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Transfer of Convicted Indians from Foreign Jails to Indian Jails
- Adv. Navkiran Singh
- 11 minutes ago
- 6 min read
With the increasing movement of Indian nationals across international borders, situations have arisen where Indian citizens are tried, convicted, and sentenced by foreign courts. International law recognizes mechanisms through which states may cooperate in the execution of criminal sentences while respecting each other’s sovereignty. One such mechanism is the Agreement on Transfer of Sentenced Persons, commonly referred to as a "Prisoner Transfer Agreement".
A Prisoner Transfer Agreement is a bilateral treaty between two states that enables a person convicted and sentenced in one state to be transferred to another state, usually the country of nationality, for the purpose of serving the remaining sentence. The agreement does not disturb the validity of the conviction or sentence passed by the foreign court. The Transfer relates solely to the place of execution of the sentence.
In India, prisoner transfer agreements are implemented through the “Repatriation of Prisoners Act, 2003”. The Act empowers the Central Government to:
Give effect to international agreements for transfer of sentenced persons
Receive Indian citizens convicted abroad for serving sentences in India.
Transfer foreign nationals convicted in India to their home countries.
The Act provides a statutory basis for enforcing foreign criminal judgments in India according to the treaty, while maintaining executive control over the transfer process.
A request for transfer under the “Repatriation of Prisoners Act, 2003” may be initiated by the sentenced person or, in appropriate cases, by family members or authorised representatives. Such request is ordinarily submitted to the Indian Embassy or High Commission in the country of conviction, or directly addressed to the Ministry of External Affairs (MEA) or the Ministry of Home Affairs (MHA) in India. Upon receipt, the Indian mission abroad verifies the nationality of the prisoner, obtains the prisoner’s consent for transfer, and forwards the request through diplomatic channels to the Central Government. This includes verification of treaty applicability, confirmation that the conviction and sentence are final, assessment of compatibility of the foreign sentence with Indian law, and compliance with the conditions prescribed under the Act. The process does not involve adjudication by courts; however, it incorporates legal scrutiny by the competent authorities to ensure that the transfer is consistent with statutory provisions, treaty obligations, and principles governing execution of criminal sentences in India.
Countries Having Prisoner Transfer Agreements with India (As per Ministry of Home Affairs)
According to information published by the Ministry of Home Affairs, Government of India, India has entered into bilateral agreements on transfer of sentenced persons with several countries to facilitate repatriation of prisoners[1].
These countries include the United Kingdom, United Arab Emirates, United States of America, Australia, Canada, France, Italy, Russia, Bangladesh, Sri Lanka, Thailand, Turkey, Iran, Israel, Maldives, Mauritius, Cambodia, South Korea, Saudi Arabia, Bosnia & Herzegovina, Bulgaria, Egypt, Kuwait, Brazil and Hong Kong (Special Administrative Region of China), among others. The applicability of transfer in each case depends upon the existence of a valid agreement between India and the concerned State and fulfillment of conditions prescribed under the Repatriation of Prisoners Act, 2003 and the relevant treaty provisions.
Prisoner transfer agreements operate within a distinct legal framework and serve a purpose different from other forms of international legal cooperation. While “Mutual Legal Assistance Treaties” (MLATs) facilitate cooperation between States during the stages of investigation and trial—such as the collection of evidence, examination of witnesses, and assistance in criminal proceedings—extradition treaties govern the surrender of individuals from one jurisdiction to another for the purposes of prosecution or enforcement of a sentence. Prisoner transfer agreements, in contrast, come into operation only after a conviction has attained finally. Such agreements are concerned solely with the execution of an already imposed sentence, enabling the sentenced person to serve the remainder of the sentence in their home country in accordance with applicable treaty provisions and domestic law.
