Excerpts from “Strangers to Justice: A Report on Foreigners in Indian Prisons”, authored by Palak Chaudhari and Madhurima Dhanuka of the Commonwealth Human Rights Initiative (CHRI), an independent, non-profit, non-partisan, international non-governmental organization:
The report is based on responses received to Right to Information (RTI) requests CHRI sent to all state prison departments between 12 and 18 January, 2018. We received 26 concrete responses; some states and union territories did not respond even after follow up requests, while others responded partially. The remaining rejected the information request on grounds of national security and other procedural reasons.
The entry, stay, and removal of foreigners in India is governed by the Foreigners Act 1946, the Passport (Entry into India) Act 1920, the Foreigners Order 1948, the Foreigner (Tribunals) Order 196414, the Citizenship Act 1955, the Citizenship (Registration of Citizen & Issue of National Identity Cards) Rules, 2003, the Citizenship Rules, 2009, Foreigner’s Tribunal and Illegal Migrants (Determination Tribunals) 1979 and the Repatriation of Prisoners Act 2003.
As per the data, there are 3908 foreign nationals confined in prisons across India. Of these 1647 are undertrials, 1377 are convicts while an astonishing 871 are reported to be awaiting repatriation. These refer to those foreign nationals who have completed their terms of sentence, yet remain in prison pending the repatriation process.
Another glaring fact is that 522 of these prisoners are categorised as ‘persons whose nationality is not provided’, essentially meaning that they do not belong to any country. The remaining others belong to 58 countries. The figures on consular access were even more disturbing, with only 5.7% of the total population having received consular access i.e. 222 out of the 3908. Among these only 83 of the 1657 undertrials had ever received consular access, which amounts to a mere 5%.
Among these 1657 under trial prisoners, 38.5% (638) were charged under Foreigners act/ Foreigners Registration Act or Passport Act alone, whereas those charged under other penal laws such as Indian Penal Code, The Narcotic Drugs and Psychotropic Substances Act, 1985 etc. were 444, and those charged with both offences were 361.
Very few state police manuals contain provisions that obligate the police to inform the concerned embassy of the arrest of their national, so as to ensure prompt consular access. The Model Police Manual prepared by the Bureau of Police Research and Development, Ministry of Home Affairs, contains an entire chapter on foreigners. Rule 565 provides that:
“When foreign nationals are arrested on major criminal or civil charges, it is possible that the Foreign Diplomatic/Consular Missions in India may wish to assist the nationals of their countries in regard to their defence before a court of law and/or take such other action, as they may deem appropriate in accordance with diplomatic practice. Therefore, as soon as a foreign national (including Pakistan national) is arrested in a major crime, the fact, with a brief description of the offence should be brought to the notice of the Ministry of External Affairs through the State Government by the DGP/CP concerned. Government of India, who decides about the necessary action, should bring these cases to the notice of the Foreign Diplomatic/Consular missions concerned. The report of the arrest of a foreign national in a major crime, together with a brief description of the offence, should be communicated to the Director General of Police, Addl. DGP, CID and Addl. DGP Intelligence and Security”.
In the case of foreigners, interrogators should be conversant with the political complexions, customs and traditions of the country of the person interrogated. He must have a good grasp of the regulations applicable to foreigners and be aware generally of the activities of foreigners in India. However, we found during our interactions with embassy representatives that in most cases, they do not receive information about arrests of their nationals from the police.
Thus, they are forced to rely on newspaper reports to track cases and contact the concerned prisons for consular access. This claim was further corroborated by our interactions with Foreign Nations Prisoners (FNPs). Further, prisoners are not allowed to inform their family about their arrest. Denying a prisoner access to a consular officer or family is in violation of the Model Police Manual rules, and can lead to the alienation of the prisoner from their family. For example, a Palestinian prisoner in a West Bengal prison had not contacted his family in 26 years or received consular access.
An important point to be noted here is that police officers are prohibited from entering into direct correspondence with “their counterparts or with private companies, investors or manufacturers in such foreign countries. All correspondence intended for such persons in foreign countries must be routed through the Director General of Police, who will address the person through the state government”. This entails that even in cases where police officers might be prompt in informing the Director General of Police, there can be delays or lapses in communicating the information on arrest.
