|Constitution of India: Statehood Demand|
|APPENDIX II (a)|
|APPENDIX II (b)|
The Substance of Scheduled Tribe status related to the Constitution of India: Statehood Demand.
Now that Bimal Gurung has unveiled draft proposal of the ‘secret interim arrangement’ till 31.12.2011 can afford to be called a positive development from the point of view of the constitutionality of the statehood demand. It is, as far as asking for a separate statehood demand is concerned, is the first progressive document attempted so far in contrast to the submissions made whether in documents or discussions in the preceding four rounds of Tripartite meetings. The present draft attempts to highlight the procedure of state formation as per constitutional provisions in full consideration of understanding and realizing that state formation is not a magical act like pulling a rabbit out of a hat, but requires an extra special understanding of the Articles and proper implications of its provisions. Infact it is the realm of constitutional experts to decipher the meaning and provisions contained therein in order to arrive at a proper answer.
It has taken quite sometime, to be precise more than two years for the statehood seekers to address the demand on a constitutional menu finally to arrive at the drafting of the interim arrangement. As a matter of fact, even at the moment the application for the constitutional format required for state formation is invisible and only the outline seems distinct. What requires to be thoroughly investigated is whether invoking of Article 3 is sufficient for demanding a state, when in fact, the provisions of the Govt. of India Act 1935 and its subsequent Order 1936, is considered the landmark legislation endeavoured towards promoting state formation after independence in 1947, by a process of federation by assimilation.
The interim arrangement draft, in its opening preamble consisting of five items insisting on Item 3 is conspicuously prioritized for the significant advantage to identify the Darjeeling hill peoples as a distinct regional identity, a constitutional prerequisite based on the fundamental rights of indigenous peoples, to demand statehood by asserting the right to statehood under Article 242(2) and 275 (1) titled the Sixth Schedule the application of which combined with the Fifth Schedule Article 244(1), read in some cases alongwith provisions of Article 371, were implicit in creating all new states in the Northeast. (Enclosed Appendix IV).
The method applied for state formation under the above referred Articles implied a gradual process of up- gradation of the ‘Backward Tracts’ (scheduled tribes), the only constitutionally sanctioned national minority imbued with the right to self determination, in effect to mean determining a state in a country, and if extended to the purview of international domain even possessed with the right to demand a sovereign country provided by relevant to certain conditions accepted by the international community.
Notwithstanding its implications in the interim arrangement draft proposal submitted as signed by Bimal Gurung , President GJM the contents of Item 3 (of 1 - 5) is most significant in relevance to the constitution implied by the above 4 Articles of the Constitution in order to include and put forward the demands contained in Item 5 (a-y) and to interpret the meaning and implementation of Schedule A (items1 -102) is widely enumerated to understand the above referred Articles of the Constitution are implicitly visible. That is following the steps of the Northeast state formations by promoting the growth of the indigenous peoples to a point of understanding in demanding a state in order to assimilate into the national mainstream and play its role as a distinct community within the diverse nature of the Indian unity as a state of the Union.
The Northeast excluded and partially excluded areas were differently treated with provisions of the Fifth and Sixth Schedule which provisions were incorporated in the Constitution of India in 1950 as an extension implied by the meaning and implementation of excluded and partially excluded areas provisions of the Govt. of India Act 1935 and Order 1936 which infact now is constitutionally recognized provisions of state formation. Infact as of the moment in time, the Govt. of India Act 1935 and Order 1936 implied provisions contained in the Constitution of India, is the only resort in demanding creation of new states. It is a total misconception that the use of language was applied for state creation. Whereas it is a fact language played a supporting role in further promoting state creation founding the claim based on the right of indigenous national minorities (ST) in demanding a state for the entire population irrespective of the diverse group of the population composition.
The same yardstick applied to the Northeast formation of states is relevant to Darjeeling District and the Darjeeling hill peoples right to state formation on the basis of implying the provisions of ‘Partially Excluded Area’ regional identity with the Northeast states. When and if the provision of Darjeeling District finally gains its rightful claim to become a State it is only right it is included in the Northeast States Council, for the simple reason Sikkim has been included. It therefore follows since Darjeeling District was a part of Sikkim and Bhutan, and still remains so ethnically, culturally, linguistically and geographically with the former, as distinct from West Bengal infact rest of India, it is only proper Darjeeling District is included in the Northeast State Council.
