India has much to answer for about the callousness with which it treated the hundreds of thousands of migrant workers whose lives were plunged into chaos on March 24 after Prime Minister Narendra Modi announced a total lockdown to contain the spread of the coronavirus at a four-hour notice.
Left without their daily-wage jobs and food, the workers began a great exodus back to their home villages. Some walked hundreds of kilometres.
Despite the Centre’s inadequate management of the crisis, the Supreme Court initially declined to intercede, dismissing public interest litigations that wanted the court to direct the Centre to ensure that the workers were given transport to get home in addition to providing them with food and shelter.
By contrast, the High Courts of Madras, Andhra Pradesh, Bombay, Gujarat and others offered a semblance of hope by taking cognisance of the crisis and issued directions to their respective state governments to file status reports, ensure that personal protection equipment reached frontline workers and that food, shelter homes and travel arrangements were made for migrant workers.
On May 2, amid growing protests by migrant labourers around the country demanding to be sent home and many criticising its inaction, the Supreme Court took up a suo motu writ petition on the Problems and Miseries of Migrant Labourers. On June 9, it passed an order giving states 15 days to identify stranded migrants and transport them home. The court also directed the states to consider withdrawing cases filed against the migrants under the Disaster Management Act for the flouting of the lockdown by setting home on foot.
While the Supreme Court’s directions were laudable, its delay in responding was telling. The crisis saw the Centre passing the baton of responsibility to the states. Perhaps matters could have played out more humanely if the Supreme Court had used the opportunity to recognise migrant workers as internally displaced persons. This would have imposed obligations on the Centre under international law to protect such persons by providing them with protections like food and water, shelter, clothing aside from return, resettlement and reintegration solutions.
A failed system
There was a good case for India’s migrant workers to have been acknowledged as internally displaced persons after the lockdown. The United Nations Guiding Principles on Internal Displacement lists two elements that define internally displaced persons: first, force or obligation to flee or leave homes; second, the causation stemming from them trying to avoid the effect of armed conflict, violations of human rights or natural/ human-made disaster.
Both of these elements were evident as India’s migrant workers have set out for their homes these past months. The deprivation of means of subsistence because of the loss of their jobs, coupled with starvation and the inability of the Indian state to extend migrants protections at the onset of the lockdown left them with no alternative but to flee. This fulfils the element of force in the context of a natural disaster.
This element has been recognised by the Supreme Court in its suo motu petition where the court held: “The migrant labourers, who were forced to proceed to their native place, after cessation of their employment are already suffering.”
The Indian state has shied away from a comprehensive legislative framework for internally displaced persons despite the country having an estimated 3.6 million people who have been displaced between 2008 and 2019 due to natural disasters like floods, earthquakes, cyclones and drought, besides conflict and violence as seen for instance in Kashmir. This is the highest level of displacement in South Asia. The Centre has claimed that such a law would infringe upon India’s sovereignty because it would allow for interference from other countries and international organisations through humanitarian assistance.
Some people argue that the National Disaster Management Plan of 2019 offers policy directions to government agencies for rehabilitating “vulnerable groups”. But the failure of the plan in building a comprehensive response system to mitigate the impact of the Covid-19 containment measures on migrant labourers makes its flaws obvious.
Setting a precedent
Despite the absence of specific legislation related to internally-displaced persons, Indian courts have on several instances upheld the principles of the United Nations Guiding Principles on Internal Displacement.
In 1985, the Olga Tellis case resulted in the expansion of the meaning of Article 21 – “right to life” – of the Constitution to include “right to livelihood”. In 1981, the Supreme Court held that the right to adequate shelter was a part of the right to life.
In 2010, the Delhi High Court held that the UN Guiding Principles on Internal Displacement was a part of domestic law. In 2012, the Delhi High Court stated that the UN Guiding Principles on Internal Displacement “fill gaps in national and international law” while acknowledging the benchmark for ensuring basic human rights security.
India’s ratification of the Universal Declaration of Human Rights since its adoption by the United Nations General Assembly in 1948, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights in 1979, also places an obligation on New Delhi to protect the internally displaced.
One of the problems noted during the migrant worker crisis was that migrants in some states received greater redressal than migrants of others states. This is because various state governments had received different directions from their respective High Courts. If the Supreme Court had recognised migrant workers as internally-displaced persons, the Centre would have had to formulate a country-wide framework for them.
Recognising the migrant workers as Internally Displaced Persons would have been an acknowledgement that they were victims of institutional failure. It would also put an obligation on the Centre to take responsibility for its flaws in the policies of the migrant workers. The crisis demonstrated why the time is ripe for a national policy to be framed to recognise Internally Displaced Persons and their rights.
Puja Raghavan is a final year student at the Campus Law Centre and a Political Science graduate from the Lady Shri Ram College for Women.