Tarun Khaitan is the Professor of Public Law and Legal Theory at Wadham College (Oxford) and a Vice Dean at the Faculty of Law (Oxford). He is also a Professor & Future Fellow at Melbourne Law School, working on a project on the resilience of democratic constitutions, with a focus on South Asia. He specialises in legal theory, constitutional law and discrimination law.

He is the founding General Editor of the Indian Law Review, founder and Chief Advisor of the Junior Faculty Forum for Indian Law Teachers, and 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. He has also been a Global Visiting Professor of Law at NYU Law School.

His monograph entitled A Theory of Discrimination Law (OUP 2015 hbk, South Asia edition and Oxford Scholarship Online, 2016 pbk) has been cited by the European Court of Human Rights and 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." The book won the Woodward Medal (with a cash prize of 10,000 Australian dollars) in 2019 for making ‘a significant contribution to knowledge in a field of humanities and social sciences.’ A full list of reviews is available here.

He helped draft the Indian Anti-Discrimination and Equality Bill 2017. His research on discrimination law has been quoted and relied upon by the Indian Supreme Court and the Canadian Supreme Court. He writes regularly for newspapers and blogs: links to his columns are available here. Prof 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 is using a part of the award towards setting up the Indian Equality Law Programme, aimed at capacity-building for early-career scholars. In 2020, he was awarded the Excellence in Engagement award by the University of Melbourne for his work on the anti-discrimination bill in India. Prof Pratap Mehta said in the context of this award that “No discussion of the rights of minorities in India is now conceivable without engaging with his conceptual and legal arguments”. He is currently on the advisory board of the United Nation’s Human Rights Office of the High Commissioner’s effort to draft ‘A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation’.

Faculty position

As Vice Dean (Teaching and Recruitment) Tarun is responsible for:

  • Academic appointments: will represent the Faculty on selection panels for joint appointments, and chair the committees where the University is the sole or main employer; will select other faculty representatives for panels; and takes reports on appointments to the Law Faculty Personnel Committee for approval.  
  • Teaching needs: will conduct a regular review of academic personnel, and of teaching needs in consultation with Teaching Group Convenors
  • Academic leave: will consider sabbatical and other leave applications for academic post holders (other than those in statutory chairs)
  • Buyouts: will consider all requests for buyouts, and will liaise with the Associate Dean for Research on requests for externally-funded buyouts.
  • Additional Teaching: will consider all applications for Additional Teaching, and will liaise with the Associate Dean for Undergraduate Students, or Postgraduate Taught Students, as applicable.

Jointly with Helen Scott (Vice Dean - Personnel):

  • Review the annual teaching return (with the Dean) and advise on matters related to stint. 
  • Represent the Faculty on committees and ad hoc working parties in and beyond the Division.
  • Co-chair the Personnel Committee


