Scheduled Area, the crucial criteria for UT/State for Darjeeling District & Dooars.

Hillman the Analyst, KalimNews, Kalimpong: Article 244: Administration of Scheduled Areas and Tribal Areas (1). The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State … other than the States of Assam. 

The emphasis ‘other than Assam’ is specific in conveying the Fifth Schedule is applicable to Scheduled Areas in rest of India. Darjeeling District and The Dooars are effectively covered by the provision of the Fifth Schedule, provided as such under direct orders of the President of India instructing the Govt. of West Bengal to establish a Tribes Advisory Council (TAC) which was established under the Governor in 1952 onwards and in continuity thereafter. Therefore it is now the duty of all concerned in demanding a state of Gorkhaland to enquire into the reality and the present position and standing of TAC under which not only Darjeeling District but the entire North Bengal District (the entry to which areas, foreign nationals were restricted by the Inner Line Permit (ILP) regime established since 1873). 

The ILP was withdrawn in 1990 for whatever the reasons is best known to those who withdrew it. However it is only pertinent to mention here that the all hill peoples of Darjeeling whose rights the ILP intended, per the Thakkar Sub Committee report 1948 – quote, “safeguards were necessary in the interests of the hill people”. The ILP was a specific instruction to disallow entry of foreign nationals which still exist in northeast states including Mizoram, Arunachal Pradesh and Sikkim. 

Although withdrawn the ILP in Meghalaya and Manipur are fervently being asserted for re-imposition again for the simple reason that the latter areas are infested with inflow of immigrants from outside the state to the point of destabalising the original population (the hill tribes) to a demographic minority. This challenges the very structure of state formation based on the fundamental rights of the national minorities for their self rule as per UN declared understanding. India as a signatory to UNDRIP 2007 are bound to follow the UNO precepts in delivering new state formations as provided by the Constitution itself i.e. cited in the provisions of the Fifth & Sixth Schedules. However this article delves only with the Fifth Schedule aspects of Darjeeling District as well as the Dooars which are for the time being provided safeguards or security if you will under the statutory body TAC. All aspirants of Gorkhaland are requested to find out the specific details of the new TAC in West Bengal, by addressing a letter to the Governor himself, under whom TAC functions. 

In order to highlight the importance of TAC herein are some citations from the Constituent Assembly Debates in connection with the report submitted in Annexure II Appendix D by A.V.Thakkar Chairman, Excluded & Partially Excluded Areas (other than Assam) Sub Committee, the 18th August 1947 quote, “I have the honour to submit herewith the Report of my Sub-Committee for the Excluded & Partially Excluded Areas of Provinces other than Assam. We have visited the Provinces of Madras, Bombay, Bengal, Central Provinces and Orissa, and in regard to these Provinces our recommendations may be taken as final. We have yet to visit Bihar and the United Provinces and to examine certain witnesses from the Punjab. In respect of these Provinces, the report may kindly be treated as provisional. Our final Report is expected to be ready by the end of September”. This letter clearly refers that the Partially Excluded Area (PEA) Act of 1935 & Order 1936 of Darjeeling District in Bengal was discussed and which implications presently concerns the provision of the Fifth Schedule conveyed from the earlier designation PEA. However with the lack of the designated population only TAC exists in West Bengal as a statutory body to manage the welfare and control of the Scheduled Tribes (within the Fifth Schedule). 

Not having the sufficient number of Scheduled Tribes, Scheduled Area the more important provision of the Fifth Schedule which provides not only self administration (GTA) implied as a provision but as well as self-govt. (UT/State) which ever applicable. Therefore to demand a state at his moment of time is out of the question, at least for the time being, but it is incumbent on the Constitution itself, not to deny a Scheduled Area (SA), on account of the fact of the existing perception that in Darjeeling District there are more Scheduled Tribes than the eyes and the index of census 1941- 2001 perceives. The hill tribes of the Himalayas of census 1931 identified on the basis of ethnology which criteria was reimposed in census 2011 is indicative of the fact that there was a miscarriage, by way of misperception of the census using the mother tongue as the basis. The population misconceived the mother tongue as spoken language, the lingua franca so to say Nepali which seemed to have been the cause for the fatal disaster – most of the hill tribes became non-tribes aspect of the population. In this regard the Census Commissioner MWM Yeats in submission of the census 1941 report specifically suggests quote, “that language and script questions be dropped from any future censuses until such time as the population of India is able to respond properly to a factual enquiry on them. The census can collect and deal only with facts not with perceptions” to understand the implications of the use of language in determining the identity of the population in the census. All the above is translated to suggest the meaning that Darjeeling District as well as the Dooars are basically composed of majority tribal population and which aspect is anticipated to be recalled once again in Census 2011 conducted on basis of ethnology. 

