Response to : ‘Division of state not good for Hill people’

KalimNews, Kalimpong, 13 Sept 2013: Hillman the Analyst's response to a story published in The Statesman with dateline Siliguri 11 Sept 2013 tittled “Division of state not good for Hill people”. 
The report stated that the West Bengal Human Rights Commission (WBHRC) Chairman, Justice Retd. Asok Kumar Ganguly said, “Division of state not good for Hill people”. It is totally improper and unbecoming of the post he holds (which is by virtue of the recommendation of the State CM) is inflicting with the sense conflicting of interest. This is to allege that his opinion is biased of the post, which as a matter of fact, on the contrary should be docking the state on the stage for human rights violations in respect of Darjeeling District which has the legal right to demand a state, within the provisions of the Fifth Schedule in which its human rights are provided an account of the national minorities (the hill peoples of the District) conceived as the indigenous peoples, whose fundamental right is guaranteed by the Constitution itself. 

Therefore the rampant arrest of the statehood activists of recent times, in which over one thousand persons have been arrested glaringly, displaced the excesses of the state govt. in using the administrative machinery endeavoring to douse the statehood movement accounting it as a situation of law and order. Whereas the state itself is responsible for destabalising the law and order by conducting rampant arrests under law. If at all a crisis of law and order exists this is created in recognising the fact that the state is on anti statehood mode and applying all measures at its disposal to contain and deflect the demand with the idea of continuance of the GTA, however under its terms and conditions. Even to the point of appointing govt. appointed nominee members to the post of the Chairman GTA. Which if proved unsuccessful may even arrange operating the GTA under a govt. administrator.

This is in total contravention of the concept that the GTA should be supported by the govt. at all cost, ethically speaking, and not destabalising it to remote control its operation from Writers’ Building.  This undertaking is in sharp contrast to the democratic norms under which the GTA elections are held wherein the ruling hill party is the overwhelming majority voted by the people. Despite or inspite of the fact that the GTA is the voice of the stakeholders demanding separation from the State, it is obviously conspicuous that, all acts of commission or omission perturbing  the effective functioning of the GTA, the blame of which falls on the State govt. for misconducting its affairs whereas it should be the other way round. The responsibility of the State falls upon the administration to see that all effective actions are taken to account for a viable operation of the GTA, solely by the elected and existing members, whatever maybe the cost. This would prove the point that the State means well for the people who are now sandwiched between the opposite poles in which the State is seen as conducting a polarization of the people for the simple gain stay to counter the statehood demand. At the end of the day the picture that emerges is not that GJM is the miscreant for causing all the mishap in the hills but contrary to this perspective, it is infact the state is ill at ease to give in to the demand of a separate state for the inhabitants of the District (including the Dooars) as legally provided within the concerns of the Fifth Schedule, provided the areas concerned are determined as Scheduled Area in time.. The probability of the Scheduled Area determination is almost certain to come about, thereafter after this exercise is completed the demand for statehood stands on proper legal footing as an aspect of the Constitution unfolding to create what it is conducted to perform – a UT/State of Darjeeling & Dooars.

The above declarations are in complete appreciation of the constitutional writ wherein the provisions of the Fifth Schedule seems to be operating within the bounds of North Bengal Districts in which Darjeeling District is also a participant in this field.  Wherein since time immemorial a statutory Tribes Advisory Council (TAC) has existed for the tribes of West Bengal whose legal rights are bound firmly with the application of the Fifth Schedule safeguard measures. Considering this aspect which is impounded with a general perception that basically the area consists of a large majority of Scheduled Tribes, retrospectively indicated by census 1931. (Census 1941 -2001, based on linguistic aspects or the mother tongue, the entire majority of the tribes of the Himalayas were demographically marginalised from their identity in becoming non tribes). Census 2011 undertaking was conducted on the identification of the population on ethnology, the criterion that was applied in census 1931. This would infact reverse the process of the earlier censuses 1941-2001, which marginalised  the tribes to non tribes, would automatically be transferred to the details of census 1931.  This is explained in detail in indicating to the understanding of the reader that fundamentally the population of Darjeeling District (presumably also of the Dooars in Jalpaiguri District) is believed as a perception is composed of majority ST populations (as the continuing progression of tribe population from census 1931) in census 2011. This foresight in reading in between the lines of census 2011 wherein additional list of tribes are expected to be listed, particularly in Sikkim (on account of A.C.Sinha Commission 2005 read with Roy Burman Commission [CRESP] 2005-08). This implementation would also give effect to the transfer of additional list of STs for reckoning in Darjeeling Dist in West Bengal. This expectation obviously indicates the distinct possibility of the District being declared as a Scheduled Area, after which the demand for a State effectively operates under law.

