Justice Dhulia : What is essentially religious is essential to religion? That is what you are saying?
Kar AG : Not necessarily. What is protected under 25 is essential religious activity without which the religion itself cannot survive.
Kar AG : It may be a religious practice, as observed in SC judgment in Narayana Dikshitulu case, there is nothing a man can eat or wear without connecting with religion, the question is whether it is essential to religion and not essentially religious.
Kar AG : Another test is practice must be compelling..the argument made was that if the practice is not followed, you will be answerable to God after life. It is too general a test. The punishment must be prescribed in the text itself.
Kar AG : The second test is not following the practice will change in altering the nature of religion. For example, several women don't wear hijab. Several countries like France or Turkey have banned hijab, but Islam has not ceased.
Kar AG. : There are 5 tests - 1. Practice must be fundamental to religion and from time immemorial.
Justice Gupta : This may not be correct, they have referred to some verses...
Kar AG : There is no pleading it is fundamental to religion.
Kar AG refers to Ismail Farooqi case (which challenged acquisition of Babri Masjid land) - it was held offering of namaz in mosque is not an essential or integral practice.
Kar AG : The unanimity, the judicial trend seems to be, even while interpreting Islamic text, unless it is shown to be obligatory, you can't get the protection under Article 25.
Kar AG referring to another judgment which held polygamy was not an essential practice in Islam - in that case, a Muslim man having more than one wife challenged the restriction that a person with more than one marriage can't contest local elections.
Kar AG refers to Justice Nariman's judgment in Shayara Bano case- says Triple Talaq was held to be a non-essential practice, even assuming it falls under hadis or ijma
Kar AG : Every sura contained in Quran need not be obligatory.