Bipartite and Tripartite talks and strategy of GJM

Hillman the analyst, KalimNews, Kalimpong 17 November 2013:  The  GTA talks to be held on November 20 and 21 in Calcutta cannot be considered as the constitutional Tripartite meeting effecting the demand of Gorkhaland at all. Therefore the bipartite meeting on the 20 between the State and the GTA is an internal matter within the State. The meeting on the following date 21 with the respective official (lower rank than Union Secretary) of the Central govt. indicates that this meeting too is of considerably less importance and would have bearing on the GTA aspects only.  

In both the references to the two meetings, 20 & 21 in Kolkata, it is clearing asserted by Roshan Giri General Secy GJM while deliberating on the meeting agenda, the issues concerned are entirely related to GTA items, and that the statehood demand is already primed before the GTA coating was applied. This is to mean that the statehood demand is totally alive and kicking and therefore non negotiable on all accounts. 

In simple jargon, the two ensuing meetings in Kolkata has no bearing on the statehood demand at all, and in fact Roshan Giri goes on to further assert that the statehood demand is being moved forward “to Delhi by staging rallies and sit-in for three days 13, 14 &15 December”, by, “a thousand supporters” representing the GTA constituencies and the program led by Bimal Gurung. Therefore considering this equation with the Kolkata meeting is basically symbolic that the GTA is only an interim aspect towards the final goal of statehood.

This aspect is more pronounced now that once again the GJM, has raised the issue of demanding Scheduled Tribes status to the Gorkha communities in the bipartite meeting related to GTA. In other words, the GJM raising the issue of ST status is directly related to the statehood demand which is an important part of the GTA agreement. Now that the ST issue is raised again importantly implies in raising the ST population in the District in a fairly large measure to bring the ST population to a majority status thereby to pursue the statehood demand democratically (by proving the majority electoral demand for statehood). All this is implied to mean to convert Darjeeling District (and not just the Darjeeling hills) for consideration of Scheduled Area. 

Only on obtaining this criterion ‘Scheduled Area’ which is to declare the area is impacted largely by STs can the statehood demand be properly placed within the provision of the Fifth Schedule – the other constitutionally provided Article 244 (1) which guarantees legality of the demand. Though Darjeeling District (infact the Districts of North Bengal) within the ambit of the Fifth Schedule the area is covered only by Part A & Part B 4(1,2&3). Part B, Section 50, Part C, Section 6 and Part D Section 7 are not applicable to Darjeeling District nor the other Districts of North Bengal as these are not Scheduled Areas (i.e. the tribal populations are not more than 50% of the population).

As such demand for a state can be placed constitutionally legal only under the Fifth & Sixth Schedules and are therefore admissible from the point of view of law. Darjeeling District is certainly not in the Sixth Schedule which is applicable only to Assam out of which all the Northeastern states are included as the creations of the former Province of Assam prior to 1947.

In contrast Darjeeling District, North Bengal and the rest of the STs of West Bengal are covered by the Fifth Schedule by the statutory Tribes Advisory Council (TAC) under instruction of the President of India since 1952 and therefore exist till date as a defining body in matters of legislature and law.  Infact the role of TAC is critical in considering any legislature of the state as law without the prior approval of TAC whose views are time to time to be referred by the Governor before implementing the legislative laws in the State, particularly to North Bengal Districts.

Infact the North Bengal Districts were territorially separated from the rest of the state by the implications of the Inner Line Permit (ILP) regime which disallowed entry of any foreign nationals into this area without an entry permit established way back in 1873 under the designation, Bengal Eastern Frontier Regulation (BEFR). The ILP was withdrawn, as per record available in 1990 for reasons best known to those concerned, however, whether it was withdrawn by taking the public into confidence, for whom it was meant, is still to be verified and reckoned. This permit regime has an important bearing on the political status of the areas of the Districts in which it was imposed. 

Therefore it would be of great instruction to the enthusiastic public to reassert the imposition of ILP once again back to post anti status 1990 to safeguard the interest of the Districts of North Bengal, for which it was established as such. By lifting the ILP the inhabitants of the region have been demographically marginalised by the inflow of excessive migrants to the area from the bordering states and countries. This is in contravention of the provision of the Fifth Schedule which basically safeguards the Darjeeling hill peoples and the STs from the supposed intervention of the uncontrolled immigrants. 

The ILP regime was infact to control this very incident i.e. to control immigrants to these areas as a matter of law, initially Darjeeling as a Partially Excluded Area (Act of 1935 & Order 1936), meaning the area was distinctly different from rest of British India and therefore requiring separate system of administration than that applied to rest of the country. This provision was further guaranteed within the Fifth Schedule of the Constitution with the entire provision of the Partially Excluded Area transferred into the Fifth Schedule. It is this component of the Constitution which guarantees the District (as well as the adjoining Dooars) to a right to self-determination or a state if you will whichever democratically appealing to the respective inhabitants of the area.