With this perspective in mind that the demand for state is a legal aspect under the Fifth Schedule with a Scheduled Area implemented in time, imposes the conditionality of human rights provisions being the application for a statehood demand is infact is based on the fundamental rights of the national minorities (all the Sts of the Dist including the additional STs in the decadal census 2011). With this consideration in back of the mind and the implications, the statement by Justice Retd Asok Kumar Ganguly (Chairman WBHRC) seems to have spoken totally out of turn, and without gleaning into the legal rights aspects of the statehood demand. In which context many statehood activists (STs and perceived STs) are apprehended and locked up behind bars under criminal charges, is an aspect which requires to be determined by the judiciary for proper interpretation. So that the statehood activists are declared as political activists and not depicted under any IPC. The ruling to this effect has already been pronounced by the Calcutta High Court in regard to the Maoist activism in Fifth Schedule areas wherein the alleged criminal activities ensued on account of protecting and the tribal lands, culture and heritage upset by the more advanced section of outside population, taking advantage of their depressed conditions. The ruling of the High Court insisted on declaring the Maoist (in Fifth Schedule areas) to be treated as political prisoners in custody and not as criminals. The idea behind the judgment is sound as far as the Constitution is concerned wherein the STs as the indigenous people of the region are within law to deliver and protect their rights with the means at their disposal. In the same air the statehood activists require to be judged by the state (bound by the Restriction of the Fifth Schedule) in which GTA is a constitutional implement, and therefore to be preserved at all cost by the state by properly effecting the election of the new Chairman under democratic norms where all the rights of the members of the body are solidly preserved. That is, the State should take all necessary measures to see that the election of the chairman takes place under democratic process and not at the weal and veal of the govt. in charge.

Although the WBHRC Chairman may not have fully understood the above conditionalities, though they should not have been the case, as he should have been well aware of the fact that the people of Darjeeling Dist as well as those of entire North Bengal are safeguarded its legal rights within the bounds of the Fifth Schedule wherein the statutory body TAC has existed since the very inception of the Constitution of India.

In regard to a question posed to the Chairman concerning “whether human rights have been violated in the hills over the statehood movement” replied, “the Commission cannot interfere in this” is a placid reply neither confirming nor disclaiming any aspect of law. However no substantial amount of information is derived from the exchange between the Chairman and the press, both of whom seem to be oblivious of the fact that violations of human rights is certainly in prevalence in the Darjeeling hills and thus the grievance require to be addressed and redressed for justice within the bounds of WBHRC. It requires to be realised that the present movement for the demand of a state has been democratic and with less inflictions of violence in contrast to the last movement of the GNLF in 1986-88, which was not only violent with loss of innocent of lives and property but seemed to be a misplaced demand outside the bounds of the Constitution. Whereas the present GJM has dressed the demand under Article 3 properly and legally inconsequence of the area safeguarded within the Fifth Schedule. Therefore all aspects of the demand are legal and under guarantee of the Constitution itself (subject to being declared a Scheduled Area). Therefore any law of the state or the Centre applying to the demand could be considered as infringing the constitutional writ, and which is why the act of the state  in accounting the behaviour of the statehood agitationists as criminal offence is invalid and therefore unsound as far as the declarations of the Constitution is concerned.  That is, all activities of the agitationists are on grounds of legality and as far as possible expressed under democratic norms which seem to be adversely impacted on account of improper and mishandling by the state machinery. This accounting for the offence of any observed from point of view of law but not so from the point of view of the legal aspects of the constitution itself. One should see the present situation under these frames and not only as a law and order problem, which is not the case as far as the democratic rights to expires the legal rights of the Darjeeling hill peoples to demand a state, is concerned.  Notwithstanding which, the stakeholders themselves are in dire digress, confounded at times, to retaliate with proper democratic norms to address the issue to their advantage has been the bane of the present situation. The issue requires intelligent and proper handling without resorting to norms outside law. It should be as peaceful and trouble free as far as possible under Gandhian precepts, which by itself will be a deterrent against outside reactive forces.

Further the statement by Retd Justice A.K.Ganguly “the division of state would not be good for the people… The poor people living in the Hills have become the worst sufferers ….. Under these circumstances, the economy of the Hills will be affected” is certainly a time wherein the WBHRC Chairman is exceeding his brief. His protocol is unsound and his formula in determining what the hill people want is perspectively tinged, not with the concern for the hill people but for the concern of those of the State. Certainly the majority people of the state would not like to see the state reduced in boundary as well as gain stay. It is an unfortunate occasion when a person of such high stature as ex Justice of the Court, the Chairman of WBHRC is iterating subjective view in relation to the current affairs of Darjeeling Dist and Dooars, without an inkling of the thought to the grievances of the stakeholders as an objective view, makes his comment totally out of context and concern for the hill peoples, who are adamant in receiving their legal rights at one point of time and for which they are willing to bear all the burdens of all adverse impacts willingly and happily, till the final goal is achieved i.e. UT/State of Gorkhaland or Darjeeling & Dooars. This possibility merges out from the provisions of the Fifth Schedule with a Scheduled Area (declared in time). It is hoped Chairman WBHRC will be able to see the light of day by the above explanations and judge the moment of the time more justifiably as the occasion demands and not with blinkers on.        

Reverting back to the news printed in the same newspaper 10 Sept 2013, GJM on the backfoot (Morcha leadership still in dark over the agenda of the proposed tripartite meeting) requires to be interpreted into a proper understanding, relevant to the situation of the present times.  Firstly taking into account of the GJM chief Bimal Gurung, as well as the Chairman of Joint Action Committee, ref. to his Face book page “Union Minister has clearly stated that no new state would be created immediately” is transparent as well as true for the simple reason that, as already expressed earlier. Only when Scheduled Area is declared for Darjeeling Dist and/or the Dooars the statehood demand is legally applicable and not before. This is the present situation at this moment of time. However the statement made by the Home Minster is relevant to the present but not to the future where the Scheduled Area aspect is perceived to unfold in time. The agitation for statehood has been constant and democratic since 2007 – 13 which lapse of time itself in a way speaks in silence but within the walls of the Constitution that now it is only matter of moments when finally the dream would become a reality.