COVID-19: Classification of India’s migrant workers as Internally Displaced Persons

Photo by The New York Public Library on Unsplash

India continues to witness the world’s largest nation-wide lockdown since Prime Minister Modi’s televised speech on March 24th, 2020. The time given to a country of over 1.3. billion people to prepare for a 21 days lockdown was merely 4 hours. On 17th May, the Indian government extended the lockdown for the fourth time till 31st May and offered considerable relaxations. While the pandemic has necessitated the Indian government to take the hard policy decision of lockdown, the implementation of the same has worsened the situation for many.

India’s 40 million migrant population was caught off-guard with the announcement of the lockdown. With the entire country coming to a standstill, offices and factories closed, the migrant labourers have been left to fend for themselves. The widespread anxiety of getting infected and dying far away from their family and loved ones made migrants move to their hometowns. It has led the UN Human Rights Commissioner to take note of the “plight of millions of internal migrants affected by the lockdown”.

The Guiding Principles of Internal Displacement

The comprehensive framework of the internally displaced persons (IDPs) came in 1998 in the form of The Guiding Principles of Internal Displacement (GPID) (popularly, known as Deng Principles), through the initiative of the then UN Secretary-General. The GPID has been more or less universally accepted as a normative framework for the protection of IDPs. The UN General Assembly has on multiple occasions affirmed the recognition of the principles as an ‘international framework’ and the OHCHR has held it to be an ‘important tool’ to combat internal displacement.

The Deng Principles define IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”

While GPID is framed based on the existing principles of international law, the definition of IDPs provided in the same instrument is non-legal i.e. it is merely descriptive. More so, it reaffirms the responsibility of the government as the movement of people remains internal. Consequently, IDPs continue to be under the protection of their national laws.

Migrant workers as IDPs

The COVID outbreak in India has been declared a ‘disaster’. The Ministry of Home Affairs (MHA) has notified the disaster under the Disaster Management Act, 2005 following the National Disaster Management Authority (NDMA) order dated 24th March 2020.

The inter-state migrants move from their homes in the small towns and villages to the cities for the want of better livelihood. The cities became their habitual residence. However, these urban slums/dorms are crammed up and often shared by multiple migrants. Since the outbreak of the pandemic and the imposition of the nation-wide lockdown, the economic activities were suspended. Resultantly, the migrants lost their jobs and incomes, which in turn affected their ability to pay the monthly rents of their accommodation. Moreover, the movement of migrants back to their villages is propelled by the fact that the existing conditions of living in the cities won’t allow them to practice physical distancing or isolation and may become a health emergency if any single one of them tests positive. The said movement of the people is involuntary in nature. The threat of contracting the virus as well as the necessity of living with adequate food and shelter pushes the migrants to leave their habitual residence and be on the move within the national territory. Adding to their woes and trauma, the decision of the government to close all state borders to prevent any migrant movement, restricted their means to reach home. This resulted in thousands of workers being stranded on roads, slums, and shelter homes set up by state governments and NGOs. The deplorable sanitary conditions at the shelter homes makes them vulnerable in getting infected with diseases like cholera, dysentery etc. In fact, the lack of adequate food has made the threat of food insecurity come alive.

Millions of displaced migrants have shown their dissatisfaction with the services and have repeatedly blamed the government for its insensitivity. Many of the workers have come out on the streets of Mumbai and Gujarat, protesting and demanding safe passage to their homes. But, they were dispersed by police officials forcefully for violating the physical distancing rules. On 29th April, 36 days after the lockdown, the MHA had issued a notification to facilitate the movement of displaced workers back home subject to a medical examination. However, it must be noted that the growing stigma against the migrants being the potential carrier of the infection escalates the possibility of their disenfranchisement. Thus, the movement of the workers across the states and the subsequent restriction on their movement by the government have rendered them internally displaced.

Indian Courts and State’s position on IDPs

India’s denial of internal displacement as a phenomenon has led to piece-meal and ad hoc initiatives. Raising the argument of sovereignty, the Indian government has refused to recognise the GPID as legal principle since the beginning. Its representative has categorically rejected the binding nature of the principles before the UNSC because of the absence of intergovernmental negotiations which led to its drafting.

Recently, the Indian Supreme Court, showing deference to the government, denied the claim of the petitioners who were seeking immediate payment of wages for the migrant workers. During the oral hearing of the case, reflecting the institutional apathy, the Chief Justice outrageously quipped “If they are being provided meals, then why do they need money for meals”.

Despite the absence of legislation and a central policy on IDPs, the Courts have protected the rights of the displaced people. The Delhi High Court in the case of Union of India & Ors. v. Vijay Mam, acknowledged the role of GPID as the gap — fillers within the realm of national as well as international law. Similarly, Justice Gita Mittal, in her judgment, found GPID to be part of India’s domestic law. However, the invocation and the application of the GPID before the Indian courts has remained ad-hoc and inconsistent.

Having said that, Indian government remains under international obligation through the treaties it has ratified over the years. It includes the rights to life (Article 6 ICCPR, Article 11(1) — 12 ICESCR); physical integrity, and an adequate standard of living (Article 6–7 ICESCR). In fact, the government has to take preventive steps to mitigate disaster risk and prevent deaths during epidemics.

Conclusion

The State’s action under the vague and open worded statute (DMA) and various notifications has led to violation of civil liberties. It is true that the human rights framework equally applies to displaced as well as non — displaced population. But, the legal recognition of the migrants as IDPs would allow them to invoke their rights under international law factoring in the hardships faced due to their involuntary movement.

It is important to note that GPID doesn’t bestow any additional burden on India. GPID crystallizes the obligations arising from the international humanitarian and criminal law and that of the core human rights treaties. Affirming GPID within the domestic law or policy will provide for the much needed acknowledgement by the Indian government of the internal displacement. It will pave the way for spreading awareness, monitoring and data collection, adoption of a streamlined national strategy, and plan of action.

The piece was result of assistance to my beloved senior Mr. Aakash Chandran on his prime project. He is the next big shot in International Law academia.

Originally published at https://www.barandbench.com on May 30, 2020.

Lawyer| Consulting Editor @ ijlpp.com|

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