Aditi Roy and Sanjana Gupta
Article 14 of the Indian Constitution sets forth the law of equality while Article 15 advances the concept of non-discrimination. While the Indian judiciary has extensively debated the concept of direct discrimination under these provisions, for a long time it has failed to locate the concept of indirect discrimination in constitutional framework of equality and non-discrimination. However, through recent judgements, the Indian courts have started to embrace the doctrine of indirect discrimination, categorically recognizing the fact that discrimination does not need intent. Through this paper, the authors analyse the development of indirect discrimination in the constitutional jurisprudence of India and the importance of the same.
Discrimination can be broadly classified into two categories – direct discrimination and indirect discrimination. Direct discrimination occurs when a person is treated unfairly on the basis of certain protected markers such as religion, sex, caste or race. Women cannot be denied promotion for a job post while their male colleagues are eligible for the same. In contrast, indirect discrimination occurs when a neutral worded policy, apparently equally applicable across all groups, in reality tends to create disproportionate impact on persons belonging to disadvantaged groups. A company’s policy to only offer promotion to full time employees can be indirectly discriminatory if most employees who take part time positions are women who have to take care of both job and family work.
Although the concept of indirect discrimination has evolved widely in foreign jurisprudence, it did not find an explicit recognition in Indian jurisprudence until the landmark case of Lt. Col. Nitisha v. Union of India (‘Nitisha’).While analysing the requirements put in place for the grant of Permanent Commission (PC) to women, the Supreme Court acknowledged the fact that although the requirements for women officers were same as their male counter parts, the same could not be considered as equality. The court opined that the provision to undergo medical examination although seemingly ‘neutral’ was discriminatory to the women officers. The male officers took the rigorous medical test years ago when they applied for a grant of PC and they were not expected to maintain the same fitness throughout their service. However, the women officers were barred from being granted PC for decades and now when they have advanced in age they cannot be expected to meet the medical criteria that their similar aged male counterparts can no longer meet.
This was for the very first time that the apex court categorically acknowledged the doctrine of ‘indirect discrimination’ as the touchstones to the Constitutional principle of non-discrimination and equality. The aim of the paper is to analyse the development of indirect discrimination in Indian jurisprudence and the vital importance of the same in the framework of equality and non-discrimination under the Indian Constitution. Part II of the paper seeks to determine the origin of the doctrine of indirect discrimination, the different standards applicable to scrutinize the doctrine and the version adopted by the apex court. Part III analyses various judgements to trace the development of the doctrine in Indian context and the gradual shift from traditional model of discrimination. Part IV highlights the importance of this alternative model of equality by examining the current developments in law and policies and their disparate impact on various disadvantaged groups. Part V concludes the observation made on the issue throughout the paper.
Tracing the Roots of Indirect Discrimination
The roots of indirect discrimination can be traced to the decision of U.S. Supreme Court in Griggs v. Duke Power. In this case, a seemingly neutral policy requiring high-school education for certain job posts, was held to be indirectly discriminatory towards black workers who, compared to their white counterparts, received substandard education.
The doctrine has evolved significantly in South African jurisprudence. In the case of City Council of Pretoria v. Walker it was claimed that the Pretoria city council charged tariff for electricity and water on a differential basis and thus indirectly discriminated on the basis of race. The residents of the townships (predominantly black populated) were charged a reduced flat rate, while those of old Pretoria (predominantly white populated) were charged a higher consumption-based tariff. The court observed that because meters were not installed in all township properties, a flat rate system was necessary and rational. However, it held that the fact that white residents were denied the benefit that black people were accorded rendered the practice indirectly discriminatory. The court opined:
“The concept of indirect discrimination,…was developed precisely to deal with situations where discrimination lay disguised behind apparently neutral criteria or where persons already adversely hit by patterns of historic subordination had their disadvantage entrenched or intensified by the impact of measures not overtly intended to prejudice them.”
In the cases discussed above, the courts have deduced disparate impact as long as the legislation has an adverse effect on disadvantaged groups, irrespective of whether the legislation intended to discriminate or not. In other words distinction between direct and indirect discrimination is drawn on the basis that the former needs intent while the latter is based on effect. This is in contrast to the standard applicable in the U.K. where the distinction between direct and indirect discrimination is based on the fact that while former cannot be justified under any circumstances, the latter can be justified if it is proportionate means of achieving a legitimate aim.
The Supreme Court of India has adopted the ‘effect based’ model while rightfully discarding the U.K. standard. This is because UK standard of rebutting indirect discrimination on the basis of a good justification defeats the protective purpose of the doctrine in cases where there is almost always some purpose other than a discriminatory purpose involved in the conduct or action to which objection is taken. Refusal to recognize indirect discrimination where there is justified intent takes away the most significant feature of indirect discrimination that is to prohibit actions that although not intending to be discriminatory ends up having the effect.
