[Guest Post] Immigration and Law: The Dark Side

This post has been contributed by Mr Anil Malhotra, BSc. LL.B (Punjab), LL.M (London) who heads the firm Malhotra and Malhotra Associates, headquartered at Chandigarh, India. Mr Malhotra has to his credit seven books pertaining to issues of private international law. He can be reached at anilmalhotra1960@gmail.com.

Background

Editor’s note: The problem of illegal immigration is not new to any country and in many countries it is a criminal offence. Off lately, countries have been adopting protectionism measures with illegal immigration on top of their to-do list. While there are regulations to prevent illegal immigration, the other side of the story is not much highlighted – i.e. the story of gullible immigrants (illegal). 

Syria had no information about 39 Indians from Punjab who had gone missing after the IS took control of Mosul in 2014. In the Malta boat tragedy in 1996, 289 South Asians including about 170 youth from Punjab seeking illegal foreign passage found a watery grave in the Ionian Sea. The tragedy was repeated when about 20 Punjab residents heading to the USA reportedly drowned near the Panama – Colombian coast when a vessel ferrying the illegal immigrants capsized.

Sad but true, merchants of death run thriving rackets of human smuggling without fear or abandon, trapping gullible youth with dollar dreams. Innocent citizens are duped daily and this organised crime perpetuates horror and misery flourishing by the day with impunity and utter disregard for law.

The real problem

The naive youth fall prey to agents and land up working as slave labor 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 with 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.

Smuggled migrants are vulnerable to exploitation. Their lives are put at risk. The victims have suffocated in containers at high seas, perished in deserts, drowned in oceans or have been herded as forced labor in slave camps. Smugglers of human beings conduct their activities brazenly with no regard for the safety of life.

Survivors tell harrowing tales of their ordeal. Forced to sit in body waste, deprived of food and water, they have watched those around them die to be thrown overboard and dumped at sea or perished on road sides. Those apprehended, languish in foreign jails, with no hope of return. Smuggling of illegal immigrants generates high net worth profits at hands of mafias who fuel corruption and ignite organised crime. Such movement is a deadly business, which like terror strikes, has to be now combated with grave urgency.

How far is the law from reality?

Punjab is the only State to enact the Punjab Human Smuggling Act, 2012, which was rechristened as the Punjab Travels Professional Regulation Act, 2012. It seeks to provide a mandatory registration and licensing regime for any and every category of persons conducting any activity akin to a travel agent that involves arranging, managing or conducting affairs related to sending people abroad. It debars agents operating without a license. Violation entails penalties. Punishment up to seven years of imprisonment is prescribed and compensation is payable by an agent to an aggrieved person upon adjudication. Cheating as defined in criminal law is applicable. Regardless, the malady thrives as agents choose not to register. Unscrupulous fly by night operators take advantage, trading in death hoodwinking gullible youth to foreign pastures who never reach their El Dorado. Those trapped are obliterated, never to return and condemned to die.

Prevention is better than cure. Here, no law made by Parliament provides either. The Emigration Act, 1983, authorizes a Protector General of Emigrants to authorize emigration clearance to Indian immigrants, to prevent exploitation at hands of recruiting agents who duck mandatory registration and licensing by claiming that they do not conduct recruitment. In stark reality, recruitment agents exploit Indian workers by unfair contracts on false promises, never to be caught being registered under no law. The Punjab law is avoided by claiming that agents are consultants requiring no registration under the State law. It is a free trading with no check or control. Authority of law vested in the State must be exercised to enforce this law.

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 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 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.

Concluding Proposition

Sadly, The Emigration Act, 1983 which is an Act to consolidate and amend the law relating to the 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 an Indian human smuggling law is a crying need. Piecemeal state legislation with the 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. Bringing back Indians in coffins is not enough. It does not salvage the situation but compounds it.

Editor’s note:

In 2016, the Ministry for Women and Children unveiled India’s first ever anti-trafficking bill i.e. Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2016. By the end of 2017, it was news that this bill is all set to become a law.

 

Highlights of the Bill.

Picture Courtesy: The Times of India

 

 

 

 

 

 

Post image from here.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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