Tamang murder case

Hillman The Analyst, KalimNews, 2 June 2015: ‘Tamang murder case: CBI names Gurung, GJMM Brass’ read with Telegraph Siliguri 30 May 2015 apropos Statesman news service Kolkata 29 May 2015 .

‘Tamang charges on Morcha’ is an ominous astral figuration which bodes ill all around the top echelons of the political unit agitating for a statehood demand, rightly or wrongly, under the title of Gorkhaland. 

The impact of the IPC charges seems to fall squarely on the prominent executives of the party which was established primarily with the intention of planking the statehood demand. The stress therefore is targeted not only on the individual players charge sheeted but has a direct consequence in delaying the overall statehood demand to the great satisfaction of the State which was already gasping under the immediate threat of the constitutional implications of the implementation of sub para 3 of rule 4 of the Fifth Schedule [Art. 244 (1)] …. the establishment of a Tribes Advisory Council (TAC) West Bengal. 

It is important as a perception to note that the Chief Minister of the State is the ex-officio Chairman and besides senior govt. officials as members others included are the twelve elected Scheduled Tribes members from reserved electoral constituencies. This body TAC, is significant in imparting the idea that West Bengal since 6 March 2012 is under the provision of the Fifth Schedule though without the significant and legal rights provided for Scheduled Area [Art. 366(23)], which for the moment is unapplied, but there is no question of doubt in interpreting that the Scheduled Area implication seems already on the anvil lying as a Bill in both houses of Parliament since February 2013. The legal impact of this Bill initially instructed by the Supreme Court to the Ministry of Law & Justice and thereafter converted into a Presidential Ordinance signifies the weightage is out of the constitutional writ contained within Arts. 82,170, 330, 332 on basis of which the Bill is presented under the title ‘The Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies’.

It is the belief of this narrator, that the passage of the above Bill will directly impact provision of the Fifth Schedule by considering declaration of the GTA territorial boundaries as Scheduled Area. It is the provisions of this legal beneficence i.e. the area professed to be compactly populated by Scheduled Tribes and in continuity of its members to the adjoining areas is the primary contention, besides three other requisites, provided by the Dhebar Commission 1961. In short, in constitutional interpretation once an area is scheduled this legality provides the inhabitants of the area the right to internal self administration. This in a way is already effective under the GTA however under the State. Whereas once the area is scheduled the general laws of central and state administration are inapplicable and therefore the area is guaranteed administration under the President (Art. 339 read with Art.342).

It is well recorded in interpreting that the Fifth Schedule provision has triggered the maximum number of new state formations after the State Reorganization Commission (SRC) estd. 1956 read with Art. 3 providing President the power to create new states with or without the sanction of the state but notifying the same for due consideration. The Presidential notification in this regard is simply observing parliamentary law under democracy, by repealing the Absorbed Areas (Laws) Act 1954 and in effect the area provided administration directly under Presidential, read under the Governor’s rule. It is recorded that out of the 20 states/UTs, 16 were formed out of the context to the Scheduled Area aspects of the Fifth Schedule (Partially Excluded Areas other than Assam) and in context to the delimitation of electoral constituencies for STs in relation to certain areas within the respective states under the Absorbed Area (Laws) Act 1954. The remaining 4 states formed out of Sixth Schedule (Excluded Areas of Assam).

Darjeeling District in West Bengal state is now under the Fifth Schedule since 2012. The last time West Bengal was in the Fifth Schedule was immediately after the commencement of the Constitution in 1952-56. During this period the SRC was commissioned under the 7th Amendment Act 1956 allowing new state formations out of Provincial transferred territories into new states and UTs as per the reckoning of 36 Excluded and Partially Excluded Areas defined in the Act of 1935 and the areas mentioned in the Order of 1936. Out of the 36, 28 were Partially Excluded Areas and 8 Excluded Areas. Therefore it can be reliably asserted that the legal right to state formation is specifically applicable to areas within the list of 36 area/s listed as above. Darjeeling District is already listed as a Partially Excluded Area, and probably the last of the 36 to be legally provided right to internal self determination as a state/UT as a union in the federation of India. This having been understood there is no doubt tremendous amount of political maneuvering, front and back stage, by all the major political parties involved in West Bengal. All trying their utmost best to deter the right of the people of Darjeeling District (and possibly Dooars presently named Alipur District of West Bengal) to carve a new State/UT jointly or individual whichever legally applicable.

The present legal implication of booking eminent members of the party, GJM, formed for the sole purpose of demanding Gorkhaland or a state if you will, is now under perceived imminent threat of legal action alleging criminal act in the murder of AIGL President Madan Tamang. The charge serious as it maybe however after a lapse of four years has a shade of political motivation in creating a threat perception and implied fear psychosis, possibly attempting to deflect the statehood agitation, and possibly delay the entire legal provisions of state formation to a further period as long as possible, but certainly not before the coming legislative elections in 2016 in West Bengal.

It would be interesting to know how the GJM as a whole will react to the present situation. Besides defending in the court of law the party is practically facing a wall perspectively. Further choice of action is limited for participation to members charged. The best and only route open to carry the existence of the party forward is to come out with the only card available, the best and legal choice to demand a state after repeal of the Absorbed Area (Laws) Act 1954 and since West Bengal is already within the Fifth Schedule, demand the Scheduled Area application to GTA (within Darjeeling District). As a matter of fact it should be harkened to note all aspiring for statehood that the content of Scheduled Area is already pending before both houses of Parliament in the aforesaid Bill.

The GJM leadership is also advised to seek cooperation from all concerned persons, associations, NGOs, social organisations irrespective of caste, creed, race and groups to carry the statehood agitation further under a focal organisation or a forum purely to assert the statehood demand. While reading the Fifth & Sixth Schedules chapters in the Constitution of India it is specifically mentioned that while asserting the rights within the two Schedules, while including all members of public to participate in the demand it is also mentioned, that no political parties should be involved while placing the legal demand. This context probably seems closer to truth than otherwise for the simple reason that including political parties seems arguably inflicting conflict of interest between two organisations both having their own constitutions. The legal right to statehood demand concerns the public at large within the context of the larger framework of law provided by the Constitution. It is now upto the GJM think tank to come to the public with a free agenda of the statehood demand as provided by law expressed in no fewer words and detailed as above.

Karma T.Pempahishey , the writer is the Hillman- The Analyst.