Table of Contents

INDIRECT DISCRIMINATION IN INDIA....................................................................................................................................2

INTRODUCTION.............................................................................................................................................................2
DIRECT V. INDIRECT DISCRIMINATION..................................................................................................................2
A. CAUSATION........................................................................................................................................................3
B. INTENTION.........................................................................................................................................................4
C. SECONDARY PARADIGM.................................................................................................................................4
DISENTANGLING THE TENSION................................................................................................................................4
RECENT JUDGMENT RECOGNISES INDIRECT DISCRIMINATION.......................................................................6
LT. COL. NITISHA V. UNION OF INDIA:..........................................................................................................................6
CONCLUSION................................................................................................................................................................. 9

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 INDIRECT DISCRIMINATION IN INDIA

* AAYUSHI KAMRA

INTRODUCTION

Generally understood, discrimination can be of two types — direct and indirect. When a person adversely
distinguishes because of, or on the grounds of a certain marker of discrimination, the discrimination is said to be
direct. When a person adopts a neutrally worded measure that is equally applicable to all, but in practice tends
to disproportionately disadvantage persons belonging to one group, the discrimination is said to be indirect. For
long, indirect discrimination has been conspicuous by its absence in Indian jurisprudence. Recently though, a
few decisions rendered by the Supreme Court of India (‘SCI’) and by the High Courts have recognized this type
of discrimination.1

At the same time, the difference between direct and indirect discrimination has also been a contested question.
Across several common law jurisdictions, indirect discrimination is generally justifiable. Direct discrimination,
on the other hand, is absolutely prohibited, or justifiable to a lesser degree in some cases, or justifiable to the
same extent as indirect discrimination. Therefore, the approach towards a difference, if any, between direct and
indirect discrimination has also varied across jurisdictions. As the Indian law on indirect discrimination evolves,
questions as to the difference between direct and indirect discrimination and as to the location of indirect
discrimination will have to be answered by Indian Courts as well.2

DIRECT V. INDIRECT DISCRIMINATION

Direct discrimination, at its core, is based on the formal understanding of equality that likes should be treated
alike. No person should be treated less favorably than another because of a protected characteristic, such as
race, sex, religion, caste etc., that they possess. Women cannot be barred from working in factories after seven
o’clock in the evening, whilst men are permitted to do so. Dalits cannot be asked to burn their dead on the lower
ends of a ghat, whilst the other portions are used by upper castes. Muslim men cannot be penalized for
divorcing their spouse, whilst Hindu, Christian or Parsi men are not. All of these are instances of direct
discrimination.

Indirect discrimination,3 on the other hand, seems to focus on the effects of a measure. The origin of the concept
can be traced to a decision of the United States Supreme Court in Griggs v. Duke Power. The employer in this
case had adopted a practice of discriminating against black workers by excluding them from certain jobs.
However, this was no longer permissible after the enactment of the Civil Rights Act, 1964. Therefore, the
employer put in place a requirement of high-school education and a certain threshold score in an aptitude test as
pre-conditions for those jobs. This was a neutrally worded pre-condition that applied to all. However, it was
seen that black workers were disqualified in substantially larger proportions than their white counterparts on
1
* Aayushi Kamra, B.B.A.LL.B 5th year, School of Law, Mody University of Science and Technology, Lacchmangarh, Sikar(Raj.).
Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1 (India).
2
http://nujslawreview.org/wp-content/uploads/2020/12/13.4-Gandhi.pdf.
3
Id.
2
account of their inferior education. Importantly, neither of the two requirements set as pre-conditions were
shown to be necessary for the jobs in question. Burger C.J., delivering the judgement for the Court said that
while a practice could be fair in form, it might be discriminatory in operation. Therefore, unless the touchstone
of business necessity could be satisfied for such practices, it would be prohibited.

The concept of indirect discrimination quickly travelled across the Atlantic and was incorporated first by the
United Kingdom in the Sex Discrimination Act, 1975 and soon thereafter by the European Union. However,
since then, the question of a difference, if any, between direct and indirect discrimination has been a vexed one.

