Reverting back to this writer’s article of 9 Oct 2013 “New List of Scheduled Tribes in Sikkim decides the fate of Gorkhaland” which itself was based on The Indo Asian News Service [IANS India Private Limited-Thu 14 Mar,2013], the news ‘Government embarrassed, SC/ST bill sent to Parliamentary Committee’ for further discussion on a complaint lodged by a senior and eminent member of the opposition of the Rajya Sabha. The complaint, which should not have arisen at all considering the fact of the matter that the Bill placed as an Ordinance actually was on account that the govt. was following a Supreme Court Order. Surely the opposition who pressed the govt. to send the Bill to the Standing Committee with a fixed time frame is seen as an inimical persuasion by the opposition to scuttle the Bill for reasons known only to political analysts. Despite which, considering the bill presumably simply contained the additional listing of Scheduled Tribes in the respective states, and therefore the matter was a simple one not inflicting any political parties across the board. Having said so, why the complaint was raised against the Bill by the opposition member/s raises the question to the implied considerations. No doubt there is reasonable ground to suspect that the respective opposition members may already have been aware of the fact that the additional tribes recommended for the Scheduled Tribes list in respect to the State of Sikkim can have a fall out in the neighbouring state West Bengal, where the agitation for creating a new state of Gorkhaland, impacting the demand to a final constitutional solution. Therefore the question certainly arises alleging the opposition members in soft peddling the additional ST list, at least giving a breathing space, to the regime in West Bengal, to scuttle the Gorkhaland demand, intended to a period beyond the UPA govt. at the Centre, which is indicated to mean to postpone the Gorkhaland demand beyond the restricted time limit. This activity in the Rajya Sabha further goes to support that the Gorkhaland demand is constitutionally guaranteed and would, if supported by the opposition also, and not opposed for futuristic political alignments after the 2014 general elections.
No doubt it is fair to establish that the central govt. more than the concern of the UPA members, is the major player in arriving at a constitutionally directed solution for the Gorkhaland demand, and which event will have to be dramatized now or never to fulfill the constitutional obligation – to create a state of Gorkhaland which obviously is concerned with the ceded territories of the erstwhile kingdom of Sikkim (now a State in India) and the kingdom of Bhutan. There should be no reason why the opposition objected to the bill as the contents was far more important from a constitutional point of view then subsidizing it as a matter related to the state of West Bengal. Infact already the demand of the Darjeeling hill peoples have far exceeded the limitations of time allowed for patience. More than which the state is dribbling with the ball which the Centre is aiming to place between the posts provided by law as suitable for Darjeeling District and adjoining areas and within the framework of legality in the Fifth Schedule. To comment on this issue does not arise at all as most members of the opposition, not to mention the UPA members, are more than aware that the Gorkhaland demand is infact a constitutional event and which finality is a certainty. Therefore to consider that the opposition to the ST bill casts a dark shadow on the entire opposition benches.
No doubt the Gorkhaland demand does not find any leverage at the political level with just one MP in the Lok Sabha, and none in the Rajya Sabha (which seat is vacant after Anand Pathak, CPM term expired). At least this writer is not aware of the fact that any new candidate has been nominated by the State in filling the seat. It is truly sad indeed for Indian democracy that the hill people of Darjeeling, obviously out of its own ignorance, have been denied by the ruling party of the State to raise this issue in the Rajya Sabha. This however may not be true as an allegation as there were some news in circulation, for quite sometime in the recent past, that a certain GJM MLA had been recommended to fill the post but denied by the hill party citing it as a unilateral decision. Whether this is just rumours or fact remains to be told in the future history of the hills related to Gorkhaland when it finally becomes an excerpt in future reality. These backgrounds surrounding the Gorkhaland demand certainly indicates that the hill people have not addressed the issue on proper planks as a result of which the pillars below are seen too weak to bear the weight of all opposition forces including the UPA who is only bearing the burden of expressing the constitutional will, put into the lips by the constitutional thinkers within the central govt. This aspect is clearly imagined by the fact that the ST bill seemed to have been originated as an order of the Supreme Court, as surely if it had been raised as a bill the issue could have been impacted by adverse rulings, normally originating out of political considerations. Letting bygones be bygones it is hoped when the Bill comes for passing in the winter session of Parliament it would be passed without much ado.
