OPINION: State Formation of the Indian Union


Source:THE HIMALAYAN BEACON [BEACON ONLINE]

BY DARJMAN

07 May: The final analytical work of Hillman –the Analyst in Constitutionally determining the long aspired statehood for the Darjeeling hill peoples is slowly coming to a glorious and final end in the immediate days ahead during or after the Sixth Tripartite Meeting contemplated on 25 May 2010. The substance of this analysis is contemplated in prelude and in anticipation of the coming meet which should change the entire history of Darjeeling District in times to come. Even if no deliberate results proceed from this meeting it is constitutionally perceivable that the Sixth Tripartite meet is expected to be the final initiation in breathing a fresh breath of life to the Darjeeling hill people, to once again carry on life with the much inspired dreams and aspirations withheld in breath for a very long time. Constitutionally speaking since 1950 when the Constitution of India was promulgated to awaken the toiling masses of India from the slumbering, debilitating rule of foreign invaders.

Unfortunately for Darjeeling District and many such ‘Backward Tracts’ (1870-1935) in rest of the country administratively referred to as ‘Excluded and Partially Excluded Areas’, independence in 1947 and the relevancy of the Constitution in 1950, was incomparable in contrast to the rest of the country. The change in difference was hardly noticeable. The foreign rule was imperceptible while contrasting to the rule projected by our own countrymen infact if relative comparisons of the change in time is attempted many who have participated in both time period consider the basic happiness index was more appreciable than the present times wherein development and progress is always gaged with expenditure than the net life style gain. To illustrate this with an example is the sheer impact of population explosion not only in the entire country but visibly so in the Darjeeling hills whose natural beauty of mountains, rivers and forest are on the verge being reversibly impacted by the genie of development without even a side glance to the social and physical environmental impacts.

All the hill towns Darjeeling, Kurseong, Kalimpong as well as the smaller village town are on the brink of social, cultural and economic disaster at the humane end at the cost of the ecology while attempting to environmentally balance the ecological equation. This effort is nowhere in sight in claiming its achievement. Rather on the contrary the vision for the future, without any doubt perceivably and statistically is pessimistic. This being the present scenario with no possible constructive solution in sight, the only adventure is to attempt, at a last resort, holding on to even a straw, in order to salvage what remains of the hills by obtaining its own state, space, mind and perseverance in order to bail out the future generations before the gates of heaven finally closes. That is to obtain the state which it is only discovered, that obtaining it was a Constitutional right enshrined in the August book to deliver the Darjeeling hill peoples before the count of disaster. It seems the bell had already rung at the time of independence but made obvious only in 1950 by the provisions of the Constitution wherein the future of Darjeeling District was already written as the writings on the wall in the Govt. of India Act 1935 and Order 1936 declaring it as a ‘Partially Excluded Area’. This simple phrase remained undeciphered and insignificant till it was only recently discovered that its implication was very profound. The meaning and its delivery is yet not understood by the very people for whom it was implied to protect and preserve. No doubt the ruling ethnic majority had understood its meaning and implications in the very inception itself. Understanding which much backdoor politics and money may have changed hands in order to delude the innocent herd of sheep not as the proverbial shepherd but to sacrifice them at the alter.

Ad the adage goes truth cannot be hidden for long so the implication of ‘Partially Excluded Area’ relevant to Darjeeling District is now being understood by the sacrificial lamb who can now escape from the wrath, and save its life and in time its soul, by the translating the meaning of Partially Excluded Area in the provisions of the Constitution for the final deliverance.

The V and VI Schedule are the basic features incorporated in the Constitution for new state formations and that too provided only for the territorial areas of India identified since the time of East India Company territories were gradually being converted into administrative areas under provisions of the Regulating Act of 1773 onwards. Darjeeling District formally considered as an administrative unit in 1866 was kept out of the purview of the reforms process, like similar areas considered inhabited by tribes and hill peoples, and accordingly these areas were never ever administratively nor territorially attached to the Indian Provinces, so to say.

These areas were known as Non Regulated Areas and for all practical purposes even at the point of independence, and the transfer of power from the British to Indian sovereignty was normally formalized by the provisions of The (Foreign) Jurisdiction Act 1947 which seemed to have allowed the Central govt. jurisdiction in relation to areas outside India (namely, Excluded and Partially Excluded Areas) now understood to mean provisions for the administration of Scheduled Tribes and Tribal Areas (Scheduled Areas) within the meaning and provisions of the V and VI Schedules, which is the only provision in the Constitution allowing state formation and that too for areas previously identified and defined in the Govt. of India Act 1935 and Order 1936.

All the tribal areas so identified more or less have perceived to have been concluded their constitutional right by forming 14 States and 7 Union Territory (UT) out of Excluded Areas (EA), Partially Excluded Areas (PEA), Centrally Administered Areas (CAA), UT and 17 States out of V Schedule (12) and VI Schedule (5).

