In this episode of the Law and Other Things podcast, hosts Jeetendra and Sannidhi speak with Australian litigator Douglas McDonald-Norman about his unique perspective on Indian constitutional and refugee law. Douglas shares how his Australian background influences his study of Indian legal issues, particularly the concept of non-refoulement under Article 21 of the Indian Constitution, which, while offering implicit protections to refugees, lacks formal legal structure. He discusses the recent Rahim Ali v. State of Assam case as a positive step in citizenship burden-of-proof standards and compares India’s approach to refugee protection with Australia’s, offering insights into how India could strengthen its framework amidst global refugee crises.

Jeetendra: Hello, everyone, and welcome to the Law and Other Things podcast series. Through this series, we aim to bring to you the latest insight in constitution and public law. Today, we are delighted to have with us Douglas McDonald-Norman, who is a litigator from Australia. Douglas predominantly practices in migration law, administrative law, and refugee law. His areas of interest include Indian constitutional law and comparative administrative law.

Douglas: Thank you so much for having me.

Jeetendra: To start off, given your diverse background, Douglas, what first sparked your interest in Indian legal studies? Was there any particular moment or case that got your attention and inspired you to delve deeper into the subject?

Douglas: Well, I started working for a law firm with a significant practice in refugee law in Australia in 2010. At that time, I was working as a researcher and as a submission drafter. That was what first exposed me to the really bright line, rigid divide drawn in Australian law between negative and positive rights, and in particular, the consistent disinclination on the part of Australian decision-makers to recognize deprivation of socio-economic rights as a potential form of persecution giving rise to refugee status. That in turn led me to become really interested in socioeconomic rights under Indian constitutional law, and in particular as part of the right to dignity under Article 21. At around that time, I was offered a scholarship to study and work somewhere in Asia for a year. I put forward an application suggesting that I would study socioeconomic rights under the Indian Constitution in India, and extraordinarily and fortunately, I was granted that scholarship, which allowed me to study at the National Law School and to work at the Alternative Law Forum in Bangalore. That was in 2011, 2012, and I’ve remained passionately engaged and as actively engaged as I can be in Indian law legal debates since then.

Sannidhi: Thank you. That’s excellent. With this context, I have a few questions. As an Australian scholar, does your background influence your understanding of the Indian legal system? Also, what insights have you gained from examining India’s legal structure through non-Indian lens?

Douglas: This is something of which I have to be really conscious at all times. That, although I’ve studied at an Indian law school as an exchange student, although I’ve worked for an Indian legal organization, that fundamentally my legal training is overwhelmingly in Australia. My practice background is overwhelmingly in Australia. I think it’s inevitable that as much as I attempt to look at Indian doctrinal questions as doctrinal questions in their own right, it’s invariably informed by my background, by my understanding, by the way in which I’ve been trained. I think this is something where as much as there are potential pitfalls and potential risks of which I need to be conscious, it’s also something which gives rise to potential opportunities for identifying points of similarity, points of divergence, things that where both nations, even drawing upon a similar common law framework, have diverged in different directions and what that tells us both about where they started and what forces have driven that divergence.
Jeetendra: It’s interesting to hear how your background as an Australian scholar shapes the unique perspective on Indian legal system. Along those lines, was there any Indian legal scholar or historical figure who particularly influenced or inspired your studies?

Douglas : So, my starting point for my interest in Indian Constitutional law began with the book of speeches by Justice Michael Kirby, who is obviously an Australian legal figure with a long standing passion and interest in India and in that he particularly extolled the work of Justice Krishna Iyer who I had the opportunity of meeting when I was with him in India in 2012. Krishna Iyer’s work was my starting point, was the initial point of inspiration, the initial spark from which all has flowed, and allowing that in some ways my doctrinal understanding, my normative priors have moved on some ways and since then, that was what lit the spark as it were. But, obviously since coming to India the work of people around me has been an enormous and lasting inspiration for what I do in Australia for what I do in India. My work at the alternative law firm, working with people like Arvind Narrain, working with people like Siddharth Narrain and that is opportunities to merge social practice, legal practice, a broad understanding of intersection of law in life has consistently been my north star. And similarly people like Maitreyi Krishnan who are now active social lawyers in Bangalore have been a consistent inspiration for me. 

