Research supports discrimination injustice

4th April 2021

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A significant indirect discrimination case in the Indian Supreme Court has cited research by two Wadham Fellows.

  • Image from book cover showing stork and fox

    Detail from the cover image of Foundations of Indirect Discrimination Law

  • Professor Tarun Khaitan

    Professor Tarun Khaitan

Professor and Fellow Tarunabh Khaitan’s introductory chapter of his edited book with Professor Hugh Collins was cited in a successful discrimination case brought by female army officers.

In the same hearing, Wadham Honorary Fellow, Professor Sandra Fredman is also cited for her research on the nature of statistical evidence required to prove indirect discrimination. 

In the case of the Ministry of Defence v. Babita Puniya, the Indian Supreme Court upheld the claim of women engaged on Short Service Commissions in the Indian Army for seeking Permanent Commission. Addressing the background of the dispute, the judgment described this as “a quest for equality of opportunity for women seeking PCs”. As the Court observed, “a decade and more spent in litigation, women engaged on Short Service Commissions in the Army seek parity with their male counterparts”. 

Hugh Collins and Tarunabh Khaitan explain the concept of indirect discrimination using Aesop’s fable of the fox and the stork. They note: “Aesop’s fable of the fox and the stork invokes the idea of indirect discrimination. The story tells how the fox invited the stork for a meal. For a mean joke, the fox served soup in a shallow dish, which the fox could lap up easily, but the stork could only wet the end of her long bill on the plate and departed still hungry. The stork invited the fox for a return visit and served soup in a long-necked jar with a narrow mouth, into which the fox could not insert his snout. Whilst several moral lessons might be drawn from this tale, it is often regarded as supporting the principle that one should have regard to the needs of others, so that everyone may be given fair opportunities in life. Though formally giving each animal an equal opportunity to enjoy the dinner, in practice the vessels for the serving of the soup inevitably excluded the guest on account of their particular characteristics.”   

This case follows citation of this research by the Canadian Supreme Court in 2020.