Bangladesh, India, Pakistan, and Sri Lanka are home to multiple nationalities, ethnic, religious, linguistic and caste communities—identities that were politicised under colonial administrations, strengthened during the process of constitutional reforms and reinforced by the “nationalising” processes of state consolidation. The ethno-geographic mosaic of these post-colonial states and the kingdoms of Nepal and Bhutan as they transform themselves into modern states, challenges the concept of a homogenous, “one nation-one people” state as developed in Europe. Instead, here it is more the construction of a state preceding the emergence of nation. State consolidation has been predicated towards majoritarianism in state ideology and design, and its articulation in structures of governance that are centralising, coercive, hegemonic, and exclusionary
Taking an overview of the crisis of minority rights protection in South Asia, this paper addresses the question of why minorities rebel, locating it in the context of state design and orientation that predicates majoritarianism and exclusion. The paper looks at the limits of strategies of multiculturalism and autonomies for reworking the minority rights question in the region. It problematises different state regimes of protection—the limits of constitutionalism, where a state’s constitution itself discriminates, and where ethnic polarisation and war have rendered inadequate a minority rights framework for any enduring perspective for rebuilding relations (e.g., Sri Lanka’s Sinhalese-Tamil conflict). Finally, the paper provides snapshots of living modes of exclusion in the region.
The challenge of pluralism in South Asia is enormous and so too is the gap between the fundamental rights promised in various state constitutions and the banality of discrimination, violence, and inequality that is the everyday experience of people belonging to minority or indigenous communities. The state of most minorities in South Asia is abject—marked by low income, lack of assets, voiceless-ness, and vulnerability. While these are aspects common to the poor in South Asia, people belonging to a “minority” feel them more acutely and more systematically, since they occur as a direct result of the violation of their rights by virtue of being a “minority”. For instance, more than 800 languages are spoken in the region, but only 66 percent of the population have access to education in their mother tongue (UNDP 2004), thus disadvantaging linguistic minorities in education, civil service, and public life. Minority groups and indigenous peoples make up a disproportionate majority of the voiceless and of peoples under the poverty line. It is members of minority groups who are predominantly targeted by “prevention of terrorism” and other “emergency” regulations.
Common citizenship delivers formal equal treatment, and lonely schemes of positive discrimination derogate against equal rights, but they have proved insufficient to solve the discrimination dilemma without an accompanying agenda for expanding democratic participation and realising equality and justice. As Samaddar (2004) emphasises, in his incisive analysis of the minority question in India, at its core is the “democracy deficit”. Indeed, if one follows the tracks of the minority rights question in South Asia as a whole, they lead us back to the “democracy deficit”.
Whether the relationship between the majority and minorities will be one of pain and tension is critically determined by the design and effect of the state’s orientation. In Nepal, after the “triumph of people’s power” in April 2006, the country is poised to draft a new, more representative constitution. How will it address the challenge of transforming the system of institutionalised exclusion that has produced a disproportionate dominance by 16 percent of Nepal’s upper caste Hindu hill elite (Bhattachan 1999 and Lawoti 2005)? Will it provide for sharing power with the excluded janjatis (indigenous peoples), Dalits, and women through a policy of reservations? Will it make changes in the electoral law, making for community (identity)-based parties? How many of the 61 indigenous nationalities (janjatis) and 125 languages spoken in Nepal will be recognised? Will it continue the hierarchy of “official” and “national” languages that discriminates against non-Nepali Khas speakers in schools, civil service, and the administration, including local government bodies? Nepal’s 1990 constitution refused to recognise that the Hindu kingdom was home to Muslims, Buddhists, Kirants, Christians, Bons, and others. Will the new constitution enshrine secularism as a principle that cannot be revoked by legislation? How will it deal with institutionalised gender-based discrimination that has resulted in 173 instances of discrimination in 83 laws in Nepal?1 The unitary structure of the polity, which had marginalised the regions, braided together inequalities and exclusions across different dimensions—regional, ethnic, linguistic, rural, and class. What kind of autonomies will be negotiated in a federal restructuring of the polity?
Such choices will determine whether the new Nepali state will reproduce a majoritarianism that will end up pushing some minorities onto the warpath and some into sullen submission. Culture and cultural values are not by themselves a source of conflict, but exclusion, suppression of socioeconomic and cultural rights, and denial of voice and dignity will lead to political mobilisation that increasingly tends to focalise grievances along cultural-ethnic lines. Still, the Maoist insurgency in Nepal is a critical reminder of the relevance of class as a significant axis of conflict intersected by the variables of ethnicity, caste, language, and religion.
Nepal illustrates how inequalities and exclusions across different dimensions—regional, ethnic, urban-rural, and class—can create conditions for violent conflict. At the start of the insurgency in 1996, the poverty rate was 72 percent in mid- and far-western regions, but 4 percent in Kathmandu. Overlying these regional disparities were disparities in human development status, with the human development index (HDI) of upper-caste Nepalis being 50 percent higher than that of hill-ethnic, terai-ethnic, and occupational caste groups. Whereas indigenous peoples constitute 36 percent of the population, and Dalits 15 percent, they hold 8.42 and 0.17 percent of government posts, respectively. In the strongholds of the Maoist insurgency, poverty braids with inequality, and regional and ethnic discrimination (UNDP 2005). Moreover, this area has the smallest political voice in Nepal. The 1990 pro-democracy movement which mobilised ethnic communities also produced an elite compromise between the palace and the upper-middle classes, creating a widening chasm between democratic expectations and democratic practice (Goodhand 2001). The fault lines of poverty and inequality, urban-rural, indigenous-upper caste, metropolitan-periphery, and inequitable gender roles, all feed the conflict.
