THE OLD SETTLERS OF SIKKIM

APROPOS “Lucknow: Don’t play billiards out of statehood issue


source:THE HIMALAYAN BEACON [BEACON ONLINE]

BY DARJ MAN

Apropos “Lucknow: Don’t play billiards out of statehood issue. The National Federation of New States (NFNS) 14 Jan 2010 Hindustan Times”, seems itself speaking about it, the game of billiard whatever the game. NFNS surely does not have any aspects of statehood in mind. It is not protecting what is desired to preserve.

Statehood is about the provisions in the Constitution of India which is specific to the issue. The Govt. of India Act 1935 and the “Excluded and Partially Excluded Areas” Order 1936, only can enable justifying statehood demand, and that, specific to the areas mentioned in the Commission of the 1936 Order. Whereas understanding deep into the 1935 Act, no new states formation are possible besides those areas mentioned in the 1936 Order.

Telangana is a visible possibility as it was acquired by India by Sardar Patel’s perceived military intervention, therefore neither democratically or constitutionally. Sikkim was acquired democratically under Article 371 F of the constitution, yet, there are still some loose ends to complain about inspite of the fact since the British times the State was administered under aspects of Indian suzerainty, Treaty of Tumloong (25.03.1861) leading to its cancellation by the Indo Sikkim Treaty (05.12.1950). It is surmised only on 16 May 1975, the Indian Citizenship Act 1956 (5 of 1955) came into force in Sikkim, prior to which the Sikkimese subjects were regulated by the Sikkim Govt. The Sikkim Subjects Regulation 1961 (Notification No. 156/S-61) dated 5 July 1961, following which it was succeeded by Notifications

No. S/277/61 dt: 16 Feb 1962

N0. S/252/65 dt: 26.07.1965

No. 370/4 dt: 03.12.1970 and

vide Sikkim Government Gazette Notification No. 995/4/75 on 21 June 1975 (1).Sikkim (Citizenship) Order 1975 came into force stating (2). every person before 26.04.1975 was a Sikkim subject under the Sikkim Subjects Regulation 1961, shall be deemed to have become a citizen of India.

Only after the Sikkimese were formally converted into Indian citizens could democratic elections be conducted by the interim state to vote a popular government in power. After which Sikkim was abled to amalgamate with the Union of India under Article 371 F. This formality was unobserved by Sardar Patel, then Home Minister, and roughshod hell bent for leather in acquiring Nizam’s Hyderabad (a sovereign nation state), merging Telangana linguistically into Andhra Pradesh, arbitrarily not under democratic process as applied later in Sikkim in 1975.

The question of Gorkhaland, or, to be constitutionally precise, Darjeeling District and the Darjeeling hill peoples have amply been guaranteed in writ by the Govt. of India Act 1935, as a “Partially Excluded Area” Order 1936, which provisions amplified into the Constitution in the Fifth Schedule (administration and control of Scheduled Areas and Scheduled Tribes) by the Constituent Assembly 1946-50, Advisory Committee’s Sub Committee on “Excluded and Partially Excluded Areas (other than Assam)” chairman A.V.Thakkar in 18 August 1947.

It is cautioned, the provisions of the Sixth Schedule (administration of Tribal Areas), which does not apply to Darjeeling District, is to be clearly identified the provisions are applied to erstwhile Assam only. This is clearly understood by the fact the provisions of erstwhile Assam was deliberated by the Sub Committee on North East Frontier (Assam) Tribal and Excluded Areas”, chairman G.N.Bardoloi in 28 July 1947 was forwarded to the Constitution.

It should be enlightening for new statehood seekers, particularly politicians, wherever in India, to consult constitutional luminaries to understand the peculiarity of stat formation in India before embarking on statehood demands, as it is discovered by this writer, there are no other provisions elsewhere in the Constitution of India for new state formations except under the provisions of the Fifth and Sixth Schedule. It is perceived the entire concept of state formation, is infact another name for assimilating and integrating the Excluded and Partially Excluded Areas, which formed a different component of areas outside British India whose jurisdiction was only transferred to the Centre under The (Foreign) Jurisdiction Act 1947 (24 Dec 1947) preceded by The India (Provisional Constitution) Order 1947 (14 Aug 1947) preceded by The Indian Independence Act 1947 (15 June 1947) which remained repealed by Article 395 of the Constitution in 1950.

In simple parlance the entire ‘Excluded and Partially Excluded Areas’ now happened to form the provisions of the Fifth Schedule [Article 244(1)] and Sixth Schedule [Articles 244 (2) and 275(1)], as a matter of fact, since the Govt. of India Act 1915-1919 were administered under Section 52A(1)- “Backward Tracts” and 52A(2)- neither Central nor Provincial Legislature applied, subject to exceptions issued by notification by Governor in Council.

In effect these Excluded and Partially Excluded Areas remained directly under the Crown and Parliament in London and hence constitutionally did not form part of British India that is, the Provinces. It was the continuation of the Backward Tracts provision of the Govt. of India Act 1870 (25 March 1870) read in the Scheduled Districts Act 1874 (8 Dec 1874) provided the provisions in the Act of 1915-1919. The Backward Tracts provisions for Darjeeling District continued till Govt. of India Act 1935 and Order 1936 to the provisions of the Constitution in 1950 as the Fifth and Sixth Schedule.

