Author: Shreya Gupta, Dharmashastra National Law University
To the Point
“Equality is thought of as the equivalence of treatment, but history has shown that legislation may be seemingly impartial, but has a profoundly unequal effect in practice. The lawmakers fail to realise that the concept of equality permits only rational discrimination. When a person adopts a neutral policy or a norm that seems to be equally applicable to all people, but unintentionally pushes one section of people into vulnerability or distress, it gives rise to indirect discrimination. Much of the inequality people have lived through is produced by facially neutral standards such as height rules, age cut-offs, test formats, and uniform policies. This concept encompasses those situations where facially neutral norms have an unjustified, disproportionate, and adverse impact on groups sharing protected characteristics. Hence, it is manifested by structural and institutional inertia.
Abstract
Although the traditional principle of Indian anti-discrimination law has focused on formal equality, i.e., equal treatment in contexts of similarity, it has failed to encompass structural and systemic disadvantage. The inadequacy of formal equality is confronted by indirect discrimination, whereby neutral policies have disproportionately harmful effects on historically marginalised groups, and thus a shift towards substantive equality is needed. The given project follows the path of the doctrinal development of indirect discrimination in India, examines how Nitisha promoted the discourse, and judges its further judicial acceptance. It argues that although its conclusions are innovative, there have been intermittent and limited uses of Nitisha due to the embedded judicial dependency on formal equality. This article contends in favour of the placement of indirect discrimination claims under Article 14, which permits increased scrutiny and a strong evaluation of disparate effects, and retains the absolute bar on direct discrimination, as codified in Article 15(1).
Use of Legal Jargon
Indirect Discrimination is an outcome of the potentially disparate impact of certain legislation, and the courts have failed to realise that indirect discrimination is also a form of discrimination. Indirect discrimination was largely obscured by a predominant focus on formal equality—a commitment to treating likes alike—in Indian equality and non-discrimination jurisprudence. the Indian anti-discrimination law was based mainly on formal equality, which demanded that similar cases be treated similarly. The emphasis was laid on the possibility of having laws or policies that explicitly refer to particular groups of people rendered unconstitutional. Nevertheless, the method could not explain how policies, practices or institutional arrangements that appear to be neutral may disadvantage certain groups disproportionately, particularly women who have been historically marginalised, such as women in the armed forces. The Nitisha case was pioneering since it acknowledged the fact that discrimination does not necessarily involve overt and intentional acts. The Court recognised that when applied in situations where the inequalities present before did not decrease, neutral rules may disproportionately and unfairly affect some groups. In so doing, it deepened the conceptual grasp of discrimination within Indian law and brought it closer to substantive equality, which looks at the conditions and implications that policies have in practice.
The Proof
The case of Nitisha V. Union of India has affirmed the role of Indirect Discrimination within the Indian Jurisprudence. The case was pioneering since it acknowledged the fact that discrimination does not necessarily involve overt and intentional acts. The Court recognised that when applied in situations where the inequalities present before did not decrease, neutral rules may disproportionately and unfairly affect some groups. In so doing, it deepened the conceptual grasp of discrimination within Indian law and brought it closer to substantive equality. Article 14 states that there shall be equality before the law and equal protection of law, empowering the State to make classification based upon intelligible differentia and rational nexus to the objective that sought to be achieved by the desired Act or policy, which is not manifestly arbitrary. Whereas, Article 15(1) writes that the State will not discriminate based on race, religion, caste, sex or place of birth. Now the question arises whether Article 15(1) deals with both direct and indirect discrimination. Article 15(1) advocates for the absolute prohibition of direct discrimination and does not deal with indirect discrimination. Article 15(1) is recognition of harms associated with dignity and autonomy and has no scope of justification once it is established that it is discriminatory. Hence, the indirect discrimination should be defined as belonging to Article 14, in which it can be classified and justified and where a greater level of scrutiny can be considered.
