The Karnataka government is citing the law to justify banning Muslim traders from temple fairs in the state — but legal experts believe it will not stand the test of the courts because the move is legally flawed, and have questioned the BJP-ruled government for allowing the boycott of a section of citizens in violation of their rights. As right-wing organisations evict Muslim traders from temple fairs and demand that non-Hindu traders and vendors not be allowed to carry out businesses during annual temple fairs and religious events in Karnataka, state Law Minister JC Madhuswamy defended the boycott and said that their demands have legal backing. But do they really?
In the state Assembly, on March 24, Karnataka Law Minister said that Rule 31(12) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 2002 states that no property including land, building or site, situated near the institution, shall be leased to non-Hindus. Right-wing activists from Hindu groups have also submitted memoranda to officials in different parts of the state, citing rules framed in 2002 to the 1997 Act. “Citing these rules (under the Act), posters and banners have been put up," Madhuswamy said, defending the boycott. “If any obstruction is being caused to them outside the premises of a religious place, it will be rectified and action will be taken. If things are happening (other community vendors trading) within the premises, they will have to follow the rules," he said.
But, a close look at the law shows that the Karnataka government’s justification is on a weak footing — the Supreme Court and the Karnataka High Court have in the past stayed this rule and allowed Muslim traders to lease shops in and around temple premises.
Rule 31(12) of the Hindu Religious Institutions and Charitable Endowments Act, 2002 is in place for immovable property located near a Hindu institution and is not applicable to moveable stalls, stores and shops. This rule is only for the leasing of shops in and around the temple premises, and does not apply to licences that shopkeepers get to run these stalls at temple festivals or fairs along the procession of the deity.
“(It is) a deliberate misinterpretation of the provision, as Rule 31 only deals with long-term leases of immovable 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,” PUCL Karnataka has said in the letter to Karnataka Chief Minister Basavaraj Bommai and Karnataka Governor Thawar Chand Gehlot.
Rule 31 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 2002 (the parent legislation is from 1997) talks about the terms of the lease and renewal of immovable property of a notified institution that comes under the Act. Sub-rule 12 under this Rule 31 says that any property — land, building, or area — which is located near a Hindu institution or temple shall not be leased to non-Hindus. Now, stalls and vendor carts at temple fairs and festivals are not immovable property, they are temporary establishments that traders set up for the duration of the fair. The rule of leasing under the Act cannot be applied to temporary stalls that are set up after obtaining a licence.
“In law, there is a distinction between a lease and a licence,” explains Bengaluru-based advocate Arvind Narain, who is also the President of the PUCL in Karnataka. “A lease is akin to a permanent transfer of rights as far as property is concerned. So the concept of sub-leasing exists. A licence is a temporary transfer of property. You do not acquire any ownership rights under a licence.”
It would be wrong to quote this law to justify the boycott demands, he adds.
“A jatre (fair) is a temporary phenomenon. It lasts only a certain period of time. There is no permanent transfer of rights of the stalls. So you can see the misuse of the provision because a stall is not taken on lease, it will require a licence. And when they say you are prohibited under this law from running these temporary stalls, can you imagine the range of and the number of leases required? The Karnataka government is playing a very invidious role here. And more importantly, they are forgetting the issue of the Constitution. Constitution prohibits discrimination,” Narain adds.
Legal precedents show that Karnataka’s argument may not stand up in court, either. In December 2021, the Supreme Court had stayed a similar rule in Andhra Pradesh and said that non-Hindus cannot be excluded from auctions to lease out shops within the premises of a temple on the grounds of their religion. The bench of Justice DY Chandrachud and Justice AS Bopanna was hearing a similar case — non-Hindus were barred from participating in the tender/auction process for shops in the premises of the Mallikarjuna Swamy temple in Kurnool and the shopping complex there. The Supreme Court granted an interim stay and held that non-Hindus should not be excluded from the auction process. Non-Hindu shopkeepers may not be allowed to sell liquor or gambling in the shops, but they cannot be disallowed from selling objects like flowers, bamboo or children’s toys, the SC said. “None of the tenants or shop holders shall be excluded from participating in the auction or from the grant of leases solely on the ground of their religion,” the Supreme Court held in December 2021.
In 2016 too, this rule did not stand in court. The Karnataka High Court in April 2016 allowed Muslim traders to participate in the public auction for leasing shops owned by the temple. In this case, Muslim shopkeepers had contested that the Charitable Endowments Act provides that the property situated near the institution shall not be leased out to non-Hindus, but that the concerned shops were not in or near the temple. They also added that their shops had been leased by non-Hindus till date and there had not been any issue so far. The court then allowed the petitioner Muslim shopkeepers to participate in the public auction.
This shows that the law in itself may not be able to sustain itself if challenged in court, especially when there is precedence where Muslim traders have been setting up stalls in previous fairs and festivals.
Till the hijab row came into focus, there had been no issue with Muslim traders at these fairs in Karnataka. But last week, for the first time in many years, Muslim traders were barred from setting up stalls during the Suggi Maari puje at the Maari Gudi temple in Udupi district’s Kaup town, which was held on March 22-23.
The sudden boycott can be traced as a response to Muslim traders and shopkeepers in areas of the state of Karnataka downing shutters on March 17 against the Karnataka High Court’s order on the hijab row. During temple festivals held earlier, members of Hindutva groups in coastal Karnataka used to mark stalls run by Hindus by placing a saffron flag on the stalls. This time, ahead of the annual Kaup Marigudi festival in Karnataka’s Udupi district, emboldened by tacit support from the BJP, Hindu outfits put up banners that said that non-Hindu vendors and traders should not be allowed entry.
Not only does the justification of the Karnataka government fail on legal grounds, it is also dangerous and unconstitutional to single out Muslim traders from temple fairs and only give a ‘fig leaf of legitimacy’ to divisive boycott calls, say legal experts. In separate letters to the Karnataka government, the People's Union for Civil Liberties (PUCL) in Karnataka and the All India Lawyers’ Association For Justice (AILAJ) have called for an end to the ‘dangerous unconstitutional economic boycott of Muslim businesses’ on the grounds that it violates the rights of Muslim traders and that the law cited by the minister cannot be used to impose a ban on them.
“By permitting only Hindu businesses to vend and by discriminating against Muslim businesses, what is being caused and perpetuated is an economic boycott against the Muslim community,” the All India Lawyers’ Association For Justice (AILAJ) has said in its letter to the Chief Minister as well as the Commissioner for Hindu Religious Institutions and Charitable Endowments. “The denial of the right of the Muslim community to vend their business in equal footing with other communities is a denial of their equal citizenship, effectively curtailing their equal participation in society,” the letter said.
The Karnataka government’s interpretation of the law “opens up a dangerous can of worms,” the letter added. The AILAJ said that the definition of ‘Hindu’ for the purposes of the Act excludes Buddhists, Sikhs and Jains and therefore, all persons who are Muslims, Christians, Buddhists, Sikhs and Jains would be excluded from vending around Hindu temples.
“These actions, differentiating between Hindu business and Muslim business and discriminating against the latter, is a form of social apartheid, intended to separate Muslims from mainstream society and ostracise them,” the AILAJ has said, asking the government to immediately allow Muslim traders to set up stalls at the fairs and demanding action against pressurising temple authorities to impose a boycott.
AILAJ and PUCL have asked the Karnataka government to also clarify the statements made by authorities ‘erroneously’ interpreting the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997.