Repatriation of Prisoners from a Foreign State to India

INTRODUCTION

 

Today, I will talk about the case of Union of India & Anr. v. Shaikh Istiyaq Ahmed & Ors., Criminal Appeal No. 71 of 2022, wherein the Hon’ble Supreme Court discussed the Repatriation of Prisoners Act, 2003, that deals with the detention of foreign prisoners in India and the Indian prisoners detained in foreign countries.

 

In this regard, the country that convicts the prisoner is generally termed as the Transferring State or Contracting State and the country seeking repatriation of the prisoner is termed as the Receiving State.

 

SCHEME OF THE REPATRIATION OF PRISONERS ACT

 

Basically, the object of the Repatriation of Prisoners Act, 2003, “is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation.” The Act also provides that the enforcement of the penal sentence is to be governed by the Law of the Receiving State, but the Receiving State shall be bound by the nature and duration of the sentence as determined by the Transferring State.

 

Further, S. 12 of the Repatriation of Prisoners Act stipulates that “the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions.” According to the Court, “the Section enables the Government to issue a warrant to detain the prisoner…. if the Government decides to accept the transfer of a Prisoner.” In this regard, India has also entered into various agreements with different countries in relation to repatriation of prisoners.

 

IMPORTANT PRINCIPLES LAID DOWN

 

In the present case, the Court was concerned with repatriation of an Indian citizen who was convicted by the Supreme Court of Mauritius for possession of drugs and was sentenced to imprisonment for 26 years. In this light, various principles were culled out by the Hon’ble Supreme Court of India in relation to repatriation of prisoners from a foreign state to India that are as follows: -

 

a. “Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India.”

 

b. “The sentence imposed by the transferring State shall be binding on the receiving State i.e., India.”

 

c. “On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with” Section 13 of the Repatriation of Prisoners Act.

 

d. Such warrant shall provide for the nature and duration of imprisonment of prisoner.

 

e. “The imprisonment of the transferred prisoner shall be in accordance with the warrant.”

 

f. Where it seems to the Government that the sentence imposed is incompatible with the Indian Laws, the Government may adapt a different sentence provided for a similar offence.

 

g. Such adapted sentence must correspond with the sentence imposed by the contracting state, as far as possible.

 

Thus, the above-stated principles are to be kept in mind while repatriating Indian citizens from prisons of foreign states. I hope that such principles are clear by now.