A continuing constitutional conversation: Locating Nitisha
| Date | 01 March 2022 |
| DOI | 10.1177/13582291211070227 |
| Published date | 01 March 2022 |
| Subject Matter | Case Commentaries |
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 the constitutional 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
To continue reading
Request your trial