Why not Gorkhaland? if not - why not other options - Hillman

KalimNews: I, Hillman responds to the plethora of letters appearing in various blog sites reasoning out why not Gorkhaland, and if not - why not other options. Firstly the statement made by Bimal Gurung in the delay in not receiving any clear response from the Centre to the statehood demand despite the long years of sustained agitation since 2007 -13, without any firm commitment from the Centre, is possibly his angst fueled by public sentiment breathing on his neck is the expected reaction at his verbal command. However his hint to anything else outside Gorkhaland needs to be read with caution and understanding.

Constitutionally speaking the option remaining with him Gorkhaland, i.e. if it is a demand for a state, is considered out of question

1.  that legally speaking statehood demand falls directly within the purview of the Fifth Schedule and subject to a rider that the area is declared a Scheduled Area and without which the demand is constitutionally inapplicable.

2.   those unacquainted with the Constitution provisions of new state formations require to note out of the 19 new states created after the first Parliament was elected in 1952, after the commencement of the Constitution 1950. Out of the 19 states , 10 states were formed under the Fifth Schedule (as Scheduled Area) 5 states under the Sixth Schedule, 3 as UT (Central administration) and 1 Sikkim under conditions of Art.371F.                                                            3.   the new state of Telangana, is also considered under the provision of the Fifth Schedule wherein Telangana is already a Scheduled Area, which confers the legal right of the area, under the constitutional provisions to demand and as well as become a Union State.

4.  taking up the above guidelines for application of Darjeeling District, which is already implied with the provisions of the Fifth Schedule wherein historically since 1952, under the instruction under the President of India to the Govt. of West Bengal was directed vide Notification NO. 1280 T.W. Calcutta to establish a Tribes Advisory Council in 1953 quote “Whereas the President has directed that a Tribes Advisory Council be established in the State of West Bengal. Now, therefore, in exercise of the power conferred by sub-paragraph (1) of paragraph 4 of the Fifth Schedule to the Constitution of India, the Governor is pleased to establish a Tribes Advisory Council for West Bengal, …..”. Further to this another Notification No. 1282T.W.Calcutta, the Governor of the State formed the Tribes Advisory Council Rules 1953 (Extract from Backward Classes Welfare in West Bengal 1952-56, Foreword by R.Ray Minister of Tribal Welfare West Bengal).

This confirms the constitutional angle that Darjeeling District is within the provisions of the Fifth Schedule included with the rest of the tribes in West Bengal (based on the first part of the Fifth Schedule – as Scheduled Tribes). The implicating part of the Fifth Schedule in placing the demand legally is the provision of the 4 Scheduled Area recognition for Darjeeling District which is unavailed at the moment and therefore to place the demand for a state at this moment of time is inefficient and therefore ultra virens the constitution. The missing link Scheduled Area however is being processed legally by various legal measures leading towards that end, and it is a certainty in reckoning that the Scheduled Area deficit will be completed in the very near future. This is not a horoscope forecast but in bringing into realisation that many communities in the hills who have already applied for listing as Scheduled Tribes is already in full gear since 2005 when this demand was placed in Sikkim under the A.C.Sinha Commission. Followed immediately by a more assertive commission in 2005-08 under the Chairmanship of Prof. B.K. Roy Burman Report of the Commission for Review of Environmental & Social Sector Policies, Plans and Programmes (CRESP), Govt. of Sikkim 2008. Prof. Roy Burman probably is the most eminent ethnologist in India, holding over 71 executive posts national and international which recognition allows the belief that his recommendations of the number of hill communities for listing as ST in Sikkim is considered a prelude in happening towards the directed end. That is, when the recommendations are accepted and legalized in Sikkim, it is ensured the same list of new STs will be passed on the West Bengal (Darjeeling District). In the same instance as done in 2002/3 in Sikkim/Darjeeling District in respect of Limbus and Tamang Scheduled Tribes.

                                                                  

When this implication is applied in Darjeeling District it is estimated that the ST in the District would increase in a quantum jump to near 80% from the existing estimation of 50% .  The new population of ST in the District would initiate the Governor to recommend Scheduled Area to Darjeeling District to the President who is the sole authority of the Fifth and Sixth Schedules. Most of the new States in India created within these provisions and the authority to do so falls only on the President of India. As such neither the House of Parliament nor the respective State Assemblies has the power to do so except to abide by the Presidential decree and pass a resolution in the State Assembly in conformity with the decree. This is the writ of Article 3. It should be borne in mind however that Art. 3 is not a general application to demand a State under any ruse available to do so - whether religion, language, culture, geographical region, etc. Art. 3 applies to the Fifth and Sixth Schedules and merger of foreign states within the Indian Union.

5. Inspite the fact it is now going on to six years of agitation political or otherwise, the time is still not right enough to demand a state. The stumbling block at the moment to claim statehood is Scheduled Area and which this writer, in foresight of the constitutional understanding is able to predetermine that statehood or more possibly a Union Territory for Darjeeling District including Siliguri subdivision is imminently placed. 

In closing, it can be comfortably asserted that both Telangana and Gorkhaland (UT/State) can be forecasted without reasonable doubt based on the legal guarantee provided to these areas by the Constitution itself under the Fifth Schedule. These areas are not under the purview of the Sixth Schedule which is totally restricted within the boundary of the North East group of States.

Hillman-The Analyst of Darjeelingtimes.com alias Karma T. Pempahishey, author of “Roadmap on the Trail to Gorkhaland (Partially Excluded Area -The Constitutional Guarantee)”