26 Effects and Challenges of Migration on the Migrants and ways to protect their rights

1. LEARNING OUTCOMES

• Help students to get an insight on the issues and challenges migrants face in process of migration.
• Help students to get an understanding on the kinds of remedies available to address the problems faced by the migrants.

2. INTRODUCTION

Migration has both negative and positive consequences for the migrants and their families. There are varied opinions that migration is beneficial for migrants but if the rights of such migrants are violated then it is critical. In the process of migration, poor communities are the most effected group who face crisis in getting basic amenities, decent standard of living, inability to access the entitlements they are eligible to and hardly possess meagre personal assets and suffer a range of deprivations wherever they are located. Forced migrants also face similar problems but their problems are more serious in nature.

3. MAJOR EFFECTS AND CHALLENGES FACED BY THE MIGRANTS

a. Documentation and Identity of the Migrants

In India apart from Census of India and NSSO there are no major records that are available regarding the migrants. It is easy to get data of the migrants who move to other countries but internal migration data is not available as neither States nor the Central Government maintains records of the movement of the people within the boundaries. Proving identity of migrants is one of the most essential need when he/she arrives to another place even though some may have recognised identity proof; problems still persist when they migrate. In India, identity documentation is an authentication for the State Government to provide benefits to the migrants which is ensured to all citizens as applicable since rights and protections is applicable to all people. Poor migrants however face several problems across the country in order to get identity proofs etc. due to lack of details the migrants have. Labour migrants are undocumented even though there is a 1979 statute governing inter-state migrant workers but it is very limited as discussed earlier who face discrimination every now and then.

Though rules entitle migrants to access fresh ID proofs etc. in practice they find it difficult to get it, many do not know the procedure to get them in order to avail the benefits and entitlements for e.g. they cannot use the ration cards from their home states to avail PDS in the host state. Additionally, officials often discriminate migrants for various reasons which are prohibited under the law. Most importantly poor and vulnerable migrants face challenge to obtain the benefits and entitlements where ever they are because most of them are illiterate and lack an understanding of the local language.

Hence, lack of identification means migrants will be deprived of the benefits and entitlements unless they are able to hire some services or need to seek assistance from middlemen who are corrupt. Poor and disadvantaged migrants require subsidized food, fuel, health services, or education that are meant for their survival and these are basic requirements for them, since most of these migrants have moved out from their home states in order to earn and pay their debts and help their families who are under poverty.

Living conditions of the migrants

Majority of the Migrant people live in deplorable conditions. Most of the poor migrants come to the urban areas where the cost of living is high, and are forced to live in slums etc.

where they don’t have access to safe residence, drinking water, sanitation etc. These migrants have to live in open spaces or unsafe shelters and these migrants have come to a new place where they do not have any contacts to seek any assistance. As mentioned in the earlier point food costs are higher and the migrant people are not able to access or obtain temporary ration cards.

In the case of migrant labourers, they live in deplorable conditions even though there are number of statutes in India which make it mandatory for the principal employers and contractors who employ these workers to provide all basic necessities as per law. The laws that are applicable include:

• Interstate Migrant Workmen (Regulation of employment and conditions of Service) Act, 1979
• Building and other construction worker’s (Regulation of Employment and conditions of service ) Act,1996
• Contract Labour (Regulation and Abolition) Act, 1970

c. Vulnerability of the Migrant

Migrants are inherently vulnerable as subjects of human rights from the time they leave their original place of residence. In most cases human beings are more vulnerable when they are displaced. Vulnerability is shaped by many factors, which includes political and social marginalization, lack of resources and support from the locality where they have shifted who are detached from traditional support from their family. Also the place where they are living is usually different with regard to culture, language, entitlements from the State which they are not entitled in the host State which a takes long time for them to access such benefits after following due process.

Many a times host states fail to acknowledge their presence and do not consider them in policy making for welfare of its citizens. Most often people of the host State have a feeling that the migrants are outsiders which further add to their vulnerability.

