The legal right to the statehood demand sought in the Fifth Schedule, and not the Sixth Schedule

Hillman the analyst, KalimNews, Kalimpong, 17 December: The news of 9 December 2013 relayed by the two national dailies, The Telegraph, Calcutta and the Statesman, Siliguri in respect of the probable visit of GJM President Bimal Gurung to meet the CM on Calcutta on 20 December seem to hold two different views altogether,. While the former seemed to delve on the true agenda of the visit, particularly in reference to the issues related to GTA affairs, which probably seems to be truer in substance, while at the same time not discarding the relevance of the proposed demonstration in New Delhi by GJM activists in raising the demand for statehood.

The demonstrations tentatively scheduled for 13,14,15 December 2103 is significantly important in considering a perception that the Scheduled Tribes Bill 2013 is anticipated to be placed in the Upper House. Whether this situation arises or not is a different question. But the matter of the fact that the demonstrations in Delhi are programmed during the winter session of Parliament is itself relevant, in the sense passing the ST Bill is directly related to the statehood demand.

The ST Bill is crucial for consideration of Darjeeling Dist & Dooars to be declared as a Scheduled Area by the President in order to complete in context to the Fifth Schedule. Presently the statehood demand lacks the Scheduled Area component which is critical to provide the legal right of the people of the area (i.e. Scheduled Area conveying the area consists of over 80% STs of the population) thereby allowing the demand to be placed on the standard route directly to statehood.

For the satisfaction of every reader, this writer even at this late stage confirms that the right of demanding a state for the people of Darjeeling District & Dooars remains within the provisions of the Fifth Schedule only. Considering that state formations can be legally allowed only to areas incorporated in the Fifth & Sixth Schedules. Therefore the Sixth Schedule aspect of Darjeeling District was rejected during the deliberations of the Parliamentary standing committee chaired by BJP MP Smt. Sushma Swaraj. In other words, the GNLF President Subhas Ghissing seemed to have been led astray by the Left Front govt. during the period by citing the Sixth Schedule application to the Darjeeling hills.

In order to cite how the former was misinformed in placing West Bengal in Sixth Schedule was a constitutional misdemeanor. As a result the Sixth Schedule was rejected lock, stock and barrel, as the issue was not placed in Rajya Sabha as fait accompli.

During the Parliamentary Standing Committee 2007 (and the report presented to the Rajya Sabha on 2008) the following observations are extracted from the pages of the report. The contents therein fully vindicate the fact that both the speakers referred confirm that the legal right to the statehood demand in context to Darjeeling District & the Dooars is to be sought in the Fifth Schedule, and not the Sixth Schedule

Quote from pages 244 etc.

1. Shri S.S.Ahluwalia. …. Madam, I would like to know from the Home Secretary why we have taken the Sixth Schedule route.

Actually, as per the spirit and soul of the Constitution, if you want to give any autonomy to a particular district or area other than Assam, Meghalaya, Tripura and Mizoram, that should fall in the Fifth Schedule. At any point of time, did you discuss this matter with Shri Subhash Ghissing and the State Government that we can give you Fifth Schedule and not Sixth Schedule because the Sixth Schedule changes the total character of the Constitution? I would like to know whether at any point of time you discussed it or not. If you discussed it, then, what was the response of Mr. Ghissing and the State Government?

2. Shri Madhukar Gupta. ….But to the best of my knowledge this issue has not been discussed or even contemplated. But I stand subject to confirming that position.

3. Chairman. This is precisely his question. Why was the Fifth Schedule not offered to him? He is not asking whether Fifth Schedule deliberations took place or not. He is saying that Fifth Schedule deliberations did not take place because you never offered a solution under the Fifth Schedule. And this is his question. Instead of Sixth Schedule, you should have preferred the Fifth Schedule.

4. Shri Madhukar Gupta. ….. But this issue has been going on and is rooted in Darjeeling Accord of 1988.

5. Chairman. ….The Darjeeling Accord of 1988 does not speak of the Fifth Schedule or the Sixth Schedule at all. They wanted more powers after 15 years. So, you offered a solution under the Sixth Schedule. Mr. Ahluwalia’s basic point is that solution should have been offered under the Fifth Schedule instead of the Sixth Schedule because by offering solution under the Sixth Schedule, you are changing the whole scheme of the Constitution. The Sixth Schedule was limited only to Assam, Tripura. Meghalaya and Mizoram, Similar solution could have been offered to Shri Subhash Ghissing under the Fifth Schedule. This is what he is saying.

6. Shri S.S.Ahluwalia . ……. We bought peace on 23rd August, 1988 by signing the Darjeeling Accord, and after 15 years and giving other things, we reached here. And, again, this MOS and, then, the Sixth Schedule have come. So, did you make any assessment as to what exactly the country is going to achieve and whether the aspirations and expectations of the people of that area are really fulfilled or not? The Sixth Schedule is just a bargain for a demand of their Statehood and of that pressure. You have just given a safety wall that go to Sixth Schedule and forget about Statehood; we will not provide that or anything else.

7. Shri Madhukar Gupta. …. Sir, I think the issue here has apparently been that whatever the extent of the autonomy or, I would say, the devolution of power was there, it was not autonomy; that was devolution of powers to the District Council under the State Act.

8. Shri S.S.Ahluwalia. It was decentralization of power from Writers Building to the Hill Council.

9. Shri Madhukar Gupta … There was justification for the demand for autonomy, and the maximum that can be done by way of giving autonomy in this Constitutional scheme of things is what is provided for in the Sixth Schedule. …… As I mentioned earlier, there was more delegation than autonomy.

10. Chairman. Mr., Ahluwalia, let me add something to your question. Mr. Viswanathan, I would like to know whether you have done a comparative study of the Fifth Schedule and the Sixth Schedule. Even I have not seen this. These are very basic and new questions, which Mr. Ahluwalia has raised. I have now come to know that the Fifth Schedule has been extended to Himachal Pradesh, Punjab, Orissa, Rajasthan, Maharashtra, Chhattisgarh, Jharkhand, Madhya Pradesh and Andhra Pradesh and some of the areas have been declared by the President as “Scheduled Areas”.

Similarly, the Scheduled Area order could have been extended to Darjeeling district and Tribal Advisory Council, or, something could have been established. Tomorrow, when you come, at least make a comparative study of these two Schedules and tell us why this solution could not have been offered under the Fifth Schedule. ….As Mr. Ahluwalia is saying, all of us are feeling that by adding Darjeeling District to the Sixth Schedule, you are changing the entire scheme of the Constitution. Why these two Schedules; because in the Sixth Schedule, it is mentioned, “It will be extended only to Assam, Tripura, Meghalaya and Mizoram”. And in the Fifth Schedule, they are saying “excluding the States of Assam, Tripura, Meghalaya and Mizoram. That means a special provision was carved out for Assam, Tripura, Meghalaya and Mizoram under the Sixth Schedule, but all the other States of India were put under the Fifth Schedule. I want to know, for the States, which were already under the Fifth Schedule, why this solution is being offered under the Sixth Schedule.

11. Shri S.S.Ahluwalia. ….I know the difference between the Fifth Schedule and the Sixth Schedule. Because when the Sixth Schedule was first drafted by the North East Frontier Tribal and Assam. This was drafted, particularly, for them. Then, under the Chairmanship of Mr. Gopinath Bardoloi, a report was prepared and that was given to Sardar Vallabh Bhai Patel and, ultimately, accepted. This was a special scheme, particularly, for Assam.