No state in South Asia is free of internal strife. People belonging to different minorities, ethnic, religious, linguistic, and social groups, and indigenous tribes/communities are engaged in struggles against the state and other groups for the protection and preservation of their social, cultural, and economic rights. Their demands vary from equality and integration to regional/territorial autonomy, self-rule, self-government, and self-determination, including separation. The state has responded with violent suppression, resorting to what Sahadevan (1999) calls “ethnic militarism”, in his mapping of 18 conflicts over five decades: “Ten conflicts have been secessionist, with six groups demanding autonomy and two groups (Baluch and Pakhtun) having mixed goal preferences, articulated in terms of autonomy, secessionism, and irredentism. At least three secessionist movements—East Pakistan, Khalistan, and Eelam—originated from the mismanagement of autonomy demands, thereby indicating a trend towards conflict escalation.” According to Sahadevan (1999), one conflict in Misoram followed a “secessionist-autonomist-secessionist cycle”.
The value of Sahadevan’s (1999) analysis lies in his drawing attention to the state’s militarist response to democratic aspirations. Gazdar (2006) emphasises Pakistan’s use of a counter-insurgency mode against its own citizenry. In 20 of the last 35 years, since the “new” Pakistan, there have been military operations counter-insurgency style between security forces and Pakistan’s citizenry to suppress what are projected as “insurgencies”. Balochistan (1973-77) was “dubbed a separatist movement”; Sindh (1983-89), “a fight against banditry” (ethnic Sindhis were at the forefront of the Movement for the Restoration of Democracy (MRD) against General Zia’s dictatorship; and Karachi (1992-96), “ethnic terrorism and urban crime” (Mohajir assertion of ethnicity-based claims). Latter day military/counter-insurgency operations are directed against renewed resistance in Balochistan, disparaged as the cupidity of the sardars (tribal chiefs), and in Waziristan, to flush out the Taliban and Al Qaeda. The protagonists of these movements “share some project of ethnic sub-nationalism”; however, as Gazdar (2006) observes, while ethnicity is an important political variable in Pakistan politics, it has not been the determining demand except in Balochistan (Ahmed 1999 and Akhtar 2003).
Contemporary conflict theory conceptualises multifaceted civil conflicts largely as “ethnic” conflicts, de-historicising and essential-ising them. In focalising histories of social injustice, political exclusion, and socioeconomic grievances into ethno-nationalist conflicts, the questions that are sidestepped are these. To what extent are ethno-national and cultural differences a creation of elite-led politics, i.e., the mobilisation of collectivities by political entrepreneurs (Manchanda 2006)? To what extent does “ethnic-isation” of conflicts displace and distract from other conflict fault lines rooted in the struggle to share resources, political participation, and respect and dignity for cultural identity?
Ghai (2000) sums up ethnicity as the process “when these (cultural, religious, linguistic) markers cease to be mere means of social distinction and become the basis of political identity and claims to a specific role in the political process or power, ethnic distinction are transformed into ethnicity.”
Ethnic movements often have as their crux, hardcore issues of social and economic justice and of public participation, but as in the case of the Tamil conflict in Sri Lanka, the protagonists on both sides articulate it in terms of ethnicity and identity (Uyangoda 2001). Indeed, the histories of the struggle of the Tamil, Naga, and Chittagong Hill Tracts (CHT) peoples map narratives of how and when a group refuses to accept at a historical moment the identity of a minority and claims instead the status of a people, a nation. In the constitution of majority-minority groups and majority-minority identities is the discourse of power. The redistribution of power lies at the vertex of the relation between state and “national” minorities.
International discourses on human rights-minority rights promote strategies of multiculturalism and its variants: coexistence and diversity. The emphasis is on meeting the challenge of collective or cultural identities as reflected in UNDP’s (2004) Human Development Report. It emerges from the same intellectual policy discourse as the 1997 report of the Carnegie Commission on Preventing Deadly Conflict. While warning that attempts at suppression of ethnic cultural or religious differences have “too often led to bloodshed”, the report exhorts that, “in case after case the accommodation of diversity within appropriate constitutional forms has led to diversity.” It is an argument for multiculturalism as a philosophical approach and prescriptive strategy for accommodating deep and defiant cultural diversity in post-colonial, multi-ethnic, and multi-religious societies or in societies with significant immigrant communities.
Multiculturalism refers to the value and prescriptive policy of cherishing cultural diversity as a public good and making different community identities central to the self-understanding of a nation-state’s identity. However, as Parekh (2001) argues, in the dominant multi-culturalist discourse, the majority culture is accepted uncritically and used to judge the claims and define the rights of minorities. Multiculturalism is about “the proper terms of relationship” between communities and the “norms governing these claims including the principles of justice cannot be derived only from one culture alone but through an open dialogue between them” (Parekh 2001). Such a dialogue becomes extremely problematic when the international discourse demonises a culture, e.g., Islamic, or posits paradigms like the “clash of civilisations”.
What does reworking the minority question on the basis of a politics of accommodation of cultural identity mean for South Asian minority communities? Mahajan (1998), a critical supporter of multiculturalism, believes that it has assured the protection of cultural identity by “safeguarding cultural autonomy and promoting cultural diversity”; where “it has failed is in promoting equality, non-discrimination and vitally, equity”. The Indian constitution provides a framework for minority rights configured as a cultural category. Its consequence, as Mahajan (1998) concludes is that the “the concept of Minority Rights has become an instrument for enhancing cultural autonomy and diversity but not equality and equity”.
More trenchant is Samaddar’s (2004) assessment, where he argues that multiculturalism is “a weak answer to nationalising states determined to pursue overwhelmingly a politics of repression, assimilation, denial exclusion and marginality. Without locating minority rights as an agenda in democracy, multiculturalism may not be enough. The democracy deficit is at the heart of the minority rights question.”
Equal Rights: Special Rights
The guiding principle that human rights are universal, inalienable, and indivisible; and the enshrining of equality before law and non-discrimination in constitutional structures and institutional practices, is not sufficient to enable minorities to enjoy equal rights. Even without states invoking religion, ethnicity, or nationality to dominate and oppress, people belonging to minorities and majorities are subject to very different (unequal) conditions of enjoyment of equal rights and fundamental freedoms. For example, the majority group’s language usually equalises as the national language of the public sphere, e.g., Sinhala in Sri Lanka; consequently, there is natural support for its development. Not so with the language of a minority that would require special support. Universal citizenship is an instrument of equality in democratic states, but this universality produces the paradox of formal equality of all and the everyday deficit in realisation of power by weaker groups, individuals, and communities.
