The author presents a case comment on the judgment of KT Moopil Nair v State of Kerala. He focuses on Article 14 of the Indian Constitution i.e. Right to Equality. He analyzes the judgment delivered by the court on Article 14 from the spectacles of the Doctrine of Indirect Discrimination. The author also argues that while the court rightly struck down the Travancore Cochin Land Tax Act, 1955 (the Act), however, it did not apply the Doctrine of Indirect Discrimination He also looks into the meaning of Indirect Discrimination through different case laws. Further, into key differences between direct discrimination and indirect discrimination.

Facts[1]:
The state of Kerala passed the Act in 1955 and an amendment in 1957. The Act seeks to levy a uniform basic and low tax of Rs 2 on all the forest land, irrespective of its productivity. The Act had also given arbitrary powers in the hands of the district collector. Owners of the forest land could not sell, lease or mortgage the land without prior permission from the district collector. Further, they were not allowed to cut trees and perform any activity which diminished the utility of the land.

Petitioners challenged the constitutionality of the Act because their levied tax exceeded the income generated from the land. This was because the land was unproductive and the district collector only allowed commercial activity up to a certain extent which was not sufficient to generate adequate income.

The majority judgment held that the Act violated Article 14. There is a lack of a classification of land on the basis of its productivity which creates inequality. Further, the Act is confiscatory by its very nature and must be declared unconstitutional.

Inequality Check- Indirect Discrimination:

The Doctrine of Indirect Discrimination can be traced back to the US Supreme Court judgment in Griggs v Duke Power Co.[2] Here, the company made some qualifications that were mandatory to get employment. SC held that the requirements which were made mandatory for seeking employment were not related to the actual performance of the job.[3] Thus it unnecessarily discriminates between the people. 'It also held that it is not sufficient that the rule was made without any intention to discriminate if it ultimately leads to any discriminatory effects.'[4]

Since the last two decades, indirect discrimination has come into the limelight all over the world.[5] Supreme Court in Nitisha v Union of India[6] highlighted that the intention of the legislature/discriminator is unnecessary in determining the validity of the law. Even if the legislature/discriminator made a law innocently or in good faith or without any discriminatory intent, however, it has different impacts on different persons, it is said to be indirectly discriminatory law.[7]

There lies a difference between Direct Discrimination and Indirect Discrimination. Direct discrimination can be decrypted by checking the intention of the legislature.[8] Direct discrimination cannot be justified in any circumstances. Indirect Discrimination can be decrypted by analyzing the effects or consequences of that legislation.[9] On its face, it seems to be neutral. However, analyzing its effects can show that it had disproportionate effects on different groups.

To achieve substantive equality, it is necessary to consider the ground realities.[10] Just because a provision is neutral on the face of it does not imply that it will not result in discrimination indirectly.[11] If the objective of any law is legitimate, the way to achieve it and its effects should also be legitimate.[12] Therefore, if the legitimate aim is to be achieved through indirect discrimination between different groups, then it cannot be upheld.

Applying Indirect Discrimination To Our Case:

In our case, the state argued that the aim behind the Act was to unify the land tax system of the whole state.[13] Also, the state wanted to raise the revenue. It can be assumed that the state did not intend to discriminate between people. However, as discussed above, a law cannot be upheld if it leads to any discrimination in its effects, even unintentionally. The Act disproportionately affected the people who derive less income than the tax levied. The aim of the legislature was legitimate. However, it unintentionally discriminated against owners of different productivities of land.

Indirect discrimination can be understood as an apparently neutral policy or practice that can put a group into a disadvantageous position in comparison to the other.[14] The Act, on its face, did not seem to discriminate between groups. However, its non-classification between different productivities of lands leads to discriminatory effects. The Act indirectly creates two groups. First is the disadvantaged group who has more tax than the income derived from the land. The second group has more income than the tax levied on the land.

Also, it can be seen that the legislation had confiscatory nature. In our case, petitioners derived an income of Rs 3100 from the land and the tax was Rs 54000.[15] Also, petitioners were not allowed by the district collector to utilize the land in such a way that degrades the land's quality. Usually, the land tax is determined by the generation of income from the land or the potential to generate the income.[16] However, this was not the case here. There was no classification of the land-based on its productivity and all were obliged to pay the same tax according to their holdings.

The purpose of Article 14 does not only prohibit discrimination, but it also aims to remove the underlying inequalities in society.[17] The constitution aims to make such arrangements that can enhance the conditions of the underprivileged ones.[18] However, the Act obstructs the enhancement of the petitioners and others. Petitioners were underprivileged due to the low productivity of the land. Instead, they were obliged to pay the same rate of tax. The Act not only discriminate against but also degraded the conditions of the underprivileged group. Such an act goes against the tenets of article 14 and the Constitution.

