Assam govt. committee for Bodoland, why not for Gorkhaland

Hillman the Analyst, KalimNews, 12 March 2014: In reference to a national news column it was informed that a committee, comprising of renowned personalities, Shiv Shankar Menon (National Security Advisor to the PM) and G.K. Pillai (former Home Secretary, presently Advisor to the Home Ministry), is said to have been formed in regard to the burning question of statehood demand of the territory comprising presently Bodoland Territorial Council (BTC) formed in context to the Sixth Schedule in the state of Assam. This item is of immense importance to study and enquire into the constitutional and legal aspects of the Bodoland area (which formerly formed a part of the 7 Assam Dooars of the original 18 Dooars of the acceded territories of Bhutan wherein the 11 Bengal Dooars formed the remaining composite area). The 18 Bhutanese Dooars (Treaty of SInchula 11.11.1865) was ceded by Bhutan to “Viceroy and Governor General, of Her Britannic Majesty’s possessions in the East Indies, and their Highness the Dhurm and Deb Rajah’s of Bhootan”. In context to this treaty it requires to be amplified is the fact of an important aspect in the construction of the state of Bhutan which came into effect, as a kingdom as the first dynastic monarchial rule under the Wangchuck’s in 1907 only, duly recognised by the British and the first monarch honoured by the presentation of a medal of honour graced by the British monarchy.

Infact history records that during the Younghusband expedition to Tibet in 1904 the Wangchuck Paro Penlop personally met the Younghusband expedition in Chumbi valley and contributed material support to the expeditionary force, on which account of gratefulness it is given to understand that the British in counter measure is seen as initiating the monarchy in Bhutan, for good or for better, in 1907. Whether this context is a diplomatic ploy or a genuine stance can be unfurled by the simple fact that the Treaty of Sinchula requires to be seen in the light, that during the time, Bhutan as a state/nation, speaking as a matter of academic interest and law, did not exist. Since time immemorial this area was commonly referred by the people from the plains of India as Bhut –anth referring to an area at the end (boundary of Bhot presently Tibet).

It is probable, in reference to this fact the concept of a new state was only formalised by the entry and settlement of the self exiled priests, from Sakya lineage of the Kargyupa following the sect of Mahayana Buddhism, whereas the leader of the sect was respectively referred to as the Shabdung (the Dharma Raja or the spiritual leader of the people within the geophysical boundary named by him as Drukyul (Dragon land). Normally the translation of the reference as Drukyul is more precise than the present reference as the Dragon Kingdom which seems to be somewhat exaggerated, as at the time the area was only in reference of the term in a ethical sense ordaining the Shabdung as the spiritual leader (immigration to Bhutan in 1641). Within the imagination of the spiritual state, the Deb Rajas (or referred as the Penlops or Governors) consisted of four main areas of the division of the geographical area in four zones according to the four directions of the poles. The Shabdung in the Drukpa Kargupa sect of Tibetan Mahayana Buddhism, following the tradition, was a Bodhisattva, an incarnate spiritual being, referred in Tibetan as a Rimpoche, constantly reborn in a physical form (apparition of its former existence) as a Buddha, to reappear in the continuous cycle of life to preach and conduct a passionate role for the welfare of all sentient beings till all past karmas are exhausted in defining the ultimate Buddhahood (Nirvana) to all without exception. Therefore the role of the Shabdung as an incarnate was directed towards a spiritual role than a temporal undertaking of the geographical space within the area implied by the religious doctrinaired population under the Drukpa Kargyu sect following the Mahayana Karmapa Vajrayana lineage.

Briefly the understanding of Tibetan Mahayana Buddhism and its aspects of origination: -

At least the implication of this ethic spirituality consideration seems to be an attempt by enlightenment (self realisation/understanding the principles of nature/or in modern context the science of ecology). In short, the general principle of Mahayana Buddhism, was infact, to uplift civilisation to a progressive sustainable state as an end on its own, wherein the humans as an enlightened dramatic persona, due to its mental faculty, and the power of this perspective, is alone to bring about the desired result of a Dharmic life in the mortal world. Briefly, the schemes of religious undertaking under the Mahayana and Hinayana ideological principles is based on the differentiation demarcated by a line dividing Buddhism into two distinct applications and that the term Mahayana and Hinayana does not in any way create a difference in the philosophy of Buddhism which is common to both the sects. The process of application between the two is the demarcation. The Mahayana commonly referred to as the “larger transport” for carriage of its adherents, which is to mean, the teaching of Mahayana is more sensual and therefore able to impact a larger section of lay people which generally forms the larger sections of the population, mostly the undergraduates who are automatically deprived of the times and means to upgrade the scheme inadvertently, and therefore convenienced by the Mahayana system to undertake its role within the means of its limitations. Therefore in a sense the Mahayana (yana = vehicle) is created with more space (convenient for lay people to accept)and be transported (to the journey of mortal existence),i.e.to lead a life within the prescriptions of the Mahayana philosophy in conducting human lives and understanding, infact realised as a civilized life (in contrast to the animalistic ordained life by instincts).