A. CAUSATION

An intuitive answer is to suggest that the difference lies in causation. Direct discrimination comes to be when a
prohibited marker is the basis for classification in an executive or legislative action. Indirect discrimination
comes about when a neutral provision or practice applicable equally to all has a disproportionately adverse
effect on members of a group defined by a common protected characteristic. For example, a supermarket outlet
owner might say that she will provide pension benefits only to full-time employees. Women who usually
occupy household activities in patriarchal societies might be more likely to take up part-time jobs. In such a
case, the practice of the supermarket outlet owner might have a disproportionate impact on women. But the
discrimination does not come about because the owner said, “I will only provide pension to men”. Therefore, it
would be indirect and not direct discrimination.

This difference in terms of both causation and proof is readily traceable to Article 15(1) because of the words
“on the grounds only of”. When the State shall not discriminate on the grounds of caste, it implies that the State
shall not make a classification or distinction on that ground. It does not imply that the State shall not put in
place a measure which may have a discriminatory effect along the lines of caste. Moreover, statistical evidence,
the most prominent form of evidence in indirect discrimination cases, also works towards proof of a
disproportionate adverse effect and not towards proof of the basis of the decision. Using statistical evidence
alone, one may not be able to satisfy the parameters of Article 15(1). Therefore, it appears that Article 15(1)
draws a difference between the methods of causation and picks only one method.

Nevertheless, to say that the difference between direct and indirect discrimination is one of causation and
Article 15(1) only allows for one method of causation would not be sufficient. This is because one can label this
difference as merely instrumental in nature. Direct and indirect discrimination would only be different routes to
attain the same end result. The deeper question pertains to why Article 15(1) opts for only one instrumentality.
If there is no answer to this question, a difference in terms of causation may potentially be termed as only
technical in nature. It may only serve to lend strategic advantage, albeit valuable to some claimants. It does not
tell us why one type of causation is absolutely prohibited. A case may then be made to surpass this difference.
Therefore, it is important to probe a little deeper.

B. INTENTION

One of the foremost differences that has been carved out and that has been adopted in the United States is that
of ‘intention’. Direct discrimination involves an element of intention on the part of the discriminator, whereas
3
indirect discrimination does not. Therefore, the former needs to be treated more vehemently than the latter. In
my view, any reliance on intention is misplaced. By ‘intention’, I do not refer to ‘intention’ in the narrow sense
in which it is understood in criminal law. In criminal law, you may assault a fellow citizen intentionally,
accidentally or even negligently. The same metric does not apply to discrimination law. It can hardly be said
that a law or policy was drafted accidentally or unintentionally. Instead, in discrimination law, intention answers
the ‘why’ question. It encompasses what would be construed as motive or willfulness in criminal law and refers
to the reasons why a policy was adopted.

C. SECONDARY PARADIGM

The phrase ‘secondary nature’ has been interpreted variedly. John Gardner has understood it to mean that direct
discrimination is primary because a prohibited marker is an operative premise based on which a discriminator
acts and indirect discrimination is secondary because it is constituted by the side-effects of an operational
decision.96 However, as Oran Doyle points, Gardner’s choice of the phrase ‘side effects’ only shows that
discriminatory effects may be unintended and not that they are of less importance. In any case, as I have
submitted above, direct discrimination may also be unintentional.

Another sense in which indirect discrimination has been said to be ‘secondary’ is ‘temporality’. Indirect
discrimination tracks the wrongs already caused by previous direct discrimination. In cases of discrimination
based on sexual orientation, indirect discrimination may have been temporally prior to direct discrimination.

Over and above ‘causation’, I have thus far tried to explore whether the difference between direct and indirect
discrimination lies in ‘intention’ or in the ‘primary or secondary nature of the paradigm’. The difference
between direct and indirect discrimination also lies in the nature of the moral wrong involved.4

DISENTANGLING THE TENSION

Article 14 states that every person shall be equal before the law and shall be entitled to equal protection of the
law. Traditionally, the second part of this provision has been interpreted to mean that when the State creates a
difference, it must be intelligible and must have a rational nexus to the object that it wants to achieve. This test
is popularly known as the ‘reasonable classification’ test. Over the years, this doctrine was found to be
inadequate and was supplemented with a doctrine of arbitrariness. Article 15(1) states that the State shall not
discriminate on the grounds of race, religion, caste, sex or place of birth.

