4. Indigenous People in South Asia and International Law

United Nation Human Right Commission had established the Working Group on Indigenous Population in 1982 to review events relating to the promotion and protection of human rights and fundamental freedom of indigenous peoples. It received and analyzed the oral and written information presented by many indigenous organizations, government bodies, and specialized agencies in its consultation sessions and produced its reports time to time. Subsequently, these reports helped in conclusion of drafting of Universal Declaration of Rights of Indigenous People in 2007. See http://​www.​iwgia.​org/​. Accessed on 25 December 2015.

Some country representatives at United Nation had made different opinion and concerns of their respective country while having deliberation of drafting of UNDRIP, which show the contrasting views on understanding the concept and rights of indigenous peoples. For instance, the Pakistan representative at UN, Bilal Hayee, argued that ‘his country had voted in favor of the Declaration both in the Human Rights Council and in the Assembly. Although the Declaration did not define indigenous peoples, he hoped that its adoption would fulfill the aims of the International Decade for the rights of indigenous peoples and enable them to maintain their cultural identity, with full respect for their values and traditions.’ Whereas, Mr. Ajai Malhotra, the representative from India in United Nations said, ‘while the Declaration did not define what constituted indigenous peoples, the issue of indigenous rights pertained to peoples in independent countries who were regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region which the country belonged, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retained some or all of their socioeconomic, cultural, and political institutions.’ See Bilal Hayee and Mr. Ajai Malhotra, ‘General Assembly Declaration on the Rights of Indigenous peoples; “Major Step Forward” towards Human Rights for all says President’ 107th and 108th UN General Assembly Meetings. September 2007, 13 at, http://​www.​un.​org/​press/​en/​2007/​ga10612.​doc.​htm. Accessed on 25 December 2015.

Ibid.

The Working Group on Indigenous Populations was established by Economic and Social Council resolution 1982/34 of 7 May 1982 (ESCOR Res. 1982/34 (1982)). Also See, Burger (1998).

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favor, 4 votes against (Australia, Canada, New Zealand, and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine) For details see www.​ohchr.​org/​english.​issues/​indigenous/​declration.​htm. Accessed on 25 December 2015.

See www.​ohchr.​org/​english.​issues/​indigenous/​declration.​htm. Accessed on 25 December 2015, Article 43, Declaration on the Rights of Indigenous People.

See www.​ohchr.​org/​english.​issues/​indigenous/​declration.​htm. Accessed on 25 December 2015.

Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Consultation on the Situation of Indigenous Peoples in Asia. United Nations, Human Rights Council, July 31, 2013.

For further details see www.​refworld.​org. Accessed on 25 December 2015.

See http://​www.​ilo.​org/​indigenous/​Achtivitiesbyreg​ion/​Asia/​Southasia/​Bangladesh. Accessed on 25 December 2015.

For details of Indigenous peoples protest movement in Chittagong Hill see https://​www.​culturalsurvival​.​org/​. Accessed on 25 December 2015.

http://​www.​ilo.​org/​indigenous/​Achtivitiesbyreg​ion/​Asia/​Southasia/​Bangladesh. Accessed on 25 December 2015.

For further details, see Javaid Rehman (2007), World Directories of Minorities: Bangladesh (MRG, London). http://​www.​minorityrights.​org/​5636/​bangladesh/​adivasis.​html. Accessed on 25 December 2015.

In the Constitution of Bangladesh, Part II—Fundamental Principles of State Policy under Article 11(Democracy and Human Rights) reads that ‘The Republic shall be democracy in which fundamental human rights and freedoms and respect for dignity and worth of the human person shall be guaranteed and in which effective participation by the people through their elected representative in administration at all levels shall be ensured.’

Article 27 in the Constitution of Bangladesh. http://​bdlaws.​minlaw.​gov.​bd/​. Accessed on 25 December 2015.

Article 28 in the Constitution of Bangladesh. http://​bdlaws.​minlaw.​gov.​bd/​. Accessed on 25 December 2015.

