Something Is Rotten In The State of Bengal

medium120135742It was a familiar scene. Flanked by two national flags, Mamata Banerjee took centre stage doing what Bengal’s politicians have turned into an art form over the last five decades — play victim. Last week, Supreme Court cancelled the recruitment of around 25k teachers and staff. SC found the whole process to be “intentionally compromised”.“Is being born in West Bengal a crime?” was Mamata’s response. How many teachers lost their jobs in Madhya Pradesh’s Vyapam scandal? Why were appointments of relatives during the long Communists’ rule in Bengal not revoked? Meant to defend her own govt from charges of wrongdoing, Mamata’s responses highlighted a deeper malaise – the long rot of rule of law in Bengal.Throughout her press conference and in state govt’s arguments in SC, the limited plea was this — segregate those candidates whose appointments were tainted from those whose weren’t, and allow the latter to continue in service.Legally, this was tenable. Govt gave a detailed list of the number of appointed candidates whose scores had been manipulated. In ordinary cases, the judges may have made more of an effort to separate out the innocent ones, lest the wrongdoing of a few others imperil the jobs of all others. But this was no ordinary case.Sample this: while the dispute was pending, the physical answer sheets of all candidates, primary evidence of wrongdoing, were destroyed. As many as 185 assistant teachers were appointed to Class 9 and Class 10 despite securing ranks lower than those not appointed. There were 1,498 out-of-panel appointees — who weren’t even recommended. Examples of manipulation “broad and deep” went on and on.Despite this, SC ought to have persevered in ensuring that no innocent teacher appointed by virtue of their performance should be made to undergo the whole process again. But in a rare instance of privileging systemic integrity over individual difficulty, SC found the taint so deep that it refused to engage in a sifting exercise.If govt wanted to dole out patronage to its favoured few and was candid enough to admit it, then it wouldn’t have the benefit of doubt that a rule of law system would ordinarily afford it. Govt’s playbook was of a patron, illegally rewarding its chosen loyalists. Now it would have to pay the price. Legally, the result may be doubted. But morally and ethically, it is right.This is especially because the fundamental tension is not between saving untainted teachers and punishing tainted ones. That is incidental to whether it is rule of law or rule of patronage that wins out. In this face-off, as existential to democracy as the jobs were to the candidates, proponents of rule of law have their task cut out.In a different incident only a week before this judgment, Bengal assembly passed an absurd bill. The state revoked all significant incentives to industries offered in the last few decades. Industries now are also required to repay any benefits they may have received under these incentives.So, if a company that has built a port received subsidies from govt because port development will lead to employment generation, that company would now have to return those subsidies, while of course carrying on business as usual. Going back on one’s word by retrospectively revoking benefits is fundamentally unfair.But the assault on the rule of law does not stop there. The law also overrides any judgment of any court or arbitral tribunal under which the industry may have won a case against Bengal govt. This provision is a throwback to the medieval era when kings could issue firmans overriding anything anyone else may have said or done. In a democracy governed by separation of powers, court rulings cannot be overridden by any legislature. Further, if benefits have already been provided, they can only be revoked in limited circumstances.Bengal is neither the first govt to adopt this course, nor will it be the last. But since the infamous retrospective tax levied by GOI on Vodafone, there’s consensus that such laws are bad for business, bad for employment and bad for the people. Bengal govt cannot unselfconsciously invite foreign businesses to invest in the state, as CM did on a visit to UK last month, while enacting extractive legislation of this kind. It simply doesn’t add up.Govt justifies the law on the ground that the state will save money on incentives to industry and instead utilise it in “sectors of greater public interest” such as education. Ordinarily, the irony would have been laughable. But today, with thousands of young teachers out of a job and a govt that sees itself as the patron of a few, it is cruel. If a Bengal CM playing victim is a familiar scene, so is that of a Bengal govt privileging the party over the people. It has a storied history, and irrespective of who is in govt, an unfortunately long future as well.The writer is Research Director, Vidhi Centre for Legal Policy. Views are personal