The Supreme Court is currently hearing a petition against the government’s order to carry out an en masse deportation of Rohingya refugees. Considering the lack of a domestic asylum law and limited judicial precedent on the subject, this case offers a great opportunity for the Court to lay down basic principles on refugee recognition and protection that reflect India’s constitutional values and its international commitments. One of the key issues being raised is that of providing access to essential services to the Rohingya during their stay in India. While the government is arguing that refugees already have access to health and primary education, the petitioners have pointed out that this access is now ineffective owing to the linking of these services to Aadhaar. The Court, on May 11, passed an interim order appointing nodal officers in Delhi and Mewat, who could be approached by Rohingya refugees if they were being denied access to essential services. However, the question of Aadhaar for refugees still remains.
Aadhaar was primarily conceived as a tool for socio-economic inclusion. As per the Unique Identification Authority of India (UIDAI), it is with this objective that they have designed a simple enrolment system that accepts a wide range of documents as proof of identity and residence so as to make it easy to procure an Aadhaar. For example, for those without any documents, UIDAI accepts a “Letter of Introduction” from a wide set of people who are pre-designated as introducers.
Most importantly, in the interest of inclusiveness — UIDAI did not link Aadhaar to citizenship. The Aadhaar Act states that any individual who has resided in India for at least 182 days in the year immediately preceding the date of application is eligible for Aadhaar. In fact, in the Aadhaar case, UIDAI has clarified that foreigners fulfilling the above requirement can obtain an Aadhaar, subject to the submission of the prescribed documents. Thus, based on the above, it would follow that refugees, who are registered with the government and/or the UN Refugee Agency (and are thus not “illegal immigrants”), should be issued Aadhaar if they meet both the residence and the documentation requirements.
However, most Aadhaar centres are not clear about whether refugees are eligible to apply for Aadhaar. While Sri Lankan and Tibetan refugees have been issued Aadhaar based on their government-issued documentation, refugees from the Afghan, the Burmese and the Congolese communities living in New Delhi report that they are being turned away by local centres due to the lack of clarity on the issue. Further, the documents held by them are not being recognised as valid proof of identity or residence. These refugees have varying sets of documentation — some with Long-Term Visa (LTV) issued by the Foreigners Regional Registration Office, or bank passbooks, and others with only their passports and the UNHCR-issued refugee cards. Many eligible refugees have also been scared to apply for Aadhaar due to the fear of being wrongly prosecuted as local authorities often incorrectly equate them with illegal immigrants.
In recent months, with Aadhaar increasingly being enforced as a precondition to access any service, refugees are not even being able to avail of services that they once had. For instance, a 2015 Report of the Human Rights Law Network records that Rohingya children in Mewat, Haryana were not allowed to register at the local government school due to lack of documents, including the Aadhaar card. More recently, some refugee children were prohibited from sitting for their Board exams for the same reason. Further, many refugees report facing day-to-day difficulties like getting a SIM card, opening a bank account, renting accommodation, seeking livelihood opportunities or even accessing private hospitals. This is resulting in refugees being steadily excluded from mainstream systems and leaving them extremely vulnerable to exploitation.
One would argue that such problems of exclusion of Aadhaar are being faced by many Indians as well. However, as senior advocate, Rajeev Dhavan, pointed out in the SC — Rohingya refugees are a “special category” of people who are fleeing genocidal conditions in Myanmar; and are in the “worst of the worst” conditions in the absence of identity documents with fewer avenues for work, health, education. Such a description is, in fact, applicable to the entire refugee community living in
India, all of whom were forced out of their countries due to conflict, persecution, torture etc.
The applicability of Aadhaar and its requirement for accessing essential services is obviously contingent on the decision of the Supreme Court on the validity of the Aadhaar Act itself. However, if it is here to stay — the government should consider issuing uniform documentation to refugees so as to confirm their status as legal residents and UIDAI must adhere to its commitment to inclusion by allowing more flexibility to refugees so as to establish their identity. Further, officials must be sensitised about refugees, and the existing systems to establish identity (like establishing identity through introducer systems etc.) must be extended to this group.