Biometrics and Rohingyas at Risk In Addition to being excluded from Aadhaar, refugess have been subject to enhanced biometric data collection. Despite the government already having biometric data for registered Rohingya refugees, a new drive began in 2017 following an internal letter by the MHA, addressed to Chief Secretaries of all state governments and union territories.58 Rohingyas in India noted that this drive has been more aggressive than past collection experiences, and are fearful that the biometric data will be used to forcibly return them back to Myanmar. Such fear might have justification. The MHA letter (dated 8 August 2017) stated as follows:59 Detection and deportation of such illegal migrants from Rakhine state, also known as Rohingyas is a continuous process. Therefore, it is essential to identify such illegal migrants/ persons and also keep a watch on their activities for preventing any untoward incident that can take place. All States/UT Administrations are, therefore, advised to sensitize all the law enforcement and intelligence agencies for taking prompt steps in identifying the illegal migrants and initiate the deportation processes expeditiously and without delay. (emphasis added) “National security” justifications are often employed to record the details of non-citizens, including refugees. Immigration laws permit collection of this data, although it is unclear the extent of the biometric details allowed to be collected. The Joint Parliamentary Committee (JPC), in presenting its report on the Citizenship Amendment Bill in January 2019, concluded as follows: The Committee are of the firm opinion that national security precedes all other considerations including the humanitarian aspect and as such rampant infiltration into the Country from foreign lands on one plea or the other has to be stopped. The Committee accordingly reiterate that the Government should intensify the border fencing/patrolling/ surveillance and introduce/strengthen the biometric system at all the places so as to apprehend, detain and deport the infiltrators in the larger national interest.60 (emphasis added) Fundamental issues with the biometric data collection of refugees and other ‘non-citizens’ include: i) the process has been mired in non-transparency and lack of information regarding the end-use of the data; ii) data collection comes with no discernible protections or access to services for refugees (unlike Aadhaar); iii) it is framed as a tool for eventual deportation and (iv) it is clearly couched in the language of surveillance.61 This places Rohingyas in a position of acute risk,62 as it may promote refoulement to Myanmar. Conversely, it may deter Rohingyas from seeking necessary refuge in India in the first place. The UN Special Rapporteur on Racism’s recent report addresses some of these issues: States are increasingly mandating extensive biometric data collection from non-citizens, where the collection and use of this data raise concerns of direct and indirect forms of discrimination on the basis of race, ethnicity, national origin, descent and even religion. … in most cases, refugees, migrants and stateless persons have no control over how the data collected from them are shared. … India requires mandatory biometric data collection from non-citizens with a discriminatory use of this data being detention and deportation even for refugees such as Rohingya… Another concern … is the … de facto exclusion from vital basic services which rely on automated systems from which non-citizens are excluded entirely. Because refugees without residency permits are prohibited from holding Aadhaar cards, they are discriminated against and excluded from access to basic services and enjoyment of “rights that ensure a dignified refuge in India.” 63 UN General Assembly Resolution 73/195, Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, available at: https://www.un.org/en/ga/search/ view_doc.asp?symbol=A/RES/73/195 [accessed 13/11/2020] 58 MHA website, available at https://mha.gov.in/sites/default/files/advisoryonillegalmigrant_10092017_2.PDF [accessed 13/11/2020] 57 A. Syam, ‘Patchwork of archaic regulations and policies in India: A breeding ground for discriminatory practice against refugees’ (2019) 51 N.Y.U. Journal of International Law & Politics 1381-1382 available at: https://nyujilp.org/wp-content/uploads/2019/09/NYI411.pdf [accessed 13/11/2020] 60 Ibid. at p.81. 61 The Times of India ‘States asked to identify Rohingyas, collect biometric details: Rajnath Singh’ (October 2018), available at, https://timesofindia.indiatimes. com/india/states-asked-to-identify-rohingyas-collect-biometric-details-rajnath-singh/articleshow/66028121.cms [accessed 13/11/2020] 62 A. Kapoor, ‘Digital Identity for Refugees in India: Empowerment or Surveillance?, Global Policy, (2018), available at https://www.globalpolicyjournal.com/ blog/01/08/2018/digital-identity-refugees-india-empowerment-or-surveillance [accessed 13/11/2020] 63 Ms. E. Tendayi Achiume, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/75/590 (November 2020) available at: https://www.ohchr.org/en/issues/racism/srracism/pages/indexsrracism.aspx [accessed 131/11/2020] 59 13