Tarunabh Khaitan

A Theory of Discrimination Law

It doesn’t care if your boss fires you because you happen to be a Sagittarius. But a hiring policy that requires a college degree could land him in court. Discrimination law can be counter-intuitive and controversial. Marrying doctrine from five jurisdictions with contemporary political philosophy, this book provides a theoretical defence of this now maturing legal project. More fundamentally, the value of discrimination law is to be found in its enabling us all to lead flourishing lives.Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Courts docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academys inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.

The Architecture of Discrimination Law

This chapter provides an overview of the architecture of discrimination law, as developed in several common law jurisdictions. It analyses the structure of the law in terms of its protectorate, its duty-bearers and the duties it imposes. In light of this comparative discussion, the state of discrimination law in India is analysed.