Full and Final Consensus- Morcha sources

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Thursday, 14 July 2011 13:16

Written by Hillman- the analyst

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“Full and Final Consensus- Morcha sources”

Apropos The Telegraph 13 July 2011, heading, “Full and Final Consensus” by Vivek Chhetri explains the GTA agreement between the State and the Morcha figures like the rerun of the 23.08.1988 Memorandum of Settlement, in which pursuant “GNLF agreed to drop the demand for a separate state of Gorkhaland and an Autonomous Hill Council viz Darjeeling Gorkha Hill Council (DGHC) was set up under the Darjeeling Gorkha Hill Council Act 1988, notified by the Govt. of West Bengal on 15.10.1988”.  After 19 years of rule (1988-2007) at the cost of immense damage to the growth of the people, and possibly sadder but wiser – DGHC was not the constitutional guarantee afforded to the hill people of Darjeeling, attempt was made to rewrite the wrong by replacing DGHC by accepting a new Council-Gorkha Hill Council Darjeeling (GHCD) under the constitutional guarantee of the VI Schedule  inappropriately, however, as Darjeeling District falls within the provisions of the V Schedule and therefore unconstitutionally null and void). This MOS was belatedly though inappropriate was signed on 6 Dec 2005, “ is a full and final settlement of the Darjeeling hill areas issue and no further demand in this regard will be entertained”. The stillborn GHCD (Constitutionally) null and void was aborted by the concluding proceedings of the Parliamentary Standing Committee on Home Affairs chaired by Sushma Swaraj on the Sixth Schedule to the Constitution (Amendment) Bill, 2007 and the Constitution (One Hundred and Seventh Amendment) Bill, 2007 remains stillborn and undelivered in the womb of the Rajya Sabha – however in a state of suspended animation, whether intending revival or terminating it in euthanasia is a debatable issue for the hill people, nay the citizens of India.

The idea of relating the above constitutional history of Darjeeling hill people is important at this juncture of time before the final signing of the Kolkata bipartite agreement in the forthcoming tripartite meeting, it is of utmost and critical importance, in order to safeguard the constitutional guarantee of the hill people – Gorkhaland or whatever it maybe called later after the final delivery, to include GTA is accepted provided (1) in pursuance of the Gorkhaland (state) demand or (2).under provision of Partially Excluded Area  (3). Under the V Schedule. Inclusion of any one of the three would in effect protect the constitutional safeguard of the hill people legally forever.

There is still time for the above amendment to be made to the Draft bipartite agreement before the signatures are inked in the final Tripartite meeting.  After all it requires to be remembered the mandate in the last Assembly Elections recently held in 2011 was for a one point agenda – Gorkhaland presumed a state within the Union of India. Hence to preserve the constitutionally guaranteed identity of the hill people of Darjeeling, any of the above three amendments will suitably protect the interest of Darjeeling District (emphasized strictly to the four subdivisions) and the Dooars Terai (Jalpaiguri District).    


Legality of Telangana and Gorkhaland becoming states.

 Apropos Telegraph 12 July 2011 “Formation of Darjeeling Dooars Peoples Forum” (DDPF) having established the named apolitical body is probably the best idea conceived and befitting for the time, but organizing  such bodies, as experimented elsewhere, has been recommended as suitable for purposes of democratically placing the constitutionality of the demand. It has been voiced more than often times in these very pages new state formations in India, as well as anywhere else in the world, is reserved as a right for the indigenous people of the applicable area. In the Constitution of India, besides some areas (36 Excluded and Partially Excluded Areas) the hill people of Darjeeling District is one among the 36 legally (Article 244 (1)- V Schedule )guaranteed areas to demand becoming a state (integrate into the  Union of India) after promulgation of the Constitution becoming effective  on 26 January 1950, since which time the working of the Constituent Assembly responsible for drafting the Constitution ceased to exist, and transformed itself into becoming the new Parliament constituted in 1952. This is simply to explain within the original 395 Articles (presently 446) which safeguard the legal right of every citizen of India by law.

Inferred from this information, the interpretation of Article 244 (1) - Fifth Schedule contains the knowledge that the ‘hill people’ of Darjeeling District referred by the Constituent Assembly commissioned Advisory Committee’s  A.V.Thakkar Sub Committee 1947 “Excluded and Partially Excluded Areas (other than Assam)”, wherein the safeguard measure for the “hill people” of Darjeeling as an administrative unit phrased by “Partially Excluded Area” (PEA) provided by the Govt. of India Act “Excluded and Partially Excluded Areas” 1935 and Order 1936, was extended into the provisions of the V Schedule in the Constitution of India.

