Fifth Schedule and “New List of Scheduled Tribes in Sikkim decides the fate of Gorkhaland”

Hillman the analyst, KalimNews, 21 october 2013: Reverting back to this writer’s article of 9 Oct 2013 “New List of Scheduled Tribes in Sikkim decides the fate of Gorkhaland” which itself was based on The Indo Asian News Service [IANS India Private Limited-Thu 14 Mar,2013], the news ‘Government embarrassed, SC/ST bill sent to Parliamentary Committee’ for further discussion on a complaint lodged by a senior and eminent member of the opposition of the Rajya Sabha. 

The complaint, which should not have arisen at all considering the fact of the matter that the Bill placed as an Ordinance actually was on account that the govt. was following a Supreme Court Order. Surely the opposition who pressed the govt. to send the Bill to the Standing Committee with a fixed time frame is seen as an inimical persuasion by the opposition to scuttle the Bill for reasons known only to political analysts. 

Despite which, considering the bill presumably simply contained the additional listing of Scheduled Tribes in the respective states, and therefore the matter was a simple one not inflicting any political parties across the board. Having said so, why the complaint was raised against the Bill by the opposition member/s raises the question to the implied considerations.

No doubt there is reasonable ground to suspect that the respective opposition members may already have been aware of the fact that the additional tribes recommended for the Scheduled Tribes list in respect to the State of Sikkim can have a fall out in the neighbouring state West Bengal, where the agitation for creating a new state of Gorkhaland, impacting the demand to a final constitutional solution. 

Therefore the question certainly arises alleging the opposition members in soft peddling the additional ST list, at least giving a breathing space, to the regime in West Bengal, to scuttle the Gorkhaland demand, intended to a period beyond the UPA govt. at the Centre, which is indicated to mean to postpone the Gorkhaland demand beyond the restricted time limit. This activity in the Rajya Sabha further goes to support that the Gorkhaland demand is constitutionally guaranteed and would, if supported by the opposition also, and not opposed for futuristic political alignments after the 2014 general elections. 

No doubt it is fair to establish that the central govt. more than the concern of the UPA members, is the major player in arriving at a constitutionally directed solution for the Gorkhaland demand, and which event will have to be dramatized now or never to fulfill the constitutional obligation – to create a state of Gorkhaland which obviously is concerned with the ceded territories of the erstwhile kingdom of Sikkim (now a State in India) and the kingdom of Bhutan. There should be no reason why the opposition objected to the bill as the contents was far more important from a constitutional point of view then subsidizing it as a matter related to the state of West Bengal. 

Infact already the demand of the Darjeeling hill peoples have far exceeded the limitations of time allowed for patience. More than which the state is dribbling with the ball which the Centre is aiming to place between the posts provided by law as suitable for Darjeeling District and adjoining areas and within the framework of legality in the Fifth Schedule. To comment on this issue does not arise at all as most members of the opposition, not to mention the UPA members, are more than aware that the Gorkhaland demand is infact a constitutional event and which finality is a certainty. Therefore to consider that the opposition to the ST bill casts a dark shadow on the entire opposition benches.

No doubt the Gorkhaland demand does not find any leverage at the political level with just one MP in the Lok Sabha, and none in the Rajya Sabha (which seat is vacant after Anand Pathak, CPM term expired). At least this writer is not aware of the fact that any new candidate has been nominated by the State in filling the seat. It is truly sad indeed for Indian democracy that the hill people of Darjeeling, obviously out of its own ignorance, have been denied by the ruling party of the State to raise this issue in the Rajya Sabha. 

This however may not be true as an allegation as there were some news in circulation, for quite sometime in the recent past, that a certain GJM MLA had been recommended to fill the post but denied by the hill party citing it as a unilateral decision. Whether this is just rumours or fact remains to be told in the future history of the hills related to Gorkhaland when it finally becomes an excerpt in future reality. These backgrounds surrounding the Gorkhaland demand certainly indicates that the hill people have not addressed the issue on proper planks as a result of which the pillars below are seen too weak to bear the weight of all opposition forces including the UPA who is only bearing the burden of expressing the constitutional will, put into the lips by the constitutional thinkers within the central govt. This aspect is clearly imagined by the fact that the ST bill seemed to have been originated as an order of the Supreme Court, as surely if it had been raised as a bill the issue could have been impacted by adverse rulings, normally originating out of political considerations. Letting bygones be bygones it is hoped when the Bill comes for passing in the winter session of Parliament it would be passed without much ado.

