Locating ‘Indirect Discrimination’ under the Indian Constitution: Parity in the Indian Army

In 2021, the Supreme Court of India (“SCOI” or “Court”) delivered its judgment in Lt. Col. Nitisha v. Union of India (“Nitisha”) wherein the Court ruled for the first time, that indirect discrimination violates the right to equality under the Indian Constitution. The Court recognised that the policy for the grant of Permanent Commission (“PC”) to women army officers was facially neutral but indirectly discriminatory. The Court held that because women are structurally deprived of opportunities, pre-existing policies are often implemented in a formalistic manner. Thus, the criteria for the granting of PCs indirectly discriminated against women. This note delves into the Court’s decision and analyses the Indian approach to the doctrine of indirect discrimination.

Earlier in 2020, the SCOI in Ministry of Defense v. Babita Puniya paved the way for granting PC to women officers in the army. Thereafter, a criteria measure was adopted for the grant of PC to women officers which included, women officers to pass a certain percentage score and  substantially score higher than the lowest-scoring male officer who had been granted a PC. It is pertinent to note that, women applying for the grant of PC were between 40-50 age, and had to compete with the same medical fitness criterion that their male counterparts had to achieve for the grant of PCs when they were between 20-25 age. Thus, these criteria were contended to be discriminatory and arbitrary owing to the structural denial of opportunity to women.

Indirect discrimination is defined as any neutral measure or provision that in practise affects a disadvantaged community without meeting a specific standard of justification by a legitimate aim. The recognition of indirect discrimination in a measure or provision ensures substantive equality for the disadvantaged section. The Indian judiciary had identified the notion of ‘indirect discrimination’ in the constitutional challenge of the sodomy law, but, in Nitisha, for the very first time ruled indirect discrimination to be unconstitutional. The Court comprehensively interpreted the doctrine and clarified its scope and content.  

The Court deliberated the two competing visions of formal and substantive equality and held that indirect discrimination is ingrained in the concept of substantive equality which in turn forms part of Articles 14 (equality before law) and 15(1) (non-discrimination) of the Constitution. An intention-centric anti-discrimination inquiry entails examining the underlying motive(s) of the discriminator. In contrast, an effect-centric inquiry requires adjudication beyond the facially neutral criteria to consider the subordinative or disadvantageous effect of the impugned law or policy on the individual or the group concerned. The Court reiterated various foreign and domestic judgments to highlight that the legal inquiry while adjudicating antidiscrimination claims has changed from an intention-centric rule (P. 1213-14) to an effect-centric rule (para 46). The Court recognised that the indirect discrimination doctrine aptly considers that discrimination can occur through implicit bias or consequence of structural reinforcement as well. The said considerations provide accounting for ground realities and further the constitutional promise of anti-stereotyping which in turn guarantees substantive equality.

In Nitisha, the Court formulated an alternative structure of equality and discrimination by establishing a parallel distinction between the discrimination caused by individual actions in respect of intent & effect; and the impersonal functioning of institutions and structures. Justice Chandrachud held that the Constitution's commitment to substantive equality necessitated consideration for both systemic and indirect discrimination. After a comparative analysis of foreign jurisprudence on this aspect, the Court adopted the two-stage Fraser test (‘Test’) from the Canadian Supreme Court.  

The Court observed that the test not only provides an effective analytical framework to conduct indirect discrimination enquiry but also considers the impact and the resultant harm caused by the policy under challenge. The test propounds that the court shall first consider the evidence of disparate impact; and secondly the effect of the policy on a particular group. The disadvantageous impact can be in the form of social, political, or economic exclusion or exploitation and psychological or physical harm. By adopting this test, the court lays a robust mechanism for the Indian courts for determining the claim of indirect discrimination. The test effectively captures the indirect discrimination by analysing the effect of the impugned measure or provision and its resultant exacerbation of the disadvantage. The adoption of the Fraser approach by the court makes Nitisha an important precedent reinforcing the systemic discrimination model.

Further, in Nitisha, the court rightly emphasized and refrained from laying down a stringent qualitative threshold or requirement of statistical evidence for proving the evidentiary prong of the test. The Court warned against a redundant approach of using the test of direct and indirect discrimination. It held that to achieve substantive equality, structural-based systemic discrimination (Marie Mercat-Bruns, p.5-6) analysis must be holistically conducted by the courts. The court laudably ruled the Army’s evaluation criteria to be a form of indirect and systemic discrimination which caused economic-psychological harm to the female officers and denied them their dignity. 

Nitisha’s acknowledgement and articulation of the indirect discrimination doctrine under the Indian Constitution is a significant advancement. The judgment not only calls for uplifting women’s position in the army but further recognises and grounds the notion of ‘indirect discrimination’ and ‘systemic discrimination’ in Indian law. By acknowledging the need to move from a narrow-pedantic approach of direct discrimination to a more systemic approach of considering 'multiple axles' of discrimination, Nitisha proves to be a transformative tipping point for Indian equality jurisprudence. 

Sarthak Gupta is an undergraduate law student at Nirma University, India, and a contributor to the Dhaka Law Review (DHLR).

Pruthvirajsinh Zala is a Legal Intern for Senior Advocate of the Supreme Court of India, Arvind P. Datar.