Tribes Advisory Council (TAC) of Fifth Schedule established - next stage Statehood?

Hillman the analyst, KalimNews, 2 January 2014: Time and again, this writer had been writing and informing the general public that the demand for statehood for Darjeeling District and the adjoining Dooars, is legally guaranteed and based on the Constitution of India implying the provisions of the Fifth Schedule. 

Although this is unknown to the public across the board, and infact as well as to the spectrum of political dispensations (generally applied to hill parties), where certainly it is known at least to the leaders of political parties based on the plains, not to mention the national based, who are fully aware of the legal aspects of state formations.

In other words, the major regional and state based parties as well as the national parties are fully conversant on the legal criteria which in this case happen to be the constitutional guarantee provided by interpreting the legal implications of state formations within the purview of the Fifth & Sixth Schedule. Only on the basis of these two constitutional articulations contained in Art.244(1) & Arts.244(2) &275(1) respectively, in consonance with other varied Articles such as Art.3, 2, 4, and other related articles all composed within the statehood demand under Art.3 happens to be the legal guarantees to be expressed while demanding a new state formation.

This writer’s long time enquiry into unfolding the secret legal requirements for expressing a demand, restricted only for those areas guaranteed within the Constitution itself, can afford to demand a state under Art.3 and none other areas who do not possess the legal guarantee. The guarantee in question in this case happens to be the provisions of the Fifth & Sixth Schedules restrictive to areas mentioned only within the two Schedules. It so happens, Darjeeling District & Dooars are already guaranteed by the provisions of the Fifth Schedule in democratically expressing the legal rights contained therein in justifying the statehood demand constitutionally. It was this aspect which this writer had been expressively explaining to the readers in the article of Sept 2008 under the caption ‘Roadmap on the Trail to Gorkhaland (Partially Excluded Area- the Constitutional Guarantee)’. 

The veracity of this truth i.e the right of Darjeeling District & the Dooars to demand a state under Art.3 lies within the provisions of the Fifth Schedule only, has now come into the public domain to prove the point of the reality that West Bengal is in the Fifth Schedule on account of which provision a statutory Tribes Advisory Council (TAC) is mandated as per law. A brief history of the newly established TAC is chronologically explained below.

·         On 08 July 2011 – Memorandum of Agreement - GTA Bill (to be formed through an Act of West Bengal State Legislation)

·         On 06 March 2012:  Govt. of West Bengal Backward Classes Department Notification No. 820-BCW/3C (MC)-8/96. (Presumed under order of the Governor of West Bengal) as per quote :

“The Kolkata Gazette dated Wednesday March 14, 2012, Govt. of West Bengal Backward Classes Department Notification No. 820-BCW/3C (MC)-8/96, the 6th March 2012. In exercise of the power conferred by sub-paragraph (3) of 4 of the Fifth Schedule to the Constitution of India, the Governor is pleased to make the following amendments in the West Bengal Tribes Advisory Council Rules, 1953, published with this Department notification No.1282 TW dated the 25^th August 1953, as subsequently amended (hereinafter referred to as the said rules): ….”.  

·         On 07 March 2012 - GTA Bill (President Smt.Pratibha Patel gives assent to the GTA Bill)

·         On 12 March 2012 : GTA becomes an Act – GTA Act 2011 : West Bengal Act XX of 2011

·         On 10 December 2013 : Govt. of West Bengal Department of Tribal Development Notification No.4139-BCW/3C (MC)-08/96.Quote:  

“The above Notification has been further amended by Govt. of West Bengal Department of Tribal Development Notification No.4139-BCW/3C (MC)-08/96 (Pt.I Duplicate) - the 10^th December 2013 In exercise of the power conferred by sub-paragraph (3) of paragraph 4 of the Fifth Schedule to the Constitution of India, the Governor is pleased hereby to make the following amendments in the West Bengal Tribes Advisory Council Rules, 1953, published with this Department notification No. 1282 TW, dated the 25^th August, 1953, (hereinafter referred to as the said rules):                                                  

Amendments

In the said rules, in rule 4,-

(1) In clause (a), in sub-clause (i), for the word, “The Minister-in-Charge of the Backward Classes Welfare Department, West Bengal”, substitute the words “The Minister-in-Charge, Department of Tribal Development, West Bengal”.                                                                                                                                      

(2) For clause (b) substitute the following clause:-                                                                  

(b) A nominee of the Secretary, Department of Tribal Development, who shall not be lower in rank the post of Joint Secretary of the Department, shall be the Secretary of the Council”.

