GJM confirms Fifth Schedule roadmap to statehood.

Hillman the Analyst, KalimNews, Kalimpong: Just this day the writer was informed by a reliable source that at last, finally, the GJM is on track to the statehood demand as a sure eventuality, as assured by this writer in numerous discourses in literature (through the net), though restricted in exposure to vocal or visual communications. This is to reiterate once again that statehood demand (based on the agitations of GJM since 2007) is now proved in becoming true to reality (possibly within the time frame post forthcoming general elections) that the guarantee provided for the ‘hill people’ of Darjeeling District (Thakkar Sub Committee 1946-48 estd. by the Constituent Assembly Advisory Committee, related to the Excluded and partially Excluded Areas other than Assam) is documented evidence assuring the legal right of the people to demand internal self-determination (read State/UT, whichever as per the constitutional history of the area).

On that account it is surmised, in reference to the early history related to constitutional legality, it is more probable that the new state/UT which is finally created (by the Centre) would be a Union Territory in lieu of a state. This affair is totally guided by the Constitution based on conventional laws articulated in the Constitution itself (various Articles 1-4 in reference to new state formations supported by the prioritisation, invariably reflected in the provisions of the Fifth & Sixth Schedules). In support of this argument the reader is directed to refer to the context of the creation of the new state of Telangana, February 2014 which was created (though the substance of the legality is unknown even to the concerned, including the statehood demand activists) purely as a constitutional guarantee based on the provisions of the Fifth Schedule, particularly the legality of creating the new state is based on the fact that the defined area is already a Scheduled Area. In the Fifth Schedule the provisions safeguarding the interests of people of the region is contained in the components mentioned therein, i.e. the Fifth Schedule [Art.244(1)]:Provisions as to the administration and control of Scheduled Area & Scheduled Tribes.

It might be of interest to the reader to be informed that Part B ‘Administration & Control of Scheduled Areas and Scheduled Tribes’ is now in force in the State of West Bengal under direct order of the Governor instructing the Govt. to establish a body, under Rule 4(1) Tribes Advisory Council (TAC) of the Fifth Schedule. It was only estd. vide Govt. Notification No. 4139-BCW/3C(MC)-08/96(Pt.1 Duplicate)-the 10th 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 dept notification No. 1282 TW dated the 25 August 1953 (hereinafter referred to as the said rules).

This is a very powerful body, which is practically unknown to the public at large as well as the concerned demanding a state, that the state legislature henceforth are disabled from passing any law/act, unless and otherwise, the issue is approved by TAC. This affair is conducted in a manner in which the Governor of the State is appraised of the decision of the Legislature which account is referred by the Governor to TAC for the finality of their approval. In simple parlance it is translated to mean that no act of the legislature is to be signed by the state Governor without the prior approval of TAC. Infact TAC is a constitutional body guaranteeing the safeguard of the defined people by law, which in this case is the first safeguard of the Fifth Schedule.

It’s the provision of the Fifth Schedule on account of which the GTA is formed without requiring any constitutional amendment. The DGHC was created outside the provision of the Fifth Schedule and implying an aspect of the Sixth Schedule (which is only applicable to the Northeast States) which necessitated amendment of the Constitution to create the body Part IX The Panchayats Art.243M. 3(a&b) and Part IXA The Municipalities Art. 243ZC (2). These two bodies are clearly defined as being quite apart from the provisions of the Sixth Schedule implied by Panchayats 243M(1&2) and Municipalities 243ZC (1&3). This is much misunderstood by a section of the hill political units (GNLF & maybe others) in the belief that the creation of DGHC is a provision of the Sixth Schedule, which is just proved as untrue. This is evident by the fact that till date the Calcutta High Court which has given no clear verdict to the constitutionality of the creation of GTA, which is a legal body attested by the President who is above law and the judiciary. Therefore fomenting the Sixth Schedule aspects to Darjeeling District and the adjoining Dooars is entirely flawed to the core and whichever unit raises this imaginary idea is falsifying legal evidence. In other words, knowing full well that, already the Governor of West Bengal is imposed the Fifth Schedule (read TAC) particularly related to the inhabitants of the regions (Darjeeling Dist/Bengal & Assam Dooars) falls within the Fifth Schedule (though at this moment of time the Assam Dooars or Bodoland Territorial Council -BTC is within the Sixth Schedule in Assam).

It is therefore this writer’s personal perspective, based particularly on the line of thinking in the safeguard of areas provided by law (Fifth & Sixth Schedule), though at the moment, BTC in Assam (within the Sixth Schedule) seen as a temporary interim measure, would on account of legality, require to be attached with its original geographical area (Darjeeling Dist & the Bengal Dooars). It is this historical aspect which urges this writer to anticipate a situation wherein, taking all legality into consideration, the new state /UT (based on constitutional empowerments-formula) necessarily require to consolidate all the geographical areas (in West Bengal & Assam) into a legally composite body under the fashion of a title, say, state/UT of Darjeeling & Dooars. It requires to be emphasized that the word Dooars is common to West Bengal & Assam as a historical consequence of earlier times (sic.) the eighteen (18) Bhutanese Dooars. This is significant in attaching the importance of the new and last Indo Bhutanese treaty 2007 in which the annual gratuity amounting to Rs. 5 lakhs, paid by the Indian govt. to Bhutan (Treaty of Sinchula 1865) is seen as lapsed. This surmises, in relative terms, it is now possible for the acceded Bhutanese territories to be merged (Fifth Schedule) into the Indian Union. No doubt in finalizing this arrangement reference is also required to be attached to the Sikkim Assembly Resolution No 3 of 2011, which in no uncertain terms has demanded for the creation of a new state for the hill peoples (Darjeeling Dist – its former accede territory).Sikkim and Bhutan having given a clear chit to the Centre (India) for the amalgamation of the acceded territories formerly as a matter of international understanding. Therefore the picture is transparently clear that the long pending legal demand for the hill people (erstwhile Sikkim & Bhutan) to join the national mainstream of the Union of India, as a self determined administrative unit as - State/UT.