In order to bring about the transparency in conceptualizing the process of new state formation, although a very intricate program is a subject matter of experts in the field only. Referring to the popular book available on the subject, The Constitution of India (11 Ed.) 2011 by P.M.Bakshi alone will not be complete without reading deeply into the background – the Constituent Assembly debates 1946-48, the precursor of the draft reports, forming the basis of the matter constructing the Constitution of India. In reality it is discovered, even legal brainchild’s’ find it difficult to wrench apart the nut from the bolt, to relate the various aspects of the Articles to the 12 Schedules, which is considered most pertinent to understand in the process of state formation, Articles 2,3 & 4 which ever applicable to the situation.

To the uninitiated reading the words of the Constitution itself is a harrowing experience to the ordinary lot of practicing legal experts – as the matter is rarely attended to, due to its rarity in use, although it is a very important subject. This being the general perception, legally targeting a new state formation, on basis of precedental cases, requires an all round coordinated effort, applying the use of the particular Article/Articles to the story of the people of E&PEA (sic. Article 244(1&2) –Fifth Schedule) which requires to be democratically expressed (Tripartite talks), for the President to instruct Parliament to form the State Reorganisation Committee (SRC). This more or less seems to be the legal process in order to demand a state.

Telangana is a different cup of tea and holds water constitutionally but more peripherally as a matter of international understanding. To cut a long story short – Telangana has all guarantees with implications to legally become a state very soon.

The constitutionally recommended practice of state formation process is normally undertaken after the decadal Census publication every 10 years only. After completion of this program it is generally understood the Parliament will amend the Constitution to bar application for state formation till the publication of the next successive decadal Census, but the Amendment is worded in such a way, it is read to be realised no new states can emerge till 2026 AD. 

Simply explained, both Houses of Parliament will be revamped (creation of space) – increasing the present number of seats to accommodate the representatives of both Houses of Parliament in accordance with the population in 2026 AD.

The above constitutional picture is painted to allow new state formation seekers particularly the one and only prevailing issue in West Bengal. The Gorkhaland issue being a controversial contention is possible within the state only. Whereas the legality of statehood for the “hill people” of Darjeeling is already provided in the V Schedule whose fiscal budget is guaranteed by Article 275 (1&2).

The distinct political identity of the hill people for which the guaranteed safeguard provides is contained in the meaning of the Govt. of India Absorbed Area (Laws) Act 1954 which describes Darjeeling District as a Partially Excluded Area was transferred for the administrative management only to the State of West Bengal within the provisions of the Fifth Schedule. Technically speaking, Darjeeling District is only temporarily merged with the state of West Bengal within the provision of V Schedule. All areas in India under the provision of the V & VI Schedules are under the President of India and perceptually not within the territory of the state who is managing the administration. Therefore it is a total misconception of the people of the state to allege the right to demand a state tantamount to division of the state territory. This misunderstanding is causing immense damage to the psychic of the people on either side of the board and unnecessarily fanning pervasive ideas and eluding the truth. It is only proper and fair the state, now under intellectual dispensations requires addressing this problem once and for all so that divisive elements are disabled from interpreting the constitutionality of the demand otherwise.     
       
It is therefore most relevant to mention this in the first paragraph of the petition before submission. In the constitutional roadmap of state formation, demand for Gorkhaland at this moment of time seems an aberration, and unacceptable within the provision of the V Schedule. However, if in the new Census 2011Gorkhas  are listed as Scheduled Tribes this would complete the second criteria of the V Schedule  - Scheduled Area, which can infact help the ‘hill people’ and the constellation of ‘Gorkha’ new Scheduled Tribes combined, in legally demanding maybe even Gorkhaland. Hence at this moment Gorkhaland is possible within the state only.  

The present contemplated setup Gorkhaland Territorial Administration (GAT) has the face of the provisions of the [PESA] Panchayats (Extension to the Scheduled Areas) Act 1996 (No. 40 of 1996). This was particularly formulated for V Schedule –Scheduled District Areas as an extension of Part IX (Article 243) of the Constitution. This is a perception in noting that “GTA would be above the Zilla Parishad. it will also supervise the functioning of the Zilla Parishad”. If PESA seems to be implied then out of constitutional constraints Scheduled Area (to list new members of Scheduled Tribes) requires to be effected before election to GTA.