Somehow the right of tiny Darjeeling District have been inadvertently or rather advertently been left out not acts of omission or commission but actually in fact by devious means and misconceptions introduced by the vestment of the state to deny the constitutional right of the Darjeeling hill peoples for the benefit of the state however contrived and discriminatory. This resulting in the long years of the Darjeeling hill people grouping and grappling in the darkness of Gorkhaland illusion which though a magic word to garner the hill people in directing a united stand but on the other hand drastically implying closing the very doors of the Constitution by the implication of the terminology. The implication of the application of Nepali language in determining the Tribes in Census 1931 to the 26 tribes’ communities at the time seemed to have delisted practically all the Nepali speaking tribes to non tribes when the majority tribe population of Census 1931 was reduced to a minority tribes population in 1941. The delisted communities, no doubt genuine tribes, have applied for the tribe status once again. This was similarly expressed earlier by Subhash Ghissing and now the same stance has been repeated by Bimal Gurung in order to effect statuesque anti Census 1931. The delisting of many tribes except the Bhutias and Lepchas was a gargantuan blunder which denied Darjeeling District the large population majority required now to attempt statehood. The mistake has been a costly blunder and which no doubt the state has utilized it to its full advantage But the day of the awakening is at hand, and no matter what stands ahead the road is cleared for the future of Darjeeling hill peoples now to claim its constitutional right.

Having referred to the Constitution deeply it is in understanding, already stated earlier, the V and VI Schedule provisions of the Constitution are the state formation process applicable to all those Scheduled Tribes and Scheduled Areas already mentioned in view of the Govt. of India Act 1935 and Order 1936. In order to find out the applicability of the two provisions V and VI Schedule, one is required to refer the Constituent Assembly debates and find the slot for its attachment.

The V Schedule area was discussed by the Advisory Committee’s Sub Committee on Excluded and Partially Excluded Areas other than Assam chaired by A.V.Thakkar in the interim report submitted on 18 Aug 1947. Darjeeling District being in Bengal, outside Assam, was discussed by this Committee and therefore its right to obtain statehood is provided therein – the V Schedule.

So it would be a constitutional fallacy if the provision of VI Schedule is applied to Darjeeling District as is being formented by certain political parties not with any ulterior motive but misunderstanding the entire issue by identifying Darjeeling District regionally with Assam. Infact it is guessed that the reason why the VI Schedule, now lying in suspended animation in Parliament, is seen to have been directed to be so remain after the protagonist discovered that the entire event was unconstitutional and had been mistakenly misplaced. It required being withdrawn before it became a bill itself and attempting at all costs to derail it becoming an act. Having controlled the damage and lest it at rest, it is believed now the true constitutional plank is being laid.

Now the entire format applied by the concerned seems to be, and properly so the V Scehdule. However Darjeeling District has a factorial deficiency wherein the actual requirement consists of two qualifications, Scheduled Tribes and Scheduled Areas. Only the former is applied to Darjeeling District because the latter is deficient in content and hence requires enlargement by appealing for recognition of more Scheduled Tribes in order to complete the program to obtain a state. With only one factor, the Schedule Tribes, the immediate attempt can only effect a Union Territory status and which it is believed to be so being implied at the moment as an Interim arrangement till the point of time the other members of the Darjeeling hill people achieve larger population to qualify as Scheduled Area, which when achieved can eventually complete the statehood formation process in time. Till such time Darjeeling District shall remain a Union Territory.

The Union Govt. and the President of India being the guardian of the Constitution is now perceived to be quite convinced that it is the right moment for the history of Darjeeling to be conferred its rightful constitutional provision by allowing it initially, as an interim arrangement, to form a Union Territory preceding statehood.

One of the most contentious issue is posed by the question of Centre agreeing to included the Dooars of Darjeeling District into any concept of the new dispensation. The issue of Dooars is a difficult proposition for the Centre to accept as Jalpaiguri District itself of which the Dooars form a part, does not come under any provisions of neither the V or the VI Schedule since the District was left out of the ambit Govt. of India Act 1935 as including Dooars with Darjeeling District becomes unconstitutional for the Centre to accept. The proper way to go about is to create another unit of Jalpaiguri District jointly advanced by the hill tribes and the plain tribes to obtain another state. In effect to create two states of Darjeeling District which is already conferred by the constitution of India and in due time, after certain formalities are complied to approach the Centre for another state of Jalpaiguri District which again in reference to Census 1931 will be found to be a genuine demand. This is a futuristic appellation and a design, not at all considered to divide Bengal, but allowing the much deprived people of North Bengal to find its own bearings and moors. This should complete the entire map of North east states as the nine jewels of the tribes of East India.

The Indian Independence Act 1947 requires to be cited here to engage all concerned to deliberate on both the issues of Darjeeling District and Jalpaiguri District forming into state/states to finally close the chapter of the entire country of India having integrated into a whole republic after the departure of the foreign rulers in 1947. What is most puzzling is the constitutional vacuum wherein on what basis West Bengal can holds remaining a state if the Darjeleing tribes are delineated which seems to be the factor on basis of which the state was conceived out of erstwhile Bengal. This is in consideration of the fact, East Bengal (East Pakistan now Bangladesh) is perceived to have been created based on the rights of the indigenous minorities the Chakma tribes. It is felt this tribe was inadvertently as well as tragically included in forming East Bengal despite the fact the tribe consisted of a population inhabitants of 87% Buddhists incorporated with an Islamic state, both being anathema and dislike each other since the advent of Islam in India. Infact Indian history relates the final annihilation of Buddhism in India was after the invasion of India by Islamic rulers. If at all this allusion is sensible it would be a shame in the history of India as well as its leaders to account for this perceived blame if at all true.

ANNEXATIONS:

1. Formation of States

2. Acts 1773 – 2011