The question is whether Article 15(1) covers both direct and indirect discrimination. Decisions by the SCI and
the High Courts have answered this question either way.

On one hand is the decision of the SCI in Navtej Johar v. Union of India (‘Navtej Johar’) which was welcomed
for bringing indirect discrimination within the fold of Article 15(1).5 Chandrachud J. opined,

4
http://nujslawreview.org/wp-content/uploads/2020/12/13.4-Gandhi.pdf.
5
Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1 (India).
4
“If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the
role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the
grounds only of sex (emphasis added).”6

The opinion then goes on to cite affirmatively that portion of the Delhi High Court decision in Naz Foundation
v. Union of India (‘Naz Foundation’) which said that section 377 of the Indian Penal Code, 1860 (‘the IPC,
1860’) was a facially neutral measure which had a disproportionate impact on homosexuals. This part of the
opinion was widely welcomed. Gautam Bhatia said that this may eventually lead our Courts to look at the
effects of certain discriminatory measures. Similarly, Gauri Pillai opined that this opinion laid the foundation
for disparate impact or indirect discrimination in Indian constitutional law. Tarunabh Khaitan, commenting on
the predecessor of this case, i.e. Naz Foundation, equated a finding of indirect discrimination rooted in Article
15 with reading ‘Swaraj’ into the Constitution.

Similarly, the Delhi High Court was asked to examine the validity of a practice in the Northern Railways where
medical insurance was denied to those family members of an employee whose names had been struck off by
that employee.7 The Court said that even a facially neutral decision can have a disproportionate impact on a
constitutionally protected class — women and children. 8 It said that a classification which had a
disproportionate effect on women was constitutionally untenable under Article 15 and struck it down.9

On the other hand, some of the other opinions in Navtej Johar, including that of Chandrachud J., found §377 of
the IPC, 1860 to be manifestly arbitrary under Article 14. However, in doing so, the analysis adopted was that
of disparate impact. Chief Misra J., speaking for himself and Khanwilkar J., 10 said that first, the provision did
not create a distinction between consensual and non-consensual sexual activity; second, it impacted a vulnerable
group of people who shared an immutable characteristic; and third, this disadvantage was in terms of
criminalisation and social stigma. Chandrachud J. himself said that section 377 is a blanket offence which
compels homosexuals to accept a certain way of life and criminalizes the physical manifestation of their love.
Malhotra J. too, held that section 377, although neutrally worded, was discriminatory in its operation.
Therefore, following the analysis usually adopted for indirect discrimination, these opinions found section 377
to be manifestly arbitrary under Article 14 and not Article 15(1).

Like these opinions, even when the Andhra Pradesh High Court found a legislative measure to be void for being
indirectly discriminatory, it did so under Article 14. 11 When asked to examine the constitutional validity of a
provision in the Hindu Marriage Act, 1955, which provided for a decree of restitution of conjugal rights, the
Andhra Pradesh High Court said that such a section irretrievably alters the life of a wife while not having any
such impact on the husband.12 It is the wife who has to beget a child and the practical consequences of such a
decree could cripple her future plans.13 While the marker at play was evidently ‘sex’, the decision was not
rendered under Article 15(1).

6
Id., Para 438.
7
Madhu & Anr. v. Northern Railways & Ors., 2018 SCC Online Del 6660.
8
Id., Para 17.
9
Id., Para 29.
10
Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1 Para 254 (India).
11
T. Sareetha v. T. Venakata Subbaiah, 1983 SCC Online AP 90.
12
Id., Para 19.
13
Id., Para 39.
5
Furthermore, the Supreme Court has even explicitly refused to find a breach under Article 15(1) for indirect
discrimination.14 Faced with a case where an admission form to a medical college asked for the ‘nativity’ of a
person, the court observed that even though nativity may be a camouflage for the place of birth and that in most
cases nativity may mean the place of birth, the admission form did not ask for place of birth. Therefore, Article
15(1) could not be said to have been violated.15

Therefore, although nascent, there is an apparent dichotomy that seems to be emerging in this area of law.
While some judicial opinions have located indirect discrimination under Article 14, others have done so under
Article 15(1). The short question then is whether Article 15(1) also covers cases of indirect discrimination.
Before delving into this question, I will first examine the nature of the prohibition under Article 15(1) itself,
which I argue is an absolute prohibition.16

