By Navya Bhayana
Introduction
The Supreme Court, through its recent division bench judgement in Lt. Col Nitisha v. Union of India, marked the first occasion to pronounce indirect discrimination to be violative of the Constitutional provisions of equality.[1] It was recognised that the criterion for the grant of Permanent Commission (hereinafter ‘PC’) to women army officers was facially neutral but indirectly discriminatory.[2] The Court held that the structural denial of a range of opportunities to women resulted in the formalistic application of pre-existing policies for granting PCs to be indirectly discriminatory towards them.[3]
The criterion mandated women to fulfil a certain level of fitness and maintain excellent Annual Confidential Reports (hereinafter ‘ACRs’), as was required of male officers, thereby appearing neutral.[4] It is necessary to observe that since women had been previously denied PCs, women army officers in their forties were applying for PCs while their male counterparts had been granted their PCs in their twenties.[5] However, these women were required to comply with the same medical fitness criterion that their male counterparts had to achieve when they had applied for the PCs at a much younger age, and therefore, the requirement was argued to be arbitrary due to the structural denial of opportunity to women.[6] In addition, since the ACRs were primarily essential as recommendations for the grant of PCs, the reports of women army officers were prepared in a lackadaisical manner.[7] This acted as a further obstacle, thereby highlighting the discriminatory nature of the criterion despite its seemingly neutral character.[8]
There has been widespread discussion across jurisdictions about the distinction between direct and indirect forms of discrimination and the moral seriousness attached to their perceptions.[9] As the Supreme Court decision comes as a landmark judgement recognising indirect discrimination and structural discrimination to constitute important parts of discrimination law,[10] this piece would aim to delve into discussions regarding the moral seriousness of discrimination and draw parallels to the apex court judgement. For this, first, the distinction between direct and indirect forms of discrimination would be understood, and subsequently, the significance of such distinction, if any, would be analysed. Further, this piece seeks to analyse the implications of using ‘intention’ as a necessary distinguishing factor for demarcating direct and indirect forms of discrimination.
How Does Indirect and Direct Discrimination Differ? Is this Difference Significant?
Indirect discrimination is often considered to be morally less repugnant and its agents less culpable than direct discrimination.[11] Through this section, this piece seeks to challenge the deep moral differences between direct and indirect discrimination that are perceived to conclude this difference. A key distinguishing factor between direct and indirect discrimination is the conception of considering direct discrimination to be more loathsome due to the intention or knowledge present behind the acts of the discriminator, which is absent in the case of indirect discrimination.[12] However, before discussing the moral seriousness of indirect discrimination, it is important to understand what it entails. It is fairly accepted by scholars and judicial precedents alike that indirect discrimination occurs where an apparently neutral provision or practice disproportionately affects a protected or disadvantaged group without satisfying a special standard of justification by a legitimate aim.[13] However, this definition of indirect discrimination has been vigorously challenged by the argument that several cases of such discrimination are either direct discrimination of a certain characteristic or not discrimination at all, but prohibition in such a case is a mere roundabout way of equalizing opportunity.[14] The first distinction of cases of direct discrimination of a specific characteristic refers to acts aimed at disadvantaging certain individuals based on a certain characteristic that they possess, regardless of their intent. The second class of cases, on the other hand, refers to acts that do not cause discrimination, however, the prohibition of such actions is encouraged to equalise opportunity for underprivileged sections.
