Tarun Khaitan
University of Oxford, Law, Faculty Member
- Tarun Khaitan a Future Fellow at Melbourne Law School, working on a project on the resilience of democratic constitut... moreTarun Khaitan a Future Fellow at Melbourne Law School, working on a project on the resilience of democratic constitutions, with a focus on South Asia. He is also an Associate Professor and the Hackney Fellow in Law at Wadham College, currently on special leave for four years starting 1 September 2017.He is also the General Editor of the Indian Law Review, an Academic Fellow of the Honourable Society of the Inner Temple, an Affiliate of the Bonavero Institute of Human Rights and an Associate of the Oxford Human Rights Hub. He completed his undergraduate studies (BA LLB Hons) at the National Law School (Bangalore) in 2004 as the 'Best All Round Graduating Student'. He then came to Oxford as a Rhodes Scholar and completed his postgraduate studies (BCL with distinction, MPhil with distinction, DPhil) at Exeter College. Before joining Wadham, he was the Penningtons Student (Fellow) in Law at Christ Church.His monograph entitled A Theory of Discrimination Law (OUP 2015 hbk, South Asia edition and Oxford Scholarship Online, 2016 pbk) has been reviewed very positively in leading journals, including in Law and Philosophy, where Sophia Moreau said "In this magnificent and wide-ranging book ... Khaitan attempts what very few others have tried." In Ethics, Deborah Hellman said that its 'ambitious scope and the careful argumentation it contains make it one of the best in the field’. In his review in the Modern Law Review, Kasper Lippert-Rasmussen claimed that "Khaitan's account is sophisticated, extensive and among the best normative accounts of discrimination law available." Colm O'Cinneide's review in the Oxford Journal of Legal Studies says that "Khaitan’s quest shows up the inadequacies of previous attempts to track down this Holy Grail, and the path he has laid down will encourage others to follow in his footsteps." A full list of reviews is available here.He helped draft the Anti-Discrimination and Equality Bill currently pending before the Indian Parliament. His research on discrimination law has been quoted and relied upon by the Indian Supreme Court. He writes regularly for newspapers and blogs: links to his columns are available here. Dr Khaitan was awarded the 2018 Letten Prize, a 2 Million Norwegian Kroner award given biennially to a young researcher under the age of 45 conducting excellent research of great social relevance. He plans to use the award towards setting up the Indian Equality Law Programme, aimed at capacity-building for early career scholars.edit
Discusses the Indian Supreme Court's jurisprudence on unconstitutionality challenges against statutes for violation of the right to equality
Research Interests:
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... more
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 Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's 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.
Research Interests:
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... more
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.
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.
Research Interests:
Research Interests:
Research Interests:
This paper argues, using India as a case study, that constitutional directives can be a useful tool for the expressive accommodation of ideological dissenters who would otherwise lose out in constitutional negotiations in deeply divided... more
This paper argues, using India as a case study, that constitutional directives can be a useful tool for the expressive accommodation of ideological dissenters who would otherwise lose out in constitutional negotiations in deeply divided societies. The strategy of expressive accommodation was tempered in the Indian case through containment and constitutional incrementalism. A calibrated expressive accommodation of ideological dissenters can give them enough (and genuine) hope of future victories to keep them on board, without going so far that the majority rejects the accommodation or their ideological opponents in turn leave the constitutional negotiation table. By focussing on the accommodational needs of ideological dissenters, this paper adds to existing literature on constitutional consensus-building techniques, which has largely focussed on political insurance for ethnocultural minorities.