Achieving substantive equality? The unsettled constitutional prohibition against indirect discrimination in Singapore

In March 2021, the Supreme Court of India (“SCI”) held that Articles 14 and 15(1) of the Indian Constitution proscribe indirect discrimination. In Lt Col Nitisha v Union of India (“Nitisha”), Chandrachud J declared that indirect discrimination, even sans discriminatory intent, must be prohibited “in order to achieve substantive equality prescribed under the Constitution.” Several months later, in Syed Suhail and others v Attorney-General (“Syed Suhail”), the High Court of Singapore (“SGHC”) similarly held that Article 12(1) of the Singapore Constitution prohibits indirect discrimination.

While both jurisdictions now purport to prohibit indirect discrimination as a matter of constitutional equality, the SGHC in Syed Suhail did not refer to Nitisha or any other comparable constitutional cases on this issue. Instead, it simply adopted the definition of indirect discrimination from Essop v Home Office (“Essop”), a recent UK Supreme Court decision on indirect discrimination in employment law. As a result, the SGHC may have inadvertently mischaracterized the plaintiffs’ case and rendered the doctrine of indirect discrimination illusory. 

Nitisha and the close connection between indirect discrimination and substantive equality

Nitisha is a case regarding the medical fitness criterion for older female  officers for permanent commission in the Indian Army after the explicit disqualification of female officers was struck down by the SCI in February 2020. The Indian Army evaluated the female officers’ medical fitness based on the same policy that was applied to younger male officers, who are typically considered for permanent commission between the ages of 25 and 30. As a result, this policy, although not intended to be discriminatory, placed  older female  officers at a disadvantage, because they had to meet the medical fitness standard expected of significantly younger male officers. 

The SCI rejected the Indian Army’s argument that the medical fitness criterion was not discriminatory since it applied to both men and women alike. Instead, drawing on Professor Sandra Fredman’s scholarship on substantive equality, Chandrachud J held that “indirect discrimination is closely tied to the substantive conception of equality… [which] has been a critical evolution of the Indian constitutional jurisprudence on Article 15 and 15(1).” 

After a comparative survey of the jurisprudence on indirect discrimination in other jurisdictions, the court adopted the Supreme Court of Canada’s two-stage test for indirect discrimination held in Fraser v. Canada (Attorney General), which “accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact.” The first stage requires the court to determine whether the impugned rule disproportionately affects a particular group. If so, then the court turns to the second stage of the test to determine whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

The Singapore High Court’s Misapprehension of Indirect Discrimination

In the case of Syed Suhail, 17 death row inmates of Malay ethnicity argued, inter alia, that their constitutional right to equality was violated by the Attorney-General (“AG”) in prosecuting them for capital drug offences under the Misuse of Drugs Act. The plaintiffs based their case on a theory of indirect discrimination. Specifically, the plaintiffs argued that the statistical disparities between Malay offenders and offenders of other ethnicities are “attributable to inadequate policies or criteria guiding the exercise of prosecutorial discretion, or an inconsistent application of those (unspecified) policies or criteria, or unconscious biases of prosecutors that have been insufficiently neutralised through monitoring, training and review.” 

The SGHC rejected the plaintiffs’ characterisation of their argument as a claim of indirect discrimination. Instead, the court held that it was “in substance an allegation of direct discrimination in that the AG’s policies, criteria and practices have allowed individual prosecutors to treat Malay suspects less favourably than other suspects because of their ethnicity.” On that basis, the SGHC dismissed the plaintiffs’ claim because they failed to show a causal link that they had been subjected to capital punishment because of their ethnicity. Notably, the SGHC observed that there may be many individual, case-specific factors which could break the causal connection the plaintiffs sought to draw between Malay ethnicity and the less favourable treatment.

With respect, despite the recent jurisprudence on this issue in other countries, the SGHC may have misappreciated the conceptual difference between direct and indirect discrimination. As held in Nitisha, the distinction is that the former is predicated on intent and the latter is based on effect. In both cases, there must be a causal link between the protected characteristic and either the less favourable treatment or particular disadvantage suffered by the plaintiffs. 

Properly understood, the plaintiffs’ argument in Syed Suhail is that the AG’s policies, criteria and practices failed to address the issue of racial discrimination which resulted in the disproportionate sentencing of Malay persons to capital punishment. The argument is not that the AG intended to discriminate against Malay persons based on their ethnicity by sentencing them to capital punishment at higher rates; rather, it is that the failure to address racial bias resulted in the disproportionate sentencing of Malay persons to capital punishment. 

The mischaracterisation of the plaintiffs’ claim in Syed Suhail demonstrates the importance of clarifying the conceptual difference between direct and indirect discrimination: while the former achieves formal equality, the latter seeks to realise substantive equality. As the Syed Suhail plaintiffs did not appeal the SGHC decision, the constitutional doctrine of indirect discrimination in Singapore must await further judicial clarification. However, when that time comes, it may already be too late for the 17 death row inmates.

Daryl WJ Yang is an Associate in Dispute Resolution at Baker McKenzie Wong & Leow.