Most migrants face problems related to language as well, which is often different from what they speak. Being unable to speak to the local language migrants become vulnerable and discriminated. This is a common in both internal and external migration scenario.

Health aspects of the migrants

Migrant communities are employed in one or the other form and majority of these migrants get into un-organised occupations and they face harsh circumstances and live in pathetic conditions. They frequently face health problems and are vulnerable to disease both at the workplace and where they reside. The migrant workers specially working in quarries, construction sites etc. undergo serious health hazards and even face accidents and death in the worksites. The employers do not take care of these workers and fail to follow safety precautions under the law and they are not entitled to access various health and family care programmes due to their temporary status and most of the workers do not get registered under the specific laws they are entitled for e.g. construction workers must be registered under the Building and other construction worker’s (Regulation of Employment and conditions of service) Act, 1996 under which the labour department issues an Identity card through which they become a beneficiary and can access number of benefits which include:

• Provide immediate assistance to a beneficiary in case of accident.
• Pension to the beneficiaries who have completed sixty years
• Sanction loans and advances to the beneficiary for construction of a house
• Group Insurance Scheme for the beneficiaries
• Financial assistance for the education of children
• Medical expenses for treatment of major ailments
• Payment of maternity benefit to the female beneficiaries etc.

Similarly, numbers of labour legislations which have been enacted for the workers provide dozens of schemes and programmes but the migrant workers are hardly able to access them.

Limited Access to Entitlements

Migration often leads to loss of basic entitlements that were enjoyed by the migrants in their home state. For e.g. in India poor people are entitled to access subsidized food grains, fuel, scholarships etc. either through Central Government or the State Governments, and if the migrant moves to one state from another he may not be eligible to the same entitlements he/she received in their home state since the scenario is different and they need to take fresh approval in order to claim the benefit from the host state, because most of the schemes are not transferable from one state to another and schemes flow through the state or local government.

Thus, the poor migrants face difficulties and the cost of living increases because they are not entitled to get subsidised goods and have to solely depend on general markets and there are instances where migrants are cheated by the locals.

Migrant Children and their Conditions

Migrant children are the most affected members as they are most vulnerable and poor migrants cannot access benefits that are required to be given to the children. Under the labour laws employers have to establish crèche facilities for the workers including the migrants since children often accompany their families to the workplace and are exposed to health hazards and accidents that can occur any time.

Migrant children are also deprived of getting free and compulsory education and migrant stay is temporary in nature and most of these children get dropped out from schools.

Migration is an important determinant for child labour in India even though child labour is prohibited under the Child labour (Prohibition and regulation) Act, 1986. The ILO in its Roadmap for achieving the elimination of the worst forms of child labour which was adopted at the Global Child Labour Conference in 2010 stated that “Governments should consider ways to address the potential vulnerability of children to, in particular the worst forms of child labour, in the context of migratory flows’. Children migrate through their families, independently, through trafficking or they may be left-behind by their migrant parents. Migration by the poor communities intended to happen as a survival strategy for their families where vulnerable children were pushed into child labour. In the absence of access to quality education by the migrant families at migrated place, it is challenging for them to place their children in schools even though the Right of Children to Free and Compulsory Education Act, 2009 allows any child to get enrolled with any transfer certificates etc., it is extremely difficult for the migrant families to do so.

The Government of India, the Ministry of Labour and Employment has issued a national Protocol in March 2008 known as the “Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour” in wake of the above issues which is alarming and the child labour Act does not cover these issues. The Protocol deals with the crucial issues relating to prevention, rescue, repatriation and rehabilitation of trafficked and migrant child labour which is not covered under the child labour Act. The protocol was notified due to the increasing trend in trafficking of migrant children who are pushed into labour. The Protocol issues guidelines to key stakeholders such as the labour department, Child Welfare Committee, Special Juvenile Police Unit etc. on crucial issues relating to prevention, rescue, repatriation and rehabilitation of trafficked and migrant child labourers.

