of the community would be direct, frequent, close and instant. They are expected to work jointly for the benefit of the community without undermining any one group or section of the community. It is for this reason that no office-bearer can afford to be in favour of a political party or caste or religion, as the urban community, unlike in the rural communities. They raise charges or user charges or maintenance costs and are immediately accountable and answerable. They act as per the budget approved by the community, itself. Such a status of a mini-municipality can be given to any grouping of any number of households depending upon their proximity as neighbours in terms of common needs. The number might vary anywhere from a community of seven families to some thousands. They form a community by the fact of choosing to live in a flat or tenement or house together with others with common management over a specific area.
- The Legal Status:
Among the micro-urban communities living in municipal towns, cities and metropolitan corporations, there is a new social institution, called the Resident Welfare Association (RWA). In the case of vertical apartment-buildings, forming an RWA is a statutory obligation, and in the case of a colony welfare association, which is horizontal, it is registered in order to make the lay-outs, planning plots, construction of tenements, and for setting up its own infrastructure, in areas which are assigned by the urban city development plan or the Master Plan. A majority of these apartment complexes bring together households anywhere from 7 to 50 with self-managed associations, while the rest, including the gated communities, have dedicated managers to attend to the needs of 200 to 300 families. At present, there is no uniform legal status, while a majority of them are registered either as cooperative housing societies or as associations on the principle of mutuality. These RWAs and their federations can be treated as micro-urban communities with distinct territorial jurisdiction with self-governance and autonomous infrastructure management, just as many industrial zones or Special Economic Zones (SEZ)s, are treated as mini-municipalities, and are not promoted as self-governing institutions, in India, on the contrary, we should give them more space to form and to operate as an integral part of the nations’ polity. Unlike the above three layers of governance by way of representation, this fourth tier functions with the direct participation of the empowered resident, which is self-governance par excellence. The objective is to make them micro-urban communities of strong human solidarity and intensively humanistic relations among those who are living together.
- Institutionalization of Democracy:
Even when absolute majorities are rare to obtain and even when the peoples’ representatives have not been performing up to the mark, even when the parties are not very credible to the people, still the political institutions are being manned satisfactorily, as the democratization of other institutions in the society, such as social, economic and cultural institutions is going on unabated. Democratization here means providing maximum opportunities for all the citizens and residents to run these institutions by themselves. It is called participatory democracy, in which the distinction and possible discrimination between the rulers and the ruled will not be there. It has two distinct advantages. Firstly, the residents learn to work together with all in team spirit without majoritarian attitudes, and secondly, they will try and find harmony while living with all, without discrimination against the minorities. Since at the end common consensus and unanimity is required for immediately implementing the decision-taken in matters of day-to-day activities by all. Usually, there is no room for indifference and non-cooperation. Whereas, in higher levels of representative democracy, the Opposition members remain critical in order to share power and privileges by obtaining numerical majorities to the exclusion of others. Jaya Prakash Narayan in his early political thesis on Communitarian Democracy had strongly emphasized upon this need for unanimity at the level of the community governance.
- Associational Autonomy:
The RWAs are not a part of the state structure but work with all the above three tiers of political governments. They represent the society and organize all other social, economic and cultural activities, and function autonomously in terms of defining their objectives, policy-making and plan of action. They are not there to implement any chart defined and granted by any external body. Their constitution and the memorandum of association provide the mandate and the authority.
It is a platform where residents of a small area with diverse views listen to each other and work together for the system of which they are a part. They cannot adopt authoritarian attitudes and ignore the minorities. They do not take ideological positions or express party views since they have a stake in the outcome of the negotiations and the concurrence of all. All members have an equal stake.
- Harmonization of the Private Spaces with the Common Spaces:
It is also time to devolve powers, functions and funds to still lower levels of governance, and strengthen the lower-level institutions, which are closer to the people, in such a way that it becomes self-governance. In any case, it is a value that the distinction between the public sphere and the private sphere of human activities should always be reduced, as much as possible, not only in the interests of transparency but also for harmony in human relations. This is an attempt to converge both the public and private interests.
