Biography

Tarun Khaitan is an Associate Professor and the Hackney Fellow in Law at Wadham College, currently on special leave for four years from 1 September 2017. During this period of leave, he is a Future Fellow at the University of Melbourne to work on his research project on the resilience of democratic constitutions, with a focus on South Asia.

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 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." He helped draft the Anti-Disrimination and Equality Bill currently pending before the Indian Parliament.

Publications

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  • T Khaitan, 'Directive Principles and the Expressive Accommodation of Ideological Dissenters' (2018) 16 International Journal of Constitutional Law (forthcoming)
    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 focusing on the accommodational needs of ideological dissenters, this paper adds to existing literature on constitutional consensus-building techniques, which has largely focused on political insurance for ethnocultural minorities.
  • T Khaitan and Hugh Collins (eds), Foundations of Indirect Discrimination Law (Hart 2017) (forthcoming)
    This collections explores at a theoretical level the European/British approach to indirect discrimination, asking some big questions about it like is its purpose social justice or formal equality, or what is the underlying theory of structural disadvantage for protected groups. This offers a unique perspective as, while a lot has been written about direct discrimination (aims, purposes, theory), there is very little currently available about indirect discrimination.
    ISBN: 9781509912544
  • 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 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 2017) (forthcoming)
    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, '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)
    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.
  • 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, '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

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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