In February of 2020, the Apex Court in the landmark case of Secretary, Ministry of Defence v Babita Puniya ordered the grant of a permanent commission to women officers in the territorial army.[i]Though belated, the judgement came as a relief to the Women Short Service Commission Officers (“WSSCOs”) who fought a legal battle for over a decade. However, almost a year later, 86 WSSCOs approached the Supreme Court in Lt. Col. Nitisha v. Union of India, calling into question the modalities which were followed for assessing them in granting permanent commission.[ii] According to the petitioners, the criteria for the grant were inherently discriminatory. The division bench of Justices DY Chandrachud and MR Shah ruled in favour of WSSCOs and called the mode of assessment “indirectly discriminatory”. The Court chided the relevant authorities and said that that the rigorous medical assessment that WSSCOs are subjected to in their 40s and 50s is designed for male officers who are in their 20s and 30s. Additionally, the WSSCOs are also required to go through an arduous physical examination at an advanced age of their life which is used to assess the male officers at a much younger age. Hence, the Court said that such assessments that are designed in a way that suits the requirements of officers at an earlier age must not be imposed at a later age because of the mistake of the defendants.
Development of the Doctrine
The doctrine of Indirect Discrimination is at a nascent stage of development in India but is not unknown to other countries. It finds its origin in the US Supreme Court case of Griggs v. Duke Power.[iii] The employer, in this case, had adopted a practice of discriminating against black workers by putting in place a requirement of high-school education and a certain score in an aptitude test as pre-conditions for the job which were, in fact, irrelevant in performing the duties of the said job. The job required workers to maintain stations owned by the company which primarily include overseeing the work of the subordinates. However, the petitioners successfully proved before the court that people who were not educated have effectively performed this duty. The requirement was “neutrally worded” but it put black people at a serious disadvantage. The US Supreme Court pointed out that the recruitment policy was indirectly discriminatory. The Court in the Griggs case did something more than the protection of legal equality. It took into consideration not only the intent of the discriminator but also the effect of the policy. The Court ensured substantive equality and protected the interests of the black workers.
When a neutrally worded measure is adopted which, in practice tends to disproportionately disadvantage persons belonging to a particular group, the discrimination is said to be indirect.[iv] Recognition of indirect discrimination in a policy/law ensures substantive equality for the disadvantaged section.[v] The most compelling feature of indirect discrimination is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. In Naz Foundation v. Government of NCT of Delhi, the Delhi High Court had held that indirect discrimination occurs “when a provision or practice puts persons having a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”[vi]
The Court in the Nitisha case has minimized the scope of criticism with regards to its commitment to ensuring substantive equality. It held that courts must not only quash the discriminatory practice and compensate for any harm that was caused but also structure adequate remedies that facilitate social redistribution by providing for positive entitlements.
Determination of Indirect Discriminaton: The Present Siuation
Courts going beyond the application of routine concepts and making concerted efforts to evolve concepts to ensure justice is heartening to witness. However, rightly determining the existence of such nascent concepts is extremely important. Since indirect discrimination is mostly in the guise of neutrally worded policies, it becomes essential for the Court to provide certain measures to adequately determine the phenomenon. Although the determination of indirect discrimination will indeed be subject to the specific facts of the cases, with a rule or precedent in place, the incidence of arbitrariness will be minimized.
The Apex Court in the Nitisha case reasoned that one of the ways to check indirect discrimination is through collecting statistical evidence.[vii] However, it added that the absence of any statistical evidence cannot be a ground for dismissing claims of indirect discrimination. In Orsus and Ors v. Croatia, while assessing the claims of fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with Roma-only classes, the European Court of Human Rights observed that indirect discrimination can be proved without statistical evidence.[viii]
In the current case, the Supreme Court of India borrowed a two-stage test from Fraser v. Canada, a case of the Canadian Supreme Court, to effectively determine the existence of indirect discrimination.[ix] According to this test, firstly, the courts must look at the evidence to find out whether the policy in question disproportionately affects a certain section of the society. The Court recognized that such evidence may be hard to find and hence asserted that evidence generated from the claimant group itself will also serve as concrete evidence. Once, the evidence is collected, the courts are required to look at whether the policy disproportionately affects the particular group. The adverse effect might be in the form of social exclusion, economic exploitation, psychological harm, physical harm, or political exclusion.
An effective way to determine indirect discrimination is by considering the historical disadvantage that the claimant group has faced on the behest of any erroneous policy by other dominant groups. The historical account can indicate the intent of the discriminator in question.
The Scope of Judicial Application of the Doctrine
Today, it is often witnessed that policies that are meant for everyone, eventually lead to the exclusion of the marginalized communities. With the advent of technology, the exclusion of certain communities has become extremely rampant. The exclusion is often unintended, and hence the doctrine of indirect discrimination can adequately help the claimant groups getting remedies.
