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5 Aug 2012

Darjeeling Hill Council /DGHC/GTA substitution of Tribes Advisory Council (Fifth Schedule)

HILLMAN THE ANALYST, MONDAY, 18 JUNE 2012 : This is a consolidatory note to Bimal Gurung personally not to get over excited regarding the interpretation of the Justice Sen Committee report as the end all of its scheme of things which is obtaining a statehood eventually as the final target. The final report, though it only contains five additional Gorkha/Nepali speaking population areas, is based on Census 2001, which prioritizes the linguistic basis of electoral delimitation of populations. As the demand for Gorkhaland, presumably a new State for the Gorkhas, carved out of West Bengal, constitutionally speaking is impossibility, for the simple reason there is no provision in the Constitution for the creation of states on linguistic basis. The last experiment the politicians of India ventured this projection in Andhra Pradesh is now considered a failure in which the people of Telangana are demanding separation from the parent State on constitutional legality. The past mistake is about to be reinstated to its original state by creating a new State of Telangana, probably very shortly.
In the same breadth, not only Bimal Gururng, but the stakeholders, the hill people of the District are once again reminded here that the statehood which so often was denied to the people is about to take place with the turning of the wheel once again back to its original starting place. The people of Darjeeling District were administered under the provisions of a Partially Excluded Area (PEA) which finally emerged with its status intact in the Constitution within the safeguards of the Fifth Schedule. The safeguard, in constitutional parlance, means a separate administrative unit outside the State, which in real term means a separate State under Article 3 (a) first part “form a new State by separation of territory from any State / or parts of States”. This is applicable to Darjeeling District particularly as the territorial areas of Darjeeling District consists of two other former States, the Kingdoms of Sikkim and Bhutan, and the identity of the people are governed by the treaty terms and conditions, ipso facto.
The GTA is a temporary setup, interim to be precise, before the actual state formation becomes a reality provided a particular criteria, ie. that the population of the area is determined as a Scheduled Area, a term defined by the Dhebar Commission, citing four criteria (i) preponderance of tribal population (ii) compactness and reasonable size of the area (iii) underdeveloped nature of the area and (iv) marked disparity in economic standards of the people and outside the area. Presently the delimitation of electoral constituency is determined by language spoken by the population (Census 2001) and therefore, as language is not the basis of new state formation it debars the demand for statehood totally. Hence Gorkhaland becomes a dream than a reality. However after the GTA becomes functional, it will imbibe more impetus, as the Act is attested by the President of India which ensures that Darjeeling District and the contiguous Dooars area are within the provisions of the Fifth Schedule. The readers are reminded to note, after the commencement of the Constitution 1950, more precisely when the first Parliament was elected in 1952, and the Constitution (Fifth Amendment) Act 1955 – this amendment made a change in Article 3 so as to empower the President to specify a time limit for state Legislatures to convey their views on the proposed Central Laws affecting areas, boundaries, etc., of their States. This translated in simple language means only the President is authorised to create new sates out of the areas of the existing states. In order to support this amendment to a real life situation, a supporting amendment was passed to further the possibility of new state formations, particularly targeted to allow the Fifth and Sixth Schedule areas, ie., being the constitutional incorporation of the provisions of the Partially Excluded Areas and Excluded Areas respectively.
Accordingly in support of the Fifth Amendment, the Constitution (Seventh Amendment) Act 1956, purported to give effect to the recommendation of the State Reorganisation Commission and the necessary consequential changes. Broadly, the then existing States and territories were changed to have twofold classification of States and Union Territories. In other words, new state formation was legalized to accommodate the Excluded and Partially Excluded Areas as provided safeguards in the Sixth and Fifth Schedules, to democratically demand new states internally into the Union of India.
Darjeeling District as a Partially Excluded Area provided safeguard in the Fifth Schedule has a legal guarantee to demand a state after its is able to become a Scheduled Area which provides the constellation of existing tribes to demand a separate administrative unit outside the State, meaning a new State. The GTA is the first step towards that goal for the time being, till such a time the District is determined as a Scheduled Area by the President following the guidelines prescribed by the Dhebar Commission.
The reader is reminded that, 15 new states were created out of provisions of the Fifth (10 states) and Sixth (5 states) Schedules. Besides which, 14 new states and 6 Union Territories were also created by following on the footsteps of (i) Excluded Area (EA) (ii) Partially Excluded Area (PEA) (iii) Centrally Administered Area (CAA) and (iv) as Union Territories (UT).
At the time of the commencement of the Constitution (the application of the Government of India Act 1935 prevailed) and on basis of which there existed 8 Excluded Areas and 28 Partially Excluded Areas totaling 36 such areas. These territories for all practical purpose of understanding happened to be outside British India (9/15 Provinces), including the 562 independent Indian Princely States amongst which, Hyderabad state happened to be one, which as Telangana was merged with Andhra Pradesh in 1956 on linguistic, now proved on the contrary.
