Will GJM be able to revive Gorkhaland issue?

Hillman the Analyst, KalimNews, 12 march 2014: GJMM has made several contradictory statements on the creation of a separate state of Gorkhaland on several occasions, they differ in one way or the other.Here is an instance of The Statesman News 22 and 25 February 2014 reference to “GJMM to resort to persuasion” and “Will there be a renewed pitch for Gorkhaland”.

In the former the GJMM General Secretary Roshan Giri, while responding to the parliament clearing the Telangana Bill stated, a Morcha delegation will present to the Centre the statehood demand in consultation with the representative members. Accordingly it is now known that such a body had already left for Delhi by air, led by Roshan Giri on 26 Feb 2014. Corollary to the same column, what seems to be impliable is his further statement, which is perceived to be a premeditated turnaround, for some untold reasons or the other, that, “GJMM leadership will not launch a fresh agitation before the Lok Sabha elections” and instead, “will urge the Centre to look into the demand for a separate state”. leaders have made statements President Bimal Gurung and General Secretary Roshan Giri, had on stated that, “GJMM leadership will not launch a fresh agitation before the Lok Sabha elections” and instead, “will urge the Centre to look into the demand for a separate state”.

Reading the two statements conjointly there is an element of doubt, the GJMM leadership, probably after the fast track action by the administration in detaining the leading activists under various criminal charges, some of whom are still languishing in police custody, is the reason why the party seems to have bucked under pressure of politico administrative premeditative scheme. The ploy seems to have worked well for the political party in power which is perceived to be hell bent in pocketing in maximum number of MP seats in the upcoming 2014 Lok Sabha elections. The Trinamul Congress which is certain to bag more MP seats than the previous count, is certainly attempting to collect the Darjeeling District Constituency MP seat which forecast is already prevailing under the circumstances in which it is inducting many leading members of the GJMM to its fold. This is a signal loud and clear that under the political pressure of the State, the GJMM leadership itself is threatened by the scheme of events unleashed by the TMC/administration combined, thereby arm twisting the GJMM leadership which is speaking in most subdued tones from its former birth as the main opposition role – demanding Gorkhaland, construed to mean a new state in India, by bifurcating West Bengal under Article 3c “diminish the area of any State”. What is of great interest is the fact that the statehood demand in question comprises, not simply the three subdivisions of Darjeeling District as normally imagined in public perception and picturised as so by the news read item. This is untrue as well as an agenda created for the public image. The truth of the matter is that the GJMM demand for the new state comprises all the underlying areas of Darjeeling District and the adjoining Dooars areas of Jalpaiguri District. The two componential areas are specific to the statehood demand on account of the historical evolution of these areas wherein their safeguard are no doubt provided in the Constitution of India perceptually , the Fifth Schedule, Article 244(1) read with Article 253 (Legislation for giving effect to International Agreements). In recognising this constitutional factor it is therefore obvious both the areas under statehood demand are constitutionally declared areas and guaranteed with the legal right to justify the demand.

To address this issue in their historical context it requires to be deliberated and explained here both the Districts are within the provisions of the Fifth Schedule. Presently the measure of safeguard is only for the Scheduled Tribes, which are only of minority population and therefore, as such not scheduled at the moment for special consideration, i.e. not a Scheduled Area (larger population of Scheduled Tribes) the more impacting legal content of the Fifth Schedule allowing such determined areas with the legal right to self determination under Article 3c specific to demanding a state composing the areas of Darjeeling District and the adjoining Dooars areas of Jalpaiguri District, as mentioned earlier.

The empirical history of Darjeeling District is related to the construction of this administrative unit in 1866/67 comprising areas formerly belonged to the erstwhile Kingdom of Sikkim and accounted as acceded territory under various documented terms, during the period 1835, 1850, 1861 and during British India. Following which after independence in 1947 the legality was transferred under a new agreement documented Indo-Sikkim Treaty 1950. It is now interesting to refer that the Kingdom of Sikkim is now amalgamated as the 27th state of India. It is important to note now, that entire Sikkim Legislative Assembly (all 31 MLAs) passed a unanimous Resolution No 3 on 2011 demanding the Union Govt. to create a new state of Gorkhaland for the people of Darjeeling District. Interestingly one might note since the issue involved was genuinely a true event, there was no response from the West Bengal Govt. nor the political parties of the state in opposition to the statement.

