The Morrison government’s jail threat to Australians seeking to return from coronavirus-ravaged India is rooted in racism and calls into question the “very essence” of citizenship, human rights lawyers have warned.

For the first time in our history, it will be a criminal offence for Australians to come home from overseas, with the federal government introducing fines of up to $66,600 or five years in prison for anyone returning from India.

Australians stranded in India told The New Daily of their distress at the government’s move.

“I’m just so devastated. I was so excited to come, but now I don’t have any words,” said one woman who has not seen her husband since 2019.

The government’s shock decision was announced late on Friday night and came after two Australian cricketers made it back to Australia, despite the government banning all flights, via a loophole that saw them transition through Qatar.

As public outrage at the decision grew on Saturday, Health Minister Greg Hunt told media the government had taken the tough stance due to an “unmanageable” number of arrivals from India tested positive to COVID-19.

“It is critical the integrity of the Australian public health and quarantine systems is protected and the number of COVID-19 cases in quarantine facilities is reduced to a manageable level,” Mr Hunt said.

Australian Lawyers Alliance spokesman Greg Barns SC slammed the government’s decision as “extraordinarily dangerous”.

“This decision is telling people who are otherwise innocent, who have had the misfortune of being [stuck] in India, that we regard them as being criminals for seeking to return to their homeland,” Mr Barns said.

The move also showed the federal government’s failure to take leadership of hotel quarantine system and ensure every stranded citizen could get home safely, he said.

“It changes the very essence of citizenship, it says ‘You’re a citizen when we want you to be’,” Mr Barns said.

“You run the risk of being jailed simply because you’re an Australian citizen seeking to return to your homeland.”

The fact Australia did not do the same when the United Kingdom and the United States were experiencing surging COVID cases showed the decision was rooted in racism, Mr Barns said.

“It’s an abuse of criminal law and is tinged with racism,” he said.

Mother separated from child

One Sydney mother told The New Daily she had not seen her five-year-old daughter for over a year because of the government’s pandemic policies.

In 2019, Kiara, who did not want her real name published after she saw nasty comments on social media about those stuck in India, left her then four-year-old daughter in India to spend quality time with her grandparents after a family holiday to visit them.

“I had my ticket in March [2020] to go back to India to pick her up. I was heading to the airport when flights were banned because of the pandemic,” Kiara explained.

Kiara and her husband tried to book their daughter on a flight home, but the government flight did not allow for unaccompanied minors, and Air India only allows those over the age of six to board alone.

“We couldn’t find any way to get her back. She couldn’t fly back, I couldn’t fly into India,” Kiara said.

She finally found a private charter that would bring her daughter home. It was booked for May 5.

“We gave her hope she was coming very soon. She packed her toys and little gifts for her parents, it was so heartbreaking to see,” Kiara said.

“I am missing her.”

Her daughter is staying with her grandparents and Kiara worries they will get COVID-19.

“It’s horrible. She is longing to come back to us,” she said.

‘An assault on citizenship’

Former race discrimination commissioner and professor in political theory at the University of Sydney Tim Soutphommasane said the government’s decision amounted to ‘dog whistling’.

Dog whistling is a political tactic that sends a message to a core group of voters, who in this case would be racist towards Indian Australians.

“This wouldn’t be the first time that Australian governments have engaged in cynical racial dog-whistling,” Professor Soutphommasane said.

“It amounts to an assault on the basic value of citizenship. Citizenship means nothing if you can’t exercise your right to return to Australia in a time of need.”

He questioned why the ‘health advice’ the government cited as the reason for this decision was not given when other countries also saw huge spikes in cases.

“There has been plenty of time to put in place strengthened quarantine measures,” Professor Soutphommasane said.

“By now we should have seen complete repatriation of all Australians who have wanted to return home.”

Pratishtha Bhardwaj has not seen her husband since they married in 2019.

She was meant to board a flight to Sydney, where he lives, on May 4.

Pratishtha Bhardwaj has been separated from her husband for more than a year. Photo: Supplied

She doesn’t know when they will be reunited.

“I’m just so devastated. I was so excited to come, but now I don’t have any words,” Ms Bhardwaj said.

She lives in Rajasthan, in northern India, and has lost two relatives to COVID-19.

“It’s very bad,” Ms Bhardwaj said. “I’m on medication [for anxiety] but I don’t think it is helping. We are all very scared right now.”

Ms Bhardwaj is stuck in India with no income after quitting her job because she thought she was leaving for Australia.

“I can’t sleep looking at the current situation and thinking when will I be able to see my husband again,” she said.

“I feel hopeless.”

Elaine Pearson, the Australian director at Human Rights Watch, said the government’s move was “outrageous”.

“Any such limitations on [the right to return] due to public health grounds should be necessary and proportionate,” Ms Pearson.

“The government should be looking for ways to safely quarantine Australians returning from India, instead of focusing their efforts on prison sentences and harsh punishments for people who are facing desperate conditions and simply trying to return home.”