The rampart spurge of statehood activists arrested violates the Fifth Schedule. The present state of police action in arresting Gorkhaland state demand activists is a symptom indicating the State is in dire position of a terminal illness, frantically using all doses of medicines for their cure. This is neither logical nor sufficing because there is no perceptible cure and that the creation of Gorkhaland state is inevitable as the legal right provided in the Fifth Schedule (subject to completing the Scheduled Area implication). There is no question of a doubt that the State is aware of this inevitability and behaving more rabidly then sanely by harassing the statehood demand activists as an act of reprisal and confrontation then the required peaceful path as sane individuals. No matter the activists may have been charged on various law and order of whatever kind however not amounting to any calculated event such as any allegation to loss of human lives. Whatever maybe the charges, whether civil, criminal or any other the charges require to be judged on the basis of the present and ongoing demand for a separate state outside Bengal, and which, in reference to the Constitution (Fifth Schedule applied to Darjeeling District) is legally valid grounds to assert the demand democratically and even face the consequences thereof which may arise at time out of certain eventualities of the moment and not enforced by premeditative agendas. It is likely the present spate of arrests of statehood activists, although legal in writ, whether it is applicable at a critical moment of time when the statehood demand is nearing its destination, certainly derives a different interpretation. That is, the action is more of a suppressive measure then legality, as the entire episodic action could have been awaited till the statehood demand is constitutionally resolved. Having said that now it requires to be debated whether the arrests, of more than estimated number 600 is depicted as draconian then delivery of criminal justice. The question to be raised at this moment is, first of all to ask the question to the Govt. whether Darjeeling District falls within the ambit of the Fifth Schedule or not. This is a very crucial question because it is the belief of the statehood activists, that the statehood demand is a consideration event and therefore legal and valid. So if any action taken to deliver this demand under a democratic umbrella, to weather the climate whether rainfall or sunshine, is surely unable to contain a storm. This is to interpret the present situation wherein the statehood activists may have breached the margin of law and order over enthusiastically, with emotion and passion which is a typical psychosomatic feature of all hill people, having adapted themselves to a environment conducive to simple living and high thinking (infact the inability to think at all which is the Mahayana Buddhist precept to attain nirvana). Basically the mental aptitude of the hill people is a simple attitude and therefore reacts to a situation instantly without realising the future consequences inevitably. This is a trademark which cannot be erased simply by a rubber but require a concerted effort by the majority people ruling the roost of governance throughout the Indian subcontinent, require to understand this precedence in delivering justice even if it is charged as a matter of law and order. This is relevant in the present case of statehood activists being hounded for arrest to deliver justice (which infact are only charges unless proved guilty). The point is not to argue the issue on the interpretation of IPCr articulations but study the issue simply as a matter of law and order incidentally originating out of a democratic program raising the delay of implementing the constitutional provisions relevant to Darjeeling District citing the Fifth Schedule as the legality implied by the existence of Tribes Advisory Council in West Bengal. Considering this stand exists, i.e. Darjeeling District as an entity of the Fifth Schedule, is guaranteed within its meaning, to demand a State anytime (though subject to being declared a Scheduled Area) is open to argument, why the Scheduled Area is applicable before being declared so legally. The reply to this is based on the premise that the ‘hill people’ (appellation derived from Thakkar Sub Committee 1946-48) existed with a different nomenclature in Census 1931(population identification based on ethnology) referred to the entire population as the ‘hill tribes of the Himalayas’ (nos. 26). From Census 1941 -2001 implied the use of the mother tongue in identifying the same population unwarranted a different cast of the same population molding most of the hill tribes included with other non tribes. Since then the hill tribes of the Himalayas is responsible for counting with the non tribes till Census 2011 (ethnology based as Census 1931) when published is anticipated to relieve the oversight of application of Census 1941-2001. As a result of which it is logically to be derived that most of the hill tribes merged with non tribes would necessarily out of the