Constitutional recognition is considered as a valuable tool of promoting and protecting the rights of indigenous people-illustrate and explain

Constitutional recognition is considered as a valuable tool of promoting and protecting the rights of indigenous people-illustrate and explain.


Different terms are used by sections of the population throughout Bangladesh to refer to its indigenous peoples. These differences have sometimes led to sharp disagreements, particularly between government officials and members of the indigenous peoples.1 In referring to the peoples concerned, some officials of the Government of Bangladesh (GOB) prefer the term ‘upajati’ (literally ‘subnation’ and akin to the words ‘tribe’ or ‘tribal’ in English) and reject the use of the words ‘Adibashi’ (equivalent to indigenous or aboriginal) and ‘indigenous’.2 Vocal members of the indigenous peoples, in contrast, prefer the term ‘indigenous’ in English, and ‘Adibashi’ in Bengali. They reject the term ‘upajati’ (subnation) and, to a lesser extent, the English term ‘tribe’, both of which seem disparaging because of associated connotations of ‘backwardness’ and ‘primitiveness’.3 Other terms acceptable to a large section of the indigenous population include ‘Jumma’ (from the common heritage of ‘jum’ or swidden cultivation) and ‘Pahari’ (hill people). Legal and policy documents of the GOB and official correspondence use a variety of terms, including: (i) ‘indigenous’;4 (ii) ‘aboriginal’;5 (iii) ‘adivasi’;6 (iv) ‘ethnic minority’;7 (v) ‘hillmen/hillpeople’;8 and (vi) ‘upajati’ (subnation/tribe/tribal).9 In a case before the Supreme Court of Bangladesh, the court took cognizance of the fact that the petitioner was an ‘indigenous hillman’ of the CHT.10


There are different opinions and an acute shortage of reliable data and statistics regarding the population size of the different indigenous peoples. According to official statistics, there are about two million indigenous people in Bangladesh, out of which 1.6 million live in the plains. A total of 59 different groups are mentioned in various studies and censuses. There are 11 distinct indigenous peoples in the Chittagong Hill Tracts (CHT), while the indigenous peoples of the regions outside the CHT, referred to as the ‘plains’, are comprised of 21 Adibashi/Adivasi groups.


The study refers to the few laws that directly and substantively concern the plains indigenous people, including those mentioned below. The most important of these is the major land law of plains Bangladesh, the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1950), which restricts the transfer of lands of “aboriginal castes and tribes” to non-aboriginals, and some provisions of the Drugs and Alcoholic Substances Control Act, 1990 (Act XX of 1990). In addition, there is the Vested and

Non-resident Property (Administration) Act, 1974 (Act XLVI of 1974), which has been misused to appropriate lands of plains indigenous people (along with those of members of religious minorities), and the Forest Act of 1927 (Act XVI of 1927) and Social Forestry Rules of 2004, some of whose provisions violate the customary and other resource rights of indigenous peoples.


There is no single government policy document on the country’s indigenous peoples, either for the CHT or the plains. However, some formal policies do mention indigenous peoples, the most important among which is the National Poverty Reduction Strategy Paper (PRSP-I and PRSP-II). The PRSP-I referred to the indigenous peoples as “Adivasi/Ethnic Minority” while the PRSP-II uses the terms ‘indigenous people’. Both support the implementation of the CHT Accord of 1997, which may be regarded as another policy document, whose implementation has been seen to run into several difficulties over the years. That said; the recently elected Awami League-led government is on record as being committed to implementing its provisions in their entirety. There is much room for accommodating the concerns of indigenous peoples in the national sectoral policies of Bangladesh (which currently largely bypass indigenous issues), including policies on Health, Education, Employment, Land (including Water Resources), Environment, Forests, Climate Change and Women’s Development, among others. The study attempts what it calls an “Equity and Gender” audit of Bangladeshi laws and policies (Chapter VII) and concludes that the marginalized situation of indigenous women and that of disadvantaged indigenous groups (especially those with small populations and low access to education) requires special measures to provide them with the true benefits of equality and non-discrimination. References are made to the relevant provisions of the national constitution that safeguard or hinder indigenous peoples’ rights. The problems associated in implementing the constitutional and international treaty rights within the Bangladeshi justice and human rights system are mentioned briefly.

According to United Nations human rights bodies, ILO, the World Bank and international law apply four criteria to distinguish indigenous people:

• Indigenous peoples usually live within (or maintain attachments to) geographically distinct ancestral territories.