Positive discrimination is one pathway. The Indian constitution provides for preferential policies that derogate against the principle of equal rights.2 It has enabled affirmative action in favour of “backward groups” and, for the identified minority, the creation of a separate domain/private sphere reserved for minority group members to maintain group identity distinct from the “common domain”/public sphere of common regulatory authority. It is a system of special autonomies. However, this mix of a strategy of “negative guarantees” and positive discrimination has been a weak instrument in providing protection or promoting equal rights and democratic participation. It has produced minority-ism (Mahajan 1998), i.e., a clamour for identification of new minorities and backward caste groupings, and resentment and opposition by the majority to what is variously referred to as “appeasement” of minorities or (by upper castes) of perpetuating caste-ism.
Autonomy is increasingly being posited as a way for plural states to deal with the aspirations of minorities, especially national minorities (Chaudhury et al 2006). It is a strategy for resolving the basic contradiction between the principle of people’s “right to self-determination” and the principle of national sovereignty and territorial integrity of a state. Both norms are of great value and importance. The task is to find a balance between the two. The UN has sought to balance the right to self-determination and territorial integrity by recognising the rights of linguistic, ethnic, and religious minorities and developing universal norms and covenants for the protection of these rights. European institutions have gone a step further by encouraging states to grant “autonomy” and creating “federal” polities (Pan and Pfeil 2003).
Under international law, the rights of “people” and minorities are different: people are a “nation” without sovereignty, while minorities do not have the right to self-determination. The confusion arises when a “people” are erroneously termed minorities, because (as a national minority) they live in a territory where they constitute a numerical minority in relation to other groups of people. People’s right to self-determination is a political concept, and ethnic groups like the Tamils in Sri Lanka, the Jumma people of the CHT in Bangladesh, and the Mohajirs in Pakistan assert their status as “peoples” rather than “minorities” (Mahmud 1997). In the Sri Lankan Tamil context, the subordinate status associated with minority identity is rejected in favour of assertion of “Tamil nation, Tamil people”.
Similarly, indigenous peoples can lay claim to an international rights discourse that recognises collective rights while minorities are entitled to individual rights. Minorities and indigenous peoples are separate concepts but interlinked by the shared context of discrimination and powerlessness. The rights of indigenous peoples to the traditional lands they inhabit are much stronger in international (and national) law. It explains why no country in South Asia formally recognises the presence of indigenous peoples. Nor is any country signatory to the International Labour Organization (ILO)’s Convention 169, the most comprehensive international legal instrument to address collective land rights and displacement of indigenous peoples. Even the 1997 CHT peace accord carefully makes no reference to indigenous peoples, but refers instead to “tribal inhabited areas”.
South Asian states have been extremely wary of, if not hostile to, devolving power, and most have evolved into unitary states with, at best, administrative decentralisation. Even India, which has been the most far reaching in articulating an asymmetric federal polity with a complex structure of special autonomies, uses the nomenclature “centre-state relations”. The constitution has a unitary bias, e.g., after distributing legislative powers in three lists, not only are residual subjects left with the union, its will prevails on subjects in the concurrent list. The Indian parliament also reserves the right to change states’ boundaries.
India’s constituent assembly discussions had envisaged a wide-ranging structure of self-rule and shared rule, but the shadow of Partition in 1947 diluted its federalising impulse. Post-partition federalism came to be viewed as carrying the seeds of secession and disintegration (Aurora and Verney 1995), with the ruling elite resisting the linguistic reorganisation of states and reinforcing central control. More than five decades later, India has failed to develop a conceptual framework of federal principles guiding the devolution of power. For instance, what is the basis for the formation of three new states? In Chattisgarh, language was the cultural element; in Jharkhand, tribal identity; and in Uttaranchal, regional culture (Oomen **). The Naga people’s fifty-year old struggle for self-rule in the north east; Jammu and Kashmir’s erosion of constitutionally sanctioned special autonomy, and people’s alienation and the Punjab insurgency that was rooted in issues of autonomy and power sharing, are but three of the most significant conflicts that testify to the Indian elite’s centralising and majoritarian impulse.
Over and above the majoritarian impulse inherent in the concept of nation-state, two historical legacies were to propel the ruling elite towards a certain kind of state consolidation. The first was the colonial encounter, which left a dual imprint: the colonial power’s administrative habits of governance centralised territorial control and drew up arbitrary boundaries that cut through national, ethnic, religious, and linguistic communities. The British administrators also fixed and institutionalised these fluid identities and organised governance on the basis of communal entities manifest as divide-and-rule strategies. The colonial government’s decision to introduce religion as the fundamental category for administrative and electoral classification infused a particular political meaning into concepts like “Hindu” and “Muslim”. The minority question in India is primarily a communal question.
In Sri Lanka, the site of political representation was ethnic identity: Sinhalese, Tamil, and Burghers, i.e., belonging to a “racial” group. The Sinhala numerical majority was disadvantaged and Tamils privileged by colonial administrators. Tamil minority consciousness was to evolve in the process of constitutional reform. As a consequence, the defining characteristic of post-colonial state formation in Sri Lanka has been the ethnic bifurcation of the ruling class.
Colonial administrations further reinforced the salience of communal entities by introducing legal pluralism as a structure of governance, i.e., uniform colonial laws for the public sphere and religion-based customary laws for the personal sphere. It afforded significant respect for customary legal regimes to do with collective land rights and protection against predatory “outsiders”, especially for indigenous peoples. However, then and now, such dual regimes tend to reinforce discriminatory politics not only against “outsiders” but also “insiders”, particularly disadvantaging vulnerable groups like women and depressed and backward castes.