Coincidently the provisions of Jalpaiguri District moved hand in glove with Darjeeling District till 1935 since the creation of the District in 1869 to its eventual disregard in 1935 when under the Govt. Of India Act 1935 it was removed from the application of neither Excluded nor Partially Excluded Area thereby depriving the District for consideration of special administration as enjoyed for the last 66 years (1869-1935). It is understood the cause of removal from special provision is alluded to deregistration in Census 1941 of the Koch tribes from Census 1931. The reason being the application of language Bengali as the mother tongue of the Koch, whereas in fact the Koch are anthropologically racially different people, Indo-Mongoloid speaking a Tibeto-Burman dialect. Based on his mistaken identity Jalpaiguri District people require to address the wrong implied in Census 1941 may redress it by re-registering Koch as tribes back to its pre 1931 Census status.

In 2001, it is now considered a misapplication of the constitutional provision for Darjeeling District when the State endeavoured to apply the Sixth Schedule, surmised premeditatively in arranging only a part of Darjeeling District (subdivision of DGHC areas) only to be provided under a new nomenclature GHCD, while infact fragmenting the District by dividing Siliguri subdivision. It is perceived the Bill was enmassed opposed by the hill people or maybe deemed described to look so and hence required upsetting the passing of the Bill, in effect to derail it by the concerned undertakers to avert an implied constitutional aberration. The GHCD Sixth Schedule Bill now remains in cold storage in the Rajya Sabha.

Mrs. Sushma Swaraj, Chairperson, Parliamentary Standing Committee, amended the Bill without realizing the inherent mistake that in the proceedings wrongful application of the Fifth Schedule is said to be applied to the Sixth Schedule. A constitutional infringement. If this argument is considered wrong it is upto all readers, at least to make an effort, and verify the same in consultation with Constitutional experts. This action is necessary to determine the seed form the chaff. This is a matter for great public interest and every reader urged to discuss, deliberate and come to a sense of finality in regard to state formation within the framework of the Constitution: so that new applicants for statehood are not fooled by false prophets such as, playing billiard instead of football in India. It is now a bit too late for the World Cup 2010 in South Africa in which India does not feature at all, whereas China does. If Mr. Amar Singh was a footballer ever there was no reason to believe why Mulayam Singh Yadav’s Sawajwadi Party was practically ‘foot-balled out’ in UP under the election strategy of the former’s General Secretaryship of the party..

The statehood seekers of Vidarbha, Bundelkhand, Harit Pradesh, Purvaanchal as well as those not mentioned in the list of members attending the NFNS, are advised to study the constitutional statehood formality and not jump into the whirlpool of Article 3 which is not at all a provision for a state formation. Article 3 is only an article provided for Parliament to pass a Bill for commissioning a State Reorganization Commission, provided the issue is recommended by the President who happens to be the sole authority to allow state formation. That too happens to be in regard to only the areas mentioned in the “Excluded and Partially Excluded Areas”, Govt. of India Order 1936.

Already mentioned earlier, only the areas under the provisions of the Fifth and Sixth Schedules of the Constitution are allowed state formation. No other means, slogan shouting, disrupting public life and infact causing damage to lives and property would be a futile process in demanding statehood. Munish Tamang, professor of English may find many flaws in this article from the point of view of searching the language but on the other hand he is urged to consult constitutional experts and even look up the following suggested books to familiarize with the Constitution before attempting to speak for the Darjeeling hill peoples without the proper authority to do so. If at all he is from the Darjeeling hills it is only a matter of courtesy he is advised to open a channel with Bimal Gurung who at this moment is at the helms of affair in the Darjeeling hills. Attending the NFNS meeting without proper sanction and without any constitutional benchmark to demand statehood for the Darjeeling hill peoples tantamounts to, in effect playing billiards. Hope Mr. Amar Singh, Chairman, NFNS is listening and not using the promise of statehood as an election tool.

Fifth and Sixth Schedules to the Constitution of India by P.Chakraborty
Sixth Schedule to the Constitution by Justice B.L.Hansaria
The integration of Indian States by V.P.Menon
The story of Integration: A New Interpretation by Vanaja Rangaswami
If at all Making of the Indian Union by Sajal Nag, Tejimala Gurung, Abhijit Choudhury is to be read, advise completely skip the article by Tejimala Gurung as the history she relates is about Gorkhas in Darjeeling rather than the “hill peoples’ referred by A.V.Thakkar’s Sub Committee Report on “Excluded and Partially Excluded Areas (others than Assam)” when the constitutional right of Darjeeling District was mentioned and the name enshrined for integration into the Indian Union as a member – Union territory/State under the provision of the Fifth Schedule.

Further, the relevant mentions from the Constituent Assembly Debates (Proceedings) Vol. VII, Thursday 4 November 1948 while discussing the Partially Excluded Area of Bengal, Darjeeling District, quote (e) Bengal: “The partial exclusion of Darjeeling was recommended by the Govt. of West Bengal not because it was considered as a backward area but because it was felt that safeguards were necessary in the interest of the hill peoples’. It goes to support further stating, quote, “Undoubtedly the land the hill tribes need to be protected from the maw of money lenders but there is little case otherwise for continuing partial exclusion or special administration”.

