Repatriation of prisoners Act, 2003: An Analysis

“Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement.”- Justice V.R. Krishna Iyer

Context:

Recently two cases of repatriation of Indian nationals have been in news

Fast Facts:

According to Minister of External Affairs:

• As of March 2018, 7850 Indian national are lodged in foreign prisons of 78 countries
• Saudi Arabia has the maximum number of 2,181 Indian prisoners followed by the UAE with 1,628
• After the enactment of the Repatriation of Prisoners Act, 2003, 170 applications for repatriation have been received by India
• 63 Indian prisoners have been repatriated from foreign prisons.

According to National Crime Records Bureau data (2016)

• There were 6,185 foreign national prisoners
• 66% of the total foreign national prisoners were Bangladeshi nationals

The Need for Repatriation of Prisoners:

1. Social rehabilitation:

• It has been argued that convicts who serve their sentences in their native countries can be rehabilitated and reintegrated into the community better than elsewhere

2. Humanitarian Concerns:

• Cultural differences and distance from family may aggravate the impact of the imposed sentenced.
• Humanitarian concerns also arise out of certain conditions of individual prisoners. For example: a prisoner may be pregnant

3. International Cooperation:

• Transfer of prisoners highlights mutual cooperation between two countries in the field of judicial and penal matters
• Prisoner transfer agreements are important tool in fostering international relations

4. Administrative Issues:

• Transfers of prisoners reduce the cost of providing consular services to nationals imprisoned overseas
• Further, it also reduces the cost of housing foreigners in national prison systems

International Conventions:

International Covenant on Civil and Political Rights:

• Article 10 mentions that essential aim of a penitentiary system is the reformation and social rehabilitation of prisoners.
• Article 12 mentions the right of a prisoner to return to home country

Vienna Convention on Consular Relations, 1963:

• It provides for information to consulate, consular protection and consultation upon arrest, detention and during trial in a foreign country including entitlement to travel documents

UN Model Agreement on the Transfer of Foreign Prisoners, 1985

• The Agreement calls for quick promotion of social resettlement of offenders by facilitating the return of persons convicted of crime abroad to their home country to serve their sentence.

Recommendations on the Treatment of Foreign Prisoners, 1985

It made the following recommendations:

• Equal access as national prisoners to education, work and vocational training.
• Eligible for alternative measures to imprisonment according to the same principles as nationals
• The religious precepts and customs to be respected.
• Informed about prison regime and regulations, in a language they understand
• Informed about right to contact consular authorities
• Facilitate contact between foreign prisoners and their families and with humanitarian international organizations.

Legislation in India:

Repatriation of Prisoners Act, 2003

• The Repatriation of Prisoners Act was enacted in 2003. Repatriation of Prisoners were published in 2004 for the implementation of the Act
• Further, in 2015, the Ministry of Home Affairs published guidelines to provide procedural guidance to different stakeholders engaged in transfer of prisoners

Salient Features of the Act:

1. The Act defines prisoner as a person undergoing sentence of imprisonment under an order passed by a criminal court. This includes the courts which are formed by law in respective states
2. The act enables the transfer of foreign prisoners to the country of their origin to serve the remaining part of their sentence
3. It also enables the transfer of prisoners of Indian origin convicted by a foreign court to serve their sentence in India
4. Transfers take place with contracting states. Contracting states have been defined as Government of any country/ place outside India with whom an arrangement to transfer prisoners from India to that country/place and vice versa through a treaty or otherwise

• India has such prisoner transfer arrangements with 43 countries.
• The treaties are negotiated or guided by the Indian Standard Draft Agreement which is a model treaty prepared by Ministry of Home Affairs in consultation with Ministry of External Affairs and Ministry of Law

5. Conditions consider for transfer of foreign prisoners:

• If there is any pending inquiry or not,
• Trial or proceeding against the prisoner
• Whether the convict has been sentenced to death or convicted of an offence under martial law. The word martial law has been changed to military law by a 2010 amendment
• Whether his transfer would be prejudicial to the sovereignty, security or any other interest of India
• The Centre then seeks information on various aspects from the country where the prisoner wants to get transferred. These include:
• Nationality check
• The relevant law for the offence for which he is undergoing sentence
• The duration of sentence for the particular offence in that country
• Undertaking from that country to administer the remaining sentence on the prisoner.
• Same conditions apply for an Indian prisoner transferred to India from a foreign country
• If the sentence of imprisonment passed against the prisoner in that country is found to be incompatible with Indian law, the Central government can make it compatible, by order

6. Process of Prisoner of Indian nationality convicted by Foreign Court:

Issues and Challenges:

1. Lack of awareness among various stakeholders:

There is Inadequate awareness of stakeholders including the Indian Missions abroad, jail staff in the states and Indian prisoners in foreign jails with regard to the Repatriation of Prisoners Act, 2003 and bilateral agreements signed for prisoner transfers

2. Lack of data:

Absence of consolidated and updated data base on Indian nationals in foreign prisons, status of sentences, surveys on Indian prisoners’ intend for transfers into India hinder speedy interventions on transfers by Indian missions, and the Central government

3. Issues with Indian Missions abroad:

• Outreach of Indian Missions towards Indian nationals in prisons is not equitably developed across foreign countries. Many high commissions were unaware about funds and facilities they could make available for Indian prisoners abroad.
• According to reports, Indian high Commissions of UK and Canada were obstructed by the privacy laws of the respective countries where they functioned.

4. Application process:

• Applications reach the government of India in incomplete manner and it takes a long to reach valid application status. This is because specification documents are not uniform and correspondence time between GOI and Indian Missions or foreign country gets prolonged
• Further there are delays in nationality verification

5. Case pendency:

• The delay in disposing of cases has hindered repatriation of many foreign national in India. According to 2011 NCRB data, 3,601 foreigners were in prison as under trial prisoners as opposed to 2,020 as convicts.

6. Issues with bordering countries:

• Due to deficit of trust, between India and bordering countries such as Bangladesh, Pakistan many innocents who have unintentionally crossed borders have been criminalized. Many prisoners have completed their sentences but remain in jail due to poor transfer mechanisms

Best Practice: USA and Mexico

• Mexico and the United States of America have a very active prisoner transfer programme.
• Transfer dates are scheduled quarterly (a year in advance) even before specific prisoners are identified for transfer

Way Forward:

1. Strength and capacities of every Indian Mission to provide consular and legal assistance to Indian nationals in foreign prisons should be assessed
2. There should be proper data collected about number and status of Indian origin prisoners abroad. Further surveys should be made on perception of sentenced Indian prisoners in foreign countries regarding benefits and barriers to return
3. A comprehensive specification list should be prepared. MEA’s nationality verification portal should be strengthened. Further, the entire application process should be shortened to ensure fast repatriation
4. Raise awareness of the Indian Missions, Repatriation of Prisoners Act, bilateral agreements among all stakeholders
5. It is also important to improve prison conditions in India, assure humanitarian treatment to prisoners and arrange special counselling session for foreign prisoners.