Displaying 1 - 29 of 29. Sorted by year, then title.
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  • T Khaitan, 'Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India' (2020) 14 Law and Ethics of Human Rights 49
    Many concerned citizens, including judges, bureaucrats, politicians, activists, journalists and academics, have been claiming that Indian democracy has been imperilled by the current government in power at the Union level since 2014. To examine the claim, the paper sets up an analytic framework for accountability mechanisms liberal democratic constitutions put in place to provide a check on the political executive. The assumption is that only if this framework is being dismantled in a systematic manner can we say that democracy itself is in peril. This framework helps distinguish between actions that one may disagree with ideologically but are nonetheless permitted to an elected government from actions that strike at the heart of liberal democratic constitutionalism (the first set of actions are reversible when political opponents come to power, the second set of actions make it harder, if not impossible, for such opponents to come to power). Liberal democratic constitutions typically adopt three ways of making accountability demands on the political executive: vertically by demanding electoral accountability to the people, horizontally by subjecting it to accountability demands of other state institutions like the judiciary and fourth branch institutions, and diagonally by requiring discursive accountability to the media, the academy and civil society. This framework assures democracy over time -- i.e. it guarantees democratic governance not only to the people today, but to all future peoples of India. While each elected government has the mandate to implement its policies over a wide range, seeking to reduce the effectiveness of these modes of accountability is legitimately understood as an effort to entrench the ruling party's stranglehold on power in ways that are inimical to the continued operation of democracy. The paper finds that the Modi government has indeed sought to undermine each of these three strands of executive accountability. Unlike the assault on democratic norms during India Gandhi's Emergency in the 1970s, there is no evidence of a direct or full-frontal attack today. The BJP government's mode of operation has been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as 'killing a constitution by a thousand cuts'. The incremental assaults on democratic governance have typically been justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors to the state). Unlike paradigmatic examples of the recent wave of democratic deconsolidation -- Poland and Hungary -- India's relatively long experience with democracy has enabled robust, and often successful, opposition to many of these moves. And yet, many democratic norms and mechanisms have been seriously undermined. The direction of travel is unmistakably towards a 'guided' or 'managed' democracy which will structurally ensure the political dominance of the ruling party.
  • T Khaitan and JC Norton, 'Religion in Human Rights Law: A Normative Restatement' (2020) 18 International Journal of Constitutional Law 111
    In a paper published in the preceding issue of this journal, we focused on the theoretical differences between the right to freedom of religion and the right against religious discrimination. We explained that the right to freedom of religion is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. On the other hand, the right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. This follow-up paper builds upon these theoretical insights to show how key doctrinal implications follow from this distinction for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent tolerance levels for religious establishment.
  • T Khaitan, 'The Indian Supreme Court’s Identity Crisis: A Constitutional Court or a Court of Appeals? ' (2020) 4 Indian Law Review 1
    This article presents an empirical analysis of the Supreme Court’s discretionary appellate jurisdiction (triggered by a “special leave petition” or “SLP”). Based on an analysis of 1100 randomly selected civil SLP cases spread over 11 years, it argues that its expansive SLP docket has cannibalized the Court’s role as an effective constitutional court. It reveals that the admissibility of special leave petitions has a statistically significant relationship with the presence of a “senior advocate” during the admissions hearing. The article emphasizes the need for an institutional separation of the appellate and constitutional functions of the Supreme Court: either as two separate courts or as two separate divisions within a single Supreme Court. It also suggests reducing or eliminating the docket-distorting role of senior advocates – either by taking admission decisions on civil SLPs largely based on written briefs or barring senior advocates from appearing in oral admission hearings for civil SLPs.
  • T Khaitan, 'Constitutional Directives: Morally-Committed Political Constitutionalism' (2019) 82 Modern Law Review 603
    About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.
  • T Khaitan, 'Executive Aggrandizement in Established Democracies: A Crisis of Liberal Democratic Constitutionalism' (2019) 17 International Journal of Constitutional Law 342–356
