SC To Put Laws, Decisions To ‘Indirect Discrimination' Test

Concept Introduced In Indian Jurisprudence For First Time

- Dhananjay Mahapatra

The Supreme Court on Thursday introduced indirect discrimination’ criterion in Indian jurisprudence to bolster the age old equality and non-discrimination touchstones often used by constitutional courts to test validity of laws and administrative decisions.

A bench headed by Justice D Y Chandrachud labored on the ‘indirect discrimination’ concept by undertaking an elaborate study of evolution and sharpening of the subject in the constitutional courts of the United States, the United Kingdom, South Africa and Canada, before zeroing in on the practicality aspect of the new validity testing norm from judicial practices in the UK.

While developing the concept for Indian jurisprudence, the judgment appeared to adopt as its foundation what Baroness Hale of the UK supreme court said in a 2009 judgment: “Direct and indirect discrimination are mutually exclusive. You cannot have both at once. The main difference between them is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”