Asylum seekers, undocumented migrants, refugees and displaced persons. These are some categories of residents or non-citizens who are unrecognised by the state. Though visible as illegal migrants, their invisibility is jarring in terms of their inclusion in governmental schemes. Despite residing in India for years, most of them don’t have documents to establish their identity. Deepanshi Mehrotra analyses if refugees and asylum seekers will be able to access the COVID-19 vaccine.
By Deepanshi Mehrotra, B.A. L.L.B. from Symbiosis Law School, Symbiosis International Deemed University in Pune, India
What’s Wrong With the COVID-19 Vaccination Drive in India?
India has had a long tradition of hosting refugees from the South-Asian subcontinent and beyond. Some of them are directly protected and assisted by the government, such as the refugees from Tibet and Sri Lanka. Further, the United Nations High Commissioner for Refugees (UNHCR) supports the Indian government in protecting migrants and refugees from Myanmar, Afghanistan, and Somalia.
As of January 2020, the UNHCR estimated about 210,201 refugees and asylum seekers in India.[i] Though these are only official numbers, many displaced and undocumented migrants are unaccounted for with no actual data. India does not have any domestic legislation or substantive policy to deal with them. Moreover, India is not a signatory to the Refugee Convention and its Protocol. In India, all refugees and asylum seekers are labelled as illegal immigrants, falling under the Foreigners Act, 1946. Therefore all these years, every government had its own haphazard way of dealing with the refugees in the country.
The COVID-19 pandemic was especially difficult for refugees and undocumented migrants as they were amongst the worst hit both by the pandemic and the subsequent lockdown.
Most undocumented migrants and displaced persons in India survive on daily wages. Although during the lockdown, the government did provide some social protection and assistance to the informal sector. The same did not translate into assistance for refugees or undocumented migrants as most of these policies were fixated on citizens. The lack of governmental support left them to fend for themselves. As a consequence of which, many faced hunger and poverty.[ii] For Instance, the PM CARES Fund that allocated money to aid various vulnerable sections did not include refugees and asylum seekers within its ambit.
Even if some of the protective measures are available, most asylum seekers are often reluctant to benefit from them due to their ambiguous legal status and fear of detention.[iii]
In such a scenario, it is pertinent to ask: whether refugees, asylum seeker and migrants will be provided with Covid-19 vaccines by the Indian government?
India has begun the process of vaccinating people. The process was divided into various phases. The first phase focused on vaccinating healthcare and frontline workers. The second phase, which started early this month, includes people above the age of 50 and those with co-morbidities. Consequently, those below 50 will be able to get the vaccine soon.[iv]
Earlier the process of vaccination was touted to rely on the data provided by the voter’s list. [v] Although that’s not the criteria any more, one will still need identity proof to get vaccinated. Those registering for the vaccination will be required to furnish their identity details even if they register through the Aarogya Setu app or the COVID-19 Vaccine Intelligence Network (CoWIN) app.
On the Aarogya Setu or CoWIN app, it is mandatory to provide one of the seven photo identity cards. These include Aadhar Card, Driving Licence, Pan Card, Passport, Pension Passbook, NPR Smart Card and voter ID card.[vi]
The registration on the app is mandatory to receive the vaccination, thereby making the process exclusionary especially for refugees. Refugees or undocumented migrants do not possess the documents necessary for the registration. The lack of which can effectively exclude them from the entire process.
Moreover, there has been no talk from the government’s side to include them in the vaccination process.
Since the beginning, accessibility to basic amenities has been an issue for refugees and undocumented migrants.[vii] The mandatory registration process raises a lot of questions. Availability of the vaccine is already an issue due to the large population. To top that, refugees and asylum seekers do not hold the required documents necessary for the registration process.
Only the UNHCR aided persons might hold Refugee Card or Asylum Seeker Certificate. The rest will not be recognized under the Co-WIN app, making the accessibility to the vaccine impossible for them.
Lack of documentation and legal recognition is the primary problem that has come in way of accessing the Covid vaccines. Looking at migrants’ condition during the pandemic and the treatment meted out to them under the current government,[viii] it will not be far-fetched to assume that refugees and migrants might get overlooked completely.
