This article is written by Abanti Bose, from Amity University Kolkata, India. This article discusses the salient features, important provisions, and challenges faced by The Repatriation of Prisoners Act, 2003. This article also talks about the Indian prisoners convicted in a foreign country.
When a person commits crimes in a foreign country, they are bound to go through the extensive criminal justice system and face lengthy sentences. Repatriation involves the transfer of the person who committed the crime or crimes from that country to the country where he belongs, i.e., the home country under a bilateral or multilateral agreement. Once transferred, they serve the same sentence as awarded in the country where he was convicted. Imprisoning an individual in a foreign country amidst unfamiliar circumstances has been perceived as grueling across the globe. Therefore, various Acts and treaties have been implemented to guarantee the right of an individual to return to his country.
The Repatriation of Prisoners Act, 2003 aims to provide for the transfer of certain prisoners from India to other countries or places outside India and the reception of Indian prisoners by India from other countries or places outside India. The Act signifies an essential piece of Indian legislation on administering and guaranteeing human rights to prisoners and adheres to the international conventions, which protects the right of an individual to return to his home country, even if he is a convicted felon.
Repatriation v. extradition
There is a substantial difference between extradition and repatriation. Extradition is the process of delivering a person accused or convicted for committing a crime from one jurisdiction to another. A bilateral or multilateral treaty enables this process. Extradition acts or treaties specify the extraditable crime, clarify the extradition process, etc. Repatriation, on the contrary, is the act that enables the prisoner to serve a sentence in one country, allows him to serve the rest of the term in their home country, and international agreements and treaties guide it. Extradition is involuntary, whereas repatriation is voluntary.
Need for repatriation of prisoners
Repatriation of prisoners is an essential step to protect the rights of an individual to return to his home country even if he is a convicted felon. It is considered as a crucial act on humanitarian grounds. Often prisoners convicted in a foreign country undergo harsh treatment and torture, which is against human rights and humanity. Cultural differences and distance from family in unfamiliar circumstances will aggravate the impact of the sentence that has been awarded to the individual. It also focuses on the physical condition of the prisoner; for example, the prisoner might suffer from a severe disease, or the prisoner can be pregnant.
The need for repatriation of prisoners is mentioned in various international conventions to maintain amicable relations between two states. Further, transferring prisoners is an essential tool that is required to foster international relations.
Various international conventions govern the repatriation of prisoners:
International Covenant on Civil and Political Rights, 1966
The International Covenant on Civil and Political Rights, 1966 is a multilateral treaty adopted by the United Nations General Assembly; it grants civil and political rights to individuals along with the right to life, freedom of religion, freedom of speech, freedom of assembly, rights to due process and fair trial, etc. The United Nations Human Rights Committee monitors it.
Article 10 states that individuals deprived of personal liberty shall be treated with humanity and dignity. It also mentions the provisions for treating accused persons and juvenile offenders. Article 12(4) indicates the right of a prisoner to return to his home country.
Vienna Convention on Consular Relations, 1963
It is an international treaty that defines the consular relations between the sovereign states. Article 2 establishes consular relations between states by mutual consent. Vienna Convention on Consular Relations, 1963, provides for the information to the consulate, consular protection and consultation upon arrest, detention, and during the trial in a foreign country. It also includes entitlement to travel documents to the nationals of the sending state under Article 5(d).
United Nations Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners, 1985
It lays down provisions for the social rehabilitation of foreign prisoners through early repatriation to their home countries to serve the rest of the sentence.
Salient features of the Act
The salient features of The Repatriation of Prisoners Act, 2003 are:
- The Act guides the necessary provisions in accordance with international conventions concerning the transfer of prisoners convicted in Indian Judiciary to countries or places outside India and receiving Indian prisoners from places or countries outside India.
- It enables foreign prisoners to serve their remaining sentences in their home country.
- It also mentions provisions for Indian citizens convicted in a foreign country to serve the rest of their sentences in Indian prisons, as stated in Section 4.
- The act states the definitions of essential terms such as “contracting state,” “prisoner,” “warrant,” etc.
- The Repatriation of Prisoners Act, 2003 states the provisions for making the application to the Central Government by the prisoner under Section 4.
- It authorizes the Central Government to issue warrants for the transfer.
- If an individual who was ought to be transferred to the contracting State escapes from custody within India, Section 9 of the act grants the authority to any person to arrest that individual without any warrant and to deliver him to the officer-in-charge of the nearest police station.
- Section 16 of the Act empowers the Central Government to remove difficulties arising in giving effect to the provisions of the said act.
- Section 14 authorizes the Central Government to make rules for the purpose of carrying out the provisions of the Act, by notification to the Official Gazette.
