New Delhi: Despite his fame and valid visa, Serbian tennis star Novak Djokovic, 36, found himself deported from Australia in January 2022.
Some legal experts said Djokovic’s deportation after granting him a visa could open the door to “political and populist” deportations, using “God powers” that they alleged violated that country’s rule of law. Others said the fact he got a visa despite being unvaccinated indicated that there was one rule in Australia for the rich and influential, another for everyone else.
Either way, the focus after Djokovic’s deportation came to rest on Australia’s supposedly hardline approach to keeping illegal immigrants and refugees at bay. But, as we argue, these policies are relatively soft in contrast to India’s policies, or lack thereof, in relation to refugees fleeing genocide (here and here) or those “declared foreigners” or “doubtful voters" (D voters), especially in Assam.
Supported by the government, a Supreme Court mandated National Register of Citizens (NRC)—a citizenship verification drive—in 2019 found 1.9 million people to be non-citizens, a large number Bengali Muslims but many Hindus and Assamese as well. Seemingly dissatisfied at the “low numbers”, the state government run by India’s ruling Bharatiya Janata Party has now demanded a recount.
The kerfuffle in Australia appears trifling in comparison to what many have described as Assam’s “colossal mess” of “unintended consequences”.
We discuss three comparative issues: due-process guarantees by a court of law; the state of detention centres; and legal services to detenus. But, first, it is instructive to explore what happened with Djokovic, what that says of Australia’s detention system and how things are in the state of Assam.
Australia’s ‘Alternative Place Of Detention’
On 6 January 2022, the Australian government cancelled Djokovic’s visa, after he arrived in Melbourne to play in the Australian Open because immigration officials ruled that he did not meet the criteria for an exemption to an entry requirement that all non-citizens be fully vaccinated for Covid-19.
After he was detained at a facility used to hold illegal immigrants and asylum seekers, Djokovic’s lawyer argued that his client tested positive for Covid-19 in December 2021 and, according to the guidelines set by the Australian Technical Advisory Group on Immunisation, Covid-19 vaccination for people who have been tested and are free of SARS-CoV-2 infection “can be deferred for a maximum of six months after the acute illness, as a temporary exemption due to acute major medical illness”.
However, Australian officials reasoned that the vaccination requirement could only be deferred if the claimant contracted a Covid-19 “acute illness”, which Djokovic did not have in December 2021.
The “alternative place of detention” where Djokovic was held was once a hotel. Civil society groups have expressed “grave concerns” over facilities at such detention centres.
The former hotel that held Djokovic also holds about 32 refugees and asylum seekers, some there for years, detained in consonance with Australia’s strict immigration laws; the centre was in the news after a fire in the building and maggots found in the food.
The controversy over conditions in Australia’s detention centres was a reminder of its hardline policy against illegal immigrants, which once gained the approval of former US president Donald Trump.
In Assam, the illegal immigrants, in many cases, are not illegals at all but “declared foreigners” or D voters, concepts globally unique to that state and India.
Legal Sanction In Assam To Abandonment Of Due Process
A “declared foreigner” is a person held as such by one of about 300 foreigners’ tribunals for failing to prove their citizenship after officials refer the case after allegations of being foreign nationals. Foreigners tribunals were set up in Assam under the Foreigners Act, 1946, and by the Foreigners (Tribunals) Order, 1964.
Scholars have argued (here and here) that the functioning of the foreigners tribunals does not satisfy the minimum guarantees of the rule of law, and where the process works to the disadvantage of certain groups, such as women.
Assam has a complex history of immigration and the determination of who is foreign, and it is sufficient to state that since the judgment in Sarbanananda Sonowal (2005), the abandonment of “due process” has legal sanction.
Such due-process guarantees were perceived as causing adjudication delays: what is followed now is a minimalist legal regime under a pre-independence legislation that was a tool to summarily expel foreigners when a world war was raging.
In Sonowal, the Supreme Court held that the adherence to due process resulted in a violation of Article 355, or the “duty of the Union to protect States against external aggression and internal disturbance”, as “the Union had failed to protect the State of Assam against the external aggression and internal disturbance caused by the huge influx of illegal migrants from Bangladesh to Assam”.
Once an individual is alleged to be a foreigner, either marked as D-voter or otherwise, officials routinely refer the case to a foreigner’s tribunal, which decides whether the person is a foreigner. Once declared as such, “foreigners” are detained in detention centres, now renamed transit camps.
Compare the treatment of a foreign national in Australia and “Indians” and “foreigners” in Assam and three immediate concerns are relevant, as we said.