RECENT JUDGMENT RECOGNISES INDIRECT DISCRIMINATION

LT. COL. NITISHA V. UNION OF INDIA:17

In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence v. Babita Puniya,
holding that the Indian Army’s policy of denying women officers a permanent commission [“PC”] was
discriminatory. Following this judgment, the Union Government put into place a procedure for the grant of PCs
to eligible women officers. The results of this process – that involved 615 eligible women officers – spurred a
second round of litigation before the Supreme Court.

In a judgment delivered in, Lt. Col Nitisha v. Union of India, the Supreme Court – speaking through a bench of
J Chandrachud and Shah JJ – held that the implementation of the Babita Puniya judgment had also been
discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs
to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the
Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account
of what indirect discrimination entails.

As in Babita Puniya, the facts of the case are somewhat complicated. Broadly, there were three contentious
criteria of assessment for the grant of PC: first, that the women officers had to clear a certain percentage score,
as well as score higher than the lowest scoring male officer who had been awarded a PC;  secondly, that Annual
Confidential Reports [“ACRs”] were to form part of the grading; and thirdly, certain medical requirements had
to be fulfilled.

On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and
female officers. On digging a little deep, however, it was found that the very fact that for all these years, women
had not  been eligible for the grant of PCs, had a direct bearing on some eligible candidates’ failure to fulfil the
14
P. Rajendran v. K.M. Sathakathulla, (1968) 2 SCR 786 (India).
15
Id., Para 9.
16
http://nujslawreview.org/wp-content/uploads/2020/12/13.4-Gandhi.pdf.
17
https://www.livelaw.in/columns/lt-col-nitisha-vs-union-of-india-supreme-court-indirect-discrimination-171943.
6
criteria. For example, ACRs were prepared with a view to recommendations for the grant of a PC. Given that
female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of
their male counterparts; these were also affected by the fact that women officers had not applied for a range of
opportunities, or courses, that were supposed to be considered in the ACRs. This was because their career
options had hitherto been blocked – thus, effectively, leading to a cycle of discrimination that now meant that
they applied with relatively unfavorable ACRs. Similarly, with respect to the medical criteria, the Court found
that male officers took their medical tests at the time they applied for PCs (and once granted PCs, they were not
required to maintain the same levels of fitness). However, female officers – who had been ineligible all these
years – were now required to prove the very level of fitness that otherwise similarly situated male officers
were no longer required to prove (as they had been granted PCs many years before).

Of course, other than the requirement of scoring higher than the lowest-scoring male candidate, none of the
eligibility criteria required any facial comparison between women and men. For this reason, the Supreme Court
was required to reach further, and articulate an alternative model of equality and discrimination. It did so by
drawing a distinction between intention and effect, and discrimination wrought by individual acts on the one
hand, and by the impersonal workings of institutions and structures on the other.

Chandrachud J. held that the concept of substantive equality – to which the Constitution was committed –
required accounting for both systemic and indirect discrimination (paragraph 45). After an extended
comparative examination (paragraphs 51 – 65), Chandrachud J. held that the two-step test for discrimination
evolved in the Canadian Supreme Court case of Fraser v. Canada was the most appropriate. The Fraser test –
as set out by the Supreme Court – requires that:

First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an
evidentiary matter, this entails a consideration of material that demonstrates that “membership in the claimant
group is associated with certain characteristics that have disadvantaged members of the group”. However, as
such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group
itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no
clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect
discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common
sense, the Court held: “In some cases, evidence about a group will show such a strong association with certain
traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be
apparent and immediate” … Second, the Court has to look at whether the law has the effect of reinforcing,
perpetuating, or exacerbating disadvantage. Such disadvantage could be in the shape of: “economic exclusion
or disadvantage, social exclusion…psychological harms…physical harms…[or] political exclusion”, and must
be viewed in light of any systemic or historical disadvantages faced by the claimant group.” (para 65)

The Court also noted that while statistical data would aid in establishing a finding of indirect discrimination, it
would not necessarily exist in every case (paragraph 68); and that while due deference ought to be accorded to
employer arguments around suitability criteria for the job, the Court would have to be vigilant to avoid
endorsing the same stereotypes or generalizations that were responsible for the discrimination in the first place
(paragraph 70). Effectively, the Court indicated that it would have to check whether the employer had acted
proportionately – ensuring, for example, that there were no other measures that could have been taken that did

7
not have the same discriminatory effect. The Court correctly noted, as well, that structural discrimination would
often require structural remedies (paragraph 73).

