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Chapter 8Human Rights of Foreigner Prisoners

8.0 Introduction

This chapter deals with human rights of the prisoners who belong to foreign

countries. The status of foreigners in Indian jails is not different from native prisoners

and there is no discrimination on the basis of nationality, race, colour, language and

religion. However, because of being foreigners, they are not in a position to enjoy some

of the rights and facilities available to the native prisoners. For example, foreigners

cannot avail some of the rights available to the native prisoners like bail, parole,

remission etc. They are not in a position to get bail because no body gets ready to furnish

surety for such prisoners. They even do not receive meetings with their relatives and

friends. There is no body outside the prison to take care of them. They cannot defend

themselves during the trial as they do not have their relatives here. The present study

attempts to analyze these problems of foreigner prisoners keeping Amritsar Central Jail in

focus.

Amritsar district shares its boundary with Pakistan. Being a border district, there are a

number of foreigners in the Amritsar Central Jail.

A number of foreign nationals are suffering in the four walls of the jail even after

completion of their sentence awaiting clearance by the concerned Embassies. They are

called internees. Technically they are residing in a camp made for this purpose as a part

of Amritsar Jail has been declared as a camp for boarding the internees for the Punjab

State. However it is a matter of concern from human rights point of view as they are still

in the custody despite the fact that they have completed their period of imprisonment.

There were 88 foreigner prisoners residing in Amritsar Central Jail in 2006 at the

time of collection of data for this study. For the purpose of study, an information sheet

was designed to collect required information in respect of all the 88 prisoners of foreign

background. Some part of the information sheet was filled in by interviewing the inmates

and some information was obtained from the prison office. Some of the prison officers

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dealing with the foreigners were also interviewed. As some of the inmates were found

mentally unsound, some of the particulars in their respect could not be obtained.

8.1 Theoretical Framework

Standard Minimum Rules for the Treatment of Prisoners1 is the first major

document which advocates the rights of the prisoners. Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment2 describes the

rights of the foreigner prisoners and makes provision for immediate consular access or

correspondence with the diplomatic mission of the State of which he is a national.

Similarly another important UN document Basic Principles for the Treatment of

Prisoners3 provides for the treatment of prisoners with due respect due to their inherent

dignity and value as human beings. It prohibits any kind of discrimination on the grounds

of nationality, social origin, race, colour, sex, language, religion, political or other

opinion, property, birth or other status.

Punjab and Haryana High Court, hearing on a Public Interest Litigation,

expressed deep concern over undue stay of Pakistani nationals in Amritsar Central Jail

after completion of their sentence. The Court awarded compensation to such inmates and

issued directions to initiate steps to facilitate the release and return of these inmates to

Pakistan.4

8.2 Socio-Economic Characteristics of Foreign Inmates

An analysis of socio-economic characteristics of the foreigner prisoners is helpful

in understanding the background of these prisoners. The common variables used for this

purpose include age, sex, category, nationality, educational background, economic

condition, religion, profession and family background.

1 Standard Minimum Rules for the Treatment of Prisoners adopted by the First United Nations Congresson the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by theEconomic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13May 1977

2 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonmentadopted by UN General Assembly Resolution 43/173 of 9 December 1988

3 Basic Principles for the Treatment of Prisoners, G.A. res. 45/111, annex, 45 U.N. GAOR Supp. (No.49A) at 200, U.N. Doc. A/45/49 (1990)

4 World Human Rights Protection Council through its chairman advocate Ranjan Lakhanpal vs. State ofPunjab, CWP Number 10069/2005 decided on 26April 2006

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8.2.1 Category

Out of total 88 foreigner inmates, 9 are convicts, 33 are undertrials and 46 are

internees. Convicts are those who have been sentenced by the court of law. Prisoners

facing trials in the court of law are known as undertrials. The internees can be defined as

prisoners of foreign countries who have completed their sentence but are still lodged in

the jail awaiting deportation proceeding. All the 9 convicts are male whereas 4 undertrials

are female and 29 are male. Out of 46 internees, 4 are female and 42 are male. (See Table

8.1 and Figure 8.1)

Table 8.1

Distribution of Foreign Inmates on the Basis of Category in Amritsar Central Jail

