September 2006 
Year 12    No.118

Dalit Drishti


Business matters

The private sector must share government and public funds proportionately with Dalits

BY RAJINDAR SACHAR

A lively but in my view ill-in-formed public discussion is currently taking place on the question of job quotas in the private sector. The controversy has been sharpened by the weight of legal opinion from the attorney general who opined that it was not possible to provide reservation for SCs and STs in the private sector without amending the Constitution. I have my reservations on the correctness of this view. I realise that the emphasis placed on the prospect of job quotas is due largely to our feudal and hierarchical social system which views an office job, whether in the private or the public sector, as the highest achievement. However, I feel that while the emphasis on jobs must be maintained, the real battle that Dalits need to fight is one that accords them a share in now expanding business opportunities, especially in a proprietary capacity.

It is in this context that I put forward an alternative that is immediately available and can be implemented without amending the Constitution, one that can bring more affluence, recognition and opportunities to Dalits not only for jobs in the private sector but also to expand their opportunities and share in the growth of the Indian economy.

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 in opening up a particular avenue to the private sector as in the privatisation and modernisation of airports, express highways, projects of the Public Works Department and Delhi Development Authority and others in a number of states for roads, or even the construction of government properties that are to be executed by 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 the Dalit population can be absorbed and can benefit from the growing economy.

It is in this context that a reference to the United States legislation called the "Public Works Employment Act of 1997" would be apt. This Act contained a minority business enterprise clause which provided that 10 per cent (minority population of the US) of the federal funds granted for local public works projects must be used by state and local grantees to procure services or supplies from businesses owned and controlled by "minority group members", the latter being further defined by group. 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 courts however upheld the validity of the legislation as it contained provisions designed to uplift those socially or economically disadvantaged persons to a level where they may effectively participate in the business mainstream of US economy.

The question of constitutional objections is totally off the mark. Following the 44th amendment, the 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 established that Article 19 confers no right on an individual to carry on business with the government – if one wishes to do so this has to be on terms settled by the government. As such, the private sector can take no objection to a provision making it incumbent upon it to share proportionately with Dalits the funds given to it by the government or local body agencies.  Similarly, governments could prescribe conditions as part of a scheme for public sector disinvestment. It would then be permissible for the central and state governments to provide that out of these amounts a private contractor would have to ensure that a certain percentage which, to start with, could be fixed at 10 per cent (though this is low when compared to the Dalit population of 15-16 per cent) is to be made available to them either in the matter of subcontracting or executing projects or in the matter of employment.

Such a move would not necessitate a constitutional amendment nor would it require an Act of Parliament. With the government being the spending authority, executive orders can enable it to direct that a certain portion of the available funds be utilised either to provide employment or for subcontracts to Dalits. This is what was done in the United States which while upholding the aforesaid 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 indeed applies to the position of Dalits in our country. Our Supreme Court has held that the "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 have no doubt that our Supreme Court, which is far more progressive and poor-oriented than the US Supreme Court, will reject any attempts to challenge the move in India should the case arise. But of course the overriding question still remains – do our central and state governments possess the political will and determination 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 made available to Dalits to effect any real changes in their social and economic situation.

(Rajindar Sachar is a former chief justice of the Delhi High Court.)

 

 


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