Sannidhi : Thank you for that insightful perspective. As we explore the global landscape of Indian legal studies, it’s interesting to consider the connections between Australia and India. How do you view the relationship between legal studies in Australia and India? Are there any shared themes or areas where scholars from both nations can learn from each other?

Douglas : Absolutely. My practice background in Australia is predominantly in administrative law, as you’ve noted. My current PhD work at the University of New South Wales, and as a visiting scholar at the National Law School of India University, is an examination of administrative law in India, and in particular, the role of tribunals in the constitutional firmament. I think the tribunal studies, in particular, is something where both nations, even while employing similar concepts or similar terminology, the sheer extent of divergence between the two in terms of these basic premises, cast so much light upon what a tribunal is and the role of non-court institutions in resolving disputes, both between individuals in the state and between individuals. In Australia, tribunals definitionally cannot exercise judicial power. In India, definitionally, tribunals do. That both nations from a similar common law starting point have reached diametrically opposed positions, I think means that both nations have so much to teach each other in terms of what this concept is, what we mean when we refer to tribunals, and what it means to confer these important decision-making powers upon bodies that are not courts.

Jeetendra : It’s fascinating to hear how Indian and Austrian legal systems are diverse from each other, especially on this important question of tribunal. This brings us to another important area which we would like to discuss, Refugee Law, which is highly relevant in both the countries.  You have written extensively on Refugee Law, especially in the Indian construct. What initially motivated you to explore Refugee Law in this particular legal framework?

Douglas: I have been working in and around Refugee Law for 14 years now, out there with substantial gaps in between. I worked for many years in Australia for a law firm which was funded by the Australian government to represent asylum seekers in Australia and Nauru. Then after my, what in India would be termed a judicial clerkship, I became a barrister, which is how I’ve been practicing for the last six years. Although I’ve practiced in a variety of areas, the area that I keep coming back to, that’s the central point of my practice, is migration litigation with a particular focus upon refugees. That’s my Australian background, and it indelibly informs my research interests in India. It’s a point at which my initial interest in the scope of Article 21 protections and the broader ambit scope of the right to life with dignity intersects with my passionate personal and professional commitment to refugee status determination, and in particular to ensure that this is carried out in a way which is humane and sensitive to lived experience of asylum seekers, that we don’t employ one size fits all models, or that where procedures are set down for determination of status claims, that they are sufficiently fair and clothed with meaning, that it’s not simply legitimating an unfair process.

Sannidhi : Thank you for sharing your thoughts. Now, moving on to your recent article for The Leaflet, which addresses Refugee Non-refoulement under Article 21 of the Indian Constitution, which highlights its promise of life and personal liberty, which includes the right to live with dignity. You state, and I quote “the fact that India does not have a national refugee law does not mean that Article 21 does or should not extend to refugees”. Could you explain how Indian Constitution protects refugees through this article, even though India lacks a formal refugee law?

Douglas: Thank you so much for asking about this. The Leaflet article is based upon a longer piece which I wrote for the Indian Law Review several years ago and which was published, I think, in 2022. What it’s really concerned to point out is that for all that there is judicial rhetoric that Article 21 includes rights to non-refoulement, in practice, that has not been clothed with substance. That to the extent that any coherent theme can be seen in the case law, particularly in the high courts, it is to treat the non-refoulement right as a procedural right. That is, it’s not an absolute bar upon removal, but simply a guarantee that fair procedures should be followed prior to removal. But the point that I’m trying to make in the Leaflet article and in the ILR article is that mere references to procedure alone are meaningless unless there’s some sense of what that procedure actually entails. If you say someone’s refugee status or refugee claims need to be taken into account in the decision making process, what does that mean unless there are clear criteria relevant for the exercise of this executive discretion. If you are simply saying that they have to afforded some weight, that becomes in turn meaningless, unless it is in fact part of a broader evaluative exercise. 

Now a refugee law, a formal central refugee law, would provide a useful procedure in this regard. It would provide clear yardsticks. But in the absence of a refugee law, the position that we have at the moment is unsatisfactory halfway house between the two. That the courts cannot at once call for fair procedures to be followed, indeed dictate that fair procedures are a constitutional prerequisite, or an Article 21 entitlement on the part of refugees and asylum seekers, and yet eschew the hard work of spelling out what that procedure is unless and until a refugee law is passed. It’s no answer to simply say that there should be fair procedures and then to leave it entirely within the realm of the executive to dictate what those procedures are, because that renders the resulting right insubstantial.