    Drawing upon the authors of this edited collection titled 'Constitutional Democracy in Crisis?' (Graber, Levinson and Tushnet eds., OUP 2018), I argue in Section A that the unfolding crisis is not a crisis of state, governance, legality or politics. Section B suggests that, instead, we are witnessing a crisis of executive accountability. There is a gradual erosion of all three forms of accountability-seeking mechanisms: (i) electoral or vertical accountability to the people, (ii) horizontal or institutional accountability to the political opposition, judiciary and fourth branch institutions, and (iii) diagonal or discursive accountability to the academy, media and civil society. Section C identifies the precise mechanisms through which executive aggrandizement is taking place. It argues that this aggrandizement is incremental and systemic, uses democratic rhetoric, and is effected by the fusion of the ruling party and the state. Section D emphasises the limitations of the judiciary in defending democracy on its own, and calls for greater attention to the role of political parties, fourth branch institutions, electoral systems and global institutions.
  • T Khaitan, 'Political Insurance for the (Relative) Poor: How Liberal Constitutionalism Could Resist Plutocracy' (2019) Global Constitutionalism (forthcoming)
    Fair value of equal political liberties is a key precondition for the legitimacy of a regime in liberal thought. Preventing a semi-permanent lockout of a social group from all political power is a threat to the stability of liberal constitutional regimes. Given the convertibility, subtlety and resilience of power, gross material inequality — produced by neoliberal economic policies — effectively locks the relative poor (roughly, the bottom 20% of a class hierarchy) out of political power. Such lockout breaches both the legitimacy and the stability constraints of a liberal constitutional democracy. Neoliberal democracies, sooner or later, become plutocracies. This possibility should be of concern not only for liberal political theory but also for liberal constitutionalism. The usual objections to a constitutional concern with gross inequality and plutocracy — based on transparency, countermajoritarianism and flexibility — are useful design instructions, but do not rule out the constitutionalisation of egalitarian and anti-plutocratic norms. A whole panoply of legal and political constitutional measures — already familiar to or incrementally developed from liberal constitutional thought and practice — could be marshalled to promote material equality and prevent plutocracy.
  • T Khaitan and JC Norton, 'The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions' (2019) International Journal of Constitutional Law (forthcoming)
    This paper argues that, while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.
  • T Khaitan, 'Directive Principles and the Expressive Accommodation of Ideological Dissenters' (2018) 16 International Journal of Constitutional Law 389
    This article 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. Under certain conditions, these directives can be useful in getting populist illiberal groups to sign up to a (broadly) liberal constitution. Framers of the Indian Constitution successfully accommodated some such groups using constitutional directives, and tempered this accommodation through strategies of containment and constitutional incrementalism. Such calibrated accommodation can give dissenting groups enough (and genuine) hope of future political victories without going so far that their opponents in turn leave the constitutional negotiation table. By focusing on the accommodational needs of ideological dissenters, this article adds to existing literature on constitutional consensus-building techniques, which has largely focused on political insurance for ethnocultural minorities. It also highlights a key function of constitutional directives, which have hitherto been considered at best to be interpretive aids in constitutional adjudication, and at worst as constitutional dead weight.
  • T Khaitan and Hugh Collins (eds), Foundations of Indirect Discrimination Law (Hart 2018)
    Indirect discrimination (or disparate impact) concerns the application of the same rule to everyone even though that rule significantly disadvantages one particular group in society. Ever since its recognition by the Supreme Court of the United States in 1971, liberal democracies around the world have grappled with the puzzle that it can sometimes be unfair and wrong to treat everyone equally. The law’s regulation of private acts that unintentionally (but disproportionately) harm vulnerable groups has remained extremely controversial, especially in the United States and the United Kingdom. In original essays in this volume, leading scholars of discrimination law from North America and Europe explore the various facets of the law on indirect discrimination, interrogating its foundations, history, legitimacy, purpose, structure, and relationship with other legal concepts. The collection provides the first international work devoted to this vital area of the law that seeks both to prevent unfair treatment and to transform societies.
