Indefinite Tense: Detaining Non-Citizens in India and Australia

Australia and India detain people who are not citizens, or who have been stripped of citizenship. In India, under Section 3 of the National Security Act, the Central or State governments may make orders directing that a person be detained ‘if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India’ it is necessary to do so. This permits the state to detain people who cannot be deported to any foreign country (that is, who cannot practically be removed from India) in the foreseeable future – without any conviction or finding of guilt or risk. Similarly, Section 3(2)(g) of the Foreigners Act permits the Central Government to make orders providing that foreigners ‘shall be arrested and detained or confined’.

In Assam, 19 lakh people have been stripped of their citizenship through the creation of the National Register of Citizens (NRC), a process involving harsh and demanding methods of proof; those excluded from the Register have been forced to appeal to the arbitrary and inconsistent Foreigners Tribunals (FTs). Most ‘non-citizens’ detained as a result of these processes cannot be removed from India because they have lived their entire lives in India, with no meaningful or continuing ties to any other nation. They are Indians, stripped of their citizenship through unfair procedures.

The arbitrary and indefinite detention of non-citizens in India (including those who have been stripped of citizenship by the NRC and the FTs) has been challenged in the ongoing Supreme Court proceedings in Rajubala Das v Union of India. There are parallels between the ongoing Indian challenge and a recent seismic development in Australian constitutional law: the High Court of Australia’s judgement in NZYQ v MICMA, in which the Court affirmed that a non-citizen can no longer be detained by the executive where there is no real prospect of their removal from Australia.

Australia and India are both federal, common law parliamentary systems with constitutionally enshrined separation of judicial, executive and legislative powers. Indian constitutional law has drawn on Australian case law before. This post examines how Australian constitutional jurisprudence on immigration detention can potentially inform Indian debates on the constitutional limits on indefinitely detaining non-citizens.

Lim, NZYQ and ASF17: The Australian position

Australia has maintained a regime of mandatory immigration detention for non-citizens who do not have visas to enter or remain in Australia for decades. The constitutionality of this regime was first considered by the High Court in Chu Kheng Lim v MILGEA in 1992. This case articulated what is now known as the Lim principle: that detention of a person is ‘penal’ or ‘punitive’ (and hence requires an exercise of judicial power by a court) unless the law justifying that detention is ‘reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose’.[1]

In applying this principle, laws permitting the Executive to detain non-citizens will be valid ‘if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered’.[2] Beyond that limit, the resulting detention of a non-citizen will be ‘punitive’ in nature – and hence violate the strict separation of executive and judicial power under the Australian Constitution.

This led to lasting controversy about whether the Australian Parliament can permit the detention of a non-citizen where there is no real prospect that they can be removed from Australia in the reasonably foreseeable future. By a majority of 4-3, the High Court’s 2004 judgement in Al-Kateb v Godwin permitted such detention – leading to substantial academic criticism.[3]

Nearly twenty years later, in NZYQ, the High Court re-opened and reversed its holding in Al-Kateb.[4]

The plaintiff in NZYQ is a stateless Rohingya Muslim. He has been found to be a refugee – that is, he has a well-founded fear of persecution in Myanmar, and he is a person in respect of whom Australia has protection obligations. But, following his conviction for a sexual offence against a child, his application for a protection visa in Australia was refused. He was not granted a visa and yet he could not be removed to Myanmar – nor was it established that there was any other country to which he could be removed. He hence faced the prospect of ‘indefinite’ detention – that is, ‘detention with no chronological endpoint and in circumstances where they cannot ascertain when their detention might end’.

In NZYQ, the High Court rejected the proposition that ‘separation’ of the plaintiff from the Australian community was a legitimate and non-punitive purpose for detention.[5] Rejecting Al-Kateb, the Court found that the Constitution does not permit executive detention of a non-citizen ‘when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future’.[6] The Australian government failed to establish that there was any real prospect of the plaintiff’s removal from Australia in the reasonably foreseeable future – and hence the Migration Act did not authorise the Executive to continue to detain him.[7] A writ of habeas corpus was issued to require his release forthwith.[8]

The judgement in NZYQ attracted significant political and public controversy. It has since been the subject of an important restatement and clarification in ASF17 v Commonwealth.

