Tribal status relevant to Census 1931 than other criteria’s.

Hillman the Analyst, KalimNews, 30 December 2014: Apropos news items extracted from the Telegraph 20 December 2014 by Vivek Chhetri, “Morcha claims promise on ST tag” and the Statesman News Service, Darjeeling 19 December 2014, “Gorkha communities’ Delhi push for ST status” focus on the long pending demand of the “left out” hill communities still remain unlisted as Scheduled Tribes within the framework of the Constitution (sic) Article 342 and Notification/Order dated 06/9/1950 i.e. The Constitution (Scheduled Tribes) Order, 1950, applicable to West Bengal and 14 other states.

The Scheduled Castes and Scheduled Tribes Lists (Modification) Order 1956 read “In pursuance of section 41 of the States Re-Organisation Act 1956 (37 of 1956) and section 14 of the Bihar and West Bengal (Transfer of Territories) Act 1956 (40 of 1956) the President hereby makes the following Order …”. Wherein 3.(1). (Scheduled Tribes) Order 1950 modified as specified in Schedule III. 3(2). (Scheduled Tribes) Part C (States) Order modified as specified in Schedule IV. In 9.PART VIII-West Bengal is mentioned 19 categories of STs including 1. Bhutia including Sherpa, Toto, Dukpa, Kagatay, Tibetan and Yolmo; 8. Lepcha. During this period West Bengal was under rule 4 of the Fifth Schedule under the Tribes Advisory Council (TAC). West Bengal in the Fifth Schedule under TAC (1952-56) was converted into a State (1 day of November 1956) as detailed above.

This order is important in realising the concept of the distinct identity of the indigenous people seems to have been recognized in context to the United Nations charter related directly to the ethnological concept of new nation building founded on the grounds of the national minority population (autochthones/adhivasi) or in the Constitution as Scheduled Tribes. In common parlance this is translated in national and international understanding, as the rights of the indigenous people to demand internal and external self- determination depending on any or other existing factors related to ethics and law. The criteria in identifying such targeted section of the population as indigenous is the concern of experts on the field of anthropology, sociology, as well as their relation to land, culture, habit, language, religion, economy, sociology, etc. Within the framework of our understanding the following bodies were established to determine their recognition by law as STs. 1.Dhabar Commission (1961); 2.The Lukur Committee (1965) 3.Anthropological Survey of India (ASI) Kolkata; 4. Registrar General of India (RGI); 5.National Commission for Scheduled Tribes; 6.Tribal Research Institutes (TRI) (States).

In the first para of West Bengal becoming a state but at the elimination of TAC which symbolism (indigenous people) had safeguarded the interests of the hill tribes since historical times beginning 1773 (backward area), 1870 (Backward Tract), 1874 (Scheduled Districts/Local Laws Extent Act), 1915-19 (Backward Tracts); 1935 (Excluded & Partially Excluded Areas), 1952-56 (TAC, West Bengal under Fifth Schedule) and 10 December 2013 (TAC under West Bengal). The reintroduction of TAC in 2013 is believed to have recalled back to its original identity (indigenous people) i.e. the ST population of Darjeeling District Census 2001 was 12.68% (Darjeeling District ST population 2,04,167 against District population 16,09,172). The same table computed in Census 2011 is now raised to 21.52% (District ST population 3,97,389 against District population 18,46,823) an increase of 8.84% in ST population in District.

It might be considerate to take into account the above calculation (Census 2001) Darjeeling District based on two available sets of figures accounting the ST population of Darjeeling hills only (Darjeeling, Kurseong, Kalimpong - the GTA areas) i.e. block wise ST population 64,272 (Pulbazar, Rangliot, Kalimpong, Gorubathan, Jorebunglow Sukhiapokhri, Mirik, Kurseong) and another figure elsewhere the total ST population 92,468 (Bhutia & Lepcha 60,091 + 32,377). Therefore the ST percentage of the two figures stands at 3.99% or 5.75% respectively against the backdrop of District population 16,09,172.

Whereas the District ST population is mentioned at 12.68%* including the hills & plains STs. (*District ST population 2,04,167 against District population 16,09,172).

The difference in shortfall between the latter and former arises on account of figures obtained of block wise total ST population 64,272 (hills) and block wise 1,16,240 (plains), which both combined Darjeeling District ST population figures 1,80,512. Whereas in actual total is given as 2,04,167 accounting a shortfall of 23,655(?). This is explained below as per Census 2001.

