Is Fifth Schedule a right approach for the demand of statehood?

Hillman the analyst, KalimNews, Kalimpong, 27 October 2013: Deputy Chief of GTA Col. Ramesh Allay is now in charge of the GTA Chief Executive as Binay Tamang the CE elect is now pining away in judicial custody against charges pared on him under an FIR concerning the alleged torching of some estate buildings in Takdah. 

Strangely why he is not released on bail is a question of utmost importance, not only for the GJM for whom Binay is an important office bearer but the fact of the matter is that, as a perspective read along the lines of the Constitution of India related to formation of states under Art.3. As such the agitation for the demand of a state of Gorkhaland, seems to fall within the ambit of legal guarantee.

The Fifth Schedule (Art.244(1) being the context and the content in which Darjeeling District is represented by a member of the statutory Tribes Advisory Council (TAC), is an important provision of the Schedule applicable to both the concerns (Scheduled Tribes & Scheduled Area) for the safeguard and upkeep of the STs of the region. The ST MLA from Phansidewa (ST Constituency) of Siliguri subdivision in Darjeeling District is purported to be one of the members of TAC, whereas the other three hill subdivisions are represented by the general MLA seats.

The above scheme is deliberated here to convince the readers that the hill peoples of Darjeeling District are legally qualified, or more seriously considered to be constitutionally guaranteed, as an aspect of the Fifth Schedule to demand internal self-rule or a separate state if you will, outside West Bengal. This route to the final constitutional destination of the hill peoples, finally and eventually without mincing any words, leads to statehood confirmed by legal rights. The present agitation, required to be addressed under democratic expressions, may at times, under passionate emotions go out of hand by resorting to some extreme measures violating even law and order in addressing the issue more intensely under extremism. 

One might realise that evidently such has been the model of historical experience in citing the redressal of the indigenous people (Adhivasis/STs) in areas framed within the Fifth & Sixth Schedule preserves. 

It is hoped by now the readers familiar with the writings of the Hillman in KalimNews, that the political identity of Darjeeling District, Jalpaiguri District, nay infact the Districts in North Bengal, was a separate administrative unit within the state, and which territory till 1990, foreigners entry to North Bengal Districts were strictly restricted by a system known as the Inner Line Permit (ILP). This was initially established by the British Indian Govt. under the name Bengal Eastern Frontier Regulation (BEFR) in 1873. Infact Kalimpong subdivision in Darjeeling District was further restricted for entry of foreign nationals under the permit system known as Kalimpong Stay Permit (KPS). These historical sequences infact relate the political history of the area on grounds of which the two restrictions were imposed.

Eventually in the Act of 1935 with an implied Order in 1936 specifically spelt out under the contents of a deliberated phraseology expressed as “Excluded & Partially Excluded Areas” (E&PEA). The geopolitical content of these areas remained as a dilemma, as so purported to be, unrecognizable at first sight and required wide understanding of the Constitution related to laws (Acts) in British India. The meaning and content of the E&PEA was to register, as a legal measure, these areas were entirely outside the purview of British Indian laws. The question therefore arose was, whose laws were the E&PEA applicable to. On analysis of the content of E&PEA ensured these areas were effectively controlled by the Crown as its colony. The law applied to these areas was the British Crown and not British India under the British Parliament. As a consequence of these related constitutional history of E&PEA, need not be deliberated in these pages as they have already been articulated in other compositions related to the subject in this very site. What however is of importance to convey is that when finally the draft constitution of India was implemented by the election of the first Parliament in 1952, the E&PEA political futures were discussed and deliberated upon by the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas Chaired by Vallabhai Patel under the President, Dr.Rajendra Prasad, of the first Constituent Assembly of India. The details concerning the E&PEAs have also been deliberated in earlier articles and therefore undesirable to relate them again.

But the fact of the matter which requires to be addressed now on this conscript is that, presently the E&PEA are seen to exist within the Constitution, with all their political identity intact under the provisions of the Sixth & Fifth Schedules respectively. 

Darjeeling District as a Partially Excluded Area therefore was provided safety of its identity within the Fifth Schedule (however without the more impacting criteria ‘Scheduled Area’ absent). This that the political identity of Darjeeling District, presumably originating from the fact that it was established as an administrative unit from the ceded territories of neighboring kingdoms of Sikkim and Bhutan, under Treaty obligations. These aspects still remain in various perspective angles and therefore require to be addressed legally within the recognition of the Fifth Schedule. This provides the legal content of the people of Darjeeling district and the Dooars to democratically demand internal self determination, or a separate state outside West Bengal. The comprehensive study of the legality of the demand too has been deliberated in earlier articles.

The understanding of the above implications is now related to the current agitation going on however with full realization that the demand or a state is genuine, legal and constitutionally guaranteed. Considering this aspect and relating its context to the FIR charges against the activists demanding the state is unwarranted as a matter of speaking, as the statehood demand falls under the human rights provisions related to self-determination within the constitutional provision, is not violation of any law under the Constitution when the question of human rights demand is concerned. 

The right to demand a state, it so happens in the case of statehood demand is infact a question of law and order, and therefore to achieve the same is of extreme importance to the indigenous peoples concerned, and for which great sacrifices have already been recourse. Despite which the state instead of coalescing as an advisory role being the majority population of the state, is totally opposing the demand with all the measures at its disposal, particularly the govt. machinery and the fiscal purse, is unbefitting and contrary to the role it should have played as the matter is of constitutional concern. 

What is most disheartening is that the people expressing the demand are totally at a loss of words or appropriate action in a democratic manner of speaking, to exposé the accesses of other states wherever the same is considered violation of human rights related to the contents of the Fifth Schedule. 

This aspect has totally been overlooked by the present political dispensation spearheading the statehood demand. Also it is perceived that the GJM stalwarts are unable to express freely, that the present arrest of statehood activists under various penal codes require to be redefined not as a matter of law and order, but an expression of demanding the human rights in allocating internal self- determination as provided by law (Fifth Schedule). It is possible that this legality till now has not seeped into the minds of those deliberating on the legality of the statehood demand. It is high time the GJM consider expressing this constitutional aspect i.e. the Fifth Schedule clearly to the public and only after which delivery the roadmap would be clear and transparent. At the moment it is a matter of doubt that the general public is not fully conversant with the constitutional theme. 

As such they are subject to a change of mindset at the least provocation which is unjustified to the cause of the demand. It is a bit too late at this moment of time to teach the people what holds water and what does not. Despite which deficit, it is understood that the Centre as the guardian of the Constitution is not losing track of the demand but infact is about to deliver it in a matter of time, very soon indeed. 

However to arrive at this conclusion, the Centre is playing a very important and crucial role in delivering the demand as a duty to be performed by virtue of it being the guardian of the Constitution. 

The Scheduled Tribes Bill 2013, practically seen as being hijacked by the opposition and sent to the Parliamentary Standing Committee is a deliberate attempt to delay for many reasons of vested interest and otherwise related to the political arena, is certainly not conducive to the wishes of the people demanding the state. This matter concerns deep enquiry, as the beleaguered GJM without much of a mind sight is falling prey to the state mechanizations. The Scheduled Tribes Bill 2013 has also been deliberated in earlier articles.