South Asia is the location of some of the most spectacular and publicized conflicts involving minorities in the modern world. The colonial era, with British India as the pivotal creation, was succeeded by States with large and rapidly increasing populations, divided partly along sectarian lines. The partition process was accompanied by considerable loss of life and displacement of populations. The separation did not finish in 1947. The establishment of the State of Bangladesh in place of the former East Pakistan in 1971-72 remains the outstanding example of a post-colonial exercise in self-determination, and this, too, was accompanied by tragic loss of life and the creation of an enormous refugee problem. The contemporary legal/political theory of self-determination does not allow for separation of fragments of new States which are deemed to have exercised their rights through the achievement of independence. Separation has not succeeded in Africa (see Introduction to Sub-Saharan Africa) and has been resisted both there and in Asia. The fact that separation inevitably involves what, until a successful “new” independent entity is created, is an ethnic minority, creates formidable problems for ethnic relations. The secession of Bangladesh may have set a destabilizing precedent in this respect, since a number of groups in the area — Kashmiris, Sikhs, Tamils — have agitated for self-determination or secession. South Asia is characterized by many different types of minorities. If there are outstanding themes, they are religion and the very particular social/religious institutions of caste. Recurring tensions exist between Muslims, Hindus, Sikhs and Buddhists in various permutations. Within this area of primordial and great religious inspiration, tensions within religious systems also exist. Ahmadis and other Muslims disagree on the interpretation of Islam. The Scheduled Castes, the “Untouchables” of the Hindu caste system, represent perhaps the world’s largest minority; the scourge of Untouchability condemns the existence of some 110 million persons, sufficient for the population of a large state. Tribal peoples in India and Bangladesh constitute sizeable groups in uneasy relationship with neighbours. Besides its legacy of partition, colonialism produced “planted” groups such as Indian Tamils in Sri Lanka, and mixed-race Anglo-Indians. The scale of minority problems in the area is great, but considerable thought and effort has also gone into devising appropriate structures towards the achievement of social harmony.
Instruments on Minority Rights
The record of State adherence to general international instruments on human rights is variable. The most noticeable lacuna concerns the position of Pakistan, which is not a party to either of the two International Covenants on Human Rights, but is a party to the Conventions Against Racial Discrimination and Apartheid; in reports on its implementation of the former treaty, Pakistan has claimed to have no ethnic minorities. India has made a unique reservation to the Covenants on Human Rights, both of which allow the right of self-determination to “all peoples”: “... the Government of the Republic of India declares that the words ‘the right to self-determination’ apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of the people or nation — which is the essence of national integrity”. This clearly curtails the scope of the right, and, in effect, serves as a warning to ambitious minority groups claiming self-determination that the State will resist them. The reservation is difficult to equate with India’s action in assisting the emergence of Bangladesh, but has never been withdrawn. Bangladesh, India and Pakistan are parties to the International Labour Organization’s Convention on Indigenous and Tribal Populations.
Besides general treaties, specific agreements on minorities have been concluded between States in the region, as might be expected in an area of few States but many large minority groups. The earliest is the Agreement between Pakistan and India (see Appendix 7.1), signed at New Delhi in 1950 in the light of the horrendous events which accompanied partition; the opening paragraph reads: “The Governments of India and Pakistan solemnly agree that each shall ensure to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality. Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively.” Other notable agreements include the New Delhi Agreement of 1973 between India and Pakistan with the concurrence of Bangladesh, and the Tripartite Agreement of 1974 concerning, among other things, the transfer of large numbers of Biharis and other non-Bengalis from Bangladesh to Pakistan.
