Formation of new District Alipurduar

Hillman the Analyst, KalimNews, 5 July 2014: Statesman 25 June 2014 news “Question raised over Alipurduar District’s future” Manas S.Banerjee, raises many questions which answers will only be realised at the opportune moment while deciding the future State of Gorkhaland which concept is purported to be legally based peculiarly relating to the constitutional amalgamation of Darjeeling District & the Dooars presumed under the provision of the Fifth Schedule. 
At a glance into the constitutional writ, the ceded territories of Sikkim & Bhutan in transition seemed accommodated under Section 3 of Requisition (Apportionment of Compensation) Act 1949 after release of the said territories under the Foreign (Jurisdiction) Act of 1947 wherein the management of the territories was transferred from the Crown to the Viceroy in charge of the independent dominion of India. The India (Provisional Constitution) Order 1947 delegated the authority to the Viceroy for the government of the dominion after duly having passed the Indian Independence Act of 1947.

The admixture of the three referred legislations has various connotations and which application is particularly directed towards formation of new provinces from the existing 15 Provinces and 562 Princely states. However the territories were designated Excluded Areas of British India in the Act of 1935 and the defined areas designated as Excluded & Partially Excluded Areas in the Order of 1936, which contained a vast area besides the Provinces and the Princely states, roughly numbering 36 such territories (8 Excluded Areas & 28 Partially Excluded Areas). These areas though absorbed within the provinces remained outside the administrative purview of both the Central & State legislatures. Effectively these areas remained directly under the charge of the Viceroy till the Constitution of India was framed, promulgated and commenced in 1950 whence India became a full fledged Sovereign Democratic Republic with an elected Parliament in 1952, whereby the Cabinet elected the first President of India. Thenceforth the Excluded & Partially Excluded Areas, which legal contents were directly transferred into the draft Constitution within the meanings of Articles 244 (1) & 244(2)/275(1). The former incorporated within the Fifth Schedule and the latter within the contents of the Sixth Schedule.

This is explained in detail for the benefit of the writer Manas R.Banerjee and the interlocutor Ananda Pal Ghosh, both presumed to echo the sound of the Sixth Schedule in the article referred to above. This writer goes to say on record that the concerned individuals are writing something which are totally out of context on the whole without realising that since the inception of the Constitution, West Bengal was within the Fifth Schedule (and not the Sixth Schedule which is particularly relevant to the erstwhile Province of Assam being the ceded territories of Burma; ref. to the Treaty of Yandaboo 1826). The Fifth Schedule applied to all the areas other than the Province of Assam. The authors of the above article are reminded here for record to cite, Sixth Schedule applicable to West Bengal is entirely erroneous in explanation, whereas in legal reality the Fifth Schedule is applicable.

This has been well documented, during the period 1952-56 after the first election of Parliament and the functioning of the Constitution, the Fifth Schedule was provided to Provincial West Bengal with the establishment of a Tribes Advisory Council (TAC) before it was declared West Bengal State under the Bihar and Bengal Transfer of Territories Act 1956, wherein Chandernagore (formerly French) and Darjeeling District (formerly Sikkim) were amalgamated with a part of Bihar, “as if” the territories were part of West Bengal State.

Incidentally while creating the State of West Bengal, the Fifth Schedule automatically was withdrawn, along with TAC which formed the basis of the identity of the indigenous people on which account West Bengal province was formed in 1947, thus depriving the people of Darjeeling District identified as ‘Partially Excluded Area’ designated by the following group of tribes 1.Botia, 2.Chakma, 3.Kuki, 4.Lepcha, 5.Munda, 6.Magh, 7.Mro, 8.Oraon, 9.Santal, 10.Tippera, 11. Any other tribe notified by the Provincial Govt. Two more tribes - 39.Limbus(Subba) & 40.Tamangs has been listed in the West Bengal ST list in 2002/03. Taking this into account the ST population in Darjeeling District stands at 21.5% (Census 2011) as compared to 12.72% (Census 2001). In consideration of this rise in ST population in Darjeeling District, the GTA and the territory within the scheme can be defined as a ‘Scheduled Area’ by the President in whose power and control the Fifth & Sixth Schedule areas are provided safety of the people’s political identity (read as acceded areas of erstwhile kingdom of Sikkim and erstwhile Province of Assam respectively).        