In an apartment building, an individual’s ownership of a flat construed as ownership of only the air space upon which they sit. There is no material and solid property, except some blocs of concrete cement. Anything outside this unit is held in undivided ownership by the Association, which specifies the same in a legal document known as a Declaration and it is filed on record with the authorities, at the time of its creation. The association holds this property in trust on behalf of all the members as a group.
- Injecting new value into public assets:
This development or creation of mini-municipalities can serve the purpose of out-sourcing of several services in a big municipality to its residents, who are the stakeholders. In all the cases, the office bearers of the RWAs provide a considerable number of hours for the service of the community voluntarily without any cost to the community unlike the other three tiers of governance, whose administrative costs are usually very high and questionable. At this level, there is no scope for delays, since those who suffer are the stake-holders themselves. There is no scope for corruption since the interested parties themselves are the beneficiaries. The quality of works carried out would be maximum, since they cannot pass on the blame to others. Finally, there is no need for social audit.
This is also, at the same time, a way of privatization of public resources by injecting new value into public assets and thereby increasing the Gross Domestic Product, which is the capital base for the country. Governments that dare not admit the necessity to implement privatization as part of their reforms strategy can use this Fourth Tier as a mechanism to pursue a variety of objectives, both macroeconomic and fiscal. In other words, where the governments are unwilling or unable to continue to finance deficits in the public sector enterprises can hand over certain services like maintenance of parks, ponds, roads, lighting, security to the stake-holders themselves. In other words, we can say that the stake-holders are taking over these functions upon themselves.
- It is a form of Participatory democracy:
Though direct democracy has always been cherished as an ideal, it could not be very much institutionalized in the past, as it proved not practical even in those days of limited populations. However, in the Western democracies, at the level of the local governments, some measures of direct democracy are being practiced for a very long time. Some countries like Switzerland hold regular consultations mandatorily to make the laws of the land. Now, due to easy access to many information and communication technologies, it is possible to involve any number of people, any number of times and on any number of issues. Of late, many European nation-states are not only holding national level referendums, but they are also, besides, allowing the citizens to take the ‘initiative’ to propose policies as well as to re-call some functionaries and representatives.
While, in general, people in power who are groomed to consider themselves as the custodians of the welfare of the people are still, naturally reluctant to introduce direct consultations with all the citizens at all the three-tiers of the polity. Whereas, the RWAs at a still lower level, in smaller areas, hold regular consultations within a smaller number of communities on many local but complex issues. All the residents are being consulted on many matters and frequently by forming a WhatApp group, for example. They are mini-referendums, proceeded by random debate, and are succeeded by a decision of the Executive Committee of the Association. On important issues, they might even get the ratification by the General Assembly.
- Inspiring Social Democracy:
These institutions are being inspired by social democracy, as they are highly integrated with Social Media, which has greatly enhanced public space and involve more and more people. Many more people are speaking up on many more issues, which are far more important than politics. It is a platform for expressing all opposing views without counting the number in terms of majority and minority, which makes the criticism more genuine and unadulterated. They become open to new and innovative views of other constituents.
i). While at the level of representative assemblies, the elected representatives are expected to vote according to the wishes of their constituency, catering to a vast number of interests, which are often contradictory, and also following the instructions of the party whips, on the other hand, at the lower level of the institutions there would be non-Partisan attitudes and formal or informal voting.
ii). Decision-making at the local level is in the hands of those who are empowered by knowledge since they are being constantly, day and night, bombarded with information of all kinds, relevant or irrelevant and true or fake, from the social media. In the long term, the citizen is rained in the process of sifting the grain from the husk.
iii). In contemporary society, the role of the civil society activists is, actually increasing enormously. At the third-tier of governance, people with various schools of thought, and specifically the RWAs do participate as civil society organizations in the ward committee meetings and Area Sabhas as in AP and Telangana states. The civil society organizations are content to participate without having to form a political party and without having to seize power to advocate their views and opinions. A skilful politician can present the outcome as his own conclusion. Section 49 of the Telangana Panchayat Act 2018, now allows the civil society activists, like the senior citizens and women’s associations in the rural areas also to be co-opted as the members of the Standing Committees. The civil society organizations in the Western democracies participate up to national, supra-national and international consultations.
iv). Particularly at the local level governance should not be seen as the delivery of good local services but it is also about enhancing the quality of life and liberty of all residents, by creating space for more direct participation, civic dialogue, and by supporting environmentally sustainable local development. At this level, working for an inclusive economic and social growth becomes achievable objective.