Applying this analytical framework to the case at hand, indirect discrimination was easily made out. It was the
very fact that female officers had been formally denied a set of opportunities for all these years,
that now ensured that a seemingly neutral set of criteria – neutral in that the same set of criteria was applied to
eligible male candidates – was discriminatory in effect (note that the female candidates were not competing
against male candidates in this case, so this judgment also shows that a finding of discrimination does not need
a comparator group). The quality of the ACRs, the limited consideration of awards or achievements attained
only as on the 5th or 10th year of service, and so on, were all indications of this. Thus, as Chandrachud J.
pointed out: “A formalistic application of pre-existing policies while granting PC is a continuation of these
systemic discriminatory practices. WSSCOs were continued in service with a clear message that their
advancement would never be equal to their male counterparts.” (para 96). The same was the case with the
medical fitness criteria, as explained above: while there was nothing wrong with the criteria per se, it was their
application that was indirectly discriminatory. Female officers, who were not eligible for PC for all these years,
were asked to pass a medical test now that their similarly situated male counterparts had been entitled to take at
a substantially younger age (and then not required to maintain). Thus the Court held:

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their
20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be
modulated to compensate for the harm that has arisen over their belated application. In the spirit of true
equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically
fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their
service. (para 112)

While the facts of this case are undoubtedly complex, it will be easy to see what the Court was trying to remedy
by looking at another similar case, but with much simpler facts. In Australian Iron and Steel Co v Bankovic, a
company imposed a “last in, first out” retrenchment policy (i.e., you got retrenched based on how short a time
you spent in the company). It turned out, however, that the company had only recently begun to employ women,
and that therefore, the retrenchment policy was much more likely to target women, simply for this reason. This
was found indirectly discriminatory. Thus, this was the sequence: first, there was formal and direct
discrimination that put women at a disadvantage. Then, formal discrimination was ended, but criteria were put
in place that failed to account for that prior disadvantage – and thus ended up entrenching and perpetuating it,
indirectly. In a very similar way, in this case, for the longest time, women faced formal and direct
discrimination by not being eligible for the grant of PC. This formal discrimination was struck down by the
Court in Puniya – but the policy that was framed for implementing it failed to account for the disadvantage that
had been caused (directly) all these years. Thus, by the very fact of its “neutrality”, the policy was indirectly
discriminatory.

Of course, not all such examples of indirect discrimination will be as clean-cut – that is, effectively
piggybacking off former direct discrimination. Importantly, however, as we have seen above, Chandrachud J.’s
formulation was detailed enough to address those more complex cases when they do arise. The proof of the
pudding is, of course, in the eating, but for now Lt Col Nitisha’s Case marks an important advance in its
acknowledgement, recognition, and articulation of indirect discrimination under the Indian Constitution.
8
 

CONCLUSION
There has been an emerging trend to expand the frontiers of discrimination law in India to include indirect
discrimination within its ambit. The issue though, lies with its location. While some scholars and judges have
included it within Article 15(1), others have found indirect discrimination under Article 14. For reasons of
causation and for the fact that the moral wrong countered by indirect discrimination does not align with the
absolute prohibition cast under Article 15(1). However, this is not enough. There is a need to differentiate
between indirect discrimination along the lines of protected markers of discrimination and other instances of
indirect discrimination because of what ‘grounds’ signify in discrimination law. Indirect discrimination along
the lines of protected grounds in discrimination law must be subject to a heightened standard of judicial
scrutiny. Conceptually, direct and indirect discrimination track different wrongs. Direct discrimination tracks a
wrong which only warrants limited scope of justifiability. Indirect discrimination, on the other hand, tracks a
wrong which is made out only when the measure is non-justifiable.