Category Male Female Total Percentage

Convicts 9 0 9 10.2

Undertrials 29 4 33 37.5

Internees 42 4 46 52.3

Total 80 8 88 100

Figure 8.1

Distribution of Foreign Inmates on the Basis of Category in Amritsar Central Jail

As seen in the Table 8.1A and Figure 8.2, there were 3558 foreigner prisoners in

the Indian Jails in 2006. Out of these, Convicts were 676 (Male: 577, Female: 99),

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Undertrials were 2,772 (Male: 2,304, Female: 468) and Detenues/internees were 110

(Male: 110, Female: 0).5

Table 8.1ADistribution of Foreign Inmates on the Basis of Category in India in 2006

Category Male Female Total Percentage

Convicts 577 99 676 19.0

Undertrials 2304 468 2772 77.9

Internees 110 0 110 03.1

Total 2991 567 3558 100

Figure 8.2

Distribution of Foreign Inmates on the Basis of Category in India in 2006

8.2.2 Sex

Majority of foreign inmates (91 percent) are male and only 9 percent are female. 4

female inmates are internees and 4 are undertrials. However 16 percent (567) female

prisoners were in Indian jails out of total 3558 foreigners in 20066. (See Table 8.1)

5 National Crime Records Bureau of India, Prison Statistics, 20066 ibid.

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8.2.3 Age

As shown in Table 8.2, 19 are in the age group of 18-25 whereas 18 are in the age

group of 26-35. It shows that two-fifth of the foreign inmates are in the age group of 18-

35. Around one-third inmates are in the age group of 36-50. However, one-fifth of

foreign inmates are in the age group of 51-60. Only three inmates are above 60. (See

Table 8.2)

Table 8.2Distribution of Foreign Inmates According to Age

Age group(In years) Number of Inmates Percentage

18-25 19 21.6

26-35 18 20.436-50 28 31.851-60 20 22.8

Above 60 03 3.4Total 88 100

8.2.4 Nationality

Table 8.3 shows the distribution of foreign inmates according to nationality as on

28 July 2006 in Amritsar Central Jail.

Table 8.3Distribution of Foreign Inmates According to Nationality

Country Male Female Total Percentage

Pakistan 40 6 46 52.3

Bangladesh 35 1 36 40.9

Others 5 1 6 06.8

Total 79 8 88 100

Majority of the foreign inmates (93 percent) are from Pakistan and Bangladesh.

46 inmates are from Pakistan. Out of those 6 are female and 40 are male. Out of 36

Bangladeshis, 35 are male and one is female. Other foreign inmates belong to

Afghanistan (1 male), Nigeria (1 male), Kenya (1 male), China (2 male) and Malawi (1

female) as also shown in Figure 8.3.

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Figure 8.3Distribution of Foreign Inmates According to Nationality

8.2.5 Distribution of Internees

Table 8.4 gives details about distribution of internees according to their

nationality.

Table 8.4Distribution of Internees According to Nationality

Country Internee

Male Female Total

Pakistan 31 2 33

Bangladesh 11 1 12

Malawi 0 1 1

Total 42 4 46

More than half of the foreign inmates (52 percent) are internees. Majority of them

(71.7 percent) are from Pakistan. However, more than one-fourth (28.2 percent) are from

Bangladesh. One female inmate is from Malawi as shown in table 8.4.

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8.2.6 Religion

Majority of the foreign inmates (87.5 percent) are followers of Islam (Muslim)

religion. Most of them belong to Pakistan and Bangladesh. Only 3 inmates are Hindus,

two of them belong to Bangladesh and one is Afghan citizen. There is no foreign inmate

belonging to Sikh religion. There are 6 Christians (Pak -- 03, Nigeria- 1, Kenya -1,

Malavi-1) and 2 Buddhists belonging to China. It is evident that Majority of the foreign

inmates are followers of Islam who belong to Pakistan and Bangladesh. (See table 8.5)

Table 8.5Distribution of Foreign Inmates as per Religion

Religion Number of respondentsHindu 3Sikh 0

Muslim 77Christian 6Buddhist 2

Total 88

8.2.7 Marital Status

As shown in Table 8.6, more than half of the foreign inmates (53 percent) are

unmarried whereas 42 percent inmates are married. Out of 37 married inmates, 30 are

male and 7 are female. Out of 47 unmarried inmates, 46 are male and one is female. 4

male inmates are divorcee. [Also see Figure 8.4]