- Devolution or Decentralization?
In all countries where culturally distinct communities or nationalities would like to live together, cooperation among them is defined in terms of power-sharing among different bodies in terms of devolution of powers among the federal units. However, in a welfare state, where empowerment of every citizen is the primordial, political power, wherever it is, even within a devolved unit of government cannot be exercised unilaterally from a single centre, even if it is democratically elected. Political power does not flow like water from top to bottom; on the other hand, when it is captured and concentrated, it tends to stagnate and smell bad. It is a basic human reflex that whoever possesses power does not share it with others, unless and otherwise compelled to do so. Hence, there are inherent dangers in our democracy being very huge and unwieldy, without further effective decentralization.
i). The present level of decentralization of functions has not been satisfactory, as the power is concentrated at the Centre. Consequently, the public funds are being spent largely for the sake of retaining power, resulting in inefficiency and wastage. However, the experience of the developed countries shows that further decentralization is necessary for better governance, inclusive growth and effective development. However, in the context of India, even if there is effective decentralization till the third tier, still these entities like the metropolitan cities, corporations and municipalities are bigger than several independent countries. The vast populations of lower, middle and higher middle classes in the towns and cities, who form already above 45% of the Indian population, are deprived of channels of direct participation in public affairs, except voting once in five years. With their educational, professional qualifications, experience and leisure, they can contribute much more to society. It is uncontested that in the policy-making, there is a rural bias in the governing political circles in the country. This is so even though four-fifths of the revenue for the governments comes from the urban areas. The urban civil society organizations are emerging as important players in governance issues as well as in development activities both in the urban and rural areas. Further, in modern India, the urban space is the most propitious for the expression of new lifestyles, promotion of humanistic relations and for fighting caste and creed discriminations. These are essential elements to build a knowledge-based, open and harmonious society. But, unfortunately, the urban citizens are under-represented in the governance in all the three tiers. In the rural areas, there is a Sarpanch for a few thousands of population and elected ward committee members for every two to three hundred people. Whereas in the urban areas, for example in Hyderabad there is a mayor for one crore population and one corporator for 75 thousand taxpayers. That is the reason why, an urban citizen is restless and explores ways and means to organize himself, spatially and socially at a still lower level and in micro-urban communities.
ii). Just as there is the distribution of powers between the union and the states, just as there is devolution of powers between the state and the local bodies, we need a fourth tier of grass-root self-governing micro-urban communities with participatory opportunities, if possible in linkage with the above three tiers. It will not only be a voting-citizen body but also a consumer-citizen body receiving services from not only from the above three tiers of government but also from their neighbors.
iii). A resident welfare association is essentially a group housing system in a layout spread over an area or built into floors of apartments in a building. Whether the houses are laid vertically or horizontally, these neighbourhood communities are registered under cooperative laws or as civil associations. They are entirely self-financed and self-managed.
a). Firstly, they work for the local area and infrastructure development, as pioneers regarding roads, lights, transport, drainage and drinking water. In many cases, they leave about 40% of their purchased land for common purposes and develop the area by bearing the initial costs. Later, they link up with the municipal services for waste management, local hygiene and sanitation and pay taxes and other developmental charges, not only as consumers or beneficiaries but also as stakeholders. The residents in the gated communities, on the other hand, cost nothing to the municipal body, as they pay for the installation of their infrastructure, and continue to pay for their maintenance. In Delhi, under the Bhagidari system, the state came forward to subsidies the local area development. Now, the RWAs in NOIDA function like small townships.
b). At present the RWAs, at least in AP and Telangana states participate in the municipal governance by constituting the ward committees along with other civil society organizations and by holding area Sabhas in each ward, which are meant of micro-planning, maintenance of local infrastructure, field coordination of the activities of different departments and for social audit. The effectiveness of this activity is conditioned by the availability of good cooperation from the local councilor or the corporator.
