Indirect Discrimination- Role, Identification.

Indirect Discrimination- Role, Identification.

ABSTRACT

In the recent era discrimination laws have been evolving at an abnormal rate around the
globe, but in the Indian jurisdiction has not taken many steps to improvise on the same, one
such instance can be that of Indirect discrimination. It was in 2021-22 that the Indian Judiciary
formally recognised the concept of Indirect discrimination and it laid down the steps to identify
the same through the test prescribed by the Canadian Jurisdiction which is known as Fraser test.
Law has played a critical role in recognizing and conceptualizing the phenomenon. In this paper. I have tried to make an attempt to state the points which I feel the Indian Judiciary has to amend considering the diversity of the nation and give out a test which is more effective than that of Fraser to be brought into the picture into Indian Jurisprudence. I have also tried to get a conceptual distinction between direct and indirect discrimination, and their relative moral
badness in the legal field.

LIST OF AUTHORITIES

CASES REFERRED

1. Griggs v. Duke Power Co., 401 U.S. 424 (1971)
2. City Council of Pretoria v Walker (CCT8/97) (1998
3. Lt. Col. Nitisha v. Union of India, (2021) SCC 261
   STATUTES REFERRED
4. The Indian Constitution, 2022
5. The Equality Act, 2010
6. The Canadian Charter of Rights and freedom
   ARTICLES
7. Nienartowicz, M. (2014) “MaliszewskaDirect and Indirect Discrimination in European
   Union Law – How to Draw a Dividing Line? III(1), 41–55.,” International Journal of
   Social Sciences, III(1), 41–55., 3(1), pp. 41–55.
8. Tarunabh Khaitan, ‘Indirect Discrimination’ [2018] SSRN Electronic Journal
9. Sandra Fredman, Discrimination Law (first published 2002, Oxford University Press
   2002)
10. Magdalena Forowicz, Concepts of gender equality (Koninklijke brill nv 2017)
11. O Doyle, ‘Direct Discrimination, Indirect Discrimination and Autonomy’ (2007) 27(3)
    Oxford Journal of Legal Studies 537
12. Vandita Khanna, ‘Indirect discrimination and substantive equality in Nitisha: Easier said
    than done under Indian constitutional jurisprudence’ (2022) 22(1) International Journal of
    Discrimination and the Law 74,
13. Sandra Fredman, ‘Substantive equality revisited’ (2017) 116(1) Sravnitel’noe
    konstitucionnoe obozrenie 37
14. Lippert-Rasmussen, Kasper, Indirect Discrimination is Not Necessarily Unjust
    (December 8, 2014). Journal of Practical Ethics Volume 2 Issue 2, 2014, Available at
    SSRN

BOOKS

1. Sandra Fredman, Discrimination Law (first published 2002, Oxford University Press
   2002)

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2. Magdalena Forowicz, Concepts of gender equality (Koninklijke brill nv 2017)
3. Mrinal Satish, Discretion, Discrimination and the Rule of Law (first published 2016,
   Cambridge University Press 2016)

WEBSITES

1. ‘What is discrimination? | DO’ (Diskrimineringsombudsmannen│DO)
2. Aditya Roy and Sajana Gupta, ‘Mapping Indirect Discrimination in the Constitutional
   Framework of Equality and Non-Discrimination’ (Law School Policy Review & Kautilya
   Society, 26 July 2022)
3. Tom Lowenthal, ‘Essop v Home Office: Proving Indirect Discrimination’ (6 April
   2017)
4. ‘What is direct and indirect discrimination? | Equality and Human Rights
   Commission’ (Home Page | Equality and Human Rights Commission)

DICTIONARY

1. Discrimination “Cambridge Dictionary 2022”
2. Discrimination “Oxford Learners Dictionary 2022”
   NEWSPAPER
3. Chakravorty, S. (2019) Viewpoint: How the British reshaped India’s caste system, BBC
   News. BBC (19 June 2019)
4. Mallick, S. (2022) From ‘Dogs and Indians not allowed’ to Indian-origin Rishi Sunak
   with dog in 10 Downing Street: How tables have turned, TimesNow (08 Nov 2022).

