Travel agencies, ticketing agents and immigration consultants will now be regulated under a licencing regime created under the Punjab Prevention of Human Smuggling Rules, 2013. It has been made mandatory that all persons falling under the definition of “travel agent” must register their business with District Magistrates all over Punjab notified as competent authorities for granting licences before 31 October. The Punjab Prevention of Human Smuggling Act, 2012, a first of its kind, was enacted on 21 December to check and curb malpractices of organised illegal immigration and related fraudulent activities resulting in repeated tragic loss of human life and property.
EXISTING CENTRAL LEGISLATION
The Emigration Act, 1983, a law made by Parliament, consolidated and amended the law relating to Emigration of citizens of India. It applied only to “recruitment” and “recruiting agents” for whom the registering authority is the Protector General of Emigrants (PGE). Under Section 10 of the Emigration Act, 1983, no person can function as a recruiting agent to commence or carry on the business of recruitment unless registered with the PGE. Further, under Section 15 of the Emigration Act, 1983, all recruiting agents carry on the business of recruitment are required to be obtain a permit from the Protector General of Emigrants. Hence, this Act applies only to recruitment and recruiting agents.
A DIFFERENT CENTRAL LAW
The Emigration Act, 1983 (EA) is a law to consolidate and amend the law relating to emigration of citizens of India. All the recruiting agents or employers working in any place are duty bound to follow the provisions laid down under the EA, before carrying conducting the business of sending people outside India on the pretext of jobs or employment outside India. The recruiting agents or employers not working as per the EA are unlicensed and unauthorised. A Protector of Emigrants is appointed in every State and a Protector General of Emigrants functions at New Delhi under the EA. Both the Protector of Emigrants and the Protector General of Emigrants work under the authority of the Ministry of Overseas Indian Affairs (MOIA). The recruiting agents or employers in a State before commencement and carrying on business of recruitment or overseas employment needs to get a valid registration certificate and a permit which is issued by the Protector of Emigrants in their respective States. Without getting any such registration certificate or a valid permit, the recruiting agent or employer cannot legally conduct the business or send any person abroad. As per the website of The MOIA, www.poeonline.gov.in, where a list of registered recruiting agents registered under the EA is maintained, there are only 47 recruiting agents currently registered in the State of Punjab under the EA. Sadly, lack of a strict law kept the noose away.
UNDEFINED AGENTS
The words “travel agent” and “human smuggling” are not defined under the EA or under any other law made by Parliament. There are thousands of consultants in the State of Punjab who function under the banner or name of various kinds of agents and indulge in the unethical rackets of sending persons abroad by different means and practices. Such agents deny that they conduct the business of recruitment or recruiting agents and hence claim that the provisions of the EA do not apply to them. Those working under the law are outwitted Therefore, the illegal business of human smuggling is unchecked in Punjab and thousands of gullible youth are misled daily by unscrupulous agents who cheat them with impunity. All such unlicensed and unauthorized agents are not governed by any law and there is no check or control on them by virtue of the EA whose dragnet is evaded by them. Since such agents or consultants claim that they do not do the business of recruitment or are recruiting agents. Hence, they do not get registered under the EA or take any permit under the EA.
NEW INITIATIVE
The Government of Punjab is the first State in the country which has enacted the Punjab Prevention of Human Smuggling Act, 2012 to provide for the regulation of the profession of travel agents with a view to check and curb their illegal and fraudulent activities, and malpractices involved in the organized human smuggling in the State of Punjab. This law has seven noteworthy features not covered by any existing Indian law.
· It defines human smuggling and travel agent.
· Provides for a licensing regime for travel agents. Debars persons from operating without a license under the Act.
· Gives power of search, seizure and arrest to Magistrates and Police Officials.
· 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.
· In addition to imposing penalties, provides award of reasonable compensation to be paid to aggrieved person by travel agent.
· Identifies defined variable punishment for offences under the Act.
· Authorises 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 permit 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.
JUSTIFICATION FOR NEW RULES
The licensing regime of travel agents is a positive step of the Government of Punjab in registering travel agents who otherwise have no law to check and control them. All such consultants, travel agents and other such persons or institutions carrying on business of sending persons abroad evade the definition of recruitment and recruitment agent under the EA and hence do not take any registration or permit under the EA. Hence all such travel agents and consultants cannot be registered with the Protector General of Emigrants under the EA. Therefore, the Punjab Prevention of Human Smuggling Act, 2012 is a positive, healthy, productive and citizen oriented legislation meant for protecting the rights of the susceptible citizens of Punjab whose rights and valuable assets are protected by this well meaning law. A dire need has been fulfilled to create a separate machinery and mechanism for registering the travel agents and consultants under the Punjab Prevention of Human Smuggling Act, 2012. There is no duplication or overlapping of powers with the EA and no conflict arises between the two laws which can have separate mechanisms for implementation. However, the Punjab law, a welcome move, will have jurisdictional constraints. The Parliament in its wisdom could consider enacting a Central law whose umbrella will protect and shied the entire nation from the unscrupulous activities of human smugglers. Trading in human lives for commercial gains must be obliterated.
HIGHLIGHTS - PUNJAB PREVENTION OF HUMAN SMUGGLING RULES, 2013
Ø Applications for licences to be accompanied by fee of Rupees one lac for agents in existence for more than years, Rs.25,000 for less than five years and Rs.25,000 for ticketing agents. Records in electronic form and soft copies to be kept by agents.
Ø Residence certificates, proof of age, identity, passport, PAN card, Income Tax Returns, bank statements, satisfaction of credibility and no criminal record to accompany applications. For NRI agents, social security number, permission of foreign country of operations and RBI sanction additionally to be furnished.
Ø Applicants must not be insolvent or bankrupt, should have no involvement in crimes as per police records, should not hold office of profit, should not be barred by Agents Associations, must have adequate space or accommodation and must maintain records and fee charged by them to be furnished to State Government.
Ø Licences to be issued for five years, renewable upon furnishing Income Tax Return and Statement of Bank Accounts. Refusal to grant or renew license appealable to Government. All activities of agents to be monitored under the new rules.
Ø All illegally acquired property to be confiscated upon trial of offences under the law
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