Can Dr. HB Chhetri resign?

KalimNews, Kalimpong, 1 December 2013: GJM MLAs cannot resign without statehood writes Hillman the analyst.

In reference to Telegraph news, Darjeeling by Vivek Chhettri “Fresh case on Morcha 7, Gurung fumes” read with Statesman News service, Siliguri, “Harka to retire from politics” dated 27 November 2013 respectively, seems to send an inappropriate message at this point of time when the GJM dispensation is being slowly but impactingly, encroached by other political parties and a prominent social organisation recently established to raise the issue of Darjeeling & Dooars state and development. 
Such counter GJM forces have already gained mass support eroding the existing vote bank to a considerable extent and to such a point, that it is a perspective presumption, if at all elections are held in Kalimpong subdivision, it might pose a threat, even if GJM wins at all, it would be by a significantly less marginal difference.

With this point in view along with many of the front ranking GJM leaders including seven GTA members under judicial custody, there seems to be a leadership deficit in carrying forward the Gorkhaland demand ahead, let alone saving each others skin at this point of juncture. Therefore if at all the GJM MLA (Kalimpong) Dr.H.B.Chettri publicly declaring to resign on account of “begging” to the state govt. for the release of the above GJM activists (presumably read as under bail), is not acceptable at all in all counts. 
Whether the statement to resign is genuine or not is a different question but if at all it is serious as read then the matter becomes debatable and more serious in consequence. The question of resignation either by him or any of the other two MLAs cannot afford to rise at all in any eventuality for the simple reason that the electorate have mandated the representative of GJM for one and sole reason, the demand for the state of Gorkhaland and no other agenda.

Therefore to cite any issue mundane or grave to tender resignation sidelining the statehood issue on personal grounds is not at all accepted. The very issue of resignation, citing inability to address the release of the custodial detained GJM activists and GTA members, and blaming the state govt. for the lapse in denying the release, cannot be the ground nor the reason for the implied resignation as an MLA.

No doubt the release of the activists is the moot consideration to be taken up by the party with all resources at its disposal, particularly by employing legal brains to deliver the goods. After all whatever the charges framed for their arrest and custody, all charges concerned require to be read with the agitation as a movement for the demand of statehood. This is to imply that even if any law and order was impacted on account of the statehood demand, which according to this writer is legal and infact ascertained guaranteed by the constitution of India, under the Fifth Schedule of the Constitution in which Darjeeling District retains its legal right to assert the demand, democratically. 
Therefore if any perception of law and order seem to have been violated on account of the statehood demand, the impact of the disorder requires to be seen with the legality of the demand, which exists in law as well as by historical perception, in the sense that the District if proper identity is applied on basis of ethnology (as in Census 2011) the population of the District can afford to state consists of over 80% Scheduled Tribes. To allow this estimate translated in figures maybe indexed in the new census 2011 in consideration of the fact that, GJM in its memorandum to the Union Govt. in 2010 while demanding a state of Gorkhaland under Article 3 has already demanded all the Gorkhas to be listed as Scheduled Tribes. 
It should however be differentiated that the Gorkhas cited here while invoking Article 3, is in reference to only those in Darjeeling District (and probably also implied to the Dooars areas of Jalpaiguri Distrcit). Infact in relation to Article 3 under which the statehood demand is placed should have read, constitutionally speaking as per the Thakkar Sub Committee “Excluded & Partially Excluded Areas other than Assam” has referred to the Partially Excluded Area inhabitants as the ‘hill people’ and for whom the safeguard (the legal right to demand a state implied in the Constitution of India) is guaranteed.

Neither the GJM nor other hill based political parties, who too have the main agenda as the demand for statehood, seem to be in total darkness, or prefer to be, whichever maybe the case, have yet to come out and place the legal demand of statehood on a constitutional bench without attaching any historical emotions related to a passionate demand of Gorkhaland without however placing any constitutional criterias. This writer has shouted his voice to the point of asphyxiation by deliberating on the legality of state formation as well as in reference to the demand for Gorkhaland. These are articulated in numerous pages since 2008, in www darjeelingtimes.com (ref. to column Hillman-the analyst). 
Besides which since the pages in the site was unable to produce effective results, i.e. dissemination of the concept was minimally bare. Though the responses through the net in the form of questions as well as charges of biases was prevalent, nonetheless, a doubt existed that most were unable to read into the deep recesses of the Constitution to understand that Darjeeling District is framed in the Constitution under the Fifth Schedule and which provision alone will eventually deliver the statehood dream which seems to be implied since the Constitution was promulgated in 1952 (the election of the first Parliament).

Darjeeling District is certainly not in the Sixth Schedule and those implying this are certainly pointing the gun at the opposite direction and not the target in the front. All statehood demand activists in the District as well as others in rest of India are informed here that the constitutional demand for statehood lies solely within the provisions of the Fifth & Sixth Schedules only. The Sixth Schedule applies to Assam (the entire North east regions).