Case Laws
Air India v. Nergesh Meerza
The issue concerned the service terms of air hostesses, specifically dismissal after the first pregnancy. Although the Court affirmed aspects of the regulation, its unease presaged an acknowledgement that the seemingly neutral service regulation can disproportionately affect women. Further, the court struck this regulation and deeming it arbitrary and violative of fundamental rights under Article 21 of the Constitution. This was seen as a significant step towards recognising and rectifying gender-based discrimination in the workplace
Anuj Garg v. Hotel Association of India
The court struck down the Punjab Excise Act of 1914, which denounced women working in alcohol serving joints. Notably, the Court pointed out that constitutional morality must examine laws that reinforce stereotypes in the name of neutrality. This was the gateway to indirect discrimination analysis, but framed in the context of substantive equality and anti-stereotyping.
Navtej Johar v. Union of India
This case struck down Section 377 of the Indian Penal Code, which earlier used to criminalise same-sex relations between consenting adults. The Court held that classifying and targeting homosexuals based upon their sexuality violates the equal protection guarantee under Article 14 of the Constitution. Further, they ruled that Section 377 tends to violate the rights to life, dignity and autonomy of personal choice under Article 21.
Lt. Col Nitisha v. Union of India
This case, for the first time, held that indirect discrimination was prohibited by the Indian Constitution when the Supreme Court explored the impact of even seemingly neutral policies in the Indian Army on the indirect discrimination of the women officers. Until February 2020, a woman could only receive Short Service Commissions (SSCs) of 10 to 14 years, as compared to male officers, who could receive Permanent Commissions (PCs) and additional career ladders. The Court acknowledged that, even though the policies of the Army were neutral in principle, they continued to promote systemic discrimination of women officers. The opinion emphasised the need for substantive equality–that policies should take into consideration historical and structural disadvantages and demanded reforms that offer equal opportunities and eliminate indirect barriers that limit career advancement by women.
Conclusion
Understanding of the discriminatory policies on indirect discrimination in Indian constitutional jurisprudence is a leading step toward equality and justice. The Nitisha ruling is a groundbreaking case which transcended the boundaries of formal equality and prefigured the role of substantive equality in tackling structural disadvantages. In concluding that any facially neutral law and policy were prone to discrimination, the Court broadened the interpretative scope of equality jurisprudence, requiring a court to take into account the actualities of historically deprived communities. However, the current doctrinal development is not complete since the test established by Nitisha has consistently been shown to be reluctantly applied by subsequent judicial rulings.
FAQS
QUESTION 1 – HOW IS INDIRECT DISCRIMINATION DIFFERENT FROM DIRECT DISCRIMINATION?
Indirect discrimination occurs when a facially neutral norm, law or policy causes a disproportionate, adverse, or disparate disadvantage to a group of certain sections. It is so deeply embedded in the standard code of conduct that it is often perceived as fair behaviour. It is generated from gender stereotypes and making it difficult for individuals to realise it. On the other hand, direct discrimination involves explicit differential treatment based on grounds such as sex, caste, religion, race or place of birth. Hence, an emphasis is postulated on impact rather than intent.
QUESTION 2 – WHY IS FORMAL INEQUALITY INSUFFICIENT TO ADDRESS INDIRECT DISCRIMINATION?
Formal equality is based on the concept of “treating equals equally” and assumes that the identical treatment results in fairness. This approach ignores the structural or historical disadvantages that have been faced by the marginalised groups. So, a facially neutral norm may reinforce inequality rather than eliminate it. Hence, indirect discrimination shifts the focus towards substantive equality.
QUESTION 3 – WHY SHOULD INDIRECT DISCRIMINATION BE EXAMINED UNDER ARTICLE 14 RATHER THAN ARTICLE 15(1)?
Article 15(1) imposes an absolute prohibition on the parameters mentioned in the article itself. It does not cater to the accretions of the parameters themselves. Whereas Article 14 allows scrutiny of reasonable classification and intelligible differentia, which often requires contextual justification analysis, making it suitable for indirect discrimination.
QUESTION 4 – WHAT ARE THE CURRENT LIMITATIONS IN THE APPLICATION OF INDIRECT DISCRIMINATION IN THE INDIAN JUDICIAL SYSTEM?
The current limitations and reluctance are due to the absence of a formal structure, due to reliance on formal equality or guidelines to apply indirect discrimination systematically. Though indirect discrimination is constitutionally recognised, its transformative potential remains inoperative and under-utilised in achieving substantive equality.”
