The Italian marines were lucky. They got exceptional treatment all through. For thousands of foreigners stuck in Indian jails, waiting for the wheels of justice to move, it's a different story altogether. And it does not end with their sentences.

The Italian marines were lucky.

That’s not just because they had a government that was willing to take the diplomatic heat of not sending them back to India to face trial. All along the process, they were special prisoners. The spice level of their chicken curry made news. They got to go home for Christmas. Then they were allowed to go back to Italy to vote.

For most foreigners stuck in Indian jails it’s a completely different story.

A run-on sentence

“Even people who finish serving their sentences are unable to go home, so forget anyone getting to go home to attend a festival,” says Sana Das, coordinator of the Prison Reforms Programme at the Commonwealth Human Rights Initiative (CHRI). According to the 2011 National Crime Records Bureau statistics, there were 5,621 foreigners in Indian jails. And none of them get the Italian treatment.

Ordinary foreigners who end up in Indian jails can find their travails do not even end with their sentences. A report submitted by the jail department to the Calcutta High Court in December 2012 admitted there are 320 prisoners still in West Bengal jails even after serving their terms. Most are Bangladeshi but two were from Nigeria, two from Myanmar, one from Ukraine and one from Lesotho.

The Mynamerese have spent an extra nine years. The Ukrainian has spent an extra 12 years in jail. In 2012 the Supreme Court asked the government for full disclosure of all foreigners held in Indian jails upon discovering that three Pakistanis had been languishing in Jammu jail for 46 years. “It really shocks us,” the court said.

Stuck in limbo land

The problem with repatriation, says Sana Das, is the lack of standard operating procedures. There is also nowhere for the prisoners to go in the time between serving their sentence and actual repatriation. So they remain in jail. “The Bangladesh case is very different,” says former foreign secretary Shashank who has also served as a chief passport official.

“They might say they are Bangladeshi but Bangladesh can refuse to accept them.” For example, there is the case of Shukla Ghosh who was lying in a detention centre in Amritsar since completing her sentence in October 2000 because neither Pakistan nor Bangladesh would confirm her nationality. In 2012, the Daily Mail reported the home ministry was looking for some NGO or an Indian national who would take responsibility for her.

Meanwhile by court order she was getting compensation of Rs 100 per day since 2006 from the Punjab government. “The paradox is when they come in they are seen as Bangladeshis. So they are put in jail,” says Das. “When they have finished they are sentence their identity is unproven. So they cannot go anywhere.” She says because so many ministries from Home to External Affairs are involved, the entire process needs to start 3-6 months before a person finishes his/her sentence.

The waiting room

But limbo-land after completion of the sentence is the tail end of the problem. Stuck in the bowels of the plodding justice system many foreigners suffer a great deal because of the inordinate delay in disposing of their cases which are usually not about terrorism or large-scale drug smuggling. Most are in jail for lack of proper papers or drug offences. “You can serve your entire sentence while just waiting for your trial,” says K T S Tulsi, a senior lawyer with the Supreme Court.

The 2011 NCRB statistics show 3,601 foreigners are in prison as undertrial prisoners as opposed to 2,020 as convicts. Unlike the Italian marines, most foreigners cannot post bail bonds and walk out. “Even the French diplomat Pascal Mazurier (accused of sexually assaulting his 4year-old daughter) cannot travel out of Bangalore,” says lawyer Ajay Verma, who is also the chairman for International Bridges to Justice, India. “He cannot even go to Delhi.”

Verma says time is the biggest issue here. “Even prison authorities are concerned about this,” he says. “What message are we sending with a trial that’s going on for six-seven years and at the end of it the person is acquitted? We urgently need expeditious trials.”

On top of that, Verma says, foreigners are often fleeced by unscrupulous private lawyers. Most of those who are picked up under the Foreigners Act of 1946 are poor and underprivileged anyway. Many have come illegally across the border looking for work, or are fishermen, or herders or students. Many are in prison in the first place because they could not afford to pay fines.

“Many of them are put through the legal process of detention for being without papers when they could just as easily be pushed into their country,” says Das. Without family outside the prison walls looking out for them, desperate to get out, they are easy prey for lawyers looking to make a quick buck.

Not quite Shantaram

Most stories about foreigners in Indian prison revolve around food and language. A Nigerian inmate in Sabarmati jail was so frustrated with his all-vegetarian diet he tried to commit suicide in 2010. Foreign prisoners have angrily thrown away their plates prison authorities at the Chanchalguda prison told The Times of India. Books like Gregory David Roberts’ Shantaram have painted hellish pictures of Mumbai’s infamous lice-ridden crammed Arthur Road prison where he described being chained to the wall and tortured by the “bloody lacerating bite of lathis”.

But Verma says his experience in the jails in Delhi shows that prison conditions are the least of the prisoners’ problems. “Sometimes they are actually given more care than other inmates,” he says. “I met an HIV-positive Nigerian woman whose treatment was being taken care of by prison officials. The Nigerian consulate does not care.”

If our govt was like the Italians

The Vienna Convention requires the arresting country to inform the consular officials of the foreigner’s home country. But whether they are as pro-active in the defence of their citizen as the Italians is another matter. “The attitude each country has is different,” says Tulsi. “Consular assistance for any European arrested abroad is taken very seriously in the European context,” says Sana Das. “In the South Asian context it’s a matter of a concern.”

“Normally the Kenyan, Nigerian consulates don’t bother too much,” says Verma. The jail superintendent at the Chanchalguda jail in Hyderabad which houses remand prisoners and undertrials from Nigeria, Sri Lanka, Pakistan, Japan and Europe, told the media the authorities have written to the relevant embassies. “Some respond, some do not. Such prisoners get legal help as they are entitled to and given by the government.”

India’s own record in this has been spotty. “Frankly, I think the Italian Govt was clever and protected its citizens. I wish our Govt did the same for Indians in foreign jails,” tweeted writer Pritish Nandy. Minister for External Affairs Salman Khurshid recently admitted in the Lok Sabha that there are currently 6, 293 Indians imprisoned in various countries with Saudi Arabia heading the list.

Most of them are in jail for violation of visa rules and employment contracts. The minister said the missions utilise the Indian Community Welfare Fund to provide legal attention in “deserving” cases. There is an obligation to provide assistance says Shashank. But he says it’s complicated.

Sometimes the prisoners might themselves refuse. “For example someone trying undermine the (Indian) state from abroad might be more afraid of the consular officials than the country that arrested them,” he says.

The simple fact is an Indian labourer in Saudi Arabia or a Sri Lankan fisherman in India will never get the same attention and support as a pair of Italian marines. That led academic Vijay Prashad, author of Darker Nations, to tweet “Two Italians in Indian jails; it is front page news. 109 Indians in Italian jails. Do you know their names?”