In the following para it further goes to state, quote “The Gurkha League desires that there should be an elected Advisory Council in the District so that the interest of the Gurkhas in representing in the services, in the land and industry of the district maybe protected. They have also sponsored a movement for union with Assam where there is strong Gurkha element”.

One is required to understand the implication of the Govt. of India, Absorbed Area (Laws) Act 1954 applied to various states with sizable tribal populations such as Bihar, Bombay, Orissa, Uttar Pradesh and West Bengal. The 1954 Act was applied to West Bengal in respect of the Partially Excluded Area of Darjeeling District, by virtue of which it is established Darjeeling District is provided for inclusion in the Constitution forwarded in the Fifth Schedule. By virtue of this Act, a decade ago in 2000 AD two new states were carved out of Bihar and Uttar Pradesh as well as another state out of Madhya Pradesh as per The Scheduled Areas (States of Chattisgarh, Jharkhand and Madhya Pradesh) Order 2003 [C.O.192] carving our namely Jharkhand, Uttarkhand and Chattisgarh out of the respective states.

Had Mr. Subhas Ghissing been more conversant with state formation under constitutional provisions of Darjeeling District it can be said now that a Union Territory, which is believed to have been offered by none other the late PM Rajiv Gandhi should have been accepted as the Interim Setup and which act is only now in the process of being replayed. It is a rumoured belief Mr. Ghissing objected to any reference to the Darjeeling hill people being referred as tribals in order to accept the constitutional provision at the time being a Union Territory. It was his belief the tribals in East India commonly known as Nagas ran around naked was his perception of tribal trait not being familiar with the Lukur Commission Report of 1965 stating five criteria for Scheduled Tribes recognition. It is an irony of truth turning into fate when the person denying being called a tribal had to raise the same tribal boogie in demanding all the Gorkhas recognized as Scheduled Tribes.

It is a travesty of tragedy his unwise and fateful mistake eventually cost him his crown, conspicuous in disgrace, instead of retiring in glory and fame. Hope this lesson learnt will deter others from falling into the pond of crabs. Bimal Gurung seems to be quite firm in his conviction to deliver the interim Setup – Union territory before formalizing statehood after attaining a Scheduled Area status from the President in time. If the President is confirmed in the belief Darjeeling District has a substantially larger population of tribes than the present 25.5 % whereas in actual fact as per 1931 census forwarded to 2001 Darjeeling District is estimated to have a tribal population of more than 61.79% (Bhotia-Lepcha 12.70%; Tamang-Limbu 12.85%; Gurung-Rai 14.76%; Magar 3.63%, Newar 5.35%; Bhujel, Sunuwar-Dewan approx 5% Siliguri (plains ST) 7.50%). This percentage is a moderate estimation give or take 10% less deficit. The tribal population in Census 1931 is estimated at 68% or 58% which was decimated to 37.54% & 35.67 % respectively.

In other words that no mistakes are presented in the future Census undertaking, the 1941 Census Commissioner of India, M.Y.M.Yeats, in Note from Census Commissioner, A- The Indian Census, I – The Record, adds to say quote, “I suggest further that language and script questions be dropped from any future censuses until such time as the population of India is able to respond properly to a factual enquiry on them. The census can collect and deal only with fact snot with preconceptions”. This is ample justification, that the wrongs done by 1941 Census require to be converted by making the list of all the Darjeeling hill communities whose application in seeking Scheduled Tribes status under Article 342 (1) & (2) of the Constitution.

Darjeeling District has since long, constantly been deprived of its constitutional provisions simply because those demanding statehood were unable to express the Constitutional plank of its Fifth Schedule provisions. Certainly not the Sixth Schedule which applies to erstwhile Assam only.

They are however sisters of the same spear which sometimes is difficult to set apart as a result of the close affinity and distinction common to both but apart from the plains of India. Hence the present perception of imbroglio. The state is aware of these constitutional parameters applied to Darjeeling District and have been, since 1935 have underplayed its role anticipating someday the hill peoples will demand the inevitable. That the Constitutionally documented right require to be resolved at some given point. The state is now at its wits end, practically exerting all delaying tactics at its disposal in order to derail the constitutional right as long as possible. Sixty years is long enough, so far now no further. The hill peoples inspired dream has outlasted its patience specially now the statehood seekers are aware of the constitutional writings so long swept under the carpet.

It is only travesty of fate of the Darjeeling people, blaming ignorance not as bliss but infact the stumbling block in attempting statehood by all means including Gorkhaland except that by the Constitutional route which is unknown to most persons, even intellectuals and politicians who are incapacitated as a result in disseminating the right to the masses as it were. This writer has been dedicated to teaching the constitutional right to all the stakeholders so that this time the opportunity will not go unclaimed. Thus far no further. There is no love lost between the present majority population ruling Bengal and the Darjeeling hill people. The latter simply desires the fruitation of the constitutional rights, simple as that.


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