implications of Census 2011 once again be effectively placed in recognition of Census 1931. This is in recognition of the fact of the report undertaken by Roy Burman Commission (CRESP) 2008 Sikkim will also be applied to Darjeeling District as a geophysical extension of the State. Therefore visualising this as a real construction based on documented evidences it is justifiable to place this premise in arguing that the entire Fifth Schedule aspect is applicable to Darjeeling District in reality, and therefore applicable to a perceptual legal interpretation in citing the future event to come. To corroborate the above conclusion one may refer the argument placed by Union Home Secretary, Shri Madhukar Gupta in confirming Limbus and Tamangs as Scheduled Tribes (ST) in 2003 (after the two were declared ST in Sikkim in 2002), this has reference to Parliament Standing Committee Report in reference to the Sixth Schedule to the Constitution (Amendment) Bill 2007 etc, wherein the Union Secretary articulated the defense of recognising the two tribes, Limbus and Tamangs not with Census 2001 (as should be the case) but in anticipation of the consideration in advance of Census 2011. To cite this example references are made to the Parliament Standing Committee Report 2007 Pg.6 quote, “…about the tribal population being artificially or otherwise inflated, I would only like to bring before the hon. Committee two facts. For a long time demands has been continuing when in 2001 (in Hindi) that a number of other communities like Gurungs, Rais, Nehars, and several other communities in that area should also be declared as Scheduled Tribes (in Hindi) and a feeling was that so many tribal community of communities who are wanting to be declared as Scheduled Tribes, it is basically aimed at the idea that you have a larger than 50 per cent tribal community and so on. In so far as the Tamangs and Limbus are concerned, the hon. Committee would be aware that these communities were also declared as a result of a long pending demand of Scheduled Tribes in Sikkim. So, I would not think that the declaration of these two communities as tribes was basically intended to facilitate this process although nevertheless of course (in Hindi) … (unquote) Supporting the above contentions of the Union Home Secretary, further confirming the statements is directly related to recognising Darjeeling District as a Scheduled Area perspective therefore completing the entirety of the provisions therein i.e. to legally demand Gorkhaland state. This derivation is elaborately stated in the same Standing Committee Report proceedings 2007 implying that Sixth Schedule which was the theme of the debate is not applicable to Darjeeling District in the words of the Chairman (Sushma Swaraj) pg. 245 quote “The Darjeeling Accord of 1988 does not speak of the Fifth Schedule or the Sixth Schedule at all. They wanted more powers after 15 years. So you offered solution under the Sixth Schedule. Mr. Ahluwalia’s basic point is that solution should have been offered under the Fifth Schedule instead of the Sixth Schedule because by offering solution under the Sixth Schedule, you are changing the whole scheme of the Constitution. The Sixth Schedule was limited only to Assam, Tripura, Meghalaya and Mizoram. Similar solution could have been offered to Shri Subhas Ghisingh under the Fifth Schedule. … (unquote) Thereafter Mr.S.S.Ahluwalia further states without mincing any words that the Sixth Schedule application for Darjeeling District is inapplicable but suggest it was implanted to divert the attention from demanding a State. The statement is framed in these words Pg.246 quote “I am asking this before bringing the Sixth Schedule, … I would like to know whether you or your Intelligence Branch or any other Branch have done any assessment of the issue before signing the MOS …….. 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 really 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. ….. It was decentralization of power from Writers’ Building to the Hill Council …. (unquote) In support and continuation of which is followed by the statement made by the Chairman in the following words Pg. 241 quote … I have now come to know that the Fifth Schedule has been extended to Himachal Pradesh, Punjab, Orissa, Rajasthan, Maharashtra, Chhattisgarh, Jharkhand, Madhya Pradesh and Andhra Pradesh and some of the areas have been declared by the President as “Scheduled Areas”. Similarly, the Scheduled Area order could have been extended to Darjeeling District and Tribes Advisory Council, or, something could have been established …. and tell us why this solution could not have been offered under the Fifth Schedule….