Darjeeling hills ST population raised to (a) 31.48% based on Darjeeling hills ST population 64,272 (Darjeeling District ST population 2,04,167). Another figure taking Darjeeling hills ST population at 92,468 (Darjeeling District ST population 2,04,167) raises ST population in Darjeeling hills to (b)45.29%.

Darjeeling District ST population in Census 2011 stands at 3,97,389 against District population 18,46,823 showing 21.52% an increment of 8.84% against the backdrop of District ST population 12.68% in District Census 2001. Considering ST population Darjeeling hills 31.48%(Census 2001) with an increment of 8.84% (Census 2011) the total ST population in Darjeeling hills is estimated at 40.32%.

The above discourse is intended on purpose purely on the ground to focus on the idea that with the incorporation of the two hill communities Limbu (Subba) and Tamang listed as Scheduled Tribes (Art.342) in Census 2011 is impacting in raising the ST population in Darjeeling District (a)31.48% or (b) 45.29% whichever figure applicable. The importance in the rise of the ST population has a direct impact on the Constitution of India in declaring their political rights framed within various articulations and peculiar to Darjeeling District also as a Partially Excluded Area which contents are now preserved within Arts.244(1) & 275(1), 81, 82,170, 330,332, 339, 370, 392 on account of Arts.342 & 366. It is on account of these inflicting articulated constitutional provisions which is binding the hill peoples of Darjeeling District within the framework of the Indian Constitution under the Fifth Schedule preserves. The provision of the Fifth Schedule was first applied to West Bengal at the commencement of the Constitution of India during 1952-56 with the establishment of a Tribes Advisory Council (TAC) in which Darjeeling District was duly represented by an elected ST member from a reserved ST MLA constituency (Phansidewa) by late T.W.Wangdi from Darjeeling and nominated member Ms. Sabitri Devi Lepcha from Kurseong. Mrs. David Mohan Sinha (David Bauni) represented in the local body.

This is just mentioned by the way in recording that TAC did exist. How come this defining body vanished after 1956 the year West Bengal (State) was born, converted from a Province to a State incorporated in the Constitution in the “First Schedule (Arts.1&4): Name.14.West Bengal … as if … Province in the territory of Chandernagore … also subsection (1) of section 3 of the Bihar & West Bengal (Transfer of Territories) Act 1956”. In a sense, literally speaking, TAC an aspect of the Fifth Schedule (itself originated in recognising that Darjeeling District was a Partially Excluded Area [PEA] in the Act of 1935/Order 1936). The answer to the question as to where TAC disappeared lies in the contents of TAC and the fact Chandernagore (French colony) both of whose soul combined to create the physical administrative unit of West Bengal State. This brings one to the conclusion that possibly, had TAC not existed on account of PEA it is inconceivable West Bengal as a State could have existed at all. And if it did exist only South Bengal (on account of Chandernagore) is perceived. North Bengal including the five Districts of Darjeeling, Jalpaiguri, Cooch Bihar, Malda and West Dinajpur wherein entry of all foreigners into these areas were restricted as per the Inner Line Permit (ILP) regime under the Bengal Eastern Frontier Regulation (BEFR) 1873till 1990.

The Regulation seemed to have been amended from time to time till 1990 when it was “excluded from the purview of foreigners” (Restricted Area) Order 1963 commonly referred to as Restricted Area Permit (RAP). It is a matter of enquiry to search the period of time when the commonly known ILP was actually withdrawn. This is important particularly given the fact RAP was a separate and distinct permit only issued at the office of the Superintendent of Police, Darjeeling whereas, the ILP was obtained through the Deputy Commissioner, Darjeeling, Ministry of Foreign Affairs, New Delhi and Indian Embassies around the world. The ILP was applicable for the general entry of foreigners into the five North Bengal Districts and the RAP as the name suggests was restrictively applied for entry into certain areas amongst which Kalimpong subdivision in Darjeeling District and Dzongu in Sikkim (North District) where it is still applicable including the ILP application to Sikkim. In Sikkim the RAP is synonymous with Protected Area Permit (PAP).

Incidentally the above ILP and RAP foreigners’ entry permit regime when applicable to the North Bengal Districts till 1990 was applicable to all categories of foreign nationals. The implications of the Indo-Nepal Treaty of 1950 wherein the nationals of both the signatory countries were allowed, on reciprocal basis, free entry to either country, notwithstanding which however, Nepalese nationals too required the ILP/RAP entry permits to enter North Bengal Districts and many of the Northeast States wherein the regime still exists in some of the states.

