‘Indirect Discrimination After Nitisha: Where Do We Stand’ | An Interactive Workshop by Jai Brunner
September 19, 2025
Jai Brunner, Assistant Professor, National Law School of India University (NLSIU), Bengaluru led an interactive workshop for lawyers and researchers on September 18, 2025, at the Centre for Law and Policy Research (CLPR) to interrogate why Nitisha has failed to gain traction among appellate court judges.
Context
In 2021, the Supreme Court of India recognised indirect discrimination in Lt Cl Nitisha v. Union of India. The Apex Court held that State policies that appear neutral may still violate the fundamental right to non-discrimination if they have a discriminatory impact on a protected class. Though Nitisha was widely celebrated for recognising the hidden structural disadvantages faced by historically oppressed classes, such as women, the doctrinal test has yet to be widely adopted.
About the Workshop
In the first half of the workshop, Jai Brunner offered a brief overview of how Nitisha recognised the test of indirect discrimination. The Bench justified importing the test from Canadian case-law by interpreting Articles 14, 15 and 16 through the lens of substantive equality. After introducing Nitisha, Asst. Prof. Brunner laid the groundwork for a discussion on why the test of indirect discrimination has found very minimal traction. He questioned whether Nitisha has framed indirect discrimination in a manner that is vague and, thus, difficult for litigants to use.
The second half of the workshop shifted to an audience-led discussion. Senior Advocate Jayna Kothari emphasised that though Nitisha has yet to be widely cited in judgments, lawyers frequently rely on the test of indirect discrimination. She predicted that Nitisha will likely gain traction in the coming years. Other participants praised Nitisha for framing the test in an open-ended manner, speculating that this would allow it to be applied in a wide range of cases.
The general consensus among participants was that if Nitisha is to see widespread adoption, judges will need to gain more familiarity with substantive equality approaches to constitutional interpretation.
Gallery
