Human smuggling, illegal trafficking and unethical immigration businesses are on the rise in India and other countries. The Punjab Prevention of Human Smuggling Act 2010 is a welcome move. Once it gets the President’s assent, the state government should draft comprehensive rules to enforce the legislation in letter and spirit
Ranjit Malhotra IN THE TRIBUNE
THE Punjab Prevention of Human Smuggling Act, 2010, is awaiting the President of India’s assent. It is an important piece of legislation as it seeks to regulate the profession of travel agents to check their illegal and fraudulent activities and malpractices of those involved in the organised human smuggling in Punjab.
It has several noteworthy features. ‘Human smuggling’ and ‘travel agent’ are well defined. 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 and so on.
The key focus of the legislation is on human smuggling as opposed to human trafficking. The distinction is crucial. Human smuggling facilitates illegal entry of people from one country to another. It has a cross border element of voluntary cooperation without any coercion or undue influence. In contrast to human trafficking, there are no victims in human smuggling. Human trafficking entails slavery and possibly has no international element.
It provides for a much-needed licensing regime for agents and requires compulsory bank guarantees. Clearly, this will nail down middlemen of all sorts and fly-by-night street operators. The legislation is not without teeth because it gives the power of search, seizure and arrest. Under the existing Central legislation, travel agents can be booked under Section 420 of the Indian Penal Code, in terms of which it is very difficult to prove the offence of cheating as most transactions take place in cash. But the Punjab legislation gives more powers to the police in terms of offences being cognisable and non-bailable.
A separate mechanism has been carved out as the legislation seeks to create specially designated courts for trials under the new Act. It identifies defined variable punishments for offences. There is a provision for filing complaints by aggrieved persons to judicial magistrates for trial before the special courts. The special court is authorised to decide whether any illegally acquired property is liable to be confiscated. Dishonest misrepresentation to have wrongful gain for inducing, deception, cheating or allurement for the activities carried out by the travel agents are punishable. There is also a caveat for legitimate business promotion. If any travel agent wants to advertise or hold seminars, he must notify the competent authority with details of advertisement of such seminars.
As the rules so framed by the Punjab government after the Presidential assent should be comprehensive and free from ambiguity, the authorities concerned would do well to consider the following issues. The locus standi of aggrieved persons should be given a broad sweep without hinging on technicalities. Quite often, the victims of human smuggling are stranded en route in hostile conditions in foreign countries. Their next of kin in such a situation should be empowered to file criminal complaints or claims for compensation against erring parties. Foreign missions in the consular district of New Delhi should also be brought within the ambit of aggrieved persons so that they can lodge criminal complaints against habitual offenders who deal in bulk fraudulent applications.
In a world without borders, the 2010 Act like the provisions of the Hindu Marriage Act, 1955, should also have extra-territorial application. It is common knowledge that cross border cartels operate from different jurisdictions right from the sending country to the receiving country. No complaint should fail on the ground that monetary consideration was paid outside India and that part of the cause of action took outside the territories of India.
There is need for a strict code for advertising by travel agents and immigration consultancies. There should be an express prohibition on all immigration-related advertisements in the media — print and electronic — for not advertising or canvassing the number of visas allegedly procured by their consultancies. Quite often, such figures of successful applicants are exaggerated and inflated and there is no way by innocent and gullible members of the public to check such projected figures. As for offences, the rules should be applicable to any immigration consultancy, agent, franchisee operating even outside Punjab, if the principal office of the branch of such a concern is situated within Punjab. There should be a clear embargo on canvassing projected time schedules for permanent residency/ settlement in any foreign country.
The provision for a bank guarantee to be furnished by all such licensed immigration operators and travel agencies should be on ad valorem basis and the amount of the bank guarantee should be directly proportional to the number of applications handled by any such consultancy or agency. In terms of compliance requirements, the rules under the said legislation should provide that any licensed immigration consultancy/ travel agency or operator, should file a mandatory quarterly return on the number of applications handled by any such agency or operator with the steering committee constituted under the rules or with the Deputy Commissioner of the respective district, which shall be a pre-condition for the renewal of the annual licence.
To protect students, the rules should prohibit payment of the handsome commission paid to the local agents and franchisees in India by low level foreign universities from the tuition fees paid by the students in India. Over the years, this has promoted a different type of an industry giving fillip to lot of illegal activities on the side to exploit the student avenue. Mass awareness is important. The rules should direct Regional Passport Offices (RPOs) in Punjab to adequately publicise this beneficial piece of legislation, in their respective offices. For the convenience of the public, especially rural youth hailing from the far flung areas of Punjab who are victims of cheating by unscrupulous agents and dubious touts, copies of the legislation translated in Punjabi should be made available at the said RPOs.