Table 8.6Distribution of Foreign Inmates as per Marital Status

Marital Status Number ofrespondents

Percentage

Married 37 42.1Unmarried 47 53.4Divorced 4 4.5Total 88 100

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Figure 8.4Distribution of Foreign Inmates as per Marital Status

8.2.8 Educational Qualification

Table 8.7 reveals that around half of the foreign inmates (48.9 percent) are

illiterate; most of them are from Pakistan and Bangladesh. 27 inmates are below

matriculation and 11 (PAK – 5, BD-5, Afghan -1) are matriculate. There are two

graduates-- one from Malawi and one from Kenya. Five inmates could not

communicate their educational qualification because of mental illness. [Also see

Figure 8.5]

Table 8.7Distribution of Foreign Inmates According to Educational Qualifications

Educational qualification Number of respondents PercentageIlliterate 43 48.9Below Matriculation 27 30.6Matriculate 11 12.5Graduate & above 2 2.3Not Available 5 5.7Total 88 100

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Figure 8.5Distribution of Foreign Inmates According to Educational Qualifications

8.2.9 Background [Rural-Urban]

As shown in table 8.8, majority of the foreign inmates (69.3 percent) are from

rural background. However, one-fourth inmates (26 percent) belong to urban background.

Four inmates could not communicate their background because of mental illness.

Table 8.8

Distribution of Foreign Inmates as per Rural-Urban Background

Background Number of respondents PercentageUrban 23 26.1Rural 61 69.3N. A. 4 4.6Total 88 100

8.2.10 Family Type

Table 8.9 shows that 28 inmates reside in nuclear families and 25 in joint families.

Nine inmates are single and information is not available in respect of nine prisoners.

17 inmates live in the extended families.

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Table 8.9Distribution of Foreign Inmates According to Family Type

Type of family Number of respondents PercentageSingle 9 10.2Nuclear 28 31.8Joint 25 25.4Extended 17 19.4N.A. 9 10.2Total 88 100

8.2.11 Occupation

Table 8.10 shows that 22.7 percent of the foreign inmates were engaged in private

jobs or were working as daily labourers before coming to jails. 45.5 percent inmates were

engaged either in agriculture or were doing some other business in their own houses.

Around 30 percent inmates were not employed; out of them 4 female inmates of Pakistan

were housewives.

Table 8.10Distribution of Foreign Inmates According to Occupation

Occupation Number of respondents PercentageGovernment job 1 1.1Private job/ daily wage 20 22.7Agriculture 8 9.1Own work (other thanagriculture)

32 36.4

Unemployed 27 30.7Total 88 100

8.2.12 Financial Status of Family

As shown in the table 8.11, majority of the foreign inmates belong to the families

of lower income group.

Table 8.11Distribution of Foreign Inmates According to Family Income Status

Income group Number of respondents PercentageLow 59 67Middle 10 11.4High 1 1.1N.A. 18 20.5Total 88 100

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67 percent inmates belong to lower income group and 11.4 percent come from

middle income group. Only one inmate comes from higher income group. However,

information in respect of 18 inmates about financial status of the families could not be

obtained.

8.2.13 Nature of offence

Majority of the foreign inmates were charged with the offences under Passport (Entry

into India) Act 1920 and Foreigners Act 1946. Some of the inmates were charged under

NDPS Act for smuggling of Narcotics drugs. Some of the inmates were also charged

under Explosives Substances Act whereas some were charged under the Official Secrets

Act for spying. Most of the inmates (69 out of the total 88) made unauthorized entry into

Indian Territory whereas 19 came on valid visa but they were arrested because of expiry

of visa or entering into undisclosed and unauthorized area. Some inmates who made

unauthorized entry into Indian Territory came in search of employment.

