The demand of statehood

KalimNews, Kalimpong, 5 September 2013: An article by the Hillman the analyst- The originations of the Fifth and Sixth Schedules date back to 1935 Act which provided certain areas in India designed as “Excluded and Partially Excluded Areas”, where the Govts. of the Centre and the Provinces could not extend their laws and legislative powers without the prior sanction of the Governor General/Lt. Gov. General of the respective Provinces. These provisions were extended into the Fifth and Sixth Schedules in the draft Constitution of India. How this was done has already been elaborately deliberated by this writer in many preceding articles in the site darjeelingtimes.com, and therefore consider it inopportune to reiterate the same matter here. A point considered important enough is to express the Fifth Schedule and the Sixth Schedules are the literations of Article 244(1), and Arts.244(2) & 275(1) respectively.

Further let it be clearly placed, that the Sixth Schedule is applicable specific to North East States (formerly the Province of Assam) and which proceedings in declaring the same provided by the Sub Committee, chaired by Gopinath Bardoloi, on the “Northeast and Tribal and Excluded and Partially Excluded Areas”. Whereas the Fifth Schedule proceedings chaired by A.V.Thakkar in the Sub Committee was “Excluded and Partially Excluded Areas other than Assam”. That is, this Sub Committee dealt with all such areas in rest of India outside the Province of Assam. Having understood this, it is to be noted emphatically, that the provisions of the two Schedules although may sound similar are infact comparatively distinct in its applications and therefore warned not to intermingle the two in anyway, as their historical concepts are distinctly different in their very inceptions.

The Province of Assam is the ceded property of Burma under the Treaty of Yandaboo 1826. Whereas the other areas related to exclusion in rest of India are aspects of the same under various treaty obligations and therefore provided a wider scheme for the operation of the Fifth Schedule. Infact, the effort required to attempt a demand of a state in India solely lies within the provisions of the two Schedules as statutory and impinging. Article 371 is specified to conduct this exercise particularly to the Sixth Schedule, and partially to the Fifth Schedule. This Article is seen as a primary proposition leading to the amalgamation of constituents of foreign territories within the union of India as part of a constitutional program.

The idea of clarifying the above position has a specific intent, which is to focus on the issue of the statehood demand captioned as Gorkhaland. Having gleaned within the rampant of the Constitution in regard to new state formations, wherein the above discussed provisions (Fifth & Sixth Schedules) are singular in targeting the demand as a legal right is what is intended to be delivered here. There is no question of a doubt that statehood demand is the very concept on which the two Schedules intend to deliver constitutionally within certain modalities introduced as a republican democratic setup.

One is cautioned to note that since Darjeeling District or the Dooars (Jalpaiguri District) does not fall under the Sixth Schedule (focused on Assam) therefore by a reverse process of understanding, it is the application of the Fifth Schedule (Scheduled Area & Scheduled Tribes) which provides the legal guarantee for the District in demanding a separate State. In relation to the historical context of the territories which combined formed Darjeeling District (1867) as an administrative unit (outside British India) and now within the Constitution of India, itself provides Darjeeling District and the Dooars with the safety net of the Fifth Schedule (as per Presidential order 1953) to set up a Tribes Advisory Council (1952-56). The very fact that the Presidential order for the creation of TAC was implemented by the Governor forthwith indicates that Darjeeling District as well as the rest of the tribes of West Bengal are safeguarded within the implications of the body. The moot fact to note is that these areas within TAC including Darjeeling District come within the provisions of the Fifth Schedule is an empirical antecedent. To which fact there should be no doubt whatsoever, that Darjeeling District, if at all is to place its demand for a state on a legal framework requires understanding, that the right to a separate state (internal self determination) can only be realized on the basis of the Fifth Schedule. Without this reality overlooked, the demand for Gorkhaland is completely out of focus and standing outside the periphery of the constitutional fortress, and remains so, till and when the demand is placed within the fort by virtue of the Fifth Schedule.

Even if this is considered so, i.e. Darjeeling District is provided legality for self-determination within the Fifth Schedule, it however, at this moment of time has no legal basis for placing its demand even invoking the said Schedule, at the proper time frame is yet not set for the District in pursuing its demand legally. The reason for this is, that the District though provided the benefits of the Fifth Schedule (Tribes Advisory Council), which is only an aspect of the Schedule and not the whole body. The frame of the whole body includes the major organ of the Fifth Schedule scheme, the very important quotient of having obtained the designation as a ‘Scheduled Area’. Without this item demand for statehood is incomplete, therefore unacceptable and undeserving placing the demand on a legal plate. It is noted however, that the process to achieve this end is already in gear which was put forward by Bimal Gurung, President GJM, for the demand of including all the Gorkha communities as Scheduled Tribes (ST). Besides which, it is common knowledge all the hill communities of the District accordingly have applied for ST listing since quite sometime. The chief idea of placing the demand is to ensure that the majority of the population of the District would come under this head which inevitably allows the President of India (under petition by the Governor) to convert the District into a Scheduled Area.