One needs to look at the entire gamut of human smuggling. The NRI marriages in Punjab are a very serious problem, especially in terms of abandoned brides. Marriage is also used as a very convenient camouflage for human smuggling. Marriage palace operators provide complete packages to facilitate such commercial marriages. The rules under the legislation in question should bring within its ambit abettors and perpetrators of such sham marriages, or victims of marriages of convenience.
As part of corporate social responsibility obligations, business houses in Punjab should be motivated to take suitable initiatives to publicise the evil effects of human trafficking and the dangers involved in patronising fly-by-night travel agents. The Chief Secretary of Punjab, after constituting a Core Steering and Monitoring Committee, should regularly review the enforcement of the legislation and maintain comprehensive data of complaints and convictions under the said legislation. The Chief Secretary can include in the committee people from different walks of life. This could as well give an opportunity to review the working of the legislation. The core panel could have a dedicated website and email address to create direct access from the public for their viewpoints.
The rules could well stipulate that the Punjab government in close cooperation with the Ministry of External Affairs and Ministry of Overseas Indians Affairs should also interact with all the Embassies and Foreign Missions in the consular district of New Delhi to share their international data of habitual immigration offenders, networks and cartels engaged in the business of human trafficking and human smuggling with the MEA and the MOIA so that they can further share and transmit the available data with the Punjab government. This will prevent illegal migration and ensure greater cross-border cooperation with all member states.
The rules could provide for an Immigration Ombudsman at the regional and district level. This soft option could be organised by complainants who do not have the resources to invoke the due process of law. A savings clause regarding the consumer courts’ jurisdiction for deficiency in service and for refund/ compensation should also be there explicitly in the rules so that the offenders cannot possibly attempt to take refuge of the technicalities of law. We have to wait and see which way the pendulum swings down the road. Hopefully, the letter and spirit of the rules will be at par with the Punjab government’s laudable effort in framing the 2010 legislation.
The writer, a Felix Scholar and associated with Wilton Park, a UK-based think-tank, specialises in areas of immigration and private international law in Chandigarh
Migration :Global perspectives
- Over the years, Wilton Park, a leading UK-based think-tank for discussion of key international policy changes, has been debating key issues relating to migration policies, themes, perceptions, perspectives, trends and its future policy options. According to its 2007 report, legal migration is the most sensitive subject for discussion, particularly in terms of the public debate over numbers.
- The Interpol estimates that India contributes to the largest illegal population in Europe, and an estimated two million Indians cross international borders illegally every year.
- Human trafficking has now become a larger ‘industry’ worldwide than drug trafficking. In India alone, it is a multi-million dollar business.
- Globally, remittances are estimated to be equivalent to three times development aid.
- Members of the European Union already co-operate on shared mechanisms within borders such as Eurodac, a European Union-wide electronic system for the identification of asylum-seekers and illegal immigrants.
- FrontEx is an independent European agency funded by the EU and individual member states. With headquarters in Warsaw, it aims to coordinate the operational co-operation of their external borders.
Patterns of immigration
- According to Wilton Park’s 2008 findings, patterns of immigration and emigration are generally shaped by the long-term economic performance of a country.
- There is likely to be increased competition amongst the more developed countries for highly skilled migrants. On current demographic projections, China, for example, may change from being a source to a destination country.
- Political, religious and ethnic persecution are the key drivers of forced migration, but new displacement scenarios are evolving, including environmental degradation, declining resource, population growth and climate change.
- Factors vary regionally. In South Asia, migration is a well-established livelihood option. In the European Union, migration has been facilitated by the right to free movement of labour.
- Governments will continue to control illegal migration to facilitate the migration flows which they do want.
- Public attitudes to migration are frequently negative.
- Policy responses from South Asian countries have been ad hoc; it is one of the few areas where no regional process is in place for strategic management of migration.
- There are no real indications of the emergence of a leading international migration agency. The International Organisation for Migration could be a candidate.
Areas of concern & reform
- Need to enact a Central legislation to check illegal trafficking, human smuggling and thriving unethical immigration businesses.
- Imperative need for a consolidated work permit visa regime in India for inward foreign migration especially for highly skilled foreign workers which could also be a good source of revenue.
- Spreading of awareness and education of the pitfalls of illegal immigration.
- Need to establish managed migration channels. —Ranjit Malhotra
- Senate panel OKs human-trafficking bill (dispatch.com)
- Tell Ohio: Stop Being a Hub of Human Trafficking (humantrafficking.change.org)
- Proposal on human trafficking might die in legislature’s lame-duck session (dispatch.com)
- Fight to Criminalize Human Trafficking in Ohio Nears Victory (humantrafficking.change.org)
- Liberals come out against Tory human-smuggling bill (theglobeandmail.com)
- Dont outlaw human smugglers drive them out of business (theglobeandmail.com)
- Opposition unites against proposed human smuggling legislation (canada.com)
- Marriages of convenience problems persist (cbc.ca)
- The new route of human smuggling misery (telegraph.co.uk)