The second legacy to propel the elite towards state consolidation was the partition of the Subcontinent. In India, Partition diluted and reshaped constituent assembly discussions on self-rule and shared rule. Post-partition federalism came to be seen as carrying the seeds of disintegration. The move to recognise minorities’ political rights was overturned. As the Indian leader Sardar Patel bluntly told constituent assembly members, “We are laying the foundation of One Nation and those who choose to divide again and sow the seeds of disruption, will have no place” (Ansari 1996). As a result, the issue of minority rights was relegated to the domain of protection, and not seen as integral to democratic nationhood. It made Indian rulers resist the demand for ethno-territorial autonomies and the eventual reorganisation of the state along linguistic lines.
In Pakistan, the overhang of Partition determined the decision of the new rulers to not recognise the category of “national” minorities, which would introduce a competing claim to the state ideology of a Muslim nation. Pakistani ruling elite’s discriminatory and anti-democratic politics of treating East Pakistan as an internal colony and denying the Bengali cultural identity resulted in a second violent Partition—Bangladesh—and further fuelled secessionist paranoia against autonomy.
Evolution of Minority Rights Protection
Historically, the failure to protect the rights of minorities within states has resulted in major internal and international conflicts. Consequently, it has prompted international concern and responsibility that has had to confront the fundamental principle of non-interference in the internal affairs of sovereign states. Post-World War I political order produced a series of minorities’ treaties involving the defeated territories with the League of Nations as guarantor. The treaties collapsed with the League. UN frameworks emphasised principles of universal protection in place of specific rights. Post-cold war, the return of the minority question of old Europe in new Europe in the violent break-up of Yugoslavia and the surge in identity-based conflicts prompted states to adopt the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992). The declaration was inspired by Article 27 of the International Covenant on Civil and Political Rights (ICCPR) 1966, the only global treaty with a provision specifically referring to minority rights: the right to enjoy in community with other group members, their culture, religion, and their own language.
Fundamental to all human rights law is the principle of equality, and integral to that, the concept of non-discrimination. It ensures that no one is denied the protection of their human rights based on external factors like race, sex, language, colour, religion, national or social origin, birth, property, or political opinion. South Asian states are signatories to these conventions (albeit with significant reservations) that make up international human rights law and are expected to integrate these obligations with their national law.
Politics of Recognition
Recognition of a minority group is a crucial precondition for protecting minority rights. International conventions, declarations, and institutional mechanisms provide frameworks identifying minority rights and entitlements, but there is no consensual international definition of who or which group is the bearer of these rights.
Consequently, states have interpreted what constitutes a minority to suit their own politics. Pakistan recognises only religious minorities and not its Sindhi, Balochi, or Pashto nationalities; it has created a new religious minority: the Ahmadis. Constitutionally, Bangladesh does not recognise that it has linguistic, religious, or ethnic minorities; it styles itself as mono-ethnic, mono-linguistic, and mono-religious, creating minorities of its Hindu, non-Bangla-speaking and Adivasi populations. Sri Lanka’s minority rights discourse does not include recognition of social (depressed caste) minorities. India does not list its Dalit population as a minority and state institutions (e.g., the judiciary) legitimise a homogenous Hindu identity excluding multiple sects from the religious minority category. Constitutionally, religious and linguistic minorities are constructed as a cultural category, sidestepping the issue of power and public participation. Nepal denies its multi-religious character and institutionalises exclusion of its linguistic and ethnic minorities.
The most widely accepted theoretical definition of “minority” is probably the one given by Capotorti (1976),3 a Special Reporter of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. He established certain objective and subjective criteria for determining a minority; the objective criteria identify numerical inferiority, and the subjective criteria refer to a group that shows solidarity in preserving its culture, traditions, religion, and language.
Capotorti’s (1976) definition would leave out Dalits and other racially discriminated groups who do not wish to preserve the basis of their difference, whose identity was imposed by dominant castes or groups, and who were constituted as undesirable and debased. Consequently, at a wide-ranging minority rights consultation in Kathmandu in 1998, South Asians were more inclined towards the definition provided by Capotorti’s colleague, Deschenes,4 which shifted the emphasis from preservation of identity to their collective will to survive and their desire to achieve equality with the majority in fact and in law (Banerjee 1999). This still left out minorities, especially national minorities, who did not wish to assimilate and integrate. It is these people’s desire to preserve their identities that is looked on with suspicion by the majority.
Moreover, “minority” as a numerical concept overlooks the situation of a discriminated majority, e.g., blacks in apartheid South Africa. Numerically smaller groups are not necessarily subordinate or backward or less likely to have access to opportunities, e.g., Newaris in Nepal or Mohajirs in the early phase of state formation in Pakistan. Also, Sri Lanka’s politics of ethnic relations defy the majority-minority dichotomy in a profoundly phenomenological sense—the Sinhala majority with a minority complex, and the Tamil minority with majority ambitions (Uyangoda 2001). In the case of Kashmir, one has a Muslim-majority province in a minority situation in India.
A key criterion is self-identification as a minority (and the group’s right to determine who is a member of the minority). Several groups, e.g., the Tamil community, the Naga peoples of northeast India, or indigenous peoples of the CHT in Bangladesh, have repudiated identity as a (subordinate) minority and claimed for themselves identity (and rights) as a “nation” (the people of the “Jumma” nation in the CHT and the Mohajirs as an ethno-nationality) (Mahmud 1997). None of these peoples see themselves as “ethnic communities”—each claims to be a nation.
National Frameworks for Minority Rights
South Asian states in the political organisation of their plural societies have experimented with different models: from federalism with special autonomies to unitarian state structures; from multi-party democracy to party-less authoritarian and military governments; from secular to theocratic orientation; and from republic to monarchy. Some polities, e.g., India, have articulated an elaborate framework of constitutional guarantees for minority rights protection and asymmetric federal structures for devolving power. With others, like Pakistan and Bangladesh, the constitution itself has become a source of discrimination and victimisation. In Nepal too, exclusion is deeply institutionalised. Sri Lanka has sought to evolve a constitutional and legal regime of protection against the backdrop of an ethnicised conflict with little or no success. Ethnic polarisation has defeated experiments in federal devolution and reinforced the state’s unitarian ideology and centralised structure, as well as Sinhala-Buddhist hegemony. Rather than politics, the fallback is administrative strategies, such as the abortive P-Toms mechanism (for integrating the LTTE-controlled north and east in post-tsunami reconstruction).