- The treaties or agreements are guided by the Indian Standard Draft Agreement, which had been prepared by the Ministry of Home Affairs in consultation with the Ministry of External Affairs and Ministry of Law.
Important provisions under the Repatriation of Prisoners Act, 2003
The important provisions of The Repatriation of Prisoners Act, 2003 are mentioned as follows:
Application of the Act
Section 3 of the said Act authorizes the Central Government by notification to the Official Gazette to make the provisions of the said Act apply to a country or a place outside India. If the place or country already has a pre-existing treaty with India for the transfer of prisoners between India and that country, then such notification shall also set out the full text of the said treaty. Further, according to Section 3 (3), if the Central Government considers it prudent to modify the provisions of the Act concerning the country or place outside India, to give effect to a treaty, it is authorized to do so.
Application for the transfer of a prisoner
Any prisoner under Section 4, who is a citizen of a contracting state, can make an application to the Central Government for transferring his custody from India to the contracting state.
Consideration of a request by Central Government
After receiving the application of the prisoner, the Central Government shall direct the officer in charge of the prisoner to furnish the required information about the prisoner. After receiving the report, the Central Government will direct the application of the prisoner to the contracting state, on specific grounds such as:
- No inquiry or trial is pending against the prisoner.
- The death penalty hasn’t been awarded to the prisoner.
- The prisoner was not convicted under military law.
- The transfer of the prisoner shall not be prejudicial to the sovereignty, security, or any other interest of India.
Comments of the contracting State
Section 6 of the Repatriation of Prisoners Act, 2003 lays down the provision for forwarding the application of the prisoner by the Central Government to the contracting state along with the pertinent information:
- A copy of judgment along with the copy of relevant provisions of law.
- The nature and duration of commencement of the sentence of the prisoner.
- Medical reports or other reports concerning the prisoner.
- Or any other information which the Central Government will deem fit.
And if the contracting state accepts the application of the Central Government, then it is required to furnish necessary details to the Central Government about the prisoner. That information must include that the prisoner is a citizen of that state, copy of relevant law, the willingness of the contracting state to accept the transfer, etc.
Warrant for transfer
The Central Government shall authorize an officer not below the rank of Joint Secretary to a State Government within whose jurisdiction the place of imprisonment of the prisoner is situated, to issue a warrant on behalf of the Central Government expressing its willingness to transfer the prisoner, thereby delivering the custody of the prisoner to the person authorized by the contracting state along with the required documents. After presenting a warrant, the officer in charge must comply with it and shall forward a copy of the warrant along with the statement that the custody of the prisoner has been delivered to the authorized person to the court, which convicted the prisoner.
Operation of a warrant and retaking a prisoner
Under Section 9 of the Repatriation of Prisoners Act, 2003 authorizes any person to arrest the prisoner without any warrant who escaped custody while the prisoner was being transferred to the contracting state and to bring him to the officer in charge of the nearest police station. The prisoner should be liable for committing an offence under Section 224 of the Indian Penal Code and would also undergo such a sentence of imprisonment in India if the delivery of the prisoner had not been made under Section 8.
Transfer of record and proceeding
When a prisoner is to be transferred to a contracting state under the provisions of this Act, Section 10 states that the records and judicial proceedings concerning the prisoner must be transferred to the Government of the contracting state.
Transfer into India
The Central Government is empowered to accept the transfer of a prisoner who is a citizen of India under Section 12 of The Repatriation of Prisoners Act, 2003. The terms and conditions of the transfer must be agreed upon between India and the State that convicted the prisoner.
Determination of prison and issue of a warrant for receiving a transfer in India
The Central Government, in consultation with the State Government, shall determine the prison and officer who shall receive and hold him in custody, situated within its jurisdiction. Also, the Central Government shall authorize any officer not below the rank of Joint Secretary to that government to issue the warrant and direct the officer who will hold the prisoner in custody. The officer is lawfully obligated to retain the prisoner in custody under the directions made in the warrant. If the prisoner escapes from such custody, then the prisoner can be arrested by any person without any warrant and will be liable to deliver the prisoner to the officer in charge of the nearest police station. The prisoner arrested will be punishable under Section 224 of the Indian Penal Code.
The warrant which has been issued by the officer will provide for the following conditions:
- Bringing the prisoner to India from the contracting state.
- The nature and duration of imprisonment of the prisoner in accordance with the terms and conditions agreed between India and the contracting state.
- The manner of imprisonment of such a prisoner in India.
- Any other relevant detail.
If the sentence of imprisonment passed in the contracting state is incompatible with the Indian law, then the Central Government by order may adapt the sentence of such punishment, which is compatible with the sentence of imprisonment provided for a similar offence if it had been committed in India.