The picture above depicts a scene of examination, where the examiner is prescribing the
applicants to clear the examination, which would rule out the idea of unfair selection from the
minds of the candidates, thereby ensuring everybody is selected fair and square. But is it even
fair to conduct an exam where the capabilities of the other candidates are judged at par to the
monkey. Thereby putting other candidates at a major disadvantage. It is the same case with
regards to discrimination and indirect discrimination in particular, the interpretation to which we
shall look in the following passages.
The major argument made in this paper shall be addressing the following points in major which
also shall include the definitions, meanings and other fundamentals.

1. How can we clearly identify the fine lines between direct and indirect discrimination and
   Why?
2. Is Indirect discrimination unjust in its true sense?
3. With reference to the Indian judiciary, whether the Fraser test borrowed from the
   Canadian Judicial judgments, to assess the indirect discrimination is sufficient or should
   we have a fine tuning to the prescribed methods.

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Discrimination:- How it began..!
India, the world’s largest democracy as it is called has seen and faced discrimination since the
ancient times i.e., of vedas where discrimination was done on the basis of caste (varna system),
then later in the medical era the same was done by the Muslim rulers to the Hindu subjects, after
the advent of the western power, they systematically started to discriminate against the Indians, 1
divided the hindus and muslims and eventually it so happened that (as most often the folklore
myths suggest) it was “forbidden for Indians and dogs to enter clubs” by the British, such was 2
the extent of discrimination that was practiced throughout the ages.
After the nation was conferred independence from the shackles of the ruthless British Empire on
15th August 1947. The nascent India shouldered the burden and responsibility of making itself a
nation that is Sovereign, Democratic Republic. To enforce these motives, a drafting committee
was set up by the constituent assembly under the chairmanship Dr. B.R.Ambedkar, who along
with other members of the committee drafted the Indian Constitution and presented it before the
assembly which after multiple heated debates was adopted by the assembly on 26th November
1949 and later came into force on 26th January 1950.
While drafting the Constitution, Dr.B.R.Ambedkar who was the chairman to the drafting
committee and a dalit by birth had gone through all forms of discrimination throughout his life,
thus to make sure that such kind of situations should not be faced by any individual in new born
India he brought his thoughts into actions by adding the Fundamental rights and under it, the
Article’s 14 to 18 which specifically talks about “Equality Rights”. Where Article 14 specifically
talks about the Right to Equality the Article 15 talks about Non-Discrimination.
Even after carefully curating the Indian Constitution by the framers there were many instances
where discrimination was still prevalent in the dominion which were reported and later due to the
Chakravorty, S. (2019) Viewpoint: How the British reshaped India’s caste system, BBC News. BBC (19 June 1
2019). https://www.bbc.com/news/world-asia-india-48619734 accessed: 01 May 2023.
Mallick, S. (2022) From ‘dogs and Indians not allowed’ to Indian-origin Rishi Sunak with dog in 10 downing 2

street: How tables have turned, TimesNow (08 Nov 2022). accessed: 01 May 2023).

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increase in awareness among the citizens the discrimination (direct) slowly took shape into that
of indirect discrimination. But before we get into the nitty-gritty of the problem of discrimination
and associated issues, let us carefully look into what the word “discrimination” means followed
by understanding the concept of equality.

Discrimination defined
Discrimination as a legal principle is difficult to articulate, but it refers to the unfavuorable
treatment of an individual or group of individuals on the basis of a legally barred ground . 3
Further the following are lexical definitions of discrimination from most followed lexicon around
the globe.