Jeetendra: It is really interesting to understand how the Indian Constitution provides such implicit protection. Do you have any ideas about how to strengthen this particular clause, Article 21, which you call “lifeless clause” in the article?

Douglas: I have been enormously informed by the work of scholars like Gautam Bhatia and Anuj Bhuwania, and their criticism, especially over the last decade, of the way in which Article 21 rights have become so endlessly boundless as to be effectively meaningless. If article 21 means everything in the world, if it is the clause that simply confers untrammeled, uncanalised, plenary powers upon the court, then not only does that make it impossible to tell in advance of any given case what’s protected and what’s not, but that erodes the core work of the right in protecting life and liberty.

If the courts are entitled to do anything in any given case that carries with it the concomitant that they can do nothing in any given case. We see this in bail jurisprudence, we see this in criminal jurisprudence, and we see this in areas like non refoulement which should be closer to the core entitlements of Article 21 than many rights which have formed part of the expanded penumbra.

So I think part of the answer for giving life to Article 21, of making it a useful and meaningful guarantee, is the task of imposing limits upon it, having a clear sense of what falls within the core of the right, what is ultimately non-derogable. What are the substantive components of it, what are the procedural components of it, and what ultimately lies beyond the scope of the right. In particular, clarifying the circumstances in which Article 21 gives rise to absolute substantive guarantees, such as the prohibition upon torture or cruel, inhuman or degrading treatment, and the circumstances in which it merely gives rise to procedural guarantees, that is, that certain substantive due process must be afforded before a right is detracted from. This level of doctrinal clarity is necessary if the right is going to work as an effective shield upon government power.

Sannidhi: Thank you for your valuable input. Let’s continue with our discussion. You’ve written a recent article on the case of Rahim Ali v. State of Assam, highlighting significant issues with the foreign tribunal’s handling of citizenship claims, particularly regarding the treatment of documentary evidence. Given this context, what makes you view this judgment as a positive indication of the tribunal’s stance on the burden of proof in citizenship cases? 

Douglas: Thank you so much for asking about that and first out, I’m enormously grateful to Gautam Bhatia and to his blog Constitutional Law and Philosophy for publishing and promoting that case. I think law blogs have a really important role to play in Indian legal discourse and of course Law and Other Things has been a really important contributor to the Indian legal world for so many years now. 

Rahim Ali is a judgment that stands out for me for several reasons, some of which ties back to the preceding discussion.

One of the really encouraging things about it, and here I have been really informed by the work of Tarunabh Khaitan and Farrah Ahmed, is the extent to which it’s not at its heart a constitutional case. That there are references to Article 14 and Article 21 in there, but that first and foremost it grounds the restrictive view it takes on the powers of police and the oreigners Tribunals on basic administrative law and statutory construction principles, the narrow and cautious and conservative reading of statutes and ordinances which have severe deleterious consequences for individuals.

Now Tarunabh and Farrah have written for many years about the potential significance and utility of a ‘doctrine of constitutional avoidance’ in India. That not every public law question has to have a constitutional answer. That in some circumstances, administrative law principles and principles of statutory construction can provide a clearer and more useful guide to future decision making and a clearer and more useful guide to the rights of litigants than simply placing everything in the endlessly wide baskets that are Articles 14 and 21. And so I think Rahim Ali’s reiteration of the significance of administrative law and statutory construction is a significant and welcome development. 

In terms of substantive outcomes, there’s several elements about Rahim Ali that are bittersweet. The first, most obviously, as Sukrita Baruah of the Indian Express has exposed, is that Rahim Ali himself died 18 months prior to the SCI’s judgment in this case, which in turn was delivered 12 years after an initial determination by a Foreigner’s tribunal that he was not a citizen of India. He died still waiting for justice, and his ultimate vindication is posthumous and affords him personally no relief. Now on any view of the system that’s obviously scandalous. The fact that the Supreme Court can only deliver justice to the dead. 

Furthermore, another bittersweet element about Rahim Ali, as I’ve explored in the post for Gautam’s blog, is the extent to which it is concerned to engage with and find gaps within the 2005 judgment in Sarbananda Sonowal v. Union of India. That is to say, to find areas within the scheme set out in that case of how the burden of proof should rest in foreigners’ proceedings. To find areas where that onus can be reversed or mitigated rather than to challenge the central logic of that decision that the onus is upon accused non-citizens, a burden which, as extensive reporting has indicated, is both arbitrary and in many cases impossible to meet.

