The rationale behind Repatriation lies in the intrinsic responsibility of every state to rehabilitate criminals.

By Arjun Dewan and Arjun Mukherjee

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones” Nelson Mandela.

What is the Repatriation of Prisoners?

Crimes are committed every day in almost every country. Most by citizens but some by foreigners. When a foreign national is arrested for a crime, they are churned through the criminal justice system of that country. If convicted, they may face lengthy prison sentences. Repatriation is the transfer of a convicted prisoner from the country which imposed the sentence [sentencing state] to the home country of the prisoner, under a bilateral or multilateral arrangement. Once transferred to their home country, they serve out the original prison sentence, under the administration of the home country [administering state].

The rationale behind Repatriation lies in the intrinsic responsibility of every state to rehabilitate criminals. The psychological effects of imprisonment in a foreign land with unfamiliar surroundings are undoubtedly severe and have the potential to be excessively punitive. This would, in turn, obliterate the chances of future reformation and social integration of a prisoner. Whereas familiarity of language, culture and proximity to family significantly help in rehabilitating, prisoner.

Legal Framework

Recognizing the advantages of Repatriation of prisoners, the need arose to set up a legal framework to ensure fair and humane treatment of arrested foreign nationals and to enable the subsequent transfer, back to their home counties. Thus numerous International conventions were drawn up from time to time incorporating the rights of such foreign prisoners and the corresponding obligations on contracting states. For example, Article 36 of The Vienna Convention on Consular Relations, 1963 obliges a contracting state arresting a foreign national, to immediately intimate their arrest to the consulate of the concerned country. It also obliges the contracting state to provide consular access to the arrested prisoner. The Right to leave a country and enter one’s own, albeit within the legal structure has been recognized as far back as 1966 through Article 12(2) and 12(4) of The International Covenant on Civil and Political Rights. TheUnited Nations Convention against Transnational Organized Crime, 2000 in Article 17directs contracting states to consider entering into bilateral or multilateral treaties for transfer of prisoners to facilitate Repatriation. Article 45 of The United Nations Convention against Corruption, 2003 also embodies an identical provision.

In India, The Repatriation of Prisoners Act, 2003 was legislation introduced to facilitate the transfer of foreigners lodged in Indian prisons back to their home countries. The Act also provides for the reception of Indian citizens imprisoned abroad back into India. Section 4 of the Act empowers a foreign prisoner in India to make an application to the Central Government for transfer of their custody to their home country. Section 5 lists out the criteria for Repatriation of a foreign prisoner to their home country, namely (a) no inquiry, trial or any proceedings are pending against the prisoner; (b) a death penalty has not been awarded; (c) the conviction of the prisoner is not under any military law; and (d) such transfer shall not be prejudicial to the sovereignty, security or any other interest of India. If the foreign prisoner fulfils these conditions, the Central Government shall forward the application of the prisoner to the contracting state for further processing. It is to be noted that the legislature has consciously used the word ‘shall’ which leaves little or no room for discretion once the conditions are met. This surely is an indicator of the intent behind the legislation, that such requests shall be encouraged. Section 12 of the Act enables the Central Government to accept Indian citizens imprisoned abroad back into India under the same bilateral or multilateral arrangements.

The prerequisite for the application of the Repatriation of Prisoners Act, 2003 is the existence and ratification of a valid bilateral or multilateral agreement with a contracting state. As per the details published by the Ministry of External Affairs, India has periodically entered into bilateral agreements with 31 countries since 2005for transfer of prisoners. India has also ratified two multilateral treaties being the ‘Inter-American Convention on Serving Criminal Sentences Abroad’ and the ‘Council of Europe Convention on Transfer of Sentenced Persons’ in 2014 and 2018 respectively. These conventions list out binding rights and obligations of a contracting state in relation to the transfer of prisoners. Thus The Repatriation of Prisoners Act, 2003in conjunction with the abovementioned agreements provides a comprehensive framework to enable and implement the transfer of prisoners and to meet India’s international obligations.