By which regard it is expected that the hill tribes of the Himalayas would once again be reinstated as Scheduled Tribes within the meaning of the Constitution. The important significance in this consideration is the fact that with the enlargement of the population of Darjeeling District and the Dooars reinstituted once again back as the hill tribes of the Himalayas (now as Scheduled Tribes) would have an impacting effect in the provision of the Fifth Schedule where presently the Scheduled Tribes are safeguarded by the statutory TAC. In effect the result amounts to converting Darjeeling District to a very implicating criteria of the Fifth Schedule – Scheduled Area. This by law is expected to be recognised by the Governor of West Bengal and the contents of the claim forwarded to the President of India, who holds the authority over the Fifth & Sixth Schedules, who thereby is expected to create, as a rule, by virtue of the fact, Darjeeling District & the Dooars as Scheduled Area (at least composing majority [80%]of the total population)thereby providing the legal right as guaranteed by the Constitution to be provided with, not only self administration (as allowed for tribes-GTA) but also self- rule (allowed as a Scheduled Area-UT/State) whichever applicable by law. 

Therefore it is anticipated by various precedental undertakings such as the A.C.Sinha Commission (2005) and the Roy Burman Commission (CRESP Report (2005-08) in Sikkim is more or less guaranteed (to resurrect the census 1931 ‘lost’ hill tribes of the Himalayas from census 1941-2001, reverted back now to Scheduled Tribes in census 2011). Therefore to imagine the Gorkhaland state is a possible reality which can come by way of a UT of Darjeeling & Dooars as a matter of constitutional guarantee. This guarantee arises from the historical aspects of these areas and therefore cannot be tampered with any other concerns neither by the Centre nor the State. 

For the simple reason that the Constitution is above law determining the Centre and the State themselves. Infact it is matter of great concern that while the Centre is serious of departing the rights of self govt. to the peoples of the District, the State govt. is creating an obstacle does not bode well in a democratic set up. 

The State fails to realise that the demand for a State (named Gorkhaland maybe improper by way of implication) but the right remains legal and bonafide, but infact is an adjunct to the Constitution of India and which the State can deny in no way. Nonetheless political tinkering has been prevalent since the first establishment of TAC (1952-56). Senior people in the District may recollect, however without knowing the basic facts of the existence of TAC in which late Tenzing Wangdi, MLA, was Deputy Minister for Tribal Welfare, Vice Chairman (ex-officio). Also another member was Smt. Sabitri Devi President Lepcha Association, Kurseong Darjeeling. In 1955 the following members represented Darjeeling, the late Shri Tshering Kazi , Relling Khoti, Relling Khasmal Block, late Apang Chyoden La, Singamari, late Mrs. David Mohan, Kalimpong, late Iswar Tarki, Siliguri, late K.Tshering. These are historical references and are recorded in Govt. documents to prove the reality of the situation that TAC existed as a defining body in West Bengal and without which existence, West Bengal as a state is inconceivable. 

To explain which it maybe necessary to recall once again Constituent Assembly Debates Annexure II Appendix D by A.V.Thakkar Chairman, Excluded & Partially Excluded Areas (other than Assam) Sub Committee, the 18th August 1947 -15. Provincial Tribes Advisory Council: “Most of the Provincial Governments have found it necessary to set up advisory bodies for the proper administration of the tribal areas. In our view it is necessary that there should be a body which will keep the Provincial Government constantly in touch with the needs of the aboriginal tracts Scheduled Areas in particular and the tribal for such a council requires little explanation. … We are of the view that the establishment of an Advisory Council for the next ten years at least is necessary in the Provinces of Madras, Bombay, West Bengal, Bihar, C.P & Berar and Orissa, and we recommend that statutory provisions be made accordingly. We have referred earlier (Para.11) to the part that the Tribes Advisory Council will play in respect of legislation. 

