Repatriation of the Prisoners Act: Protecting the Rights of Prisoners

Regardless of one’s status as an offender, every individual has inherent rights that should not be infringed upon. Repatriation involves returning a convicted offender of a foreign country to the home country and is a fundamental human right.

In India, the Repatriation of Prisoners Act 2003 deals with repatriation. The Act aims to bring back Indian prisoners from other countries to India or send foreign prisoners from India to other countries to encourage offenders to undergo reformation in a location close to their families.

Repatriation of Prisoners Act, 2003

The Repatriation Act is a legislation allowing foreign prisoners from India to be sent back to their nation and receiving Indian prisoners back from other countries. Under this Act, the prisoners complete their sentence in their nation rather than the place of conviction and original imprisonment.

The Repatriation Act was a result of various international Human rights conventions. The Act allows prisoners of some specific crimes to serve their sentence in their own country.

Difference Between Repatriation and Extradition

Repatriation differs from extradition. Repatriation only deals with receiving and sending prisoners from foreign nations to their own countries to complete their sentences. Repatriation enables convicts serving their sentence in one nation to complete it in their own nation. Countries exercise discretion in opting for repatriation, and agreements between countries regulate the process.

Extradition involves ‘handing over’ an accused to another country but with jurisdiction of the requesting country. Multilateral and bilateral treaties enable the extradition process.

Thus, although repatriation allows a convict to complete their sentence in their home country, extradition enables the transfer of an accused to be subjected to law.

In repatriation, the sentence imposed by a court on a foreign convict usually stays the same after returning to their home country. Therefore, the location of serving the sentence changes but not its duration.

Repatriation of Prisoners: Necessity

Repatriation is an essential facet of human rights as it protects the right of individuals to return to their nation, even if they are convicts and serving sentences in another nation. This is a crucial method of developing and maintaining friendly relations with other countries.

Individuals convicted abroad are subjected to cruelty only because they do not have the same rights as their citizens. The sentence, along with differences in ethnicity and culture, considerably affects the mental and physical well-being of a prisoner. Occasionally, a prisoner may have health concerns such as pregnancy or diseases limiting their physical and mental capacity to serve a sentence in a foreign land.

Characteristics of the Repatriation of Prisoners Act

Repatriation is a unique legislation with several provisions in accordance with various international conventions on the transfer of prisoners.

• Repatriation has specific sections that provide for the transfer of aforementioned prisoners. Indians convicted in foreign nations can complete their imprisonment in India. Section 4 of the Act provides for the right of Indians convicted in places other than India to complete their sentence in India.
• The Act reflects the role of repatriation in international relations and defines a ‘contracting state’ as other nations’ governments with which the Indian government has agreed a treaty to transfer prisoners from the contracting state and vice versa.
• Under the Repatriation Act, the Indian government does not initiate the repatriation process, but the prisoner must apply to be repatriated.
• The central government can issue warrants for the transfer of prisoners on receiving their application.
• The Act also addresses the possibility of a prisoner escaping during the transfer.
• An escaped prisoner is held accountable for committing an offense under Section 224 of the Indian Penal Code and will have to serve imprisonment in India if the prisoner has not been delivered under Section 8 of the Act.
• The Repatriation Act permits the central government to make provisions consistent with the Act in case of any ‘difficulties’ while applying its provisions for transferring prisoners to and from India.
• Although the Act lays down a considerably broad framework for allowing the transfer of prisoners, it does not provide for implementing the provisions of the Act. Thus, under Section 14, the Act allows the central government to make any rules necessary to implement the requirements of the Act.
• For example, the central government can make rules on application filing procedures, warrant issues, among others.

The Repatriation of Prisoners Act, 2003: Substantial Provisions

Section 3 of the Repatriation Act provides for applying the Act in places other than India. Under this section, the central government can extend the application of this Act in places other than India.

The government can declare the application of the Act in a foreign territory by publishing a notification in the Official Gazette. If the Indian government has a repatriation agreement with another nation, then the ‘full text’ of the agreement should be provided in the notification. The information will be in force as long as the contract exists.

Furthermore, the central government can change the provisions of the Act if it thinks it is necessary to follow an international agreement. This modification, or any other stipulation, can be issued as a notification in the Gazette.

1. Repatriation Process: Transfer of Foreign Prisoners From India

   The following is the process of transferring foreign prisoners from India to their own countries:

   Application By Prisoner

   A contracting state’s citizen imprisoned in India can apply to the central government requesting their transfer from India to their country.

