From Silence to Justice: Indirect Discrimination and Constitutional Equality

 From Silence to Justice: Indirect Discrimination and Constitutional Equality

Abstract

Indirect discrimination occurs when neutral laws or policies have disproportionate adverse effects on marginalized groups, despite appearing impartial on the surface. While India's Constitution enshrines the right to equality through Articles 14, 15, and 16, its jurisprudence has not developed a clear doctrine or structured approach to address indirect discrimination. This gap allows systemic and structural inequalities to persist, hidden beneath seemingly neutral frameworks.

This blog employs a doctrinal analysis of constitutional provisions and judicial precedents, along with a comparative legal study of jurisdictions like the UK, Canada, and South Africa. It identifies the absence of concrete judicial tests in India and explores the potential importation of international models. Key findings suggest that to fulfill the promise of substantive equality, India must shift from an intent-based to an impact-based approach. The blog proposes structured reforms, including legislative action and judicial innovation.

Introduction: Right to Equality is a Constitutional Pride

The Indian Constitution is more than a legal document—it is a moral charter for justice. It declares in the Preamble the promise of “Justice—social, economic and political” and “Equality of status and opportunity.” These words are not mere aspirations but binding commitments that define the spirit of Indian democracy.

In the current socio-legal landscape, discrimination is not always overt. While direct discrimination, where unfavorable treatment is explicit and intentional, is relatively easy to identify, indirect discrimination is subtle, systemic, and often hidden behind neutral policies that disproportionately burden marginalized groups. This makes it harder to detect, prove, and remedy under current Indian law.

Although Indian courts have delivered progressive judgments on equality, there remains a notable lacuna in explicitly addressing indirect discrimination. The key question arises: Does India’s current constitutional framework and judicial reasoning adequately recognize and redress indirect discrimination? If not, what doctrinal, legislative, and comparative insights can be adopted to fill this gap?

Countries such as the UK (with its Equality Act 2010), South Africa (with its impact-based constitutional interpretation), and Canada (through Section 15 jurisprudence) have created structured frameworks to tackle adverse effects of facially neutral laws. These models offer valuable lessons on burden-shifting, proportionality tests, and impact assessments that could enrich Indian equality jurisprudence.

Indirect Discrimination: Unseen Bias

Constitutional Foundations

Articles 14, 15, and 16 of the Indian Constitution prohibit discrimination and guarantee equality before the law. However, Indian jurisprudence has traditionally focused on formal equality—treating likes alike—without adequately examining the outcomes of such treatment. This approach overlooks systemic biases that affect groups differently based on caste, gender, religion, disability, or class.

Defining Indirect Discrimination

Indirect discrimination occurs when a rule, policy, or practice that applies equally to everyone disproportionately impacts members of a protected group, without being objectively justifiable.

Examples:

• A job requirement mandating a specific physical test might exclude women or persons with disabilities.

• School uniform codes may disproportionately affect religious minorities.

• Reservation criteria may unintentionally exclude intersectional identities like Dalit transgender persons.

Contrast with Direct Discrimination

Direct discrimination involves intent and explicit exclusion. Indirect discrimination is effect-based, even when the law is facially neutral. Hence, the shift from intent to impact becomes crucial. Legal scholars like Sandra Fredman advocate for substantive equality, which focuses on equality of outcomes rather than just opportunities. Indian scholar Tarunabh Khaitan similarly critiques the formalist understanding of equality in Indian law.

Purpose vs. Effect Model

Indian courts often ask: What was the intent behind the policy? In contrast, jurisdictions like the US (under Title VII) and the UK focus on disparate impact, regardless of intent. Indian law must evolve towards an effects-based framework to address real-world structural exclusions.

Comparative Approaches

• UK Equality Act 2010: Recognizes indirect discrimination statutorily. Once a prima facie case is established, the burden shifts to the respondent to justify the impact based on a legitimate aim pursued proportionately.

• Canada: Under Section 15 of the Charter, courts apply an adverse effects test, even if intent is absent.

• South Africa: Its Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) focus explicitly on systemic inequality and impact.

These approaches show how impact-based reasoning, burden-shifting, and intersectionality can be judicially operationalized.

Judicial Gaps in Equality Doctrine

Textual and Structural Analysis

Articles 14 and 15(1) can accommodate a doctrine of indirect discrimination. Article 14 ensures equality before the law, and Article 15 prohibits discrimination on specific grounds. However, courts have not consistently interpreted these provisions to include impact-based harms.

Evolving Judicial Recognition

• State of Kerala v. N.M. Thomas (1976): The Court hinted at considering the effects of classifications, but lacked doctrinal clarity.

• Anuj Garg v. Hotel Association of India (2008): Advanced substantive equality by invalidating laws based on gender stereotypes.

• Naz Foundation v. Union of India (2009): Recognized intersectional harms to the LGBTQ+ community, though indirect discrimination wasn’t explicitly discussed.

• Navtej Singh Johar v. Union of India (2018): Affirmed intersectionality, dignity, and inclusion, paving the way for broader interpretations.

• Babita Puniya v. Union of India (2020): Addressed structural barriers faced by women in the armed forces.

• Nitisha v. Union of India (2021): Landmark case where the Supreme Court explicitly defined indirect discrimination, emphasizing that even facially neutral policies may result in disproportionate hardship.

Despite these strides, the Supreme Court has not articulated a consistent test for identifying or justifying indirect discrimination.

Conclusion and Future Directions

The Indian Constitution is a living document, meant to adapt to the needs of an evolving society. Yet, a crucial area where it remains silent is in the doctrinal development of indirect discrimination. Despite landmark judgments and a growing global consensus on impact-based equality, Indian jurisprudence has yet to embrace this fully.

Recognizing indirect discrimination is not merely a technical legal reform—it is a moral imperative. It affirms that equality is not just about sameness of treatment but fairness of outcomes. Marginalized communities cannot wait for piecemeal relief. What is needed is a structured, judicially enforceable framework backed by legislative will. 

Closing Credit

 Author- Isha Tiwari

"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"