Now, of course there are perfectly understandable and logical doctrinal reasons for why Rahim Ali can’t go further as a judgment than it does, that it’s a judgment of two judges of the SCI, that Sarbananda Sonowal is a 19-year-old precedent of three judges. I can’t at once call for greater doctrinal clarity and for greater clarity on the bounds of Indian law and criticize two judges for not diving deeper into the pool than they did. But nonetheless, the fact that the logic of Sarbananda Sonowal, the cruelty of that judgment, the extent to which it enshrines nationalist and chauvinist prejudices into Indian constitutional law, that that remains standing, and that Rahim Ali finds ways to make that workable rather than to challenge its logic, is obviously  a bitter pill to swallow.

But one last thing, and I’ve been talking for a bit about this, but one of the reasons why I’m interested in the foreigners tribunals is again, because of my background in refugee studies in Australia. To be clear, what the Foreigners Tribunals do is not refugee status determination. They are determining the citizenship of Indians, of people who have lived in India for decades, that it is a process of denaturalisation. And drawing too ready a comparison between processes of migrant status determination in other nations and what’s happening here risks legitimizing that process or risks presenting it as though the two are somehow equivalent when they are in fact pointing in entirely opposite directions. 

Nonetheless, in refugee status determination, and this is something I’ve written about for many years, there are these ingrained cultures of suspicion, the idea that refugee testimony is self-serving, the idea that refugees need to be judged against an idealized model of the perfect asylum seeker who has every document, who can explain in unerring detail and with unerring plausibility the motives and true objectives of everyone with whom they’ve encountered.

The ideal refugee is not someone who comes with a permission slip from their dictator. The assumptions dictating, the assumptions which govern the Foreigner’s Tribunal process about documentary evidence, the idea that if you are truly “Indian”, in inverted quotation marks, that you have an unbroken record of documents which unerringly describe your name in consistent ways across decades, those same assumptions are premised upon these same unfounded premises about human motives, about the distinction between objective and subjective forms of evidence.

In both nations, these cultures of disbelief and doubt ultimately serve to exclude, and I think that there are parallels, there are ways in which one body of literature can inform the other, and ways in which one body of activism can inform the other. 

Jeetendra: Thank you for this response. The Rahim Ali judgment certainly seems to be a key development and provides us an opportunity to reflect on the flaws of the Indian judicial system. Shifting to a comparative perspective—how does India’s approach to non-refoulement and refugee protection compare with that of Australia? Do you see any aspects of Australian refugee law, or from other international systems, that India could take inspiration from?

Douglas: No, I think that Australia has fundamentally been a malign force. I can say this because I’m ten thousand miles from home. 

Something that I’m consistently trying to dispel in this regard is the idea that I’m here to promote the Australian experience. No, the reason, as I’ve noted at the outset, why I was drawn to Indian constitutional studies was confronting the ways in which Australian refugee jurisprudence has so often been extraordinarily narrow or has been informed by rigid preconceptions and presuppositions which don’t stack up against the lives of applicants. And that at times Australian refugee policy has been motivated by bigotry and xenophobia which has led us to really dark directions and indeed has motivated similar darkness in others. That the UK’s Rwanda solution as it was called was directly inspired by previous Australian experiments in sending people who had come to Australia seeking asylum there to other nations in the region for them to be processed and be settled there. That as I’ve said, Australia’s influence on global refugee law and global refugee policy has often been as an exporter of bad models. 

That having been said,  something that does inspire me is that, at the end of last year, there was a judgment in the High Court of Australia called NZYQ v. Minister for Immigration. For many, many years, Australia has, had maintained a policy of indefinite detention of non-citizens. Indefinite in the sense that they would be detained until their removal or until their release, with no knowable time frame for an end to their detention. This was the subject of a highly controversial judgment from the High Court of Australia in 2004, known as Al Kateb v. Godwin, that affirmed this policy.

