Rejoinder – Take three Jaswant, Jinnah and Janmukti

This has reference to the Darjeelingtimesdotcom, Sept-Oct 2009 cover story, ‘Take three Jaswant, Jinnah and Janmukti’ depicting the third Tripartite meeting, New Delhi held on 2008-09 by Amar Rai. While analyzing the contents of the entire meeting proceeds it was most interesting to read many of the thoughts mostly in pun and diplomatic language spoken in the proceedings, dealing with every aspect considered well expressed and more so rightly intended except the main agenda, Gorkhaland.

1.    Here is the first instance when the Gorkhaland spokesperson, unquote ‘very strongly reiterated that the party has submitted all necessary documents … to speak on any other issue except Gorkhaland’. In the same vein the Additional Chief Secretary West Bengal has clearly expressed the negativity of the entire GJMM submissions as, ‘he pointed out that the documents prepared and presented were brilliant but not enough to cater to the formation of a separate state’. The Additional Chief Secretary aware of the years of his bureaucratic experience has particularly expressed that the proceedings of GJMM to acquire a state of the Union within the framework of the Constitution has not been taken into consideration, and which is fundamental in application to the formation of a separate state. GJMM leadership is advised to put up the right and specific application form duly signed and submitted for scrutiny by the legal expert’s disposal with the bureaucrats. Considering this aspect of the Additional Chief Secretary’s pertinent advice it would only be in the larger interest of the GJMM and the intellectual advisors to consult Constitutional experts at a higher level to understand the implication the former is trying to express.

2.    It is possible in a hurry to obtain Gorkhaland somewhere the Constitutional aspects of the demand has been misplaced and therefore taken for granted that Article 3 (a-e) have been mistakenly understood as the defacto and dejure statehood granting criteria, whereas it is understood it is not so. The statehood granting criteria is to be searched elsewhere in the Constitution. A hint for the legal minded persons is to read the Constitutional history of Darjeeling District beginning with the Regulating Act of 1773 onwards towards the incorporation in the promulgation of the Constitution of India in 1950 which will refer its updation to the Sovereign Democratic Republic of India’s Independence on 15th Aug 1947 liberated from the British Crown, who however had already provided the basic formalities of new state formation from the medley group of administrative units ruled by the Crown’s representatives under international law and philosophy and provisions under the United Nations Charter following the law of equality of states. The agenda of the international philosophy was eruditely implemented on 16 May 1946 under the Cabinet Mission, forming an Advisory Committee on the rights of citizen’s, minorities and tribal and excluded areas, to report on the list of Fundamental Rights. It is suggested while referring to the Sub Committee (iii) - Excluded and Partially Excluded Areas (to consider the position of excluded and partially excluded areas in the Provinces other than Assam, rest of India). It is believed if the intelligent eyed mind can detect reference to ‘the hill people of Darjeeling District’.

3.    The Union Home Secretary has quite specifically advised, ‘ ….the GJMM needs to think of this carefully as the same may happen (reference to the experience of Bodoland) and the people suffer’. It is therefore of utmost importance that GJMM magically, now take out the Constitutional rabbit out of the hat and make the government and public aware the cat is out of the bag.

4.    The learned Union Home Secretary’s response to Article 3 of the Constitution on the basis of which the GJMM think tank has programmed its undertaking has been denied a negative response in these words: ‘that there was a practical problem as the West Bengal Assembly needed to pass a resolution which may be a ‘stumbling block’. This exposes the Home Secretary’s naivety in mincing words and garbling the truth as null and void. May this writer ask what was the purpose of the West Bengal Assembly passing the resolution on the Sixth Schedule aspect of the Gorkha Hill Council Darjeeling, 2007.

5.    It is considered quite un-bureaucratic and far from being diplomatic for the Union Home Secretary to suggest, ‘that we should have our three tier Panchayat system and Darjeeling would be bifurcated’, while reiterating that, ‘our demand for a state was Constitutional’. The whole idea of the Union Home Secretary’s remarks smacks of reviving Darjeeling District (probably joining Siliguri with Jalpaiguri District or forming a separate district for Siliguri) is believed to be quite unacceptable as per Constitutional provisions provided for Darjeeling District under the Govt. of India Act 1935 categorizing Darjeeling District as a ‘Partially Excluded Area’ on basis of which the District was incorporated in the Sixth schedule while the West Bengal Assembly passing the resolution on the Gorkha Hill Council Darjeeling with a Constitutional fauxpas that Siliguri was unconstitutionally withdrawn from the District. This has great implications considering that the Govt. of India Order 1936 applied to the entire District and not with Siliguri subdivision withdrawn arbitrarily. If at all understanding the Constitutional history of Siliguri which was acceded by Sikkim to British India under a treaty obligation which matter requires investigation. Therefore it is advisable that the territory of Darjeeling District is an inclusive component of the contemplated future state of the Darjeeling hills (the four subdivisions of the District viz. Darjeeling, Kurseong, Kalimpong and Siliguri) as identified in the Govt. of Act 1935 as well as the Govt. of India Order 1936.

