This Article is authored by Advocate Anil Malhotra.
DELUGE
Four Indians froze to death in sub zero temperatures on the Canadian Border. Aylan Kurdi, a three years old Syrian child refugee drowned in an abortive attempt to reach the Greek Island of Kos after their overloaded boat capsized. Reportedly, the “boat’s captain panicked due to high waves and jumped into the sea, leaving Abdullah Kurdi in control of the small craft with his family and other migrants aboard” and Aylan Kurdi’s body was washed up on the shores of the Turkish costal town of Bodrum. His picture spoke a million words engulfed in sorrow, pain and revulsion. People smugglers involved in illegal trafficking of migrants took another toll. A Media report from Brussels details death of 14 migrants after their over crowded boat carrying 100 migrants sank off the coast of Malaysia. A media account from Sofia talks of detention of 125 illegal immigrants illegally crossing into Bulgaria and a UN panel in its tenth report states that 2000 Syrians have drowned in the Mediterranean sea trying to reach Europe since 2011. It is also reported that more than 1000 migrants stranded for days at Budapest started a 175 kilometres walk to the Austrian border after they were stopped from boarding trains to Austria and Germany because they did not possess EU visas. The Interior Minister of Austria states that human trafficking is reportedly “a business worth billions” and Europol, Europe’s police agency has stated that “an estimated 30000 people were involved in human smuggling gangs”. Frontex, which mans the European Union borders, opines that human smugglers “normally hire Afghan or Syrian representatives to act as their agents on the ground, handling contact with potential customers.” International Organisation for Migration, sees “growth of the smuggling operation online”.
THE PROBLEM
The menace is not new to India. But, we must learn from what has happened. With the merchants of death running thriving rackets of human smuggling at the cost of gullible youth trapped everyday with dollar dreams, the waiting worsens the plight of duped innocent citizens and this organized crime perpetuates horror and misery, flourishing with daring impunity. Smuggled migrants are vulnerable to exploitation and their lives are often put at risk. They have suffocated in containers, perished in deserts, drowned at sea or herded as forced labour in slave camps. Smugglers of migrants conduct their activities brazenly without fear or favour with no regard for human life. Survivors tell harrowing tales of their ordeal, forced to sit in human waste, deprived of food and water, while others around them die and their bodies are dumped at sea or on road sides. The smuggling of migrants generates high net worth profits at the hands of criminals who fuel corruption and organized crime. The smuggling of migrants is a deadly business that must be combated as a matter of grave urgency and happily Punjab is the first State ready to combat it.
THE GRAVE END
Naive youth fell prey to agents and landed up working as slave labour in ammunition dumps or fields in Iraq or end up condemned to live as illegal immigrants abroad in pitiable conditions with no hope of return if they manage to survive hazardous channels of death. Smuggling of migrants is a highly profitable business with a low risk of detection. For criminals, it is increasingly attractive to deal in human merchandise and this business of death is becoming more and more organized, in which professional international networks wantonly flourish transcending global borders and regions. India, as a nation, therefore, has a dire need to check this global menace. However, sadly, The Emigration Act, 1983, which is an Act to consolidate and amend the law relating to Emigration of citizens of India, neither defines human smuggling nor even looks at the problems connected with this deathly trade. Thus, the need for Parliament to legislate a Indian Human Smuggling law is a crying need. Piecemeal state legislations with limited ambit of application will restrict scope only to State territorial borders. A Central law is therefore, the composite solution. Initiatives of Parliament must set this ball rolling. Till then, any State legislation on the subject would be a welcome take off point and the Government of Punjab deserves kudos for this innovative pioneer excellent effort.
THE SOLUTION IN THE NEW LAW
The Punjab Travel Professionals Regulation Act, 2012, is described as a law to provide for the regulation of the profession of travel agents with a view to check and curb their illegal, fraudulent activities, and malpractices of the persons involved in organized human smuggling in the State of Punjab and for the matters connected therewith or incidental thereto. The Punjab Travel Professionals Regulation Act, 2012, enacted to provide a licensing regime for travel agents with penal provisions, has similar regulatory functions to check human smuggling. In this enactment “Travel Agent” means a person doing the profession which involves arranging, managing or conducting affairs relating to sending persons abroad or which arise out of the affairs of persons sent to a foreign country, and shall include a range of activities covering diverse practices . Likewise, “Human Smuggling” shall mean and include illegally exporting, sending or transporting persons out of India by receiving money from them or their parents, relatives or any other persons interested in their welfare, by inducing, alluring or deceiving or cheating.
REMEDIES IN LAW
Hence, placing both the Acts i.e. the Emigration Act, 1983 and the Punjab Travel Professionals Regulation Act, 2012, side by side clearly shows that they enshrine regulatory mechanisms for recruiting agents and travel agents separately. Viewed objectively, both carry complimentary purposes in their own spheres. They are neither inconsistent or repugnant to each other. In fact, the two laws compliment each other as they provide similar objectives, aims and functions for recruiting and travel agents respectively. Punjab has enacted a law which no other State in the country has made. In fact, human smuggling is a silent issue in the Emigration Act. The authority of law vested in the State must be exercised to enforce this law. Punjab will proceed with its own initiative and lead the nation in its yeoman spirit. Regardless, Parliament must seriously contemplate enacting a national law to control Indian borders to regulate this human smuggling industry with an iron hand.
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