Viability of implanting the Doctrine of Indirect Discrimination under the Indian Constitution: A Critical Analysis of the Judgement in Lt. Col. Nitisha v Union of India

*Bhuwan Sarine

Introduction

On 25 March 2021, a division bench of the Supreme Court in Lt. Col. Nitisha and Ors. v. Union of India, gave formal recognition to the doctrine of indirect discrimination under Articles 14 and 15(1) of the Indian constitution. Justice D.Y. Chandrachud, who delivered the judgement, held that the evaluation criteria set by the Army to grant Permanent Commission (PC) to  Women SSC Officers (WSSCOs) constituted indirect discrimination against them, under the garb of being facially neutral.

The judgement is noteworthy, since the doctrine was implanted into the Indian scenario after visiting its theoretical foundations and position in foreign jurisdictions such as the US, Canada and South Africa. The Court also arrived at a test for conducting indirect discrimination enquiry in India, by extracting the framework laid down by the Canadian Supreme Court in Joanne Fraser v. Attorney General of Canada. Overall, it would not be an overstatement to say that the judgement amounts to a huge conceptual leap in the constitutional jurisprudence of India.

This article seeks to critically assess the judgement in Nitisha and argue that the doctrine of indirect discrimination, in the form in which it was established in the judgement, is not workable under Indian conditions. To that end, the article is divided into three sections. The first section provides a brief overview of the judgement, the second section shows that the distinction drawn between direct and indirect discrimination was not required, and the third section provides the reasons as to why the implanted doctrine is not practicable in India.

The Judgement at a Glance 

The case dealt with a batch of petitions filed under Article 32 by WSSCOs, questioning the manner in which the decision in Ministry of Defence v. Babita Puniya had been implemented by the Union Government. Earlier, the army denied promotion to women officers from SSC to PC which was corrected by the Supreme Court in Babita Puniya wherein they directed the Union Government to consider all WSSCOs for the grant of PCs and issued several other directions. In this case, the selection criteria was challenged for being discriminatory towards women officers. 

Implanting and Applying the Doctrine

While the court agreed that the jurisprudence related to indirect discrimination in India was at a nascent stage, it nevertheless referred to previous cases which had impliedly embodied the doctrine. While visiting the theoretical foundations of the doctrine in other jurisdictions, the court defined indirect discrimination as caused by facially neutral rules, which, while formally treating everyone equally, disproportionately impact and discriminate against a particular group of people in practice. The court used the intent-impact divide to separate direct and indirect forms of discrimination. The latter, as per Justice Chandrachud, is premised on impact since discrimination can also occur on the basis of implicit bias and unjust status quo, when the rule in question is without any intention to discriminate.

After implanting the doctrine, the court held that the procedure of writing ACRs of women officers was influenced by the fact that at the relevant time, an option of PC was not available to them. It took into account the lack of career enhancement opportunities available to the women officers as perpetuating the systemic discrimination against them. On medical criteria, the court held its timing to be discriminatory because it was to be applied to women officers at 40-50 years of age, a decade after they were granted PC by the Delhi HC. This, coupled with the fact that their ACRs were pegged back at their 5th/10th year of service, showed duality in the approach adopted by the state. The court held the entire evaluation criteria as constituting indirect discrimination against women officers.

The two-pronged test laid down in Fraser v. Attorney General was employed by the court herein. The first prong, i.e., whether the impugned rule disproportionately affects a particular group, was satisfied since the evaluation criteria, made for male officers, posed obstacles to the women officers. The second prong, whether the rule has the effect of reinforcing or perpetuating disadvantage, was also met since the exclusionary criteria were operating amidst a background of systemic discrimination against women, and as a result, exacerbated the disadvantage faced by them.

Was the distinction drawn between direct and indirect discrimination required? 

Though Nitisha is a stepping stone in the constitutional jurisprudence of India, the question remains whether the court needed to implant the doctrine of indirect discrimination, or could have done without it. The question arises because the petitioners herein did not anywhere mention indirect discrimination in their submissions. Their contention was simply that the medical criteria as well as other components of evaluation were unjust and discriminatory towards them. Since the claims referred to discrimination generally, the court could have done without implanting the doctrine.

A. Articles 14 and 15 (1)

The reason why the court could have managed without indirect discrimination is that our constitution, under article 15, prohibits all types of discrimination, without making any distinction between direct and indirect forms. In the Constituent Assembly Debates pertaining to Article 14 as well as Article 15(1), there was no discussion regarding the direct and indirect forms. Instead, the debates focused more on grounds of discrimination, and intended to injunct the State from discriminating on those grounds.[1] Article 14 was supposed to be general in nature, the genus of which Articles 15 and 16 are the species. Article 14 prohibits the state from denying equality to ‘any person.’

The court could have used the wide ambit of ‘equal protection of the laws’ under Article 14, if it was satisfied that the factual matrix in Nitisha does not come squarely under the grounds enumerated under Article 15(1). However, as it appears, the ground of discrimination based on ‘sex’ under Article 15(1) was applicable here, since it does not make any distinction between how the discrimination was going on, i.e., directly or indirectly.

To contextualise the application of Article 15(1), the facts in Nitisha disclose a prima facie case of discrimination based on ‘sex.’ The benchmarking criteria (placing women officers on a par with the lowest ranked male officer of the corresponding batch) was to be fulfilled by women officers only, with no corresponding obligation on the male officers who were granted PC. Further, it was mandated for women officers even though in a number of years, the total number of male officers granted PC were below 250. This was unnecessary because for male officers, the question of using competitive merit arose only if more than 250 officers fulfilled the cut-off grade annually. If the number of male officers who achieved the requisite 60% cut-off was less than 250, then there is no requirement of using competitive merit among those who meet the minimum threshold. Consequently, applying the benchmarking criteria for women officers in those years served no purpose. Thus, women officers had a two-layered criteria to fulfil: inter se competition amongst themselves, and benchmarking with the lowest ranked male candidate. This was different from male officers, who had to go through a single eligibility criteria. 