The target of ten years prescribed by the fathers of the Constitution refers to the decadal census of the ethnological identity of populations in reviewing social justice and empowerment, for which consideration, the concerns of the ST are a priority, in the States as well as the Centre. The reason inducing this factor is the universal consideration and understanding in reckoning that the indigenous people of the States which cannot exist as a geopolitical unit without recognising their existence within the geographical boundaries of the concerned areas. 

The stakeholders demanding statehood may note that “NOTES: For the first time, an eleven member Schedule Areas and the Scheduled Tribes Commission was constituted under clause (1) of this Article, vide/Government of India, Ministry of Tribal Affairs SO.127(E)dt.18/07/2002”. (P.Chakroborty’s Fifth & Sixth Schedules to Constitution of India Pg. 38). The reference is to Article 339 (1&2): Control of the Union over the administration of Scheduled Areas and the Welfare of Scheduled Tribes. 

One glaring reference to the Central Commission of 18/07/2002 (in the same book pg.335 with the table) includes in item (iv) the name of Mrs. Chukila Iyer (IFS) as member, who may not be known to many persons of the District, happens to be a daughter of Darjeeling, an alumni of St. Joseph’s College (1963), and the first woman Foreign Secretary of India. She was contemporary in college to retd. Prof. C.B.Rai (political science), Ms. Rita Raj Gurung (broadcaster English news Nepal radio) granddaughter of Nakimo Dewani of Relling estate, mother of late Hem Raj Gurung, Rita’s father. It maybe mentioned on the side that this writer, acquainted with the three referred persons known to them as alumni, though a junior, broached the topic under discussion with all of them. The latter two on personal contacts (but no positive response), and the former via internet. Chukila’s mail response was most encouraging at the time when I had just broached a debut on the statehood demand concerning Darjeeling District as genuine and legal, and achievable within the constitutional writ (Fifth Schedule implication of Darjeeling District). 

Appreciation of thanks is conveyed to her in the regard. As I consider the statehood demand perceived to be a guaranteed constitutional event concerning the people of Darjeeling, Dooars and Terai based on the articulations of the constitution itself (Art.3 a&c) whichever relevant to the case and the defining provisions of the Fifth Schedule in which Darjeeling District is represented as a member of the statutory TAC (Fifth Schedule application since 1952) in West Bengal. Considering this legal validity in reference to the demand, surely Mrs.Iyer (Chukila) should have been approached by the literati if not the political components of the District for her experienced opinion and suggestions at earlier stages. The period seems expired now that the statehood demand is near its constitutional delivery. This has already been discussed in earlier paragraphs related to the respective areas being designated as Scheduled Areas. In which concern Chukila’s experience as a member of the 2002 SA&ST Commission would have contributed immensely in evolving a targeted policy towards conducting the statehood demand as a legal right than a political demand of Gorkhaland. Anyway late than never it is hoped that senior retd. IPS, IAS, IFS etc from the hills, excluding those in service, are urged, to contribute sometime of their precious retd. lives, to advise and guide the hill peoples in times to come, when finally the desired goal is achieved. In the northeast states (sixth Schedule), it is more often the rule than an exception, retd. bureaucrats, with their vast experience in administration and governance, contribute to the pool, where they are located. In a similar stance surely the retd bureaucrats of the Darjeeling hills may emulate their contemporary eastern neighbours. 

Even in Sikkim this writer has discovered a symbolic replay of the northeast counterparts defining a role for themselves assisting the successive ruling govts. by their experience wisdom. This is not to upset the fact that the present SDF govt under Dr.Pawan Chamling, whatever the opposition may say, has remained in power for four consecutive terms, surely the sustainment is related to the will of the people at large than as charged by the opposition. As an analyst and an observer and surveying the present political scenario before the forthcoming elections in 2014, the prediction of electoral victory lies more heavily in favour of the SDF than the opposition parties whether individually or united in tandem. 

