Climate, Displacement and the Newly Disadvantaged

In one line

Climate change, disaster and development displacement produce a category of disadvantage that Indian law does not recognise, because every protective statute on this paper attaches to a status and displacement is an event.

The distinction that organises the chapter

A status group and an event group are protected differently, and Indian law only knows how to protect the first.

A status group is defined by a characteristic the person carries: caste, tribe, sex, disability, age, religion, medical condition, gender identity. The law identifies the characteristic, notifies or defines it, and attaches entitlements to it. Every statute in this book works that way.

An event group is defined by something that happened: a flood, a cyclone, an acquisition, a project, a conflict. The disadvantage is real, often severe, and usually permanent, but it attaches to no characteristic, so there is nothing for a commission to be constituted about and nothing for a notification to name.

That is why the displaced are absent from this paper's statutes and why they belong in Module IV rather than Module I.

The three kinds of displacement

Development displacement, by acquisition of land for a project. This is the most legally developed of the three, because the land acquisition legislation of 2013 provides for rehabilitation and resettlement as part of the acquisition itself and requires a social impact assessment. It is also the only one of the three with a statutory framework, and it is worth naming for that reason.

Disaster displacement, by flood, cyclone, earthquake or landslide. The Disaster Management Act, 2005 creates the National, State and District Disaster Management Authorities, and section 8 of the disability legislation of 2016 requires those Authorities to include persons with disabilities in disaster management activities, and requires the District Authority to maintain a record of persons with disabilities in the district and inform them of situations of risk.

That is the only place in this book where a disaster statute and a group statute meet, and it should be named, because it is the model for how the two bodies of law can be joined.

Climate displacement, by sea level rise, coastal erosion, salinity, drought and the loss of a livelihood that depends on a predictable season. This is the one with no framework at all. It is slow, it produces no single event to date the claim from, and the person who leaves a village because the fishing failed over ten years is not, in law, displaced by anything.

Why the existing categories do not fit

Four reasons, and stating them is the analysis.

A displaced person is usually not a refugee. The refugee definition requires crossing an international border and a well-founded fear of persecution on a listed ground. Internal displacement crosses no border and involves no persecutor.