The test to establish whether an indirect discrimination has occurred has been borrowed from the case of Fraser v. Canada (‘Fraser’). In that case, the court propounded two-step test to establish indirect discrimination. Firstly, it must be shown that the measure has the effect of disproportionately impacting a disadvantaged group. Secondly, an enquiry should be made whether the measure is further “reinforcing, perpetuating, or exacerbating” the disadvantage. Such disadvantage could be exclusion from any aspect of society, and must be considered in the context of any historical subordination or systematic discrimination suffered by the group. While statistical evidences are concrete proof of such discrimination, they are difficult to establish. Thus, reliance should be placed on the evidence placed by the affected group and importance should be given to application of “robust judicial common sense” where the disproportionate impact is “immediate and apparent”.
Development of the Doctrine in the Indian Context
The doctrine of indirect discrimination may not have found an explicit recognition until the Nitisha judgement, but there have been instances where the courts have interpreted the doctrine under Article 14 and 15 of the Constitution.
In Anuj Garg v. Hotel Association of India, the law in question prohibited the employment of women in premises where intoxicating substances were consumed. The court struck down the law for violating Article 15(1) of the constitution, noting that the legislation suffered from “incurable fixations of stereotype morality and conception of sexual role.” The court opined that the blanket prohibition on employment of women was a blatant infringement of personal autonomy under the garb of protecting them. It thus called for a “heightened level of scrutiny” of legislations that impinge on personal freedom so that “no law in its ultimate effect should end up perpetuating the oppression of women.” Scholar Gautam Bhatia argues that by laying down the test of not only assessing the aim of the legislation but also its effect or implication while enquiring discrimination, the court interpreted the principle of ‘indirect discrimination’ in Article 15.
In 2018 Delhi High court used the doctrine in the case of Madhu v. Northern Railways. In this case the family (wife & daughter) of a Northern Railway employee were denied medical benefit by the Railways because the employee had struck their name from his medical card before retirement. The court held that although the rule in place that ‘only family members deemed eligible by the employees could avail medical benefit’ was facially neutral, it had disproportionate impact on the women. The court very rightly pointed out that most employees in Railways were male and a large number of women remained financially dependent on them. If the interpretation of the rule was accepted it will give men power to deny the medical benefit to their wives and children in times of need. The court held such interpretation to be violative of the constitutional principle of non-discrimination under Article 15(1).
Further, the concurring opinions of Chandrachud J. in Joseph Shine v. UOI and Indian Young Lawyers Assn. v. State of Kerala marks an important departure from the traditional method of classification under Article 14. The learned judge focuses on substantive equality rather than a “formalistic notion of equality” which fails to take social realities into consideration. The court aims at tackling the systematic and structural subordination of disadvantaged groups which hinders their inclusion in economic, political, social or cultural aspects of society. The court thus gives prime importance to enquiring the impact caused by the law to the disadvantaged groups rather than the aim of the law to determine discrimination. In doing so, the court effectively introduces indirect discrimination in the broad framework of equality.
Facially-Neutral Policies: The Discrimination Within
Anti-conversion laws and the disparate impact on women
Many variants of anti-conversion laws have been legislated by a number of Indian States. There have been a slew of criticisms about the Act directly violating the fundamental right of religion and equality. However, this paper seeks to emphasise upon the discrimination caused towards women due to these laws while arguing that the reliance on the traditional model of equality is not enough to demarcate these discriminations. Since it is not possible to analyse all the anti-conversion laws, the author will restrict herself to analysing the Prohibition of Unlawful Conversion of Religion Ordinance, 2020 passed by the U.P. government.
Section 4 of the Act provides that any person related to the individual by blood, marriage or adoption can file an F.I.R. On the face of it, the clause seems neutral towards both men and women and if scrutinised through the lens of traditional intent based approach in interpreting Article 14, the clause escapes the discrimination allegations. However, if tested against the two-step approach adopted in Fraser the provision reveals to be indirectly discriminatory.
The statistical evidence shows that after a month of the passage of the Act, there were 14 complaints registered. Out of 14 complaints, 12 were by friends or relatives of the women while only 2 were registered by women themselves. There have been cases where an individual has been arrested on the suspicion of converting a woman when the woman herself denied such allegations. In some cases, the inter-faith couple had to face harassment and interference from the woman’s relative threatening arrest under the Act. Thus, the provision, although facially neutral, creates a disproportionate impact on women. The Act allows a woman’s relatives to make choices for her. In doing so, it strips her of her individual autonomy. It thus perpetuates the stereotype that women lack agency and need protection from men.
The analysis demonstrates that what may not be perceived as discrimination traditionally can have adverse effect on the rights and dignities of certain groups. It thus becomes important to closely analyse these legislations in the context of substantive equality. The same can prevent the exclusion of disadvantaged groups due to arbitrary classifications of legislations.