c). Independent of such a status, all the officials and commissioners hold regular consultative meetings and seek their partnership in almost all campaigns and projects. The urban forestry, horticulture, greenery, rain harvesting pits and parks, all are promoted only in cooperation with the representatives of the RWAs. Now, in the cause of Swatch Bharat, they are adopting a 20-point Residents Charter on 23rd November to make efforts keep the environment clean and green.
d). Another growing segment of the urban population is the senior citizens who are going to be about 20% of the population soon. Among them, the retired government officials figured prominently in the laying of the early group housing schemes and the forming of the cooperative societies in Delhi, Chennai, etc. In the Seventies. In general, thanks to their large and active presence, the management of the resident welfare associations has been very often prudent and conservative in the good sense of the term. The growing number of senior citizens associations also closely work with the RWAs and make the community halls a vibrant platform for the community activities and civic responsibilities.
e). The RWAs deal with the 1st and 2nd tier government department offices and institutions directly on matters of daily concern for their residents, like a police station, banks, hospitals, pension offices, schools, colleges, etc. to improve the quality of delivery of their services. Central and State Election Commissions, the Registrar General of the Census, etc. collaborate during their campaigns and make use of their community halls for carrying out their activities. Systematic Voter education programmes and Election Watch activities are carried out by the RWAs with great objectivity.
f). The RWAs also deal with the other residents who are economic actors with shops, workshops and offices, including the professionals like, doctors, lawyers, accountants, teachers, etc. who provide goods and services. In some cases, the RWA establish some kind of Community Pact in which both parties commit themselves to reconcile the individual interest with the collective interest. They observe the 1st of July as the Doctors Day as a platform for dialogue between the residents and local healthcare providers to reduce the medical expenditure and increase the access. In Hyderabad, it was to deal with the erratic TV cable operators that a few interested RWAs came together to form a federation. To fight against the air, water or sound pollutions affecting the health and serenity of the residents which are caused by the local establishments, the RWAs come together to deal with them effectively.
g). Above all, the RWAs promote a micro-urban community of caring and sharing, resembling an extended joint family or tribal clan, and it remains the most important mission of the resident welfare association, as its name indicates appropriately. They might start as open plot societies, flat owners’ associations, Tenants’ societies or residents’ welfare associations or Housing Board societies. They are the primary schools of democracy since they are managed by a team of office-bearers like the president, secretary, treasurer, etc. who are elected regularly from among themselves. They collect and spend funds for investment and maintenance of the common utilities. These residential communities are often called private governments in the USA, and they run small enterprises for the convenience of the local residents in China.
- The Flat Culture:
Urban living is an art of living together which is developing a distinct set of social values loaded with humanistic motivations. The urban vertical agglomerations where people live in flats are developing a distinct ‘flat culture’, whose origin lies in the Manhattan condominiums (condos) in New York. But, they have taken an extensive form to improve the quality of modern life in the residential towers in Singapore, Hong Kong, Macao and Taipei, etc. Mumbai and Kolkata have been at the forefront of the collective management of the apartment buildings. A new urban cosmopolitan and humanist culture which respects and seeks cooperation from everybody in the spirit of a team is dawning. Our distinct Indian model of ‘living together’ in apartments, which is extensively studied and experimented in Hyderabad for the past two decades is reproducing the spirit of the joint family styles of living, which we had enjoyed in the rural context.
Since the residents of these flats are educated, qualified and active adults, who take time off or employ their leisure to self-manage not only their building but also the surroundings. The fresh immigrants from the rural areas, very easily pick up the urban lifestyles, while living together in the neighbourhood with those who had been themselves, immigrants, long time ago. In urban areas, in the colonies, often there appears a phenomenon of living separately between the tenants and the owners. However, in the apartment-buildings, since the spatial conditions of living are identical, such distinctions are not visible.
In the absence of the joint-families, the children living in the same building, come together and cultivate social skills and women can express their social solidarity towards other women. The elders obtain care, attention and security, driving away their solitariness in the company of the families in the same corridor. The flat culture is a new mechanism for social transformations. They are the finest expression of urban civil society consensus and provide answers to many urban social problems, like insecurity, solitariness, adolescent depressions, youth suicides, abuse of drug substances, eve-teasing, etc.