If this perception inclines to be authentic then, whether ignorantly or wisely, the hill peoples legal right is seemingly further marginalised to a point of its extinction in recognitition of the fact Darjeeling District will become and a part of West Bengal permanently, seen as legally repealing the Govt. of India Absorbed Area (Laws) Act 1954 – the Absorbed Areas of Sikkim and Bhutan constituting Darjeeling District, democratically applying for amalgamation with West Bengal in the Union of India . This is observed because only in 2011 the Sikkim Legislative Assembly passed a Resolution No. 3 demanding a state for the people of Darjeeling, this combined with the new Indo-Bhutan treaty 2007 wherein Rs. 5 lakhs annual gratuity is seen to be omitted, inferring in international understanding, the non acceptance of the annual gratuity is seen as a resolution guaranteeing Darjeeling District (Kalimpong and the 11 Dooars included) to demand a state in India.

With all these constitutional and international understanding perceived, the question to be asked at this moment of time is whether the hill people of Darjeeling District generally wishes to remain within the State or as frequently demanded since time immemorial has demanded a separate administrative unit outside it by demanding a separate state within the Union of India.This is a subject which requires a seminal discussion.             
  
This seems to be the reckoning of the program being followed by the GJM representatives, perceptually.  Which if misplaced otherwise the there is a reasonable possibility the hill people will (a). wait till the next Census 2021 and (b). there is an element of constitutional interpretation of Article 1(3c ) implied to Article 3 (a or b whichever applicable) which may allow if confirmed by the MLAs and MP (democratically) to apply for permanent merger into the state, Constitutionally but seemingly unconstitutional. The reality is at hand and very soon to come about. The thrill is in the anxious wait.

The Darjeeling Dooars Peoples Forum (DDPF) is urged to read the above thoroughly before needlessly citing the cases of Meghalaya –PEA (VI Schedule)-1972; Tripura- CAA, UT (VI Schedule)-1972; Arunachal Pradesh – EA-UT (VI Schedule) -198; Mizoram –EA, UT-Sixth Schedule (1987); This is for information to DDPF.

However here is more additional information regarding all the news states emerging out of the provisions of the Fifth Schedule incorporating Scheduled Area and Absorbed Areas.

Attach :  State formation (1 pg).
 

GENERAL INFORMATION ON LEGAL ASPECTS OF STATE FORMATION.

Prior to independence: [Provinces: 15; Princely States: 562; EA 8 & PEA 28 = (36)]
              8 States on Independence + 20 States + 7 Union Territories (UT):

            Note: (1). 13 States and 7 Union Territories were created out of EA /PEA/CAA /UT 
                      (2). 15 States created out of provisions of V Schedule (10 states) & VI Schedule (5 states) 
                      (3). Darjeeling District is a Partially Excluded Area (PEA) - STATE – WHEN ???
                                          
                [1].   8 - 1947.
                [2].   7 - UT
                [3].   2 - (Perceived foreign States- Manipur & Tripura)
                [4].   1 - Sikkim
                [5]. 12 - EA&PEA.
                [6].   2 - V Schedule (AP & Rajasthan)
/               [7].   1 - VI Schedule (Assam)
 [8]    2 - Kerala(SC /ST) + Haryana (SC)    

                      35   Total
 

GENERAL INFORMATION ON LEGAL ASPECTS OF STATE FORMATION.

Prior to independence: [Provinces: 15; Princely States: 562; EA 8 & PEA 28 = (36)]
              8 States on Independence + 20 States + 7 Union Territories (UT):

            Note: (1). 13 States and 7 Union Territories were created out of EA /PEA/CAA /UT 
                      (2). 15 States created out of provisions of V Schedule (10 states) & VI Schedule (5 states) 
                      (3). Darjeeling District is a Partially Excluded Area (PEA) - STATE – WHEN ???
                                          
                [1].   8 - 1947.
                [2].   7 - UT
                [3].   2 - (Perceived foreign States- Manipur & Tripura)
                [4].   1 - Sikkim
                [5]. 12 - EA&PEA.
                [6].   2 - V Schedule (AP & Rajasthan)
/               [7].   1 - VI Schedule (Assam)
 [8]    2 - Kerala(SC /ST) + Haryana (SC)    

                      35   Total
 

Comments  

 

+1 #2 ram 2011-10-19 13:40

our GJM leaders who are currently claiming to be the boss in hills are not sure about their own demand. Is BG really fighting for Gorkhland , if so then why GTA was signed and he put a speed breaker in our demand. GTA is nothing my brothers but the another corrupt GNLF

 

 

0 #1 sunny 2011-07-15 12:04

Aabo Ke garchas.......6th Schedule Ko Gaad maari Haalis........Aabo Gu Khaa......

 

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