Like all prisoners, foreign nationals must also be detained in humane conditions. However, issues such as language barriers, specific dietary requirements, cultural differences, and the lack of recreational or rehabilitative activities can often make it difficult for foreign prisoners to adapt to prison life.
With absence of availability of prison rules in different languages, prisoners often do not understand their rights or obligations. Additionally, they may not be able to communicate with other prisoners or prison staff. Even simple things like making a request for medical assistance can go unheard if one cannot communicate in the local language. For example, a Bolivian lady was unable to explain her medical condition to the prison officials as she only spoke Spanish. The prison authorities ultimately resorted to using web-based translation services to assist her.
A prisoner in Alwar Detention Centre (situated in the Alwar District Jail), who had been moved to detention after completing his sentence in 2009, could hardly communicate, and was always found staring at the boundary wall. In the Rajasthan heat, he eventually suffered sunburns, but according to other inmates, continued sitting in the sun all day.
Lack of knowledge of the legal framework, legal procedures and lack of resources to hire services of competent lawyers further impacts the stay of FNPs in prison. Often, they are misled by lawyers and forced to plead guilty without understanding the consequences. Their lack of knowledge is further exploited when there is no consular access or contact with family members. Further, securing bail is difficult and parole rules generally do not apply to them, this can inculcate anger within and leads to a tendency to resort to violence.
The religious, dietary, spiritual or other specific needs of a foreign prisoner are very rarely addressed by the prison rules. “They are likely to have particular needs such as facilities for worship, special diets and hygiene requirements, due to their religion, which may be different to those of the majority prison population.” Diet patterns vary across states, thus restrictive diets, such as those which prohibit intake of meat can lead to discontentment in prisoners. Only few prisons provide special diets to foreigners, which also may not suffice for all foreign nationals, given the diversity in dietary intake globally.
These barriers can also lead to discrimination or disrespectful attitudes of prison staff or prisoners due to their nationality. This can also lead to actual physical or verbal abuse. For example in Haryana, foreign nationals have complained about food, and even alleged racism and discrimination by other prisoners. The lack of sensitivity among the prison population and prison officials is one of the biggest contributing factor to the challenges faced by FNPs.
Repatriation upon completion of sentence
Once a prisoner completes their sentence, they must be released from prison. In the case of foreign nationals, this entails traveling back to their home country. This process, however, is tedious, with a number of sub-processes: nationality verification, issuance of emergency travel certificate, securing funds for travel, the assignment of escorts for transfer, approval from airlines (in case of travel by air) or approval by border security forces (in case of travel by road), among others.
Repatriation requires the involvement of both central and state governments, specifically, two divisions of Ministry of External Affairs – the consular, passport and visa division and the respective territorial division; the foreigners division of the Ministry of Home Affairs and State Home Department; the Home Secretary or Jail Secretary; Bureau of Immigration and Foreign Registration Regional Officer of the state; Criminal Investigation Department, Intelligence Bureau; Superintendent of Police of the district where the prisoner was arrested; and Superintendent of the prison where the prisoner is lodged.
A corresponding procedure, similar to one mentioned above, also exists in the country of the prisoner and needs to be followed to complete the nationality verification process. Repatriation can also be of two kinds, depending on whether the individual possesses a valid travel document such as passport, or not (if they never possessed valid travel documents or their documents had expired). The process is simpler in the former case; unless the person has insufficient funds for travel, there are usually no delays in repatriation. In the latter case, however, there are several barriers that can delay the process.
The first step towards initiating the repatriation process is to verify the nationality of the person. For this, the prison departments write to the embassy of the country where the person is purported to belong. These requests are then routed through the prison headquarters, state home departments, ministry of external affairs before it reaches the embassy. This communication is required to contain all relevant details of the prisoner, including copies of any identification documents he might possess. In absence of any identification documents, embassies are often reluctant to take any steps. However, in many cases, the identification documents are not available with the prisoner.
Similarly, in the case of a Palestinian person, it took almost a year to get a copy of the passport from the police station that was seized 23 years ago. Such issues result in inordinate delays in nationality verification with some embassies refusing to take any steps without a copy of the passport. Processes have to be initiated to procure the documents from the court or police malkhana.