In the same light, reference to the Dooars (Bengal Dooars) consists of the 11 Dooars of the original 18 Dooars acceded territories of the Kingdom of Bhutan (Treaty of Sinchula 1865/Proclamation regarding annexation of Duars 1866). Coincidently what is now presently the subdivision of Kalimpong in Darjeeling District originally formed eastern part of Dalingkote Dooars of Jalpaiguri Division, known as Tamsang (Damsanguri). Kalimpong area was notified as a subdivision under the Deputy Commissioner of the Western Dooars District but in 1866 was transferred to the District of Darjeeling established into an administrative unit in 1867.

Whereas the 7 Dooars of Assam already have constitutional recognition and safeguard under the Sixth Schedule as an autonomous (tribal body) in the name of Bodoland Territorial Council (BTC) in 2003.

In understanding of the above historical events related to Darjeeling District and adjoining Dooars (11 Bengal Dooars) of Jalpaiguri District now remains to be implied with the provisions of the Fifth Schedule (which was already ascertained during the period 1952-56 with a measure of safeguard under a Tribes Advisory Council -TAC). At the time of statehood conferred to the Province of West Bengal (under First Schedule / Art.1&4/ 14. West Bengal), it is quite clear in reference to the First Schedule that, “The territories which immediately before the commencement of this Constitution were either comprised in the Province of West Bengal, or were long administered as if they formed part of that Province in the territory of Chandernagore as defined in clause (c) of section 2 of the Chandernagore (Merger) Act, 1954, and also the territories specified in sub-section (1) of section 3 of the Bihar and West Bengal (Transfer of Territories) Act 1956”.

In order to understand the political history of Darjeeling District (nay, infact the history of North Bengal in general), the referred Act of 1956 is important to discuss and discover how West Bengal as a state was formed. Therefore to demand the bifurcation of Darjeeling & Dooars from West Bengal requires reference to the 1956 Act when North Bengal (the five Districts of Malda, North Dinajpur, Cooch Bihar, Jalpaiguri and Darjeeling) was strictly speaking under the purview of the Chief Commissionership 1870 and therefore implied the composite areas under a separate system of administration unlike rest of areas under the Province/State. This is further supported by the fact that the entire North Bengal was under restriction of foreigners entry by Bengal Eastern Frontier Regulation 1873 (also known as Inner Line) requiring a specific permit for entry. Interestingly under the same Inner Line regulation is still applied to few Northeast states (Arunachal Pradesh, Nagaland, Mizoram including Sikkim) even to Indian nationals notwithstanding foreigners. In North Bengal Districts this regulation was applicable till 1990 (and which withdrawal the reasons require to be enquired with the concerned authority by the proper representatives of the areas). Meghalaya and Manipur where the regulation was withdrawn (year unknown but certainly after the commencement of the Constitution 1952), the two states are now demanding reimposition of the regulation on realising that its withdrawal adversely affected the demographic population of the state wherein the immigrant/migrant population turned the natives into a minority status. Realising this downturn implying various aspects of socio-economic and political impactions adversely affecting the status of then population which is supposed to be safeguarded under the provisions of the Sixth Schedule (applied to the entire Northeast states) which prior to independence were incorporated in Assam under the Chief Commissionership. These consequences are directly related to the treatment of the North Bengal Districts within the provision of the Fifth Schedule. It might be of significance to realise that the North Bengal Districts were administered unlike the rest of the Indian Provinces as accounted by the fact that the areas under the Chief Commissionership were outside the purview of both Centre and State laws and legislatures and defined within Lords North’s Regulation Act of 1773. These areas under the Chief Commissionership were referred to as Non Regulated Areas. The real impact of this regulation was to declare in no uncertain terms that the Non Regulated areas were not defined within the British Indian Provinces.

As such these areas outside the purview of British India were constantly being paraphrased under various heads since the time of the areas were acceded and absorbed as backward areas, Backward Tracts 1870 (under Chief Commissionership), Scheduled Districts 1874, Excluded & Partially Excluded Areas 1935(E&PEA). In continuation of the same administrative system of these areas, after independence (1947), or more precisely, in the draft of the Constitution 1946-48 the E&PEA were incorporated in the provisions of the Sixth (Art244(2) &275(1) & Fifth Schedules (Art 244(1) respectively. In other words, the political background of these areas was intact with safeguards measures for their future undertakings in the evolution of parliamentary constitutional democracy. That is to infer that the demand for statehood for Darjeeling & Dooars as a composite area is qualified contextually and legally within the four walls of the Constitution – infact as a item guaranteed by it.