In order to support this contention one is referred to recall the 1873 Bengal Eastern Frontier Regulation (Line System known as Inner Line Permit), which regulation was applied to the entire Northeast of India bordering Bengal in the west. It is interesting to note that this regulation was also applied to Darjeeling District which ascertains that Darjeeling District was regionally and territorially identified with erstwhile Assam than Bengal. Although territorially Darjeeling District was attached to Bengal for various implications and more so for administrative convenience whereas as a regional minority, territorially was affiliated with Assam which was governed as a Chief Commissionership Province comparatively differently administered to the Provinces of India.
Although Darjeeling District, unfortunately misguided by quasi intellectuals, referred in books as consisting of the gentry of Kalimpong, preferred to remain in Bengal, obviously influenced by overtures, is now understood in adversely impacting the convenience of Darjeeling District becoming a state. That the state influenced certain leaders at the time is conspicuous for the simple reason constitutionally the ‘Partially Excluded Area’ term itself implies a regional identity with erstwhile Assam.
That Darjeeling District was attached to Bengal was a aberration of the regular practice of norm as a result of which, in the present times the ordinary ethnic Bengali population unaware of the history of Darjeeling District is at this point desirous of fragmenting Siliguri subdivision at its will and command without constitutional sanction from the Darjeeling hill peoples to whom the territorial areas rightly belongs. It would amount to aspects of constitutional and international norms violation if at all Siliguri subdivision is detached from Darjeeling District.
It is interesting to note, without most of the Darjeeling hill peoples realizing, that the British governed Darjeeling District at par with the Chief Commissionership Provinces without implying legislation but in fact implied by the provisions of partial exclusion as provided by the various Govt. of India Act since 1874, 1919 and 1935. Accordingly it maybe recalled and infact still implied the designation of the office of administration is performed as if under the Chief Commissionership, presumed the Governor in his discretion and not by the Provincial legislation of Bengal. This is the implication of the reference to the office of Commissioner of North Bengal located in Jalpaiguri and the various Deputy Commissioners referred to the Districts of Darjeeling and Jalpaiguri.
Regrettably Jalpaiguri District who moved hand in hand as regionally, similar identified with Darjeeling District since the days of being termed as non regulated areas, Scheduled Districts 1874, 1919 Backward Tracts was deprived of its regional identity in the Govt. of India Act 1935 when it remained unmentioned unlike Darjeeling District. The reason for the delisting of the tribes to non tribes was in fact similar to the incident how the majority of the Darjeeling hill peoples were delisted in the Census of 1941 as compared to Census 1931 where the entire population of Darjeeling District was described as Tribes. How and why large communities of tribes were delisted is a matter to be enquired by the respective communities concerned.
Therefore now to reassert and demand Scheduled Tribe status for the Darjeeling hill peoples is a matter of rectifying the injustice done in the Census of 1941. All the Darjeeling hill communities were deprived of the tribal status in the Census of 1941, and whose ST applications are now pending at various stages of the program lading to of the Registrar General of India (RGI) New Delhi require to further amend their application critierias by referring to the injustice meted in their delisting by simply stating their language and script was Nepali, is now perceived to be a miscarriage of justice. This for the simple reason, it is now reasonably accepted by all concerned that language and script is not a qualification applied for determining the indigenous national minorities. Rather it is believed now language and script is contra inflicting the status of tribes to the point of adversely affecting their distinct identity. It is significant, the present statehood seekers have realized the historical past mistakes of yore and now geared to move the amendment for relisting the delisted tribes to 1931 Census itself is a great awakening. It takes the statehood program on its proper constitutional path and final delivery in time through it is delayed by misunderstanding and deception since the very inception of the Govt. of India Act and Order was implied.
