Over two lectures in the UK this week, Supreme Court judge DY Chandrachud foregrounded key points about the overarching goal of the Indian Constitution and its relevance when the state is no longer the primary employer. In one lecture he said the Constitution’s transformative dimension comes from its attempt to remedy discrimination. Flowing from it, working towards equality needs to consider pre-existing social and economic imbalances. Hence, the need for affirmative action.
In another lecture, he located this goal in the backdrop of India’s economic transformation. The state, earlier the primary employer, is now a facilitator of private participation in economic activity. The Constitution’s provisions against discrimination in public employment exists only against the state. This, therefore, leads to the question if there’s a need for a comprehensive anti-discrimination law.
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The case against any form of discrimination is unexceptionable. But a discourse on constitutional protections in private employment is of relevance to only a sliver of the workforce as the structure of employment puts most of them beyond the ambit of legal safeguards.
A mere 21% of the workforce earns a regular salary and not all of them in workplaces covered by legislation. In 2019-20, just 16.6 million people out of more than 400 million-strong workforce were employed in factories covered by legislation. Therefore, most Indians work without any legal protection against discrimination.
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If the constitutional promise is to be realised, India first needs an enabling economic condition that lifts most people to a level where legal protections kick in. It’s possible only through an environment that allows the economy to formalise.
That’s the pre-condition to actually access constitutional rights. A sweeping anti-discrimination law now would just be a paper tiger. A charade of our constitutional fidelity. (Times of India)
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