Power to make rules and remove difficulties
Section 14 of The Repatriation of Prisoners Act, 2003 empowers the Central Government by notification to the Official Gazette to make requisite rules for the purpose of carrying out the provisions of the Act. Similarly, Section 16 enables the Central Government to remove the difficulties that arise while giving effect to the provisions of the Act.
The process of an Indian prisoner convicted by a foreign court
The procedure of repatriation, which is followed for the transfer for the prisoner, differs from country to country:
- Under the provisions mentioned in the act, the request for transfer is to be made by the convicted prisoner on the grounds of age or physical and mental conditions, and the request can only be granted when both the receiving and transferring state agree. The rescinding country is required to verify the identity, nationality, offense committed etc. The process is undertaken by the Central and State Government jointly along with the investigation bodies.
- The sentence adaptability as per Indian laws should be decided. The Central Government does it in consideration of The Repatriation of Prisoners Act, 2003, and the guidelines provided by the Ministry of Home Affairs. An act or omission can be an offence in a foreign country, but it might not be a crime in India.
- The Central Government is expected to coordinate with the foreign country and its authorities for the transfer of prisoners inside and outside India.
Indian prisoners convicted in a foreign court
Minister of External Affairs, V. Muraleedharan stated that as per the information which is available to the Ministry, there are approximately 8,189 Indian prisoners are in the foreign jails, also including undertrials. Saudi Arabia has the highest number of Indian prisoners, i.e., 1811. However, below mentioned are certain cases that talk about Indians convicted and sentenced by the judicial system of a foreign country:
- Anup Chetia: Anup Chetia is the general secretary and one of the founding members of the United Liberation Front of Assam (ULFA). Authorities arrested him in Dhaka in 1997. The charges against him are illegally staying in that country, possessing fake passports and foreign currency. Due to the efforts of the Indian Government, he was returned to India by the Bangladesh Government in 2015, after serving his sentence for 18 years in prison.
- Gurmeet Singh Dhinsa: Gurmeet Singh Dhinsa is an Indian American and a former gas station magnate. He was arrested in 1997, and in the trial in, United States of America v. Gurmeet Singh Dhinsa, 243 F. 3d 635 (2d Cir. 2001), he was found guilty on the grounds of racketeering, murder, conspiracy to murder, attempt to murder, kidnapping and witness intimidation. The jury found him guilty and sentenced to life imprisonment without the possibility of parole and was also held liable to pay compensation to the victim’s family and the government. Currently, he is serving his sentence in federal prison.
- Parminder Singh Saini: Parminder Singh Saini hijacked Srinagar-Delhi flight to Lahore on 6th July 1984 with 255 passengers. After a trial in Pakistan, he was sentenced to death by a Lahore court, but it later changed to life imprisonment, and he was released after ten years. In 1995 he illegally entered Canada under the false identity of Balbir Singh with fake passports.
- Rakesh Saxena: Rakesh Saxena is an Indian financier and trader. In 1990 he was accused of embezzling a large sum of money from his work as a treasury advisor in Bangkok Bank of Commerce. In 1996 Thailand authorities charged Rakesh Saxena with embezzling money. The Royal Canadian Mountain Police arrested him in 1996 on the decree of the Thai police.
- Kulbhusan Jadav: Kulbhusan Jadav is an Indian national and retired navy officer who was arrested in the Pakistan Province of Balochistan on charges of terrorism and espionage. India approached the International Court of Justice when Pakistan denied consular access to Kulbhusan Jadav. As it is violative under the Vienna Convention on Consular Relations, 1963.
- Sarabjit Singh: Sarbjit Singh was an Indian farmer. He was convicted in 1990 by Pakistani officials for crossing borders and planting bombs, which killed 14 people in eastern Pakistan’s Punjab province. In his trial, he said before the court that he had crossed the borders mistakenly three months after the explosion. But the court found him guilty and sentenced him life imprisonment. He passed away in 2013 due to a mass attack on him in Central Jail Lahore.
Condition in India
The Repatriation of Prisoners Act, 2003 came into force on 1st January 2004. The Act is divided into two parts containing 16 sections. The first part of the act deals with the transfer of sentenced foreign national prisoners who are serving their sentences in an Indian prison, and the second part deals with the transfer of sentenced Indian nationals into India to serve their remaining sentence in an Indian prison. The Act lays down detailed provisions for eligibility of transfer, the transfer process, custody of the prisoner, etc.
The Act plays a significant role in India as every year; there are considerable inflow and outflow from prisons annually by workers, students, stateless persons, etc. The Minister of State for External Affairs stated that there are as many as 8,189 convicted Indians in countries around the globe. Data on detentions from India’s National Crime Records Bureau showed that at the end of 2015, there were approximately 6,185 foreign national prisoners in Indian prisons, and 66% of them were from Bangladesh alone.
