The Punjab law to prevent human smuggling is not inconsistent with the Emigration Act, but it is a take-off point for a composite central legislation
It is estimated that, as of now, there are more than 10,000 Indian workers in strife-torn Iraq — 40 workers from Punjab and Himachal Pradesh have reportedly been abducted, 36 from Haryana have contacted the control room set up the Haryana government, 700 people from Telangana are believed to be stuck there and 46 nurses from Kerala and Tamil Nadu are also stranded but are safe. Though serious efforts are underway to secure their safety and return, we need to deliberate over how and why so many Indian citizens are trapped in these places, dreaming of lucrative jobs.
An ineffective Emigration Act, 1983, does little to remedy this situation. Palatial multicolour bungalows with water tanks shaped as footballs or mini aircrafts that dot the skyline in rural Punjab propel the youth to go overseas to earn enough to own such homes. However, they instead land up as bonded labourers in the Gulf with no documents and are made to work for a pittance. Most of them have landed in Iraq from Dubai via Qatar and Kuwait through devious Indian travel agents working in connivance with employment syndicates operating from Gulf countries.
The Emigration Act
The Emigration Act, enacted to consolidate and amend the law relating to emigration of Indian citizens, applies only to ‘recruitment’ and ‘recruiting agents.’ Registration and obtaining permits from a State Protector of Emigrants working under a Protector General of Emigrants under the Ministry of Overseas Indian Affairs are essential under the Act. Without obtaining any such registration certificate or a valid permit, no recruiting agent or employer can legally send any person abroad.
However, the situation is different on the ground. Punjab has only 47 recruiting agents, and Andhra Pradesh has 46 who are registered under the Emigration Act. Ironically, neither the word ‘travel agent’ nor the phrase ‘human smuggling’ are defined or identified in the Act. It neither recognises the proliferating business of human trading, nor does it seek to check or punish such activities. Many claim that they do not need any registration or work permit under the Emigration Act as they do not recruit people and are therefore not recruiting agents. A travel agent needs no educational qualification, no experience, no office or business premises and no registration or regulation under any law.
Against this background, Punjab was the first and only State in the country to enact a law against human smuggling — The Punjab Prevention of Human Smuggling Act, 2012, with supporting rules of 2013 — to check and curb travel agents’ illegal and fraudulent activities and penalise those involved in organised human smuggling rackets. No other State has enacted anything similar, even though the problem exists everywhere. This law has many noteworthy features — it defines the terms human smuggling and travel agent; it provides for a licensing regime for travel agents and debars persons from operating without a licence; it gives power of search, seizure and arrest to magistrates and police officials, it provides for reasonable compensation to be paid to aggrieved persons by the travel agent. It also specifies the punishment for offences and authorises courts to decide whether any illegally acquired property is liable to be confiscated. Cheating, the Act says, shall have the same meaning as under the Indian Penal Code.
A ‘travel agent’ is defined as a person in a profession who arranges, manages or conducts affairs related to sending people abroad. The profession includes consultancy for permanent emigration, obtaining education, work, travel permits 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. Dishonest misrepresentation with the intention of wrongful gain or deception, cheating or allurement for the 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 and give complete details of advertisement of seminars. The Act does not include recruitment agents who are governed and registered under the provision of the Emigration Act.
Placing the Emigration Act and the Punjab Prevention of Human Smuggling Act 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 with each other, nor are they repugnant. In fact, the two laws complement each other as they provide similar objectives, aims and functions for recruiting travel agents. The Emigration Act does not cover the subject as the issue of human smuggling was never contemplated or visualised earlier. 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 Constitution, Punjab is within its rights to enact a human smuggling law for the State 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 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 Punjab 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 enactment of the Punjab law was valid. Punjab supplements but does not supplant any existing central law.
Checking a global menace
Naive youth fall prey to agents and land up working as slave labourers in ammunition dumps or fields in Iraq or as illegal immigrants abroad. Smuggling of migrants is a highly profitable business with 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 organised. India needs to check this global menace. There is an urgent need for Parliament to pass a law against human smuggling. Piecemeal State legislations with limited ambit of application will restrict the scope to only State borders. A Central law is therefore the composite solution. Till Parliament takes the initiative, any State legislation on the subject would be a welcome take-off point. The Punjab government deserves kudos for its excellent effort.
(Anil Malhotra is a practising lawyer and advisor, NRI Issues, Government of Punjab.)