However the listing of the Darjeeling hill communities as ST has intricate implications for the simple reason, the State Govt. has no right whatsoever to conduct the exercise in the formulation of the SC/ST list which is the prerogative of the Central govt. only. That beside, it is reckoned the State govt. has no legal grounds even to consider implementation of the same through a commission. The reason being, that the State itself is a creation of the Fifth Schedule (TAC) without which the state is inconceivable as a geographical unit. This is implied by the fact, West Bengal as a State was created in 1947 (Simon Statutory Commission) perceivably on account of the fact that Darjeeling District existed as a Partially Excluded Area in the Act of 1935 which is primarily responsible as a legality for the creation  of West Bengal (Province). In the same vein, East Bengal was created out of the context of the Chittagong Hill Tracts as an Excluded Area. Though the general impression given for public consumption is that the Province of Bengal was divided on religious grounds is the second half of the truth and not the whole truth, which lies on the basis of the perception just related. In common sense if this is to be perceived in a futuristic sense, i.e. after the commencement of the Constitution and more specifically to the first Parliament of India (1950-52), West Bengal and East Bengal are on standing position in understanding the background of the Fifth and Sixth Schedules in existence at the moment.

Considering the above articulations as constitutionally legal, it behoves on the present stakeholders for statehood demand, or Gorkhaland to physically understand that it is not possible to assert it as there is no legal right to place it as such – at the moment. This is not to sidetrack the demand but to further support in assuring that the demand requires to be placed at the right moment, i.e. only after Darjeeling District is declared a Scheduled Area. Without this being so, it would be futile to attempt delivery in any way without the Scheduled Area criteria. Not to be distressed, this criteria is already on the way in becoming a reality, thanks to the Govt. of Sikkim which will enable it being so on grounds of the fact that it had held two Commissions (1) A.C.Sinha Commission in 2005 and immediately after its completion (2) Roy Burman Commission (CRESP) 2005-2008 wherein many hill communities have been recommended for ST listing in Census 2011. Once this is realised in Sikkim it would only be a matter of time for the same listing to be transferred in West Bengal- which will effectively provide the scheme for Darjeeling District being converted into a Scheduled Area. After which concern the demand for statehood would be fully in compliance with the provisions of the Fifth Schedule in demanding a state for all the hill peoples of Darjeeling District. It requires to be deciphered for a general acquiesce that the statehood demand stands on basis of the fact it applies only to the inhabitants of the District as safeguarded within the provisions of the Fifth Schedule. That is, the basis is entirely on all the hill peoples of the District and not outside, whether nationally or internationally. This conception requires understanding and molding within the parameters of the District which is already provided safeguard of the Fifth Schedule applications (subject to the recognition of Scheduled Area criteria) only. When this is understood and implied properly, surely the statehood issue will have a more impacting result which at this moment of time is somehow marginalised by considering the issue with a national tinge when it is not so, whereas, it is solely a constitutional event. 

          

It is more or less a certainty that the people of the District will eventually get its dues lying in waste for over precisely 63 years after the commencement of the Constitution which preserved the rights of the people within its strong walls, protecting the people their rights from any accountable disarray by the more advanced population of the country. Sadly, the past 63 years have not been managed well by the State who was in charge of preserving the people from the very forces from which it was required to safeguard. This not being so, the District has been disfigured disastrously beyond any recognisable doubt, administratively, developmentally, economically, socially, politically and otherwise.

Needless to allege the situation to any blame factors, but to ourselves, than to those around us, all that has happened to the District is our own doing - no one ventured forth to understand the true story written in the very blood of the simple hill peoples which eventually will prevail its past deprivations, when finally it is delivered its inalienable rights - Gorkhaland in the form of UT/State. One is cautioned to think in terms of the right to self-determination of all the peoples of the area – and not simply as Gorkhaland which may have been assigned because of past political perceptions than the reality. So as long as a separate state eventually is formed there is no harm in naming it Gorkhaland, or any other name closer to Sikkim and Bhutan legally speaking than either Nepal or Britain. For the time being the use of Gorkhaland is not improper. The name might be more cemented when the Gorkhas of Darjeeling District are listed as Scheduled Tribes in Census 2011. Infact it is this reality which eventually will provide the legality (Scheduled Area) in demanding a UT/State.            

Hillman-the analyst alias Karma T. Pempahishey is the author of “Roadmap on the Trail to Gorkhaland (Partially Excluded Area -The Constitutional Guarantee)”