The divergent legacies of racialized law – legal pluralism as Tactic and Weapon in Bangladesh and India

Speaker: Margaret O'Brien is a PhD candidate at the School of Oriental and African Studies (SOAS). Her research considers the possibilities generated by human rights norms as ‘enabling’ and, constraining’ forces insofar as the life conditions of the indigenous communities of the Chittagong Hill Tracts are concerned. Prior to starting at SOAS, Margaret had an earlier career in British local government and management consultancy. Her interest in Bangladesh developed while on a Voluntary Service Overseas placement as Management Advisor to the Raja of Khagrachari in the Chittagong Hill Tracts.

Abstract: The legal pluralism now found in both India and Bangladesh is a direct legacy of the practice of indirect rule in North East India; in both States, customary legal systems are integrated into their respective constitutional frameworks. Using the example of the Chakma people, I will briefly contrast constitutional protections for tribal minorities in India and Bangladesh, suggesting that the Indian institutions are integrationist in nature, whilst Bangladesh declares its unitary nature as a constitutional principle and pursues assimilationist policies toward minorities.  Difference also accrues in the lived experiences of the Chakma minority; the Bangladeshi Chakma have fiercely resisted the State sponsored violence, displacement and exile visited upon them since 1971, in contrast to the largely peaceful assimilation of the Indian Chakma into the protective regime of the Sixth Schedule. I will argue that paradoxically, the more generous protections of the Sixth Schedule of the Indian Constitution appear to create a more conservative and oppressive iteration of Chakma customary law. I conclude that the instrumental differences in the constitutional frameworks that enable legal pluralism are less relevant to differences in substantive practise whether customary jurisdiction is retained over land allocation and use, and to the subsequent alignment of customary law with political resistance.

Primary Discussant: Vanshaj Jain is a BCL candidate at the Faculty of Law, University of Oxford. He is a 2017 Rhodes Scholar at Exeter College. Vanshaj obtained his undergraduate degree in law from the National Law School of India University. His areas of interest are public international law, commercial law and dispute resolution.

Blogger: Navya Jannu is an M Phil candidate in Law at the University of Oxford. Her research focuses on Renewable Energy in South Asia. She completed her BCL with Distinction in 2017 from the University of Oxford and BA, LLB (Hons) from Jindal Global Law School in 2016. She is an HSA Advocates Award Scholar, and is supervised by Professor Liz Fisher.