ABSTRACT Nergesh Meerza is one of the earliest and most grave failures of the Supreme Court of In... more ABSTRACT Nergesh Meerza is one of the earliest and most grave failures of the Supreme Court of India in the field of discrimination law. In a single stroke, not only did the Court drive a wedge between sex and gender to protect only the former from discrimination, it also debarred indirect and intersectional discrimination from the purview of the Constitution. This article presents a feminist judgment in this case which dissents from the original decision of the Court. It develops a version of constitutional protection from sex discrimination which embodies gender, indirect and intersectional discrimination. Importantly, it ventures into the hitherto neglected field of non-discrimination under Articles 15(1) and 16(2), and develops a substantive test for violations. Nergesh Meerza makes clear that without such a test, judges inevitably fail to give any meaning to the non-discrimination guarantees as part of the equality code of the Constitution.
This case comment analyses the recent Kerala High Court decision in Cry of Life Society v Union o... more This case comment analyses the recent Kerala High Court decision in Cry of Life Society v Union of India, where a petition was filed to declare India's law on abortion unconstitutional for violating the right to life of the foetus. The High Court dismissed the petition, upholding the constitutionality of the legislation as protecting women's right to life. The author discusses the High Court's order, narrowing in on the right to life argument used by the Court, and the right to life argument that the Court missed. This analysis distils and responds to the 'shades of life' underlying abortion law in India.
International Journal of Discrimination and the Law, 2022
In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gend... more In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gender neutral hiring procedure adopted by 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 can co...
The Supreme Court directive in National Legal Services Authority v. Union of India brought in a t... more The Supreme Court directive in National Legal Services Authority v. Union of India brought in a transformative change by granting legal recognition to transgender1 persons. The Court issued several dicta, aiming to provide rights to transgender people and protect them from discrimination. The case marked a landmark shift in the legal regime, previously often characterized by the constant persecution and denial of rights to transgender persons. yet, there have been multiple records indicating that the Supreme Court orders have not been adequately implemented by the states in India. To monitor and record the progress in various states, the Centre for Health Law, Ethics and Technology, JGLS initiated the RTI mechanism. Eleven questions, modeled on the Supreme Court directives in the case, were asked to several departments of all states. The responses received have been presented in a tabular form,
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) seeks... more The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) seeks minimal court interference in the enforcement of an award. However, in exceptional circumstances, it grants courts power to refuse awards to preserve elements of sovereignty with the states. Consequently, states have interpreted the width of the exception as per their notions of public policy. The article analyses the Indian interpretation given to the ground of public policy in the light of violent shifts in the positions taken by the Supreme Court of India. The article critiques recent Supreme Court case law, for failure to preserve international comity and obligations under the NYC. Towards this, the first section of the article addresses the drastic broadening of the interpretation of public policy and as a corollary the increasing interference of courts in arbitration in recent times. The second section addresses the widening court interference from the perspective of the power to modify arbitral awards. The article traces the roots of the power through several court decisions and argues against such an assumption of power. It contrasts the power to modify arbitral awards against the partial setting aside of the award and concludes that it is only the latter mechanism that is permitted under the NYC.
On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received p... more On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval, bringing forth an entirely new regime with respect to juveniles above the age of sixteen, accused of committing heinous offences. The background for its introduction was set by the horrific rape of a young student in 2012. The government justified the law as a measure which would have a deterrent effect on potential juvenile offenders. However, the opponents argue that the law would defeat the objective of having a separate juvenile justice system, and would not serve the goal of deterrence. They instead suggest that efforts be expended in ensuring more effective implementation of the Juvenile Justice (Care and Protection) Act, 2000. The paper analyses the viability of the mechanism proposed by the new measure. It also evaluates the potency of the counter claim which proposes that the existing law be better implemented, and thereby examines the necessity for the in...
ABSTRACT Nergesh Meerza is one of the earliest and most grave failures of the Supreme Court of In... more ABSTRACT Nergesh Meerza is one of the earliest and most grave failures of the Supreme Court of India in the field of discrimination law. In a single stroke, not only did the Court drive a wedge between sex and gender to protect only the former from discrimination, it also debarred indirect and intersectional discrimination from the purview of the Constitution. This article presents a feminist judgment in this case which dissents from the original decision of the Court. It develops a version of constitutional protection from sex discrimination which embodies gender, indirect and intersectional discrimination. Importantly, it ventures into the hitherto neglected field of non-discrimination under Articles 15(1) and 16(2), and develops a substantive test for violations. Nergesh Meerza makes clear that without such a test, judges inevitably fail to give any meaning to the non-discrimination guarantees as part of the equality code of the Constitution.
This case comment analyses the recent Kerala High Court decision in Cry of Life Society v Union o... more This case comment analyses the recent Kerala High Court decision in Cry of Life Society v Union of India, where a petition was filed to declare India's law on abortion unconstitutional for violating the right to life of the foetus. The High Court dismissed the petition, upholding the constitutionality of the legislation as protecting women's right to life. The author discusses the High Court's order, narrowing in on the right to life argument used by the Court, and the right to life argument that the Court missed. This analysis distils and responds to the 'shades of life' underlying abortion law in India.
International Journal of Discrimination and the Law, 2022
In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gend... more In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gender neutral hiring procedure adopted by 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 can co...
The Supreme Court directive in National Legal Services Authority v. Union of India brought in a t... more The Supreme Court directive in National Legal Services Authority v. Union of India brought in a transformative change by granting legal recognition to transgender1 persons. The Court issued several dicta, aiming to provide rights to transgender people and protect them from discrimination. The case marked a landmark shift in the legal regime, previously often characterized by the constant persecution and denial of rights to transgender persons. yet, there have been multiple records indicating that the Supreme Court orders have not been adequately implemented by the states in India. To monitor and record the progress in various states, the Centre for Health Law, Ethics and Technology, JGLS initiated the RTI mechanism. Eleven questions, modeled on the Supreme Court directives in the case, were asked to several departments of all states. The responses received have been presented in a tabular form,
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) seeks... more The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) seeks minimal court interference in the enforcement of an award. However, in exceptional circumstances, it grants courts power to refuse awards to preserve elements of sovereignty with the states. Consequently, states have interpreted the width of the exception as per their notions of public policy. The article analyses the Indian interpretation given to the ground of public policy in the light of violent shifts in the positions taken by the Supreme Court of India. The article critiques recent Supreme Court case law, for failure to preserve international comity and obligations under the NYC. Towards this, the first section of the article addresses the drastic broadening of the interpretation of public policy and as a corollary the increasing interference of courts in arbitration in recent times. The second section addresses the widening court interference from the perspective of the power to modify arbitral awards. The article traces the roots of the power through several court decisions and argues against such an assumption of power. It contrasts the power to modify arbitral awards against the partial setting aside of the award and concludes that it is only the latter mechanism that is permitted under the NYC.
On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received p... more On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval, bringing forth an entirely new regime with respect to juveniles above the age of sixteen, accused of committing heinous offences. The background for its introduction was set by the horrific rape of a young student in 2012. The government justified the law as a measure which would have a deterrent effect on potential juvenile offenders. However, the opponents argue that the law would defeat the objective of having a separate juvenile justice system, and would not serve the goal of deterrence. They instead suggest that efforts be expended in ensuring more effective implementation of the Juvenile Justice (Care and Protection) Act, 2000. The paper analyses the viability of the mechanism proposed by the new measure. It also evaluates the potency of the counter claim which proposes that the existing law be better implemented, and thereby examines the necessity for the in...
Uploads
Papers by Gauri Pillai