As far as the statehood demand for Darjeeling & Dooars is concerned, no doubt this is an eventual inevitability but there is a slight precedence to be followed to sustain its constitutional application, which is to mean, though statehood is a constitutional guarantee within the Fifth Schedule provided only that the area is scheduled in the Constitution. This event unfortunately is not applicable to the statehood determining areas, i.e. Darjeeling District and the contiguous Dooars areas of Darjeeling District. To determine the Schedule Area aspects of the Fifth Schedule, the Scheduled Tribes population of the said areas requires to be raised to a higher percentage to be conferred as scheduled. This instruction can only be effected by the President of India who is the sole authority in charge of the Fifth & Sixth Schedules.

With the inclusion of two new scheduled tribes Limbus and Tamangs in Sikkim (2002) and Darjeeling District, West Bengal (2003) as a result of which increment of ST population in both Sikkim and Darjeeling is substantial enough as per the publication of Census 2011 which is indicated to allow now for the President to take action in passing, the 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. As a matter of fact this is the third attempt which is still pending (as all political parties seem to have joined in support of West Bengal MPs in scuttling the Bill from being introduced at all, and possibly delaying its passage before the Parliamentary elections in 2014).

It is of interest to note that the Bill was first introduced in the Rajya Sabha on 14 Feb 2013 (Bill No.XII of 2013). The bill was placed in the House but under various objections from the opposition members, the Deputy Chairman P.J.Kurien, quote “would convey it to the Chairman (M.Hamid Ansari) to refer the Bill to a standing committee”. v The second Bill dated 24 June 2013 (Bill No.XIV of 2013) for some reason or another was not passed and the ordinance period probably expired and therefore required a fresh Ordinance for tabling it as a Bill in the last winter session of Parliament in 6 -22 December 2013. It is most unfortunate that the Bill still remains undelivered, which reasons is quite obvious that political manipulation by all MPs representing West Bengal state is behind the charade of allowing the Bill for passage. This concept is based on the fact that all the major political parties (all plains based) in the state are fully aware that once the Bill becomes an Act only then the statehood demand would be legally quantifiable. That is whenever the Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Bill 2013 is expected to be passed and become an Act, this will finally ensure the placement of the statehood demand in a legal and constitutional foundation.

This assumption is arrived from the fact that with the inclusion of the Limbus and Tamangs in the ST list the tribal population in Census 2011 in Darjeeling District is now raised to 21.5% (whereas in the three hill subdivisions stands at 31.4%). In earlier Census 2001 the ST population of Darjeeling District was 12.68%. The raised 2011 ST District population (21.5%) is indicative of converting the district as a Scheduled Area part of the Fifth Schedule entirely thereby conferring the constitutional legality to the statehood demand following the tradition of the democratic rights of the ST in the Fifth schedule. Since the Commencement of the Constitution in 1952, 11 states were formed including Punjab (1950), Andhra Pradesh (1953), Madhya Pradesh (1956), Rajasthan (1956), Lakshadweep(1956), Maharashtra(1960), Gujarat (1960), Lakshadweep (1956), Himachal Pradesh (1971), Chhattisgarh (2000), Uttarkhand (2000) and Jharkhand (2000). It is totally a wrong perspective that the Sixth Schedule in any way applies to rest of India as it is solely in context to Assam and the remaining six Northeast States. Therefore one can infer that the Sixth Schedule bogus raised, particularly as an agenda of the State machinery to deflect the right of Darjeeling District in the Fifth Schedule (being declared a Partially Excluded Area in the Act of 1935). In the Constitution it is indicated the Excluded Areas were included in the Sixth Schedule whereas the Partially Excluded Areas were in the Fifth Schedule as a legal convention.