1. The Court Is Not Supreme In Assam
Djokovic arrived in Australia with a valid visa and after his arrival, his visa was cancelled. Given his position of fame, Djokovic managed a speedy appeal, which resulted in a judge ordering immigration authorities to release him and reinstate his visa. Days later, his visa was revoked by the government on grounds of “public interest”. In both cases, there was a process of law followed, however much it was debated.
In Assam, there is little guarantee of due process, with residents of the state being forced to face what many have alleged is a “witch-hunt” before foreigners’ tribunals.
Unlike in Australia where the appeal is eventually decided by a court—as indeed its highest court, the Federal Court, did after the government revoked Djokovic’s visa—in Assam, numerous authorities, including the police, can express doubts on a person’s citizenship status.
When that happens, the only recourse is to face a tribunal, whose status and function violates Constitutional provisions and where adjudicating members are appointed on yearly contracts with no protection of tenure. No specific procedure has been prescribed, and there is no benchmarked threshold of evidence that someone accused of being a foreigner needs to produce to prove citizenship.
In Assam, even if a foreigner’s tribunal does hold a person to be Indian, any executive authority, such as a district collector, can reopen the case, restarting the process all over again, as Article 14 reported in January 2022 in the case of housewife Hasina Banu, who was held to a foreigner and sent to a detention camp, five years after being held to be a citizen.
The persistent threat of statelessness, some have argued, kills the essence of due process, particularly the right to life guaranteed under the Constitution of India.
2. Assam’s Detention Centres Threaten Human Rights
The second point that deserves comparison with Australia is the plight of detention centres. Detention centres where “declared foreigners” are violative of basic human rights, with those so accused are housed with criminals and treated as such.
Assam has six detention centres to hold supposed illegal immigrants till they are deported to their alleged country of origin after failing to prove Indian nationality.
Deportation also requires that the detenu must be identified as a national of another country with a place of residence in that country. In a large number of cases in Assam, detenus have been found to be poor Indian nationals unable to produce sufficient documentary proof to establish nationality. They are, thus, only technically foreigners, often rendered stateless (here, here and here) by a questionable quasi-judicial process.
Much like the Australian government calling such a detention centre an “alternative place of detention”, the government of Assam started calling detention centres “transit camps”, with no real transit involved.
In the Australian context, “alternatives to detention” refer to a set of measures employed only after a detention determination of some kind has been made and loss of liberty is regarded as a less restrictive measure.
In India, foreigners' tribunals may have declared someone a non-citizen, but they cannot declare any person as a national of another sovereign nation: that can only be done by the courts of the nation in question.
So, no more than 227 Bangladeshis were accepted by the Bangladesh government as being citizens and deported over seven years to 2020, according to the Assam government. That number is not likely to greatly increase.
Assam’s detention centres are located inside jails, leaving no distinction between a person convicted for criminal offense and immigrants who are termed as illegal immigrants or are undertrial. Torture, suicides, and deaths have been part of daily stories seeping out of Assam’s detention centres, with 29 detenus dead between 2016 and January 2020.
3. Lack Of Basic Legal Services To Assam’s Detenus
The third point of comparison between Australia and India is the provision of legal services to detenus. Detenus in Assam have very little legal recourse to legal aid, with a great number illiterate, poorly educated or from underprivileged backgrounds.
Djokovic could, of course, afford a battery of lawyers, which other detenus in Australia cannot. Most detenus in that country have neither the influence of Djokovic nor, indeed, of his mother, who drew attention to the state of Australia’s detention centres.
Australia’s treatment of refugees, especially its policy of holding them in offshore detention centres on the island nations of Nauru and Papua and New Guinea, has been widely documented and criticised and hundreds remain in detention.
However, rights of other detenus in Australia are made clear by organisations such as the Australian Human Rights Commission, which lists the laws, treaties and legal services and rights available to illegal immigrants and whose reports are hosted on an Australian government “transparency portal”.
No such clarity or transparency is available in Assam, where a yellow slip of paper, issued by a government authority can invalidate accepted citizenship documents and even citizens can find them involved in an opaque quasi-judicial or open-ended legal process with little adherence to accepted rule of law.
Detenus in Assam struggle with basic legal services and, often, have no property to offer as surety or friends who can provide it. Until recently, no legal aid was available to them. Many detenus and declared foreigners are the victims of ex-parte orders, passed against them without their presence of knowledge.
(Talha Abdul Rahman is an advocate on record, Supreme Court of India and a former fellow, Peter McMullin Centre on Statelessness, University of Melbourne, and Ananya Bhargava is a third-year law student at Dharmashastra National Law University, Jabalpur .)