Karnataka: Is the Ban on Muslim Vendors Near Hindu Festivals & Temples Legal?

This discrimination could violate Article 15(2) of the Constitution and is not actually justified by any state law.

Karnataka Hindu Janajagruti Samiti wants non-Hindu shopkeepers removed from temple premises and nearby. 

(Photo: The Quint)

It began with the Kote Marikamba Jatra in Shivamogga, where the organising committee surrendered to pressure from the Bharatiya Janata Party (BJP) and Hindu right-wing groups and refused to allot stalls to Muslim vendors during the festival, despite having done so in the past.

Then came bans on Muslim vendors and traders in Udupi for the Hosa Margudi and Kollur Mookambika temple fairs, then at the Bappandu Durgaparameshwari temple, Mangaladevi temple, and Puttur Mahalingeshwara temple in Dakshina Kannada district.

Muslim traders in many places had briefly closed their shops in protest against the Karnataka High Court's verdict in the hijab case. Posters suddenly cropped up in areas of Karnataka where communal tensions had been simmering over the hijab controversy, saying permission to run stalls during the festivals should not be given to the Muslims.

Now the Hindu Janajagruti Samiti has asked the government to oust non-Hindu shopkeepers from around the Sri Anjaneya temple in Bengaluru, citing a state law which had been referred to by the Karnataka law minister in a discussion in the Karnataka Assembly on Wednesday, 23 March.

Karnataka Law Minister JC Madhuswamy had sought to justify the posters banning Muslim vendors by citing a little-known law and its rules, saying:

"While framing rules to Karnataka Hindu Religious Institutions and Charitable Endowments Act in 2002, Rule 12 states that no property including land, building or site situated near the institution shall be leased to non-Hindus. Citing these rules, posters and banners have been put up."

But is any of this really legal?

Can non-Hindu traders actually be banned from setting up stalls during festivals according to this state law?

And don't any such rules fall foul of Article 15 of the Constitution, which prohibits discrimination on the basis of religion?

What Does the Karnataka Hindu Religious Institutions and Charitable Endowments Act & Its Rules Say?

The Karnataka Hindu Religious Institutions and Charitable Endowments Act was originally drafted in 1997 but came into force in 2001. The law soon attracted controversy and the Karnataka High Court stayed its operation in 2006 because of certain clauses, which had to be removed before it could actually operate.

There is no clause in the act itself which either prohibits non-Hindus from operating shops or stalls in or near temples, or authorises temple authorities to create such prohibitions.

The Rules under the act, that is, the secondary legislation to deal with how the Act would operate, were first created by the state government in 2002, and saw significant amendments in 2012.

It is from these rules that the scope for some degree of confusion over this issue arises.

Contrary to what the Karnataka law minister said, it is not Rule 12 which says anything about non-Hindus being allowed to trade: Rule 12 only deals with appointment of temple servants and Archaks.

However, Rule 31, sub-clause 12, does say that "no property including land, building or sites situated near the institution shall be leased out to non-Hindus." Rule 31 deals with the terms of leases of the immoveable property owned by a Hindu religious institution notified under the act.

But does this mean that Muslim vendors cannot be allowed to open stalls during Hindu festivals?

Senior advocate Chander Uday Singh says no, because Rule 31 only deals with long-term leases of immoveable property owned by a temple (up to 30 years for land, and five years for shops and buildings).

It does not deal with the short-term licences which would be used to allot stalls or spaces to vendors during a festival.

Indeed, there is a specific rule dealing with the conduct of these 'Jathras,' that is, temple fairs, Rule 40-D, which says nothing about non-Hindus. Rule 40-D prescribes the way in which the right of collecting fees from activities during these festivals may be allotted by auction or tender to the highest bidder.

This rule was inserted in 2012, and for the last 10 years, Muslim traders have faced no reported difficulties in being allotted stalls at the festivals. Rule 31, which has been in place since 2002, has never been used in 20 years to ban Muslim vendors from operating stalls at these festivals either.

Thus, while the Hindu Janajagruti Samiti might have a point when it comes to shops operated by non-Hindus situated near the Sri Anjaneya temple in Bengaluru, the temples banning vendors/traders from temple fairs cannot point to the act or the rules to justify their actions.

Even when it comes the issue of non-Hindu shops near the Sri Anjaneya temple, the rules only prohibit leases of properties owned by the temple to non-Hindus. The Samiti has no right to have non-Hindus ousted from shops not owned by the temple.

Are the Temple Authorities Violating Article 15(2) of the Constitution?

Just because the temple authorities banning Muslim vendors from fairs cannot justify their actions based on the act or the rules, doesn't mean they are necessarily doing anything illegal.

As they are not state authorities, they are not bound by the broad anti-discrimination clause in Article 15(1) of the Constitution, which says: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."

Nonetheless, Article 15 does also prohibit 'horizontal discrimination,' that is, discrimination by citizens against each other, in sub-clause 2. However, this 'horizontal discrimination' clause is more restricted than the prohibition on the State, with its wording going like this:

"No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to: (a) access to shops, public restaurants, hotels and palaces of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public."

Going strictly by this wording of Article 15(2), one might argue that it does not prohibit temple authorities from restricting Muslims from setting up stalls for Hindu festivals.

However, as the process of allotting these stalls is a commercial one, with vendors submitting bids, it may be possible to argue that discriminating purely on the basis of religion does in fact violate Article 15(2).

"This move is in Violation of Article 15(2) because if you look at the history of the framing of the Constitution, the word 'shops' has to be understood within the context of the provision as an anti-boycott provision," constitutional scholar and lawyer Gautam Bhatia told The Quint.

"It prohibits people from excluding others from economic life through boycotts based on religion, caste and so on," he argues, before noting that this "was also upheld by the Supreme Court in IMA vs Union of India, where they held that the provision applies to all kinds of services."

In Bhatia's book, The Transformative Constitution, he refers to the IMA case, decided by the Supreme Court in 2011, in more detail. The apex court there, when considering what the scope of the term 'shop' should be, had referred to BR Ambedkar's speech in the Constituent Assembly on this issue:

"To define the word 'shop' in the most generic term one can think of is to state that 'shop' is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service... I should like to point out therefore that the word 'shop' used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to."

In the IMA case, the Supreme Court used this test to hold that even a private educational institution could be considered a 'shop' in terms of Article 15(2).

In the temple fair controversy, given the commercial nature of the stall-allocation process, it is possible to see how Ambedkar's formulation of the term 'shops,' and adopted by the Supreme Court in the IMA case, could also apply.

At the same time, it should be noted that this Article 15(2) argument is not guaranteed to succeed, if taken up in court, as other legal experts note.

There is no ruling which directly says that the process for allocation of stalls in fairs like this would fall within the framework of a 'shop,' so the argument would be considered entirely afresh on its merits.