Upon a suo-moto initiative by the Punjab & Haryana High Court in a Court of its Own Motion Petition based on a Tribune newspaper report dated 12 January, 2006, highlighting the plight of Punjabi youth stranded in Iraq, and subsequent Court directions, Punjab was the first State in the country to enact a Human Smuggling law but now it seems to be dragging its feet to actually enforce and implement it. The Punjab Vidhan Sabha passed The Punjab Prevention of Human Smuggling Bill, 2010 in its sitting held on October 1, 2010. In another recent Public Interest Litigation Petition at the High Court, it was reportedly stated that the said Bill was thereafter reserved by the Governor of Punjab for consideration and for assent of The President of India under Article 254 (2) of the Constitution of India which provides that if there is an inconsistency between laws made by Parliament and laws made by a State Legislature, such law shall prevail in the State only upon Presidential assent. Since then, the said Human Smuggling Bill, was upon this reference doing bureaucratic rounds with various Central Government Ministries and now upon the comments of the Ministry of Overseas Indian Affairs, it has been returned to the Government of Punjab. Reportedly, the human smuggling law in waiting will again be further processed in New Delhi upon answers provided by Punjab Government.Till then, the dilemma continues.
With the merchants of death running thriving rackets of human smuggling in Punjab 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. No doubt, the smuggling of migrants is a deadly business that must be combated as a matter of grave urgency. Alas, that is not happening. But, we need to know why and because of whom it is so?
The Punjab Prevention of Human Smuggling Act, 2010 was described as an Act 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. This law has seven noteworthy features.
For the first time, it defines \'\'human smuggling\'\' and \'\'travel agent\'\'.
Provides for a licensing regime for agents and requires compulsory bank Guarantees.
Gives power of search, seizure and arrest.
Creates special designated Courts for trials under the Act.
Identifies defined variable punishment for offences under the Act.
Provides for making of complaints by aggrieved persons to Judicial Magistrates for trial before Special Courts.
Authorises Special Courts to decide whether any illegally acquired property is liable to be confiscated.
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. 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.
Over a year has elapsed, since the Punjab Human Smuggling Law gathers dust while naive youth fall prey to agents and land up working as slave labour in ammunition dumped 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.
The moot question today however poses to ask if the Punjab Prevention of Human Smuggling Bill, 2010 necessitated any Presidential assent under Article 254(2) of the Constitution. Is the Punjab Human Smuggling Bill repugnant to The Emigration Act, 1983 requiring a Presidential reference. In the opinion of the author, upon introspection the answer seems to be in the negative because the two laws are not inconsistent or repugnant to each other. The Emigration Act, 1983 provides for checks, controls, balances by enacting a licensing regime for \'\'recruiting agents,\'\' for \'\'emigration\'\' purposes which find definition in the following words in the said Act.
\'\'Recruiting Agent\'\' means a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter in relation to such recruitment including dealings with persons so recruited or desiring to be so recruited.
\'\'Emigrate and Emigration\'\' means the departure out of India of any person with a view to taking up any employment (whether or not under an agreement or other arrangements to take up such employment and whether with or without the assistance of a recruiting agent or a employer) in any country or place outside India.
The Emigration Act, 1983, creates a \'\'Protector of Emigrants\'\' for providing emigration clearance to ensure that conditions of employment of Indian citizens are not discriminatory, exploitative, unlawful, against public policy, violative of norms of human dignity & decency, besides, do not prescribe sub-standard working or living conditions. The ambit of the Act extends to Indian citizens only and exempts control of recruiting in India for service of foreign States. Clearly, the regulatory provisions of the Central Act, provides beneficial legislation to reign in Indian recruiting agents operating in India..
In contrast, the Punjab Prevention of Human Smuggling Act, 2010, enacted to provide a licensing regime for travel agents with penal provisions, has similar regulatory functions to check human smuggling. The words \'\'travel agent\'\' and \'\'human smuggling\'\' in the Punjab Act, find definition in the following words:
\'\'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 .
\'\'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.
It is further stated in the Punjab Act, that \'\'cheating\'\' shall have the same meaning as assigned to it in Sections 415 and 416 of the Indian Penal Code, 1860. Therefore, the Punjab Human Smuggling Act, looks at the menace of human smuggling by defining it as an offence and creates a process for its regulatory enforcement by compulsory registration and imposition of punishment upon violations through a legal process prescribed in the Punjab Act.
Hence, placing both the Acts i.e. the Emigration Act, 1983 and the Punjab Prevention of Human Smuggling Act, 2010, 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. To the author, they neither appear 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. It does not appear that Punjab has enacted a law which will be in conflict or repugnant to the existing law already enacted by Parliament In fact, human smuggling is a silent issue in the Emigration Act.. Thus, even though the subjects of both enactments relating to criminal law, criminal procedure, actionable claims, 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 Article 246(1), the prerogative of the Parliament to legislate extends exclusively to the subject of Emigration prescribed in the Union list, whereas, for the aforesaid remaining subjects, Article 246 (2) of the Constitution, empowers the Punjab State 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.
In the line of the above thought, it may not be justiciable to question the matter once it is legitimately the prerogative of Presidential Assent, however, the process and reasoning adopted by the State of Punjab in making the Human Smuggling Bill a subject posed for Presidential Assent can be looked into. If the Punjab law does not fall foul of any existing Central law, clearly, it is within the domain of the Punjab State to enact it. Once the State Legislature has enacted the law, which it is competent to make and, which is not repugnant to any existing Central law, the matter assumes finality on the assent of the Governor of the State of Punjab. Fortifying this thought is the dismal need of Punjab to stamp out the menace of human smuggling run by merchants of death who daily sacrifice precious human lives on the altar of their selfish gains. The State of Punjab can no longer afford to be a silent spectator and must act to enforce and implement powers in its domain without abject surrender. The authority of law vested in the State must be exercised to enforce this law.Punjab should not kill its own initiative.
*The author practices at The High Court and has co-authored Indians, NRIs & the Law, India,NRIs &The Law, and Acting For Non Resident Indian Clients. He is a member of the UT NRI Cell.
email: anilmalhotra1960@gmail.com
*The author practices at The High Court and has co-authored Indians, NRIs &the Law, India,NRIs &The Law, and Acting For Non Resident Indian Clients. He is a member of the UT NRI Cell.
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Advocate Anil Malhotra (The views expressed in the article are the own views of writer),
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