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Indirect Discrimination

There is no chance for the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on only one wing. There is no hope for that family or country where there is no estimation of women, where they live in sadness. For this reason, they have to be raised first. - Swami Vivekanada

It is a paradox of our Indian society, that on one side we worship the women Goddesses and the other we mete out subhuman treatment to the women. In Indian society the position of women has always looked less important than the men. Since the time of Ramayana and Mahabharata, women have always been easy victims of gender-based discrimination.

Generally discrimination can be of two types:
Direct & Indirect. Indirect discrimination refers to a situation where a rule or a practice that is seemingly neutral or colour-blind, nonetheless has a disproportionately adverse impact upon a set or group of people. For long indirect discrimination has been conspicuous by its absence in Indian jurisprudence. Recently through, a few decisions rendered by the Supreme Court and High Courts has recognised this type of discrimination.

Direct and indirect discrimination are mutually exclusive. We cannot have both at once. The main difference between them is that, direct discrimination cannot be justified but indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim. The protection against indirect discrimination has been confirmed by the Himan Rights Committee.

It is observed that gender based discrimination is started by the family members from the time of birth. A female child does not usually receive the same attention and affection that is bestowed upon a male child in Indian traditional families. A girl child is still considered a burden because she crushes her family with marriage and dowry expenses.

Girls are treated as an economic drain. Women's contributions go unrecognised, unnoticed and unpaid. It is also true that there are various special legislations present for improvement of status of women. Since the time of Manu, law has always accorded special protection to women.

The Constitution of India radically and deliberately departs from the traditional inferior position of women in the society and treats every woman equal to man as citizen and as an individual in the democratic system. Under Indian Penal Code, 1860 there are some special provisions to protect women from exploitation.

According to Articles -14, 15, 16, 17, 19, 20 & 21 fundamental right of equality available to women in India as also directive principle of state policy relating to women specific concern women directly and a very special bearing on their status. While some judges say indirect discrimination under Article-14 others located in under Article-15(1).

Article-15(1) is in the nature of an absolute prohibition whereas Article-14 is not. There is a tangible difference in the implication of locating discrimination under Article-14 or 15(1). Indirect discrimination seems to focus on the effects of a measures. The origin of the concept can be traced to a decision of the USA's Supreme Court in Griggs vs Duke Power Co. (8 March 1971).

Navtej Singh Johar vs Union Of India (6 September, 2018) is welcome for bringing indirect discrimination within the field of Article-15(1). Justice D.Y. Chandrachud opined:
"If any group of discrimination whether direct or indirect is founded on a stereotypical understanding of the role of sex, it would not be distinguishable from the discrimination which is prohibited by Article-15 on the ground only of sex.

On 17 February, 2020 the Supreme Court delivered judgement in Secretary Ministry Of Defence vs Babita Puniya holding that the Indian Army's policy of denying women officers a Permanent Commission (PC) was discriminatory. Following this judgement, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The result of this progress that involved 615 eligible women officers spurred a second round of litigation before the Apex Court.

Recently in Lt. Col Nitisha vs Union of India (25March 2021), the Supreme Court while speaking through a division bench of Justice D.Y Chandrachud and Justice M.R. Shah held that the implementation of the Babita Puniya judgment had also been discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account of what indirect discrimination entails.

By invoking the idea of indirect discrimination, Justice D.Y. Chandrachud has emphasized the situation of discrimination. A facially neutral law might be seen non-discriminatory from an uncritical perspective, yet the same rule might be oppressive for particular classes.

Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristics and you are disadvantaged as part of this group. If this happens, the person or organisation applying the policy must show that there is a good reason for it.

This is known as objective justification. Indirect discrimination is more dangerous than positive discrimination because such discrimination does not seen the face of how but effect the society at large and also effect the policy that make distinction a certain class from the society. Discrimination must always be drawn out, like stone from the grains.

Written By: Shashwata Sahu, Advocate, LLM, KIIT School of Law

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