Conclusion
It can be concluded that the Act had indirectly discriminated between different persons due to the non-classification of lands. It can be assumed that the state did not have the malicious intention to discriminate between people. However, Doctrine of Indirect Discrimination analyzes the effects/consequences of the legislation. It did not take into account the intention of the legislature, but the effects of the legislation.

The Act has disproportionately levied the tax on the persons who have less productive land by levying a basic and low tax for all. Therefore, not only the legislation which has direct discrimination on its face but also the legislation which indirectly discriminates through effects should be struck down. The court in 1961 had rightly struck down this legislation, however, without the interpretation of the Doctrine of Indirect Discrimination in the case.

Bibliography
Books:

1. Jain MP & Jain SN, Principle of Administrative Law (Vol 1, 7th edn LexisNexis 2013)

Articles:

1. Choudhary H, 'Lalita Kumari v. Govt of Uttar Pradesh : Touching upon Untouched Issues' (2013) 3.1 NULJ 99.
2. Doyle O, 'Direct Discrimination, Indirect Discrimination and Autonomy' 2007 (27) 3 Oxford University of Press 537.
3. Khaitan T, 'Indirect Discrimination' [2018] Melbourne Legal Studies Research Paper ch 2
4. Lurie G, 'Proportionality and The Right to Equality' (2020) 21 German Law Journal 174.
5. Marmor A, 'Are Constitutions Legitimate?' (2007) 20 (1) Canadian Journal of Law and Jurisprudence 73.
6. Yu A, 'Direct Discrimination and Indirect Discrimination: A Distinction with a Difference' (2019) 9 Western Journal of Legal Studies 1.

Online Sources:

1. 'Declaration of Principles of Equality' (Equal Rights Trust Act 2008) accessed on 11 April 2021.
2. Bhatia G, 'Rethinking Manifest Arbitrariness in Article 14' (Indian Constitutional Law and Philosophy 6 May 2020) accessed 11 April 2021.
3. Bhatia G, 'The Constitutional Challenge to the Transgender Act' (Indian Constitutional Law and Philosophy, 31 January 2020) < https://indconlawphil.wordpress.com/category/equality/article-14/#:~:text=Article%2014%20concerns%20'equality'%20before,is%20violative%20of%20Article%2014.> accessed 11 April 2021.
4. Mishra V, 'Case Commentary- Kunnathat Thathunni Moopil Nair versus Respondent: The State of Kerala and Ors.' (All India Legal Forum, 11 November 2020) accessed 11 April 2020.
5. Rastravara C, 'Women Army Officer's Verdict Smashes an Important, Visible Barrier' (India Legal Live, 25 March 2021) accessed 11 April 2021.

Newspaper:

1. Bhatia G, 'Indirect discrimination: Rules and laws are never really 'neutral'' Hindustan Times (23 February 2018) accessed 11 April 2021.

Case Laws:

1. Griggs v Duke Power Co., 401 US 424 (1971).
2. Kunnathat Thatehunni Moopil Nair v State of Kerala, AIR 1961 SC 552.
3. Nitisha v Union of India, 2021 SCC OnLine SC 261.

End-Notes:

1. AIR 1961 SC 552
2. 401 US 424 (1971).
3. ibid.
4. ibid.
5. Gautam Bhatia, 'Indirect discrimination: Rules and laws are never really 'neutral'' Hindustan Times (23 February 2018) accessed 11 April 2021.
6. 2021 SCC OnLine SC 261.
7. ibid.
8. Andy Yu, 'Direct Discrimination and Indirect Discrimination: A Distinction with a Difference' (2019) 9 Western Journal of Legal Studies 1.
9. ibid.
10. Nitisha (n 6).
11. Declaration of Principles of Equality' (Equal Rights Trust Act 2008) accessed on 11 April 2021.
12. ibid.
13. KT Moopil (n 1).
14. Tarnuabh Khaitan, 'Indirect Discrimination' [2018] Melbourne Legal Studies Research Paper ch 2.
15. KT Moopil (n 1).
16. KT Moopil (n 1) 6.
17. Gautam Bhatia, 'The Constitutional Challenge to the Transgender Act' (Indian Constitutional Law and Philosophy, 31 January 2020) < https://indconlawphil.wordpress.com/category/equality/article-14/#:~:text=Article%2014%20concerns%20'equality'%20before,is%20violative%20of%20Article%2014.> accessed 11 April 2021.
18. ibid.