8.3 Human Rights Issues

The basic human rights issues of foreigner inmates in the Amritsar Central Jail are

equally grave. Foreigner inmates are venerable in the jails and they cannot enjoy the

rights and privileges available to their native counterparts. Right of communication, legal

aid and monetary problems are fundamental issues being faced by them. They do not get

food and clothes as per their habits and tradition.7 They are also not in a position to get

bail or arrange for sureties. They cannot enjoy the privileges of parole and remission

because of foreigner status. The plight of Internees is quite miserable as they are

languishing in the jails even after completion of their sentence. Consular access is another

important issue in regard to foreigner inmates. According to Kiran Bedi the plight of

foreign inmates was no different from that of their Indian counterparts. But their agony

was magnified due to problems of communication, food habits, cultural differences, lack

of visitors, shortage of money and shabby clothing.8

7 Dainik Jagran, Amritsar, 10 March 20098 Kiran Bedi: It’s always Possible, Sterling Publishers Private Limited, New Delhi, 2005, p.110

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8.3.1 Right to Communication

Every prisoner has basic right to communicate with his relatives and to receive

meetings with his relative and friends within prescribed rules and regulations. Foreigner

prisoners hardly receive any meeting in the jail as their relatives and friends do not find it

convenient to visit just for the sake of meeting. Other means of communication are also

restricted for the foreigner inmates. Local prisoners can receive two meetings a week. But

their foreigner counterparts do not manage any meeting. As discussed earlier, majority of

the inmates come from lower income group and are financially weak. They even cannot

think that his relative will visit from their countries to meet them. Their meetings are

limited to the members of some charitable institutions who visit the jails for some welfare

work.

8.3.2 Monetary Problems

Local inmates are in a position to avail canteen facility or they receive some

eatables and other articles of daily need, as they get cash (in the form of coupon) and

other things from their relatives. The foreign inmates cannot even think to avail canteen

facility because of monetary problem. They are dependant upon the food, cloth and other

necessities provided by the prison authorities and charitable institutions like Pingalwara.

8.3.3 Legal Aid

Every person under any kind of detention has the right to be defended by a lawyer

of his or her choice. But it is not true at least in the context of foreigner prisoners.

Because of monetary problem, a foreign inmate cannot engage a lawyer of his/her choice.

They have to be fully dependent upon the advocates provided by the District Legal

Services Authorities. Quality and effectiveness of free legal aid provided to the inmates

has been discussed in chapter six. When this facility does not fulfill the needs of local

inmates, one can understand the problems faced by the foreigners. Majority of the

inmates who were provided free legal aid by the authorities do not remember the names

of their advocates. Even the advocates do not have time to visit their clients in the jail as

well as to spare quality time to defend their cases in the courts. Low rate of remuneration

given by the Legal Services Authority is the major cause of poor service of free legal aid.

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8.3.4 Bail

Foreign inmates do not avail the provision of bail as they cannot live in the locality

freely. A person who is arrested on the charges of unlawful entry into Indian Territory

cannot walk liberally as his or her stay in the society is also an offence. In any case they

are not in a position to furnish sureties to be released on bail. They do not have house to

stay outside the jail in case they are released on bail. Therefore there are many restraints

on the foreigners in terms of provisions of bail.

8.3.5 Parole and Remission

Foreign inmates cannot enjoy parole and remission granted to the local inmates.

Parole is temporary release of a convict for a particular period while undergoing

imprisonment. This provision needs many formalities to comply with which a foreign

national cannot complete.

Remission granted by the government from time to time does not apply to certain

category of prisoners. Foreign nationals cannot avail the provision of remission. For

example, special remission for one year was granted on the occasion of 400th martyrdom

day of Shri Guru Arjun Devji (16 june 2006). Similarly special remission for 3 months to

one year was announced on the occasion of Baisakhi 2007 (13 April 2007). But foreign

nationals are not entitled to avail of this remission as per information gathered from jail

authorities.

