The Repatriation of Prisoners Act, 2003 follows the dictum of the legendary Supreme Court judge, Justice V.R. Krishna Iyer, as stated in the Charles Sobraj judgment of 1978: “Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement.”
The humanitarian intent behind the Act is to allow convicted foreign nationals a chance to get transferred to their home countries, and prisoners of Indian origin in other states to be brought back to India, to serve the remaining part of their sentences. It is based on the belief that being close to their families in their native countries would help prisoners in the process of rehabilitation.
The 2003 Act allows a convicted foreign national to make an application to the Centre to transfer his custody from India to his native country. On receiving such an application, the Centre would get in touch with the officer in charge of the prison and conduct an enquiry into various aspects. These include whether there is any pending inquiry, trial or proceeding against the prisoner; whether the convict has been sentenced to death or convicted of an offence under military law; or if his transfer would be prejudicial to the sovereignty, security or any other interest of India.
Then, the Centre would seek information from the country where the prisoner wants to get transferred. This would include a check on whether the convict is indeed a citizen of that country or not; the relevant law for the offence for which he is undergoing sentence; the duration of sentence for the particular offence in that country; and, finally, an undertaking from that country to administer the remaining sentence on the prisoner.
Once the custody is transferred to an official of that country and the prisoner escapes from custody within India, any person shall detain the fugitive and produce him before the nearest police station. The convict shall be liable to face the punishment for escape.
The same conditions would apply for an Indian prisoner transferred here from a foreign country on a warrant. If the sentence of imprisonment passed against the prisoner in that country is found incompatible with Indian law, either regarding its nature or duration, or both, the Centre may make it compatible, by order.
In 2015, India also acceded to the Council of Europe’s Convention on the transfer of Sentenced Persons of 1983.
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