On a similar basis it is presumed that the majority community the Kochs was deprived of their tribal status probably by the same Census of 1931 when Jalpaiguri District, which population largely composes of the Kochs, was unmentioned in the Govt. of India Act 1935. It is believed the Kochs lost its tribal identity implied by its conversion to Hinduism prevailed by the acceptance of the caste system in the Hindu fold is given as the reason for losing their ST status by being converted as scheduled caste is inconsiderate application of ethnology. The Koch if at all desires Kamtapur is required to regain its original tribal status and uncloak casteism, which as a matter of fact does not exist at all in their fold but application of language Bengali determined as their language seem to have been the factor of converting them to the Hindu fold, attracted by the myth of the system, which eventually deprived them of their inherent culture, religion, language, traditions which infact composed their distinct identity in contrast to the ethnic majority community.
At the time of independence there were 562 princely states, 9 provinces and a composite of 36 Excluded and Partially Excluded Areas from 8 Excluded Areas and 28 Partially Excluded Areas. After independence these areas were eventually converted into the States and Union Territories of sovereign India by applying the relevant and various provisions of the Constitution of India promulgated in 1950. Out of the assemblage of the above differently administered territorial units, since independence and application of the Constitution, till 2010 AD India now comprise 35 States and 8 Union Territories.
The process of state formation is not a simple process but requires a lot of will as well as grit which is evident in the history of most state formations in India, this ensues of the fact state formation is a constitutional event and therefore requires constitutional effort and implementation. The last three states to join the Union in 2000 AD were Jharkhand, Uttarkhand, Chattisgarh, all of whom have a good amount of historical background notings which were conspicuously displayed in the struggle in acquiring their respective states by a process of fragmenting the larger state in order to deliver the new states the right to self determination. The struggle at times for some were arduous and steep this inspite of the fact that the specified areas were already provided, within the framework of the constitution, certain evolutionary minority based, on grounds of fundamental rights, to aspire for protection from the exposure to larger ethnic majority, by providing the former their own living space, meaning statehood.
In consonance to the above proceedings, there were in India distinct autochthones minorities, as compared to the rest of the population, who more than often lived in the hills throughout India and mostly in the Northeast of the country, their simplicity and behaviour were considered liable vulnerable to external impacts of migration from the plains land. As a measure of protection the British kept these vulnerable inhabitants out of the process of administration while consolidating the East India Company lands into what became to be known as British India.
The Regulating Act of 1773 which infact was introduced to regularize the East India Company lands which implied only semblance of governance required introduction of regulations for effective administration and control. Darjeeling District was formed in 1866 out of parts of territories belonging to Sikkim and Bhutan but treated as a different unit from the rest of the country whence the administrative reform programs meant for the rest of the country were inapplicable to the District and accordingly referred to as a Non Regulated area.
Like similar regions in the rest of the country commonly referred to as the ‘Backward Tracts’, containing distinct minorities were placed in the Scheduled Districts Act 1874 (also called Local Laws Extent Act) for separate treatment for their well being. This description Backward Tracts was carried forward to 1915 incorporating in the Govt. of India Act 1919, extending to the Govt. of India Act 1935 when Backward Tracts was changed to mean Excluded Areas and Partially Excluded Areas to differentiate the degree of exclusion implied. In the first, the Governor ruled with absolute control whereas in the latter ‘his discretion’ was implied. In effect these areas seem to have been governed as British dominions incomparable to British India where legislation was effective.
These Excluded and Partially Excluded Areas were infact not formally incorporated into British India at the time of independence but require to be done so after independence. The Constituent Assembly of India paved their path accordingly by constituting a Advisory Committee to enhance induction. The Advisory Committee further constituted three Sub Committees under respective heads to formalize the induction of these areas into the Union.
They were Sub Committees for (i). North Western Tribal Areas. (ii). North Eastern Tribal Areas and (iii). Excluded and Partially Excluded Areas (other than Assam, rest of India). The Sub Committees practically endorsed the original descriptions and forwarded their recommendations to the Advisory Committee for submission to the Constituent Assembly of India for incorporation in the draft of the Constitution of India.