(unquote) . The above declarations by eminent members of the Standing Committee Report are intended to confirm the Fifth Schedule application to Darjeeling District whereas the Sixth Schedule was schemed by the State to derail the statehood implication of the Fifth Schedule. The DGHC was an implant of Writers’ Building to the Darjeeling hills and for which establishment the Constitution was amended to enhance continuance of the State govt. rules and regulations, in total contra indication to the will of the people and accordingly the DGHC was also rejected simultaneously with the proposed creation of Gorkha Hill Council Darjeeling (GHCD) within the Sixth Schedule was improper and probably infringing the Constitution itself. That is, changing the contours of the Darjeeling hills Fifth Schedule implications entirely change into the Sixth Schedule which is specific to North East States whereas the Fifth Schedule is indicated for application in entire India except Assam. The above projections are sufficient enough to characterize Darjeeling District provided its safeguard within the Fifth Schedule provisions although the Scheduled Area identity is still pending to be fulfilled. This is implied by the CRESP Report 2008 which seems to have been applied into a commission after the Parliamentary Standing Committee 2007 deliberations to effect Scheduled Area for implementation as rightly deserving in reference to Census 1931 to be reconstituted in Census 2011 to determine its proper place in the Constitution i.e. to create a new state of Gorkhaland, or whatever name proper at the time, by virtue of the provision of the Fifth Schedule. The certainty exists the District (i.e. all the four subdivisions included) is the picture of the State. The probability is the separation from West Bengal is perceived more aligned as a Union Territory then a full fledged State. It is transparently clear with all the citations of accounts and references above point to the reality Darjeeling District is within the Fifth Schedule and therefore guaranteed to become UT/State at the proper time ( after declaration of the District as a Scheduled Area). Based on this ground reality the rush in police action to arrest the statehood activists on grounds of law and order misadventure not amounting to extreme criminality, is perceived to be an unethical action by the state machinery to please the masters in power in whatever respect. As such the action seems more as a desperate move by the State to use all resources at its command to derail the legality of the agitation for a statehood demand legally guaranteed by the provisions of the Fifth Schedule. In considering this factor the arrest tantamount to violation of the principles of basic human understanding and discrimination per se amongst the ethnic divide which itself violates the fundamental rights of the civil society. The implication of the arrest within the Fifth Schedule area where the agitation is democratically expressed and which may have created a sense of law and order is an incidental incident not a premeditated act of offence and therefore not truly a criminal offence as per law but infact extending into the domain of the Fifth Schedule area where the people are demanding their fundamental rights i.e. the right to self-determination within the Schedules and not beyond, is not a cognizable offence in the eyes of law. Rather the custodial detention is offending the fundamental rights of the national minorities, the hill peoples of Darjeeling District ref. Census 1931 (not accounting Census 1941-2001 which implications were erroneously implied and therefore null and void in examination). On the contrary by indicating to enforce rigorously the IPCr rules to the national minorities demanding their right to self-determination is violative of the basic principles of human rights and therefore the arrest under IPCr is ethically unconstitutional. The perceived violations requires to be addressed with this concern in mind and all the pending cases related to the statehood activists are to be relieved forthwith where the law and order does not amount to extremity. All pending charges, whatever the sections, require to be attested with a draft attachment citing the unconstitutionality of the charges, arrest and detention not under IPCr but instead amounting to unconstitutional arrest of national minorities of Darjeeling District. The copy of each case cited under IPCr need to be despatched to the esteemed Governor of West Bengal for information and necessary action in relieving the present crisis arising out of enforcing arrest in rampant charge – understood more as a reactive aggressive mode of the state machinery then the principle of legal jurisprudence. In short all criminal charges require to be relived on grounds of the basic principles of human rights and not criminality per force. In this regard ref. maybe proper in stating that the cal high court in deliberating on the criminal charges on the Maoist activists in the Fifth Schedule area have given a definite ruling without mincing any words that the extremists in custody are to be treated in custody as political prisoners and not criminals. The same verdict applies to Darjeeling District in the Fifth Schedule (with or without the Scheduled Area notwithstanding) because the District is already perceived as a Scheduled Area as explained above in the Parliamentary Standing Committee Reports by Hillman the analyst
Posted on: Sun, 25 Aug 2013 10:14:29 +0000
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