Human Rights Issues

Coming home to jail: on the Repatriation of Prisoners Act, 2003IOCRop-ed snapPriority 1


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Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: International Covenant on Civil and Political Rights, The Vienna Convention on Consular Relations, 1963, UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners 1985, Inter-American Convention on Serving Criminal Sentences Abroad, Council of Europe’s Convention on the Transfer of Sentenced Persons, Repatriation of Prisoners Act 2003

Mains level: Repatriation status of Indian nationals in various countries and mechanism available for it


Context

Problems faced in the repatriation of Indian nationals

  1. Two cases of repatriation of Indian nationals, the first being 52-year-old Ismail Samma of Gujarat, and the second, of a sick 21-year-old, Jetendaera Arjanwara of Madhya Pradesh, highlights the tribulations of being imprisoned in a foreign prison
  2. Ismail’s imprisonment in Karachi, Pakistan, came to light last January after being given up for dead for nine years by his family
  3. Jetendaera’s case became known in May after five years of detention
  4. Both men had accidentally crossed the border with Pakistan and were sentenced for illegal entry
  5. They were detained well past their terms as a result of delayed consular attention and nationality verification

Global conventions related to repatriation

  1. The right to return to one’s home country is assured under Article 12(4) of the International Covenant on Civil and Political Rights
  2. The Vienna Convention on Consular Relations, 1963, provides for information to consulate, consular protection and consultation upon arrest, detention and during trial in a foreign country including entitlement to travel documents
  3. Similarly, the UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners 1985, lays emphasis on the social rehabilitation of foreign prisoners through early repatriation to their home countries to serve their remaining sentence
  4. The legacy of transfer of sentenced prisoners lies in the post-war humanitarian exchange of prisoners of war and in two UN Conventions of 2004 (against transnational organised crime and against corruption) which have laid emphasis on the issue of inter-country transfer of prisoners
  5. Both anticipate, under Articles 17 and 45, respectively, that state parties may consider entering into bilateral or multilateral agreements for transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for completion of their sentences

Repatriation of Prisoners Act

  1. In consonance with these international humanitarian commitments, most countries have legislated on a Repatriation of Prisoners Act
  2. The transfer framework under the Act is premised on the principles that an offence committed abroad is also an offence in the home country and the sentence implemented upon transfer shall not be aggravated
  3. India legislated its Repatriation of Prisoners Act in 2003, which came into force on January 1, 2004
  4. The first part deals with the transfer of sentenced foreign national prisoners from India, while the second deals with the transfer of sentenced Indian nationals into India
  5. It explains the eligibility for transfer, the transfer process and obligations upon the transferring and receiving states with regard to consent, communication and custody of a prisoner
  6. Every sentenced foreign prisoner in an Indian prison and every Indian national in a prison abroad is technically eligible for repatriation to a prison in their home country under these conditions:
  • they are willing
  • have no pending appeals
  • the offence is not an offence under military law
  • the sentence is not a death sentence
  • they have at least six months of their sentence still left to serve, and
  • their transfer has the consent of both treaty countries

Importance of act for India

  1. The Act is significant for India which sees considerable outflow and inflow annually by blue- and white-collar workers, fishermen, students, stateless persons and other groups
  2. Several come into conflict with the law
  3. More than 2,095 Indian nationals (2017) were known to be sentenced abroad
  4. They would be eligible for repatriation subject to nationality verification

Implementation by India

  1. India has taken steps for reciprocal transfers under the Act
  2. It has developed a Standard Draft Agreement and signed 30 bilateral transfer agreements
  3. It also entered into transfer arrangements 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

Status of repatriation

  1. Between 2003 and March 2018, only 63 of 171 prisoner applicants abroad have been transferred to India

Way Forward

  1. Effecting transfers under the Repatriation of Prisoners Act presents a win-win situation for India as it need not spend unduly on the housing of foreign national prisoners
  2. It can also save the cost of providing consular services abroad by bringing back Indian prisoners
  3. It can simultaneously satisfy the public expectation of bringing nationals home and the meeting of international humanitarian commitments

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