Private sector quota faces hurdle

Proposal could violate Article 16 (4 A) of the Constitution: Soli Sorabjee

The proposal to reserve jobs for Scheduled Castes and Scheduled Tribes in the private sector through legislation has hit a legal roadblock, with former Attorney-General, Soli Sorabjee warning the government that the proposal could violate Article 16 (4 A) of the Constitution and could be challenged in court unless the Constitution was amended.

Sorabjee gave his opinion just before the 2004 general elections. About three months before the elections, Prime Minister Atal Bihari Vajpayee had convened a meeting of all Scheduled Castes and Scheduled Tribes members of Parliament where MP after MP made the point that with government jobs drying up, the private sector was obliged to own up to its social responsibility to this section of society.

The Prime Minister had observed at the meeting: "Poonjivadi daliton aur pichhre vargo ke tiraskar nahin kar sakte" (Capitalists cannot ignore the socially backward classes).

That's when Minister for Social Justice, Satyanarayan Jatiya had started a file on ways to protect the interests of Scheduled Castes and Scheduled Tribes.

A legal opinion was sought on the feasibility of legislation to secure jobs for this group and when the attorney-general gave his opinion, the idea of legislation was shelved because at the time, the National Democratic Alliance (NDA) did not have a majority in the Upper House.

Article 16 (4A), part of the Fundamental Right to equality of opportunity in the matter of public employment, says: "Nothing in this section shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the state in favour of the Scheduled Castes and Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State".

This is why the NDA manifesto merely says that "consultations" will be started with the private sector on how best to ensure injustice is not done with these communities.

The Congress-led United Progressive Alliance (UPA)'s common minimum programme (CMP) commits itself to a "dialogue" with the private sector to ensure jobs.

Social Justice and Empowerment Minister Meira Kumar told Business Standard that the government had the authority to legislate and could do so any time. But she was clear of her approach. She was for consensus first and legislation later, if necessary.

"Those who have to introduce reservations should accept it happily, treat it as something that comes from a conviction that injustice over centuries to a set of people must be righted," she said.

"I am not in favour of imposing anything on anyone. I believe in giving a chance to well-meaning people. The corporate sector in India is sensitive and responsible and I'm sure they will respond favourably to the idea of doing good", she said.

Kumar said she had already started talking to the chambers of commerce and would be meeting them over the next one week. Meanwhile, the government is considering whether to follow the old system of providing reservations on the basis of population or ensure affirmative action""on the lines of the US model""and ensure flexible representation.