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This Article was originally written by author for the Bangladesh Legal Aid and Services Trust (BLAST) as a part of the research conducted over the internet and documents provided by BLAST in order to present the current scenario of Bangladeshi prisoners in India.

By Aiman Rahman Khan

Any person, be it for misconduct or ill fate, may end up in a foreign jail, at any time of their life. They may face deportation or serve a specific term not exceeding a set period. But many face complete abandonment once inside the prison. Despite completing their sentence, many Bangladeshi nationals are still languishing in Indian jails. The Penal Code of both the countries says nothing about Repatriation of Prisoners. The rising toll compelled both the Governments to sign an ‘Agreement on the Transfer of Sentenced Persons’ back in January 2010. However, not much has been done since then, to transfer the nationals back to their respective countries. Human Rights organizations around the world and in Bangladesh have been working to minimize the rising number at a constant rate.

The Government of India felt the urgency of transferring back foreign nationals so they could get proper legal assistance. The Repatriation of Prisoners Act 2003 was therefore enacted to transfer prisoners to their own country and vice versa. Under the Act the request for transfer is to be made by the convicted prisoner on grounds of age or physical or mental condition and such request is to be granted only when the receiving and transferring State agree.[1] Even after such a dedicated Act, surveys prove the presence of foreign nationals (especially Bangladeshis) in prisons across India. The 2014 data released by National Crime Records Bureau (NCRB), suggests 50 per cent of the 6000 foreigners in Indian Jails are imprisoned in West Bengal and belong to Bangladesh. West Bengal jails lodge 1,113 of them, the highest in the country.[2]

Current situation of Bangladeshi prisoners in India:

According to the Commonwealth Human Rights Initiative (CHRI) “NCRB data does not take account of the numbers of foreigners whose prison terms are over but remain in prison for want of assistance and means to return to their own countries. They continue to remain illegally incarcerated well past the official date of their release”. [3] In 2015, nearly 4,000 Bangladeshis lodged in various jails in West Bengal, India. As per the latest records of the state correctional services department, the total Bangladeshi prisoner population in the state stands at 3,757, including 175 children. Currently there are 275 Bangladeshi ‘jankhalash’ or prisoners who have completed their term but are still lodged in jails. Considering this, the West Bengal correctional services department has been calling for implementing the agreement on swapping convicts.[4]

The issue of Repatriation of prisoners is not new in the Subcontinent. In 1973, there was an agreement between Pakistan and India in solving the humanitarian problems resulting from the conflict of 1971. The Agreement was mainly based on transferring back the prisoners of war after the Liberation War of Bangladesh. It was partly successful, except for the fact that the Biharis still remain stateless in Bangladesh. But such agreement was for specifically designed for war time. On the other hand, in peace time, we can see that the 2010 Agreement between Bangladesh and India lie in shambles. In the seven years since it was enacted, only a few instances can be showed, that too with the intervention of private bodies. The Bangladesh-India Joint Working Group (JWG) met in 2014 over an Extradition Treaty. Under the treaty, the prime accused of the Narayanganj 7 Murder case, Nur Hossain was brought back to Bangladesh. Like this, few other instances suggest the gradual implementation of the joint movement.

Three Bangladeshi women and four teenagers returned home through Benapole check post in 27th December 2016 after serving three years’ jail in an Indian prison.The returnees are Shahanara Khatun, 17, Firoza Khatun, 30, Fatima Khatun, 16, Palash Hossain, 15, Sujon Miah, 13, Alok Sarkar, 14, and Joychandra Sheel, 15. They hail from different areas of Satkhira, Comilla and Sunamganj districts.[5]

The Repatriation of Prisoners Act 2003 of India talks about ‘Application for transfer by a prisoner’.Section 4 of the Act states that ‘Any prisoner who is a citizen of a contracting State may make an application to the Central Government for transfer of his custody from India to that contracting State: Provided that if a prisoner is not able to make an application himself because of his ill health, mental condition, old age or being a minor, then, the application may be made by any other person entitled to act on his behalf.’ [6]

Intervention by NGOs:

