Indirect discrimination and substantive equality in Nitisha: Easier said than done under Indian constitutional jurisprudence
| Author | Vandita Khanna |
| DOI | 10.1177/13582291211062363 |
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
| Subject Matter | Case Commentaries |
Case Commentary
International Journal of
Discrimination and the Law
2022, Vol. 22(1) 74–86
© The Author(s) 2022
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DOI: 10.1177/13582291211062363
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Indirect discrimination and
substantive equality in Nitisha:
Easier said than done under
Indian constitutional
jurisprudence
Vandita Khanna
Abstract
This note analyses the recent landmark case of Lt Col Nitisha v Union of India, dated 25
March 2021, where the Supreme Court of India formally recognised the concept of
indirect discrimination under Articles 14 and 15(1) of the Indian Constitution. Despite the
favourable outcome and conceptual leaps in acknowledging that indirect discrimination is
closely tied to substantive equality, the reasoning in the judgment does not fully cohere
with these conceptual insights. This note critically examines how Nitisha poses barriers to
addressing indirect discrimination with a substantive equality lens, particularly because of
an intent-based divide between direct and indirect discrimination, a causal requirement
between the norm and disparate impact, adoption of mirror comparators and the lack of
clarity on justifications.
Keywords
Indirect discrimination, substantive equality, India, constitutional law, sex, discrimination
law, Supreme Court of India
Introduction
The legal concept of indirect discrimination was first recognised by the US Supreme
Court in Griggs v Duke Power in 1971.
1
The Court had held that practices ‘neutral on their
University of Cambridge, Cambridge, UK
Corresponding author:
Vandita Khanna, University of Cambridge, Flat 3, 28 Ferry Path, Cambridge CB4 1HB, UK.
Email: vk347@cam.ac.uk
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