Whereas Hinayana (Hina = small) Buddhism is a description not in terms of space or quantification, but infact to convey the practice of which system aims towards the progress in realising of the individual self only in obtaining enlightenment and therefore a long drawn and difficult program towards achieving that aim towards regular practice of the principles involved. In other words, the goal of Hinayana is directed towards self liberation whereas the Mahayana prescribes that all Buddhists strive to undertake a life of compassionate undertaking to guide and accompany all sentient beings (both humans, animals et al) to a understanding of a Buddhist cosmic world within the sphere of material existence safeguarding the lives of all before the self. This is a simple practice of existence wherein the self by practice of compassion and love, eventually in effect returns to the self as a reaction thereby liberating both the others as well as the self in consequence. In other words, in both the systems, the goal remains more or less the same, which is to liberate the individual as well as all sentient beings to a peaceful state of coexistence based on love and compassion to sustain life-form to a reasonable understanding of the scientific implications of nature - so to say.

Since most of the northern countries of East Asia and Southeast Asia following the Mahayana tradition of Buddhism are identified in a general term as Northern Buddhism whereas the countries following Hinayana Buddhism are based in the southern countries of Asia and accordingly termed as southern Mahayana Buddhism.

The above diversion to discuss Buddhism originated on its own and not at all intended attentively. Hence if it at all it is considered out of sequence to the issue under consideration, this offence is highly regretted.

Reverting back to the main discourse i.e. demand for statehood captioned as, Bodoland/Gorkhaland and the necessity of addressing by forming a separate committee of statehood issue by the State certainly seems to be of great importance considering the fact that both Bodoland or Gorkhaland, no matter whatever the terms under which the legal aspects of statehood issue is addressed by the activists, requires a fresh relook by the Govt. of West Bengal simply reasoning from the underlying current of facts related to the ceded territories of Bhutan already preserved within the framework of the Indian Constitution within the ambit of the Fifth & Sixth Schedules. Contextual to the Bodoland statehood demand, in historical terms related to the topo-geographical area has reference to the areas considered as the 7 Assam Dooars within the State of Assam under the Sixth Schedule [Arts 244(2) & 275(1)]. Therefore considering the constitutional aspects of the Sixth Schedule applied to the formation of Bodoland Territorial Council (BTC) is an event incorporating the area in allowing the assimilation of the people of the area under a system of constitutional democracy to express for statehood within the Indian Union. This seems not only a democratic expression of legal and constitutional justice but as a matter of fact of international understanding within the UN Charter. In particular reference to this aspect of UN understanding is framed within the United Nations Declaration of Rights of Indigenous Peoples (UNDRIP) 2007 which expresses the declaration of human rights of indigenous citizens for internal self determination, which in the case of Bodoland state is within the framework of the Indian Constitution. Therefore the aforesaid committee referred above consisting of NSA and Advisor to the Home Ministry in reference to the State of Assam has high level impact concerning the issue of statehood implied to the BTC area for enquiry and consideration of the demand within constitutional legality.

The same yardstick requires to be applied to the statehood demand of Gorkhaland as the issue is similar in content and context and well within the legal rights framed in the Constitution of India, wherein Darjeeling District and the contiguous areas of Dooars, was within the administrative setup for consideration within the State of West Bengal. To describe which, reference is here made to the Tribes Advisory Council (TAC) which was initially established by the President of India/the State Governor in the State of West Bengal, under Para 4 Part B of the Fifth Schedule of the Constitution during the period 1952-56. Which after the formation of West Bengal state out of the Province of Bengal marginalised TAC while democratizing Darjeeling District (though a Partially Excluded Area under the Act of 1935 & Order 1936), the process affected the Scheduled Tribes losing their legal rights to demand freely their right to internal self determination. Wherein, the Darjeeling District sub divisional hill constituencies inhabited by the indigenous people of the area were thenceforth subject to democratic representation for delimitation of area for the general electorate. Whereby the Fifth Schedule expressed by TAC in earlier period 1952-56 was de-scheduled, peculiarly as a consequence of the minority percentage of ST population in Darjeeling District. As a matter of legal implication the contiguous areas of Dooars, both the 11 Bengal Dooars as well as 7 Assam Dooars immediately implies attached to Darjeeling District in a constitutional as well as international understanding particularly in reference to Art. 253 - International Agreements.

This seems to apply to both the issues concerning the 11 Dooars (the statehood demand for Gorkhaland) and the 7 Dooars (statehood demand for Bodoland). It requires to be inserted that the statehood demand for Gorkhaland also incorporates the ceded areas of erstwhile kingdom of Sikkim (now a State within India) wherein Darjeeling District formed as an administrative area in 1865 composing the three present subdivisions of Darjeeling, Kurseong & Siliguri, to which was attached Kalimpong subdivision, formerly part of Bhutan Dooars under the Deputy Commissioner of the Western Duars District, but transferred to Darjeeling District 1866 which status remains so. The ceded areas of Sikkim (Darjeeling, Kurseong & Siliguri) comprises the three subdivisions of Darjeeling District to which is attached Kalimpong subdivision, a ceded area of Tamsanguri (Damsanguri) area of Dalingkote Dooars (11 Bengal Dooars) of 18 Bhutan Dooars.

