Hillman the Analyst, KalimNews, Kalimpong, 15 March 2014: Nomination of SS Ahluwalia for the Darjeeling Parliamentary constituency for the forthcoming elections (March- April) 2014 is of significant importance particularly in consideration of the paramount issue for the demand of a State – Gorkhaland. Therefore the ruling political unit GJM supporting the candidacy of BJP stalwart Ahluwalia for the Darjeeling Lok Sabha seat bodes well on account of the statehood demand for many reasons than one in comparison to the statehood issue projected by other political groups for the coming 2014 elections fray.
The first count for which the BJP candidate is conducive to the statehood demand is that the national party BJP has constantly been favouring the creation of smaller states citing better govt. allowing progressive development (which treatment for larger states is inconvenienced by the geography as well as the bludgeoned size of populations). No doubt this factor is well recognised. But the creation of new states without the constitutional guarantee is not legally viable and therefore creating new states without legal sanction is out of the question for consideration. It is well known, at least to most readers who have been following this writer’s discourses on the legality ascertaining that Darjeeling District and adjoining Dooars, is probably the last candidate for the creation of a new state, as provided by law, which viewpoints has already been enquired, examined, discussed and the proceedings available in print etc. practically since the time Bimal Gurung established his political unit for the sole purpose of demanding a state (Gorkhaland). Not to mince words, it is now amply crystal clear, as argued by this writer in the pages of print, that the creation of a state/UT of Darjeeling District & the adjoining Dooars is certain to come about within the very near future – simply for the reason this scheme of event is already foretold in the Constitution i.e. the provisions of the Fifth Schedule applied to the said territories.
The reader is reminded that the provision of the Fifth Schedule has been re-imposed in West Bengal by the order of the West Bengal Govt. on 10 December 2013 instructing the Govt. of West Bengal to establish the defining requirement of the Fifth Schedule – the Tribes Advisory Council (TAC), being a very powerful constitutional body which even supersedes in content with the legislature of the State. It is understood the creation of TAC is to safeguard the interests of the tribals of the state as a result of which, no Act of legislature is to be imposed on the designated Fifth Schedule (Scheduled Areas) without the prior consultation of the Governor with TAC, before issuing the Notification of particular legislation/Act.
The second point which favors’ the candidacy of SS Ahluwalia for the MP seat is that, Darjeeling District & adjoining Dooars are already provided by law (Fifth Schedule) to effecting that goal to its logical conclusion – giving substance to the demand i.e. a State /UT. It would only be proper for SS Ahluwalia to take up the issue of the statehood demand at the appropriate time. He is suitably conditioned to put the demand to its implied trajectory, (a). the BJP already supports creation of new small states; (b) since the statehood demand for Darjeeling & adjoining Dooars has legal grounds (Partially Excluded Area/Fifth Schedule) and (c) the expectancy of the 2014 elections is predicted in favour of the BJP in coming to power, or, become the largest stakeholders in forming the National Democratic Alliance (NDA) govt. In assembling the cited three factors it would convenience Ahluwalia to demand a state for the Darjeeling hill peoples and would be a simple matter without much hassle from opponents (here meaning the entire assembly of political parties) from the plains (Congress, TMC, CPM, etc.) as well as the hills (TMC, GNLF, CPRM, etc).
If only the hill political units could see the morn of the dawn that the new State/UT is already past the twilight zone in beckoning the sun to rise, they would be wiser and not sadder (later) when the demand is finally fulfilled, and which, this writer predicts will come about immediately after the formation of the next govt. at the Centre. One can even expect the finality of the decision for the demand to be concluded within the year 2014. These predictions are not based on cosmology and the zodiac but purely on facts related to the constitutionality of state formations, as a matter of sequences arising out of the provisions of the Fifth Schedule applicable to West Bengal. The only factor which is delaying the constitutional scheme of events is the subject related to the provision of a ‘Scheduled Area’ which the District requires to acquire, being defined as such by the President on due acceptance by Parliament in making it into law (Act).
The third factor supporting Ahluwalia in the demand is his knowledge of the Constitution, at least the Fifth & Sixth Schedules which understanding seems to be quite familiar. As a result of which he is quite aware of the fact, that already an Ordinance in the form of a Bill is now pending on the table of the speaker of the Rajya Sabha towards scheduling certain areas in Darjeeling District as a Scheduled Area as required to confirm with the Fifth Schedule, and eventually which legality completes the application of demanding a new state/UT. For the readers to understand this aspect maybe visually unclear. This is being cleared by informing that the said Bill which relates to scheduling the area (particularly the three subdivisions of Darjeeling, Kurseong and Kalimpong) as a Scheduled Area is pending in Rajya Sabha in the form of,‘Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Bill 2013 -Third Ordinance (Bill No.LXVII of 2013) on 27 Nov 2013 in the Rajya Sabha’.