Similarly, the medical criteria, wherein women officers at 40-50 years were required to meet the same parameters as male officers at 25-30 years of age, was an instance of sex-based discrimination since male officers were not required to fulfil the rigorous standards at an advanced age for continuing in service. Male officers had been granted PC at 25-30 years of age, when meeting the standards was relatively easier. For women officers, this situation had arisen because the army did not grant them PC at the same age, despite the Delhi HC issuing such directions a decade ago. The court could have brought these instances within the ambit of Article 15(1) as discrimination based on ‘sex’ without making the distinction between direct and indirect forms.

B. The Emphasis on ‘Impact’

The court made an intent-based distinction between direct and indirect discrimination. First, there might arise situations where the intent-impact divide gets blurred, and the doctrine might not hold water. Second, it is erroneous to say that there is a strict separation between intentional (direct) and consequential (indirect) forms of discrimination since it would be tantamount to saying that direct discrimination is only concerned with the mental state, and does not entail any consequences. If there is no consequence or impact, it fails to answer how the discrimination manifests itself. Both direct as well as indirect forms are characterized by ‘impact.’

In Indian Express Newspapers v. Union of India, the court used the test of ‘impact’ to assess the abridgement of Articles 19(1)(a) and (g) as a result of the imposition of import duty on newsprint. Instead of implanting the doctrine and creating this distinction, the court in Nitisha could also have focused solely on impact/consequence of the evaluation criteria and held it to be constituting direct discrimination. 

Whether Indirect Discrimination is Workable under Indian Constitution? 

A. The Missed Opportunity

In Nitisha, while the court provided a theoretical understanding of indirect discrimination, it missed the chance of locating the same within the wording of Articles 15 and 16. This was required since the doctrine was newly implanted and the constitutional history does not offer much support to establish the same within the text of Articles 15 and 16. The missed chance could prove costly because of the misplaced interpretation of Article 15(1) in Air India v. Nergesh Meerza. There, the court interpreted ‘only’ under Article 15(1) to mean that discrimination should be based solely on one ground enumerated therein to attract the prohibition.  If it is based on ‘other considerations’ alongside any of the grounds, it goes beyond the ambit of Article 15(1).

Nergesh Meerza is yet to be overruled, and if that test is applied, indirect discrimination based on any ground coupled with other factors would become justified. While the facts in Nitisha were such that the ground of ‘sex’ was solely at play, there might arise cases in the future where indirect discrimination would be an outcome of several factors working simultaneously. For that reason, the court needed to locate the doctrine implanted in Nitisha within the text of Articles 15 and 16.

The missed opportunity becomes further pronounced when seen in light of the fact that the jurisdictions which the court referred to for implanting the doctrine already had either statutory provisions or an entrenched chain of case laws in place for indirect discrimination. The court in Nitisha, thus, did a half-finished work of implanting a foreign doctrine.

B. Issue with the Canadian SC Test 

The first-prong of the test laid down in Fraser requires a causal link between the rule in question and its disproportionate impact upon a group. This requirement burdens the claimants since not all cases will have a direct causal link, as in Nitisha. In some cases, discrimination might be present even though the rule and its impact are remotely connected, or even correlated. The court appeared to conflate the requirement of correlation with that of causation.

The court noted that indirect discrimination takes place amidst a background of systemic disadvantage towards a group. In such a scenario, it would not be possible to show a particular norm as the main or direct cause of the impact. Instead, the requirement should have been one of correlation between the rule and the impact, easing the burden on the claimants.

C. Justification for Norms 

While evolving an analytical framework for Indian conditions, the court mentioned that indirect discrimination could be justified if the rule is necessary for ‘successful job performance.’ This would require courts to examine if other less discriminatory alternative measures are there to replace the rule in question. However, the court was not clear as to the scope of such a justification, and how should the petitioner rebut any such justification.

The court also remained silent regarding who would bear the burden of pointing to less discriminatory alternatives. Is the petitioner required to point to other less discriminatory alternatives, or is the employer burdened to show that no alternatives exist?

Besides the lack of clarity, the point about accepting justifications is also inward-looking, and against the idea of substantive equality. Sandra Fredman asserts that the right to substantive equality would not be satisfied by permitting justifications. Rather, the focus should be to enable the excluded group to meet the job criteria better. This would entail supply and demand side changes as well as a positive duty on employers to take pre-emptive action so as to avoid any disproportionate impact on any group.

Hence, permitting justifications would complicate matters in practice as well as work against India’s constitutional commitment to substantive equality.

Conclusion

The judgement in Nitisha is praiseworthy for adding another dimension to our understanding of the forms of discrimination. However, there are some gaping holes in the judgement which need attention. It is argued in the second section that the court could have managed without implanting the doctrine and creating an intent-impact divide. Going ahead, the third section gives reasons as to why the doctrine, as established in Nitisha, is not workable in India. Overall, it is asserted that the test adopted from Fraser, as well as the permitting of justifications, makes matters complicated in order to put the doctrine in practice. Further, not situating it within the equality code of the constitution leaves indirect discrimination, at present, strictly as a matter of theory.

___________________________________________________________________________ 

Endnotes:

[1] Samaraditya Pal, India’s Constitution: Origins and Evolution (1st edn, Vol. 1, LexisNexis 2014) 532.

[2] ibid.

*Bhuwan Sarine is a third-year student at National Law School of India University (NLSIU), Bengaluru.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.