Indirect discrimination and substantive equality in Nitisha: Easier said than done under Indian constitutional jurisprudence
Authors
Publication Date
2022-01-31Journal Title
International Journal of Discrimination and the Law
ISSN
1358-2291
Publisher
SAGE Publications
Volume
22
Issue
1
Pages
74-86
Language
en
Type
Other
This Version
VoR
Metadata
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Khanna, V. (2022). Indirect discrimination and substantive equality in Nitisha: Easier said than done under Indian constitutional jurisprudence. [Other]. https://doi.org/10.1177/13582291211062363
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
Case Commentaries, Indirect discrimination, substantive equality, India, constitutional law, sex, discrimination law, Supreme Court of India
Identifiers
10.1177_13582291211062363
External DOI: https://doi.org/10.1177/13582291211062363
This record's DOI: https://doi.org/10.17863/CAM.82292
Rights
Licence:
https://creativecommons.org/licenses/by/4.0/
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