For example, the vaccination program that was undertaken by the government had mandatory online registration for the people of 18-45 age group, which put certain communities at a serious disadvantage.[x] National Health Family Survey 2020 stated that 60% of women in 12 states and Union Territories have never used the internet. Many software engineers are making use of public Application Programming Interface (APIs) that are available to build tools that send instant alerts to social media groups on apps like Telegram that they have created, to help people book slots as soon as they are made available. This is being done through data made publicly available by the developers of Co-WIN via a public API. This aggravates the vulnerability of the disadvantaged who cannot access such groups and are left far behind in the race to get vaccinated. Although the program is neutrally worded and the government does not intend to exclude that section of society, it still has a discriminatory effect. The two-stage test enumerates that a certain section is facing a disproportionate treatment as a result of which it suffers a disadvantage. In the present instance, a significant population of women do not have the access to electronic devices and are therefore out of the race to get vaccinated. Applying the two-stage test in the present instance, firstly, there is evidence (as stated above) to support the assertion that many women do not have the access to electronic devices and are therefore out of the race to get vaccinated as a result of which they are denied benefits which are generally available to other citizens. Secondly, this exclusion will disproportionately affect only the concerned sections leaving with a serious disadvantage due to the lack of internet access.
Such policies and laws especially which require internet access are increasingly becoming a norm. Despite a non-discriminatory intent, there is a serious disadvantage. The evolution of this doctrine can prove to be extremely beneficial in this regard.
The judgement of the Apex Court in Nitisha describing the various facets of indirect discrimination is worthy of plaudit. Although indirect discrimination was indeed previously identified by the Apex Court in the case of Navtej Singh Johar v. Union of India[xi], it is the first time that a comprehensive interpretation of the doctrine has been given by the Court which does not merely lay down the definition, but also determines the problem along with dissemination of measures to adequately remedy the problem.
This judgement comes in light of prevailing inequalities in the society. The doctrine can successfully address the prevailing inequalities as, unlike usual claims, it will not merely compensate the claimant group, rather the courts will structure relief that will help in social redistribution. This liberty of the courts to facilitate social reorganization can be a path-breaking tool in eradicating inequalities. Moreover, with the help of the two-stage test as described in the judgement, the claimant groups will find it easier to prove their disadvantage that it faces due to government schemes such as the vaccination program. The convenient fact for the claimant group is that the two-stage test does not necessarily require statistical evidence which often takes a lot of time to be compiled with and delays the litigation. The doctrine of Indirect Discrimination can also be an essential concept in the critical evolution of the Indian constitutional jurisprudence on Articles 14 and 15(1).
[i] Secy, Ministry of Defence v Babita Puniya (2020) 7 SCC 469
[ii] Lt Col Nitisha and Ors v Union of India 2021 SCC OnLine SC 261
[iii] Griggs v Duke Power 401 US 424 (1971)
[iv] Gautam Bhatia, ‘Indirect discrimination: Rules and Laws are Never Really ‘Neutral’’ (Hindustan Times, 28 Feb 2018) <www.hindustantimes.com/opinion/indirect-discrimination-rules-and-laws-are-never-really-neutral/story-WI1R1pAmkgN4zHja9gUeeP.html >
[v] Ashit Kumar, ‘Recognising Indirect Discrimination: An Ode to Justice DY Chandrachud’ (The Leaflet, 27 April 2021) <www.theleaflet.in/recognising-indirect-discrimination-an-ode-to-justice-d-y-chandrachud >
[vi] Naz Foundation v Government of NCT of Delhi (2016) 15 SCC 619
[vii] Gautam Bhatia, ‘Lt Col Nitisha vs Union of India: The Supreme Court Recognises Indirect Discrimination’ (Indian Constitution Law and Philosophy, 26 March 2021) <https://indconlawphil.wordpress.com/2021/03/26/lt-col-nitisha-vs-union-of-india-the-supreme-court-recognises-indirect-discrimination/>
[viii] Orsus and Ors v Croatia 15766/03
[ix] Fraser v Canada 2020 SCC 28
[x] Amala Govindarajan and Ananya K, ‘India’s Covid-19 Vaccination Policy Must Protect the Constitutional Rights of its Citizens’ (Oxford Human Rights Blog, 25 May 2021) <https://ohrh.law.ox.ac.uk/indias-covid-19-vaccination-policy-must-protect-the-constitutional-rights-of-its-citizens >
[xi] Navtej Singh Johar v Union of India 2018 10 SCC 1
Priyanshi Bhageria is a 1st year student of law at Ram Manohar Lohiya National Law University, Lucknow
Image Credits: Agence France-Presse (AFP)