The Supreme Court of India has recognized that the transfer of sentenced persons under the “Repatriation of Prisoners Act, 2003” and applicable bilateral agreements does not alter the legal validity of the conviction or the substantive nature of the sentence imposed by a foreign court. The Court has recognized prisoner transfer agreements as mechanisms that regulate the manner and place of sentence execution, in accordance with treaty obligations and statutory provisions. In “Union of India & Anr. v. Shaikh Istiyaq Ahmed & Ors”, the Court held that the duration and enforcement of the sentence for an Indian citizen repatriated from abroad are governed by the terms and conditions agreed between the foreign State and India, reflecting the continued legal effect of the foreign judgment following transfer.
Eligibility Conditions for Transfer of Convicted Person
A prisoner transfer agreement applies only when certain conditions are met:
1. The person has been convicted and sentenced by a foreign court.
2. The conviction has attained finality, with no pending appeal or proceeding.
3. India has a bilateral transfer agreement with the sentencing State.
4. The prisoner has given informed and voluntary consent.
5. The competent authorities of both States approve the transfer.
6. The sentence is capable of being enforced in the administering State.
Transfer under such agreements is not automatic and is subject to the discretion of the participating States. A crucial safeguard under prisoner transfer agreements is the requirement of free, informed, and voluntary consent of the sentenced person. Consent must be given with full knowledge of the legal consequences of the transfer, including the manner in which the sentence will be executed in the administering State. The consent requirement ensures that the transfer mechanism does not operate coercively and respects the autonomy and personal liberty of the prisoner.
Circumstances Where Transfer of Convicted Persons May Be Declined
Transfer of convicted persons under bilateral agreements and the “Repatriation of Prisoners Act, 2003” is not automatic and may be declined in certain circumstances. Transfer cannot take place in the absence of a valid agreement between India and the sentencing State or where the conviction has not attained finality due to pending appeals or proceedings. A mandatory requirement for transfer is the free and voluntary consent of the prisoner, and absence of such consent may result in rejection of the request. Transfer may also be refused where the competent authorities of either State decline approval on grounds of public interest, national security, or diplomatic considerations. Further, transfer may not be permitted where the offence or sentence is incapable of enforcement under Indian law, where treaty conditions such as minimum remaining sentence are not satisfied, or where the prisoner is required for additional proceedings in the sentencing State. These limitations demonstrate that prisoner transfer is a matter of inter-State cooperation rather than a legal right.
IN CASE THE FILE OF REPATRIATION IS PENDING BEFORE THE JUDICIAL BODY
Indian courts play a supportive and supervisory role in matters relating to prisoner transfer, ensuring that the statutory framework and treaty obligations governing such transfers are duly observed. Where an application relating to transfer of a sentenced person is pending before a court, the Indian court may examine whether the administrative authorities have acted in accordance with the provisions of the “Repatriation of Prisoners Act, 2003” and the applicable treaty framework. While courts do not sit in appeal over foreign convictions, they exercise judicial oversight to ascertain that the process adopted by the authorities conforms to the requirements of law. The pendency of proceedings before a court does not automatically entitle the prisoner to transfer; however, courts may issue appropriate directions to ensure expeditious and lawful consideration of the request by the competent authorities.
Judicial review, when invoked, is directed towards examining:
Compliance with the provisions of the “Repatriation of Prisoners Act, 2003”
Observance of obligations arising under applicable bilateral or multilateral agreements
Fairness, transparency, and reasoned decision-making in the administrative process.
Courts have consistently acknowledged that prisoner transfer operates within the sphere of executive authority and international cooperation, and have confined their role to ensuring that decisions are taken in a lawful, non-arbitrary, and procedurally sound manner.
Conclusion
Prisoner Transfer Agreements strike a careful balance between enforcing punishment and respecting human dignity, while also advancing humanitarian considerations of rehabilitation and social reintegration. For Indian citizens convicted abroad, they provide a lawful, structured, and organised mechanism to serve foreign sentences in India without questioning, undermining, or weakening the authority and finality of the foreign court’s judgment. Operating at the intersection of international cooperation and domestic execution of criminal law, these agreements reaffirm respect for state sovereignty while promoting dignity, fairness, and rehabilitative justice within the global criminal justice framework.