Social and demographic impacts of migration

Most people migrate from States which are socially and economically backward and migrate to new avenues where development is taking place on large scale which attracts the migrants to come over. Since backward areas are not given due importance to development even though there are schemes and programmes which are not implemented effectively. Frequent drought, famine has failed the agricultural communities who have become indebted and need to seek alternative jobs in order to recover their lands and to settle the loans they have already taken which has been a serious reason for migration in India over the years.

Inter district and Interstate migration is taking place due to regional disparity in development influences flow of migration streams. The migration pattern in India has proved that inequality in the regional development has led to migration all over.

Progressive States which have developed well through higher investment, resources and better job opportunities experience high influx of migration. At the same time, States which are under developed and failed to help the marginalised and underprivileged groups have forced people to migrate. Hence, there is a need for balanced regional development and special focus needs to be given to the States which are performing badly and development, investments, infrastructure etc. be given to all states with any discrimination which may help people not to leave their native state and help them to progress well in their respective place of origin which in turn will led to qualitative shift in the pattern of migration.

Increase in Towns: Rural Urban Distribution from 2011 Census Report

No. of Towns	2001	2011	Increase
No. of Statutory towns	5,161	7,935	2774
No. of Census Towns	1,362	3,894	2532

The migration of people from rural areas to cities and towns has seen a steady increase from the provisional Census of India report 2011 increase in population in urban centres than in rural areas. The progress from 2001 to 2011, the number of people living in urban areas increased from 286 million to 377 million, a rise of 91 million. In comparison, the rural population increased by 90 million, up from 743 million in 2001 to 833 million now the reasons include due to migration, personal factors like mirage, employments etc.

Migrating legally does not violate any laws of the State if the due process is followed. Even though migrants have the right to migrate within the country without any restriction frequently they are under scanner by state authorities specially by the Border forces, police in the name of security reasons which many a time lead to human right violations. State authorities like police taken their discretion and autonomy wrongly criminalise the migrants who are innocents. Such branding victimize the migrants who move to another place legally, sometimes they move without any identification documents unknowingly because of illiteracy. Police and security forces give justification for keeping the migrants under surveillance. They are examples in India specially were migrants have been falsely arrested for crime which they have not committed. Migrants often have been questioned by authorities without reasons making them feel threatened. This kind of approach is common within and outside the country specially to keep a check on the migrant movement during their period of stay.

Human rights approach is very much essential for the migrants which will ensure respect towards migrants as equals in the society rather legitimizing the migrant’s into violence which is against the human rights which is applicable to all.

Exploitation and deprivation

Migration flows involves chain of contractors and middlemen whose role is to source people and misguide them through false promises to migrate to other States finally end up doing degrading job and amount to serious exploitation. Migrants who come from different occupations willing to do unskilled jobs for very little wage and they are extracted to work for long hours and finally they are not even paid the minimum wages under the law. The contractors, principal employers etc. take undue advantage of the migrants who are illiterate who are pushed into such occupations due to poverty. Most of the migrants who are recruited for various national and international projects by the middle-men is done through exploitative recruitment practices for which the migrants have to pay huge sum of money as commissions and the wages are fixed by these middle men which is hardly sufficient to meet even the basic requirements. It is also noted that poor migrants also face physical and sexual exploitation as well.

The migrant workers are guaranteed certain forms of protection and rights under a broad canvas of labour laws which include the right to minimum wages, overtime payments, weekly offs, specific allowances for the migrant workers, housing etc. However, employers and contractors who are legally responsible for providing such protection to workers hardly implement them in the interest of the workers.

In the case of Inter-State Migrant Workmen Act, 1979 the employers and contractors do not register the migrant labourers which results in exploitative practices against the migrant labour. The employers use various methods and provisions of the act to evade from responsibility to protect the migrants and contend that Act does not apply saying that the migrants have come on their own. Thus, a significant proportion of poor migrant workers are excluded from the purview of the Act. Migrants have less bargaining power in terms of wages, benefits, and working conditions and hence experience all forms of exploitation.

