The Doctrine of Indirect Discrimination

High Courts in India as well as Supreme Court recognize Doctrine of Indirect Discrimination. Only by exercising close scrutiny and exhibiting attentiveness to the possibility of alternatives can a Court ensure, full potential of Doctrine of Indirect Discrimination is realized and not lost in its application.

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In a case of direct discrimination, judicial enquiry is confined to the act or conduct at issue, abstracted from the social setting or background fact-situation in which the act or conduct takes place. In indirect discrimination, the subject matter of enquiry is the institutional or societal framework within which the impugned conduct occurs. In order to achieve substantive equality prescribed under Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. We are of the considered view, the intention versus effects distinction is a sound jurisprudential basis to distinguish direct from indirect discrimination. The most compelling feature of indirect discrimination is it prohibits conduct, which though not intended to be discriminatory, has that effect. Absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims. European Court of Human Rights observed, indirect discrimination can be proved without statistical evidence [Orsus v. Croatia, [2010] ECHR 337, Paragraph 153].

Canadian Supreme Court in Fraser v. Canada (Attorney General), 2020 SCC 28 outlined a two-stage test for conducting an indirect discrimination enquiry. First, Court has to enquire whether the impugned rule disproportionately affects a particular group. Second, 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.

For the laboring class, which is predominantly constituted by members facing multiple axels of marginalization, litigating their right to work with equality and dignity may be a distant dream. It is our earnest hope, members of even informal workforces, in addition to battling precarity at their places of work, will be able to assert a right to equality and dignity.

Hon’ble Justice Dr. D.Y. Chandrachud, Lt. Col Nitisha v. Union of India, [Writ Petition (Civil) No. 1109 of 2020].