1. As per the Cambridge Dictionary “discrimination means treating a person or particular
   group of people differently, especially in a worse way from the way in which you treat
   other people, because of their race, gender, sexuality, etc”.4
2. As per the Oxford Dictionary “discrimination means the practice of treating somebody or
   a particular group in society less fairly than others”.5
3. The legal definition of description as per Swedish government agency is “discrimination
   is when a person is treated dis-favourably or when a person’s dignity is violated”.6

Discrimination types and its assimilation in Indian Jurisdiction
Discrimination changes from time to time and is not a static phenomenon . Discrimination today 7
is of various forms ranging from Direct discrimination to instructing discrimination , but 8
Nienartowicz, M. (2014) “MaliszewskaDirect and Indirect Discrimination in European Union Law – How to Draw 3
a Dividing Line? III(1), 41–55.,” International Journal of Social Sciences, III(1), 41–55., 3(1), pp. 41–55.
Discrimination “Cambridge dictionary 2022” https://dictionary.cambridge.org/dictionary/english/discrimination 4
accessed 01 May 2023
Discrimination “Oxford learners dictionary 2022” accessed 1 May 2023
‘What is discrimination? | DO’ (Diskrimineringsombudsmannen│DO) acccessed 1 May 2023
Tarunabh Khaitan, ‘Indirect Discrimination’ [2018] SSRN Electronic Journal accessed 3 May 2023.
Supranote 6 8

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primarily the most discussed forms are Direct and Indirect discrimination. The definition of
direct discrimination is more or less similar to the definition of discrimination and indirect
discrimination is when a rule or procedure appears to be neutral but disadvantages the people of
a particular sex, sexual identity or expression, ethnic affiliation, religion or belief, disability,
sexual orientation, or age. The latter form has widely evolved in the foreign jurisdictions, yet is
considered to be recently introduced into the Indian jurisdiction than the former one, it has been
less than a decade since it has been recognised to be precise it was the landmark judgment of
Lt.Col. Nitisha v. Union of India which made it possible for inducing the concept into the Indian
jurisprudence.

Concept of Equality
To further understand the nuances between Direct discrimination and Indirect discrimination we
should have the concept of equality cleared. Equality basically has its roots in liberal ideology9
and has its roots from Aristotle’s era where he mentions of “things that are alike should be
treated alike”, this concept of equality assumes that equality is achieved if law treats all persons
alike , thus it is referred to as a formalistic equality, but the concept of equality gets trickier with 10
inclusion of substantive equality where it is concerned with ensuring the ability of individuals to
compete on an equal basis and this form of equality is much more result oriented, where both the
forms of equality deal with notion of equal treatment to its citizens former one deals with the
procedural fairness the latter one deals with fairer distribution.
With both the concept of equality and discrimination described, it is evident that both of these are
directly proportional to one another, in other words discrimination leads to violation of the rights
to equality, of an individual and thus, to achieve the equality the discriminative element must be
recognised, addressed and must be eliminated to an extent. With this said the paper hitherto was
explaining the basics needed to understand the concepts that shall be explained henceforward.

Sandra Fredman, Discrimination Law (first published 2002, Oxford University Press 2002) accessed 1 May 2023.
Magdalena Forowicz, Concepts of gender equality (Koninklijke brill nv 2017) accessed 1 May 2023.

