This article is written by Dhananjai Shekhawat.
The entire population of a country may be divided into two broad categories, namely, citizens and non-citizens. Certain fundamental rights are only guaranteed to citizens and are unavailable for non-citizens. Moreover, several government offices may only be occupied by citizens.
There are certain constitutional provisions relating to citizenship in India. Article 5, 6, 7, and 8 of the Constitution of India categorise persons who are deemed eligible to become citizens.
Article 5 talks about citizenship by domicile, wherein a person who was born in India or either of the person’s parents was born in India or the person must have been an ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution. Domicile of a person is in that country in which the person either has or is deemed by law to have his/her permanent house.
Article 6 talks about the citizenship of migrants to India from Pakistan, wherein persons born in India or either of the person’s parents was born in India or the person must have been an ordinarily resident in the territory of India for not less than five years immediately before the commencement of the constitution. Domicile of a person is in that country in which the person either has or is deemed by law to have his/her permanent house. In the case of persons migrating before July 19, 1948, if the person has been ordinarily residing in India since the date of her migration, and in case of a person migrating on or after July 19, 1948, if he/she has been registered as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India, shall be deemed to be a citizen of India.
Article 7 talks about the citizenship of migrants to Pakistan wherein, if a citizen of India has migrated to Pakistan after March 1, 1947, but returned to India based on a permit for resettlement in India, the person is entitled to become a citizen of India if he/she registers herself as a citizen of India, after residing for at least six months immediately before the date of applying for registration, by an officer appointed by the government of India.
Article 8 talks about the citizenship of persons of Indian origin residing outside India, wherein, if Indian nationals (whose parents or any grandparents were born in India as defined in the Government of India Act, 1935) residing abroad shall be conferred Indian citizenship as if they have been registered by the diplomatic or consular representatives of India in the country where they are residing.
Under the newly amended act which is the Citizenship Amendment Act, 2019, the law provides for granting Indian citizenship to Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians from Pakistan, Bangladesh, and Afghanistan who came to India on or before December 31, 2014. The law will not be extended to Rohingya Muslims persecuted in Myanmar; Shia and Ahmadiyya Muslims in Pakistan; Hazaras, Tajiks, and Uzbeks in Afghanistan; Tamils in Sri Lanka; and atheists in Bangladesh.
Now, with this context in mind, we shall analyse the mass migration in South Asia in the light of the COVID-19 pandemic and the problems it proposes.
Internal migration in India in the COVID-19 pandemic
India, as well as other South Asian countries, have witnessed the largest mass migration since the partition of India and Pakistan in 1947. Lakhs of migrants are moving internally in India from major urban centres to their towns and villages in their home state. Most of this migration happened in days when the public transport network was completely shut down, there were no trains, no buses, or any other inter-state possible transport available. Thousands and lakhs of migrants were forced to resort to walking back to their hometowns and villages or hitching truck rides on highways which were also rare. Migrants and their families slept on roadsides, getting little to no help from the state machinery.
In this context, it is fair to deduce that most of the migration in recent times was or has been due to the pandemic. Further analysis shows that the direct causes were lack of jobs and employment opportunities. The reason that causes maximum migration from smaller towns and villages to these developed urban centres is employment, and lack of the same became the primary reason for the migration of these individuals and their families back to their villages or hometowns in their native states.
Whenever we discuss the rights of migrants in the political, and socio-legal context, even internationally, the main focus stays on international migration meaning migration of individuals from one country to another which can happen for several reasons, varying from better living standards, employment opportunities and sometimes fleeing persecution. Rarely is the focus ever put on the internal migration of residents of a country from one part of the said country to another.
In most cases, the internally displaced migrants have not been considered a real issue is because there is an extraordinary paradox here, of the displaced persons being both a citizen of a country and a migrant within it at the same time.
The term refugee comes with a heavy meaning not only for the individual but also for the state tasked with the responsibility of their well-being. Refugee means a person who has travelled across or crossed the international border(s) for refuge or asylum in another country. Their responsibility and well-being is often the task of the country and the government where they seek such refuge. Unlike refugees, the internally displaced migrants do not have the same meaning attached. Although the internally displaced migrants may have a condition extremely similar to the refugees, however, they are not provided with the same status or protection.
The Indian government has a primary responsibility towards the welfare of these displaced persons. Not only are these persons rightful citizens of India, but they also have certain basic human rights that have to be honoured under numerous international treaties and conventions signed and ratified by India. In an attempt to saffronise the population diaspora of our country, the current government has massively failed to give basic welfare facilities to the displaced individuals and groups who consist of underclass citizens. They are mostly daily wage labourers, construction workers, domestic workers, etc. They have large families and are often the sole breadwinners for their entire family who depend on them for two square meals a day. As they are a part of the informal sector workforce, there are not a lot of labour laws protecting them and their interests.
