This article talks about the barriers that foreign nationals face while being imprisoned in India. It also lays emphasis on the increased vulnerability of these prisoners during the global pandemic. The author analyses the necessity of consular access for foreign nationals imprisoned in India.
Consular Access, Videoconferencing, Prison overcrowding, Statelessness and Repatriation
The Covid-19 pandemic has taken a toll on everyone, many have lost their near and dear ones. It has been spoken about and discussed widely, with new information cropping up time and again. A lot has been spoken about prisoners too , in terms of ensuring measures taken to limit the exposure of the virus in prisons, the release of prisoners on parole or interim bails to reduce overcrowding and more recently, vaccination initiatives for staff and prisoners too that have been undertaken. However, there is a group of prisoners that has not received any attention, that being foreign national prisoners (FNPs) or prisoners who are not Indians and are incarcerated in India.
This already vulnerable group of prisoners became further vulnerable when communication with the outside world came to a standstill, restricting their communication with families and lawyers, stalling their court cases, and preventing their repatriation to their home country. The lack of information on the pandemic, and measures to combat it, would have added to their existing vulnerability. Further, the absolute lack of communication with their families would undoubtedly have impacted their mental health.
As per the Prison Statistics of India 2019 , there are 5,608 foreign nationals imprisoned across the country, of which 2979 FNPs are undertrial, i.e., persons who are accused of committing an offence but not yet convicted. With the pandemic leading to court closures and suspension of regular hearings, lawyers too were restricted from meeting their clients, and any means to communicate with the family or embassy representatives too were stopped. These factors have led to the continued confinement of FNPs in prisons, even though many are possibly not guilty for the offence they have been charged with. An additional disparity has been the lack of consideration of foreign nationals for interim bail or release by the courts amid the pandemic.
Over the years, there have been a handful of cases of FNPs that get highlighted in the media, which brought to fore the severe rights violations they face. Unfortunately, when the news cycle changes, the focus and attention that these cases should bring, fades away too. Stories like those of Durga Prasad Timsina and Abdul Sharif highlight many problems faced by FNPs in India. Timsina was arrested on murder charges in May 1980, and over the past 40+ years, he was imprisoned across different prisons of the State of West Bengal as an undertrial. He suffered from severe mental illness and was unable to convey the particulars of his family back in Nepal. In March 2021, the Calcutta High Court ruled that Timsina was not medically fit to stand trial and ordered his immediate release and repatriation to his family in Nepal. Sharif, on the other hand, was arrested in 1992 while trying to enter India through the Wagah border. He was charged with a sentence of 2 years, which he finished serving in 1994. 27 years later, he still continues to remain detained at the transit camp in Amritsar Central Jail, for want of nationality verification.
Like many prisoners, both Timsina and Sharif’s mental health has been immensely impacted by their continued detention. It was a matter of luck and effort from civil society organizations that allowed Timsina to be reunited with his family, however, the same cannot be said for Sharif, who has no proof of nationality, with both Pakistan and Iran having denied him to be a national, thus rendering him stateless.
Barriers faced by Foreign National Prisoners
The numbers shed light on the situation at large, but to understand its intricacies, we must look at the barriers faced by FNPs.
Language Barrier As per the data mentioned in the Prison Statistics of India 2019 , foreign nationals imprisoned in India hail from over 50 different countries, adding to that the working of the lower courts, where the medium of communication may be the language predominantly spoken in the state, the FNP is put in a very precarious position. This takes away from them the opportunity to understand the court proceedings, impacting their defence and thus the determination of their case. Further, language barriers also cause difficulties in day-to-day life inside a prison.
Lack of Consular Access As per the data mentioned in CHRI’s report , only 5.7% of the FNPs had received consular access, even though it is a right guaranteed to all FNPs under the Article 36 of Vienna Convention on Consular Relations, which has been signed and ratified by India. In September 2020, the Ministry of Home Affairs: Women Safety Division issued a guideline stating “ information about arrest/ custody of a foreign national is to be provided to the consular post only if requested by the detained/ arrested person. ” This guideline is restrictive in the sense that the FNP who has been arrested/ detained is required to have the said information to avail their right to consular access or would be informed about how to avail said right via the police/ prison official. Unless the information is communicated to the Embassy/ High Commission, it would be difficult for them to step in and provide support. The country went into a lockdown in March 2020, and movement was absolutely restricted for all, consular officials were unable to travel and provide consular access. States were not able to put into place a system for virtual consular access, which led to a severe lack of information on the health status of their national.
Communication with family Communication with the outside world while being incarcerated is very important, it enables support for rehabilitation. Prisoners, in general, are allowed mulaqaat , however, FNPs are unable to reap benefits from it as their family or friends may not be in the country of incarceration. It also ensures that the family who are in another country are aware of their kin’s whereabouts. While most states do not have the provision for videoconferencing for FNPs, states like Delhi, Himachal Pradesh and West Bengal have made efforts to bridge the gap. Communication with family can also be key to nationality verification when it comes to FNPs, it ensures rehabilitative support post incarceration and can favour the mental health of the prisoner while incarcerated. During the pandemic, while people across the globe faced mental health concerns and were opening up about it, this vulnerable group of FNPs were unable to even communicate the bare minimum information about their physical health with their families.
Lack of legal support A fair trial is one of the most important principles of natural justice, but when one is unable to understand the charges framed against them or has inadequate legal representation, it cannot be a fair trial. The lack of knowledge of the legal system can further be exploited when consular access and communication with family is absent. The physical courts were closed during the pandemic, and there were online hearings going on in cases, it is very important to ensure fair trial rights during videoconferencing. There can be issues of network connectivity, arbitrary arrest & ill-treatment, they may not get an opportunity to speak with their counsel or have a confidential discussion, but the most problematic is that they may not be able to put their point forward before the learned court.
Thus, it is important that issues of foreign national prisoners are not brushed aside as one-off incidents, but the concerns and difficulties be acknowledged and addressed. It is very important that FNPs are made aware of their rights and duties while in detention and are given a fair chance at accessing those rights. It makes it easier on them to manoeuvre the justice system. Towards this, the consular offices and the relevant stakeholders have a vital role to play.
The consular representative may be the only next of kin for the FNP in the country, hence getting consular access becomes extremely important. The consular representative may assist in the translation of documents and explaining the charges, they may also act as a bridge between the legal representative and their national to provide a stronger defence, they may also intervene in ensuring the updates from the legal proceedings as well as that of the prisoner’s health are reaching the family. Above all, they are able to assist in the nationality verification and provide assistance for timely repatriation post completion of sentence/ dismissal of the case.