Indirect Discrimination: Under the Veil Of Positivity



A bench headed by Justice D.Y Chandrachud gave a bolstering judgment in the case of 86 women Short Service Commission. The concept of "Indirect Discrimination" was emphasised, and a new approach was given for further cases. The Indian Jurisprudence gained an important addition with the emphasis on Indirect Discrimination.

"The doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognise how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited," Justice Chandrachud said. This, along with various other statements, highlights that Indian Jurisprudence has been respected by such an efficient addition of such vital topics.


The apex court said in the case of several women SCC officers seeking grant of permanent commission in the army that the ACR (Annual Confidential Report) evaluation criteria for grant of the permanent commission of women did not take into account the laurels and achievements brought for the Indian army by those women. The court also observed that the verdict given last gear was not fulfilled and implied by the Indian army, which addressed the gender discrimination concerns in the army. Despite the previous instructions, the army failed to consider the grave seriousness of the apex court's observance. The court highlighted the grave issue of gender discrimination by saying that it looked as if the selection bench was sitting for rejection rather than selection because the number of achievements was quite significant to be merely ignored. Besides, patriarchal societies have developed the systems on the suited patriarchal norms and perceptions, which is just one more display of the deep-rooted notion.


On a basic concept, Indirect Discrimination can also be explained in a policy, practice or rule that applies to everyone in the same way. However, it pertains to bring worse effects on some people than others. As discussed earlier, the women who were denied the permanent commission were denied based on the Shape-I category of fitness. However, the rule of Shape-I fitness criterion was implied later, and its presence was highlighted only to find some ground for the rejection of permanent commission of women. Factors such as these seem normal to the first look, but deep-seated beliefs still exist that people are so used to following that it blends into the "normal." On the other hand, this decision added to the inexistent information on the concept of indirect discrimination, thus, bringing in new lights of improvement in the conception of Indian Jurisprudence.


The fact that discrimination of any kind is visible tends to blend in the terminology of positivity, and it is tough to decipher its existence. It is not an alien concept but is not a popular form to be discussed. Because of its nature of existence, it is often neglected in the day to day observance of a person. It can be present in rules and norms pertaining to the typical behaviour of people in society. The fact that gender discrimination is often neglected under the guise that such rules exist for the benefit of women and not for their constraints is valid enough to highlight that the deep-rooted philosophies are in for a change. It is only to wonder whether it is the willingness to welcome the change existing or under the indirectness that we support everything. Questions persist, which is why we need solutions to follow. Verdicts such as these play the role of significant game-changers because they make the law spearhead the necessary change.

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