• They tend to maintain distinct social, economic, and political institutions within their territories.

• They typically aspire to remain distinct culturally, geographically and institutionally, rather than assimilate fully into a national society.

• They self-identify as indigenous or tribal.


In 1972, when the constitution was enacted it was a secular constitution. in our constitution in 1972, and which have thankfully survived the various incisions, grafts and other additions that have been made to our constitution, but remain largely unimplemented. Let me cite one here: “It shall be a fundamental responsibility of the State to emancipate the toiling masses the peasants and workers and backward sections of the people from all forms and exploitation” (Article 14).


Prior to British rule, the Chittagong Hill Tracts was governed by comparatively non formalized self-governance systems, which were considered to be independent. British influence over the region took place in a gradual manner, and during the period of British influence, the area had the special status of an autonomously administered region, safeguarded by the Chittagong Hill Tracts Regulation of 1900, which, inter alia, strictly controlled the entry and residence of non-hill people and barred the sale and transfer of land to non-indigenous peoples. During the British colonial period and during the early years of Pakistani rule, the Chittagong Hill Tracts was recognized as a specially administered area5 under several constitutional dispensations, including the Government of India Act of 1919, the Government of India Act of 1935 and the constitutions of Pakistan of 1956 and 1962. In 1963, however, a constitutional amendment eliminated the special status and immigration restrictions. After Bangladesh became independent from Pakistan in 1971, the elements of indigenous peoples for regional autonomy and the restoration of the special constitutional safeguards were rejected when the first constitution of Bangladesh was adopted in 1972.

The Constitution of Bangladesh provides, among others, for the implementation of our fundamental rights and freedoms, including on non-discrimination and special provision clauses (articles 27, 28 and 29; read “affirmative action”) through writ actions in the High Court Division of the Supreme Court of Bangladesh, under article 102.

These provisions, however, have seldom been invoked in court. And this is hardly surprising.

One really cannot expect that citizens from disadvantaged backgrounds away from the capital will be able to come to Dhaka, hire a lawyer and conduct their cases in the High Court. Obviously, we need to make these remedies available, closer to home. There are several ways of doing this, such as: (i) through the establishment of new constitutional courts in locations outside of Dhaka, (ii) by empowering existing district-level courts to try certain classes of cases in a specific and prompt manner; (iii) by establishing administrative bodies to hear and provide remedies against discriminatory acts, (iv) have constitutional and other bodies provide necessary advise to the government, and (v) establish special bodies to include ‘Adibashi’ in governance and development,

4.1 MINORITIES ‘ADIBASHI’S AND THE 1972 AND OTHER PRE -2011 CONSTITUTION: The original constitution of 1972 was secular and neutral with regard to religious identity, but not with regard to the ethnic and linguistic identity of non-Bengalis. The post-1975 constitution, on the other hand, got rid of Bangali nationalism, but imposed a Muslim orientation of national identity and state practices that made the adibashis and religious minorities feel equally insecure. And where are we now in 2011?


The Chittagong Hill Tracts Accord contains four main parts:

(a) Part A, under the heading “General”, recognizes the Chittagong Hill Tracts as a tribal inhabited region. It deals with commitments to pass legislation and sets out details of the composition of a committee to oversee the implementation of the Accord;

(b) Part B, entitled “Chittagong Hill Tracts Local Government Council/Hill District Council”, details proposed legal amendments to strengthen the existing powers of the district councils and to extend their jurisdiction to include new subjects;

(c) Part C, entitled “Chittagong Hill Tracts Regional Council”, lays down the composition of a new unit of regional authority to be constituted as a regional council incorporating the three districts of the area. In the case of both the regional and the district councils, the chairperson and two thirds of the seats are to be reserved for indigenous peoples;

(d) Part D, entitled “Rehabilitation, General amnesty and other matters”, addresses a wide range of issues, including the rehabilitation of international refugees, internally displaced persons and indigenous fighters, and the granting of amnesty to the guerrillas and other people involved in the armed struggle. The issue of land and settlement of land disputes is mentioned both in part D and part B. It is important to note that no time frame was developed for the implementation of the various provisions of the Accord and that no independent body overseeing its implementation was agreed upon.

The fact that the Accord is not protected by constitutional safeguards is also significant.


Currently the government is trying to deny there is any indigenous or tribal group in our country. Government officials in Bangladesh have come to a cross roads with the latest move by the current government to possibly remove the word “indigenous” from official documents in relation to some of the poorest and most marginalized ethnic groups in the country.