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Exploring Indirect discrimination
Indirect discrimination is the scenario wherein, the policy that has been made to serve all its
subjects/citizens equally start to function in such a way that it tends to start discriminating certain
protected group of subjects/citizens i.e disadvantaged groups (that is persons of one sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation), and creates adverse impact
on that group in comparison to the other groups . Therefore it can be said that indirect 11
discrimination is fair in form but discriminatory in nature12. To elaborate it let’s take an example
where, for job the criteria set is, “all people applying for the post should not be less than 5ft
10inch” this might not seem discrimination but is discrimination all the women aspirants as the
average height of female is 5ft 5inch, now this is an example of indirect discrimination. Indirect
discrimination is unlawful, whether it is done on purpose or not. It is only allowed if it is
necessary for the way the business works, and there is no other way of achieving it. Thus the
condition specified in the above example cannot be said as discrimination if it was specified in
the job for becoming a Pilot because the job actually demands such a criteria, upon failing to
qualify it one cannot operate a plane, another justification can be an example where, the
condition that applicants must be clean shaven might be justified if the job involves handling
food and it could be shown that having a beard or moustache was genuine hygiene risk.
History of indirect discrimination and development of its doctrine
The famous case held in SCOTUS jurisdiction, was the one that introduced the idea of “indirect
discrimination or disparate impact” into the emerging law of discrimination. The was Griggs v
Duke Power Co. in 1971, wherein the contention of the petitioners was that, employer 13
prescribed an intelligence test for employment or transfer of employee but the test was not
related to the job prospect yet it was considered legal under the Civil rights act until the same
was not used to discriminate. On being challenged, the court observed that the practices which
are neutral on face and intent, but discriminatory in operation and fail to justify touchstones of
business necessity will attract discrimination which is of indirect nature . The court took into 14

Aditya Roy and Sajana Gupta, ‘Mapping Indirect Discrimination in the Constitutional Framework of Equality and 11
Non-Discrimination’ (Law School Policy Review & Kautilya Society, 26 July 2022) <https://

lawschoolpolicyreview.com/2022/07/26/mapping-indirect-discrimination-in-the-constitutional-framework-of-
equality-and-non-discrimination/> accessed 1 May 2023.

O Doyle, ‘Direct Discrimination, Indirect Discrimination and Autonomy’ (2007) 27(3) Oxford Journal of Legal 12
Studies 537, http://dx.doi.org/10.1093/ojls/gqm008 accessed 4 May 2023.
Griggs v. Duke Power Co., 401 U.S. 424 (1971) 13
Ibid. Para 431 14

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consideration both the intent and effect of the policy and stated the former is necessary in direct
discrimination whereas the latter is necessary in indirect discrimination . 15
The doctrine has advanced in the South African jurisdiction. In the proceeding of City Council of
Pretoria v. Walker, complainants claimed that the Pretoria city council charged dissimilar tariffs
for water and electric power and so indirectly discriminated on the grounds of race. The residents
of the New-pretoria (predominantly populated by negroid origin people) townships were charged
a reduced flat rate, while those of old Pretoria (white populated) were charged a higher
consumption-based tariff. The court observed that because electric-meters were not installed in
all township properties, a flat rate system was necessary and rational. However, it held that the
fact that white residents were denied the benefit that black people were accorded and thereby
rendered the practice indirectly discriminatory. The court further reasoned “The concept of
indirect discrimination was developed precisely to deal with situations where discrimination lay
disguised behind apparently neutral criteria or where persons already adversely hit by patterns of
historic subordination had their disadvantage entrenched or intensified by the impact of measures
not overtly intended to prejudice them” . 16

The United Kingdom, in the joint judgment case of Essop v. Home Office (UK Border Agency)
and Naeem v. Secretary of State for Justice which was before the court dealing with indirect
discrimination on grounds of race and/or age and/or religion for the matter of office promotions
where the requirement to pass a Core Skills Assessment test for promotion was found to
disproportionately affecting Blacks, Asians, Minority-ethnics and candidates over 35, leading to
indirect discrimination claims. The court stated indirect discrimination is meant to avoid rules
and practices which are not directed at or against people with a particular protected characteristic
but have the effect of putting them at a disadvantage and added that if a proportionate aim is to
be achieved then indirect discrimination can be justified . The court made an observation that 17
claims of indirect discrimination do not require a claimant to establish why they were
discriminated against, but rather must only demonstrate a causal link between the prejudicial
procedure and the basis of discrimination. This case further clarified the legal test to be used in
cases of indirect discrimination. The legal test requires the claimant to show that a provision,
criterion or practice (PCP) that puts or would put persons with a particular protected