The appellant in ASF17 is an Iranian citizen. He claims to fear removal to Iran because he will be persecuted by reason of his sexual orientation. He did not raise these claims as part of his application for a protection visa and hence these claims have not been considered or determined by the Australian government. He refuses to cooperate in the Australian government’s efforts to remove him to Iran. And the Iranian government has ‘a longstanding policy of not issuing travel documents to involuntary returnees’.[9] The appellant hence faces indefinite detention – he cannot be removed to Iran, he refuses to cooperate in his removal because of his claimed fear of harm, and there is no other known country to which he might be removed.

The High Court found that a person’s detention will not be penal or punitive (and will hence be consistent with Lim and NZYQ) where that detention results from ‘a voluntary decision of the detainee’.[10] The Court found that the appellant could be removed to Iran if he cooperated in the process of obtaining travel documents; that he had ‘decided not to cooperate’; and that the question of whether a person’s removal is reasonably practicable turns on whether there are actions ‘that might be taken with the cooperation of the person being detained, save only for instances where the person is incapable of cooperating’.[11] The appellant remains in detention. He will remain in detention until he is granted a visa or until he chooses to return to Iran.

How can these cases apply to India?

There are some key differences between the Indian and Australian approaches to the separation of judicial power. Australia is remarkably rigid and inflexible in its approach: at the federal (Central) level, only courts may exercise judicial power (and only judicial power). The conferral of judicial powers upon tribunals and quasi-judicial bodies, as in India, would be constitutionally unimaginable in Australia. But the mere fact that a broader range of institutions than courts can exercise judicial powers in India does not mean that any executive institution may exercise powers of this kind. The principal (even if not the only) basis for detention in India, as in Australia, is determination of guilt and a sentence imposed by a court – that is, through the exercise of judicial power. Exceptions to this principle in the Constitution, as in article 22, are addressed exhaustively and prescriptively; they do not operate through mere implication or absentmindedness. The Lim principle – that detention will be punitive unless there is a reasonable non-punitive purpose – is capable of operating in India; it will simply involve a broader range of permissible non-punitive purposes where these are expressly established by the Constitution.

Lim, NZYQ and ASF17 do not establish that all forms of immigration detention are impermissibly ‘punitive’, regardless of their harsh consequences upon the individuals concerned. Moreover, the Australian case law does not prohibit all forms of indefinite detention; ASF17 does not know when his detention will end, and it may never end if he does not choose to return to a country where he claims to fear persecution.

But the Australian cases support the proposition that a person may only be detained by the executive for certain narrow purposes – and that detention beyond that point would amount to an impermissible exercise of judicial power. There is nothing in the Indian Constitution, expressly or by implication, to suggest that the Executive has a broader power to detain someone who cannot be deported, who has not been convicted of any offence, and who is not ‘preventively’ detained under article 22, simply for the purposes of segregating them from the Indian community. The purpose of detention cannot simply be detention itself.

Notes

[1]  NZYQ [39].

[2]  Lim 33.

[3] See, for example, Stephen McDonald’s detailed analysis of the High Court’s reasoning in 2007.

[4] For a full account of the path from Lim to Al-Kateb to NZYQ, see Laura John, Josephine Langbien and Sanmati Verma.

[5]  NZYQ [47]–[50].

[6] NZYQ [55].

[7] NZYQ [70].

[8] NZYQ [74].

[9]  ASF17 [8].

[10]  ASF17 [42].

[11]  ASF17 [24], [48]–[49].

About the Author

Douglas McDonald-Norman is a Visiting Scholar at the National Law School of India University and a PhD candidate at the University of New South Wales. He posts at @dougmcdnor on Twitter and at @dougmcdnor.bsky.social on Bluesky.