Indian government has taken steps for the transfer of foreign national prisoners under this Act by developing a Standard Draft Agreement and signing 30 bilateral transfer agreements and entering into transfer agreements with signatories of the Inter-American Convention on serving criminal sentences abroad and the Council of Europe’s Convention on the transfer of sentenced persons. This Act of the Indian government brings 50 countries under a cooperative justice structure. Despite all the efforts, only 63 of 171 prisoner applicants have been transferred to India from 2003 to 2018, indicating the need for the proper administration of The Repatriation of Prisoners Act, 2003, to yield fruitful results.
The international obligations and legal framework of The Repatriation of Prisoners Act, 2003 is a step taken forward for protecting the rights of prisoners in foreign jails. Yet, the majority of the foreign prisoners remain oblivious to this right, and others find it difficult to attain due to several prevailing circumstances. Governments should educate and spread awareness among the citizens and prisoners about the availability of this right. There various advantages of repatriation such as:
- The prisoner will have the psychological satisfaction of being in the home country amongst familiar circumstances.
- It will reduce the cost of both the states, the convicting foreign state would not have to pay for the housing expenses, and the home country will be freed from paying consular services.
The Act states detailed provisions for the application, which is to be submitted to the Central Government, consideration of the request by Central Government, issuance of warrant, operation of warrant and retaining a prisoner, transfer of Indian prisoners from foreign states, etc. Apart from this, it also grants power to the Central Government to make rules for the purpose of the proper administration of the Act.
However, in order to successfully achieve the objective of the Act, it is essential to maintain amicable inter-governmental relations and the use of diplomatic channels by the concerned state to seek transfer of their prisoners. Judicial activism and legal aid societies should promote and encourage this human right granted to the prisoners. Although this Act is a necessary measure taken by the Indian legislature in protecting the rights of the prisoners to return to their home country, it requires a lot of changes to deliver expected results.
In the roundtable discussion on Repatriation of Indian Nationals in foreign prisons, it was recognized that the act faces a lot of challenges that hinder the required execution. The challenges faced are:
- The Act does not specify the sentence of those prisoners which are not adaptable.
- Often incomplete and improper applications are received by the Central Government, and it takes a long process to reach the correct application status, thereby delaying the transfer of prisoners.
- The government usually takes more time where nationality cannot be verified through the passport portal. Therefore it has to be conducted through the Nationality Verification Portal, Regional Passport Office, and the physical verification by state or district police. Nationality verification must be completed before the Ministry of Home Affairs considers it.
- There is hardly any opportunity for appeal against adapted sentences as a result of which prisoners have gone to court in aggravation of sentence.
- The case details from foreign countries reveal that applications supported by numerous affidavits get delayed by the process in India. In several cases, it has taken more than four years to get to the stage of the no objection certificate from the state.
- There is the unavailability of data due to negligence in adequately recording the proper documents concerning the prisoner. The absence of an updated database unnecessarily delays the transfer.
- The funds allotted for the transfer of prisoners go unutilized due to incompetent and obscure transfer mechanisms.
- Due to lack of trust and amicable relationship between India and neighboring countries such as Pakistan and Bangladesh, several people who have mistakenly crossed the border have been convicted and sentenced.
To avoid the issues and challenges faced while implementing the provisions of the Act, specific measures should be undertaken by the Central Government.
- There should be proper data collection about the nature and status of Indian prisoners abroad. Further provisions for precise regulatory surveys should be incorporated regarding the benefits and barriers of the return of the prisoner to India.
- Competent staff should be hired, and their functioning should be monitored to guarantee the transfer of prisoners without delay.
- The Act should lay down methods for proper utilization of the funds allotted for the repatriation of prisoners.
- Proper applications must be submitted to the Central Government without unnecessary delay.
- The strength and capacity of every Indian mission to provide consular and legal assistance to Indian prisoners in foreign jails should be assessed.
- It is also vital to improve prison conditions in Indian prisons in accordance with humanitarian standards.
The Repatriation of Prisoners Act, 2003, has been a crucial piece of Indian legislation in solving numerous existing issues. The Act is a critical element in protecting the rights of the prisoners. It has laid down provisions for submitting an application of transfer to the Central Government, consideration of the request by the Central Government, warrant for transfer, transfer into India, etc. These provisions help in administering the objective of the Act. Notably, the Central Government has taken concrete steps in executing the provisions of the Act and peacefully transferring prisoners. Despite all the efforts, there are certain shortcomings of the Act which has failed to yield fruitful results in transferring prisoners, hence suggesting the need for modification and implementation of appropriate regulations. The Act is beneficial for India as it helps to cut back on the housing expenses of foreign national prisoners, and it can also save the cost of providing consular services abroad by bringing by Indian prisoners. The Act portrays the humanitarian standards of living, which are to be granted to every prisoner.
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