The constitutions of all these states (including Bhutan’s draft constitution) have a fundamental rights chapter that provides for fundamental human freedoms applicable to all citizens, irrespective of race, place of birth, religion, caste, creed, colour, or sex; subject to certain restrictions, these provisions are largely enforceable by the courts. Fundamental rights primarily protect individuals from arbitrary state policies. International discourses on human rights and minority rights have been braided together in the “nation-state” building process in these countries. However, historical circumstances, contextual specificity of ruling class ideology, and the overall exigencies of creating a coherent “nation-state” around an often fictive ethnic core in highly plural societies, has produced a region rife with minorities at risk.
For the dominant (majority) groups, minority rights are seen as challenging the state. The region’s minority communities, on the other hand, have in common the experience of majoritarian-ism and their discrimination and disempowerment resulting in submissive acquiescence to resistance or violent revolt. Some of the broad contours of the constitutional dynamics of protection and exclusion are discussed below with reference to Pakistan, Bangladesh, and India.
PakistanPakistan’s state ideology is anchored in the faith of the Muslim people as a nation, with consequences for non-Muslims and other nationalities in the territory (e.g., Baloch, Pakhtun, and Sindhi). In 1949, the Constituent Assembly adopted the Objectives Resolution despite objections raised by non-Muslims to its Islamic character—no law repugnant to Islam could be adopted. It became the preamble to Pakistan’s 1956, 1962, and 1973 constitutions and paved the way for all subsequent Islamic provisions. Starting as a secular democracy, the country has moved closer to a theocratic state. Pakistan is an Islamic republic and the state religion is Islam.
Religion-Based Exclusions Separate electorates
The controversy over separate electorates has raged from the first constitutional regime, which proposed separate electorates for West Pakistan and joint electorates for East Pakistan, to joint electorates in the 1973 constitution till President Zia-ul-Haq reintroduced separate electorates. In 2002, joint electorates were reintroduced, ending a structure of political apartheid that had kept minorities out of the political mainstream and led to socioeconomic discrimination (Zia, forthcoming). Head of state. The constitution stipulates that the head of state be a Muslim, and the wording of the mandatory oath ensures that the prime minister too must be a Muslim. Ahmadis declared non-Muslim.
The Second Amendment to the constitution (1974) declared Ahmadis (who believed themselves to be Muslims) non-Muslims. It was the first violation of the fundamental rights of a minority community at the constitutional level. Ten years later, they were denied the right to publicly practice their faith. In the 1980s, “offences relating to religion” amendments were made to the penal code that particularly victimised Ahmadis. Articles 298A, B, and C proscribed anyone from “directly or indirectly” posing as a Muslim or by “visible representation or by in any manner whatsoever outrages the religious feelings of Muslims”. More than 2,000 Ahmadis have been charged under the Blasphemy Law. Moreover, in 2002, when joint electorates were introduced, the status of Ahmadis remained unchanged—on the list of separate voters. With the community declining to take the oath on the finality of prophethood, they remain virtually disenfranchised. Council for Islamic Ideology. The council was given a constitutional basis under Article 228. Hudood Offences Ordinance (1979). This ordinance ousts the testimony of non-Muslims against a Muslim accused for awarding a hadd (Quranic penalty); and devalues the testimony of non-Muslims and women to half that of Muslim males. The presiding officer of a court trying a case under the Hudood Ordinance must be a Muslim unless the accused is a non-Muslim. The Hudood (Offence of Zina) Ordinance criminalises all extra-marital sex. For minorities, making adultery punishable creates serious problems in Christian divorces, for which adultery is the only valid ground for divorce. Federal Shariah Court. This supra-constitutional body was set up in 1980 with powers to examine and declare any law repugnant to the injunctions of Islam. The right of appeal was provided to the Supreme Court-Shariat Appellate Bench. Non-Muslims can never be members of this bench and non-Muslim lawyers cannot appear before these courts unless the parties before the court are non-Muslims too. Blasphemy Law. In the 1980s, amendments were made to the penal code chapter on offences relating to religion that made certain acts criminal offences and introduced severe penalties. Ordinance XX (1984) introduced the death penalty, while Article 295C, in particular, has victimised non-Muslim minorities, its loose formulation making it an easy tool in the hands of extremist elements wanting to settle personal scores with religious minorities. Objectives Resolution. This was made a substantive part of the constitution (1985) through the insertion of Article 2A and modified by dropping the word “freely” from “to profess and practise religions…”Although the right to judicial review of legislation exists, in cases of violation of the constitution, the Supreme Court has not emerged as a forum for defending minority rights and judges appear to reflect the prejudices of society at large. For example, in 1993, a spate of cases was filed by members of the Ahmadi community, holding that their religious freedoms as guaranteed under Article 20 were being violated. The Supreme Court ruled that granting Ahmadis equal rights would be against public order.
The majority (Sunnis and Shias) consider “the movement ideologically offensive”. Moreover, with the establishment of the Federal Shariah Court, the hierarchy of jurisdiction has become ambiguous. The judicial process for religious offences tends to be dilatory as judges feel threatened by the presence of Islamists in the courts and tend to adjourn hearings. A judge who acquitted a young Christian accused under the Blasphemy Law was shot dead soon after. In addition, there are linguistic and nationality-based exclusions. Pakistan’s constitution barely reflects the multilingual character of the country, with six major and over fifty-nine minor languages. Punjabi accounts for 44 percent, Pashto for 15 percent, Sindhi for 14 percent, Seraiki for 11 percent, Urdu for 8 percent, and Baloch for 4 percent. The only recognition of the country’s multilingual character occurs in Article 251, which enables the provincial assembly to promote the use of the provincial language along with the national language. Demand for equality between the provinces and autonomy within has seen Pakistan’s ethno-linguistic groups define themselves as “nationalities”. Pakistan’s constitution does not recognise the multinational character of the state. In 1975, the government passed a law prescribing a seven-year imprisonment for individuals advocating the presence of more than one nationality. The state has responded in “counter-insurgency” mode to suppress ethnic, sectarian, and class conflicts. “Islamism” has been used to stifle the claims of the nationality question, but it remains a flashpoint and is intensifying (Human Rights Commission of Pakistan [HRCP] 2001 and 2003).