While there are reasons to support this rather radical argument, the author believes that it incorrectly narrows down the scope of what should be regarded as discrimination. For the first distinction of cases, this line of argumentation classifies them as specific cases of direct or second-order discrimination.[15] It is argued that the agent makes the classification on the basis of a non-protected characteristic, such as region of residence, instead of race to eventually discriminate on racial grounds.[16] The author believes that drawing such a distinction is neither significant nor necessary in a scheme where indirect discrimination is recognised by the courts. In such a scenario, regardless of where the case falls, it would be considered to violate the Constitution, and thus, would be liable to be struck down.[17] However, it is the second class of cases that are regarded as ‘not a form of discrimination’ that the author disagrees with. It is argued that a case where the alleged discriminator creates a classification on the basis of gender to give preference to hiring men is not aimed at excluding women but at making more profits for the firm. Therefore, such classification is not discrimination at all, but its prohibition is a redistributive policy aimed at expanding access to opportunity, similar to the mandatory practice of positive discrimination or affirmative action.[18]
However, it is essential to note that most forms of direct discrimination also are not carried out with an aim to harm women but to fulfil the interests of the discriminator, which in turn has the direct result of causing discrimination.[19] For instance, an employer giving preference to male employees as women would require maternity leave is not because the employer intends to harm women but because they want to make more profits. Furthermore, it is vital to classify such cases as some form of discrimination as it provides a basis to prohibit such discriminatory policies in a better manner than, or in addition to, redistribution opportunities. In the absence of construing it as discrimination, it would become a matter of discretion for the democratic political process to implement the redistributive policies. It would be an uphill task to enforce such prohibitions in the absence of law recognising them as discrimination for supporting such prohibition. While this does not imply that redistributive policies should not exist, the author believes that courts have the legitimate authority to address the issue of discrimination in case a policy or mechanism has the effect of discriminating towards disadvantaged groups.
Is the Intention of the Discriminator Relevant?
Some scholars, like the Supreme Court in Lt. Col Nitisha v. Union of India, accept the traditional definition of indirect discrimination to argue that it is equally morally serious as direct discrimination as, more often than not, both are based on the failure to see other groups as equals due to certain stereotypes.[20] In addition, robust reasons are given to support the claim of holding the discriminator equally culpable in cases of indirect discrimination.[21] While the author agrees with the arguments on both forms of discrimination being on an equally serious footing, the author believes that it is a futile exercise for the courts to identify the kind of discrimination in question. In the case at hand, the technical approach undertaken was to identify that the application of the pre-existing criterion was resulting in discrimination towards women army officers. However, the author argues that it would be more suitable to identify the resultant effect of a policy than to delve into whether it is direct or indirect, especially when there is such widespread debate on what entails indirect discrimination. If a policy has the effect of causing a disparate impact on a disadvantaged group, it should be held unconstitutional regardless of what kind of discrimination it falls under. Interestingly, the Fraser test adopted by the Supreme Court precisely focuses on this result.[22] It holds the law that has the effect of reinforcing, perpetuating, or exacerbating disadvantage and fails to meet a certain justificatory threshold, to be discriminatory, and thereby, unconstitutional.[23]
While several scholars advance the requirement of intent as a key distinguishing factor,[24] the author believes that any attempt at elucidating the moral culpability of the discriminator drives the attention away from the core discussion about the impact of discrimination. However, if such arguments are presented in arguendo, the discussion might become useful if intention is considered relevant. This is because, in such a scenario, the agents of indirect discrimination can be held equally morally culpable. However, the primary argument should be that the intent of the person discriminating against a particular individual or group is irrelevant. Since the intent has no bearing on the actual harm caused to the disadvantaged group, it should have no bearing on anti-discrimination law. Even if an employer does not intend to discriminate against women by giving preference to men, the effect such a policy would have on women is tangibly similar to where the employer intends to harm women. Further, a prerequisite criterion of intention would add on to the burden of the disadvantaged person to prove the presence of such intent, which is in itself an uphill task.[25] In addition, negligence on the part of the discriminator is also evidence of the fact that the discriminator failed to think about the effects,[26] which makes the behaviour negligent and the act discriminatory towards a disadvantaged group. Hence, while intention can be considered sufficient while determining discrimination, construing it as a necessary component for discrimination can have disastrous effects.[27] While the Lt. Col Nitisha case did not delve into many such deeper questions due to the nature of the facts, it adopted intention as the distinguishing factor for direct and indirect discrimination, which can have curtailing effects on equality jurisprudence.
Conclusion
The decision in the Lt. Col Nitisha case is laudatory as the Court identified indirect discrimination and structural discrimination as being violative of the Constitution. However, the effect of a policy should be measured to determine its discriminatory nature, and distinguishing between direct and indirect discrimination should not be a prerequisite to test the effects of such policy. In addition to the distinction between the forms of discrimination being necessary, it is argued that the intention of the discriminator shall be an irrelevant criterion while determining the discriminatory nature of a policy.
The author, Navya Bhayana, is an undergraduate law student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.
[1] Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261.
