Hijab Ban- Supreme Court Hearing-DAY-6- Live Updates

Gonsalves : High Court makes two big mistakes. One, it does not look at international judgments.

He refers to Kenyan judgment, calls it the "best precedent".

Gonsalves : The judgment does not look at international judgments. Says will only look at native cases. That view is not possible after Puttawamy judgment. Para 148 to 154. Courts are bound to consider unless there is something against Indian law.

Justice Gupta : But Mr.Gonsalves, in India we have the essential religious practice test, starting from 1954 Shirur Mutt case.

Gonsalves refers to the HC judgment portion which says adjudication must be based on native law.

Gonsalves : There are not many judgments in India which deal with cases of practices which are established but not essential.

Justice Dhulia : Does it mean that if you are not able to establish it as essential religious practice, then you can show any other right?

Gonsalves : If you can't show it is essential, there is no right- that's what the judges are saying.

Gonsalves : Court says if you can't show it is essential, there is no right. When we show the international cases, those were shut out.. you will find hardly any analyis or appreciation of these judgments. They are leading judgments of the world - South Africa, Kenya & Canada

Justice Dhulia : You haven't read the entire paragraph, this does not make sense. one essential line, you have not referred to that at all.

Gonsalves : I take it.. (reads again).

Gonsalves : Unfortunately, the High Court did not entertain that line of argument. HC was of the opinion that perhaps due to the emphasis given to essentiality, it does not look at any other right.

Gonsalves : The Kenyan court held that practice of hijab is ingrained in Islam. There are two Indian judgments, which also dealt with the practice - Bijoe Emmanuel and NCT of Delhi case. Even Indian judgment rely on practice of religion were raised.

Gonsalves : There are 3 international judgments read out before the HC. They dealt not with the essentiality of the practice, but with the practice.

Justice Gupta : Essential religious practice is a test developed by this Court.

Gonsalves : Correct.