This is an added disadvantage to the lack of citizenship and basic documentation. These documents become especially important as they are required to access subsidized food, healthcare, and other benefits.
The legal status of refugees and asylum seekers in India is in an ambiguous space. Even the ones recognized by UNHCR are not institutionally recognized by the Indian government. This gives administrative authorities a free pass to act at their discretion, failing to cater to the needs of the refugees.[ix] The same can be substantiated by reports on medical negligence during the COVID-19 pandemic, from irregularities in testing to inadequate disinfection in regions occupied by migrants, refugees or asylum seekers.
Legal Analysis of the COVID-19 Vaccination Policy
The framers of the Constitution had included the Right to Health as one of the Directives Principles of State Policy in Part IV of the Constitution,[x]thereby making it a responsibility of the legislature. Subsequently, the Supreme Court has interpreted Article 21 to include Right to Health within its ambit, thereby making it an obligation for the state.[xi]
In the following cases, State of Punjab & Ors. v. Mohinder Singh Chawla[xii] and State of Punjab & Ors. v. Ram Lubhaya Bagga,[xiii] the Supreme Court reaffirmed the state’s obligation to provide health services and maintain them, respectively. The state’s obligation to provide vaccination can be considered an extension or a subset of the Right to Health under Article 21 of the Constitution.[xiv]
Additionally, certain rights enshrined in Part III of the Constitution aims to protect ‘all persons’ residing within India. Article 21 protects the Right to Life and Liberty for ‘all persons’, and can include non-citizens such as refugees and asylum seekers within its ambit.
Similarly, the Supreme Court, in The Chairman, Railway Board v. Chandrima Das,[xv] held that Article 21 applies to foreigners. The Court held:
“According to the tenor of the language used in Article 21, it will be available not only to every citizen of this country but also to a “person” who may not be a citizen of the country.”
In 1996, in the landmark judgment, National Human Rights Commission v. State of Arunachal Pradesh,[xvi] the Supreme Court emphasized the significance of Article 21 for every human being, including refugees. The court said:
“Our Constitution confers contains rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise”
It can thus be ascertained that Article 21 includes the Right to Health within its ambit. And the Supreme Court has asserted that even non-citizens, including refugees, must be protected under this Article. Thus, by extension, the Right to Health is conferred on the refugees and asylum seekers in India. The Right to Health for all would include their right to get vaccinated.
Furthermore, India is also under an obligation from its international agreements and treaties to provide adequate healthcare to refugees and asylum seekers. The international agreements—the Constitution of the World Health Organisation (1946), the Universal Declaration of Human Rights (UDHR) (1948), and the International Covenant on Economic, Social and Cultural Rights (1966)—enshrine the right to health on all people, including refugees and undocumented migrants.
All countries that have ratified these treaties and conventions are under an obligation to uphold the rights enumerated in them. India is also under a constitutional obligation as per Article 51(c) to uphold its international commitments and adhere to treaties and conventions.
How To Secure COVID-19 Vaccine for Refugees and Asylum Seekers?
The Covid-19 pandemic has brought varied realities to the forefront, exposing the vulnerability of certain sections that are first to bear the brunt.
Among the most vulnerable, both economically and socially, are the asylum seekers, undocumented migrants and refugees. Most of them dwell in places and surroundings that don’t allow them to socially distance themselves. Plus, a general lack of medical defence, personal hygiene and awareness regarding the virus further push them towards extremities.
Various studies and organizations have highlighted the need to provide vaccination to disadvantaged populations, including refugees and asylum seekers.
Furthermore, India has initiated vaccine diplomacy. The diplomatic initiative focuses on donating the British-developed AstraZeneca Covid-19 vaccine to various South Asian countries, including Bangladesh, Nepal, Myanmar, and other states.[xvii]
The Indian government can widen the ambit of this goodwill gesture to include refugees and asylum seekers and migrant. Such a step would be considered a sincere humanitarian action by the Indian government and could alleviate its image within the international community.