[2] Id., Ministry of Defence v. Babita Puniya & Ors., (2020) 7 SCC 469; Gautam Bhatia, The Supreme Court Recognises Indirect Discrimination, March 26, 2021, available at https://indconlawphil.wordpress.com/2021/03/26/lt-col-nitisha-vs-union-of-india-the-supreme-court-recognises-indirect-discrimination/ (Last visited on September 21, 2021).
[3] Id.
[4] Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261, ¶¶9, 10.
[5] Id., ¶¶3, 118; See Essop v. Home Office (UK Border Agency), [2017] UKSC 27.
[6] Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261, ¶¶96, 112, 118.
[7] Id., ¶¶119, 120.
[8] Id.
[9] Griggs v. Duke Power Co., 401 US 424, 431 (1971); United States v. Carolene Products Co., 304 U.S. 144; Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc., 135 S Ct 2411 [2015]; R (on the application of E) v. JFS Governing Body, [2009] UKSC 15, ¶57; The Equality Act 2010, §19; City Council of Pretoria v. Walker, (1998) 3 BCLR 257, ¶¶31-32; Cathi Albertyn & Beth Goldblatt, Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality, 14(2) South African Journal of Human Rights 248 (1998); See Reva Siegel, Equality Divided, 127(1) Harvard Law Review 1, 18 (2013); Sandra Fredman, Addressing Disparate Impact: Indirect Discrimination and the Public Sector Equality Duty, 43(3) Industrial Law Journal (2014).
[10] Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261, ¶¶96, 120.
[11] Sophia Moreau, The Moral Seriousness of Indirect Discrimination in Foundations of Indirect Discrimination Law 129-35 (2018); See Bastian Steuwer, Review of Faces of Inequality: A Theory of Wrongful Discrimination, Sophia Moreau, 37(3) Economics & Philosophy 494-500 (2020).
[12] Id.
[13] Moreau, supra note 11, 126-29; Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261; Fraser v. Canada (Attorney General), (2020) SCC 28; See Sandra Fredman, Direct and Indirect Discrimination: Is there Still a Divide? in Foundations of Indirect Discrimination Law 31, 36 (1st ed., 2018); See Sandra Fredman, Discrimination Law 166-170 (2nd ed., 2011).
[14] Benjamin Eidelson, Discrimination and Disrespect 39-59 (2015).
[15] Id., 45-48.
[16] Id., Hugh Collins & Tarunabh Khaitan, Indirect Discrimination Law: Controversies and Critical Questions in Foundations of Indirect Discrimination Law 16 (2018).
[17] Jeremy Waldron, Indirect Discrimination in Equality and Discrimination 83-100 (1985).
[18] Eidelson, supra note 14; See Sandra Fredman, Substantive Equality Revisited, 14(3) International Journal of Constitutional Law 712 (2016); See Dhruva Gandhi, Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14, 13(4) NUJS Law Review 4 (2020); See also John Gardner, Liberals and Unlawful Discrimination, 9(1) Oxford Journal of Legal Studies 1, 6 (1989).
[19] Deborah Hellman, When Is Discrimination Wrong? 105-121 (2008).
[20] Moreau, supra note 11, 136.
[21] Sophia Moreau, What is Discrimination?, 38(2) Philosophy & Public Affairs 143-148 (2010); See Hellman, supra note 19, 1.
[22] Lt. Colonel Nitisha & Ors. v. Union of India & Ors., 2021 SCC OnLine SC 261, ¶65.
[23] Fraser v. Canada (Attorney General), 2020 SCC 28.
[24] Denise Reaume, Harm & Fault in Discrimination: The Transition from Intentional to Adverse Effect Discrimination, 2(1) Theoretical Inquiries in Law 349 (2001); John Gardner, On the Ground of Her Sex(uality), 18 Oxford Journal of Legal Studies 182 (1998); See Aziz Z. Huq, What is Discriminatory Intent?, 103 Cornell Law Review 1211 (2019).
[25] See Oran Doyle, Direct Discrimination, Indirect Discrimination and Autonomy, 27(3) Oxford Journal of Legal Studies 537, 548 (2007); Gardner, supra note 18.
[26] Moreau, supra note 11, 134-39; Deborah Hellman, Equal Protection in the Key of Respect, 123(8) Yale Law Journal 3055 (2014); Dhruva Gandhi, Nitisha v. Union of India: Furthering A Discussion On Discriminatory Intent, 14 NUJS Law Review 1 (2021).
[27] Gandhi, supra note 26.
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