It is only advisable and fair that all constituents of the Tripartite meeting must place their cards on the table and not play it holding their hand to the chest. All should realize that the stake is the Constitution of India and not a deal in a poker game.

6.    The three tier Panchayat system is a democratic administrative will of the people which is extended to a full fledged state. While in the case of Darjeeling District having fallen under the terminology of Excluded and Partially Excluded Area is denied the basics of Panchayat system in order to prepare the area for a fully developed self determining state. Once the three tier Panchayat system is obtained statehood for Darjeeling will become a permanent backburner till the issue is once again raised by another Gorkhaland adventist.

7.    It is to be understood that the caption ‘The Sixth Schedule was not a brainchild of state Govt. It is dead now and it will never be raised again’. Certainly Sixth Schedule is a component of the Constitution of India. It is referred by an eminent Constitutional jurist as a great landmark in the Federation process of India by the process of assimilation using fundamental rights of indigenous people and minorities. One must refer to the great Constitutional composers in the persons of the members of the Constituent Assembly chaired by late Dr. Rajendra Prasad, and other members like late Vallabhai Patel (Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Area); late J.B.Kriplani (Fundamental Rights Sub Committee); late Gopinath Bardoloi (North east Tribal Areas and Assam Excluded and Partially Excluded Areas Sub Committee); late A.V.Thakkar (Excluded and Partially Excluded Areas [other than those in Assam Sub Committee) and not to mention the late Dr. B.R.Ambedkar (Drafting Committee), commonly referred to as the Father of the Constitution.

In order to look up the Constitutional position of Darjeeling District as a territory and the implication of the fundamental rights of the Darjeeling hill peoples one may refer to the Sub Committee shared by A.V.Thakkar. It is the belief of this writer, that despite the weak case of Darjeeling District to be incorporated as a Partially Excluded Area the concerns of the Committee is reflected in the fact that the hill people of the District were still backward and required administrative protection to reflect the onslaught of the more forward and intelligent brethrens from the plains. With this in mind it is believed Darjeeling District required further protection at the point of granting independence to the country in 1947, with the proviso that the District would form its own administrative unit within the framework of the Constitution in due time.

It is the feeling of the writer that the GNLF leader Mr. Subhash Ghissing missed the opportunity to ask for a state for Darjeeling District in 2000 alongwith Jharkhand, Chattisgarh and Uttranchal while having wasted valuable time converting the Darjeeling hill people to become tribals in order to obtain a state under the Sixth Schedule. Probably he was not aware that the Partially Excluded Area in reference to the A.V.Thakkar Committee the Partially Excluded Area reference to Darjeeling District is understood to be referred to all the indigenous as well as the entire hill peoples of the District as a whole. The entire population has been contrasted with those of the enlightened and more intelligent plainsmen. As a result of this valid and conspicuous contrast it is the feeling of the writer that Darjeeling District automatically was incorporated in the Constitution of India under the Sixth Schedule. It is an ignorant assumption to believe that the Sixth Schedule applied to Gorkha Hill Council Darjeeling despite its deficiency in exclusion of Siliguri subdivision with or without the Dooars is believed to be alive and kicking.

8.    It is critical the people of Darjeeling District understand the history, implication and thereby the meaning of 1873 Bengal Eastern Frontier Regulation (Line System known as Innerline Permit) which is so much tied up with the Govt. of India Act 1935 which is considered to be the benchmark in the federation process of state formations undertaken later after independence in 1947. Briefly the implication of the Innerline system is seen to divide the entire Northeast (which now forms a Council) from the rest of the country with the demarcation line extending to the Northeast from the District of Darjeeling wherein the Regulation applied only as recently till 1990. The question is to be desired from the Govt. of West Bengal as well as the Centre as to why this Regulation was lifted considering the fact the combination of the provisions incorporated within the Line System and the Govt. of India Act 1935 and Order 1936 is jointly implicit in implementing protective measures for the native but backward hill peoples from exploitative immigrants whether from inland or foreign.

