Inalienable constitutional rights of Darjeeling & Dooars statehood activists

Hillman the analyst, KalimNews, Kalimpong: This article has been compiled in order to educate the general public and the statehood activists, across the board, social as well as politicians of all hues, both from the hills as well as state and national parties.

1.The hill peoples of Darjeeling District and the contiguous Dooars (ref. Census 1931) is already bestowed with the inalienable right to a separate administrative setup as a Partially Excluded Area (Act of 1935 and Order 1936). Infact if proper population identification was applied (Census 1931 implied the ill tribes of the Himalayas composed practically the total population), this yardstick being the genuine case, Darjeeling District should have been defined as an excluded area. As a result of this initial mistake many of the hill tribes of the Himalayas were delisted to the general category of population. It is this flaw which is presently being demanded to re-correct Census 2011 so that the delisted hill tribes of the Himalayas (Census 1931) are once again reverted back to the original and rightful place as Scheduled Tribes. There is a definite indication, decades of time has lapsed, when finally the deprived population of their tribal identity would once again be restored to the post ante 1931 status and thereby regain their lost identity as well as heritage.There is no need to address how this situation is being reversed in Census 2011 as many articles have already been loaded earlier in these sites.
2.In continuation of the above reckoning it follows accordingly that both the terms Excluded and Partially Excluded Areas (E&PEA) indicates the geopolitical history of the areas within the respective definitions. For the understanding of those unaccustomed with constitutional affairs and law, it might be pertinent to inform the general readers that the meaning of the term implied as ‘Exclusion’ is cloaked, and which in fact, when uncloaked, is indicated to mean that the territories defined as E&PEA’s were in fact outside the domain of British India. As a matter of fact the E&PEA were actually Crown colonies attached to British India and the Indian Princely states. The latter two were composed as various Provinces of independent India in 1947-1950. The areas under E&PEA were outside the purview of the Independence Act of 1947 but implied within the meaning of the Foreign (Jurisdiction) Act of 1947, initially under the Viceroy (1947-52) who was handed over power by the Constituent Assembly of India by the Indian (Provisional) Constitutional Order 1947. By application of the referred three Acts, the E&PEA’s were placed in Article 3 read with the provisions of the Fifth (Art.244(1)& Sixth [Arts.244(2) & 275(1)] Schedules under the charge of the President. In 1953 even those Partially Excluded Areas which had tribes but not a Scheduled Area was declared application of the provision of the Fifth Schedule by a presidential decree instructing the respective states (where the Fifth Schedule applied) to form a statutory Tribes Advisory Council under Part B-4 (1) of the Fifth Schedule. It might be remembered that the two Schedules (Fifth & Sixth) are infact, the articulations of Arts.244 (1) Art.244 (2) & 275(1) respectively safeguarding the interest of the Scheduled Tribes of the areas perceived as the ‘indigenous people’ on basis of which only the right to self-determination is ensured as a democratic right, or the right to demand a state.
3.Therefore within the reckoning of the Constitution of India the legal right to demand a state falls within the provisions of the Fifth & Sixth Schedules only. At the time of drafting the Constitution of India 1946-48 the implications of the two Schedules are debated and the areas are distinctly demarcated taking into consideration the international obligations impacting them and which requires being resolved in time. The 1935 Act and 1936 order declares eight (8) Excluded Areas and twenty eight (28) Partially Excluded Areas totally thirty six (36) areas of India excluded from the administration of British India. These areas were in fact Crown colonies and accordingly managed by the Chief Commissioners (Chief Commissioners Provinces-1824) and were attached with the Provinces under the Lt. Governors who also acted as the Chief Commissioner for the Crown, whilst the Governor General of India of the Provinces reported to the Home Secretary of the British Parliament. This standard of operation still remains even after India became independent in 1947 wherein the respective Governors of the Fifth& Sixth Schedules implied areas and states are mandated to submit a report to the President of India annually without fail, regarding the welfare and development of the States taken by the respective state govts. The original identity of these regions in the Fifth & Sixth Schedules are preserved by further applications of Tribes Advisory Council/District Councils respectively even after the areas have become states/UTs after independence. The areas and States originating from the Schedules are further safeguarded by the National Commission for ST (Art.338A). Clause 8 of the amended Art.338 vests the Commission with full powers of a Civil Court trying a suit.

All these related factors go to show that state formation in India is totally a legal issue and not a matter of general democratic demand simply on basis of the majority population per se. The general perception in the minds of the lay members of the public, and in fact even the literati, unaccustomed to the writings of the constitutional writ, imagine since historical times that states were created on basis of language. This is entirely a false presumption and on no account the Eighth Schedule [Arts. 344(1) & 351] – Languages, is the basis on demanding the right to self determination or statehood in common reference. In fact this writer has even gone on to assert in earlier literatures that the partition of India was legally based on the indigenous people who were already demarcated with their distinct identity by the 1935 Act and Order 1936 describing these areas as E&PEA’s and which legality eventually was applied for assembling nine large Provinces out of 15 Provinces after 1947 till 1950. The nine Provinces created eventually were converted into states only in 1956 applying the constitutional benchmark.

Thereafter seventeen new states were further added after 1956 accounted for by the application of the Fifth & Sixth Schedules. As a result of which, four new states were created out of Sixth Schedule and ten out of the Fifth Schedule. The remaining four were foreign territories amalgamated with the Union under Articles 1,2, & 371. In the same process Telangana is constitutionally guaranteed to become a state under the Fifth Schedule. Only Darjeeling District is the last remaining area constitutionally guaranteed to become a state /UT under the Fifth Schedule provided it become a Scheduled Area [Art.244 (1) Part C] which at this moment of time this designation is not applied. However the moment of time is near arrival when the application for listing many of the ‘Hill tribes of the Himalayas’ (Census 1931) and which Scheduled Tribes Bill 2013 now pending before the Rajya Sabha is finally passed, it is expected the additional list will raise the ST population of Darjeeling District to an estimated 80% which thereafter will qualify the area to be declared as Scheduled Area by the President of India. Once the area is Scheduled thereafter the District and the adjoining Dooars will have the legal right to demand a state, democratically which is already ensured by the elected representatives of the District in the State Assembly as well as the elected members of the GTA.

It is expected, once the new list of STs Bill is passed by Parliament and thereafter Darjeeling District becomes a Scheduled Area the process to demand a State/UT for Darjeeling District and Dooars legally should be placed by the Chief executive of the GTA to the Home /Law Ministry at the Centre. So at this moment of time Bimal Gurung should elect himself as the GTA Chief and thereafter, as programmed, head the demonstrations in Delhi demanding a state, which is to mean demanding recognition of the new list of communities as STs, which criteria alone will ensure the required Scheduled Area, to make the demand legally acceptable and thereby achieve the guaranteed statehood (read as Partially Excluded Area and its legality the Fifth Schedule) as provided by the Constitution.

Hillman – the analyst (Karma T. Pempahishey )