One of the chief problems of the opposition seems to be ego factors of individual leaders, just like Narendra Modi in Gujarat whose image has been blown out of perspection by the media hype, which obviously involves substantial financial investment, and which is made available by corporate India ushering capitalism wall hues to suite their particular economic agenda is a factor which none can discard as the prime motive for installing Namo as the future PM. This itself is an uncertainty. 

At the final analysis a perception exists that even if the BJP does come into power in forming a govt, it is this writer’s doubt that he may become the PM which post is subject to some subjective understanding at the higher echelon of political power. There is a possibility of thinking that Namo is the proverbial mascot who maybe analogous to the sacrificial lamb of Vedic as well as Biblical times. 18. Provincial funds: … We recommend however that the revenues derived from and the expenses incurred on the Scheduled Areas from the provincial budget should be shown separately so as to prevent the needs of these areas being overlooked through incorporation in the general terms. Such a separate statement will of course afford a better opportunity for scrutiny and criticism. 19: Governor’s responsibility: … that in the provisions corresponding to the Instrument of Instructions the Governor should be required to see that a suitable scheme of development is drawn up and implemented as far as possible. 20. Tribal Minister: Connected with the formulation of development schemes and the provision of adequate expenditure for the hill tracts is the need for the appointment of a separate Minister to give effect to the plans and to look after the interest of the aboriginals. 25. Land: … we have made special provisions that land laws are not altered to the disadvantage of the tribal in future, we do not consider additional restrictions necessary. As regards the allotment of new land for cultivation or residence, however, we are of the view that the interests of the tribal need to be safeguarded in view of the increasing pressure on land everywhere. … allotment of vacant land, belonging to the State in Scheduled Areas should not be made except in accordance with special regulations made by the Government on the advice of the Tribes Advisory Council. 27. The Scheduled Areas: It has been pointed out that the areas like Sambalpur, Angul and Darjeeling need no longer be treated as partially excluded areas. … The population of the partially excluded areas in the United Provinces is small and the Jaunsar Bawar Parganas is not inhabited by people who are in an ethnic sense tribals. We have not recommended a Tribes Advisory Council for UP and we do not consider it necessary to schedule either of the areas. Similarly we do not consider it necessary to schedule the Spiti area of the Punjab. The above chapters require appropriate explanations in understanding the importance of Scheduled Areas which eventually identifies its content as a legal right towards forming new states within the Constitution of India. 

Darjeeling was not treated as a Partially Excluded Area as the percentage of tribals was considered a minority “141,301 tribes out of a total population of 376,369” (Census 1941 quoted in Thakkar Report 1947). Infact truly speaking even the 1, 41,301 tribal population actually comprised the tribal population of Darjeeling (Lepchas 12,000 + Bhutias 20,000) totaling 32,000 and the total population of Sikkim 1,09,301. In an article published in an edition of Sikkim Observer by P.S.Golay he also cites the population of Sikkim Census 1941 at 1,09,808 (comprising Lepchas 13,060, Bhutias 11,955 and Nepalese inclusive of Limbus 84,803). 

The ultimate result stands that the population of census 1941 was in fact the enbloc population of Darjeeling District and Sikkim combined and not only of the former. It suggests the figure was manipulated for some rhyme or reasons to 1.Raise the quantum of tribal population of Darjeeling District by addition of the tribal population of Sikkim. 2.Likewise it suggests that Darjeeling District was considered more part of Sikkim than of British Bengal. Census 1941 was a follow up of census 1931, except for the fact that the identification of the population in determining the tribes from non tribes was distinctly different and which has already been discussed in earlier chapter. 