TAC which had obliterated itself in 1956 when the State of West Bengal was formed is once again being established in West Bengal by Governor of the State by Notification No.4139-BCW/3C(MC)-08/96(Pt.IDuplicate)-10^thDecember 2013: In exercise of the power conferred by sub paragraph (3) of paragraph 4 of the Fifth Schedule to the Constitution of India, the Governor is pleased hereby to make the following amendments in the West Bengal Tribes Advisory Council Rules 1953, published with this Department notification No.1282TW, dated the 25^th August 1953.

It is most significant to note that the earlier Notification No.1282TW Dt: 25 Aug 1953 of Tribes Advisory Council was under the Dept of Backward Classes Welfare (1952-56) but later amended by the Notification of 10 December 2013:

(1)   in clause(a), in sub-clause, for the words “Minister-in-Charge of the Backwards Classes Welfare Department, West Bengal” substitute the words “Minister-in- Charge, Department of Tribal Development, West Bengal”.

(2)   for clause (b), substitute the following clause:-

“(b) A nominee of the Secretary, Department of Tribal Development, who shall not be lower in rank the post of Joint Secretary of the Department, shall be the Secretary of the Council”.

The Chairman of TAC is ex-officio, “Minister-in- Charge, Department of Tribal Development, West Bengal”, is the Chief Minister. These indications are evidently pointing to one direction, the unfolding of the constitutional writ – the Fifth Schedule route to state formation for the Partially Excluded Area, subject to being determined as a “Scheduled Area”, the vital and significant criteria of the Fifth Schedule.  

It would be inappropriate and outside the constitutional boundary to even consider the thought of arbitrary transfer application of one Schedule provision to another in entirety. It is however, amend the Schedule itself in articulating reforms whenever befitting to carry the progress of the people to a higher level for which the Schedule represents. This is to simply imply that the articulations of the Fifth & Sixth Schedule cannot be arbitrarily transferred to either or in order to change the very program the Schedules implied. Therefore to consider application of provisions of the Sixth Schedule is unconstitutional and therefore cannot even be considered for application in the Fifth Schedule. This example in recent history is the epic of the Sixth Schedule applied for the formation of Gorkha Hill Council, Darjeeling (GHCD) West Bengal, in 2005.

The Sixth Schedule Amendment Bill 2007 and the Constitution 107^th Amendment Bill 2007 was placed before the Parliamentary Standing Committee (PSC) under the Chairmanship of Smt. Sushma Swaraj (MP,BJP). After deliberation on the controversial Bill which was opposed by the people of Darjeeling hills in general under the auspices of the political party Gorkha Jan Mukti Morcha (GJM) conducting the opposition to the Bill. The Bill was amended and forwarded to the Rajya Sabha which met its death knell as it was not tabled at all during the regime of the last govt. in power. Since the Bill was not discussed at all before the new elected govt. the Bill automatically met an ignoble fate.

The question of GHCD in the Sixth Schedule was a much debated and controversial issue which though cremated, the spirit still moves around like a ghost in pockets of Darjeeling hills, amongst the supporters of ex-Supremo, GNLF, Subhas Ghissing, still seem to cherish the Sixth Schedule as a goddess to deliver the dying hills with the dream of a resuscitated life, not knowing well, the dream was infact a constitutional illusion mistaking the snake for the rod. The GNLF political demise now lies in the Sixth Schedule coffin carpentered by the leader, architected by the erstwhile Marxist govt. in power, acquiescence with the Central govt. (simply extending a lending hand to the Congress led UPA govt. to remain in power, considered fully realising that the Bill will eventually meet its own fate by itself). After all, the Bill was entirely unconstitutional (despite it was passed by the West Bengal Assembly). This itself is a joke, if a pertinent question is asked. It is more probable that the political party in power was only buying time in passing the Bill in the Assembly. On the contrary it is more improbable that there was deficit of constitutional experts in the West Bengal legislature to carry the Bill forward for resolution. 

After all, it is now more or less considered squashed by Parliament on one hand, whereas on the other, one might ask how come the Fifth Schedule is once again applied to West Bengal by the Governor in the establishment of Tribes Advisory Council on 10^th December 2013, which import has already been discussed in earlier chapter.

In conclusion it can be deducted, that the various reform process presently being conducted in West Bengal is signaling a definite constitutional target which in the mind of this script is leading to the demand for a state for Darjeeling & Dooars (considered as ceded territories of Sikkim and Bhutan) which identity happens to be the legal guarantee within the bounds of the constitutional frame.