The slum improvement in the urban areas cannot be done by outside agencies, who would consider them as a separate world. They have to be linked to the adjacent RWAs since they live side by side, inter-dependent. By definition, the slum-dwellers are not poor, but they have poor living conditions. Working and living with the residents in the RWAs, they would easily pick up the same middle-class lifestyles.
II. The above three tiers should make the following legislative and administrative measures to make this Fourth Tier more effective so that it deserves constitutional recognition.
- The State legislation and regulations regarding construction and property transfers should balance the powers, rights and duties of not only the builders, buyers, sellers, lenders but also of the registered RWAs.
- Alternative Dispute Resolution (ADR):
It is a preferable option to litigation to settle housing-related disputes within a community. Disputes starting from interpretation and enforcement of the governing documents and rules, allegations of improper maintenance or infringement of owners’ rights may be taken up. The Management should make the ADR procedure accessible to all residents, which are the most appropriate for the particular community’s needs towards resolving disputes, subject only to the law of the state and the bye-laws of the association. Several methods of ADR can be offered, such as mediation or binding or non-binding arbitration. The RWAs are to be encouraged to establish local ADR committees that are independent of the RWA management and identify only neutral persons for conducting mediation or arbitration. If the method of ADR selected requires payment of a fee, the resolution should address how the costs will be allocated between the parties.
- Disaster Management:
At the time of man-made emergencies or natural calamities, this human solidarity is particularly an absolute imperative in the urban areas. Each RWA is a miniature society composed of able-bodied as well as fragile persons, persons with technical and other professional skills to be geared up in times of emergencies and institutions that can cater to more than the habitual customers, clients or patients. Setting aside their personal or private interests, they can be mobilized for the rescue or relief of all, irrespective of their economic or social status. This can be done not anonymously but consciously and efficiently with customized services within the framework of an RWA.
At present, many municipalities in the country, do not have serious plans and preparation for disaster management. They do not have preparations even for flood relief which is a common occurrence. They can enter into an agreement for group insurance. The RWAs should and can set up a disaster management centre for the area for the disasters they are prone to, and train the volunteers. For this kind of activity too, they should be eligible for funds from local, state and central authorities.
- All ownership transfers of the houses or units and banks should obtain a No Objection certificate from the RWA before finalizing any transaction.
- RWAs should have power, in common interest to regulate all installation and operation of common utilities, solar panels, common electrical facilities, water supplies, security arrangements, etc.
- Since the RWAs have been bearing an ever-increasing burden of expenses in fulfilling the obligations historically paid for and performed by the municipalities, the funds that are being allocated to the local bodies on the pro-rata basis on the recommendations of the 14th Finance Commission should further be devolved to the RWAs.
- There should be the recognition that the common properties maintained by them, such as the open spaces and the infrastructures have no value or, at best, have a nominal value for property tax purposes since they are to the exclusive benefit of the members. Similarly, any portion of the services provided for private benefit, such as maintenance, insurance and replacement of private buildings or portions of buildings occupied exclusively by members of the association, recreational facilities, sustainable landscape practices whose use is restricted to members of the association, and maintenance of restricted grounds and accessory support areas such as parking lots and garages restricted to members of the associations should be excluded from the tax.
- Home-based businesses, rental incomes, commercial establishments and professional bodies in the area should be able to deduct any charges that they pay to the RWAs, from the taxes and cess that they pay to the local and state governments. The lending agencies should make finances and the secondary mortgage market accessible to the RWA on the strength of their common spaces and infrastructures.
III. The Legal Status of the Association
At present, the RWAs have the legal status of an association, whether they are statutorily obligatory or not. While a vast majority of them are registered as civil society organizations for all practical purposes, while the most organized ones being formed as the cooperative housing societies, with accessory welfare activities in favour of the residents. Though they are very thorough with property matters, they are not structured enough to carry out many other economic activities. However, they can match their potential only when they have the structure of a company with simplified procedures and without bureaucratic controls. They are social and economic cooperative societies in spirit, although they might not adopt all those measures that are experimented by the Kibbutzes in Israel. Nor are they comparable to China’s Residents’ Committee which is the lowest level of the administrative hierarchy, while remaining an important part of the political system. While adopting several democratic procedures in managing many commercial establishments within its area, and gaining income, the Residents’ Committees are very active. But, we cannot, however, estimate the degree of autonomy that they enjoy in their functioning, given the ramifications of the single ruling party, which is the National Communist Party of China.
