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.
Gonsalves : To me, the most important issue in this case, whether the practice of wearing the hijab is essential or not. Once the practice is established, the practice is covered by Article 25 completely. HC said No. We want to address that.
Justice Gupta : We will next hear Mr.Colin Gonsalves, Mr.Dushyant Dave and nobody else.
Bench rises for lunch break. Hearing to resume at 2 PM.
Alam : The GO is a clear restriction, Govt is saying no education with Hijab, this can be made only way of law.
Alam concludes.
Justice Dhulia : We would have appreciated if you had given a record of drop out rate among Muslim girls.
Alam : I will show during the course of the day.
Alam refers to reports of National Statistical Commission on Muslim girls education - it has highest percentage of girls not enrolled in education 61.5%
Justice Gupta : It says over 50% Hindus, 50% Christians girls not enrolled, so the difference is not a shocking difference.
"access to professional education is not a governmental largesse. Instead, the State has an affirmative obligation to facilitate access to education, at all levels" - Alam quotes from Farzana Butool judgment.
Alam : Justice Dhulia asked yesterday if there is any data (on drop outs). These are documents from Govt of India, judicial notice can be taken of. The Ministry of Affairs publishes study, action taken reports.
Alam refers to reports of Ministry of Minority Affairs on Muslim girls education.
Alam requests bench to read 3 paras from St.Xavier's case (para 146-148) -
Alam : The State under Article 21 has an affirmative duty to facilitate education.
Quotes from judgment in Farzana Butool case
Alam quotes from St.Xavier's case - If the State compels the surrender of fundamental right to grant a favour, it is inconceivable.