Many Bangladeshis stuck in Indian jails do not receive any legal assistance and few have been taken care of by the Bangladesh Government. Since the 2003 Act allows application on behalf of a prisoner, many Bangladeshi NGOs have stepped up and acted as their guardians. Among the few are the Bangladesh Legal Aid and Services Trust (BLAST). Alongside individual legal aid, BLAST undertakes strategic litigation, or public interest litigation, as a key part of its advocacy for law and policy reforms to ensure effective legal protection of rights.[7] BLAST had filed many PIL in support of the repatriation of Bangladeshi prisoners in India. BLAST has filed several writ petitions for the protection of the rights of prisoners. Among the many cases, few of them have been mentioned here:

Writ Petition No. 1715 of 2010: A writ petition was filed following the report on the Prothom Alo newspaper on 12.02.2010 about the 156 Bangladeshi prisoners being held in Bahrampur Central Jail, India for illegally crossing over the Indian border, even after the expiry of their prison sentence. On the same day another newspaper Prothom Alo reported that there are more than 2500 Bangladeshi prisoners in Indian Jails. This report stated that the sentences of over 500 ‘jankhalashprapto’ prisoners have already expired over 3 to 4 years ago and yet they are being unable to return to Bangladesh due to diplomatic difficulties.

On 01.11.2010 the High Court issued a Rule Nisi to show cause as to why the impugned auctioned being the failure of Ministry of Foreign Affairs and DG (South-Asia) wing, Ministry of Foreign Affairs to comply with their statutory and constitutional duties and to ensure the rights of the indigent Bangladeshi citizens to obtain consular assistance including information regarding available legal aid, services and representation, should not be declared to be without lawful authority.

Writ Petition No. 10628 of 2006: BLAST filed a writ regarding 338 Burmese (Myanmar nationals) who were incarcerated in the Cox’s Bazar District Jail on 05.11.2006. They were held as foreign under trial prisoners for years wholly arbitrarily and without lawful authority, in violation of their fundamental rights namely Articles 27, 31 and 32 guaranteed under the Constitution. The respondent no.1 is Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Home Affairs; the respondents no.2 is the Inspector General of Prisons and the respondent no 3 is the Jailor of Cox’s Bazar District Jail who are necessary parties in this writ.

The High Court issued a Rule Nisi dated 19.11.2006, calling upon the respondents to show cause as to why the continued custody and deprivation of liberty of 338 under trial foreign prisoners should not be declared to be without lawful authority and why the respondents should not be directed to produce the prisoners in Court in order to satisfy that they were not being held without lawful authority, and why their immediate release should not be directed. The judgment is yet to be given.

Release of three Indian nationals including a minor boy: In the month of April 2011, the three Indians were apprehended in the territory of Bangladesh. Ariful Sk. is just aged about 5 years. According to statement dated 18th April 2011 given by the Chairman of No. 8 Piyarpur Union Parishad of Daulatpur, Kusthia, Mr. Mohammad Jaharul Karim Biswas, Mr. Hachimuddin Sheikh along with wife and grandson went to Bangladesh to see his ailing mother. The victims were implicated in a criminal case vide Doulatpur Police Station Case No. 16/11 dated 15.04.2011 (G.R. No. 156 / 2011) under section 4 of The Control of Entry Act,1952 of Bangladesh.[8]

As soon as BLAST was informed of the matter by its Kushtia Unit it immediately contacted the Bangladesh authorities, in particular the Ministry of Home Affairs and the Ministry of Foreign Affairs, along with the High Commission of India. .BLAST also shared this information with the Commonwealth Human Rights Initiative, of India which moved the authorities in India, Within weeks, the 3 Indian citizens were released and handed over to the BSF for their safe return.[9]

Repatriation of Solma Begum: Bangladesh Legal Aid Services Trust (BLAST) contacted the CHRI after Solma Begum received counselling. She was found wandering by the West Bengal police in April 2015 in Sarati Village, Arambag district. She was then assessed as mentally unstable and sent to a shelter home, the Commonwealth Human Rights Initiative (CHRI) said. The CHRI with the help of BLAST ensured the safe return of Solma Begum in 2017. It took the human rights group over one year of advocacy with the state home department and the Bangladesh Deputy High Commission in Kolkata before Begum’s identity could be confirmed and she repatriated.[10]