The main purpose of this article was not to dribble the ball to the court of the opposition, which maybe suspected as such, whereas the reason is simple plain talk to impress all concerned that the separate statehood demand of the Darjeeling hill peoples under the umbrella term Gorkhaland is legal and binding on the Constitution and to grant the same by the President. If all equations were considered on rational democratic level, considering that this statehood demand is within constitutional legality, the houses of Parliament as well as the state govt. should have addressed the issue with equity and magnanimity. Sadly instead of such a prelude it is indicated entirely otherwise in which the state, the major player in the drama is totally averse to the idea, maybe so apprehended as a fear psychosis for the further partition of West Bengal in the future after Gorkhaland. This infact happens to be stark reality concerning the state which constitutionally speaking is believed to be breathing the air, as oxygen in ICU, imaginatively the Fifth Schedule whereas in reality the Tribes Advisory Council (TAC). Infact there is a perceptual constitutional interpretation that if Darjeeling district alone is separated as a territory from the state, maybe the existence of West Bengal in name could possibly vanish. This could be the proper time the state could possibly change its name, if at all legally possible and constitutionally acceptable, the state may deserve to be called something else than only as in reference to a direction.
These concepts arise from the fact, hopefully if true, the Province of West Bengal was created in 1947 by the Radcliffe Boundary Commission, on virtue of the fact, that Darjeeling District was a Partially Excluded Area (including indigenous people) on basis of whose human rights guarantee creating a new province (in international understanding) was possibly effected. In the same light implying the legality of Chittagong Hill Tracts as an Excluded Area where the Chakma Tribes (the indigenous people) seem to be the factor in originating East Bengal. Therefore the allegation of the fact arises that the province was divided on basis of religion, Hindu/Muslim may have been the perception, but in reality on grounds of the legal reason just stated, applied to both the two new provinces. In this context somewhere the historical interpretation has failed and therefore this structure of history require to be rewritten stating the true grounds of the division of the Province of Bengal. Taking the light of the matter forward, the division of West Punjab was also factored around the same basis of legality of the Excluded Area of Upper Tanawal (Hazara Dist) in North West Frontier Province, and East Punjab, Excluded Area of Spiti and Lahaul (Kangra District).
The above are factual constituent history of the Provinces on basis of which alone the future state formations were undertaken within the boundaries of the constitutional wall. Wherein a total number of 38 areas were identified as Excluded Areas (8) and Partially Excluded Areas (28) in the Order of 1936 following the Act of 1935. They were transferred in the Constitution within the Sixth & Fifth Schedules respectively for their incorporation into the federation of the union in time according to the democratic wishes of the inhabitants settled in these areas. Out of the 38 such areas all 37 individually or in composition played the decisive role in various new state formations after the commencement of the Constitution (1950-52). There however remains still one such area to fulfill the constitutional writ, and which is, happens to be the Partially Excluded Area of Darjeeling district within the concerns of the Fifth Schedule. This constitutional guarantee still requires to be implemented. This article is primarily a descriptive history leading to that singular goal – statehood. To submit this demand, the District still requires additional criteria of the Fifth Schedule, determining the District as a Scheduled Area. Only on basis of this legality the statehood demand is constitutionally acceptable. In order to carve its target is the main thrust of this article which is related to the ST bill conferring an additional list of ST initially in Sikkim and subsequently forwarded to West Bengal. On compliance of this formality the legal demand of the Fifth Schedule is completed and thereafter only ripe for demanding a state – simply as Gorkhaland or the state of Darjeeling & Dooars, whichever applicable after due consideration.
The fate of Scheduled Tribes Bill 2013 pending before Rajya Sabha.
A few days back it was read in a national daily that GJM President Bimal Gurung was skipping the demonstration for the statehood demand in the national capital New Delhi during 13,14&15 December, seems to send, somewhat of a wrong message, in realising that a genuine perspective exists, wherein the ST Bill 2013 earlier placed in the Rajya Sabha is expected to be placed during the undergoing present session of Parliament. It is in this context that the above demonstration has significant undertone i.e. that the demand of GJM to include all Gorkha communities in the list of STs is the most important and impacting feature to be realised in order to consider Darjeeling District as well as the Dooars as Scheduled Areas.
The meaning and consequence of this phrase has been elaborately deliberated upon in this writer’s earlier discourses. However for the sake of novices to the constitutional aspects of new state formation in India relevant to the Fifth Schedule in which aspect Darjeeling District & the Dooars are guaranteed their legal rights to demand self determination, or self government, or self rule, as a state/UT as determined by the articulations of the Constitution itself. Despite which Darjeeling District & the Dooars are already in the purview of Art.244(1) provided with the statutory Tribes Advisory Council (TAC). As an implication of this aspect it is realised the Gorkhaland Territorial Administration (GTA) was established in 2011 as an interim setup only, suggesting that the demand for a state was legally unviable at that point of time, as the second but more important factor to demand a state is only provided by the legal aspects contained within the provisions of a Scheduled Area, which component of the Fifth Schedule is not available to Darjeeling District & the Dooars at the moment to legally place the statehood demand on the constitutional pedestal.
