Lawstreet Journal

“Indirect Discrimination Even Without Discriminatory Intent Must Be Prohibited” :SC on Permanent Commission for Women Army Officers

Lawstreet Journal 30 Mar 2021 9:21pm

Image courtesy: Lawstreet Journal Judiciary “Indirect Discrimination Even Without Discriminatory Intent Must Be Prohibited” :SC on Permanent Commission for Women Army Officers

The Supreme Court discussed the ‘doctrine of indirect discrimination’ in the judgement that declared the evaluation criteria adopted by the Indian Army to consider granting permanent commission to the Women Officers as “arbitrary and irrational.”

The judgement was authored by DY Chandrachud who went on to observe how discrimination is not of conscious design or malicious intent, it can just be a function. However, not being able to recognise the existing structures along with their way of doing things can have consequences like freezing an unjust status quo.

It was also observed that for even sans discriminatory intent must not be allowed in order to achieve the levels of substantive equality that our constitution proposes.

Distinction Between Direct & Indirect Discrimination

The Bench tried observing the difference between direct and indirect discrimination. It said that the former was based on intent while the latter was 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 ersus 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."… Continue Reading...


Tagged: Indian Army   Supreme Court of India  
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