In taking the above constitutional recognitions into account, GTA is a fait accompli in order to climb up towards the ultimate goal which can only be asserted over a period of time particularly being relevant to the publication of Census 2011, based on the ethnological (based on Census 1941) aspect of the populi and not on linguistic basis as prevalent since 1941 – 2011. It is surmised, many hill tribes of the Himalayas who were delisted from being categorized as tribes, having inserted Nepali language as the spoken mother tongue, were automatically placed in the general category of the Census population and delisted as tribes. It is believed this great inaccuracy possibly will be rectified by relisting the respective delisted tribes status quo anti, now as Scheduled Tribes (Articles 332, 334, 339 and Article 244(1) - the Fifth Schedule Part B. 4 (1,2 &3). This is a distinct possibility out of which will originate the classification of Darjeeling District and the Dooars Terai as a Scheduled Area on basis of which plank thereafter the constitutional demand for a new state will hold water. The criterion for a Scheduled Area designation is critical for demanding a state. Almost all the new states formations taking place after the commencement of the Constitution is prioritized on the basis of the application of Scheduled Area within the State ensuring the right for a new state outside it.
It is this constitutional perception on basis of which Sibu Soren ‘guruji’ has come all the way from Jharkhand to educate and assist GJM, that the right to state formation will basically lie on the Scheduled Tribes and on which cue it is believed, a new concept is named as Gorkha Adhivasi Pradesh as the new constitutional legal right to plank the new state by omitting Gorkhaland which seems to have no constitutional bearing whatsoever. The key word in the new statehood demand is “Adhivasi” (Indigenous People/Scheduled Tribes). A peep into international understanding regarding the right to self determination, internal or external state formation, happens to be the preserve of only the ‘indigenous people’ (Adhivasi in the Indian context as recognised by the UNO). Since India is also a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007, in principle this right to self determination of the indigenous people is already accepted in the constitutional legality, articulated as Scheduled Tribes (Article 332) and the indigenous people as Adhivasis (targeted as Particularly Vulnerable Tribal Groups [PTGs] classified as Primitive Tribal Groups [PTG] since 1973). In the State of Sikkim it is referred that the Lepcha tribes have been designated as PTG, and accordingly have been issued a certificate by the concerned authorities stating so to derive the applicable benefits in that respect. It is also realised that the reservation of 12 seats in the Sikkim Assembly for the Bhutia – Lepchas (BL) is a derivative of this recognition, where the ‘BL’ both are considered as indigenous people in recognition of the international precepts.
In this perception it may also be derived as a factual reality, that Darjeeling Gorkha Hill Council (DGHC) accepted by GNLF Supremo Subhas Ghissing, is in fact a tribal body which is unknown to even him. The DGHC is the extension of the statutory Tribes Advisory Council (TAC) in which Darjeeling District was safeguarded under the provision of the Fifth Schedule, directly notified by the President of India and the Governor of West Bengal in 1952-56. It is this aspect of TAC which is translated as DGHC in 1988 despite the fact, the GNLF Supremo disclaimed that the people of Darjeeling were not tribes like those of the Northeast, ‘running around naked’ unlike the suited booted people of the Darjeeling hills. It is a paradoxical situation now that Subhas Ghissing planks Darjeeling under the Sixth Schedule (which is not so) and the GJM has demanded recognition of Gorkhas as Scheduled Tribes. Both the stances are contradictory situations, as Gorkhaland is impossible till the Gorkhas are listed as Scheduled Tribes which is infact the final analysis by which conclusion eventually Darjeeling and Dooars could become a new state under the new nomenclature Gorkha Adhivasi Pradesh or whatever its equivalent, as long as the 100 years old dream comes true and the people will breathe a new whiff of mountain air at long last instead of the stale atmosphere originating from the plains. Particularly the monsoon downpour which contains all the polluting and infecting debris carried over from the rising contaminated atmosphere from the smoking factories from down-under.
It is seldom known from referential books DGHC was in fact constituted for the Schedule Tribes of Darjeeling District as the safeguard provided in the Constitution in the Fifth Schedule. In the book ‘Human Rights and Indigenous People’ by J.K.Das under chapter 3 Evolution and recognition of the rights of indigenous people at international level (pg. 105) quote, “in 1988, for the tribals of Darjeeling, the West Bengal State Legislature has passed an Act and established the Darjeeling Gorkha Hill Council as an autonomous unit. Similarly, the Bodoland Autonomous Council took form under an enactment of the Assam State Legislative Assembly, in 1993, for the Bodo plains tribals in Assam by which the executive functions including formulation of policies in respect of 38 subjects were transferred into the Council giving substantial autonomy …. for the purpose of realisation of their aspirations so that they can achieve social, economic, education, ethnic and cultural advancement. In order to achieve the economic emancipation, cultural resurgence, political self-determination and all-round development of tribals of Jharkahnd area, the Jharkhand Area Autonomous Council Act 1994 was passed by the Bihar State Assembly. As a result Jharkhand Area Autonomous Council have been established covering 18 Districts of Chota Nagpur and Santal Pargana. Comparing Jharkhand with Autonomous Councils of Gorkhaland and Bodoland, all three were conceived under the State Legislature”.