Government officials in Bangladesh have come to a cross roads with the latest move by the current government to possibly remove the word “indigenous” from official documents in relation to some of the poorest and most marginalized ethnic groups in the country. The talk of removing the word came June 30 when a constitutional amendment was passed recognizing “small ethnic groups,” without referring to them as indigenous. According to an article published by CHT news and posted at the Unrepresented Nations and Peoples Organization website, the term ‘Adivasi’ (Indigenous Peoples) will be replaced by the term ‘khudro Nritattik Jonogosthi’ (ethnic minorities).

Recently Prime minister Sheikh Hasina on Apr 27 at a press conference said the same thing— "no indigenous", but the Santals. But there are not only sandals also there are many indigenous people live in our country.


Constitutional recognition is considered as a valuable tool of promoting and protecting the rights of indigenous people. The constitutional and legislative measure are frequently used as means for adopting affirmative action policies and programmers, which are particularly beneficial to the indigenous groups. The legislative and constitutional mechanism is also important for promoting international human rights norms relating to indigenous people, as these norms can only be implemented at the national level through their incorporation as laws in the constitution. Indeed, recognition of indigenous people's rights is an essential element of democratic and plural society, not an exception.


1 See, Raja Devasish Roy, The ILO Convention on Indigenous and Tribal Populations, 1957 and the Laws of Bangladesh: A Comparative Review, Project to Promote ILO Policy on Indigenous and Tribal Peoples and ILO Office, Dhaka, Bangladesh, July, 2009 {hereafter ‘Roy (2009)’}, pp. 7-10 for a detailed discussion of the use of the various terms and the precise references in legal and other documents.

2 This is mentioned, for example, in a “secret” letter from the Ministry of Chittagong Hill Tracts Affairs, dated, 28 January 2010 asking District Officers in the three hill districts of the Chittagong Hill Tracts to take steps to prevent the use of the word “Adivasi” (the Bengali equivalent of indigenous and aboriginal), and to promote the use of the word “upajati” (subnation).

3 Roy (2009), op. cit., pp. 9, 10. It may be noted that the Bengali translations of the provisions of the ILO Conventions on Indigenous and Tribal Peoples (Conventions No 107 and 169) retain the term ‘tribal’ in its English form and do not translate them as ‘upajati’. Interestingly, in Hindi and Nepalese the vernacular equivalent of ‘tribal’ is often regarded as ‘adivasi/adibashi’, and the word ‘upajati’ does not feature in either language. It is believed that the term ‘upajati’ in the sense of ‘subnation’ entered the Bengali language in the nineteenth century, (but not Hindi, Nepalese or other South Asian languages), carrying with it pejorative connotations and disrespectful attitudes. The Constitution of Bangladesh justifies affirmative action for what it calls the “backward section of citizens” (articles 28 and 29).

4 CHT Regulation, 1900, Finance Act, 1995, PRSP-II (2008), Steps towards Change: National Strategy for Accelerated Poverty Reduction II, FY 2009 – 11 (“PRSP-II-2009”), and correspondences of the National Board of Revenue.

5 East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII, 1950; at section 97).

6 Unlocking the Potential: National Strategy for Accelerated Poverty Reduction, General Economics Division, Planning Commission, Government of People’s Republic of Bangladesh, 30 October 2005 (hereafter (“PRSP-I”).


8 CHT Regulation, 1900.

9 CHT Regional Council Act, 1998.

10 Sampriti Chakma v. Commissioner of Customs & Others (5 BLC, AD, 29).Barua, B.P., "Ethnic Minorities in Bangladesh: A Socio-Anthropological Study of Three Major Tribes of CHT",Regional Studies, 17(3), Summer 1999, pp. 109-22.

Other journal’s for secondary data :

Behera, Ajay Darshan, "Insurgency in the Bangladesh Hills: Chakmas’ Search for Autonomy", Strategic Analysis, 19(7), October 1996, pp. 985-1005.

Rashiduzzaman, M., "Bangladesh’s Chittagong Hill Tracts Peace Accord: Institutional Features and Strategic Concerns", Asian Survey, 38(7), July 1998, pp. 553-70.

Zaman, Habiba, "Violence Against Women in Bangladesh: Issues and Responses", Women’s Studies International Forum, 22(1), January-February 1998, pp. 37-48.

Quader, G. M. (2008, 08 17). thedailystar. Retrieved 10 04, 2011, from