    ISBN: 9781509912544
  • T Khaitan and Hugh Collins, 'Indirect Discrimination Law: Controversies and Critical Questions' in Tarunabh Khaitan, Hugh Collins (ed), Foundations of Indirect Discrimination Law (Hart 2018)
    ISBN: 9781509912544
  • T Khaitan, 'The Point of Discrimination Law: Securing the Freedom to Flourish' in Martha C. Nussbaum, Zoya Hasan, Aziz Z. Huq, Vidhu Verma (ed), Th e Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (OUP 2018)
    Th is chapter supports the growing philosophical opinion that it is freedom rather than equality which provides a better foundation for discrimination law. What previous freedom-based theories of discrimination lack (or, at least, fail to make sufficiently explicit) is the insight that the freedom we are entitled to also depends on the freedom that others enjoy. In other words, our liberty-interest is relative, because three of the four basic goods that constitute this interest have an essential connection with what others enjoy. Secured negative freedom cannot be enjoyed if there are particularly striking power imbalances between different societal groups. The range of opportunities that is adequate for us to have a flourishing life depends on the range of opportunities it is possible to have, which in turn depends on how much access the better-off people have. Even our self-respect has a relative dimension, inasmuch as it depends on how much respect others show to us, and how successful we believe our lives to be in relation to the success of the lives of others.
  • T Khaitan and Sandy Steel, 'Wrongs, Group Disadvantage, and the Legitimacy of Indirect Discrimination Law' in Hugh Collins and Tarunabh Khaitan (eds), Foundations of Indirect Discrimination Law (Hart 2018)
    Is indirect discrimination liability more like an affirmative action programme or like the tort of negligence? Is it a redistributive measure or a corrective one? Is it best characterized as ‘public law’ or law ‘private law’? Does it seek to protect groups or individuals? In this paper, we will argue that liability for indirect discrimination occupies a middle ground between these supposedly settled legal categories, combining features of both items in each dichotomy. It is this seemingly unstable and somewhat unfamiliar middle position that partially explains the persisting doubts expressed regarding the legitimacy of indirect discrimination liability. In section I, we will identify the two distinct duties — one general and the other particular — that underpin indirect discrimination. In section II, we will provide a conceptual restatement of British indirect discrimination law and identify the general and particular dimensions of this liability. This section will outline how the particular duty in indirect discrimination diverges from traditional causation-demanding private law liability for the tort of negligence, and how these divergences are justified given social realities and the general/distributive dimension of indirect discrimination liability. Section III will show that despite the indirect discrimination liability being technically strict, it is to some degree avoidable, and at any rate, not unfair.
  • T Khaitan, 'Discrimination' (2017) OUP Max Planck Encyclopedia of Comparative Constitutional Law
  • T Khaitan, 'Indirect Discrimination' in Kasper Lippert-Rasmussen (ed), Routledge Handbook of the Ethics of Discrimination (Routledge 2017)
    This chapter highlights some of the theoretical controversies surrounding the legal conception of indirect discrimination as well as its prohibition, especially those which might have a bearing on its practical legitimacy. Section 2 explains the nature of the disproportionate impact requirement that qualifies as indirect discrimination and outlines some controversies that have arisen in determining the same. Section 3 explores two distinct ways, developed in the United States and the United Kingdom respectively, of categorizing discrimination into direct and indirect forms. Some of the conceptual difficulties associated with the US approach to the distinction are also canvassed in this section. Section 4 considers whether, as has been suggested by some academics, indirect discrimination constitutes a ‘secondary paradigm’ to direct discrimination in any way. It explores the possibility of a morally, temporally, or logically secondary character of indirect discrimination. Finally, section 5 briefly speculates upon the moral bases on which indirect discrimination may be thought to be wrongful or blameworthy.
    ISBN: 9781138928749
  • T Khaitan, 'Equality: Legislative Review under Article 14' in Pratap Mehta, Sujit Choudhry & Madhav Khosla (ed), The Oxford Handbook of Indian Constitutional Law (OUP 2016)
    This chapter provides an analytical overview of the jurisprudence of the Indian Supreme Court when reviewing the constitutionality of statutes for potential breaches of the right to equality
  • T Khaitan, A Theory of Discrimination Law (Oxford University Press 2015)
    DOI: 10.1093/acprof:oso/9780199656967.001.0001
    Marrying legal doctrine from six pioneering and conversant jurisdictions with contemporary political philosophy, this book provides a general theory of discrimination law. 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. Readership: This book would be suited to legal academics, philosophers and students of legal philosophy and discrimination law.