Overcrowded prisons in India

Poor conditions and overcrowding in Indian Prisons have been persistent problems which are yet to be sufficiently addressed. Primary reasons include arbitrary arrests, lack of infrastructure and insufficient rehabilitation mechanisms. Increasing legislation reversing the burden of proof as well as an overwhelmed judiciary is perhaps equally responsible, which seems to progressively deviate from the cardinal principle- ‘Bail is the Rule, Jail is the exception’. Traditionally, prisons were meant to lodge criminal convicted of offences to serve out their sentences. However, alarming figures published by The National Crime Records Bureau, MHA in a report titled ‘Prison Statistics India, 2018’ show a rather imbalanced system. According to the report, as of 2018, India had a total of 1339 prisons with a combined capacity of 3,96,223 prisoners. The actual number lodged across Indian prisons was 4,66,084, including 19,242 female prisoners. This translates to an average occupancy of 117.6%. States like Uttar Pradesh, Sikkim and Delhi have reported the highest occupancy rates at 176.5%, 157.3% and 154.3% respectively. Of the total number, only 1,39,488 [29.9%] prisoners in prisons were actually convicted of offences whereas 69.4% were awaiting trial. The sheer number of under-trial prisoners reflects a somewhat broken criminal justice system where the presumption of innocence and the fundamental right to liberty seems nothing more than plain text.

Adding to an already overloaded prison system, foreign nationals when arrested in India often faces additional hurdles in access to justice. Common barriers being the denial of consular access, refusal of bail due to lack of sureties and continued incarceration post-sentence on account of lack of nationality verification and travel documents. Additionally, lack of resources and non-familiarity of language and procedure collectively and routinely result in delayed justice. According to NCRB, a total of 5,168 foreign prisoners were lodged in Indian Prisons as of 2018 consisting of 4,381 males and 787 females.Among them, 2,108 [40.8%] were convicts, 2,611 [50.5%] were under trials and 43 [0.8%] were detenues. In cases of foreign prisoners, additional hurdles deter their release during the pendency of trial as a very large number of foreigners are prosecuted for violation of immigration laws and because some of them have no valid visas, their release becomes even more difficult.

A report published by the Commonwealth Human Rights Initiative in 2019 titled ‘Strangers to Justice’ provides vital details on foreigners in Indian Prisons. As per the report, a staggering 65% of all foreign prisoners are citizens of Bangladesh whereas about 522 foreign prisoners have undetermined nationalities. Only 22% of foreign prisoners in India are presently awaiting Repatriation and a mere 5.7% of all foreign prisoners were provided consular access.

(Lack of) Implementation of Repatriation and the way forward

With International obligations and a legal framework in place, the only step remaining is the actual implementation oftransfer of foreign prisoners. Underthe Indian Act, a foreign prisoner has been accorded the right to initiate the Repatriation process but nosuch duty has been imposed on the sentencing state. A majority of the foreign prisoners remain oblivious to this right and others find it challenging to assert due to several circumstances. Governments across the world need to be more proactive in encouraging and promoting the exercise of this right, and spreading awarenesswould certainly be a start.

The advantages of Repatriation are clearlyrecognizable. Firstly, a prisoner is permitted the psychological comfort of being in their home country, which has substantial mental and emotional benefits. Secondly, from the point of view of asentencing state, the criminalis still punished by imprisonment, however at a reduced cost to the sentencing state.Lastly, the administering state benefits from receiving a citizen who is gradually reformed and rehabilitated through a more familiar process, thus enabling better and faster re-integration into society.

Even though no direct obligation is caston India to actively repatriate foreign prisoners, we could certainly do more in order to decongest our prisons and provide better rehabilitation by proactively taking steps to invite such applications from foreign prisoners. Inter-governmental cooperation and the use of diplomatic channels by concerned states ought to be utilized to promote and seek transfer of their prisoners. Judicial activism and legal aid societies should be used to periodically provide forums in prisons to promote and encourage the exercise of this invaluable and humane right, as even criminals deserve to be closer to home. The words of Mandela, quoted earlier, are not just words but rather a yardstick to judge a nation. Though India has always been globally recognised as a country where liberty is safeguarded and highly cherished, in the case of foreign prisoners, there is a lot more to be achieved.

(The authors are Advocates, Delhi High Court. Views expressed are personal.)