A continuing constitutional conversation: Locating Nitisha
| Author | Gauri Pillai |
| DOI | 10.1177/13582291211070227 |
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
Case Commentary
International Journal of
Discrimination and the Law
2022, Vol. 22(1) 87–101
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13582291211070227
journals.sagepub.com/home/jdi
A continuing constitutional
conversation: Locating Nitisha
Gauri Pillai
Abstract
In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the
gender neutral hiring procedure adoptedby the Indian Army indirectly discriminated against
women officers by disproportionately excluding them from promotion. This effect was
experienced due to systemic discrimination against women built into the appointment
criteria. To redress systemic discrimination, the State was required not only to abstain from
direct or indirect discrimination but also to positively act to bring in structural change. Nitisha
makes significant contributions to developing theconstitutional understanding of non-
discrimination. It identifies the essential nature of discrimination as systemic rather than
individualistic and sets out how systemic discrimination operates and can be proved. In
recognising indirect discrimination, it lays down a two-stage test to establish it. Crucially, it
affirmatively holds, for the first time, that the non-discrimination guarantee c an compel State
actionin redressing systemicdiscrimination.Nitisha leaves certain questions unanswered: the
test for justifying indirect discrimination, the doctrinal reading of the non-discrimination
guarantee and the legitimacy of using comparative law. However, seeing Nitisha as one
chapter of a constitutional conversation allows us to appreciate its contributions while
holding the space open for future judicial efforts at constitutional meaning-making.
Keywords
non-discrimination, India, systemic discrimination, indirect discrimination, positive duties,
comparativism
Introduction
Nitisha v Union of India
1
broke new ground within India’s constitutional jurisprudence on
non-discrimination by endorsing a systemic understanding of discrimination, recognising
Institution Faculty of Law, University of Oxford, Oxford, UK
Corresponding author:
Gauri Pillai, Institution Faculty of Law, University of Oxford, St Cross Road, Oxford OX1 3UL, UK.
Email: gauri.pillai@hertford.ox.ac.uk
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting