KalimNews, Kalimpong, 1 December 2013: Hillman the analyst writes that Darjeeling District & Dooars are legally guaranteed, directly to become a state/UT. The GTA is only an interim setup towards that goal till the areas is declared a Scheduled Area, which provision of the Fifth Schedule guarantees the peoples of the region to demand a state as well as obtain it at tee opportune time suiting the Govt. of India disposition. A summary of how this process is being conducted is related below. The letter sent by Bimal Gurung, President GJM to then Home Minister P.Chidambaram, signed : 10 Feb 2010, demanding in the draft the main issues referred briefly here and not chronologically as: 1. An interim setup , 2. A state of Gorkhaland under Article 3; 3.“list the Gorkhas as Scheduled Tribes”; 4. (i) Gorkhaland or (ii) Darjeeling & Dooars. The letter itself is purported as a draft sent by the Centre to Bimal Gurung, and this was expressed openly during his meeting in Kalimpong at Deolo. The demand of the letter itself clearly shows the concern of the central govt. to deliver a state or more appropriately a UT. For Darjeeling District (including all the four subdivisions), and the Dooars extracted out of Jalpaiguri District. This seems to be the visible constitutional legality in understanding the meaning of the Act of 1935 and Order 1936 in reference to the Excluded & Partially Excluded Areas (E&PEA’s) implies that the areas under the two terminologies were outside British India. Therefore by virtue of this ‘Exclusion’ one is to read that these areas were the Crown colonies and perceived as such belonging to the English Crown and not under the British (Govt. of India). When British India became independent in 1947 the territories in question were related to the fifteen (15) Provinces which were later formed into nine (9) larger units including the territories of the Indian Princely states merged with the respective units. Since the E&PEA’s were not in British India, as a matter of speaking, these areas were not subject to the Independence Act of 1947 as they were Crown colonies. Accordingly these E&PEA’s were handed over by the Crown to the Viceroy in 1947 and who came in direct charge over them till the Constitution of India was drafted and commenced in 1950 in which these territories were once again handed over by the Viceroy to the President of India who was the symbolic and titular head of the new country, the Sovereign Democratic Republic of India or Bharat, which first govt. was elected promulgating the Constitution of India in 1952. In the Constitution the E&PEA’s were incorporated in the Fifth & Sixth Schedules for their safeguard as a distinct ethnic group of people, as different from the rest of India. This is to understand the inhabitants within these areas (initially as British subjects in the Crown colony) and later in the Fifth & Sixth Schedules (as ethnically distinct people from rest of India, suggested as inhabitants of various states outside independent India with whom British India had separate terms, understanding and treaties regarding their absorption as Crown colonies). To illustrate this point more transparently, the case of Darjeeling District can be cited. The District was formed in 1866/67 as an administrative unit out of the ceded territories of Sikkim and Bhutan and therefore by international understanding, in respect to the treaty terms, as a mater of right, at the time of independence when the British left India these territories (Crown colonies) in legal perception should have been returned to the original owners, neither the owners seemed to have claimed, which should have been the process. Since this was not done, the District still remained within the treaty terms which Sikkim and Bhutan had with the British. After independence however a new country the Republic of India, continued the two treaty terms with the respective countries - Bhutan, by the Indo-Bhutan Treaty of 1949 and Sikkim, Indo-Sikkim Treaty 1950. Although Darjeeling District and the Dooars are in the Fifth Schedule of the Constitution in which the distinct ethnicity (Sikkimese & Bhutanese) are safeguarded under the implied respective treaty terms signed after independence. The annual subsidy received by the two countries as per the treaty obligations signifies that the District is indicated, still belonging to the parent states and therefore safeguarded within the Fifth Schedule preserving their original identity. After Sikkim became a democratically elected state, rejecting monarchy, it became a state in the Union of India in 1975, whereby the treaty of 1950 automatically lapsed, and since which period, the provision of Article X, “agrees to pay the Govt. of Sikkim a sum of Rs. 3 lakhs every year so long as the terms of this treaty are duly observed by the Govt. of Sikkim” is also abrogated. Therefore this money transaction also remains cancelled. But the fact is the subdivision of Darjeeling, Kurseong & Siliguri still remains part of Sikkim state in India and to declare this point as not valid is the significance of the Sikkim Resolution No.3 2011, is significant in understanding that the Sikkim Assembly has given, a sort of a no objection certificate, in disclaiming its rights over its ceded territories, and creating a new state out of it. The Resolution is indicated to give the President of India a free hand in deciding the future of the Sikkimese territories and thereby legalizing the right of the Darjeeling hill peoples to form a new state. In a similar stance the new Indo-Bhutan Treaty 2007 completely omits Article 3 of the 1949 Treaty “… the Govt. of India agrees to make an annual payment of Rs. 5 lakhs to the Govt. of Bhutan … This payment shall continue so long as the Treaty remains in force …”. The omission of Article 3 in the new treaty from henceforth by not mentioning the annul gratuity of Rs.5 lakhs infact indicates Bhutan is giving up its rights over the ceded territories of the entire 18 Dooars (11 Bengal Dooars and 7 Assam Dooars now already formed into Bodoland Territorial Council under the Sixth Schedule). Since the 11 Bengal Dooars remains to be settled in which Kalimpong subdivision is part of Dalimkote Dooars but within Darjeeling District. Since Kalimpong is already in Darjeeling District it would be constitutionally proper the adjoining Dooars in Jalpaiguri District is amalgamated with Darjeeling District forming a geophysical contiguous belt. This would be the new picture of a new state/UT of Gorkhaland or Darjeeling & Dooars. A separate treaty with Nepal was also signed by the Indo-Nepal Treaty of 1950 which significantly ensured by Article VIII “cancels all previous treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal”. This treaty with Nepal indicates that since all the past Anglo British treaties were cancelled, the former had no right to the land they had conquered and ruled between 1770 -1815 terminated by the Treaty of Segowlee 1815. Since Nepal has no right over the Sikkimese territories which it had conquered in 1770 -1815, the lands were returned to the Sikkimese Maharaja by the Treaty of Titalia 1817. After having returned the territories back to Sikkim the East India Company (a corporation under the British Company Act of Parliament) acquired by a Deed of Grant, 1835 large tract of land including Darjeeling and surrounding areas. (This deed of grant has a controversial historical background in that only a small portion of the Darjeeling hill, according to the Maharaja, had been gifted and not the entire land mentioned in the grant. The deed of grant (ref.pg.11 Sikkim:Darjeeling Compendium of Documents, compiled & edited by R.Moktan) indicates, “Seal of the Rajah prefix to the Document” but does not show that it was signed. Whereas in the same page the document is signed by A.Campbell, Superintendent of Darjeeling and in charge of political relations with Sikkim. This controversy still exists in literature alleging the document translated from English into the local Tibetan script is interpolated and the translation itself suitably adjusted to benefit the East India Company. However at this moment of time this topic may not be relevant to discuss though serious to be taken up at a later point to recorrect the historical perception as it exists. The above details are the historical reasons behind Darjeeling District being determined as a Partially Excluded Area (Fifth Schedule however without the Scheduled Area which is the crucial criteria required to legally demand a state). To be declared a Scheduled Area obviously the percentage of ST population requires to be at the highest optimum level in order to show it is a democratic expression of the free will of the people to integrate with the Union of India. Following the history of other state formations particularly out of consideration of the Fifth Schedule, after the area is declared Scheduled by the President it would be a matter of time only when statehood becomes a reality. One must not get the wrong notion that STs all over India can demand statehood. This is certainly not the case. The legal right of the STs of Darjeeling District and Dooars to declare a state originates from the fact these inhabitants came with the land from Sikkim and Bhutan (now termed as STs) and which are legally demanding self determination as a state/UT within the Constitution of India.
Posted on: Sun, 01 Dec 2013 10:14:02 +0000
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