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International Family Law

The leading authority on international family law

21 JUL 2014

Lessons not learnt

Lessons not learnt
By Anil Malhotra
A horror story with shades of the Kandahar hijack incident and hostage exchange for release of terrorists has been circumvented. Recently 46 Indian nurses released from the captivity by Islamic State of Iraq and Syria (ISIS) militants were flown back to India in a special Air India flight along with 70 other Indians who wished to flee Iraq. The tale has not ended. The saga has just begun. The fate of 40 other Indian denizens mostly hailing from the north, reportedly in captivity of the Jihadi militants groups, still remains uncertain. About 10,000 Indian workers struggle for existence in strife torn Iraq. How, when, where and through whom will they come back nobody knows. The sad chronicle is not of Punjab alone. Andhra, Tamil Nadu, Kerala and Karnataka pitch in their fair share. An estimate says that over four lakh nurses from Kerala work abroad and about 1,000 are still said to be in Iraq. Exploitation is writ large.

Thousands from Punjab add on. The diaspora of 30 million NRIs in 180 nations is swelling. Some have prospered. Others are devastated. Economic necessity, exploitation by unscrupulous agents and foreign demands glitter the path to the patch of grass which is not green on the other side. A 2012 Irregular Migration CARIM India study supplementing a 2009 report of UNODC reveals a flourishing immigration carrier–agent racket fleecing between Rs 2 lakh and Rs 10 lakh for paving passages to hell with forged travel documents, fictitious employment promises and miserable living conditions. Day in and day out, more and more gullible Indian youth fall prey. The 2012 CARIM-India outlines “the modus operandi of agents include jacket substitution, photo substitution in Indian and foreign passports, re-stitching and tampering of passports, use of forged and stolen visas, use of forged residence permits, employment visas and fabricated seals or stamps, exchange of boarding cards at security areas in airports, tutoring to claim asylum and encouraging over stay on tourist visas” as commonly used methods for illegal immigration. Agents involved in this deathly trade of irregular migration are reported to work in collaboration with links of international chains emanating from the country of origin to transit to destination points with fee being shared at different levels.

The report reveals “Punjabi fascination for alien shores translates into a fanatical mania bordering on suicidal desperation, tragic tales of illegal immigration, of unrequited ambition, of dreams turning sour, of precious lives lost, are written and re-written. Even today, an average Punjabi youth would go to any lengths, bear any costs and adopt any means – legal or illegal – to cross the seven seas to start a new life in a new country. The faster the law catches up, the more ingenuous he becomes. With each dawn, his mind devises newer means to immigrate. Immigration is a natural way of growth, both for the individual and the nations. Illegal immigrants are ready to brave anything, hide as stowaways in tankers or trucks, trek for several days at a stretch, bear frostbites lose limbs, starve, risk detention and serving jail terms, be exiled to live in gurdwara or be caught and shot by mercenaries.” The Malta boat tragedy in 1996 saw 170 Indians, of which 88 were Punjabi youth, drowning in the Ionian Sea in their unsuccessful venture to immigrate illegally to Greece.

In 2011, about 100 Punjabi youth, sold to American agents were held in captivity. Under the watchful eyes of AK 47 totting guards, they were forced to clear explosives from agricultural fields in which remnants of the 2003 Gulf war and other ammunition were scattered. With a herculean effort and upon high court intervention, their lives were spared and they reached back home. They were trained as para legal brand ambassadors to educate others not to follow the beaten path leading to despair. The Emigration Act, 1983, (EA) which is an Act to consolidate and amend the law relating to emigration of citizens of India applies only to “recruitment” and “recruiting agents” for whom the registering authority is the “Protector of Emigrants” (POE) who also issues permits for this business. The Ministry of Overseas Indian Affairs website www.poeonline.gov.in indicates 47 recruiting agents registered in Punjab under this Act. Pseudo agents claim immunity from registration or taking permits under the EA. A flaccid checking mechanism under the EA lets them get away. The Centre does not look at human smuggling as an offence under this law. Punjab is the first state in the country which has enacted The Punjab Travel Professionals Regulation Act, 2012, as amended in 2014, with supporting rules of 2013, to provide for the regulation of the profession of travel agents with a view to check and curb their illegal and fraudulent activities, as also to penalise malpractices involved in the organised human smuggling rackets flourishing in Punjab.

This state law among other things defines human smuggling and travel agent including all ticketing agents and provides for a licensing regime for travel agents. Sadly, even though this benevolent legislation provides succour to the much-needed cancerous ailment of regulating the profession of travel agents and consultants as a lawful solution, the implementation of this new law remains a far cry. Where then does the solution lie? The youth and their families need to be educated about the pitfalls of illegal migration. Also, meaningful sources of self-employment or vocational avenues at home need to be identified and publicised. All those who observe clean practices in this business must realise that those who register will have credibility against those who do not and ultimately all illegal, unethical and unregistered agents will phase out. The long term solution is legislation to rein and herd in all concerned. The 1983 EA has out lived its utility. It must be replaced with a new law. More human lives cannot be put to stake. We must learn from Iraq. Otherwise, the bubble will burst again and a crisis will proliferate again.

(The author is a practicing lawyer based in Chandigarh). He can be reached at anilmalhotra1960@gmail.com.

International Survey of Family Law: 2014 Edition, The

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International Family Law

International Family Law

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