The issue of equal opportunity and representation in services outside the public sector has seen intensified debate in recent times. After the United Progressive Alliance (UPA) government released its Common Minimum Programme (CMP) in 2004, the debate rekindled itself in the media with higher levels of opposition from elite academia and of course the industry itself whose initial response was a flat refusal.

The issue popularly known as reservations in the private sector needs to be viewed from a historical perspective together with comparative affirmative actions or policies in other countries as well as the status of the promise made by the UPA government in its CMP.

Although the Constitution provided for reservations in public services and in public sector enterprises, it was in 1956 that the government of the day realised that the ‘rapid growth of industrialisation’ had opened up new employment opportunities in the private sector. The department of industry and commerce wrote to representatives of the private sector industry asking them to consider the representation of Scheduled Castes (SCs) and Scheduled Tribes (STs) while providing employment. However, it was not until 1975 that the issue of reservations in the private sector cropped up again. In a special meeting, the then prime minister instructed the government to write to industry associations asking them to implement reservations. The industry associations in turn informed their constituent industries of the government’s intentions.

It was only after the wave of liberalisation, privatisation and globalisation (LPG) of the 1990s that the nation realised how fast eroding employment in the public sector coupled with the lack of equal employment opportunities in the private sector would cause a severe loss of jobs for marginalised sections. It was Dalit groups who first saw the perils of such LPG when economists like KS Chalam wrote in the early 1990s that the marginalised and the poor are unlikely to gain in the new economic climate. The Planning Commission’s Working Group on Empowering Scheduled Castes reported a loss of more than 1,13,450 job opportunities for the SCs from 1992-1997 due to the new LPG policies. Sukhdeo Thorat and others raised the pitch of the current debate with studies on market discrimination that provided impeccable evidence of the existence of discrimination in the private sector. The need for legal remedies in the backdrop of LPG was stressed. It was only from the year 2000 onwards that studies the world over started pouring in, pointing out the widespread discontent with globalisation.

The debate also brought forth comparisons with other countries where similar policies of reservation or affirmative action are practised. There is reservation in India and Malaysia; affirmative action in the US and South Africa; fair employment measures in Northern Ireland and positive actions in the UK and Australia. India’s private sector latched on to US policies of affirmative action, purporting these as a non-quota model. In the United States, a tumultuous civil rights movement during the 1960s led to the enactment of the Civil Rights Act, 1964 which made discrimination a punishable offence, including discrimination in matters of employment for the country’s minorities (the African-Americans, Hispanics, Asians and Native Americans). The most interesting aspect of the American model is that rudimentary 1940s laws made the private sector responsible even before affirmative action was made mandatory in government services.

The private sector in the US responded positively and then further complied with the provision of dealerships to minorities and purchases from minority sellers. The US administration set up an Equal Employment Opportunity Commission (EEOC) under the Equal Employment Opportunity Act, 1972, which was a watchdog office monitoring discrimination in employment in both the US public and private sector. The EEOC mandate includes women, disabled and others as well. The Civil Rights Act, 1964 mandates that every employer with 15 or more employees is bound to submit an annual ‘Standard Form 100’, providing details of the race and gender of all categories. This is then placed on the Internet by the EEOC to provide an insight into the job profile and the actual implementation of equal opportunity in employment.

The US has legislated on all aspects related to affirmative action policies, and this was further strengthened by presidential orders. The laws regulate minority purchasing by government from minority dealers; the Office of Federal Contract Compliance Programmes (OFCCP) makes it compulsory that all government contracts employ minorities and larger contracts provide subcontracting to minority contractors.

Some of the finest constitutional and legal provisions can be seen in post-apartheid South Africa which gave itself some of the most democratising laws apart from its constitutional provisions. The Employment Equity Act, 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 provided strong legal sanction for the eradication of discrimination. The Employment Equity Act imposes fines on employers practising discrimination and also provides for special equality courts to ensure the justiciability of equality provisions in law. The Promotion of Equality Act is a unique piece of legislation which prohibits discrimination on the basis of colour, religion, gender and age, and also bans hate speech. It is absolutely essential that India learns from democracies like the US and South Africa which have made special efforts to treat the social malaise of discrimination on the basis of caste and race.

As the debate in India continued to rage, the Dalit movement steered the issue across the political spectrum. The National Democratic Alliance (NDA) government, which had made a few noises in 2003, failed to address the demands of the marginalised. The Congress party made a clear mention of it in its manifesto and later in 2004, after the formation of the UPA government, the issue of reservations in the private sector was included in the CMP as below:

"The UPA government is very sensitive to the issue of affirmative action, including reservations in the private sector. It will immediately initiate a national dialogue with all political parties, industry and other organisations to see how best the private sector can fulfil the aspirations of Scheduled Castes and Scheduled Tribes youth."