One Religion, One Language
The new state of Bangladesh emerged as a secular polity with a constitutional embargo on religion in politics. The original 1972 constitution had four basic principles: secularity, nationalism, democracy, and socialism. However, later amendments replaced “secularity” with “absolute trust and faith in the Almighty Allah”. Tension between Bengali nationalism based on language and culture and Bangladeshi nationalism rooted in the primacy of religion, has resulted in a steady drift towards Islamic hegemony. Both have had exclusionary consequences for its religious, linguistic, and ethnic minorities (Samad 1999).
Bangladesh declared itself a unitary and culturally homogenous nation, emphasising the hegemony of the Bengali nation, thus excluding non-Bengali Chakmas, Marmar Tripuras, and plains tribal ethnic communities that make up a little over 1 percent of the population. Subsequent amendments to the constitution (Article 6) declared that citizens of Bangladesh were to be known as Bengalis, turning the non-Bengali population into ethnic minorities. Article 3 adopted Bengali as the state language, turning non-Bengali-speaking populations, including the Urdu-speaking Biharis, into linguistic minorities. Article 2 made Islam the state religion, thus excluding the Hindu, Buddhist, Christian, and animist communities.
Mohsin (2003), mapping the constitutional processes by which the rights of Bangladesh’s minorities and indigenous peoples have been derogated, states that constitutional provisions have by implication “become instruments of hegemony and domination” in the hands of successive governments. She focuses on the changes in the constitutional status of the CHT as an “excluded area”, thus eroding its autonomy and restricting the access of “outsiders”. On top of the massive displacement caused by the construction of the Kaptai Dam, land was further alienated through a policy of state-aided settlement of 400,000 Bengalis. Suppression of their cultural identity and the rights of the hill tribes culminated in twenty-five years of armed struggle till the 1997 peace accord. However, it is an executive accord and has no constitutional status. Moreover, let alone acknowledging their rights as indigenous peoples, it refers to the CHT as “tribal inhabited area”.
Bangladesh is a striking instance of the use of law to alienate minority people’s right to enjoy their property, through the Vested Property Act 1974, which supplanted the Enemy Property Act 1965 of undivided Pakistan. It was used against both Hindus and ethnic communities, and said that the properties of Indian nationals residing in Pakistan or of Pakistan citizens residing in India would be identified as “enemy” property. In particular, it made Hindu-held property insecure because ownership had to be proven at various levels. Local officials and law enforcement agencies were found to side with the majority against minorities in land cases. According to one estimate, 30 percent of all Hindu property was “legally” swallowed up under this act. It was withdrawn by Sheikh Hasina’s government in 2001 (US State Department 2005).
Limits of Constitutionalism
India’s post-independence ruling elite piloted a brave pathway of constitutionalism for protection of the rights of religious, linguistic, and social minorities, as well as indigenous peoples; provided affirmative action to overturn the histories of injustice and inequality of tribes and oppressed castes; devolved power through a structure of asymmetric federalism to meet demands for self-rule; and inscribed as non-“derogable” the principles of secularism and democracy.
However, the living modes of discrimination and exclusion that still exist are testimony to the limits of a constitutionalism that enshrines diversity, cultural rights, and autonomy for protecting minority rights when there is little accompanying philosophic consciousness of the values of tolerance of difference, justice for righting historical wrongs, and autonomy enabling self-rule. India’s constitution guarantees the fundamental rights of equality and non–discrimination to all citizens. However, where common citizenship is the fulcrum for accessing rights, it inevitably tilts towards the individual and thereby the majority in political rule. The constitution does not recognise group rights, only individual rights. It does refer to minorities but only those “based on religion or language”. The safeguards for minorities’ economic and political rights provided in the draft constitution (1947-49) were dropped with the assurance that the majority would be fair and generous to the minorities (Sammadar 2004).5 There is no state religion; all were to be treated equally. The constitution describes the state as sovereign, socialist, secular, and democratic. The “secular” orientation was introduced by an amendment in 1976 (under Emergency rule). The discourse of secularism was constructed on the basis of equal rights, but has been translated as based on the majority. It has lulled some minorities, e.g., Christians, into turning their backs on minority status and calling themselves secular. Without the philosophic underpinnings of the value of tolerance in society, secularism becomes reduced to an administrative strategy used by cynics, without providing minorities protection. As Samaddar (2004) presciently notes, “The contentious history of democracy in India has shown that majoritarianism appears not by contravening these principles (‘justice to all’, ‘dignity of the individual’) but on their basis as a majoritarian power structure that can wield this to its advantage”.
The directive principles of the constitution (non-justicible) urge the state to work towards establishing a uniform civil code. But this has become a euphemism for a majority-defined (upper-caste Hindu) code rather than the product of a dialogue between different systems. The constitution provides for legal pluralism for religious minorities in their personal sphere and also in certain areas of the public sphere—management of minority educational institutes and trusts (there is a differentiated legal regime for scheduled tribal areas). It has produced a tension between what Asbjorn Eide describes as the “common domain” that ensures equality and the “separate domain” designed to respect diversity and maintain group identity. As Oomen (**) states more explicitly, “Citizenship is an instrument of equality in democratic states, ethnicity and nationality are often invoked to confer or deny equal rights”. This unresolved tension between separate and common rights produces majority accusations of appeasement without providing minorities protection. Autonomy, especially under siege, is most disadvantageous to women, who are constructed as bearers of community identity in a patriarchal discourse. The majority-minority relationship becomes particularly problematic when the public sphere is accessible to takeover by a group (majority) determined to impose its values in large or total measure on state institutions, thereby almost equalising the public and group interest. This was evinced in the hegemony of Hindutva discourse. Gujarat is the most dramatic demonstration of this phenomenon, which has produced a virtual apartheid situation. For example, Articles 25 to 28 address the subject of freedom of religion. Under Article 25, citizens are “entitled to freedom of conscience and the right to freely profess, practice and propagate religion”. However, these rights are, as in most constitutions, subject to “public order, morality and health”. States are allowed to pass laws “regulating” or “restricting” activities that may be associated with religious practices. This has been exploited by states to institute laws that violate fundamental rights enshrined in the constitution. The most controversial are the anti-conversion bills that were passed by the state legislatures of Orissa (1967), Madhya Pradesh (1968), Tamil Nadu (2002, now nullified by the DMK), Gujrat (2003), Chattisgargh (2005) and most recently, Rajasthan (2006), which has been rejected by the governor. The Rajasthan Dharma Swatantrik Vidhayak Bill illustrates the anti-minority bias of the state legislature and its loose formulation, the vulnerability of minorities. Under this act, “No person shall attempt to convert either directly or otherwise any person from one religion to the other by use of force or by allurement or by any other fraudulent means…” The state’s communal agenda is exposed in the provision allowing “vapasi” (re-conversion).
