SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA AND ORS.

A 58. Indirect discrimination is closely tied to the substantive conception of equality outlined above. The doctrine of substantive equality and anti-stereotyping has been a critical evolution of the Indian constitutional jurisprudence on Article 14 and 15(1). The spirit of these tenets have been endorsed in a consistent line of authority by this Court. To illustrate, in Anuj Garg v. Hotel B Association of India [(2008) 3 SCC 1],this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. C Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. In National Legal Services Authority v. Union of India [(2014) 5 SCC 438], this Court recognized how the patterns of discrimination and disadvantage faced by the transgender community and enumerated a series of D remedial measures that can be taken for their empowerment. In Jeeja Ghosh v. Union of India [(2016) 7 SCC 761and Vikash Kumar v. Union Public Service Commission [2021 SCC OnLine SC 84] this Court recognized reasonable accommodation as a substantive equality facilitator.”

47Copy pinpoint47. The Court emphasized that discrimination is not always a function or product of a conscious design or intent. Discrimination may result by an unconscious bias or a failure to recognize unequal impacts which are produced by the underlying societal structure. In paragraph 83 of the judgment in Nitisha (supra), the Court held: F “83. A study of the above cases and scholarly works gives rise to the following key learnings. First, 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 recognize 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.

84. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of

SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 637 AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention 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) [Ontario Human Rights Commission v. Simpsons-Sears [1985] 2 SCR 53], requiring proof of intention to establish discrimination puts an “insuperable barrier in the way of a complainant seeking a remedy.” It is this barrier that a robust conception of indirect discrimination can enable us to counteract.”

48Copy pinpoint48. This Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman’s being from the outset, including reproduction, sexuality and private choices, within an unjust structure. The OMs which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they arein the work place. The DoPT G OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognised the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally H

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A grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.

49Copy pinpoint49. The other ground of challenge which has been raised is that the impugned circular does not take into account the needs of disabled persons in the State’s workforce. The Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society. This obligation has been elaborated upon in several decisions of this Court including Vikash Kumar v. Union Public Service Commission and Others32, Avni D Prakash v. National Testing Agency and Others33 andRavinder Kumar Dhariwal and Another v. Union of India and Others34. In Vikash Kumar (supra), this Court observed that: “63. In the specific context of disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered. Accommodation implies a positive obligation to create conditions conducive to the growth and fulfilment of the disabled in every aspect of their existence — whether as students, members of the workplace, participants in governance or, on a personal plane, in realising the fulfilling privacies of family life. The accommodation which the law mandates is “reasonable” because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence.” 32 (2021) 5 SCC 370 33 2021 SCC OnLine SC 1112 34 H 2021 SCC OnLine SC 1293

SK NAUSAD RAHAMAN & ORS. v. UNION OF INDIA 639 AND ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity.

50Copy pinpoint50. The State’s interference in the rights of privacy, dignity, and family life of persons must be proportional. This Court in Akshay N. Patel v. Reserve Bank of India35, held that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is: (i) in furtherance of a legitimate aim; (ii) suitable for achieving the aim; (iii) necessary for achieving the aim; and C (iv) adequately balanced with the rights of the individual.

51Copy pinpoint51. The State in the present case has been guided by two objectives: first, the potential for abuse of ICTs and second, the distortion which is caused in service leading to plethora of litigation. The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.

52Copy pinpoint52. The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case by case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with atenure of three years, extendableby a further period of two years. While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving (i) postings of spouses; 35 2021 SCC OnLine SC 1180 H

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A (ii) disabled persons; or (iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

53Copy pinpoint53. In considering whether any modification of the policy is necessary, they must bear in mind the need for a proportional relationship between the objects of the policy and the means which are adopted to implement it. The policy above all has to fulfill the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values. Hence while we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. Such an exercise has to be left within the domain of the executive, ensuring in the process that constitutional values which underlie Articles 14, 15 and 16 and Article 21 of the Constitutionare duly protected. The appeals shall be disposed of in the above terms. D

54Copy pinpoint54. Pending application(s), if any, stand disposed of.

Divya Pandey Appeals disposed of. (Assisted by : Roopanshi Virang, LCRA)