That Darjeeling & Dooars will eventually be created into a new State or more so indicated as a Union Territory is certainly a reality and no way an imagination. That the truth of this substance is already realised by the State, and this was widely exposed in the last Rajya Sabha session when the Telangana statehood bill was being discussed and eventually passed. The conspicuous scene in this last session of Parliament was the act performed by the TMC MPs led by none other than, unfortunately, Derek O Brian and other TMC members displaying large sized placards, all printed with the message, that the Telangana Bill was “unconstitutional, illegal and not acceptable”. The placards were displayed while walking around the members speaking on the mike and blocking the view of the individuals from the addressing the Assembly so that the speakers were out of view of the camera particularly the TV unit broadcasting the session. Probably the motive was otherwise. That is, the main aim of the drama was to display in the TV camera that TMC MPs were exceptionally charged to the creation of Telangana. In other words, the idea was targeted to display to the TV viewers that the TMC members were totally against the creation of Telangana and which eventually triggers the state of Gorkhaland (subject to the passage of the Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Bill 2013. This Bill too infact is doubtless being manipulated by TMC in connivance with the other opposition members to stall the legal right of Darjeeling District and the Dooars and postpone the creation of a new State/UT being provided by law (Fifth Schedule of the Constitution) as discoursed above.

The TAC withdrawn in 1956 on account of Darjeeling District having a minority ST population less than 12.68% (2001 Census) whereas the Darjeeling District Census in 1951 (commencement of the Constitution) the ST population was 44,051 (9.89%) of the total population 4,45,260. In considering both ST population of Darjeeling District Census 1951 and 2001, the Census 2011 ST population is remarkably high at 21.5%. Based on the increase in ST population Darjeeling District, on basis of which, in anticipation of its legal consequence, the Governor of West Bengal has issued a Notification No. 4139-BCW/3C(MC)-08/96(Pt.1Duplicate)-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).

Amendments.

In the said rules, in rule 4,

In clause (A) in sub –clause (i) for the words, “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.”.

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”.

By order of the Governor,

Principal Secy, to the Govt. of West Bengal.

After 57 years (1956-2013) of deposition of TAC and one again its reimposition is a glaring instance that the Constitution of India is above law and not to mention politicians at all who are dictated by their own political constitution and agenda. The implication however of the TAC once again formed is a great indicator that the provision of the Fifth Schedule is actually in play, particularly the rise in ST population to 22.5% in Darjeeling District indicating with the quantum rise it is expected Darjeeling District will be declared a Scheduled Area. This is indirectly the effect which has directly affected the constitution of TAC in West Bengal to play its designated role in the future dispensation of Scheduled Tribes in the state and which is particularly related to the statehood demand composing Darjeeling District and the Dooars territorial areas. The power of TAC is sufficiently primed to act as a body even above the legislature in that the latter is not allowed to legislate any law without the prior consultation with the Governor of West Bengal who is liable to consult TAC before any Act of the legislature is notified by the Governor. No doubt now that TAC exists as a constitutional safeguard of the Fifth Schedule and particularly related to Darjeeling District as a Partially Excluded Area which translated into the Constitution under Art.244(1) is provided the legal grounds for demanding a state based on the democratic will of the hill peoples based on the legal right of the Scheduled Tribes of the District/s.

It is this writer’s humble contention, after having delved into the legality of state formations in India, and broken the legal code (that only those areas mentioned in the Fifth & Sixth Schedules are qualified to demand statehood/UT) others besides are not qualified at all to take up the issue. Now that Telangana is already decided as a 29th State of India, there is no question of a doubt in this writer’s mind that Darjeeling & Dooars would be the next state or more precisely a UT, and the last in the agenda, as far as the Constitution is concerned, till 2025 AD when the Constitution is eventually programmed to be overhauled.

Lastly, it is also ascertained till the 30th State/ UT of Darjeeling & Dooars is created, the Parliament will refrain from passing the mandatory Bill, declaring no new states will be formed till after the decadal Census 2021. Therefore the statehood demand watchers are advised to see that statehood is created before the mandatory Bill is passed.

In response to the second part of the topic all that this writer would say is that willy-nilly the Gorkhaland statehood demand will raise its head in one form or the other till the demand is finally concluded. After all the issue is legal based and would bear its fruit in time sooner or later, before or after the 2014 parliamentary elections.

Karma T.Pempahishey is a popular freelance writer on statehood known by the name Hillman the Analyst.