As an aspect of the early history of these regions which are contained and administered along with its historical contents under the various worded descriptions of these areas as a matter of administrative reforms prior to 1950, described as backward areas, Backward Tracts 1870, Scheduled District 1874, Partially Excluded Area under Act of 1935 describing “Excluded & Partially Excluded Areas”. After the commencement of the Constitution 1950-52 the Partially Excluded Area was contained within the meaning of Para 4 of 1 of the Fifth Schedule, as directed by the President of India with an order to the Governor of the Stat of West Bengal to establish Tribes Advisory Council (TAC) which accordingly was formed during the period 1953-56. Which body as already related earlier was replaced by MLA & MP electoral constituency after West Bengal state was formed in 1956. In a sense TAC was withdrawn after the electorates were represented by the respective electoral constituencies within the four subdivisions.

With the addition of two new tribes in Darjeeling District the LImbus & Tamangs in 2003 and in reference to the population Census of Darjeeling District of 2011 the tribal population is now increased to 21.5% approx as compared to 12.68% Census 2001 it is surmised that once again TAC had been reintroduced by the Governor by Notification in 11 December 2013. This factor now raises the possibility that the next related consideration would feature the anticipation of Darjeeling District being considered as a Scheduled Area by the President under advice by the Governor of West Bengal. The implication of TAC and Scheduled Area in regard to Darjeeling District and the adjoining Dooars as per implication of Fifth Schedule has impacting legal consequences, as exemplified by application in the creation of three new states of Jharkhand, Chhattisgarh and Uttarkhand in 2000 AD. The key to state formation in the Fifth Schedule area is the determination of Scheduled Area as the primary reason, being the ultimate legal quotient guarantying the right to the demand of a new state formation as per democratic norm under the Constitution. The present change in the description of Darjeeling District implied by the introduction of the Gorkhaland Territorial Administration (GTA) in 2011 as an interim setup and now the establishment of TAC is an indication that the District would be identified as a Scheduled Area, with the possibility now the demand for a state comprising Darjeeling District and the Dooars areas would be legally binding on the Central govt. to process, determine and accordingly create the desired state/UT which ever constitutionally applicable.

However with the demand for Bodoland it is further estimated that there is a legal and constitutional palpability that the Bodoland area now under the BTC would by legal reckonings be included within the territorial boundaries of the state/UT expected to be formed out of Darjeeling District and the Dooars. In short there seems to be no doubt that the territories of the new state/UT would be legal aspects which require to be formed out of the ceded territories of the erstwhile Kingdom of Sikkim and the present Kingdom of Bhutan. It is indicated that this is a possible eventuality in consideration of the fact that the new Indo-Bhutan Treaty of 2008 is purely a friendship without the mention of the annual gratuity of Rs. 5 lakhs which monetary aspect had always indicated the attachment to Bhutan to Darjeeling District and the 18 Dooars. This seems to be now set aside by the new treaty. In the same vein, the unanimous resolution passed by the Sikkim Assembly in 2011 in relation to Darjeeling District demanding the Central govt. to create a new state out of the area, directly indicates, that the State of Sikkim too has legally detached its ceded areas from its geophysical territorial boundaries allowing the inhabitants of the region to practice their democratic rights in determining their future administrative setup within the political union of the Indian federation.

All that the long literature above is said to indicate to the readers, more precisely the statehood activists as well as the people of the State that the future state /UT is not a political aspiration but infact a constitutional guarantee provided for the people of this region to practice the democratic rights in ascertaining their right to self-determination within the parameters of the Indian Constitution.

Earlier this writer had been placing the same format but however determining the statehood area restricted only to Darjeeling District and the Dooars of Jalpaiguri District. However now realising the fact that the Bodoland statehood demand is a part6 and parcel of the statehood demand related to earlier meaning of Darjeeling District & adjoining Dooars would now have to be amended slightly in wording but very impactingly in terms of areas to be added, under the new name, Darjeeling District & the Dooars. Earlier the “adjoining Dooars” referred only to the Bengal Dooars (11 Western Dooars) whereas the new name consist of the addition of the 7 Assam Dooars (Eastern Dooars). The new name combines Darjeeling District with the entire territories of all the 18 Dooars.

This is a constitutional perception and should therefore be more nearer the truth of the law being implemented, and not a scheme of mind leashed by the state political game players who are trying all sorts of gimmicks to derail the constitutional writings on the wall – which is inevitable as well as undeniable. Therefore any measure of opposition by the state may delay the process of state formation, but eventually it is a losing battle for the state in any event. Whichever govt. rules in the Centre pre or post the 2014 Parliamentary elections i.e. the President of India (who presently is form Bengal) would have to abide by the Constitution to declare, just like Telangana (without the consent of the State Assembly) would have to direct Parliament to create the new State of Darjeeling & Dooars as probably the 30th and the last state to be formed as guaranteed by the Constitution of ndia.

Freelance writer Karma T. Pempahishey popularly known as Hillman the Analyst is writer of books on separate statehood and others.