8.3.6 Consular access

Consular access of foreign nationals is a big problem in the jails. As per

provisions of Punjab Jail Manual, as soon as a foreign national admits to a prison,

arrangement should be made for early consular access.9 Model Prison Manual provides

for speedy consular access to the foreign inmates. If any foreign national is committed to

prison, or to custody pending trial, or is detained in any other manner, the Superintendent

of Prison shall immediately inform the Inspector General of Prisons. Any communication

9 Manual for the Superintendence and Management of the Prisons in Punjab, 1996

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addressed to a Consulate by a prisoner or detenue, shall be forwarded to the Ministry of

External Affairs through proper channel without undue delay.10

However, in practice, it has been noticed that the inmates have to wait for years to

get consular access especially from Pakistan. Assistant Superintendent of Jail who deals

with foreign nationals in Amritsar Central Jail termed it a complex procedure as many

agencies of Indian and foreign governments are involved in this process. Many times it

has been noticed that Pakistani Consulate does not own their citizens for various reasons

despite providing consular access. That is why many Pak prisoners could not be released

despite completion of their sentence. In July 2006, consular access was provided to 56

Pak nationals at Amritsar Central Jail for the foreign inmates lodged in Amritsar and

Jammu jails.

8.4 Internees

The prisoners who have completed their sentence but could not be released

pending deportation process are known as internees. As shown in table 8.4, total 46

internees were lodged in Amritsar Central Jail. 33 internees were from Pakistan (31 male

and 2 female) and 12 from Bangladesh (11 male and 1 female). One female inmate was

from Malawi. Technically they are living in Internee camp, as a particular portion of

Amritsar Central Jail was notified as ‘Internee Camp’. Ward number 2 and 3 of Amritsar

Jail was declared as ‘Internee Camp’ by the Punjab Government11. All the internees of

Punjab are kept in this transit camp till deportation. However it has been argued by the

human rights activists to shift the transit camp at some location other than a notified jail.

Punjab and Haryana High Court, in a landmark judgment, has observed that

continued imprisonment of the foreigner prisoners who have been in jail after having

completed their sentence is clearly unwarranted. The court took strong notice particularly

with regard to one prisoner who had completed his sentence in 1997 but proceeding for

consular access was initiated on 7 July 2005 after expiry of 8 complete years only after

issuance of notice of motion in the CWP. The court termed it contrary to the provisions

10 Bureau of Police Research and Development of India, Model Prison Manual 2003, Para 8.2311 Memo 1/168/ 98-5J/6726 dated 15.04.1999

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of Article 21 of the Constitution of India which provides that no person can be deprived

of his life and liberty without following the procedure established by law.12

The Court has further described the human angle in this matter. “Human beings

are not chattels to be used as pawns in a political game and to keep a person away from

home and hearth without legal sanction is completely unacceptable.” The court directed

to hand over such internees to Pakistani authorities. The court further directed to pay

compensation to all such internees at the rate of Rs. 10 thousand per completed year on

the date of judgment (April 26, 2006) and in addition Rs. 100 per day after the judgment.

The court went ahead to urge the Pakistan Courts/ Government to consider the case of

Indian Internees in a like manner who are languishing in Pakistan Jails.13

Dainik Bhaskar, a leading Hindi Newspaper, in an article highlighted the plight of

Internees languishing in the Indian as well as Pakistani jails. It says the names of many

internees have been shown as unknown son of unknown.14 This is a matter of great

concern from human rights angle.

This human rights issue of internees can be understood in a better manner with the

help of the following two short case studies I-A and I-B:

Case Study I-A

I-A, is a 48 years old prisoner hailing from Kasur district of Pakistan. He was arrested

in 1990 by Ferozepure Police for having committed various offences under NDPS Act,

Foreigners Act and Official Secrets Act. He was charged by the competent court and

awarded 7 years rigorous imprisonment. He completed his sentence in 1997 in

Ferozepure jail and was sent to internee camp in Amritsar Jail. Consular access was

provided twice in the year 1998 as well as in 2006. However, even after completion of his

sentence, he was languishing in the four walls of the jail. In 2006, he had been residing as

an Internee for the last 9 years. As informed by the authorities of Amritsar Central Jail,

they are ready to deport him, but Pakistani authorities do not extend due cooperation in

finalizing deportation proceeding.

12 Supra note 413 Ibid.14 Dainik Bhaskar , Amritsar, 27 August 2009

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Case Study I-B

I-B, is a 40 years old prisoner residing in the internee camp of Amritsar Central Jail.