   However, in case the prisoner is not in a state to apply for transfer due to physical or mental distress or other circumstances, the central government must order the officer-in-charge of the prison where the individual is serving a sentence to obtain the necessary information to transfer the individual.

   Examination Before Forwarding the Application

   On receiving the necessary information, the central government examines the following :

   1. In case of a pending inquiry, trial, or any other proceeding against the prisoner
   2. Whether the death penalty is awarded to the prisoner
   3. If the prisoner is convicted of an offence under military law

   Forwarding the Application to the Contracting State

   In addition to the aforementioned conditions, if the government is satisfied that transferring the prisoner to the contracting state is not prejudicial to the sovereignty, security, or other national interest of India, it must pass an order to forward the application of the prisoner to the contracting state.

   The application must have the following information:

   1. A copy of the judgement and a copy of relevant legal provisions for imprisoning the individual
   2. The nature, time period, and date of beginning of the imprisonment
   3. Medical reports or reports on other information and character certification if they are necessary to dispose of the application or to determine the nature of imprisonment.
   4. Any other information that the central government considers necessary.

   Acceptance of Contracting State

   If the contracting state accepts the application, the central government can request the contracting state information to help determine whether to transfer the prisoner. The information may include:

   1. Proof of prisoner’s citizenship in the contracting state in the form of a statement.
   2. Copy of legal provisions of the contracting state under which the Act or omission is an offence with respect to the sentence passed in India and if it is an offence under their law.
   3. A statement of fact, law, or regulation on the time span of sentence of the prisoner in the contracting state after transfer.
   4. Contracting a state’s willingness to accept the transfer.
   5. Undertaking to follow the conditions imposed by the central government, if any.
   6. Any other information the central government deems necessary.

   Warrant

   If the Indian government receives communication from the contracting state showing its willingness to accept the transfer, then the Indian government can issue a warrant under Section 8 of the Act.

   • The central government nominates an officer (who holds the rank of Joint Secretary to the State Government or above) with jurisdiction over the region where the individual is imprisoned.
   • The designated officer can issue a warrant and direct an officer in charge of the prison to hand over the prisoner to an authorised officer of the contracting state. After issuing the warrant, the prison incharge should follow up on the warrant and obtain the signature of the individual to whom the prisoner is delivered along with their records.
   • When the prisoner is handed over to the authorised officer of the other country, the prison incharge is duty bound to send the warrant copy and statement of delivery of the prisoner to the designated foreign officer to the court that convicted the prisoner initially.
   • Under Section 9, the authorised officer of the contracting state can take custody of a prisoner delivered. Additionally, it allows any individual to arrest an escaped prisoner without a warrant. When a prisoner is shifted to the contracting state and flees from custody in Indian territory, the escaped prisoner can be arrested without a warrant and handed him over to local police.

   Sending Prisoner’s Record to Contracting State

   The central government transfers the records and proceedings against the prisoner to the contracting state.

2. Repatriation Process: Transfer of Indian Prisoners From Other Countries to India

   The central government has the power to accept the transfer of prisoners with Indian citizenship into the country. The Indian government and the other country must agree about transferring the prisoner convicted by the other country.

   • The central and state governments must determine the prison and the officer who receives the prisoner.
   • The central government should authorise an officer (at least ranked as joint secretary to the government) to issue a warrant. Such an officer must take the prisoner into custody as per the warrant. In case the prisoner escapes, Section 9 of the Act applies, and any person arrested in such a manner is punishable under Section 224 of the IPC.

   The warrant issued in such cases must have the following information:

   1. Statement of transfer of the prisoner into India from another country.
   2. The period of imprisonment of the transferred individual per the agreement between India and another country.
   3. Nature of imprisonment of the prisoner in India.
   4. Any other information the central government thinks is relevant.

   The Central Government determines imprisonment based on the provisions of the Repatriation Act and guidelines issued by the Home Affairs Ministry because an act or omission that qualifies as a crime in another country may not be an offence in India.

Conclusion

The Repatriation Act is an extensive law that provides an overview of the process for transferring prisoners. These provisions help in protecting the human rights of the prisoners.

Although the act protects human rights, it has some drawbacks that should be addressed by the judiciary and legislative body. These drawbacks include inadequate clarity concerning ‘serving a sentence, delay in the transfer process, etc’. The Indian government must address such issues to ensure human rights protection.