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Abstract

In March 2022, the Karnataka High Court in Resham v. State of Karnataka upheld a ban on the hijab in public educational institutions imposed by the then Bharatiya Janata Party (BJP) led state government. In doing so, the court endorsed the state’s supposed interest in preserving unity and fostering fraternity and also judged the case based on the nature of the religious practice under scrutiny. Sartorial uniformity was thus treated as an equalizer, where its sanctity was sought to be maintained at the expense of an access to education. The focus on discipline as a fundamental value to be protected was also evident in the Indian Supreme Court’s split verdict in Aishat Shifa v. State of Karnataka in October 2022, on the constitutionality of the ban. More important however was the language of argumentation that seemingly entrenched assumptions that were taken for granted and stated in a matter-of-fact manner, mainly on the contentions and contestations around the meaning of secularism and pluralism in India. My larger aim, following from these legal developments, is to lay out the problem space of constitutionalism in a plural and secular nation within the political conjuncture of the rise and consolidation of Hindu majoritarianism. I suggest that secularism and pluralism form (and have always formed) a dialectic, that has implications for its determination of meaning in constitutional politics and deliberation. This thesis attempts to explicate this dialectic. What does this mean for our fundamental presumptions about the constitutional order? By developing my conceptual and analytical categories, I suggest that the problem and challenge that confronts constitutionalism in India is the use of constitutionalism as a terrain of majoritarian politics. The co-production of secularism and pluralism as formative of a political community which is fundamentally antithetical to the Hindutva project, thus necessitates its appropriation as a discursive counter-strategy by the Hindu right. While this framework informs my broader understanding, I attempt to take this forward by drawing on a few cases and political moments empirically, and the hijab judgments more specifically.

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