    ISBN: 9780199656967
  • T Khaitan and F Ahmed, 'Constitutional Avoidance in Social Rights Adjudication' (2015) 35 Oxford Journal of Legal Studies 607 [Review]
    In Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. We argue that while King’s prescriptions are justified, he is too cautious about the applicability of his incrementalist prescriptions to legal systems that suffer systemic administrative inefficiencies. Using the Indian experience as a case study, we show that such caution is misplaced, and that at least one of King’s incrementalist strategies, constitutional avoidance, has particular salience for such jurisdictions.
  • T Khaitan, 'Koushal v Naz: Judges Vote to Recriminalise Homosexuality' (2015) 78 Modern Law Review 672 [Case Note]
    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.
  • T Khaitan, 'The Architecture of Discrimination Law' in Vidhu Verma (ed), Unequal Worlds (OUP 2015)
    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.
  • T Khaitan, 'Prelude to a Theory of Discrimination Law' in Deborah Hellman & Sophia Moreau (ed), Philosophical Foundations of Discrimination Law (Oxford University Press 2013)
    This paper engages with George Rutherglen's pessimistic view of the possibility of theorising about discrimination law. Part I will deal with the claim that discrimination law lacks internal coherence, that there is no common thread running through all the norms that together constitute the body of law we call ‘discrimination law.’ I will show that this it is possible to identify four conditions which are individually necessary and cumulatively sufficient for characterising a norm as a norm of discrimination law: the norm should have some connection with a ground that divides all persons between two or more groups, at least one of whose members must be significantly more disadvantaged in relation to members of another group defined by the same ground; and the norm must be designed to distribute the direct substantive benefits or burdens in question to some, but not all, members of a protected group. The second aspect of Rutherglen’s paper, which I will uncover in Part II, is based on an important assumption that the proper role of legal theory is to determine the outcome of adjudication in hard cases. I will show that this assumption — arising from Rutherglen’s commitment to the interpretive jurisprudence of Ronald Dworkin — is the main reason for his pessimistic conclusions regarding theoretical possibilities in discrimination law. I will also show that theorists who do not share this commitment — and perhaps even those who do — need not share Rutherglen’s pessimism. These two — relatively independent — parts together constitute a prelude to a theory of discrimination law. The findings in Part I, if true, impose important constraints on any theoretical enterprise relating to discrimination law. Part II, on the other hand, highlights the numerous possibilities that lie beyond these minimal constraints.
    ISBN: 978-0-19-966431-3
  • T Khaitan, ''Constitution' as a Statutory Term' (2013) 129 Law Quarterly Review 589
    There are at least fifteen statutes which use the term 'constitution' or its cognates to refer to the constitution of the United Kingdom (or that of England or Scotland, before the political union of these countries). Of these fifteen pieces of legislation, two date back to the 17th century, one was enacted in the 18th century, another in the 19th century, and one more between 1900 and 1995. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books. In this article, I categorise these statutory references to the British constitution, and point to some important legal and constitutional implications of such references.
    ISBN: 0023-933X
  • T Khaitan, 'Dignity as an Expressive Norm: Neither Vacuous nor a Panacea' (2012) 32 Oxford Journal of Legal Studies 1
    DOI: 10.1093/ojls/gqr024
    Proponents of dignity see it as a useful tool which solves the most important (if not all) of the practical and theoretical problems in human rights law. Arguing against this sympathetic position on the other side of the debate are the sceptics, who have raised troubling questions about dignity’s alleged indeterminacy, as well as about the illiberal role that it has allegedly played in certain contexts. In this paper, I argue that designing a defensible and useful conception of dignity which is distinguishable from other values such as equality and autonomy may be possible, but not without addressing some genuine infirmities that the critics have pointed out. If there is indeed such a conception of dignity, it is likely to be "expressive" in character. I therefore argue that the legal ideal of dignity is best understood as an expressive norm: whether an act disrespects someone’s dignity depends on the meaning that such act expresses, rather than its consequences or any other attribute of that act.
    ISBN: 0143-6503

Research programmes

Research Interests

Public Law, Human Rights Law, Philosophy of Law, Discrimination Law, Constitutional Theory

Options taught

Administrative Law, Jurisprudence, Constitutional Law (Senior Status), Human Rights Law

Research projects