ToThose unfamiliar with the contents of the above Bill and its implications it requires to be reviewed to explain its contents and implications as:
1.The Bill has direct impact on the State of Sikkim particularly to the delimitation of the State Assembly in context to the factor that two new Scheduled Tribes are now listed in Art. 342 which bearing concerns the reservation of the two tribes in the State Assembly seats probably allocated out of the existing general seat. In other words, had the above Bill had been passed into an Act there was/is the possibility, even during the forthcoming 2014 elections the two newly listed STs of 2003,Limbus & Tamangs, could have had the Assembly seats reserved for them. This was not to be as the Presidential Ordinance placed by the govt. in the form of the Bill as discussed, has been detracted by the Rajya Sabha MPs of national parties of various hues of colour in allowing it become a law. The politicking in postponing the Bill which eventually was destined to become law, sooner or later, the matter being of constitutional import, and therefore cannot be permanently shelved to dust. It will raise its legal head soon immediately after the new govt. is established at the Centre. The reason for stalling the Bill is entirely politically motivated resting it on the shoulders of the combined forces of practically all the political party MPs of West Bengal in the Rajya Sabha. This situation is entirely understandable, as the Bill if passed, which in effect, because of its STs Interest when raised to its final state is indicated to effect the partition of West Bengal, which is infact the Bill portends to be. The aspect of the Bill relates to scheduling the area in the interest of the STs to confer them greater right to self determination, within the specified areas (Partially Excluded Area/Fifth Schedule).
This tantamount to bifurcating West Bengal creating a new state as per demand, which coming is well known to all peeking into the Constitution, not to mention those holding power in the State. It is with this premonition in mind and accepting its eventual reality, the govt. (obviously meaning the ruling UPA too as well as also the opposition across the bench are vying to gain support of West Bengal MPs with an eye in forming the next govt. at the Centre. The quid pro quo of this deal is to delay the aforesaid Delimitation Bill in the Rajya Sabha and give a breathing space to TMC till the elections are over in avoiding the bifurcation of West Bengal, which it is known to all the powers that be, that eventually a state will be created for the erstwhile native peoples of Sikkim and Bhutan now under the nomenclature of STs in the Constitution. After all it is in the public domain that both Sikkim and Bhutan have already given a no objection understanding for the creation of a state for the people within the areas which formally belonged to them. Their no objection is recited in (i) the Sikkim Legislative Assembly Resolution No. 3, 2011 bespeaks this and (ii). The new Indo-Bhutanese Treaty of 2007 refers the same aspect by not mentioning at all in the draft document of the Treaty, the question of the yearly annual gratuity of Rs. 5 lakhs paid to Bhutan by India. Read with the two statements is related the postponed delimitation Bill to confer the people of this region in question as a Scheduled Area as their identity and accordingly give to them what is their as guaranteed by the Constitution a state/UT for Darjeeling District & the Dooars. In understanding the Constitution it is reckoned that the new administrative unit within the Indian union will be comprised of Darjeeling District to the Dooars areas of Jalpaiguri District as well as the BTC (Bodoland) area of Assam. This may sound untenable to those readers only who are not familiar with the mechanism of the state formation in India and therefore consider this aspect an imagination. This is not true at all as the imagine itself will become a reality since all statehood creations since the commencement of the Constitution in 1952 onwards, is a programmed constitutional event which necessarily require to be implemented before the last Census 2025 AD, the date at which the entire Parliament seats will be overhauled (70 years, the period dictated by the Constitution itself).
Reverting back to the Delimitation Bill, the point which requires to be translated here for understanding in context to Sikkim is that the two new STs are being deprived as a matter of speaking acquiring the ST reserve seats, as per law, in the forthcoming elections itself. The Bill is intentionally postponed till after elections for serving the purpose of whichever political party benefits from delaying it as a matter of vote bank tactics. In reference to the benefit accruing to the concerned political parties, this writer is perplexed and unable to estimate the reason as to why any of the political parties in the state have not spoken at all, nor explained nor raised the question in the Lok Sabha as to the delay of the postponement. This is inspite of the fact is unexplainable as well as perplexing as the issue at hand is about the constitutional right of the STs related to reservation of Limbus & Tamangs in the State Assembly as well as the Parliamentary seat in the coming elections. Had the Delimitation Bill been passed there is a distinct indication that the Parliamentary seats both in Sikkim as well as the Darjeeling constituency would be reserved ST constituency. However this was not to be for the time being, and so was it intended in Sikkim to once to field a non ST candidate in lieu of ST which would have been in true spirit of the Constitution if the Delimitation Bill had been passed.