Similarly, the government should recognise documents available with refugees, migrants and asylum seekers, issued by the government and the UNHCR.
The UNHR had revised its appeal early this year, asking countries to roll out vaccines for refugees, stateless persons and undocumented migrants. The UNHCR has also advocated for the inclusion of displaced persons and migrants as part of the national vaccination strategy.[xix]
In February this year, the United Kingdoms took a welcome step in this direction. The UK government allowed migrants to receive the COVID-19 vaccine regardless of the latter’s legal right to live and work in the country.[xx] Some other European Union (EU) nations, Germany, for instance, is prioritizing asylum seekers to control the spread of the virus in its entirety.
Likewise, the Indian government should also include refugees, asylum seekers and undocumented migrants in its vaccination strategy to ensure the safety of all. They need to be included within the country’s vaccination program to truly and effectively eradicate the spread of Coronavirus within its borders.
The hard truth about the pandemic is that no one is safe until everyone is safe.[xviii]
Globally, refugees, stateless persons and undocumented migrants are some of the most vulnerable. Therefore they should be given due consideration during the Covid-19 vaccination process.
The Coronavirus outbreak has exposed a fundamental policy vacuum concerning the state of refugees and displaced persons in India. The lack of documentation and legal recognition is already becoming a predicament for refugees and asylum seekers.
In India, refugees and undocumented migrants were excluded even during the lockdown. Vatsal Raj, in his blog, details this exclusion.[xxi] But he fails to address that the Covid-19 vaccination drive could offer another kind of exclusion for refugees and asylum seekers.
WHO Sage has come out with a roadmap for prioritizing the use of Covid-19 vaccines. They have urged states to provide vaccines to refugees and asylum seekers in Stage 2 of distribution, owing to a higher risk to them.[xxii]
In light of the same, International Organisation for Migration (IOM) Director General António Vitorino stated:
“Access to health is a fundamental right, but too often still, those who need it the most – including migrants and forcibly displaced persons – are left out. If 2020 has taught us something, it is that ill health is a universal issue that does not distinguish based on nationality; so, to be truly effective, neither should our health coverage, including in upcoming COVID-19 vaccination efforts.”[xxiii]
The Constitution of India, 1951
The Foreigners Act, 1946
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 812 (India).
State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 (India).
State of Punjab & Ors. v. Ram Lubhaya Bagga, 1999 (1) SCC 297 (India).
The Chairman, Railway Board & Ors. v. Mrs Chandrima Das & Ors., AIR 1982 SC 1473 (India).
NHRC v. State of Arunachal Pradesh & Anr., 1996 SCC (1) 742 (India).
[i] UNHCR, UNHCR India Refugee Fact Sheet (January 2020), https://reporting.unhcr.org/sites/default/files/UNHCR%20India%20factsheet%20-%20January%202020.pdf
[ii] Dharika Athray, The Plight Of Refugees In India During Covid19, OBSERVER RESEARCH FOUNDATION (July 7, 2020), https://www.orfonline.org/expert-speak/the-plight-of-refugees-in-india-during-covid19-69287
[iii] Tapan Kumar Bose, COVID-19: Rohingya Refugees in India Are Battling Islamophobia and Starvation, THE WIRE (May 1, 2020), https://thewire.in/rights/india-rohingya-refugees-starvation-covid-19
[iv]Dwivedi, S. (2021, March 23). From April 1, the vaccine for all those Who’re 45 or older. Retrieved from https://www.ndtv.com/india-news/those-over-45-years-can-be-vaccinated-from-april-1-says-government-2397151
[v] India’s Coronavirus Vaccination Drive To Start Soon: How To Register, Guidelines, Other Details, BUSINESS TODAY (December 19, 2020, 10:41 pm), https://www.businesstoday.in/latest/trends/india-coronavirus-vaccination-drive-to-start-soon-how-to-register-guidelines-other-details/story/425454.html.