With the withdrawal of the Line System in 1999 it is noticeable that massive doses of Indian as well as foreign migrants have upset the entire developments program of the District to the point of turning the Darjeeling hills into a hot spot of environmental impact to an irreversible disastrous ecological status, in every field of human sustenance whether geographically, climatically, socially, economically, politically and above all degradation of human value under any unit of measurement of happiness index. This Darjeeling District has already reached a critical point in over population as contrast to the adjoining parental territories of the state of Sikkim (Darjeeling, Kurseong and Siliguri subdivisions) and Bhutan (Kalimpong subdivision). Comparing the development and progress of these states out of which Darjeeling District originated it is glaring to note that the latter which was once considered the cultural capital of these adjoining states is now at their mercy for cross border trade and commerce and most importantly for employment (once upon a time, not any more). It is primarily because of the setback of opportunities in these neighboring states that now the District (possibly with the Dooars) is demanding a state of its own as Constitutionally provided as per the understanding of the (1) Govt. of India Act 1935 and Order 1936, (2).Cabinet Mission’s 1946 Advisory Committee on Fundamental Rights for Minorities and tribal and excluded areas and (3). As per the Constitution of India guidelines for state formations incorporated in the Fifth and Sixth Schedule out of which 8 new states were formed in combination of one and two. The Darjeeling intelligentsia is required to study the details of the Laws, Regulation and the provisions of all the three in combination in order to understand the process of new state formations within the framework of the Constitution while attempting initiation towards assimilation within the Indian Federation as a Union state.

9.    While attempting to achieve a union state for Darjeeling District (inclusive of Dooars) it is desirable as well as educative for all to study the process of state formations of Jharkhand, Chattisgarh and Uttaranchal. Although the mention of the Constitutional provisions have been surreptiously unmentioned, possibly to undermine opening a floodgate of new state demands which is already piled up in the Union Minister’s table, and which sadly enough will not come about for implementation till the Census Report on 2025 AD (celebrating 75 years of independence) when the entire number of Parliamentary representation will be overalled to adjust the shortfall of electoral population surplus since the promulgation of the Constitution in 1950. For the new applicants such as Telingana, Vidarbha, Bundelkhand and a host of them numbering a score or more it is a next to impossible to initiate any program towards state formation. However this is not applicable to Darjeeling District whose destiny to a state formation is already imprinted in the interpretation of the Constitution of India under the auspicious of the fundamental rights for minorities as already detailed above. In other words it is wrong to equate state formation of the other areas to that of Darjeeling District for which the Constitution has already provided the basic features as a guideline as discussed above. The same yardstick does not apply to the other state formations in India. That is, the process for new state formations of all new entrants, besides those already incorporated in the Constitution (eg. Darjeeling District) the former will have to go through a process of incorporating a new Bill in Parliament providing Act for a fresh lot of new state formations and which as per the understanding of the Govt. will be difficult to implement till 2025 AD.           
 

10.    It is a misconception that the fourth tripartite meeting being held in Darjeeling will bring about any semblance of state formation considering the simple fact that it is only the meetings in Delhi and at the Centre level and in Parliament the goal is to be achieved. Infact, the Tripartite meeting being held in Darjeeling is a setback simply for the reason that it is being held in Darjeeling District which is a part of West Bengal. Considering statehood demand is the prerogative of the Parliament and the Central govt. the guardians of the Constitution are based in New Delhi, not even Kolkata. Therefore it is a folly that any dialogue with Central and State representatives whether in Darjeeling or Kolkata will bear any fruit towards the goal of statehood for Darjeeling District. Only Constitutionally proper directed memorandum submissions and democratically effective representations is considered the roadmap to obtain a new state for  Darjeeling District whose right to state formation did not originate 107 years ago but if properly examined historically it dates back to 236 years ago, nearly two and half centuries if the actual implication of the Regulating Act of 1773 is to be deciphered wherein under the application of the Act in reference to Darjeeling District as a non-Regulating Act is understood in its proper perspection. Hence the application of 1873 Bengal Eastern Frontier Regulation (Line System known as Innerline Permit), Scheduled Districts 1874, Govt. of India Act 1919, and so on (already mentioned elsewhere) till the Independence of India in 1947 and later the promulgation of the Constitution in 1950..       

As already referred earlier, Constitutionally speaking Darjeeling District is required to remain as a territory wholly composing of the four subdivisions. Any subtraction or omission of the entity will be considered a Constitutional abhorrence, and that the State and the Union maybe held responsible if the check and balance of the Constitution is relegated to other ground realities whatever the importance at this stage. After all, is not the Constitution supreme.

It is hoped the forthcoming Tripartite meeting in December will shroud the above vision of Constitutional jurisprudence while placing the separate state issue by calling it Darjeeling state and even Gorkhaland nomenclature if at all accepted under the Constitutional interpretation. This is especially in consideration of the fact that the Union Home Secretary has openly remarked that the Centre has no adverse feelings about Gorkhaland’ but goes on to caution, ‘hypothetically, he ‘did not want to hear of a Gorkhaland where later some others would want another State within Gorkhaland’.  


Hillman –the Analyst.