Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14

Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14

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Volume 13 Issue 4 ()

For long, disparate impact or indirect discrimination has been absent from Indian discrimination law jurisprudence. Recently though, some decisions by the Supreme Court and the High Courts have recognised this type of discrimination. However, even in this nascent jurisprudence we notice a dichotomy. While some judges situate indirect discrimination under Article 14, others have located it under Article 15(1). In this essay, I contend that indirect discrimination is textually, evidentially and normatively incompatible with Article 15(1). Article 15(1) must only cover cases of direct discrimination. Nevertheless, discrimination along the lines of certain prohibited markers which are tied to individual dignity and autonomy ought to be treated differentially even under Article 14. I argue for a heightened standard of review under Article 14.

Cite as: Dhruva Gandhi, Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14, 13 NUJS L. Rev. 699 (2020)