The ST Bill 2013 to be passed in the present session of Parliament in order to conduct the process of statehood demand to its final conclusion is very important. Therefore the ST Bill which has been delayed on account of it having to be placed before the parliamentary standing committee, now requires to be placed by the Govt. presumably as an Ordinance, having been sanctioned by the President who is the sole authority to determine inclusion of new Scheduled Tribes (Art.342). Although the ST Bill is an inevitable event in constitutional terms, nevertheless it is subject to political expediency and maneuvers by stakeholders on either side of the aisle. That is, the introduction and passing of the ST Bill depends totally upon the implied electoral gains at the coming parliamentary hustling scheduled for 2014. Therefore the introduction of the ST Bill if at all introduced in the present session of the Rajya Sabha no doubt would receive support probably from all parties. However this is subject to the fact provided if it is at all introduced by the govt., which at the moment is the UPA. However the Congress party, the ruling dispensation of the UPA, with an eye at the coming MP elections in order to gain somewhat of a support from West Bengal, who would be adversely impacted by the passage of the ST Bill, which eventually goes to determining Darjeeling District & the Dooars as Scheduled Areas and thereby paving the way and legally justifying the statehood demand on account of the Scheduled Area (Fifth Schedule), which is deficit in accounting the present aspect of the Fifth Schedule in respect of the said areas. Therefore there is all the possibility of the chance that the govt. on account of the UPA political perceptions eyed at the 2014 elections may shelve the issue of statehood at a later date for its own largesse. It is also a perception however that some indication related to the statehood demand may also be announced before the coming elections once the ST Bill 2013 is considered, either in the present winter session of Parliament or the second session in February 2014. Therefore, if the ST Bill is not introduced and passed in the present session of Parliament, surely the same exercise would be repeated for a conclusive resolution, either in February, but surely an indication to the creation of a new state /UT of Gorkhaland is anticipated.
Inspite of the fact Telangana is more or less a closed issue as far as the political aspects is concerned, the Bill itself may also meet the similar fate as the ST Bill which provides the legal basis for the creation of a new state/UT. No doubt anti Telangana forces are working overtime to garner support, if not to vote for the Bill without its introduction, is something which the pro Telangana parties are attempting to conduct. In short, Telangana and Gorkhaland issues are now directly related to the political perspectives of the 2014 elections. Peeking into this general understanding of both the constitutional and political related, the stakeholders demanding new states however should console themselves that the demands would complete its own circle, at some time in the future, which is doubtless. After all both the demands are equally supported by the constitutional legalities formed within the Fifth Schedule, which provides the areas concerned directly into creation of new states/UT whichever applicable.
2. The ST Bill 2013 related to parliamentary constituency delimitation?
In response to an article in the Telegraph 16 Dec 2013, “Hill call for local MP” is somewhat a little too early for consideration as far as it concerns the GJM considerations on account of the fact the ST Bill 2013 now pending before the Rajya Sabha requires to be put in constitutional perspective. Whereas even to contemplate, at the present juncture regarding the Darjeeling District Parliamentary constituency (MP) may require delimitation on account of the fact that in 2003 two additional STs had been listed with the others already enlisted, raising the percentage of ST in DGHC area to 31.8% from 12.6%. In Census 2011 it is highly probable, with the increase in ST population in process of delimitation can indicate (1) the three hills subdivisions of Darjeeling District maybe considered for ST reservation and (2) with that account, the number of ST reserve constituencies in Darjeeling District maybe raised to 4 seats on account of which the MP constituency as well maybe reserved for ST.
Therefore with these perspectives in mind, which maybe real or imaginary, there is no question to doubt that with the increase in ST population in Darjeeling District surely the delimitation of both legislative and parliamentary constituencies may undergo a definite change. Additional to which, if and when the ST Bill 2-03 is passed at some point of time before the parliamentary elections in 2014, the above perspective would be truer to reality, than imagined now. Therefore any suggestion accounted by GJM spokesperson Dr. H.B.Chettri is inconsequential for any consideration for the reasons cited above. That is, to take up the MP seat issue at the moment is irrelevant. In other words, till the delimitation process is completed discussion on the issue would only be imaginative.
However with the future consideration in mind and in consequence of the factor that Dr.Mahendra P.Lama, as a candidate out of his own interest, has already blown the whistle in declaring the kick off for the game of MP elections 2014. Also mongering is ripe in news reads of the possibility or more correctly probability of the Congress fielding the candidature of the President, Shri Pranab Mukherjee’s son. In addition to the two names a third candidate, renowned footballer from Sikkim, Baichung Bhutia’s name is also cited in newspapers, as the possibility of representing the TMC in Darjeeling District. Whether this is true or false is yet to be ascertained by the football star himself.
Infact it might be of interest to realise two of the candidates are ST besides that of the Congress. This factor somewhat indicates the above discourse suggesting there is an element of suspicion, that the Darjeeling District constituency could be declared, in process of delimitation, on account of the increase in ST population in the District, a reserved ST constituency. Therefore to consider any discussion on the MP seat at this moment of time becomes superfluous.
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