NEW DELHI:Though prison is a state subject under list II of the 7th Schedule of the Constitution, the Centre plays a key role in repatriation of foreigner prisoners. Mrinal Sharma, who works with Prison Reform Programme of the Commonwealth Human Rights Initiative (CHRI), said that lack of efficient coordination between State Home Departments, Ministry of Home Affairs (MHA) and Ministry of External Affairs (MEA) has been another reason for the delay in repatriation of foreign prisoners who have already completed their sentence.
Mrinal cited a recent incident of Afghan national, Khan Zaman, who was set to be released on December 24 last year, but it took another three-and-a-half months with the efforts of her organisation to complete the process because of involvement of multiple stakeholders and lack of clear guidelines to deal with such cases. She said even after the formalities by MEA were completed for the release, various other clearances and issues like who will pay for the tickets, issue of providing police escort to the airport etc contributed to the delay.
“There have to be guidelines on paper which clearly define the roles of each agency for handling such cases with timelines allotted to each of this step. Recently, MHA took the initiative to frame guidelines for transfer of foreign prisoners who are undergoing sentence but no clear guidelines for the repatriation of those who already completed their sentence have been issued,” she said further, adding that government needs to set certain standard timelines to establish the identity of prisoners who are suffering from mental illnesses and thus rendered stateless.
There were 631 prisoners lodged in the Correctional Homes of West Bengal till May 1, 2015, who had completed their sentence but were still lodged in jails, also known as ‘Jankhalaash’. These prisoners are mostly Bangladeshis and Rohingyas. Sources in the government said the process will be made more transparent by identifying the bottlenecks and addressing the concerns related to communication gap between the Centre and state.
Abdul Sharif was arrested under Section 14 of the Foreigners Act and Sections 3, 34 and 20 of the Indian Passport Act by the Border Security Force at Gharinda, Punjab, on April 14, 1997. He was prosecuted, sentenced and sent to Amritsar Central Jail in Punjab. Sharif completed his sentence on July 17 the same year, after which he was transferred to the Transit Camp which adjoins the jail premises. Sharif claimed to be a national of Zabol, Pakistan, at the time of admission. The Pakistan High Commission, however, ruled out the possibility after granting him consular access. He later claimed to be a national of Zabol, Iran; that too was ruled out after the Embassy of Iran rejected the claim after providing him consular access. Zabol is a province that forms part of both Iran and Pakistan, making it a border area. Stateless Sharif has been incarcerated for the past 18 years and the isolation affected him ruthlessly, rendering him schizophrenic.
Earlier this year, India had contacted Bangladesh to repatriate Gholam Rabbani, a 16-year-old boy who strayed into Indian territory and was arrested under Section 14 of the Foreigners Act and kept in an Observation Home at Jalpaiguri for two years beyond the completion of his sentence.
Last week, Home Minister Rajnath Singh drew the attention of legal luminaries and rights experts to the plight of prisoners overstaying in jails. Among the foreigners under trial, the MHA says, 2,101 are stranded in West Bengal, 615 in Maharashtra and 347 in Tamil Nadu.
Apart from 4,353 foreigners under trial, there are 2,353 foreigners convicted under the law of the land. But a majority of the cases are related to violation of the Foreigners Act, which is invoked in cases where a foreigner stayed back beyond the validity of visa, thus violating the Registration of Foreigners Act. Of 2,353 convicted foreigners, around 2,060 were charged under Registration of Foreigners Act and maximum 988 cases were reported from West Bengal.
The maximum punishment under Section 14 of the Foreigners Act for an offence punishable for contravention of Section 3 is imprisonment for five years and that of Section 3 of the Passport Act is six months. An MHA official citing past cases pointed out that after the accused plead guilty in such cases, the sentence is often reduced to just one year.
But the distressing fact is that many arrested under the Foreigners Act are still waiting for trial to commence for the past several years.
There are 32 cases in Rajasthan where prisoners from Tanzania, Afghanistan, Bangladesh, Pakistan, South Africa and Cameroon are still awaiting the justice which includes cases related to violation of the Foreigners Act.
A senior official said the home minister has asked the states for setting up fast-track courts for time-bound delivery of justice and also to ensure creation of model prison where prisoners awaiting repatriation are provided separate accommodation and not kept with those serving the sentence.
6,290 Indians Forgotten in 72 Foreign Jails
It is not just foreign prisoners in India who are left stateless but even Indians lodged in foreign prisons are facing a similar situation. Three Indian prisoners lodged in Bangladesh jails are still awaiting repatriation despite the completion of their sentence almost two years back. Similarly, the home ministry is in the process of establishing identity of 17 Indian prisoners lodged in Pakistani jails to bring them home. India has signed bilateral agreement for transfer of sentenced persons with 25 countries. However, the repatriation of those languishing in jails even after completion of sentence remains a major worry.
Details updated till April 2015 reveal that in total, 46 Indian prisoners have been repatriated to India, including three from the UK, 14 from Mauritius and 29 from Sri Lanka. Ten foreign prisoners have been repatriated to their respective countries, which include six UK nationals, one from France, one each from Israel, Germany and the UAE to serve the remainder of their sentences. However, 6,290 Indian nationals are detained in 72 countries with maximum 1,508 in Saudi Arabia, 785 in the UAE, 437 in the UK and 291 in the US.
There is a ray of hope for repatriation of foreign prisoners in West Bengal as Mrinal, citing an RTI response, said that overstaying of Bangladeshi prisoners has reduced in the past few years from 12 months to approximately four months, which is the result of monthly coordination meeting that has started taking place as a measure to monitor the repatriation. The RTI reply reveals that 656 Bangladeshi prisoners have been repatriated till March 2015.
In West Bengal, the monthly meeting is convened by Joint Secretary, Home (Foreigners Division) and the state government. It is held in the presence of senior officers of home ministry intelligence agencies, Border Security Force, West Bengal Correctional Services and Deputy High Commission for Bangladesh.