It would be worth the while to note that the Gorkhaland Territorial Administration (GTA) Act of 2011, Chapter 2. Power and functions of the Gorkhaland Territorial Administration under section 26. … the GTA shall have administrative, financial and executive powers in the region in relation to 57 items which is exactly the same numbered items as specified in the Bodoland Territorial Council (BTC) 2003 which however happens to be within the provision of the Sixth Schedule aspects of Assam State. Whereas the same items are contained in the GTA is no reason for bewilderment as both the Fifth and Sixth Schedule indicate safeguards for the tribes in general which set forth the first step on the ladder to new state formation which is applicable only to the areas within the meaning of the Excluded and Partially Excluded Area enacted in 1935. The past constitutional history of these areas however goes back in time to the days when most of these territories were under rulers and kings having acceded these territories either to the East India Company or later after 1858 to the British Monarchy. State formation as a perception is the integration of such British possessions in India which were outside British India, which after the commencement of the Constitution 1950-52 require to be integrated into the union of the federation gradually in time as per the democratic wishes of the inhabitants of the region.
In relation to Darjeeling District and the Dooars, the demand for Gorkhaland and now captioned as Gorkha Adhivasi Pradesh is in fact the constitutional approach of merger of these territories and the assimilation of its people into the Indian nation under the provision of the Fifth Schedule as a democratic legal right to join the Union of India. It is therefore a misconception and an illusion, that Darjeeling District is a territory of West Bengal, when its history clearly indicates the areas contained in it were extensions of Sikkim and Bhutan acceded to the East India Company/British government respectively. It happened to be in West Bengal by virtue of its proximity as a result of which the President in whose name Darjeeling District and the Dooars were transferred by the Governor General/Viceroy on behalf of the British Crown. The District was transferred to West Bengal for management of administration by the Central Government on behalf of the President as per the Government of India Absorbed (Laws) Act 1954 under provision of Rule 4 of the Fifth Schedule a Tribes Advisory Council was established in 1952-56 by the President/Governor referred earlier. Under such circumstances it is completely erroneous and constitutionally inappropriate for any state functionary whether the Chief Minister or whoever it maybe, to assume as a right in asserting any claim to Darjeeling District as part of the territory of the State. Therefore it follows the claim by respected leaders division of Bengal will not be allowed, is infact a constitutional infringement of the Fifth Schedule – concerning the tribes of the District.
It maybe of great interest to note, citing the Berubari Union and Exchange of Enclaves (1959 Case details) quote “section 3, sub-s 1, provided, inter alia, that as from the appointed day the Province of Bengal as constituted under the Government of India Act, 1935 shall cease to exist and there shall be constituted in lieu thereof two new Provinces to be known respectively as Eats Bengal and West Bengal”. In other words, Provincial Bengal was written off the map of India as a result of its partition which created East Bengal and West Bengal. The former is now a new country Bangladesh. The question now arises, which of the two preserved the earlier Bengali identity is a million dollar question. One is a country and the other is only a state within a country, is a dilemma worthwhile deciphering.
More interesting is the proposition, which no doubt will be bewildering, to be informed, believe it or not, the two new Provinces of East Bengal and West Bengal created out of Province of Bengal, originate from the fact based on the Government of India Act 1935 which identified the Chittagong Hill Tracts (CHT) taking into account the Chakma and the other tribes as the indigenous people for considering the “Excluded Area” of Bengal. In the same breadth, the indigenous people (the tribes) of Darjeeling District were listed for declaring the “Partially Excluded Area”. The most surprising part unknown to general public, is the fact, however unbelievable, East Bengal was created as a right of self-determination supposedly expressed by the indigenous people of the CHT as an Excluded Area. This was diabolically wrong, as the Chakma and other tribes formed 97% of the population who were Buddhist by faith and incorporated with population following the Islamic creed, both of whom were diametrically antagonistic to each others religious beliefs. As a result of this decision made by Radcliffe who was in charge of the Boundary Commission, the Chakma and other tribes are now in a state of great hardship as they are now UN recognised refugees in their own homeland. As an outcome of this discrimination it is a notable fact Bangladesh is not a signatory to the UNDRIP. Neither Bhutan is a signatory as a result of crisis of discrimination highlighting the case of ethnic Nepali/Gorkhali Bhutanese who are now refugees in exile.
Unquestionably, the creation of the province of West Bengal is rooted on the fact, Darjeeling District as a “Partially Excluded Area” comprised of seven distinct tribes and others (at the time there were many hill tribes of the Himalayas as well who were however delisted) as discussed earlier. But no matter how hard to swallow, had Darjeeling District (originally territories of Sikkim and Bhutan) not been identified as a PEA, the State of West Bengal (jokes aside) would have been an inconceivable proposition. Therefore taking this cue as a premise it would be constitutionally difficult to imagine if Darjeeling District eventually becomes a state will West Bengal wither away without an identity, is a question only the future conditions will reply. This is certainly very difficult to believe for the uninitiated into the strange working of the Constitution of India, which still requires dedicated mind and effort to unravel many of the features contained therein.Courtesy and source- Darjeeling Times- http://www.darjeelingtimes.com/opinions/general/4721-gta-substitution-of-tribes-advisory-council-.html

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