2. ROHINGYA AND DIGITALISATION IN INDIA: LOCKING IN A PRECARIOUS LEGAL STATUS ³¹ In India, there are around 17,000 Rohingya refugees registered with UNHCR³² and potentially tens of thousands more unregistered and living anonymously. Exact numbers are non-existent, partly as entry is not systematically recorded across India’s extensive land border crossings. There is also no protection guarantee for Rohingyas who declare themselves to the state. UNHCR India has limited authority, reach and capacity in the country. Moreover, in August 2017, the Government of India declared the Rohingyas to be ‘illegal migrants’, so many may feel it safer to keep a low profile. The legal position for Rohingyas in India has long been precarious, much like most other refugee communities. The political environment has worsened in recent years. The country does not have a domestic legal framework that recognises or protects refugees, nor is it signatory to the 1951 Refugee Convention (and its 1967 Protocol). A handful of immigration laws apply: the Foreigners Act (1946), the Passports (Entry into India) Act (1920), and the Registration of Foreigners Act (1939), as well as various related Rules and Orders.³³ These laws apply to all foreigners and make it an offence for anyone to be in India without a valid passport and visa. This puts most refugees and asylum seekers residing in India, including Rohingyas, at risk of arrest and deportation. In December 2019, the Government passed the Citizenship (Amendment) Act (CAA), which amends the Citizenship Act of 1955 to grant an expedited path to Indian citizenship for certain minority ‘refugee’ groups under the assumption that they have faced religious persecution in their home country. The CAA only applies to individuals belonging to non-Muslim minorities from neighbouring Afghanistan, Bangladesh and Pakistan. Excluded from the CAA’s protections are persecuted Muslims from the listed countries, as well as refugees from other states — for example, Muslim and Hindu Rohingya refugees from Myanmar, Hindu and Christian Tamil refugees from Sri Lanka, Buddhist refugees from Tibet, etc. While not protected by the state as refugees, Rohingyas are entitled to UNHCR Refugee Cards after undergoing Refugee Status Determination. The Refugee Card, however, is often not recognised as a valid form of identification in a country where document identification is essential for accessing even the most basic of health and education services. In August 2017, just days before the Myanmar military launched its most recent act of genocide against the Rohingya, the former Indian Minister of State for Home Affairs, Kiren Rijiju, stated, ‘the UNHCR registration means nothing. For us, all of them [Rohingyas] remain illegal migrants’. ³⁴ Rohingyas have experienced difficulty in finding jobs, securing housing and accessing education across the country because these cards are not viewed to be valid. In Delhi, a male Rohingya refugee shared: “ I was working in a factory in Aligarh, where after a while maybe the owner realised that I am not Indian. He called me and asked for my documents. I showed him the Refugee Card, he said this is not valid and he fired me.³⁵ For refugees in India who do not have ‘valid documents’, the immigration law framework provides for the issuance of Long-Term Visas (LTVs) or a similar residence permit. The LTV emerged out of India’s history of Partition as a document given to people to authorise their settlement in India while the laws around citizenship were being finalised, between 1948 and 1955.³⁶ LTVs were later issued within India for wider purposes — for instance, when a short-term visa expires for applicants and they have to remain in India for longer (for reasons of origin country persecution, for example).³⁷ It is not exclusively a refugee-protection document however, as a legacy of its Partition origins, it can be issued on the basis of ‘humanitarian concerns’. ³1 Funding note: Research in Hyderabad was funded by the British Academy as part of the project, “Rohingya Journeys of Violence and Resilience in Bangladesh and its Neighbours: Historical and Contemporary Perspectives” (Award Reference: SDP2\100094), supported under the UK Government's Global Challenges Research Fund. 32 UNHCR Global Focus, ‘India’ (2019) available at: https://reporting.unhcr.org/node/10314?y=2019#year [accessed 13/11/2020] 33 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] 34 Subir Bhaumik. ‘Why is India threatening to deport its Rohingya population?’ BBC (5 September 2017) available at: https://www.bbc.co.uk/news/world-asiaindia-41144884 [accessed 13/11/2020] Rohingya refugee interview cited in J. Field, A.Tiwari and Y. Mookherjee, ‘Urban refugees in Delhi: identity, entitlements and well-being’ (2017) IIED Urban Humanitarian Crises Series Working Paper, p.19, IIED, London, available at: https://pubs.iied.org/10852IIED/ [accessed 13/11/2020]24 Observations by Sabrina Chowdhury Mona and Razia Sultana. 35 10