Is Telangana different from Gorkhaland?

Hillman the analyst, KalimNews, 18 October 2013: This is in response to the Statesman News Service Kurseong 4 Oct 2013 captioned “Telangana different from Gorkhaland : Jaswant”. 

This writer has just deliberated on the matter related to both Telangana and Gorkhaland as constitutionally similar and therefore the discourse on the legality of both the areas entitled to the demand of internal self-rule or a State if you will. Both the areas come within the fold of the Fifth Schedule which taken to its inevitable goal will lead to new state formation as a legal right which requires to be expressed democratically as a process within the framework of the Constitution. 

This writer does not agree with the perception of the Darjeeling District MP Jaswant Singh suggesting that the two demands are dissimilar. On the contrary to his diction, the two demands are similar in every aspect and there are no two aspects of new state formations, constitutionally speaking without considering the demand outside the provisions of the Fifth Schedule (for the rest of India outside the Northeast). Whereas any such demand in the Northeast requires to be fulfilled within the provisions of the Sixth Schedule only. Both these aspects are constitutionally guaranteed and above any other law in effect. 

On the other hand it is possible that the MP maybe suggesting the dissimilar based on the fact that unlike Telangana which was an independent Indian State under the Nizam of Hyderabad, was merged with Andhra Pradesh State in 1953 presumably on the ground they shared a common language (but infact only as a lingua franca). Whereas in ethnicity the concerned Telangana region in effect was under the Fifth Schedule, incorporating both Scheduled Tribes and Scheduled Area aspects. This became the guiding force, or rather the legality of the area, to demand a separate state outside Andhra Pradesh. In other words, the amalgamation in 1953 using language as the criteria of ethnic similarity was a mistaken concept and unconstitutional, therefore the present scenario of separation as a legal right as a Scheduled Area. 

This being the legal background, it is probable the MP is differentiating the dissimilarity of the issue of Telengana and Gorkhaland. Wherein from his point of view it may display a clear picture that since Darjeeling District and the Dooars are territorial components of existing State of Sikkim and Kingdom of Bhutan, and both of whom have discharged their rights to these areas concurrently of very recent times. In 2001 the Sikkim Assembly has given a clear signal to the Central govt. to create a new State of Gorkhaland for the inhabitants of Darjeeling District. Whereas in the same vein in the Indo-Bhutan Friendship Treaty of 2007 there is no mention whatsoever of the Rs. 5 lakhs annual gratuity which was being paid to the Kingdom of Bhutan since the Indo-Bhutan Treaty of 1949. Taking the two aspects together, the MP maybe suggesting, that the viability of the State of Gorkhaland or whatever constitutionally proper for allowing these areas for internal self determination, within the provision of the Fifth Schedule implications provided the legality under Part XXI (Temporary, transitional and special provisions) of Article 371. This stands to reason and the MP maybe right in considering that his view maybe correct in attempting to derive the legality of the Fifth Schedule in applying Article 371 read with Article 3(a). Therefore the MP suggesting dissimilarity of the issue of Telangana and Gorkhaland maybe right and proper on this count – constitutionally speaking. 

However one point this writer wishes to express in these lines, as per the newspaper reading the demand for statehood is only referred to the hills under Bengal and he goes on to address the issue as a century old and find “fruition one day though the present situation is not conducive”. He further justifies this claim by stating that he “would cling on to it in future too”, but the fact is he is not clearly determining the constitutional legality and guarantee involved, without which new state formations are impossible as a legal right for any part of India, except that determined by law, either the territories within the Fifth & Sixth Schedules or Part I Articles 1,2 &4 related to incorporation of existing foreign states/territories within the Indian Union. 

Since this writer has been constantly deliberating on the Gorkhaland statehood issue would like to address a direct question to the MP on these pages whether: 

1. Darjeeling District and the Dooars in Jalpaiguri District require to be notified as Scheduled Areas to legally qualify in demanding a separate state. 

2. Whether he can immediately answer the pending crucial question as to whether additional list of STs are in the items in the ordinance passed by the govt. following the Supreme Court order. 

3. Is the GTA not a sequence of the constitutional implications of Fifth Schedule wherein Darjeeling District and the other North Bengal Districts are safeguarded (i) under the statutory body Tribes Advisory Council (TAC) since 1952 and (ii). which MLA/s and MP/s are representing Darjeeling District and the Dooars. 

4. A perception exists that the tribal MLA from the Phansidewa West Bengal constituency is representing Darjeeling District in TAC of West Bengal. Whether this is true or not require to be determined as the stakeholders are not aware of these underlying aspects. 

5. Is the separate state demand for Gorkhaland constitutionally viable without the Scheduled Area articulation of the Fifth Schedule. If so, is it constitutionally possible that Darjeeling District and the contiguous Dooars be amalgamated within the Union rightly under Art.371 without the provisions of the Fifth Schedule. Maybe this question is superfluous considering the explanation above that Darjeeling District and the Dooars is already provided exclusivity by the statutory TAC in West Bengal, implying it as an aspect of the Fifth Schedule and none other. 

Though the questions are directly placed to the MP, it is addressed to all concerned representatives of the people across the board whether MLAs from the two Districts or MLAs from rest of the States particularly the North Bengal Districts, who are perceived as existing members of new TAC of West Bengal 2011. Besides the above questions are also general but with immense constitutional impacts which deserve answer from the concerned Ministers of the State i.e. the Ministry of Home and ST/SC and Backward Classes. 

These are important questions in a democratic society for transparency in governance, a administration and the placement of law and order in respect to these areas concerned by way of the statutory TAC , which is imbued with impacting legal consequences, which require to be informed to the stakeholders in a defined manner and not under perception of cloak and dagger which negates the very principle of constitutional law. 

Infact Jagmohan Reddy who is presently undergoing a fast unto death opposing the bifurcation of Telangana out of Andhra Pradesh declared that the Central govt. was bypassing the Constitution in granting Telangana without a State Assembly resolution. This is totally untrue and as a political ruse to gain mileage depending upon public sympathy but out of context and therefore misleading. Also his fact unto death is a political gimmick or otherwise he is not familiar with the constitutionality of new state formation and which is why maybe he is coming out with false allegations. 

He is reminded in these pages to read Article 3 and be content with the declaration that new state formation is the prerogative of the President of India only, and that the Centre and the State have no say whatsoever in this matter, but simply to agree and abide by the President’s diktat, pass the respective bills in the State Assembly as well as the Rajya Sabha and that too with a simple majority of the sitting members under Article 368 of Part XX of the Constitution of India. Jagmohan Reddy requires to be reminded by his advisors on the proper interpretation of Article 3 with emphasis on the fact that the President plays the supreme role by virtue of the fact that he is the sole authority on basis of which the provisions of the Fifth & Sixth Schedules are to be implemented to a directed purpose as per the writ therein. 

This writer can confidently declare that no new states in India, at least as far as the Constitution is concerned can be created outside the provisions of the Fifth & Sixth Schedules and which areas are predetermined by incorporating the underlying principle of Excluded & Partially Excluded Areas (E&PEA) in the Act of 1935 and Order 1936. That besides, new states are also amalgamated into the federation under Article 371 with specific agreements between the respective States and the Union.