But even the UPA has now lost its initiative on the reservations in private sector issue. During the debate from 2004-2006, Indian industry launched a virtual offensive where certain industry leaders were vehemently opposed to the idea of equal opportunity for disadvantaged sections.

Let us track the issue over the past two years. After the CMP was made public, the UPA government formed a Group of Ministers (GOM) to look into the issue of reservations in the private sector. During this period the GOM held six meetings, including a meeting with industry representatives from the CII, FICCI, ASSOCHAM and PHD Chambers of Commerce in Delhi in 2005. Initially, the industry’s general thrust aimed to divert the issue on the basis of merit and efficiency related arguments. But a group of young Dalit IIT students then raised the question of over a hundred IIT graduates with more than 7.5 CGPA who were not picked up by the private sector despite their higher marks and solely because of caste. The list of students was forwarded to industry representatives who are yet to recruit these students even a year later.

The issues of merit and efficiency were countered by studies that revealed discriminatory recruitment patterns within the private sector. Studies conducted by TS Papola in Pune, Mumbai, Ahmedabad, Coimbatore and Surat showed that private industry recruitment is not conducted predominantly through formal channels such as advertisements, notifications or the National Employment Service (similar to Employment Exchanges) but through informal channels that accounted for more than 70 per cent of employment. The absence of equal employment opportunity to all was more than evident. Private sector recruitment is personalised and insider-based and helped persons from the socially better endowed sections, for instance, the high castes accounted for 50 per cent of the workforce in Pune and 49 per cent of the workforce in Coimbatore. But such studies and a general understanding of the discrimination practised by industry did not manage to generate the force necessary to drive the point home to the government.

The industry repeatedly stressed the issue that reservations should not be imposed through law. The tax compliance and defaulting record of the private sector can hardly sustain such an argument where even existing laws are skewed for their interests. Opinion was divided on the legal framework and this was further influenced by interest groups lobbying against reservations. One argument that was put forward suggested that reservations could be introduced under existing constitutional provisions. Legal experts like Dr S. Japhet, through the ‘Bangalore Initiative’ of 2003, argued that Article 19 (1)(g) of the Constitution, which provides for the fundamental right to "practice any profession, or to carry on any occupation, trade or business", should be subject to a reasonable restriction of equal employment opportunity and non-discrimination of disadvantaged sections. The enabling law can thus provide reservations in any sector.

Unfortunately, the GOM on reservations in the private sector did not initiate a national dialogue as promised in the CMP. After holding one meeting with representatives of Indian industry the GOM merely continued to seek legal opinion. It has failed to sit in dialogue with political parties and other interest groups such as SC and ST organisations. According to media reports, the GOM, having sent its report to the cabinet, has surrendered its mandate – throwing the ball into the government’s court by citing that it is not within the committee’s purview to suggest a constitutional amendment. While this was happening in early 2006, the issue of a constitutional amendment by Article 15 (5) and later the anti-reservation agitation by medical students in Delhi cornered the nation’s and the government’s attention.

The issue was again rekindled when private industry associations released the Irani Committee Report detailing various aspects of the role of private industry in fulfilling their social responsibilities towards SCs and STs. The report contains a promising note on the role of private industry in creating educational opportunities, providing skills and entrepreneurial training to SCs and STs. It falls short on any commitment guaranteeing job opportunities and, of course, opposes any legal framework in this regard. The report also asks industry organisations to first profile their employee databases so as to determine the true presence of marginalised sections in their workforce. Although such an exercise would no doubt help the nation ascertain the diversity of its workforce, the industry does not address the fundamental moot point – that of equal employment opportunity for SCs and STs and even women. The measures that the committee suggests are minimal and on so small a scale that they would fail to have any real impact.

After this report was released by the private sector industry, which is lobbying hard against any legislation on reservations, a new turn of events has dictated the status of reservations in the private sector. Dual protests seem to have ended up compounding the two reservation issues – OBC reservations in educational institutions and reservations in the private sector – where the government seems to have put the issue of private sector reservations in cold storage. Dalit groups see this as a betrayal. Further, the matter of dilution of laws for the implementation of Article 15 (5) has also come to the fore.

The Common Minimum Programme promised at least two laws: for reservation in government services and for reservations in the private sector, and the enabling law by virtue of Article 15 (5) adds up. The law on governmental reservations, which was introduced in Parliament in December 2004, is pending with a separate GOM, one that has not met for a year. Meanwhile, the reservations issue seems to have become entangled with other issues and despite the government’s assurances to Parliament during a debate on the same issue in 2005, the aspirations of SC and ST youth remain unfulfilled.

As time progresses, the issues of social justice and equal opportunity need to be seriously addressed by intelligentsia and government alike even as the deepening differences fashioned by policies of liberalisation, privatisation and globalisation make for an increasingly unequal society. More egalitarian schemes are particularly crucial in a country like India where society is already divided over caste, religion and language. I sincerely hope that better sense prevails over our opinion makers and our government to bring about social change through the implementation of more equitable policies.