The government went ahead and announced a nationwide lockdown on March 24, 2020, without providing for these underclass citizens in any way. There were no transport facilities, no jobs, and no welfare schemes to feed them. The most suffered through the lockdown were these underclass citizens, neglected by their own government in a ‘modern welfare state’.
Analysis of forced migration
This internal migration due to the pandemic can well be categorised as forced migration since the migrants do not per se have a choice in this case. They did not migrate back to their home states willingly in search of a better job or standard of living. Such forced migration can have long-lasting difficulties along with many short term problems as well.
Force migration may be defined as movements of refugees or internally displaced people as well as people displaced by natural or environmental disasters, famine, chemical or nuclear disasters, or state development projects. There are a great number of vulnerabilities associate with forced migration, as per the Human Development Report of 2009, persons who are forced to migrate have to leave behind their homes, jobs, belongings, and often go into a process with limited choice or freedom and very few resources to survive.
The most vulnerable socio-economic class is usually the one that is the victim of such forced migration. If you are a daily wage worker, a construction worker, or a member of the informal workforce in any form, you are more likely to be the target of a forced migration movement. The COVID-19 pandemic has reiterated this statistically backed deduction by impacting the most vulnerable group the most. Beyond socio-economic classes, there is also a religious factor at play. The persons so displaced by the internal forced migration are more likely to be from a minority religious group or the lower castes of the majority Hindu religion. Sadly, this categorisation still holds true even after so many years of independence.
Another relevant criterion here is the regional analysis of this forced internal migration crisis. A majority of migrants who moved to urban centres for a better life come from a handful of states, namely, Uttar Pradesh, Bihar, and West Bengal. These states have a largely rural population with decreasingly limited resources and jobs thus urging more and more people to branch out and shift to urban centres such as Mumbai, Delhi, Bangalore, et al in search of jobs and livelihood. Now that there is a return of these individuals to their native states, these states amongst others will be left with a number of unemployed youth and middle-aged persons along with their families. Not only this, the states that these people have migrated from will also have many informal sector jobs with not enough people to take up these duties thus resulting in an imbalance.
Unfortunately, India does not have a national policy to tend to this pressing concern. There is no framework as it stands today to address the issue of internally displaced persons. India has not ratified the 1951 Convention and 1967 Protocol and does not permit UNHCR access to most of these groups. There is no international agency to deal with such types of displacement. India has attempted to address this issue previously through a Draft National Policy for Rehabilitation, which is a multi-dimensional response to displacement with full rehabilitation aiming to make better the lives of the internally displaced individuals.
The states, however, have been far from cooperative with each other while sharing the burden for the welfare of the migrants. Article 19(d) and Article 19€ of the Constitution of India does grant the right to all citizens to freely move about throughout the territory of India, however, Article 19(5) of the Constitution of India puts certain reasonable restrictions on the abovementioned right. Constitutional scholar Ms. Kanika Gauba weighed in on this issue and said, “Under the constitutional scheme, reasonable restrictions on the freedom of movement throughout the territory of India are permissible in the interests of the general public,” In this context, the States have attempted to resolve themselves from their responsibility of looking after the welfare of the migrants. Furthermore, States have used the colonial Epidemic Diseases Act of 1897 to restrict the movement of migrants. States have used Section 2 of the Epidemic Diseases Act to “prevent the spread of epidemic disease” using their general powers under the relevant section to make temporary regulations with respect to a person or class of persons to limit the spread of the disease.
This is clearly an inappropriate response to the crisis at hand. States are shying away from their welfare duties and using colonial legislation to further punish the most impacted victims of this pandemic. As the very recent saying goes, ‘this pandemic was brought to India by Passport holders but it is impacting most viciously the Ration Card holders.’
Although the numbers constituting ‘forced internal migration’ are usually very low in terms of comparison to other internal migrants, the COVID-19 pandemic has changed that over the last few months. Most of the migration in India was forced migration of informal sector workers and their families who were fleeing joblessness and poverty to survive. This becomes an extremely critical part of a socio-economic and political study that would presuppose any policy decisions regarding this issue. These individuals are citizens of India with all their rights and privileges intact but for reasons known best to the government, they have turned a blind eye and a deaf ear to these citizens.
The government’s response to the massive internal forced migration caused by the COVID-19 pandemic has been disappointing, to put it mildly. From a constitutional perspective, however, these migrants are very much citizens of India, and deserve maximum protection from the State. The Indian government’s policies surrounding citizenship and the right to a secure and dignified life were already a human rights issue before COVID-19. Today, the question of who can support India’s internally displaced workers as they struggle to get back home is all the more urgent.
India has a clear and distinct distribution of forced migration along classed patterns affecting the socio-economic as well as political life of many. There is a high level of class vulnerability in this regard and the government and policymakers must keep this in mind while considering different regional dimensions of forced migrations.
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