The Fifth Schedule applies to the other states of India wherever implied. The very concept of the Fifth & Sixth Schedules incorporated in the Constitution, pertaining to certain peoples in India, here read as Scheduled Tribes only is applicable. That too, only to those areas specifically mentioned in the Govt. of India Act 1935 and Order 1936 as “Excluded and Partially Excluded Areas” (E & PEAs).

The people of Darjeeling District as a Partially Excluded Area identity are already safeguarded in the provisions of the Fifth Schedule. This legality is the benchmark in the Constitution in demanding statehood directly and which process is already in progress accounted by the establishment of the GTA, an interim setup, till the District is declared a Scheduled Area. This formality is also duly in process considering the demand of listing all the Gorkhas as STs, which when listed by law, the ST population is expected to increase to an estimated 80% thereby allowing the President of India to schedule the area. 
Once the District is scheduled then the provisions of the Fifth Schedule is fully completed and the legality for demanding a state is wholly intact. After which the demand for a state becomes constitutionally guaranteed.

Most are unaware that Telangana has the right to become a state as a constitutional guarantee of the Fifth Schedule. Telangana was a Scheduled Area under the statutory Tribes Advisory Council (TAC). In the same context Darjeeling District and Dooars although in the Fifth Schedule as Scheduled Tribes only but at this moment missing the crucial component ‘Scheduled Area’ without which the right to demand a state is incomplete.

The application of the above reference to the perspective of Darjeeling District, even with the Scheduled Area have a ground reality existing in population statistics (not indexed now) to demand a state, as a virtual reality exists that more than 80% of the population are infact perceived as STs at the moment, who had already applied to be listed as ST in Census 2011. Taking this consideration into account, Darjeeling District & the Dooars can afford to demand a state legally even at this point of time without being declared a Scheduled Area. The virtual truth exists that the reality of the situation is that Darjeeling District is infact a Scheduled Area, and now only remains to be legally provided that identity i.e. the provision of the Fifth Schedule – right to demand the areas directly in becoming a state/UT.

The provisions of the Sixth Schedule (a) does not apply to any of the areas in rest of India but only to the Northeast and (b). the right is restricted to District and Regional Councils within the States of the Northeast.

Infact it is most interesting to relay to the readers that only the E&PEAs (Sixth & Fifth Schedules respectively) are constitutionally provided legal guarantees for internal right to self determination. No other areas besides these can demand the implied constitutional guarantees. Once again it is enumerated, since the promulgation of the Constitution in 1952, most of the new states (ten) were created out of the Fifth Schedule, four out of Sixth Schedule and the remaining four amalgamated under Articles 1,2, & 371.

Darjeeling District already under the statutory TAC a provision of the Fifth Schedule was born inherently with the right to demand a state. It is this right which the GJM activists have been agitating since the statehood demand movement began in 2007. Infact the GJM was established with the sole, one pointed aim of obtaining Gorkhaland or a state/union within the federation of India by invoking Article 3 and citing the Fifth Schedule as the guaranteed legality provided by the Constitution itself.

The above perception requires to be cited as a ground reality situation for the statehood demand and which agitation and demonstrations may have sparked some sense of lawlessness despite raising the demand under democratic norms. No doubt under reaction by the state administration, some situation may have arisen when the democratic event lapsed into disorder implied under law. But the reality of the situation enquires to be considered in the light of the fact that the disorder is said to have arisen from various aspects of highhandedness by the administration particularly relating to law and order. 
Therefore it requires to be interpreted that the implied break of law and order was not at all a premeditated action but an instant reaction accounting for the non acceptance of the basic human rights of the indigenous people to demand the right to self determination under the Constitution (Fifth Schedule) read with the UN Declaration of Rights of Indigenous People 2007 (UNDRIP).

In conclusion all GJM front ranking leaders beginning with the GTA Chief & members and respective MLAs are urged to take up the issue of legally demanding the release of the GJM activists citing the above explanations i.e. mainly to imply that the GJM activists had no criminal intention at all, even if a perception of law and order may have resulted which if so was only as a spontaneous reaction to an incidental situation and therefore without either motivated or premeditated action. Therefore legally the penal code is inapplicable in the case as the intent in breaking law and order does not exist. Whereas on the other hand the custody of the activists amounts to human rights violations under provisions of the Fifth Schedule which is explained abundantly enough above.

Therefore instead of considering resignations or otherwise by the elected representatives of the people, they are urged to demand releasing of the GJM activist under custody, citing instead the state violating the code of law by imprisoning human rights activists demanding the right to a state under Article 3 with the provisions of the Fifth Schedule.

Hillman the analyst is KarmaT.Pempahishey