In the last issue, we had taken up the subject of the enactment of two landmark laws in the state of Punjab, and how it is a right step in resolving problems faced by the Punjabi diaspora community. In this issue, we continue this and will in future as well, bring you a series of reports on the legal framework in the state. While we focused on the Punjab Compulsory Registration of Marriages Act 2012 in the last issue, we bring you highlights of the Punjab Prevention of Human Smuggling Act 2012 in this issue. As mentioned earlier, this new law too seeks to set a milestone in equitable justice, and makes Punjab one of the first states in the country to enact a human trafficking legislation to provide for the regulation of the travel trade, under the garb and guise of which some unscrupulous elements are even today indulging in illicit and/or fraudulent activities.
HIGHLIGHTS OF THE PUNJAB PREVENTION OF HUMAN SMUGGLING ACT, 2012
The Punjab Prevention of Human Smuggling Act, 2012, which was passed by the state Assembly on 21-12-2012 and implemented upon Notification in the Punjab Government Gazette on 20-08-2013, is now a law that provides for the regulation of the travel trade, with an explicit view to check and curb illegal, fraudulent activities, and malpractices involved in organized human smuggling and for matters connected therewith or incidental thereto. This law has nine noteworthy features.
- 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 investigation be completed within 2 months and be verified by SP. 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.
- Provides for liability of Director, Manager, Company Secretary responsible for the conduct of business when negligence can be attributed.
- Cheating to have the same meaning as under the Indian Penal Code.
1. Travel agent is defined as a person in a profession that involves arranging, managing or conducting affairs related to sending people abroad.
- 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 except for business of recruitment governed by registration under provision of the Emigration Act, 1983.
- Dishonest misrepresentation with intention to achieve wrongful gain for inducing, deception, cheating or allurement for above activities and cheating by personation is punishable under the Act as having same meaning as IPC. If any travel agent wants to advertise or hold seminars, he will have to notify competent authority in writing with complete details of advertisement of seminars.
2. 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.
HIGHLIGHTS OF THE EMIGRATION ACT, 1983
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. Recruiting agents doing business of recruitment have to obtain compulsory registration under the Emigration Act, 1983.
- “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.
PUNJAB PREVENTION OF HUMAN SMUGGLING RULES, 2013: KEY HIGHLIGHTS
Punjab Prevention of Human Smuggling Rules, 2013 for regulating the trade of travel agencies or consultancies and ticketing agents were notified on August 20, 2013 and provide for a licensing regime through notified competent authorities.
By notification dated September 3, 2013, District Magistrates/Additional District Magistrates of each district have been designated as the “Competent Authority” for issuing a licence to undertake the profession of a travel agent.
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.
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.
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.
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.
All illegally acquired property to be confiscated upon trial of offences under the law