The official list of indigenous peoples is contested, and the United Nations Committee on Economic, Social and Cultural Rights expressed concern in 2008 about the ‘lack of clarification about the criteria used by’ NFDIN, the government indigenous development agency to recognize indigenous peoples and the implications of this recognition (E/C.12/NPL/CO/2, para 28). The special rapporteur found indications that there are several groups that share in the history, characteristics, and common human rights problems of the Adivasi Janajati and Indigenous peoples elsewhere, but that is not on the official list. These include the Kulung, Bahing, and Yamphu, which are among the most marginalized in the country. In a welcome development, a ‘List Renewal Task Force’ composed of nine indigenous representatives is currently being established by the government for the purpose of re-examining the official list with the participation of the main indigenous organizations.

For details of human rights situation of indigenous people in Nepal, see IWGIA Yearbook, Indigenous World, 2016. Available at www.​iwgia.​org. Accessed on 10 October 2016.

Interim Constitution of Nepal 2007, under its Part IV, Obligation, Directive Principles and Politics of the State, 33(d) the provision is ‘To have participation of Madhesi, Dalit, indigenous peoples, women, labors, farmers, disabled, backward classes, and regions in all organs of the State structure on the basis of proportional inclusion’ available at http://​www.​wipo.​int/​wipolex/​en/​text.​jsp?​file_​id=​189180. Accessed at 15 September 2016.

For details on rejection of new Constitution of Nepal by the indigenous peoples, see http://​www.​indigenousvoice.​com/​en/​why-indigenous-peoples-reject-new-constitution-of-nepal-2015.​html. Accessed on 10 October 2016.

See for details https://​www.​gov.​uk/​government/​world/​organisations/​dfid-nepal. Accessed on 25 December 2015.

Unequal Citizens: Gender, Caste and Ethnic Exclusion in Nepal (DFID and World Bank publication, 2006).

These figures are available on the regional report of International Labour Organisation related to Indigenous and tribal peoples. See www.​ilo.​org, Accessed on 25 December 2015.

See for details. http://​new-pakistan.​com/​2009/​08/​page/​3/​. Accessed on 25 December 2015.

Several National Forest Policies have been made since 1950s after independence of Pakistan. The country’s first forest policy was announced in 1955, followed by the forest policies of 1962, 1975, 1980, 1988, 1991, 2001, 2005, and 2010. For details, see Babar et al. (2006), see http://​www.​lead.​org.​pk/​. Accessed on 25 December 2015.

http://​www.​ilo.​org/​indigenous/​Achtivitiesbyreg​ion/​Asia/​Southasia/​Pakistan. Accessed on 25 December 2015.

Tribal density is scantly persist in the states of Jammu and Kashmir, Himachal Pradesh, and Uttaranchal in the North India and heavy density in the northeast states such as Assam, Meghalaya, Tripura, Arunachal Pradesh, Mizoram, Manipur, and Nagaland. Ministry of Tribal Affairs, government of India. Available at http://​tribal.​nic.​in/​index. Accessed on 25 December 2015.

Article 342 provides for specification of tribes or tribal communities or parts of or groups within tribes or tribal communities which are deemed to be for the purposes of the Constitution the Scheduled Tribes in relation to that State or Union Territory. The essential characteristics first lay down by the Lokur Committee, for a community to be identified as Scheduled Tribes are—(a) indications of primitive traits; (b) distinctive culture; (c) shyness of contact with the community at large; (d) geographical isolation; and (e) backwardness. See The Constitution of India, 1950 and Xaxa (1999).

There are other nomadic and primitive tribes which are also known as denotified tribes, which are not legally recognized as ‘Schedule Tribe’. See, Ministry of Tribal Affairs, government of India. Available at http://​tribal.​nic.​in/​index. Accessed on 25 December 2015.

The Constitution of India, 1950, Part-III Fundamental Rights (Articles-14–32).

Article 46 ‘the state shall promote, with special care, the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Caste and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’ The Constitution of India, 1950.

The Constitution of India, 1950, Articles 330, 332 and 334.

The definition of Scheduled Areas (under the fifth scheduled of the constitution) is ‘such areas as the President may by order declare to be Scheduled Areas.’ The criterion for declaration of an area as Scheduled Area was identified by the first Scheduled Areas and Scheduled Tribes Commission (Dhebar Commission). The features of such area were as follows: the preponderance of tribal population; compactness and reasonable size of the area, underdeveloped nature of the area, and marked disparity in the economic standard of the people. See The Constitution of India, 1950.