Repatriation across the world:

The UK Borders Act 2007 states automatic deportation order to any foreign national residing in the UK who has been sentenced for 12 months or more. Such a provision may be an example for the concerned parties here. The Council of Europe Convention on the Transfer of Sentenced Persons allows prisoners to apply to be transferred home to serve their prison sentence in their own country. Ireland is one of many countries that are a signatory to this Treaty. [11]Repatriation of Prisoners is an important issue for the Irish Council for Prisoners Overseas (ICPO). The Repatriation of Prisoners Act 1984 of Scotland enables, under certain circumstances, persons who have received a custodial sentence in a country other than their own to be transferred to their home country to serve the remainder of their sentence.

The persons serving terms exceeding their sentence may be regarded as a gross violation of their human rights. The Universal Declaration of Human Rights (UDHR) ensures that no one is subject to unfair detainment and right to fair trial. The prisoners must be sent home in order to establish human rights and so that they can reunite with their families and start afresh. The Government of Bangladesh must work hand in hand with the local NGOs in tackling this issue. The implementation of the 2010 Agreement is the demand of time now. Governments of both the lands must co operate in order to restore Human Rights and continue its friendly bilateral relations.


Aiman Rahman Khan is a Research Associate at Bangladesh Legal Aid and Services Trust (BLAST). He is currently pursuing his M.S.S with a major in Victimology and Restorative Justice from University of Dhaka. He completed his LLB from University of London and LL.M from Eastern University, Bangladesh.


References:

[1] J. Piyush, ‘Short Essay on the Repatriation of Prisoners’ [http://www.shareyouressays.com/85724/short-essay-on-the-repatriation-of-prisoners]

[2] T Deeptiman (2015), ‘Over 6,000 foreigners in jail, most of them are Bangladeshis’, The Indian Express [http://indianexpress.com/article/india/india-news-india/over-6000-foreigners-in-jail-most-of-them-are-bangladeshis/]

[3] Press Trust of India (2017) ‘Joint effort of police, civil society & judiciary ensures repatriation of Bangla woman’ [http://www.india.com/news/india/joint-effort-of-police-civil-society-judiciary-ensures-repatriation-of-bangla-woman-1777614/]

[4] Gulf News India (2015) ‘Bangladeshi prisoners languish in Bengal jails despite convict swap deal’ [http://gulfnews.com/news/asia/india/bangladeshi-prisoners-languish-in-bengal-jails-despite-convict-swap-deal-1.1616020]

[5] Sun Online Desk (2016), ‘7 Bangladeshi return from India after serving 2 years jail’, The Daily Sun Newspaper,  [http://www.daily-sun.com/post/194515/7-Bangladeshi-return-from-India-after-serving-2-years-jail]

[6] The Repatriation of Prisoners Act 2003, Act no.49 of 2003 [available at: http://lawmin.nic.in/ld/P-ACT/2003/The%20Repatriation%20of%20Prisoners%20Act,%202003.pdf]

[7] BLAST website [https://www.blast.org.bd/whatwedo]

[8] H. Zaidul (2012), ‘5 yr Ariful of Murshidabad languishing in Bangladesh jail for 1 yr’, TwoCircles.net [http://twocircles.net/2012apr26/5_yr_ariful_murshidabad_languishing_bangladesh_jail_1_yr.html]

[9] BLAST website, ‘Prisoners Rights’ [available at https://www.blast.org.bd/issues/prisons-rights]

[10] Press Trust of India (2017) ‘Joint effort of police, civil society & judiciary ensures repatriation of Bangla woman’ [http://www.india.com/news/india/joint-effort-of-police-civil-society-judiciary-ensures-repatriation-of-bangla-woman-1777614/]

[11] ‘ICPO Fact Sheet for Prisoners transferring to an Irish Prison’ [available at: http://www.icpo.ie/wp-content/uploads/2014/06/Factsheet-for-Prisoners-Transferring-to-an-Irish-Prison.pdf]

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