[vi] SIMPLY put: Here is how to register and what documents to carry for the COVID-19 vaccination drive from March 1. (2021, March 01). Retrieved from https://www.businessinsider.in/science/health/news/heres-how-to-register-and-what-documents-to-carry-for-the-covid-19-vaccination-drive-from-march-1/articleshow/81268236.cms
[vii] Hamsa Vijayaraghavan, Gaps In India’s Treatment Of Refugees And Vulnerable Internal Migrants Are Exposed By The Pandemic, MIGRATION POLICY INSTITUTE (September 10, 2020), https://www.migrationpolicy.org/article/gaps-india-refugees-vulnerable-internal-migrants-pandemic.
[viii] Roshni Shanker, India’s Long-Standing Asylum Practises Contradict Modi Government’s Stand on Rohingya, THE WIRE (September 21, 2017), https://thewire.in/law/india-refugee-asylum-practices-rohingya.
[ix] Financial Inclusion For Refugees In India: A Study On The Practical Access To Banks And Financial Systems, MIGRATION AND ASYLUM PROJECT (February 23, 2020), https://docs.zoho.com/file/drewk4fca25c2aa1b4bf1a7043a2597c39042.
[x] India Const. art. 39(E), art. 42, art. 47.
[xi] Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC 802 (India).
[xii] State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 (India).
[xiii] State of Punjab & Ors. v. Ram Lubhaya Bagga, 1999 (1) SCC 297 (India).
[xiv] Radhika Roy & Mukund P Unny, Right To Free Vaccine – A Constitutional Mandate, THE INDIAN EXPRESS (January 17, 2021, 7:01 pm), http://indianexpress.com/article/opinion/right-to-free-vaccine-a-constitutional-mandate-7150267/.
[xv] The Chairman, Railway Board & Ors. v. Mrs Chandrima Das & Ors., AIR 1982 SC 1473 (India).
[xvi] NHRC v. State of Arunachal Pradesh & Anr., 1996 SCC (1) 742 (India).
[xvii] Anjana Pasricha, India Launches ‘Neighborly Vaccine Diplomacy’, VOA NEWS (January 24, 2021, 1:40 pm IST), https://www.voanews.com/covid-19-pandemic/india-launches-neighborly-vaccine-diplomacy
[xviii] Michael Safi, Wealthy Nations Urged To Give Portion Of Covid Vaccine As ‘Humanitarian Buffer’, THE GUARDIAN (November 20, 2020, 9:10 am GMT), https://www.theguardian.com/global-development/2020/nov/20/wealthy-nations-urged-to-give-portion-of-covid-vaccine-as-humanitarian-buffer
[xix] United Nations High Commissioner for Refugees. (n.d.). Q&a: ‘including refugees in the vaccine rollout is key to ending the pandemic’. Retrieved from https://www.unhcr.org/news/latest/2021/1/5fff1afe4/qa-including-refugees-vaccine-rollout-key-ending-pandemic.html
[xx] All migrants living in UK eligible FOR COVID-19 vaccine. (2021, February 08). Retrieved March 25, 2021, from https://www.reuters.com/article/health-coronavirus-britain-immigrants/all-migrants-living-in-uk-eligible-for-covid-19-vaccine-idUSL8N2KE2GU
[xxi] Vatsal Raj, Covid-19 and Refugees in India: A Tale of Exclusion and Counter-Exclusion, UNIVERSITY OF OXFORD BORDER CRIMINOLOGIES BLOG (July 23, 2020), https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/07/covid-19-and-0.
[xxii] World Health Organisation, Who Sage Roadmap For Prioritizing Uses Of Covid-19 Vaccines In The Context Of Limited Supply (November 13, 2020), https://www.who.int/docs/default-source/immunization/sage/covid/sage-prioritization-roadmap-covid19-vaccines.pdf?Status=Temp&sfvrsn=bf227443_2.
[xxiii] Press Release, UNHCR India, Iom And Unhcr Chiefs Stress That Covid-19 Underlines The Urgent Need For Universal Health Coverage (December 11, 2020), https://www.unhcr.org/news/press/2020/12/5fd35fc94/iom-unhcr-chiefs-stress-covid-19-underlines-urgent-need-universal-health.html.