In NZYQ, after decades of agitation, the High Court unanimously recognized that the constitutional and statutory warrant for detention ends, where there is no reasonable prospect of a person being removed from Australia. This is a really highly constitutionally and politically significant development. It’s been highly politically controversial in Australia. That, how that judgement was reached, I think has potential implications for equivalent debates in India around the detention of non-citizens and in, and more broadly. I think can inform a comparative debate about what are the permissible purposes of detention in both nations, particularly detention other than following conviction for criminal guilt. 

Sannidhi: That was a great response; thank you. As we move on to the next question, considering India’s broader human rights framework, how do you envision the intersection of refugee protection and constitutional rights evolving, particularly in the light of the global refugee crisis, stemming from the recent Israel-Palestine conflict?

Douglas: I think it’s really hard to tell. I think so much of it turns upon the ultimate outcome to the Supreme Court litigation in Mohammad Salimullah regarding the rights and non-refoulement of Rohingya asylum seekers.  The interlocutory judgment in that case, which I’ve covered in my Leaflet piece and in my ILR piece, obviously sends some really troubling signs for how the Supreme Court views these issues, and in particular, that it regards the question as whether illegal immigrants, to use its term, are entitled to non-refoulement protection. To draw a dichotomy between people who deserve protection and people who don’t is an enormously troubling trend, and it’s something where potentially we could be moving in an even darker direction in that regard. 

The other thing that gives me cause to pause in this regard is that is returning to the 2005 Sonowal Judgment, the suggestion that there is a dichotomy between the Article 21 rights owed to citizens and residents of India in respect of criminal proceedings and Article 21 rights owed in respect of deportation proceedings, the suggestion that the latter does not involve life and liberty in the same sense. I think this suggestion that Article 21 rights do not extend to forms of harm inflicted through removal is both flatly wrong and deeply troubling. It imposes upon Article 21 restrictions or qualifications or exceptions which are nowhere to be found in the constitutional text and risk creating a hierarchy of rights within the clause that is ultimately purely a question of judicial fiat.

As I have said at the outset, part of the task of clearly articulating what’s in Article 21 and what doesn’t has to be informed by a sense that these rights are not owed to some people and not to others. That it’s not a clause like Article 19, with explicit restrictions for citizens, or with explicit grounds on which the right can be derogated. Article 21 is a clause expressed in clear and absolute terms. And to attempt to read it down by reference to Article 19’s qualifications and exceptions as to who’s in and who’s out risks returning to the bad old days of A. K. Gopalan and the idea that rights within Part III are in some sense siloed or separated from each other. It’s the bad old days before Maneka Gandhi. 

Jeetendra: To conclude, with the global context in mind, looking ahead to the future of refugee law in India, particularly concerning Article 21 and the protection of human dignity, do you see any major policy shift or judicial interpretation that could shape refugee protection?

Douglas: I think that what is called for both on where the jurisprudence stands at the moment and on a clear, consistent, and principled approach to Article 21 is a recognition that non refoulement forms part of Article 21. 

Now, I think ideally, that would be a substantive guarantee against removal, that Article 21 prohibits state action inflicting torture or cruel, inhumane, and degrading treatment, which has been orthodoxy in Indian law for nearly 50 years since Sunil Batra and Krishna Iyer’s prison jurisprudence of the late 1970s. 

But if Article 21 is seen as a procedural, not a substantive right, then it calls for a clear and unequivocal articulation of what those procedures are. Now, this is something where the intersection between administrative law and constitutional law is potentially informative, that those procedures ought to be informed by common law presumptions as to what fair procedure entails. 

But in either case, the current position of uncertainty and ambiguity as to whether Article 21 covers non-refoulement and, if so, what that involves is the worst of all possible worlds. It creates a space in which the executive may choose to act compassionately, as it has in many cases, as India’s long-term policy of granting long term visas to refugees entails. But the mere creation of a space within which the executive may choose to act compassionately is ultimately not a substitute for a guarantee that it must. 

Sannidhi: This is such a great note to end our discussion today. Thank you for taking the time to share your insights with us today. Your expertise and perspective have greatly enriched our conversation.

Douglas: Thank you so much. 

Sannidhi: And I am sure our listeners will benefit immensely from your thoughts. We’re truly grateful for your contributions and look forward to following your work in the future, Douglas. 

Douglas: I am so glad to be here. Thank you so much. 

The Podcast has been conducted, edited and transcribed by Jeetendra Vishwakarma and Sujana Sannidhi from LAOT team and published by Baibhav Mishra.