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PUCL Bulletin, September 2006

Private Sector – Its obligations to Dalits

-- By Rajindar Sachar

A lively but in my view, ill-informed, discussion is taking place in public on the question of job quota in the private sector. The controversy has become sharper by the weight of legal opinion of the Attorney General that it was not possible to provide reservation for SCs and STs in the private sector without amending the Constitution. I have my reservation on the correctness of this view. I realize that emphasis is made on job quota possibility because of our feudal and hierarchical social system which puts a job in an office whether in private or public sector as the highest achievement. However, I feel that though emphasis on job may be kept up, the real battle dalits need to fight is to have a share in the expanding business opportunities and that too in proprietary capacity. It is in this context that I put forward an alternative which is immediately available and which can give more affluence, recognition and opportunities to dalits not only for jobs in private sector but for expanding the opportunities to share in the growth of Indian economy, and that too without amending the Constitution.

It is well known that Central and State Governments award thousands of crores worth of public works and contracts to the private sector. All these activities flow from the Government playing a very crucial and significant role either to make a particular avenue open to the private sector like the privatization and modernization of airports, express highways Public Works Department, Delhi Development Authority (DDA), Delhi and similar ones in number of other States for roads or even construction of Govt. properties which are to be executed by the private contractors. I am of the view that if proper steps available even under the present legal set up are taken, a very large segment of dalits population can be absorbed and can take benefit of the rising economy.

It is in this context that a reference to USA legislation called the “Public Works Employment Act of 1997” would be apt. That Act had a minority business enterprise clause which provided that 10% (minority population of USA) of the federal funds granted for local public works projects must be used by state and local grantees to procure services or supplies from business owned and controlled by “minority group members”, the latter being defined in the Act as United States citizens who are “Negroes, Spanish-speaking, Orientals…….”.

This provision was challenged as denying an equal protection clause provided under the 14th amendment of the US Constitution (from which Article 14 of our Constitution has been adopted). The Court upheld the validity of the legislation as it contained provisions designed to uplift those socially-economically disadvantaged persons to a level where they may effectively participate in the business mainstream of USA economy.

The arguments raised as to why the private contractors should be compelled and limit their choice in this particular manner as to from where the supplies will be received and whom they will sub-contract was rejected, by holding that “legislation When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such “a sharing of the burden by innocent parties is not impermissible”.

Question of constitutional objection is totally off the mark. After 44th amendment Right to Property is no longer a fundamental right. Only Parliamentary legislation is necessary to deprive a person of it without compensation. It is also well settled that Article 19 confers no right on an individual to carry on business with the Govt. – if it wishes it has to be on terms settled by Govt. As such, no objection can be taken by the private sector to the provision making it incumbent on it to share proportionately with Dalits the funds given to it by the Govt. or local body agencies.

Similarly, governments could prescribe conditions as a part of scheme of disinvestment of public sector. It would then be permissible for the Central and State Governments to provide that out of these amounts the private contractor will have to ensure that a certain percentage which, to start with, could be fixed at 10% (though it is low as compared to the dalits population of 15-16%) to be made available to them either in the matter of sub-contracting or executing some works or in the matter of employment. Such a course would require not only no constitutional amendment but not even an Act of Parliament. The reason being that the Government, being the spending authority, it is permissible for it by executive orders to direct that a certain portion of this money available will be utilized either for providing employment or for sub-contracts to the dalits. This is what was done in USA and which while upholding the said legislation very eloquently observed – “if we are ever to become a fully integrated society, one in which the colour of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.” The same principle aptly applies to the position of dalits in our country.

Our Supreme Court has held that “economic empowerment of the poor, in particular the Scheduled Castes and Scheduled Tribes, as is enjoined under Article 46, is a constitutional objective as basic human and fundamental right to enable the labourer, Scheduled Castes and Scheduled Tribes to raise their economic empowerment.”

I see no reason why our Supreme Court which is far more progressive and poor-oriented than the USA’s Supreme Court, will not reject similar challenge. But of course the overriding question still remains – is there a political will and determination in the Central and State Governments to take on the combined forces of Big Business.

I am convinced that it is not only jobs but business opportunities that need to be opened to Dalits, to make a real change in their social and economic set up.


People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014