The main purpose of this article was not to dribble the ball to the court of the opposition, which maybe suspected as such, whereas the reason is simple plain talk to impress all concerned that the separate statehood demand of the Darjeeling hill peoples under the umbrella term Gorkhaland is legal and binding on the Constitution and to grant the same by the President. If all equations were considered on rational democratic level, considering that this statehood demand is within constitutional legality, the houses of Parliament as well as the state govt. should have addressed the issue with equity and magnanimity. Sadly instead of such a prelude it is indicated entirely otherwise in which the state, the major player in the drama is totally averse to the idea, maybe so apprehended as a fear psychosis for the further partition of West Bengal in the future after Gorkhaland. This infact happens to be stark reality concerning the state which constitutionally speaking is believed to be breathing the air, as oxygen in ICU, imaginatively the Fifth Schedule whereas in reality the Tribes Advisory Council (TAC). Infact there is a perceptual constitutional interpretation that if Darjeeling district alone is separated as a territory from the state, maybe the existence of West Bengal in name could possibly vanish. This could be the proper time the state could possibly change its name, if at all legally possible and constitutionally acceptable, the state may deserve to be called something else than only as in reference to a direction.

These concepts arise from the fact, hopefully if true, the Province of West Bengal was created in 1947 by the Radcliffe Boundary Commission, on virtue of the fact, that Darjeeling District was a Partially Excluded Area (including indigenous people) on basis of whose human rights guarantee creating a new province (in international understanding) was possibly effected. In the same light implying the legality of Chittagong Hill Tracts as an Excluded Area where the Chakma Tribes (the indigenous people) seem to be the factor in originating East Bengal. 

Therefore the allegation of the fact arises that the province was divided on basis of religion, Hindu/Muslim may have been the perception, but in reality on grounds of the legal reason just stated, applied to both the two new provinces. In this context somewhere the historical interpretation has failed and therefore this structure of history require to be rewritten stating the true grounds of the division of the Province of Bengal. Taking the light of the matter forward, the division of West Punjab was also factored around the same basis of legality of the Excluded Area of Upper Tanawal (Hazara Dist) in North West Frontier Province, and East Punjab, Excluded Area of Spiti and Lahaul (Kangra District). 

The above are factual constituent history of the Provinces on basis of which alone the future state formations were undertaken within the boundaries of the constitutional wall. Wherein a total number of 38 areas were identified as Excluded Areas (8) and Partially Excluded Areas (28) in the Order of 1936 following the Act of 1935. They were transferred in the Constitution within the Sixth & Fifth Schedules respectively for their incorporation into the federation of the union in time according to the democratic wishes of the inhabitants settled in these areas. Out of the 38 such areas all 37 individually or in composition played the decisive role in various new state formations after the commencement of the Constitution (1950-52). 

There however remains still one such area to fulfill the constitutional writ, and which is, happens to be the Partially Excluded Area of Darjeeling district within the concerns of the Fifth Schedule. This constitutional guarantee still requires to be implemented. This article is primarily a descriptive history leading to that singular goal – statehood. To submit this demand, the District still requires additional criteria of the Fifth Schedule, determining the District as a Scheduled Area. Only on basis of this legality the statehood demand is constitutionally acceptable. In order to carve its target is the main thrust of this article which is related to the ST bill conferring an additional list of ST initially in Sikkim and subsequently forwarded to West Bengal. On compliance of this formality the legal demand of the Fifth Schedule is completed and thereafter only ripe for demanding a state - simply as Gorkhaland or the state of Darjeeling & Dooars, whichever applicable after due consideration.