In general, better legislation by the state government is necessary for more efficient functioning and overall welfare of the communities; for which the Federation of the RWAs can be consulted. As a result of the substantial increase in the number and variety of residential, commercial and mixed-use land developments and an increase in the number of consumers affected by various forms of ownership, the state government should actively pursue legislative and regulatory measures to create, control and oversee the RWAs. The state governmental regulations are often targeted to solve the perceived failings of a few builders- promoters of shared-housing. But, at present, a vast majority of the Associations are administering their duties and providing services to their residents in an efficient, customer-friendly and cost-conscious manner. We have in the country; already enough of experienced and knowledgeable associative practitioners and RWA office-bearers who can discover and offer improved statutory language or new legislation.
The RWAs can fulfil their important social mission, only when they have the right to enforce their bye-laws and collectively-voted decisions. The RWA management must be sensitive to those matters that may constitute any kind of discrimination, even if it seems to be normal or customary. Adopting and enforcing rules that disproportionately impact on children without a well-documented safety or public welfare basis, may be considered as discrimination. Before installing equipment for common use, the RWAs must ensure that they are appropriate to all ages, including children and elders.
In the name of fair-housing, the RWAs should be encouraged to supports the right of all individuals to be free from illegal discrimination based on race, color, religion, sex, familial status, national origin or disability. By free and open competition, the RW Associations or their estate managers can select the most cost-effective and innovative service providers to serve their residents. Hence, the RWAs should be empowered enough to enter into telecommunications or video programming contracts to gain the advantage of scale, while prohibiting anti-consumer provisions in vendor service contracts.
While an RWA is defined, in general as a social welfare organization, since it is primarily engaged in promoting the common good and general welfare of the people of the community, it must grant unrestricted access to the public to all the association-owned and maintained amenities. However, it is admitted for practical reasons that it may impose reasonable restrictions for access.
IV. Foreign Examples
In Canada, Band Councils are formed to cater to the needs of the Indigenous communities. These units include the dozens of more complex Indigenous societies that were traditionally organized as tribes or chiefdoms. Hundreds of them function as small Aboriginal municipalities and are managed by elected band councils according to the laws of the Indian Act of Canada. At the same time, these bands do not always coincide with the cultural and linguistic groupings of Aboriginal people.
In the USA, more than seven crores out of 36 crores of their population live in the RWAs and the number is projected to increase to 50% by 2040. A homeowners association (HOA), whose members are the unit owners, manages the condominium through a board of directors elected by the membership. They are diversely called “unit title”, “sectional title”, “common-hold”, “strata council”, or “tenant owner’s association”, “body corporate”, “Owners Corporation”, “Condominium Corporation” or “condominium association”. Condominiums may be found in both civil law and common law legal systems as it is purely a creation of statute both in India and the USA. The RWA assesses unit owners for the costs of maintaining the common areas, etc. And also decides how much each owner or resident should pay and has the legal power to collect that.
Similar concepts exist in Australia, Malaysia, New Zealand, and the Canadian province of British Columbia. They are called common-hold in the United Kingdom, sectional title in South Africa and ‘Co-Property’ in France. The Italian Condominio, the American or Canadian condo and condominium are the same. They all divided co-ownership. In France, the common areas of these properties are usually managed by a Syndicat de copropriété, or “co-property union”. In Latin American countries, they are called Propiedad Horizontal, meaning “horizontal property “where all owners have equal interest.
In conclusion, we can say that there is no better advocate of the role of the RWAs than the Union Minister for Housing and Urban Affairs, Mr. Hardeep Singh Puri, who in his inaugural speech at the 5th National conference of the RWAs in Mumbai on November 2017 said that he would put a proposal to his ministry to consider granting constitutional status to RWAs similar to that of the local self-government.
(This article was first carried in the compendium published to coincide with the 7th National Conference of RWAs held on November 16-17, 2019, at New Delhi.)