However, this is not the only hindrance; in the absence of travel documents or identification records, it takes a long time for nationality to get verified by the consulate in question. They must also send the information to the respective government, which then initiates verification processes from their end. This too takes time. For example, in the case of an alleged Sierra Leone national, it took almost a year for the embassy (which was located in China) to confirm that the person was not its national.
Section 3 of the Passports Act, 1967, clearly specifies that “no person shall depart from, or attempt to depart from India unless he holds in this behalf a valid passport or travel document.” Therefore, once the embassy verifies the nationality of the foreign prisoner, it must issue the person with an Emergency Travel Certificate (ETC) or a Travel Permit, which has the same value as that of a passport. This document permits the person to travel back to his country.
However, this process can take time. An ETC is generally valid for a month, while a Travel Permit stays valid for 3 months, within which the outbound travel is to be made. Sometimes, there can be delays at the prison’s end or the foreigner regional registration office, or there can be a lack of funds due to which arrangements are not made for the travel. In such cases, the travel document has to be issued again, pushing back the process by a few more months. For example, in the case of some Nigerian persons, despite being issued ETCs, they could not be repatriated because they had insufficient funds to pay for their travel.
Section 3(2)(cc) of the Foreigners Act 1946 requires foreigners to “meet from any resources at his disposal the cost of his removal from India”. Further, Para 14 of the Foreigners Order 1948 allows the Central Government to “apply any money or property of the foreigner in payment of the whole or any part of the expenses of or incidental to the voyage from India…until departure…” The law clearly places the responsibility of securing funds for travel on the prisoner, but in reality, this is difficult.
After long periods of incarceration, FNPs are left with little or no money. Sometimes, their travel may be sponsored by family members, but in a lot of cases, families too are incapable of offering funds. In some cases, embassies intervene to assist the process, but this is not a uniform practice. Countries with on-going humanitarian crises allocate budgets for voluntary repatriation of their nationals from other countries, which they often use to fund the deportation of their nationals as well (this is a practice in Afghanistan and Palestine).
Others contact the family of the prisoners or seek such funds from the prisoner. Sometimes, prison departments also concede to requests for sponsoring travel, but again, this is not a uniform practice. For the most part, expecting funds from FNPs is unrealistic since they are not allowed to work in detention69. For example, the entire travel of a Palestinian prisoner was sponsored by the embassy, but in the case of Nigerians or South Africans, the embassies offer no financial support. Thus, some prisoners spend months or years waiting for charity money from others to enable them to return back.
Once the prison department receives the ETC and funds for travel are secured, there remain a number of processes to be completed before the repatriation. This includes fixing the date of repatriation in consultation with the Foreigner Regional Registration Office (FRRO), issuance of deportation or removal order by FRRO, purchasing ticket for travel (in case of travel by air), requisition of escorts for transfer to the airport or integrated check post (ICP), securing approval from airlines or border security forces as the case may be, handing over belongings including valuable items and any wages earned to the person.
Once the process is completed, a report is sent from the prison to the prison headquarters and state home department. With no guidelines making the process timebound, there can be delays at every step of this process. In certain cases, where the prisoners’ families provide tickets, they might do it without consulting the FRRO. It could be that during those days, escorts are not available or that the time for processing documents and receiving requisite approvals in insufficient.
Thus, it is necessary to obtain consent from both FRRO and prison authorities before finalising the transfer date. For example, a Bangladeshi prisoner could not be sent to the ICP because of lack of escorts. The same goes for the requirement for approval by airlines. To seek requisite permission, the following documents should be made available: a copy of the deportation order, a risk-assessment report by the state and/or any other pertinent information that would help the aircraft operator assess the risk to the security of the flights, and the names and nationalities of escorts.
After the FRRO representative or other competent authority on its behalf provides the copy of the ETC, deportation order, medical certificate and airline reservation, the airlines need atleast 10 days to provide clearance. However, there are often delays in receiving clearance, wherein clearance comes only 24-36 hours prior to the flight, leaving the FRRO limited time to purchase tickets, coordinate with the jail and procure escorts.
There have also been instances where airlines refuse to allow boarding at the last moment leading to confusion, delay and loss of flight ticket money, adding to the woes of the prisoners. For example, a Palestinian prisoner could not board a flight as the airlines did not give clearance. He ended up being sent back to prison, pending his repatriation, which occurred after a month by another airline.