ROOTS OF HUMAN SMUGGLING – THE MALADY AND THE CURE

The Social Problem

It is estimated that,as of now, there are more than 10,000 Indian workers in the strife torn nation of Iraq.Over 40 of these unfortunate young men from Punjab and Himachal Pradesh have reportedly been trapped after being abducted as hostages, besides 201 other Punjabis  and 112 youths from Haryana are stranded in a war zone in Iraq. Likewise, 700 of these migrants from Telangana are also in dire straits. 46 are nurses from Kerala and Tamil Nadu, who are stuck but safe. Though, serious efforts are underway to secure their safety and return, a serious introspection is required to deliberate on the moot question as to why, how and when such gullible Indian citizens are trapped by unscrupulous agents with Dollar dreams of lucrative jobs in exchange for hefty fees. An ineffective Emigration Act, 1983 (EA) does little to remedy this situation. Sad, but true, palatial multicolour bungalows with water tanks shaped as footballs or mini aircrafts dot the skyline in the rural landscape of Punjab, propelling unguided youth to fall prey to hefty earnings on foreign shores for magically owning similar homes. A Gurudwara in Punjab is known for praying for divine help by offering a miniature aeroplane .Tall promises of unethical travel agents assuring astronomical earnings overseas to build similar castles in the air, vanish and evaporate in actual reality when innocent young denizens land up as bonded labour in captivity in Gulf countries or are made to work for a pittance, huddled like cattle with no documents. Most of these unfortunate victims reached Iraq from Dubai via Qatar and Kuwait through devious Indian travel agents, who work in connivance with illegal employment syndicates operating from Gulf Countries for luring these hapless youngsters.On one occasion, hundreds of Punjabi youths were clearing ammunition, bombs and mines from uncultivated Iraqi fields.

Central Law in Existence

            The EA, which is an Act to consolidate and amend the law relating to Emigration of citizens of India applies only to “recruitment” and “recruiting agents”. Registration and obtaining permits are essential under the EA from a StateProtector of Emigrants working under a Protector General of Emigrants (PGE) under the Ministry of Overseas Indian Affairs. Without getting any such registration certificate or a valid permit, no recruiting agent or employer can legally conduct this business or send any person abroad. On actual ground, reality is a far cry. Punjab has only 47 recruiting agents, and Andhra Pradesh has 46 such agents registered under the EA. Ironically, neither the word “travel agent”, nor the phrase “human smuggling” are defined or identified in the EA, which neither recognises this proliferating business of human trading nor seeks to check or punish it. All such nefarious traders escape the noose claiming that they do not need any registration or work permit under the EA as they do not conduct the business of recruitment and are thus not “recruiting agents”. Law, thus, looks the other way. The illegal business of human smuggling is unchecked. Youth are cheated daily with impunity. A travel agent needs no educational qualification, no experience, no office or business premises and no registration or regulation under any law. Human lives are at stake. Regardless, the statute books silently watch the vacuum in law.

Punjab Leads The Way

            The Government of Punjab is the first State in the country which has enacted The Punjab Travel Professionals Regulation Act, 2012, as amended in 2014 (previously known as The Punjab Prevention of Human Smuggling Act, 2012),with supporting rules of 2013, to provide for the regulation of the profession of travel agents with a view to check and curb their illegal and fraudulent activities, as also to penalise malpractices involved in the organised human smuggling rackets flourishing in the State of Punjab. No other State has made any similar or other enactment, even though the problem afflicts all like a plague. This state law has 12 note-worthy features:

ü  It defines human smuggling and travel agent including all ticketing agents.

ü  Provides for a licensing regime for travel agents. Debars persons from operating without a license under the Act.

ü  Provides licence numbers to be quoted in all advertisements of agents.

ü  Gives power of search, seizure and arrest to Magistrates and Police Officials.

ü  Complaints to be first verified by Deputy Commissioner or his nominee.

ü  Prescribes power of investigation by DSP to be completed within two months and to be verified by S.P. SSP to be Nodal Officer for all investigations under the Act. 

ü  In addition to imposing penalties, provides award of reasonable compensation to be paid to aggrieved person by travel agent.

ü  Identifies defined punishment for offences under the Act.

ü  Authorises Courts to decide whether any illegally acquired property is liable to be confiscated.

ü  Provides for liability of Director, Manager, Secretary of Companies responsible for conduct of business when negligence can be attributed.

ü  Cheating shall have the same meaning as under the Indian Penal Code.

ü  Punishment upto seven years depending on the crime or offence committed.

“Travel Agent” is defined as a person in a profession that involves arranging, managing or conducting affairs related to sending people abroad. It includes consultancy for permanent emigration, obtaining education, work, travel for tourism, cultural entertainment or musical shows, medical treatment, spreading or preaching religion, participating in sport tournaments, issuing advertisements for travel, holding seminars and lectures to promote emigration, arranging matrimonial alliances for purposes of emigration, and arranging overseas travel for any purpose whatsoever.  Travel Agents, coaching institutes of IELTS, ticketing agents and general sales agents of airlines are covered under the Act. Dishonest misrepresentation with intention to have wrongful gain for inducing, deception, cheating or allurement for above activities is punishable under the Act. If any travel agent wants to advertise or hold seminars, he will have to notify the competent authority in writing giving complete details of advertisement of seminars. It does not include recruitment agents carrying on the business of recruitment who are governed and registered under the provision of the Emigration Act, 1983

No Over-reach

Placing both the Acts, i.e. the Emigration Act, 1983 and The Punjab Travel Professionals Regulation Act, 2012, as amended in 2014,  side by side clearly shows that they enshrine regulatory mechanisms for recruiting agents and travel agents separately. Viewed objectively, both carry regulatory functions in their own spheres. They are neither inconsistent nor repugnant to each other. In fact, the two laws complement each other as they provide similar objectives, aims and functions for recruiting and travel agents in separate compartments respectively as independent legislations. Since, in 1983, when the EA was enacted, human smuggling was never contemplated or visualized, the EA does not cover this subject, 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. Even though the subjects of enactments relating to laws regarding professions, welfare of labour, education, employment related issues etc., are in the Concurrent list and only Emigration is in the Union list of the 7th Schedule of the Indian Constitution, the State of Punjab is within its rights to enact a Human Smuggling Law for Punjab under powers enjoyed under the Concurrent List. Even if such activity is termed as trade, the State Government, under the State List, is empowered to legislate on Human Smuggling. Under Article 246(1), the prerogative of the Parliament to legislate extends exclusively on the subject of Emigration only as prescribed in the Union list.Whereas, for the aforesaid remaining subjects, Article 246(2) of the Constitution, empowers the Punjab State or any other State Government to legislate on the remaining matters which are in the Concurrent list of the Constitution. There is thus, no legislative overreach and the Punjab law is enacted validly. Punjab supplements but does not supplant any existing Central law. 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. All others may choose to follow suit for resolving the human problem.

THE GRAVE END

Naive youth fall prey to agents and land 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 which is now a deathly trade. Thus, the need for Parliament to legislate an 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 and excellent effort.