Migration also creates space for issues like racism and discrimination, since the migrants are non-localities who cannot speak the local language find themselves not accepted by the communities where they have settled and wide range of discrimination is experienced by the migrants.

Trafficking in one issue which is interlinked with migration as discussed earlier. Human trafficking involves exploiting people through false hope by agents who assure them a job and are pushed into trafficking for the purpose of prostitution, slave trade etc. even though there are national and international conventions which protects migrants from such kind of exploitation. Today, trafficking of human beings has become an international business for traffickers, amounts to organized crime which is a human rights violation. The magnitude of the problem is huge, however the intervention is poor all over the world including India even though the rescue and rehabilitation of the victims are taken care of, the problem is increasing every day. The most affected population is women and children.

Xenophobia Approach

Xenophobia comes from the Greek words xenos meaning “foreigner/ stranger”, and phobos meaning “fear”. It can be defined as an attitude, prejudice and behaviour that reject, exclude persons, based on the perception that they are outsiders or foreigners to the community, society or national identity.

Xenophobia often directed against migrants who became part of society they settle in which lead to elicit or facilitate hostile and violent reactions wherein mass expulsion of immigrants takes place. The cultural elements make native people consider migrants as alien. Xenophobia tends to open interactions from anything “outside” themselves, resulting in isolationism that can further increase xenophobia on the migrants. Human rights violations against migrants, including denial of access to fundamental economic and social rights such as the right to education or the right to health, are often closely linked to discriminatory laws and practice, and to deep-seated xenophobia attitude against migrants. These kinds of approach are against the fundamental principles laid down by the national and international legal framework.

4. MEASURES TO IMPROVE AND PROTECT THE RIGHTS OF MIGRANTS WITH REFERENCE TO INDIA

Protecting migrant’s rights is the need of the hour. The protection of fundamental human rights and freedoms should not depend on where one is a native of the place or not rather accepting them as individual who need to be given equal respect and opportunity as per the norms of the State in general. However, it is the State’s responsibility to uphold human rights through its laws and enforcement whether he/she is an internal or external migrant.

Migrants are vulnerable to human rights violations because they are considered outsiders rather than citizens especially when it is internal in nature, similarly it is same in the context of migrants from abroad. The receiving States have larger responsibility in upholding and protecting the rights of the migrants. Migrants especially women and children are the most vulnerable groups who need special attention who face human rights violations based on their migrant status as well as based on their sex.

Whether migrants enter from one region to another or one country to another with authorization or they are undocumented, they generally find their rights diminished in comparison with the citizens of their country or with the regional territory of residence. Human rights are inalienable and should be applicable to all whether he/she is or not a citizen as part of the notion of state sovereignty even though the States have ultimate authority to protect and safeguard their borders which are determined by their own laws. It is left to the states to determine the admission of non-nationals into their country, detention of such migrants and removal or expulsion of non-nationals from the State. Similarly, in interstate migration, in most cases, there is freedom given to citizens to move anywhere within the territory of the State for e.g. in India it is allowed under the Constitution of India. Even though States have the power to manage migration flows they also have the obligation to uphold the rights of individuals who migrate within their territory or coming from outside under their jurisdiction.

Compiling with International norms

India must comply with international human rights laws such as Conventions, protocols etc. which are in place for more than two decades, however not many states have ratified such important international legal framework for protecting the rights of the migrants. There is always a fear that protecting human rights and placing the individual at the forefront of migration issues threatens the State sovereignty. The internal legal framework may have some limitations but taking the best out of it will be of no harm. Some of them were discussed in the previous module which were essential but States have not taken them seriously and the issues are increasing day by day. Data shows migration flow will increase in the coming year and States cannot tackle them unless there is effective legal framework for which international law will be a guiding force. The existing international law does not impose upon States to govern their migration flows or to formulate migration policies but actually creates a sustainable basis for having long-term migration governance with respect for the migrants whether they are internal or external in a human rights perspective.