India’s varied experiments in federalism and special autonomies have often been proposed as a model for accommodating democratic aspirations for self-rule that threaten to split apart countries like Sri Lanka. The dynamics of India’s lived experience of federal power-sharing continues to reflect the overriding concerns for the unity and integrity of a culturally diverse nation that preoccupied the constituent assembly as it laid down the foundations of the constitution, resisting the linguistic organisation of states and emphasising “administrative convenience”, although post-independence agitations obliged Nehru to concede the former. Centralising and authoritarian impulses motivated by national security state pathology as well as the vision of centralised planning for development, have resulted in repeated assaults on the actuality of power sharing and special autonomies. The last five decades have seen the democratic transformation of the structure of power in India as manifest in coalition governments at the centre and powerful regional forces in the states, shifting the balance of centre-state relations. It has challenged the capacity of the federal power structure to provide protection to minorities within states. Attacks on religious and social minorities are increasing. The 2002 Gujarat communal carnage exposed the clash between the federal principles that protect state autonomy and the central government’s responsibility to protect fundamental rights, which belong to all citizens (Academy of Third World Studies and South Asia Forum for Human Rights [SAFHR] 2004). The BJP-led government in Delhi failed to intervene on the grounds that the Gujarat (BJP) government was legally constituted and empowered. Four years later, when Gujarat threatened to explode into communal violence again, abetted by state institutions, the centre’s Congress-led government intervened and stopped the violence. But this ad hocism is no substitute for constitutional clarity or a mechanism for dealing with a situation where a federating unit turns rogue.
Living Modes of Exclusion
The challenge of pluralism in South Asia is enormous and so too is the gap between the fundamental rights promised in each country’s constitution and everyday forms of discrimination and inequality. In Nepal, the caste Hindu hill elite make up 16 percent of the population and dominate political economic and sociocultural life, while 85 percent of the population, including women, is marginalised and excluded. Forty percent of Nepal’s population is literate but only 10 percent of Dalits can read and write—they make up 15 percent of the population. Post-multi-party democracy, in successive elections from 1994-99, not a single Dalit has been elected to the National Assembly. Nepal’s janjatis make up 36 percent of the population, but there are only four persons from the janjati community in the judiciary and a little over 1 percent in the civil service and security forces (Lawoti 1999).
The traditional communal land tenure system of the Limbu janjati group in eastern and north-eastern Nepal was overridden by the 1960 land reforms, dispossessing the Limbus, but multi-party democracy did not prevent 71 percent of Limbus from being pushed below the poverty line. The Madhesi, who have constituted themselves as an indigenous nationalities of the tropical forest—high caste, Dalit, and Muslim—are discriminated against on the basis of region. Madhesia leaders claim that 3,00,000 people are deprived of citizenship. Nepal’s 1990 constitution recognises the country’s multilingual character but, in 1999, the Supreme Court prohibited the use of any language other than the “official” language Khas in elected local bodies. In India, a quarter of the population lives below the poverty line. Muslims, who make up 13 percent of the population, disproportionately account for India’s poor. In urban India, 60 percent of Muslims have never gone to school as against the national average of 20 percent. In rural India, Muslim landlessness is 51 percent as compared to 40 percent for Hindus. In endemic communal violence, it is largely Muslims who are the victims—in the 1970 Bhiwandi riots, 59 of the 79 dead were Muslims. Political violence against minorities peaked with the consolidation of Hindutva forces leading to the communalisation of institutions such as the police, administration, and judiciary. In the Gujarat communal violence of 2002, when some 200 Hindus and 2,000 Muslims were killed, more than 300 persons were arrested of which only three were Hindu. Draconian laws like the TADA and POTA have been used extensively against rebellious members of the minority community. A study carried out in ten states by the NGO People’s Tribunal in July 2004 found that 99.9 percent of those arrested under the POTA were Muslims. Adivasis make up 8 percent of India’s population. From 1951 to1990, dams, mines, and industries have displaced 21.3 million people, of which 45 percent are tribal and 75 percent of which have not been resettled. In Andhra Pradesh, 50 percent of cultivable land in the scheduled areas is occupied by non-tribals (Reddy 2006).