Supra note 10 15
City Council of Pretoria v Walker (CCT8/97) (1998) 16
Supranote 10 17

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characteristic at a particular disadvantage compared with others, and that the PCP is not
objectively justified . 18

The next famous case that extensively spoke about indirect discrimination was Fraser v. Attorney
General of Canada from the Canadian Jurisdiction. Here, Ms. Fraser along with two others were
officers in Canadian Police. They later joined the plan where they could work part-time where
they could work on a job sharing basis (which majorly consisted of women officials), thus they
were denied pension benefits after retirement unlike the full time workers which was challenged
as a case of indirect discrimination in the Supreme Court of Canada. The majority said the
pension plan breached the job-sharers right to equality and said though it didn’t mean to
exclusively discriminate towards the women but what mattered here was its effect. Thus the
court laid out rules to establish indirect discrimination. (to avoid repetition the rules/ principles
have been put under the tests Section)

Development Of doctrine in Indian Context
Indian Judiciary formally recognised indirect discrimination in Lt Col Nitisha v Union of India,
but there were many instances where the Indian judiciary has tried to interpret Article.15, like in
the case of Anuj Garg v. Hotel Association of India, where the court struck down the laws made
by the hotel as it was violative of Article.15. But Indirect discrimination’s concept as a whole
was clearly penned down in the Nitisha judgment where the petitioner contended that the criteria
for the grant of permanent commission were inherently discriminatory and were not on par with
their male counterparts.. The court in this case, after carefully perusing all the landmark cases
around the world, adopted the famous Canadean “Fraser Test”. The judges said that the rigorous
medical assessment that women officers are subjected to in their 40s and 50s, was actually
performed on male officers who are in their 20s and 30s. Therefore this practice has to be
stopped as this form of assessment is indirectly discriminatory under Articles 14 and 15(1).
Justification of Justice Chandrachud
Justice. Dr. DY Chandrachud who penned the judgment on behalf of Justice MR Shah and
himself further defined indirect discrimination as ‘caused by facially neutral criteria by not

Tom Lowenthal, ‘Essop v Home Office: Proving Indirect Discrimination’ (6 April 2017) accessed 1 May 2023.

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taking into consideration the underlying effects of a provision, practice or a criterion’ . The 19
judgment held that intent would not be required as an element to establish indirect discrimination
because the concept ‘prohibits conduct, which has that effect even though it is not intended. The
court stated that statistical evidence may be one of the ways to primarily establish indirect
discrimination but this need not be mandatory.
With this said all the tests that have been prescribed have been listed below,

Tests for indirect discrimination

Various jurisdictions have prescribed tests for assessing indirect discrimination, which are
discussed as follows:-

1. Great Britain:- Equality and human rights commission, which is a National Human
   Rights Institution in Great Britain which exclusively works on equality rights, has laid
   out the following criterion for identifying the indirect discrimination, they are as
   follows:-
   a) There must be a policy which an organisation is applying equally to everyone.
   b) The policy must disadvantage people with protected characteristics when compared
   with people without it.
   c) One must be able to show that it has disadvantaged them personally or is bound to
   cause disadvantage.
   d) If the organisation fails to show that there is a good reason for applying the policy
   (despite the level of disadvantage it has caused to people with protected characteristics)
   it is considered to be discriminatory . 20
2. United States and South Africa:- Both the jurisdictions have prescribed a test which
   exclusively speaks about the “Effect”, i.e to prove indirect discrimination, one has to just
   prove the effect that a policy/rule is causing, and intent doesn’t come into account.