The above entry permit regime declares the areas covered within the system convey a message that these defined areas were under distinct administrative setups outside British India. Under the reforms by the Simon Commission 1930-32 and as a result of the meetings of the Round Table Conferences resulted in the Govt. of India Act 1935 which later infact formed the basis of the Federation of India inter alia the Constitution of India 1946-1948/49. These constitutional events are the forerunners of Darjeeling District being termed as PEA in the Act of 1935/Order 1936 which annexure details 8 Excluded Areas and 28 Partially Excluded Areas including Darjeeling District amongst one. Therefore the right of Darjeeling District to demand a State/UT is an inalienable legal right preserved within the Constitution of India under provision of the Fifth Schedule. This aspect has already been formally discussed in earlier chapters. Having eyed at the constitutional history of Darjeeling District as an administrative area established in 1867 by the British by extracting Dalingkote Dooars from the 18 Dooars to form present day Kalimpong subdivision with the three areas of Darjeeling, Kurseong and Siliguri to form the present District comprising the four subdivisions to form a unit as a Sikkimese area. Later this area became to known as Sikkimese Darjeeling as acceded territory, after 1858 as Crown colony. This resulted in considering the geopolitical division of Darjeeling District as PEA in the Act of 1935 & Order 1936.

By virtue of this understanding the inhabitants of Darjeeling District are truly speaking Sikkimese in origin as per national and international understanding and so conscripted in the Constitution under the Fifth Schedule. But the inhabitants are recognised per se the Constitution as Scheduled Tribes under Arts 342 & 366 No.1 (25), accordingly their identities framed within the Art.244(1) -Fifth Schedule in respect of Darjeeling District along with the other 35 such designated areas which all have accounted for creating 13 new states (including Telangana on as recent as 2013). The only one remaining now is Darjeeling District which has been delayed on account of political level conflicts at the District, State and Centre levels. Despite which the demand will be completed in due time after the District is identified as a Scheduled Area on account of the listing of two new tribes Limbu and Tamang in 2002/03 in Sikkim and West Bengal. Once their electoral political rights as guaranteed by the Constitution Arts. 80, 82, 170, 330,332 by delimitation of reserved MP & MLA constituencies it would, ipso facto convert Darjeeling District presumably into a UT if not a state.

The question of the Bengal Dooars (11 Bhutanese Dooars) whereas the Assam (7 Dooars) is now already formed into an administrative unit of Bodoland Territorial Council (BTC) 2003 under Sixth Schedule. Likewise the constitutional understanding of the Bengal Dooars is that it might likely be merged with BTC under Sixth Schedule and unlikely with Darjeeling District as a UT. It is for certain that Darjeeling District will be separate from West Bengal in the very near future to which there is no doubt, with or without listing new ST communities. This is understood by the fact that already in December 2013 the Governor has already reestablished the provision of the Fifth Schedule by reintroducing Tribes Advisory Council (TAC) which is the first part before defining the area as ‘scheduled’ after which the area legally qualifies in asserting its identity, a UT or State if you will whichever applicable constitutionally. Therefore the question of demanding new list of STs out of the existing hill communities is a great idea in context but the question is whether this will be formalised is a question of accepting reality in a futuristic aspect. If at all the demand for new STs is to be placed on historical grounds, the ideal option is to refer to Census 1931 and begin the explanation thereafter till the publication of No. 1. The Constitution Scheduled Tribes Order 1950 (6.9.1950) relevant to West Bengal and No. 8. The Constitution (Sikkim) Scheduled Tribes Order 1976 (22.6.1976). These two Orders require to me amended in order to include the new list of STs as demanded. One might note accordingly when the Limbu & Tamang were listed as ST during 2002/03 the aforesaid two Orders were accordingly amended in including the two communities as STs in No. 39 Limbu (Subba), No. 40. Tamang.

However whether the demand for new ST bears fruit or not is another aspect but it is now almost certain that the statehood demand is already on the anvil purported by the establishment of the Fifth Schedule in 2013. It is not too late to realise that the demand for ST list is considered now delayed particularly considering that such undertakings are normally endeavoured before the decadal Census undertakings. Whereas since Census 2011 has already been published itself is an indication that listing new tribes is now considered not only late but inappropriate for application in any matter. Anyway if at all the list is accepted and fructifies into reality it will all the good and better for the people when Darjeeling District is finally separated from West Bengal. After all, achieving this end is more important at this point of time than flurrying over other issues which may seem more as hurdles than otherwise.

Karma T.Pempahishey author of Roadmap to Gorkhaland is the Hillman – The Analyst.