Under the Vth Schedule, the ‘Scheduled Areas’ are marked in was initially made applicable only to the states of Madras, Bombay, West Bengal, Bihar, Central Provinces and Bihar, United Provinces and Orissa.

In the VIth schedule, in tribal areas in the states of Assam, Meghalaya, and Mizoram, Autonomous District Councils and Regional Councils were constituted. See The Constitution of India, 1950.

Under the Fifth Schedule of the Indian Constitution states include Andhra Pradesh, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Gujarat, Maharashtra, Odisha, and Rajasthan, The Constitution of India, 1950.

The Constitution of India, 1950, Vth Schedule, Section 2; These provision are subjected to only two restrictions: (i) that the Governor would consult a Tribal Advisory Council (TAC) ‘before making any regulation,’ and (ii) that all regulations would receive statutory assent from the President of India before taking effect.

The Constitution of India, 1950, Vth Schedule, Section 2.

TAC can be created in the States having Scheduled Tribes but not Scheduled Areas. TAC consists of twenty members of which three-fourth must be representatives of Scheduled Tribes in the Legislative Assembly of that State. See The Constitution of India, 1950.

The Constitution of India, 1950, Vth Schedule [Articles 244(1) 4(2)].

The Constitution of India, 1950, VIth Schedule [Articles 244(1) 4(3)].

Autonomy means the tribes are given right to self-determination in exercising some sort of executive, legislative, and judicial power in their governance, The Constitution of India, 1950, VIth Schedule [Articles 244(2) and 275(1) Section 1]; The Sixth Scheduled provides for Administration of tribal areas in the States of Assam, Meghalaya, Tripura, and Mizoram.

The Constitution of India, 1950, VIth Schedule [Articles 244(2) and 275(1) Section 1].

The PESA mandates the State government to devolve certain political, administrative, and fiscal powers to local governments elected by the tribal communities in the Scheduled Areas. See Panchayat (Extension to Scheduled Areas) Act, 1999 at http://​tribal.​nic.​in/​index. Accessed on 25 December 2015.

Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 provides several kinds of rights to tribes that hitherto restricted by earlier legislation enacted in relation to forest and environment protection. These include the right to live in the forest, the right to cultivate for their livelihood, the right to collect minor forest produce, the right to graze cattle, the right to convert lease or grants (pattas) to titles, the right to convert forest village into revenue village, the right to settlement in the old habitations and un-surveyed villages, the right to access and community right over intellectual property and traditional knowledge related to forest biodiversity and cultural diversity, the right to manage the community forest resources, and right to enjoy any customary traditional except hunting. See Saravanan (2009).

Ibid.

The Committee on the Convention on the Elimination of Racial Discrimination in its state report on India (2007) revealed Indian government’s failure to protect indigenous peoples. See India, 05/05/2007, CERD/C/IND/CO/19, at paras 19–26.

For further details, see Seligmann and Seligmann (1911); also http://​www.​encyclopedia.​com/​topic/​Vedda.​aspx. Accessed on 25 December 2015.

See http://​www.​survivalinternat​ional.​org/​tribes/​wanniyala. Accessed on 25 December 2015.

http://​vedda.​org/​wanniyalaeto.​htm. Accessed on 25 December 2015.

Ibid.

Idid.

For details, see Address of Warige Wanniya to the UN, at United Nations Working Group on Indigenous People (UNWGIP) 14th session held in Geneva, 1996, see http://​vedda.​org/​wanniyalaeto.​htm. Accessed on 25 December 2015.

The Constitution of the Democratic, Socialist Republic of Sri Lanka. See https://​en.​wikipedia.​org/​wiki/​Constitution_​of_​Sri_​Lanka. Accessed on 25 December 2015.

Directive Principles of State policy and Fundamental Duties Article 27(2). The state is pledged to establish in Sri Lanka a democratic socialist society, the objectives of which include—the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing, and housing, the continuous improvement of living conditions, and the full enjoyment of leisure and social and cultural opportunities. See The Constitution of the Democratic, Socialist Republic of Sri Lanka. See https://​en.​wikipedia.​org/​wiki/​Constitution_​of_​Sri_​Lanka. Accessed on 25 December 2015.

See http://​vedda.​org/​wanniyalaeto.​htm. Accessed on 25 December 2015.