It was articulated in this writer’s preceding discourses that, the state/UT formation legal provision is presently pending before the August House of the Rajya Sabha in the form of a bill titled, ‘Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Bill 2013 -Third Ordinance (Bill No.LXVII of 2013) on 27 Nov 2013 in the Rajya Sabha’. Despite the Bill having been lapsed three times, no doubt influenced by political exigencies of the moment in reference to the coming 2014 Parliamentary elections. Both the ruling and the opposition parties are reluctant to pass the Bill anticipating adverse effects in West Bengal ,despite the fact, the contents of the Bill is endorsed by the Supreme Court of India and as Ordinances by the President, still requires legislative concurrence to become an Act , for implementing the law, and which finally will address the statehood demand, by converting the geographical area into a ‘Scheduled Area’ (Fifth Schedule) to comply with the constitutional provision in granting a new state within the Union.

In reference to the above constitutional history peculiar to Darjeeling Dist & the Dooars, it is this writer’s humble belief, in acknowledgment of the constitutional factors in play in reference to the statehood demand, notwithstanding its importance, the present political scenario considering the forthcoming Parliamentary elections, constitutes a jumble (in this writer’s eyes) of irrelevant factors. These are being raised under a cloud of development & progress agenda, which boogie is nationally highlighted by the future BJP Prime Ministerial candidate, Narendra Modi. Whatever maybe relevant at the national level, in terms of socio-economic and political aspirations of the people at large, the issue at hand related to the long standing demand for a state happens to be the one and only paramount reason for all political parties, no matter what colour of their hues, should contextually be the one pointed agenda. Whatever the candidates may assure and manifest their intention for the welfare of the people, at this moment of time (after six years of political agitation, loss of valuable lives preceded by the importance of damage to public property, economic setback and above all loss of time in public participation inclusive concerns). Infact the cultural setback impacting the civil society since the first GNLF agitation 1986-88 and the following years till the beginning of another GJM (2007 - ) agitation, a period of 27 years has been a critical period for all concerned. The history of which requires to be introspectively discussed to make a final bid for a new beginning, tuned more for peace, well being and security, more than development for the simple reason that without the former conditionalities, inclusive progress in the present space and time frame is well nigh unimaginable.

The MP election scenario in Darjeeling Constituency is glaringly impressive considering the candidature of bigwigs in the fray from the field of sports, academy and politics. Which for the first time in the history of this area, maybe rightly or wrongly, justifies the importance of the area, probably in déjà vu consideration anticipating the future reality to come – a state/UT. This imagination may not have originated without sufficient evidence of the state of affairs -to come. It is however doubtful whether the concerned candidates are in any way aware of the factual basis on which the foundation pillars are raised to construct the new state/UT.

While not intended to degrade the stature of any of the candidates personally, it however requires to be noted for the public information (without any ulterior intention in mind, in favour of or against) of SS Ahluwalia the BJP –MP candidate, who has to be felicitated, for lauding frankly and candidly in espousing the Fifth Schedule constitutional guarantee in expressing the legal right to their demand. During the same proceedings of the Parliamentary Standing Committee on Home Affairs ‘The Sixth Schedule to the Constitution (Amendment) Bill 2007 and the Constitution 107th Amendment Bill 2007’, SS Ahluwalia has even charged the Union Home Secretary, Madhukar Gupta, to ascertain the basis of the application of the Sixth Schedule erroneously applied to the Fifth Schedule, thereby “… you are changing the whole scheme of the Constitution …” speaks volumes of the person’s intellectual capacity. The discussion does not end there and instead is further proceeded on the same line on pages 246-354 of the Report, which maybe unnecessary to limit the space for print.

In the same report one might add the concern of the Chairman of the Standing Committee Smt. Sushma Swaraj, MP (BJP) having faulted the Home Secretary, Madhukar Gupta along the following quote, “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 Scheduled, you should have preferred the Fifth Schedule”. (Home Secy Madhukar Gupta responds). Smt Sushma Swaraj continues.

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, now you offered 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 of 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 Subash Ghisingh under the Fifth Schedule. This is what he is saying” (unquote).

Reading the above lines in between there is ample legal reference to point out that the statehood demand, holds enough water, constitutionally speaking, infact as a guarantee targeting the demand for a state by the concerned people of Darjeeling Dist & Dooars is ensured, and there is no power on earth which would upset that right. Infact the legality of the situation is so remarkably composed in the constitution that denying the right to a state, infact, is paradoxically unconstitutional. In simple parlance that the statehood (UT) is proven to be more sure to be undertaken, as early as possible can be delivered in the shortest time possible –pending the forthcoming 2014 elections.

Therefore the contention of this writer is that, whoever is elected as the next MP for the Darjeeling Parliamentary Constituency, has infact no direct importance to affect in any way the creation of a new State/UT as demanded by Bimal Gurung, President GJM, and on whose behalf the GTA was established by law (the President - the Fifth Schedule) as an interim arrangement till finally the area is determined as a Scheduled Area which in effect will provide the legal right in ensuring a State/UT.