The moot point intended to raise here is that the ground reality, or the truth of the matter is to realise though Darjeeling District was considered as a Partially Excluded Area (1935 Act and 1936 Order) this was untrue as the standard of measurement considering the fact that in Census 1931(incorporates the pop of Darjeeling District as well as Sikkim) which entire block were described as the Hill tribes of the Himalayas. In other words, the tribes figure of Census 1941 in effect was wrong and not reliable in formulating the future construction of the meaning of Backward Tracts which was translated in the Act of 1935 to mean ‘Exclusion’ from implying British rules and regulations applied to rest of British India. More or less the entire populations in censuses 1931 and 1941 in Darjeeling and Sikkim combined all of whom by right were the hill tribes in actuality although the population of 1941 indicated a marginally decreased tribal population which as substantially defective. There was a change in number of tribal population between census 1931 and 1941 because of the misapplication of language in identifying the population is already discussed above. The tribal figures decreased marginally in census 1941 with the proportionate increase in the physical aspects of the tribes (but figured as non tribes in the total pop). This structure prevailed till census 2001. This requires to be elaborated. Despite the fact the hill tribes were marginalised of their tribal constituency, both in Darjeeling District and Sikkim, the delisted hill tribes were simply referred to as Nepalis/Gorkhas indicating their original descent from Nepalese stock of the hill tribes of the Himalayas. Whereas in actual fact although branded otherwise the hill tribes retained their original ethnicity under a host of tribal names as Rai, Limbu, Gurung, Magar, Tamang, Sunuwar, etc., etc. (Tamangs & Limbus listed as ST only in 2003) whose original homeland (indigenous people) was in Nepal with racial affiniation to Sino-Tibetans speaking the Tibeto-Burman groups of languages and dialects. One particular case arises concerning Dhimal community, one of the most backward Indo-Mongoloid caste inhabiting the Terai are still left out from the ST list (census 2001); it is expected this lacuna will be amended in census 2011. It is doubtful whether the Koch will be listed as ST but it is derived from certain present positioning that their language maybe placed in the Eighth Schedule and on which grounds a Council in Assam maybe established to assist in development of the language. Besides the presence of the constellation of the hill tribes referred above present in the Dooars the real indigenous people of Dooars chiefly consist of the minority (5) Bhutia, Sherpa, Tota, Dukpa, Kagatay, Tibetan, Yolmo, (29) Mech, (30) Mru etc. The combination of these with the existing host of hill tribes as above, would be the legal basis (supported by the plains tribes from middle India - (31)Mundas, (33)Oraons, (36)Santals etc would be the standing pillars for constructing a Scheduled Area in the Dooars, thereby qualifying for merger with Darjeeling District as a perceived Scheduled Area to form a State/UT of Darjeeling & Dooars. This perception is backed by various constitutional acts as evidence by the geopolitical history of the region on basis of which the said conclusion is derived. These tribes already inhabited this region in substantial population as indicated in census 1931. Most of the migration of the tribes is indicated to have taken place after the annexation of Darjeeling from Sikkim 1835, 1850, 1861 incorporating the Terai presently Siliguri of the Kingdom of Sikkim primarily for labour in deforesting the lands for cultivation and settlement, and eventually for intensive labour required for tea plantations and allied agriculture which came as an added asset carried over from cultivating cash crops in Nepal. Likewise in the Bhutanese Terai land ceded to the British (1865) massive doses of plains tribes from middle India were inducted into labour force for generating the tea industry in the Dooars Terai plains with the hill tribes from Nepal, felling trees and planting tea bushes is their contribution towards the development of tea plantations in Northeast India. Not to mention the fact that the tea industry established in Assam is also on account of the same factors just cited. 

However the quantum of Nepali tribes migrating to the Northeast is comparatively less to those migrating from the rest of middle India, say the (31)Mundas, (33)Oraons, (36)Santals, etc. With the overdose of their migration the typical hill tribes were overtaken in numbers comparatively though they formed a habitual social unit without much difference in their behavioral traits and therefore their unity despite their diverse backgrounds. This cultural balance as an interplay between the hill and plains tribes still exist without much differences in creating a divide. Presently it is the politics of the state and more impacting the political parties who are responsible for upsetting the balance which had been a part of the tribal lives - of the hill as well as the plains, since generations. 

These immigrant tribes now permanently settled in the Terai Dooars combined form the major population of the area and whose support is crucial in determining the future of the Dooars, as well as the Terai (Siliguri subdivision) to form the basis of the respective areas being determined as Scheduled Areas in census 2011. It is this obvious imagination which allows the possibility of placing the demand for a UT/State of Gorkhaland or Darjeeling & Dooars initially required to be converted into Scheduled Areas and end by becoming a UT/State.