Vandita Khanna, ‘Indirect discrimination and substantive equality in Nitisha: Easier said than done under Indian 19
constitutional jurisprudence’ (2022) 22(1) International Journal of Discrimination and the Law 74, accessed 4 May 2023.
Equality, Anti discrimination Law, 1 October 2010 (England, Wales, Scottland, Northern Ireland) (United 20
Kingdom), www.legislation.gov.uk/ukpga/2010/15/section/19 accessed 1 May 2023 ; ‘What is direct and indirect
discrimination? | Equality and Human Rights Commission’ (Home Page | Equality and Human Rights Commission)

<www.equalityhumanrights.com/en/advice-and-guidance/what-direct-and-indirect-
discrimination#:~:text=To%20prove%20that%20indirect%20discrimination,compared%20with%20people%20with

out%20it> accessed 2 May 2023

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3. Canada:- Canada in its landmark judgment prescribed what came to be popularly known
   as Fraser Test, as per which.
   a) It must be shown that the measure has the effect of disproportionately impacting a
   disadvantaged group.
   b) An enquiry should be made whether the measure is further “reinforcing, perpetuating,
   or exacerbating” the disadvantaged.
4. India:- India adopted the Canadian Fraser test, and interpreted the test in Indian
   jurisdiction as it was prescribed in the Fraser case . 21
   Arguments
   The distinction between Direct and Indirect discrimination- India’s Supreme Court
   Both types of discrimination are complementary to one another, in the sense that if direct
   discrimination cannot be proven, due to the incomparability of the scenario, it is possible to
   allege indirect discrimination in some cases. As a result, it is important to distinguish the key
   distinctions between these two notions. The table below depicts the differences. 22

Table 1. Differences between Direct and Indirect Discrimination
Direct Discrimination Indirect Discrimination

1. The connection on which it is built is
   strong in both form and substance.
2. Based on impartial criteria that are not
   formally forbidden.
3. The connection here is apparent
   because the forbidden ground is stated
   explicitly.
4. Neutral provision disadvantages
   protected people by the general prohibition on
   discrimination (people of one sex, racial or
   ethnic origin, religion or belief, disability,
   age, or sexual orientation). 3. The element of causation is crucial. 3. It is a effect related phenomenon

Supra Note 18 21
Supra Note 3 22

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With having understood What, Why, When, Where, Who and How, all the factual notes,
definitions and necessary basic details discussed give us a clear understanding and an overview
of Discrimination and Indirect Discrimination in particular . 23
In addition to all these, one other factor that plays a major role is that Indirect discrimination is
closely knit with the principles of Substantive Equality, where it is important to encompass the
dimensions of redistribution recognition, participation and transformation . In this sense the 24
courts in Indian jurisdiction stated Substantive equality is the belief that everyone, regardless of
background or qualities, should have equal access to opportunities, resources, and outcomes.
Indirect discrimination occurs when a seemingly neutral policy or practice affects a specific
group of people disproportionately, making it more difficult for them to acquire those
opportunities, resources, or outcomes by sustaining systematic disadvantages for specific groups,
indirect discrimination breaches substantive equality . Therefore the Supreme court of India 25
successfully drew a division between Direct and indirect discrimination by pressing it with cause
and effect basis, and stated intent-based divide holds doctrinal implications for claimants,
especially since the lines between direct and indirect discrimination are ‘famously blurred’ . 26
Now, let us go on to address the second major argument that the paper has to make, i.e thus, all
the case laws over the time have evolved to develop these above-mentioned points where they
have been exclusively speaking about these provisions predominantly to understand the cause
and effect that is caused in Indirect discrimination. But I would like to make a contention that
these case laws fail in providing a wholesome relief because the definitions interpreted
themselves are very broad and vague, say for example the belief that indirectly discriminatory
practices invariably harm the group being discriminated against. This condition requires
elucidation in at least two dimensions, and in ways that contradict the notion that indirect
discrimination is unfair .When a rule or practice is criticized as indirectly discriminatory, the 27
focus is on local, not global , for example, the question about the fitness tests which were 28
prescribed in Nitisha and challenged, such tests are pretty much common in the United States
Supranote 19 23
Sandra Fredman, ‘Substantive equality revisited’ (2017) 116(1) Sravnitel’noe konstitucionnoe obozrenie 37, 24
http://dx.doi.org/10.21128/1812-7126-2017-1-37-63 accessed 3 May 2023.
Supranote 19 25
Lt. Col. Nitisha v. Union of India, (2021) SCC 261 26
Lippert-Rasmussen, Kasper, Indirect Discrimination is Not Necessarily Unjust (December 8, 2014). Journal of 27
Practical Ethics Volume 2 Issue 2, 2014, Available at SSRN: https://ssrn.com/abstract=2536870 accessed 3 May
2023
ibid 28

