It violates Articles 15(2) and 19(1)(g) of the Constitution.
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MUSLIM vendors resorted to closing their shops briefly to protest against the Karnataka High Court’s judgement in the hijab case. Soon after, posters stating that Muslim vendors should not be allotted stalls during certain temple festivals started cropping up in various areas of Karnataka, where the hijab controversy has led to communal tensions.
It started with the Kote Marikamba Jatra festival in Shivamogga, where leaders of Hindu right-wing organizations Bajrang Dal and Vishwa Hindu Parishad ensured that Muslim vendors were excluded from setting up shops. The boycott then spread to Muslim traders and vendors for the Hosa Margudi and Kollur Mookambika festivals in Udupi, the Bappandu Durgaparameshwari temple, the Puttur Mahalingeshwara temple in Dakshina Kannada district, and the Mangaladevi temple.
Also read: Hijab issue: BJP’s motive is to otherise Muslims, establish Hindu supremacy
Can the economic boycott be justified?
When the issue of the exclusion of non-Hindus from the temple fairs was raised in the Karnataka State Assembly on March 23, J. C. Madhuswamy, the state’s law minister, justified the exclusion by citing Rule 31(12) of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 2002, framed under the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997.
The enabling Act neither lays down any provision in this regard nor does it restrict or prohibit any non-Hindus from conducting their trade or business near temples. Any provision enabling temple authorities to do the same is also absent.
The Rule states that no property, including land, building, or site situated near a Hindu temple or institution, shall be leased to non-Hindus. Rule 31 lays down the term for which an immovable property that is owned by a Hindu religious institution may be leased. The Act, however, neither lays down any provision in this regard nor does it restrict or prohibit any non-Hindus from conducting their trade or business near temples. Any provision enabling temple authorities to do the same is also absent.
Ironically, Madhuswamy told the Press Trust of India that the government does not encourage such bans and if the people banning Muslim vendors from engaging in trade are put outside the temple premises, the government would take action. The temple authorities, however, have been pressured by right-wing groups to not allot stalls to the Muslim vendors.
Also read: Dissecting discrimination against Muslims
Relevant judicial precedent
In December last year, the Supreme Court had held that people of all faiths can participate in the auction of leases of the shops located in the Sri Bramaramba Mallikarjuna Swamy Temple in Kurnool, Andhra Pradesh as well as in the shopping complex.
Andhra Pradesh had, similarly, invoked Rule 4 2) and Rule 18 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Immovable Properties and Other Rights (other than Agricultural Lands) Leases and Licenses Rules, 2003. The Rule prohibited non-Hindus from any participation in the tender or auction of shops or acquiring leases or licenses to carry on business on any immovable property owned by the temple.
In December last year, the Supreme Court had held that people of all faiths could participate in the auction of leases of the shops located in a temple in Andhra Pradesh.
The Supreme Court held that the license-holders can neither be compelled to not participate in the auctions, nor be prohibited from allotting leases by the state. Further, the court directed that none of the vendors, tenants or shop-owners shall be barred from participating in the auction, or obtaining leases solely because of their religious beliefs.
Violation of Article 15(2) of the Constitution
The economic boycott may not necessarily violate Article 15(1) of the Constitution since the temple authorities are not State authorities and are not bound by the provision.
Article 15(2) of the Constitution, however, lays down a prohibition general in its nature and its application goes beyond the State. The provision expressly prohibits discrimination on the ground of religion, along with race, caste, sex, or place of birth. It further states that a citizen must not be ‘restricted’ from access to shops that are maintained out of State funds, whether wholly or partly, or is in use by the general public.
Therefore, the present economic boycott as well as calling for economic boycott violates non-discrimination guaranteed under Article 15(2) since it discriminates on the basis of religion.
Article 19(1)(g) and reasonable restriction
Article 19(1)(g) guarantees the right to practise any profession, or to carry on any occupation, trade, or business. Article 19(6), however, enables the State to make a law that imposes reasonable restrictions on the aforesaid right in the interest of the general public.
A reasonable restriction must be determined so from both procedural and substantive facets of the law. It is important to take into consideration the conditions of the trade and the nature of the business. Since these factors differ in each trade, it is impossible to lay down a generalised set of rules governing each trade.
In Chintaman Rao & Ors. vs. State of M.P. (1950), the Supreme Court laid down the test which determines whether a restriction is reasonable or not. The court observed that a restriction imposed must not be arbitrary or excessive in nature. ‘Reasonableness’ implies intelligence and deliberation, and legislation that invades the right arbitrarily or excessively cannot be said to have reasonableness, it reasoned.
It is hard to comprehend how restricting the right of Muslim vendors to participate in trade in temple fairs operates in the interest of the general public. The economic boycott, therefore, is both arbitrary and excessive, and imposed solely on the ground of the religion of the vendors.
It is hard to comprehend how restricting the right of Muslim vendors to participate in trade in temple fairs operates in the interest of the general public. The economic boycott, therefore, is both arbitrary and excessive, and imposed solely on the ground of the religion of the vendors. Further, Rule 31(12) of the Karnataka Rules, which is cited to justify the economic boycott, came into existence in 2002. Since then, Muslim vendors, or other non-Hindu vendors, have not been excluded from allotting stalls or setting-up shops.
According to the Supreme Court, a restriction can also lead to a prohibition if the mischief sought to be rectified requires total prohibition. The court noted that even though prohibition on carrying on a trade or profession can be imposed in the form of a regulatory measure, such prohibition must first go through a rigorous test of public interest.
Pramod Muthalik, founder of the Hindu right wing group Sri Ram Sene (SRS) recently said that the Sene intends to boycott all Muslims-run activities and not just the ones around temples. It wants to “force” Muslims to respect all rules and laws of the country. He further stated that Muslims are “unleashing tyranny” on Hindus by way of love jihad, economic domination, killing Hindu activists, and conversion.
It is imperative to take note of the prejudice, bigotry, and hatred that is the sole reason for the economic boycott of Muslim vendors from the temple fairs in Karnataka. No law or rule can justify it.