Effective national legal framework

In India there is no major legislation that deals with the issues of migrants as well as those who are migrated to other countries for employments etc. The existing law i.e. the Inter State Migrant Workers Act, is restricted to migrant workers and does not cover all migrants which we have seen in detail in pervious module. The State lacks commitment and poor migrant are weak and vulnerable with little support from government since most of the migrant labourers are employed in the unorganised sector, where the lack of regulation have compounds their vulnerability. The government must implement the Inter State Migrant Workers Act in full swing so that migrant workers rights are protected and violations can be reduced drastically. Similarly government must also bring in a comprehensive legislation on migration using the International legal framework as mentioned in the previous point.

Policy framework on Migration

India has not come out with any national policy to focus more vigorously on migrant issues. Secondly pro-poor development strategy in the backward areas must be the focus since internal migration is increasing due to regional disparity and poor economic development. State must address the needs of such regions, and simultaneously improve the access of the poor for better opportunities in terms of employment, financial assistance etc. The State evolve development policies in order to maximise the positive impact in all regions will encourage people to live in their homelands rather face exploitation and discrimination outside. Therefore the State must synergise migration and overall development to be strengthened hand in hand. In its recommendation, the National Commission on Rural Labour 1991, said migration policy has to be concerned not only with supporting migrants, but also with the mutual links between migration and development.

Interlinking of schemes and programs with flexibility to access such benefits

The State has to take up convergence strategy to solve the problem of migrants specially the poor and the marginalised groups by considering their poverty and illiteracy which forces them to migrant. Hence if the State help these migrants to access basic facilities, education for children of the migrant and better economic opportunities through the existing schemes and program will help the migrants to attain a decent standard of living which will ensure the human rights being protected. Migrants are particularly have challenge to access the benefits in the host state due to various reasons (Ref. 3.e).Hence the State must help these migrants to access the schemes where every they are living with any prejudice and discrimination.

Role of Civil Society Organisations and NGO’s in supporting the poor migrants

In India, there are several organisations which are actively engaged in helping to improve migrant workers specially looking into the issues of minimum wages, working and living conditions etc. They must also look into issues concerning their entitlements, health issues which migrants need support to access them. The legislation interventions have very limited approach whereas diverse civil society organizations and NGO’s are active often step in whenever there is human rights violations. Therefore the involvement of the these groups will help to fill the gaps which are considered important such as basic necessities, helping migrants to know their rights, creating awareness etc. which the State cannot do.

Managing and directing migration flows

There is an urgent need for the State to manage and direct migration flows. The cases that came before the Hon’ble Courts there were instances where the government was unable to give the exact figures how may migrant workers working in the projects undertaken by the Government like the Common Wealth Games, Metro Projects etc. It is also important that labour markets of the major labour importing countries like Arab nations must be closely monitored with regard to the emigrants moving into such countries for employment where in rampant human rights violations becomes unnoticed. Hence, the government must have a check on the inflow and outflow of people migrating for various reasons in order to protect their rights. The Indian emigrants are vulnerable to exploitation and are ignorant of relevant laws and procedures. The increase in migration as well as the policy of localization by host countries further reduces the emigrational benefits to the worker. Therefore, the Government through a proactive policy to transform the emigration system and empower the emigrants through systemic interventions at the national, bilateral as well as multilateral front’s number of authorities and schemes have been introduced. This is to note not many are able to access them since majority of them a illiterate or less informed. Please the following table to get an overview of the Governments measure taken to protect the rights of the emigrants.

Measure taken by the Indian Government to protect the Emigrants outside India

SUMMARY

This module is very important for two reasons, one it helps the learns to get a indebts understanding of the problems migrants from within and outside face specially in the context of human right violations. Secondly, the module also captures relevant issues where there is a need for assistance and protection the migrant need in order to protect their rights. In the beginning we saw that migration has both negative and positive consequences for the migrants and their families but abuses and deprivation of rights are also rampant not only in India but all over the world. The module also brings new insights specially the benefits and entitlements for the emigrants who go abroad for employment which is very essential for protecting and safeguarding the rights of the emigrants.

Reference

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