Therefore the demand for a separate state of Gorkhaland being constitutionally guaranteed under the provision of the Fifth Schedule now only requires confirmation of determining the majority population aspects of the demand, as a democratic right. For which now only requires the reconversion of many hill communities back to the status of STs  which status was denied by Census 1941, as compared to Census 1931 in which the entire hill peoples of Sikkim and Darjeeling District were determined as ‘hill tribes of the Himalayas’. It is the use of the mother tongue in identifying the population which accounted for denying the communities as tribes since Census 1941 – 2001.  

The use of the mother tongue in the intervening period upto Census 2001 is solely responsible for the disastrous mishap when many of the tribes of the Himalayas were considered as non tribes. On account of which mistake these tribes of the Himalayas were denied many benefits accruing to them, particularly after the commencement of the Constitution in 1950-52, 61 years of marginalisation and therefore deprivation of their legal and democratic rights have been suppressed without any fault of theirs except an avoidable mistake i.e. accounted by use of mother tongue in the intervening census 1941-2001 and which is now seen being addressed only in Census 2011. This new census, based on the same ground of ethnology as in Census 1931 will account for addressing the long pending issue of readmitting the hill communities (hill tribes of the Himalayas) once again back to listing as Scheduled Tribes as per the Constitution of India.

This happens to be the general meaning and implications of GJM demanding listing the same hill tribes of the Himalayas back to their original designation but now determined as, “Scheduled Tribes (Art.342)-  The President … after consulting with the Governor…specify the tribes or communities … for the purpose of the Constitution be deemed to be Scheduled Tribes”. That is, only the President of India has the authority to determine the ST status.  The Parliament only addresses the issue as law and legally binding for implementing the provisions allotted to their safeguard within the Constitution. This would mean the provisions of the Fifth & Sixth Schedules as well as the other articulations in Part XVI of the Constitution.

In the final conclusion, as per the above deliberations, this writer intends to display, by the readings of the above in tandem that the legal right to demand the state of Gorkhaland is now practically near at hand./ this is realised from the fact that the legality required for the statehood demand, the Scheduled Area criteria of the Fifth Schedule is about to be completed. This is determined by the fact that the GJM as demanded for listing all the Gorkhas in the ST list (meaning in Census 2011).

This formality is seen to be initiated by the central govt.(and not the Congress party) and placed by the govt. in the Rajya Sabha under direct order from the Supreme Court of India as an Ordinance in 14 March 2013. However this was somehow opposed by the opposition party led by the leader of the opposition. As such the Ordinance was referred to the Parliamentary Standing Committee which unfortunately has caused an undeniable delay, regrettably, by the insistence of the opposition parties. However as the issue of considering the new list of ST is legally binding, at least in the case of the hill tribes of the Himalayas, however the first Ordinance which maybe on account of being lapsed by limitation of time, seems once again being placed now in Parliament as a second ordinance originating from the President of India. Surely this ensures now that Parliament cannot deny the Order of the President of India and therefore this Ordinance is guaranteed to be passed by Parliament into an Act and thereby law for implementation. Once it is implemented or even before such, banking on the perception that the new list of STs can be imparted with their rights guaranteed, the demand for Gorkhaland based on the surmise that Darjeeling District is expected to be populated with near or more 80% STs due to the increment of the ST population by the additional STs besides those already existing.

As already stated in earlier paragraphs with the new figure of ST population (80%) the Governor is enabled to send the new list of the population of the District/s to the President of India for consideration of the majority population of ST to be recognised as Scheduled Area. Once these areas are scheduled, the ST population, now in majority is within the democratic right to demand a right to self determination or the creation of a new state, separated from West Bengal, as a legal provision on account of the Fifth Schedule criteria’s being fully confirmed. That is, Darjeeling and Dooars are legally provided by the Constitution itself guaranteed to become a new state, along with Telangana. Therefore both Gorkhaland and Telangana are expected to be confirmed as new states in the forthcoming winter session of Parliament. Maybe even a Bill can be expected to be introduced considering this would be the last Parliament session before the forthcoming 1914 elections.

These expectations are not anticipatory gestures but perceived as the roadmap which the central govt. requires to follow as per instruction by the President of India who is the chief executive of the Constitution itself. Article 3 specifically determines the role of the President as the sole authority in the formation of new states. The States in which the Fifth & Sixth Schedule areas are attached, have no role whatsoever in neither creating new states nor denying the rights of these areas to demand their respective states. Therefore all said and done it is more or less expected the state for the hill peoples of Darjeeling District would be a reality during the last and concluding parliamentary session in November 2013.

(The writer Hillman –the analyst is Karma T.Pempahishey) ;