·         Govt. of West Bengal Department of Tribal Development Notification No: 4140-BCW/3C (MC)-08/96 (Pt-I Duplicate)- the 10^th December 2013 …  following members … (notifying the present TAC list of 13 members wherein item (iii) nominee of Governor (to be notified). A perception exists that since the three subdivisions of Darjeeling, Kurseong & Kalimpong is unrepresented as members in TAC, as per the TAC established in 1953 -56, the three subdivisions was represented by one elected member from Darjeeling from ST/Kurseong & Siliguri constituency (i.e.late T Wangdi, who was deputy Minister cum Vice Chairman of TAC) and two ST members, Mrs. David Mohan & Sabitri Devi Lepcha representing Kalimpong & Kurseong. This accordance will probably be observed in the nomination by the Governor.      

(Note: This is presumed an amendment of Notification of 12 March 2012, whereas Backward Classes Dept is omitted and inserted by Dept. of Tribal Development. This is a major shift in policy determining TAC as a crucial component of the Fifth Schedule, provided with the legal potential contributing towards new formation of a state in India). 

Now that TAC a major component of the Fifth Schedule is formerly established it clearly signifies that the legality of statehood demand is firmly placed on the constitutional plank. However that does not imply that the statehood demand is legal but only indicates that there is an inalienable right to assert the demand in the proper time. This is to mean that although the statehood demand has a legal guarantee which however requires to be completed by acquiring the more important criteria of determining the District and the adjoining areas to be declared as Scheduled Areas. Without this component the legal guarantee provided by the Constitution in the Fifth Schedule to demand a state is incomplete and therefore ultra virens. It is however certain that the statehood demand is not a figment of imagination and in time would become a reality, subject to the fact Darjeeling District is able being declared a Scheduled Area. This component seems a visible future perspective considering the fact that the inclusion of two additional list of Scheduled Tribes in 2003, the Limbus and Tamangs, which has increased the ST population Census 2001 at 12.68% to perceived ST population Census 2011 29.27% (approx) in the District of Darjeeling. With this new ST percentage of 29.27% applied to Census 2011 would in fact apply to Darjeeling District in being classified as a Scheduled Area, the missing criteria for Darjeeling District & adjoining areas being provided by the legal rights of the Fifth Schedule to place the statehood demand on basis of the constitutional guarantee, as has been applied to the earlier new state formations created out of the Fifth Schedule, the last such states were created in 2000 on basis of the Fifth Schedule were the new states of Jharkhand, Chhattisgarh and Uttarkhand.

The Tribes Advisory Council Notifications are enough grounds to indicate that the statehood demand (inclusive for Darjeeling District & the Dooars) is certainly completing its full cycle in becoming a reality very soon. These constitutional aspects not being known to the general public is being mishandled by all the political parties without having the knowledge of state formation. At the same time the State fully realising that the inevitability of the statehood demand is legally justified, is delaying the program with all measures at its disposal in order to confuse the whole issue in the minds of the stakeholders, successfully being translated as perceived in the disarray of the hill political party (GJM) presently. Notwithstanding the present state of affairs as a distraction from the statehood demand, the installation of Bimal Gurung once again to the post of GTA Chief is very significant to the main issue concerned i.e. the statehood demand, which is certainly on its way, and not discarded as ordinarily presumed. What is intended to be relayed here is that, the statehood demand is firm and intact and placed within the legality of the Fifth Schedule, that the issue is only standing and awaiting Darjeeling District & adjoining areas to be declared a Scheduled Area, in order that the statehood demand becomes constitutionally lawful.

To place the above context to the Constitution, one requires to refer to the contents of a standing Bill No. LXVII of 2013 titled “The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies (Third) Bill 2013” which contains all the potentials related to estimation of population of SCs and STs, quote, 3.(1).As soon as may be after the commencement of this Act, the population as at the last census, of the Scheduled Castes or, as the case may be, of the Scheduled Tribes, in each State shall be ascertained or estimated by the Census Commissioner.  It is apprehended once this Bill is passed, and the new Parliamentary and Assembly Constituencies are redefined on basis of the increase in the percentage of ST (Census 2011) it is bound to effect in considering Darjeeling District Scheduled Area (thereby providing the legal basis  of the Fifth Schedule to validate the creation of a new state).

Having being declared a Scheduled Area and the application of delimitation of constituencies, it is equally possible the Parliamentary and Assembly constituents in the District maybe converted into reserved ST constituencies along with the present ST legislative constituency of Phasidewa. With four ST Assembly constituencies in the District it therefore applies the sole Parliamentary seat would also be reserved for ST.

Therefore in all considerations it is observed that even without listing additional list of STs besides the already listed two STs, the Limbus & Tamangs, seems to be sufficient in raising the percentage of STs for the District to be declared as a Scheduled Area and accordingly place the provisions of the Fifth Schedule in demanding a new state /UT, more properly and equitably in considering the aspirations of the people of the Dooars, a State/UT of Darjeeling & Dooars.               

The writer Karma T.Pempahishey has been contributing articles to KalimNews by the name of Hillman the analyst.