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Armed forces so for courts instead of just focusing on one dimension of giving justice to the
appellant in Nitisha case, could have said that the men should also give the tests to satisfy the
conditions that are required to stay in the forces. Thus as in my opinion I am of the view that
Indirect discrimination cannot be said as totally unjust, but is subject to evolution of it in future
stages.
The Third and final argument states about the Fraser test being the best or, are there
improvements needed for the same. I am of the opinion that there is always a scope for
improvement. So, the court suggested two steps for of which the first states to show the effect on
the disadvantaged group, but the court fails to tell us what disadvantaged groups mean, looking
towards the constitution side the sex, race, color, ethnicity is what it relates to disadvantaged
groups, let me cite an example, there was a German couple who happened to visit India and
when they were at a very famous temple at Tamil Nadu they were denied entry stating that they
were not having the holy thread around their neck, though this went unreported, weren’t they
discriminated?, let aside the German couple, we do not let the ladies enter the temple while they
are on their period, to which the spiritual practitioners suggest scientific reasons. The same can
be advocated with regards to the criminal justice system, wherein if a governing statute identifies
a theory of punishment and a judge adopts a different theory in sentencing, he or she deviates
from the established standard. This judge’s sentence would be disproportionate . The other 29
demerit would be that, this form of discrimination is referred to as objective justification. Indirect
discrimination is more damaging than positive discrimination since it affects society at large as
well as the policies that separate a certain class from society. Discrimination must always be
extracted, like stone from grain.
Overall, Fraser test is a good test but should include the explanation of the above mentioned
points (considering the Indian diversity). Therefore I believe that the Indian jurisprudence has to
take up the initiative to give out the clear idea of what the disadvantaged groups mean. Coming
to the second point on keeping a check, weather the policies are properly functioning, I would
like to add a point, i.e., how can one keep a check if the policies are properly functioning when
the concept of Indirect discrimination is not clear to the public and additionally the burden of
proof is also lying upon them. I believe that this should be clearly and legally enshrined into the
constitution.

Mrinal Satish, Discretion, Discrimination and the Rule of Law (first published 2016, Cambridge University Press 29
2016)

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Conclusion

These developments in the field of indirect discrimination are encouraging. Nonetheless,
controversies and debates about the moral and political foundations of discrimination law
continue. The law of indirect discrimination raises the fundamental conceptual question of how a
regulation or practice that treats everyone equally can be considered discrimination or unequal
treatment. This paradox can be solved by emphasizing that discrimination law seeks more than
just nominal equality. The Act is concerned with more than merely protecting the principle of
equality before the law for all citizens. By dealing not only with the overall process of equal
treatment, but also with the substance of real outcomes. In some sense, the prohibition on
indirect discrimination is the law catching up. As it responds to the various and evolving
manifestations of discrimination in our society, as highlighted as much by singular cases brought
by pioneering litigants and innovative lawyers as through legislative change in response to
organized political protects, the law has frequently led the popular understanding of what counts
as discrimination, and our moral aversion to its evolving forms . Hence, it can be said that to 30
have a disproportionate impact on a protected group, is also a disproportionate means of
achieving an aim. To hail towards a more justifiable society this form of discrimination has to be
properly addressed along with a much more fairer test prescribed with a key which would act as
its interpretation.