This Article is authored by Advocate Anil Malhotra.
Happy to be alive, 311 Indians descended on Indian soil after being deported from Mexico. Sad but true, merchants of death run thriving rackets of human smuggling without fear or abandon, trapping gullible youth with dollar dreams. Innocent citizens are duped daily and this organised crime perpetuates horror and misery flourishing by the day with impunity and utter disregard for law.
Smuggled migrants are vulnerable to exploitation. Their lives are put to risk. The victims have suffocated in containers at high seas, perished in deserts or forests, drowned in oceans or have been herded as forced labour in slave camps. Smugglers of human beings conduct their activities brazenly with no regard for safety of life. Survivors tell harrowing tales of their ordeal. Forced to sit in body waste, deprived of food, water, clothing they have watched those around them die to be thrown overboard and dumped at sea or perished in jungles or on road sides. Those apprehended, languish in foreign jails, with no hope of return. Smuggling of illegal immigrants generates high net worth profits at hands of mafias who fuel corruption and ignite organised crime. Such movement is a deadly business, which like terror strikes, has to be now combated with grave urgency.
TRADE OF HUMAN BEINGS
Today, manpower export, legally called human smuggling or in local parlance called kabootarbazi is the most profitable trade which requires no technical skill, no educational or professional qualification, no financial investment and least but not the last has no fear of any law, checking, punishment or criminal action. Smuggling of Migrants from India to Europe and in particular to UK : A Study on Punjab and Haryana, a report released by the United Nations Office on Drugs and Crime (UNODC) in March 2010, based on extensive research revealed that over 20,000 youths from Punjab attempt irregular migration every year and that sub agents who sponsor this activity had proliferated in rural areas in Punjab, Haryana, Himachal Pradesh and Jammu Kashmir. Sadly, despite concrete remedial suggestions for curbing this human trade merchandise having been suggested in the UNODC report, nothing at all seems to have been done by any State or Central Government. The result is inevitable, gullible, innocent and foreign crazy youth board flights to fantasy land fuelled by dreams weaved by unscrupulous and unethical agents, which often lead them to misery, slavery and sometimes even death whilst law sleeps in its slumber.
LAW ON THE SUBJECT
The Emigration Act, 1983 (EA) was the culmination of the Supreme Court Orders in Kanga Vs. Union of India handed down in 1979 which resulted in the amendment of The Emigration Act, 1922. Today, under the EA, a notified Protector of Emigrants (POE) in a State, overseen by a Protector General of Emigrants (PGOE) at the Centre, is statutorily bound under the EA to ensure that no person functions as a recruiting agent without a registration certificate and that no employer shall conduct recruitments for foreign employment without a valid permit to be issued by the POE. The POE in turn under the EA must protect and aid all intending emigrants with advice and support. Every recruiting agent has a mandate under the EA to maintain registers, records, besides file returns and the PGOE/POE exercising powers of the Civil Court can check, monitor, requisition and enforce compliance which is punishable on contravention with powers of suspension or cancellation of permits on violation. Factually, how much of this is observed or followed, does not need any guesses or answers.
The EA supported by Emigration Rules, 1983 providing the complete procedural machinery remains a paper law since the violation of the EA, flouted with impunity, has neither any redressal nor any remedy. Catchy advertisements in English and vernacular newspapers, gaudy display signboards and a potent pitch of illegal immigration abroad are galore promising treasures at the end of the rainbow in foreign countries. There is no regulation, rule, policy or law to check unethical and misleading advertisements. The innocent victims are not even aware of the compulsory registration and licensing permit scheme prescribed by the EA which they ought to check before they dole out exorbitant sums generated by selling, mortgaging or pawning land, jewellery or valuable assets. Once, shipped out illegally to Mexico, Gulf or European destinations, the terrorized and duped youth loose their passports, their dignity and self respect and sometimes their lives, if not living a life of misery, shame and destitution abroad having no face or identity to return back home.
This unlawful human smuggling business is propelled by a large number of illegal immigration/emigration companies openly advertising their wares without any registration certificate or a permit/ license required under the EA. These attractive advertisements carry no detail of registration or work permit numbers of the advertisers. Most such unethical individuals or firms operate under the guise of a consultancy company which needs no registration. No law monitors their misleading advertisements or checks their websites. Huge amounts of money transacted in cash change hands for illegally sending youths abroad under promised work permits without any covering safeguards prescribed under the EA. The performance of statutory duties of the POE under the EA are non existent. Nobody checks this flourishing business but everybody reads horror stories of innocent victims who are duped and defrauded. The existing EA law has teeth but no poison in its fangs. Thus, under the EA, there are no checks, inspections, penalties, suspensions or cancellations ever reported. The EA remains a dead letter law without implementation.
LAWS IN QUANDARY
The Government of Punjab in its farfetched wisdom passed the Punjab Prevention of Human Smuggling Act, 2012, now known as the Punjab Travel Professionals Regulation Act, to be the first State to define Human Smuggling and to check all appurtenant malpractices associated as ancillary evils. But, its effective implementation is a far cry. Agents smuggle humans with impunity flouting the law.
The enactment of the Punjab law alone will not serve the purpose. All human smuggling traders run under garb of consultancies to evade it. A Central law to be enacted by Parliament is thus, the crying need of the day. The existing EA neither defines nor punishes human smuggling or illegal immigration. None of the evils of this unethical trade which has proliferated in society as a deadly virus, has any befitting legal antidote under any existing law. Thus, Government of India will seriously have to consider enacting an All India legislation or drastically amending the EA to take cognizance of malpractices which ails society daily in this unethical trade of human beings. This cancer spreading into lives of youth unless checked will do irreparable damage. Law must not wait any longer.
To wean the youth from boarding unchartered illegal flights abroad, vocational training leading to self employment or creating means of livelihood are an absolute necessity if they are to be tied down by an anchor back home. At the same time, it should be a prime Government duty to generate official manpower overseas placement bureaus which legitimately permit overseas employment under legal and channelized safeguards. Simultaneously, educating youth with the pitfalls of human smuggling and immigrating the right way is an absolute necessity. Social thinking must be changed to educate all citizens to adapt to legal methods for emigration. All foreign embassies now arm themselves on their websites with educative and informative material routing applications through Visa Facilitation Services (VFS). Education curriculums in schools, colleges and universities must expose youth to these as a necessary learning part in their educative process. The media too must carry these messages. NGOs and socially spirited individuals must translate these empowered methods in vernacular languages appropriately. This combined and composite plan should be a prime agenda in the interest of the nation and society at large. No waiting is prescribed or recommended. Parliament too, must rise to the call and act for enacting a beneficial law to cap human smuggling.