Permanent Commission For Women Army Officers- Indirect Discrimination Even Without Discriminatory Intent Must Be Prohibited: Supreme Court

The Supreme Court, in its judgment which declared that the evaluation criteria adopted by the Indian Army to consider the grant of permanent commission for women officers to be "arbitrary and irrational", discussed the 'doctrine of indirect discrimination'.Justice DY Chandrachud, who authored the judgment, observed that the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. The court observed that, in order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.Direct Discrimination Based On Intent, Indirect Discrimination On EffectThe bench observed that the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect."Alternatively, it can be based on the fact that the former cannot be justified, while the latter can. We are of the considered view that the intention versus effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario HRC (supra), requiring proof of intention to establish discrimination puts an "insuperable barrier in the way of a complainant seeking a remedy." It is this barrier that a robust conception of indirect discrimination can enable us to counteract."Statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination....on the nature of evidence required to prove indirect discrimination, statistical evidence that can establish how the impugned provision, criteria or practice is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As Professor Sandra Fredman notes, "Aptitude tests, interview and selection processes, and other apparently scientific and neutral measures might never invite scrutiny unless data is available to dislodge these assumptions." Consistent with the Canadian Supreme Court's approach in Fraser (supra), we do not think that it would be wise to lay down any quantitative thresholds for the nature of statistical disparity that must be established for a claimant to succeed. Equally, we do not think that an absolutist position can be adopted as to the nature of evidence that must be brought forth to succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect discrimination. This was clarified by the European Court of Human Rights in a case concerning fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with Roma-only classes. In assessing the claims of the fifteen Croatians, the court observed that indirect discrimination can be proved without statistical evidence. Therefore, statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination.Two stage Test For indirect discrimination enquiryInsofar as the fashion in which the indirect discrimination enquiry must be conducted, we think that the two-stage test laid down by the Canadian Supreme Court in Fraser (supra) offers a well-structured framework of analysis as it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks to remedy. First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an evidentiary matter, this entails a consideration of material that demonstrates that "membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group". However, as such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common sense, the Court held: "In some cases, evidence about a group will show such a strong association with certain traits— such as pregnancy...

Permanent Commission For Women Army Officers- Indirect Discrimination Even Without Discriminatory Intent Must Be Prohibited: Supreme Court

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