June 14, 2020


Ishan Jain

Ever since the lockdown was announced on 25.03.2020 by the Prime Minister, the plight of the migrants has come to the fore. The closing down of all the factories, construction activities, shops etc led to massive unemployment. The large part of the said workers belonged to daily wager category and the rest were meagre earner not sufficient to feed themselves for a month. The necessary effect was that the workers along with their family started to go back to their native place. The said movement is understandable as that would mean living closer to their family in their own house and cutting down of fixed expenses that are incurred living in a city like Delhi or Mumbai. Living in one’s own town atleast gives some social security besides being psychological morale booster. The movement triggered due to lockdown also brought about hardships to the workers/labourers of unimaginable magnitude. One can safely say that policy paralysis led to the chaos, both at the Centre and State Government level.

The migrants at the first place move away from his native village or town or state in search for better employment opportunities and we at our schools were taught that India continues to remain a fragile economy because of population and that overcrowding of cities was due to regional disparity w.r.t employment, education etc. In other words, if all the states start focusing on creating jobs and better educational infrastructure in their states, the problem of movement and migration can be alleviated.

Article19(1)(d) of the Constitution of India provides freedom of movement to all citizens within the territory of India and article 19(1)(e) gives right to settle in any part of India.  The clause is as under:-

“19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business”

The true import of Article 19(1)(d) and (e) was explained succinctly by Hon’ble Supreme Court of India way back in the year 1950 in Dr. N. B. Khare vs State of Delhi 2 , where it was held as under:-

“It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but an absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpretation is, in my opinion, not at all warranted by the language of the sub-clause. What article 19(1)(d) of the Constitution guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned.”

The aforesaid shows that freedom of movement and to settle in any part of India is the fundamental right of citizens. The duty of the State (in this case all state governments) is to see that the movement and settling of the citizens in their respective states is not hampered and no distinction can be made between a native and migrant insofar as protecting other fundamental rights of citizens are concerned.  Once any citizen moves to some other state in search of education, food, employment or may be just for the sake of it, then our Constitution integrates the said citizen into that particular state. He becomes the subject of that state government.

The intent of the said freedoms thus is to allow free movement of citizens throughout the country and allows the full application of Article 1 of the Constitution of India declares India i.e. Bharat to be a composition of states.

The lockdown, however, brought about the total apathy of the states where these workers/labours were at the time of declaring lockdown. The behaviour of the sending states clearly showed that they made no efforts to stop the workers from going to their home states and assure them that they belong to the present state, all their needs of food and shelter would be taken care by them. Rather, the sending States were more than happy and willing to let these citizens move out of their States to their home States. The reason for such apathy is that they were always thought of and treated as migrants/outsiders and people who congested their States despite the fact that they contributed to the economy of the State in which they were living and earning. The kind of discrimination that migrants have faced is reflected in an article authored by Radhika Jha published in Indian Express where the author writes In a survey carried out by Common Cause and Centre for Study of Developing Societies (CSDS), the Status of Policing in India Report (SPIR) 2018, with common people across 22 Indian states, 16 per cent of the respondents said that the police discriminates against people from another state. People in the cities were more likely to feel that the police discriminates against migrants, with 21 per cent respondents from cities agreeing with the statement. On the contrary, SPIR 2019, which was a survey with the police personnel across 21 Indian states, found that 24 per cent of police personnel strongly believe that migrants are naturally prone to committing crimes, while 36 per cent felt that they are “somewhat” naturally prone to committing crimes. In total, nearly 60 per cent of the police personnel held the opinion that migrants are naturally prone to committing crimes, in other words, they are “born criminals”. What this indicates is that even though the people, overall, may not — to a large extent — feel that the police is discriminatory towards migrants, the police, when asked a direct question, did indeed display a discriminatory attitude against migrants.” 3

In these times thus what was needed was confidence building by the State government that migrants belong to the State and have nothing to be worried about in terms of basic amenities. Rather, the States treated them like a burden on their resources and saw this as an opportunity to de-congest their States. There were no schemes for providing food or minimum income; no engagement at all with these migrants in the hope that they would go back to their respective States. The apathy reached the level of even ignoring the community transmission of the virus during their way back to the States.

Given the aforesaid, the recipient States too had no option but to readily accept all their natives. This influx has and would in days to come, bring about financial, health, education, shelter employment problems to the recipient States who had never taken into account crores of people and their needs.

Against the prevailing situation, the proposed action of State of U.P. to regulate and control the movement of native workers/labourers to other States cannot be faulted with as the destination States are unable to take care of them during a crisis and which leads to reverse movement. The said destination States to say the least adopt the policy of “use and throw”. The idea of migration commission thus has picked up the pace. The said policy decision has sent shivers across States and the step has been termed as against the Constitutional scheme. The policy may be legally vulnerable as and when it is brought about, but the same would be compatible with the conduct of the sending States.

The movement of migrants has been compared with the partition of India when crores of people had to migrate to India or Pakistan and in that quest, they lost everything from their families, property and soul. The very idea behind partition was “two-nation theory” propounded by the then political scenario. Today the migrant movement may be termed as “too many nation theory”.

कुछ ऐसे कारवां देखे हैं सैंतालिस में भी मैने

ये गांव भाग रहे हैं अपने वतन में

हम अपने गांव से भागे थे, जब निकले थे वतन को

हमें शरणार्थी कह के वतन ने रख लिया था

शरण दी थी

इन्हें इनकी रियासत की हदों पे रोक देते हैं

शरण देने में ख़तरा है

हमारे आगे पीछे, तब भी एक क़ातिल अजल थी

वो मज़हब पूछती थी

हमारे आगे पीछे, अब भी एक क़ातिल अजल है

ना मज़हब, नाम, ज़ात, कुछ पूछती है

— मार देती है

ख़ुदा जाने. ये बटवारा बड़ा है

या वो बटवारा बड़ा था – Gulzar[1]


  1. Migrating/Covid-19 – II – Batwara #LockdownPoems by Gulzar.
  2. 1950 SCR 519.
  3. Migrants’ vulnerability is newly visible, but not new: By Radhika Jha, Published in Indian Express dated 12.05.2020. https://indianexpress.com/article/opinion/columns/migrants-movement-injustice-india-lockdown-6405229/.

(Ishan Jain is Advocate in Delhi High Court, views expressed are personal)