The most recent case of an international agreement designed to cope with an ethnic crisis is the Colombo Accord of July 1987 between India and Sri Lanka to establish peace and normality in Sri Lanka (see Appendix 7.2). Both the rights of minorities and the rights of the State are underlined; the preamble recites the parties’ desire “to preserve the unity, sovereignty and territorial integrity of Sri Lanka”, “acknowledging that Sri Lanka is a multi-ethnic and a multi-lingual plural society consisting, inter alia, of Sinhalese, Tamils, Moslems (Moors) and Burghers . . . recognizing that each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured”. The Agreement provides for referenda and elections on the status of the Tamil area, an amnesty and other procedures designed to satisfy “the imperative need of resolving the ethnic problem of Sri Lanka”. Specific constitutional protection of minority rights is a strong feature in the region. That most complex of all constitutions, the Constitution of India, recognizes the claims of communities and individuals on the State. The Constitution combines provisions on equality of individuals with principles designed to protect and consolidate the identity and integrity of groups. Elements of positive discrimination for certain groups are present — “for the advancement of . . . socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes”. For group identity, Article 29(1) of the Constitution provides that “any section of the citizens residing in the territory of India . . . having a distinct language script or culture of its own shall have the right to conserve the same”. Whereas Article 29 refers to citizens, Article 30(1) describes minorities: “All minorities, whether based on religion or language shall have the right to establish and administer educational institutions of their choice.” Article 350A provides that it is the goal of every State and local authority “to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to minority groups”. Linguistic group rights are balanced against the general direction of State policy — it is deemed to be the duty of the Union to promote Hindi “so that it may serve as a medium of expression for all elements of the composite culture of India”. Broad guarantees are provided in respect of religion, and there are extensive sections in the Constitution devoted to the Scheduled Castes and Scheduled Tribes.
India is a secular State, but Pakistan is an Islamic State according to Article 2 of its Constitution. Article 222 commences in a very unpromising manner for non-Muslims: “... all existing law should be brought into conformity with the injunctions of Islam ... .” However, the rest of the Article recites that “nothing in this part shall affect the personal laws of non-Muslim citizens or their status as citizens”. Pakistan, like many Islamic States, is not governed entirely by principles of legal territoriality, but also by the principle of personality: members of religious groups may be legally subject to the demands and benefits of their religions as well as to State law in general (see introduction to the Middle East and North Africa). Other articles of the Constitution deal positively with minorities and their rights. Rights are for individuals as well as religious communities; linguistic groups are also catered for — Article 28 recites the right of “any section of the citizens speaking in a distinct language ... to preserve and promote the same . . . “. Despite a much more draconian approach to non-Muslim religious minorities in Bangladesh, the validity of religious laws and customs of religious minorities has been recognized in such matters as personal and family laws. The Constitution of Afghanistan recognises the equality of citizens, recognizes human rights and refers specifically to ethnic groups — the Government is committed to raising the standard of living for all nationalities, tribes and ethnic groups in Afghanistan. Emphasis is also placed on realizing the unity of all of Afghanistan’s people.
Treatment of minorities
The retreat of colonialism from South Asia left major minority problems in its wake. Minorities in this area are often large, organized groups inhabiting specific historical territories. Their ambitions are frequently seen to threaten the stability of States, creating situations of considerable tension. Difficulties are compounded by de facto discrimination against minorities, despite the proliferation of admirable accommodating structures and principles of non-discrimination and equality — untouchability has been “abolished” by law but clearly exists. Further questions are raised by “confessional” States such as Pakistan; in a region of intense religious division, perhaps the secular State stands a greater chance of delivering liberty and justice to its citizens. States do not conform to the ideal of one nation or one creed; it should be a principle of politics that they do not act as if the ideal were real — a narrow vision produces real difficulties for those who do not share it. The rise of religious fundamentalism creates the most acute difficulties in a State officially given over to a particular religion. The situation of Ahmadis in Pakistan illustrates these points. Finally, the “internationalization” of minority conflicts in the region is a mixed blessing; kin-State interest in a group can result in interference in a State’s internal affairs and escalate conflict. On the other hand, it can result in consolidation of a group’s position in that the host-State’s conduct is subject to close and continuing scrutiny.