He belongs to Baluchistan Province of Pakistan. He was caught by the BSF authorities in

April 1997 on the charges of illegal entry in the Indian Territory. He was charged by the

competent court and was awarded 3 months imprisonment. He completed his sentence in

July 1997. Since then he has been languishing in the internee camp of Amritsar Central

Jail and in 2006, he completed 9 years as internee. It means he suffered more than 9 years

in jail despite the fact that he was awarded imprisonment for only three months. He does

not receive any meeting from his relatives or friends. He has no knowledge about his

family members. He was provided consular access in July 2006.

On the basis of these two case studies, one can easily understand the plight of

foreigner inmates especially those living in the internee camp. This kind of violation of

human rights is unwarranted in today’s civilized world.

A similar situation exists on the other side of the border too. Efforts are required to be

made for immediate release of such prisoners from the jails of both sides-- India and

Pakistan.

8.5 Efforts made to solve the problem

Indian Government has made some efforts to streamline the process of

deportation of foreigner prisoners. Till recent past, there was no legal provision either in

the Code of Criminal Procedure or any other Act under which foreign prisoners could be

transferred to the country of their origin to serve their sentence there. Nor was there any

provision for the transfer of the persons of Indian origin, convicted by a foreign court, to

serve their sentence here in India. In the absence of legislative provision, it was not

possible to execute treaties or agreements with foreign governments for transfer of

convicted prisoners.

Showing concern over long detention of foreign prisoners in Indian Jails,

Government of India felt that if foreign convicted nationals were transferred to their

home countries to serve their jail terms, it could take care of the human aspect in as much

as the said convicts would be near their families and have better chances of social

rehabilitation. Further, it would also take care of the problems that Indian jail authorities

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face in keeping these prisoners. With the above end in view, the Government of India

enacted the Repatriation of Prisoners Bill 2003 which upon the assent given by the

President has been notified in the Gazette of India as ‘The Repatriation of Prisoners Act

2003.15 The Act has come into force with effect from 1 January, 2004.

If the provisions of this Act are applied in letter and spirit and the similar kind of

attitude is reciprocated by foreign countries, the problems of foreign inmates can be

solved to some considerable extent and human rights of such prisoners could be

protected.

8.6 Conclusion

There is no discrimination on the basis of nationality, caste, religion, language or race

between the foreigner prisoners and native prisoners. However Foreigner prisoners

cannot enjoy certain rights and privileges which are available to the native prisoners.

Besides convicts and undertrials, a considerable number of foreigner prisoners live as

internees who have completed their sentence but are still lodged in the jail awaiting

deportation proceeding. More than 50 percent of foreigner prisoners in Amritsar Central

Jail are internees out of total 88 (in 2006).

Foreigner prisoners normally do not receive any meeting (interview) in the jail as

their relatives and friends do not find it convenient to visit just for the sake of meeting.

They are fully dependant upon the food, cloth and other necessities provided by the

prison authorities and charitable institutions because of monetary problem. Foreigner

prisoners are not in a position to engage lawyer of choice. They are fully dependent upon

the advocates provided by the District Legal Services Authorities.

Foreign inmates do not avail the provision of bail as they cannot live in the locality

freely and they are not in a position to arrange for the sureties. They cannot enjoy parole

and remission granted to the local inmates as it is not possible for them to comply with

various formalities.

Consular access is the major problem for the foreigner prisoners. Many inmates are

languishing in the jails because they have not been provided consular access which is

15 www. mha.nic.in/cs-division.htm

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treated as a complex and multi agency process. This is one of the major human rights

issue and requires to be streamlined.

Internees are living in a very pitiable atmosphere as they are compelled to live in the

same prison despite expiry of their jail term. Many internees are languishing for 5 to ten

years even after they have undergone their term of imprisonment. This is a serious human

rights issue in today’s civilized world.

8.7 Recommendations

The process of deportation should be made easy. Consular access should be provided

within one month of admission in the jail. Besides this, internee camp should be shifted

to some place other than a prison. There should be special courts for the trial of

foreigners in a time bound manner. Free legal aid should be provided to the foreigners as

and when arrest is made. Food and clothes should be provided according to the habits and

traditions of the foreign inmates. Remission should be allowed to the foreigners also. The

Repatriation of Prisoners Act 2003 has been enacted by India to ensure early release and

repatriation of the foreigner inmates. Similar enactments are required to be made

worldwide and should be implemented in letter and spirit.

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