In all as earlier mentioned there were a total of 36 cluster of areas and districts under the description of Excluded and Partially Excluded Areas, which description became provisions of the Constitution of India for use in new state formations on the basis of the Report submitted by the Advisory Committee in the matter dealing with the Fundamental Rights and Minorities. It can safely be said that the basis of all state formations as per international norms and practice was prioritized on the principle of fundamental rights of indigenous minorities now commonly termed as scheduled tribes in India.
It would only be proper to illustrate by a table how the 36 cluster of Excluded and Partially Excluded Areas obtained their ordained states in time. This is displayed in Appendix I.
Evidently Darjeeling District is one of the designated “Partially Excluded Area” in West Bengal which as a matter of fact also contained the Chittagong Hill Tracts which was transferred to East Pakistan during the partition of Bengal. To support this contention both the Govt. of India Act 1935 and Order 1936 is given in Appendix II (a) & (b) wherein Darjeeling District is mentioned by name in the annexure to the 1936 Order.
This important significance seem to have somehow been clearly over sighted by the statehood seekers by the misconception in believing that invoking Article 3 as the sole factor to demand and provide new formation which clearly is not. Article 3 is a process of state formation but not the criteria required for stat formation which is preserved in the context of fundamental rights of national minorities believed to be contained in the meaning and interpretation of partially excluded area for Darjeeling District referred in the 1936 Order. The pertinent question to be asked to the Central govt. presumed to be the guardian of the Constitution is the billion dollar question, that be when all excluded and partially excluded areas have fulfilled their purpose in new state formations, Appendix III , why Darjeeling district alone the sole area that has been denied the right to self determination. Is it an act of constitutional discrimination inter-see for which a proper answer is required.
Or is it, on the other hand the oversight by the earlier statehood seekers which mistake unrealized have been passed on to the present set of seekers believing infact and convinced too that invoking Article 3 is the sole and only provision which does not seem so as the following quote from Aditi Chatterji’s researched book Contested Landscape: The story of Darjeeling District 2007 Page 129 clearly asserts that, “Article 3 of the Indian Constitution was invoked for the first time in 1980. Many leaders gave the impression that demanding a separate statehood as Indian citizens is a constitutional right, but is not fully so”. She goes on to declare that Article 3, “it is more a ‘power’ or ‘discretion’ of the Parliament than the expressed ‘right’ of a people. Parliament alone cannot pass any legislation under this Article until the President is satisfied after consultation with the concerned state that it is really important to be placed in Parliament”.
From this is understandable that the state giving due recognition of the implications of the Partially Excluded Area implicit to Darjeeling District is recognized in fulfilling its constitutional obligations by having passed the resolution on the Gorkha Hill Council Darjeeling (Sixth Schedule) in the State Assembly to the Centre for clearance by the Union Cabinet and therefrom for introducing the Bill in Parliament. This as history has shown was in effect put in cold storage but quite alive as amended.
The entire episode of the Parliamentary Standing Committee is a historical event in so much as that the Bill was not passed at the time because under close study of the constitutional territorial composition of Darjeeling District require to be maintained within its original territorial implications. It would be constitutionally impinging if the bill was passed with a territorially fragmented Gorkha Hill Council whereas the provision was for Darjeeling District as an entity inclusive of the total areas of all the four subdivisions.
This leads to the question whether Siliguri subdivision of Darjeeling District is allowed fragmentation considering the Siliguri Terai belonged to Sikkim the original owner. This matter requires reference to constitutional experts to ascertain whether at all Darjeeling District require to maintain its total territorial structure intact or allow partition, subject to obtaining clearance from Sikkim. This is an interesting case for study as well as to preserve the historical territorial integrity of Darjeeling District. If simply, large stock of migration from across the borders can upset the demography of an area and detach it on basis of the right of emigrants is a precedent having far consequences especially for a country India is a issue requiring immediate treatment before it becomes malign.
1. Appendix I - Excluded Areas (8) and Partially Excluded Areas (28)
2. Appendix II (a) - Govt. of India Act 1935
3. Appendix II (b) - Govt. of India Order 1936
4. Appendix III - Formation of States
5. Appendix IV - Formation of Northeast States