Incidentally the same issue applied to Darjeeling District seems to be more effective in reality that despite the Delimitation Bill is pending, at least two prominent candidates for the MP seat are ST, Baichung Bhutia (TMC) and Dr. Mahendra P Lama (independent). It is now stated that SS Ahluwlia a stalwart of the BJP is in the MP fray certainly bodes well even if he is not an ST, for the simple reason of his BJP membership besides his versatility as a person of remarkable storage of knowledge.
The fourth factor which is attached to SS Ahluwalia and his suitability for the MP seat particularly in respect of Darjeeling constituency is the fact that he is versatile in the knowledge of the northeast states and their constitutional related backgrounds, particularly the Fifth & Sixth Schedules. This aspect is clearly visible during his deliberations in ‘The Sixth Schedule to the Constitution (Amendment) Bill 2007 and the Constitution 107th Amendment Bill 2007’ in relation to Gorkha Hill Council Darjeeling (GHCD) which was planned to be under the Sixth Schedule in West Bengal. It however met a natural end in the Rajya Sabha though it was forwarded by the Parliamentary Standing Committee with an underlying amendment. The Bill however has lapsed as a result of not ever being introduced by the Speaker as well as the fact a new Lok Sabha body was formed after introduction of the Bill, which being the primary reason for the lapse.
The fact to note is that SS Ahluwalia during process of the debate has minced no words in stating that the constitutional issue related to Darjeeling District is provided in the fifth Schedule and not the Sixth Schedule, which he has pointed out is concerning only the Northeast States which originated out of the erstwhile province of Assam before 1947. In other words, the Sixth Schedule does not pertain to any area, including Darjeeling District nor any other areas in rest of India, except the North east states. The Sixth Schedule is within the specific ambit of Articles 244(2) &275(1), whereas the Fifth Schedule under Art. 244(1). Infact in course of the debate SS Ahluwalia has this to say ref. above (Parliamentary Standing Committee on Home Affairs Pg.244) quote “ …. Actually, as per the spirit and soul of the Constitution, if you want to give any autonomy to a particular district or areas other than Assam, Meghalaya, Tripura and Mizoram, that should fall in the Fifth Schedule. At any point of time, did you discuss this matter with Shri Subhas Ghising and the State Government that we can give you Fifth Schedule and not Sixth Schedule because the Sixth Schedule changes the total character of the Constitution”. …….. (pg.246) …. So did you make any assessment as to what exactly the country is going to achieve and whether the aspirations and expectations of the people of that area are fulfilled or not? The Sixth Schedule is just a bargain for a demand of their Statehood and of that pressure. You have just given a safety wall that go to Sixth Schedule and forget about the Statehood: we will not provide that or anything else’. (unquote).
The above excerpt clearly indicates (i) Darjeeling peoples demand falls within the Fifth Schedule (though at this moment it is a fractured one and which requires to be rejoined by conferring its earlier status, before independence, as a Partially Excluded Area and thereby regain its tribal impacted area status and accordingly schedule for special treatment i.e. Scheduled Area. Which legal term in a way is the main qualification on account of which it is enabled in becoming a state within the Indian union infact as a right guaranteed by the Constitution itself. One might add to state that no state formation in India is possible, whatever maybe the qualifications cited, language, religion, culture, history, etc the only legality to determine statehood is already programmed in the Act of 1935 which determines the areas as Excluded & Partially Excluded Areas (E&PEA), require special treatment of administration apart from that applied to the general system to the rest of India. These E&PEA were treated ‘as if‘ it formed part of Provincial India. In the same vein after independence, the special treatment applied till the point of time that these became separate administrative units (outside from whom they were attached to) to become a full fledged member of the Union of India. Therefore (2) no matter what amount of political pressure is exerted by the state in disallowing bifurcation in creating a new state as demanded by the hill people of Darjeeling District, in no account, because of the constitutional implications cited above, will the state be allowed to manipulate, no matter how strong its sway with political powers that be, can disallow the Central govt. from exerting its de facto and de jure rights in targeting it to its final point which is - create a new state out of West Bengal reckoned as Darjeeling & Dooars (Union Territory).
KarmaT.Pempahishey alias "Hillman the Analyst" is a columnist and freelance writer.
Read More...