In Sri Lanka, Tamils fell from their privileged position of dominating 30 percent of public sector jobs with the promulgation of the Sinhala-Only Official Languages Act 1956. By 1970/71, although earlier accounting for 18 percent of the Sri Lankan population, Tamils had slumped to 11 percent, falling further to 5.7 percent in 1978-81. Less than 8 percent of Sri Lankan public servants are Tamil-speaking, while 26 percent of the country’s population, including plantation Tamils and Muslims, are Tamil speaking. The government’s preferential admissions system to higher education, known as the “policy of standardisation” has squeezed out Tamil students from medical and engineering colleges, and seen the number of student drop to 22 percent and 28 percent in medical and engineering schools, respectively. A combination of restrictive citizenship law and electoral law disenfranchised 975,000 hill-country Tamils in 1956. It is estimated that 150,000 are still stateless in Sri Lanka (Sambandam 2003). Government-sponsored land settlement schemes planted 300,000 Sinhalese in areas considered by the Tamils to be part of the “homeland”. Discriminatory policies and war have produced a diaspora of 2 million displaced Tamils. The war has devastated the northeast, causing the country’s impressive social indicators for the region to plummet. A GTZ study notes that, in Trincomalee, assessed birth weight shows malnutrition and high wastage among mothers (Senanayake 2004). Bangladesh’s Hindu minority has dwindled from 28 percent in 1941 to 9 percent in 2002. On average 538 Hindus went “missing” each day between1964 and 1991. Minority out-migration was accelerated by the legal regime of the Enemy Property Act and its post-“Liberation war” form, the Vested Property Act 1974-2001. Nearly 30 percent of all Hindu property was alienated by this act, often accompanied by violence, forcible occupation, and the connivance of corrupt officials. In the country’s 300-seat parliament, religious minorities hold seven seats. Political violence between the two main political parties often leads to the motivated targeting of Hindus as during the October 2001 elections, which were marked by 1,500 violent incidents against Hindus, including torture, rape, and forcible occupation of property and lands aimed at decimating a supposed vote bank.
Minorities remain poorly represented in government institutions. The government owned Bangladesh Bank employs 10 percent non Muslims in its upper ranks. There are no known government-run Christian, Hindu, or Buddhist schools. In 1947, the indigenous population in the CHT was 97 percent; now one in two persons is a Bengali. The Kaptai Dam has submerged 40 percent of cultivable land area, and galloping encroachment by state-sponsored Bengali settlers has further increased pressure on land—400,000 landless Bengalis were settled in the CHT between 1978 and 1984.Pakistan’s women, and Christian, Hindu, and Ahmadi communities are victimised by a constitutionally sanctioned legal and juridical regime that promotes a culture of discrimination, intolerance, and extremism. As mentioned earlier, the Federal Shariah Court bars non-Muslims as members and non-Muslim lawyers from appearing before it. The Hudood Ordinance ousts the testimony of non-Muslims against a Muslim accused (and equates women’s testimony to half that of men), while the Hudood (Offence of Zina) Ordinance, which makes adultery punishable, creates serious problems for Christian divorces on the ground of adultery. The Blasphemy Law, which discriminatingly protects the sanctity only of Muslim holy personages and their religious sentiments, has been used by religious extremists to target 2,000 Ahmadis and, more recently, 55 to 60 Christians. Denial of the nationality question, and marginalisation of national minorities in the distribution of power and resources, has produced ferment and violent revolt. Balochistan, which produces 36 percent of Pakistan’s natural gas, receives barely 12 percent of the royalties.
The presence of Balochis in the civil-military power structure of Pakistan is negligible: in the civil service, it is 3 percent, and in the army, practically non-existent. The literacy rate in province is the lowest in the country: one-third the national average. Moreover, as these living modes of discrimination and exclusion of minorities demonstrate, the minority question in South Asia is a trans-border concern. As former Indian foreign secretary, S K Singh, said, “What happens in the states of UP and Bihar has implications in Nepal, of Tamil Nadu in Sri Lanka and similarly developments in Punjab, Rajasthan, UP and Jammu and Kashmir reverberate in Pakistan and Bangladesh”. Indeed, the network of co-ethnicities, languages, and religion makes for a complex dynamics of action-reaction. Soon after the 1965 Indo-Pakistan war, Pakistan promulgated the Enemy Property (Custody and Registration) Order, by which industries, trading centres, and landed properties belonging to the Hindu community (or belonging to Indian nationals residing in Pakistan, deemed “enemies”) were listed as abandoned and nationalised. The destruction of the Babri Mosque unleashed mob attacks on Hindus and their properties in Pakistan and Bangladesh. It was perhaps not incidental that, in 1993, the Bangladesh Home Ministry asked commercial banks to block substantial cash withdrawals and to withhold disbursement of business loans to the Hindu community in the districts adjoining the India-Bangladesh border.
In the midst of growing concern about the crisis in minority rights protection in South Asia, there are sites of resistance, agency, and transformation. Madrassahs (religious schools) in West Bengal, to which students of all communities flock, have become significant catalysts for fostering communal harmony. Independent fact-finding missions, people’s commissions, and people’s tribunals have emerged as important civil society mechanisms for revealing the facts and holding the state accountable for violation of minority rights. Minority groups have been slow to come together, divided by a seeming conflict of interests as they assert competing claims (minorityism) to equitable access. However, emerging cross-border solidarities and initiatives have drawn attention to the common problems of majoritarianism—which effectively blocks the legitimate participation of minorities in the public sphere—and the communalisation of politics and politicisation of religion. As the Regional Minority Rights Consultation in Kathmandu (1998) revealed, a major factor preventing minority communities from fighting for their rights is their lack of awareness about human rights and democracy (Banerjee 1999). This moment in history is being hailed as the age of democracy, human rights, and the rule of law. However, increasingly rights are being mauled by the so-called “war on terror” that has reinforced xenophobia and racism and seriously undermined the rule of law in the world. States have used the pretext of the “war on terror” to deny and repress the political assertion of minorities. At the international level, this has produced aggressive and ambivalent international doctrines of humanitarian intervention. The moral ambiguity of the US-led international system of intervention has put in question well-intentioned initiatives like the recently adopted UN declaration on the responsibility to protect populations against genocide, war crimes, ethnic cleansing, and crimes against humanity (2005). Important for minority rights protection are developments such as the General Assembly’s decision to upgrade and create the Human Rights Council in place of the Human Rights Commission, which was a subsidiary of ECOSOC; and the setting up of two new UN posts in 2005: a special advisor to the secretary general on the prevention of genocide, and an independent expert on minority issues, appointed by the UN high commissioner for human rights.
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[Ms. Manchanda is currently the Executive Director of the South Asia Forum for Human Rights (SAFHR)]
(Courtesy: SAN Features Service, July 1, 2007)