Normalisation of cis-heteronormativity and the impact on transgender persons
The Transgender Persons (Protection of Rights) Act, 2019 has been met with a lot of backlash from the transgender community for its inadequate definitions, absence of freedom of personal autonomy and many other such grounds. The paper in its limited scope seeks to emphasise on provisions that seem neutral from traditional standards, but are indirectly discriminatory when analysed against the touchstone of substantive equality.
The provisions of the Act only allow a transgender person to have a ‘self-perceived’ identity if they have a certificate of approval from the DM. While this is a direct violation of personal autonomy under Article 21, it lacks discriminatory intent to constitute a direct violation under the traditional equality model. However, the legislation qualifies as indirectly discriminatory as the neutral criterion adversely affects a disadvantaged group, exacerbating their struggle for self-identity. The need for a certificate reveals the paternalistic framework of our laws that construct the ‘norm’ from the perspective of cis-gendered persons. The legislation assumes the ‘normal’ as identifying with the gender one is born into; no certificate is needed for the same. It is considered abnormal to identify as a gender other than one assigned at birth and a certificate is needed for the same. This goes against the notion of substantive equality propounded in Joseph Shine v. UOI as it aggravates the systematic discrimination of the transgender community by further excluding them from society.
This normalisation of cis-heteronormativity and exclusion of the transgender community is barely unusual. Transgender students have to face this at school when their textbooks only categorize gender in binary terms, making them an outcast in the ‘normal’ world. Many institutes and even some workplace have a standardised uniform for men and women, further cornering the transgender persons who do not find themselves fit for the uniform assigned to them. To tackle the exclusion, NCERT had published a training manual on its website that laid down steps to make schools an inclusive place for transgender students. Unfortunately, the manual was retracted after protests from parents and the National Commission for Protection of Child Rights (NPCPR).
The incident goes against the principle of embracing affirmative action and providing reasonable accommodation to systematically discriminated groups. The retracement of the manual over protests also impugns upon the principle propounded in Navtej Singh Johar v. Union of India that “constitutional morality should transcend societal morality.” Thus, if analysed against the touchstone of substantive equality, the normativity of cisgenders and exclusion of the transgender community is indirectly discriminatory.
Vaccine Policy and the impact on disabled and poor persons
The initial vaccine policy of government required mandatory registration on the digital CoWIN portal. The policy while facially neutral at glance excluded certain disadvantaged groups from accessing the benefit. The statistical data revealed the huge digital divide between rural and urban India with the former reflecting less than 50% of wireless data subscribers. The statistics further revealed that the scarcity of availability of bandwidth and connectivity made digital penetration in rural India difficult. Thus, the mandatory registration on digital portal indirectly discriminated against the rural India which did not have access to the same. Further, the CoWIN application was not accessible to people with visual disabilities. There was no keyboard support for navigating the portal and there was no provision of giving extra time to a disabled person to schedule an appointment before getting logged out.
The court in Re Distribution of Essential Supplies and Services During the Pandemic evaluated the impact of the policy. In light of the digital divide and difficulty of disabled persons to access the portal, the court found that the policy was violating the right to equality of the aggrieved sections of people. This Court here assumed a dialogic jurisdiction where various stakeholders were provided a forum to raise constitutional grievances with respect to the management of the pandemic. Since the court was engaging in a dialogic jurisdiction and not passing orders, it did not delve into the debate of indirect or direct discrimination. However, it cannot be refuted that this was yet another policy which although couched in neutral text exacerbated the systematic discrimination against disadvantaged groups.
The concept of indirect discrimination is still at a nascent stage in Indian Constitutional jurisprudence. While it has finally found an explicit recognition in the equality and non-discrimination framework of the Constitution through the Nitisha verdict, it has yet to fully evolve. However, the high courts and the apex court through various judgements have interpreted the tenets of the doctrine in their judgement. Thus, even though the doctrine has only now been categorically recognized, the shift from traditional intent-based discrimination to the alternative equality framework has long been underway. The courts have given a broader interpretation to Article 14 and Article 15, no longer relying solely on intention and motive to make out discrimination. Instead there is a shift towards enquiring the disproportionate impact of any measure on disadvantaged groups irrespective of innocent intention.
The textual interpretation of equality has been discarded by the courts and they are now moving towards the model of substantive equality. The judges are keen to demythologise ‘normative’ legislations and include within the framework the interests of disadvantaged groups that have been historically subordinated. The shift is highly significant and necessary, considering the inefficiency of traditional discrimination model to reveal discrimination cloaked under neutral wordings.
Aditi Roy and Sanjana Gupta are current undergraduate students pursuing B.A., LL.B. (Hons.) at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.