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EMIGRATION ACT, 1983

EMIGRATION ACT, 1983

31 OF 1983

STATEMENT OF OBJECTS AND REASONS The Emigration Act, 1922 which governs the regulation of emigration of skilled and unskilled workers from India was tailored to meet the requirements of a different era and has gradually ceased to be an effective regulatory instrument. During the past five years or so, with the rapidly increasing flow of Indian workers to foreign countries for employment purposes, the subject emigration has become a matter of increasing concern both for Government and the public in general. The Government had initiated a system of registration of recruiting agents and laid down certain minimum terms and conditions of service on which emigration of different categories of workers was to be allowed. The Supreme Court in its order dated 20th March, 1979 in the case of Kanga and others versus the Union of India laid down four basic conditions according to which emigration of Indian workers was to be regulated until the passage of a new legislation on the subject. This order was issued on the basis of information provided to the Supreme Court that Government was in the process of introducing a new legislation on the subject which was expected to be finalised by July, 1979. This, however, could not be accomplished and on August 21, 1979, the Supreme Court reiterated that emigration applications will be processed in accordance with the conditions laid down earlier and that no new conditions should be imposed by the Government except by new legislation or rules. Following the Supreme Court order of August, 1979, which, in effect, took away from the Government the power to scrutinise terms and conditions of Indian workers emigrating abroad for employment, action had been taken to bring legislation for the purpose. The present Bill is the culmination of these efforts. 2. The following are the salient features of the Bill:- (i) No Indian citizen (unless exempted) can leave India for taking up abroad work as defined in the Bill without obtaining a certificate of emigration clearance from the Protector of Emigrants. (ii) An emigrant worker can be recruited for a job in a foreign country either by a recruiting agent registered under the Act or by an employer, subject to his being permitted to do so under the Act. (iii) No prior scrutiny of applications for registration of agents is required. Registration of recruiting agent has been made subject to an affidavit, an undertaking and an amount of security which shall not be less than rupees one lakh. When a certificate issued to a person has been cancelled, he shall not be eligible to make any application for another certificate until a period of two years from the date of such cancellation. (iv) The decisions of the specified authorities in regard to cancellation, suspension and rejection of permits, registration and other matters are appealable to the

Central Government. (v) Taking into account the concern expressed at various forums on

the matter of exploitation of emigrants by recruiting agents and employers, provision has

been made for offences of this nature and punishment by way of imprisonment up to a

period of two years and fine up to two thousand rupees have been provided in the Bill. (vi) Provision has been made for the repeal of

the Emigration Act, 1922. 3. The Bill seeks to achieve the above objects. -Gaz. of Ind., 26- 7-83, Pt. II, S. 2, Ext., p. 20 (No. 19). An Act to consolidate and amend the law relating to emigration of citizens of India. BE it enacted by Parliament in the Thirty-Fourth Year of the Republic of India as follows : -

SECTION 01: SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT

(1) This Act may be called the Emigration Act, 1983-

(2) It extends to the whole of India and applies also to citizens of India, outside India.

(3) It shall come into force on such date1as the Central Government may, by notification,

appoint and different dates may be appointed for different provisions of this Act and any

reference in any such provision to the commencement of this Act shall be construed as a

reference to the commencement of that provision

SECTION 02: DEFINITIONS

(1) In this Act, unless the context otherwise requires,-

(a) "certificate" means a certificate of registration issued under section 11-;

(b) "conveyance" includes a vessel, vehicle, country-craft and an aircraft;

(d) "emigrant" means any citizen of India who intends to emigrate or emigrates, or has emigrated but does not include -

(i) a dependent of an emigrant, whether such dependent accompanies that emigrant or departs subsequently for the purpose of joining that emigrant in the country to which that emigrant has lawfully emigrated;

(ii) any person who has resided outside India at any time after attaining the age of eighteen years, for not less than three years or the spouse or child of such person,

(e) "emigrant conveyance" means any conveyance specially chartered for conveyance of emigrants or for conveying emigrants exceeding such number as may be prescribed : Provided that the Central Government may by notification, declare that any conveyance conveying emigrants to such place as may be specified in the notification shall not be deemed to be an emigrant conveyance;

(f) "emigrate" and "emigration" mean 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 employer) in any country or place outside India,

(g) "employer" means any person providing or offering to provide, employment in any country or place outside India;

(h) "employment" means any service, occupation or engagement (not being service, occupation or engagement under the Central Government or a State Government), in any kind of work within the meaning of clause (o), for wages or for reward, and all its grammatical variations and cognate expressions shall be construed accordingly;

(i) "notification" means a notification published in the Official Gazette;

(j) "prescribed" means prescribed by rules made under this Act:

(k) "Protector of Emigrants" means a Protector of Emigrants appointed under section 3-and includes a person authorised under section 5-;

(1) "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 Definitions (m) "recruitment" includes the issuing of any advertisement for the purpose of recruitment, the offering by advertisement to secure or assist in securing any employment in any country or place outside India and the entering into any correspondence, negotiation agreement or arrangement with any individual for or in

relation to the employment of such individual in any country or place outside India,

(n) "registering authority" means the officer appointed under section 9-to be the registering authority for the purposes of this Act,

(o) "work" means-

(i) any unskilled work, including any form of industrial or agricultural labour

(ii) any domestic service

(iii) any service not being a service in a managerial capacity in any hotel, restaurant, tea-house or other place of public resort

(iv) work as a driver of a truck or other vehicle, mechanic, technician or skilled labourer or artisan;

(v) work as an office assistant or accountant or typist or stenographer or sales man, or nurse or operator of any mechine;

(vi) work in connection with, or for the purposes of, any cinema, exhibition or entertainment;

(vii) any such work of professional or of any other nature as the Central Government may, having regard to the need for the protection of citizens of India who may be employed in such work outside India and other relevant circumstances, specify by notification: Provided that the Central Government may, if satisfied that it is necessary so to do having regard to the conditions of service applicable with respect to employment in any of the aforementioned categories of work or any sub-category thereof, whether

generally or in relation to any particular country or place and other relevant circumstances, declare by Notification that such category of work or sub-category of work shall not be deemed to be work within the meaning of this definition.

(2) Any reference in this Act to any law which is not in force in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force in that area.

SECTION 03: PROTECTORS OF EMIGRANTS

(1) The Central Government may, by notification, appoint a Protector General of emigrants and as many Protectors of Emigrants, as it deems fit, for the purposes of this Act.

(2) The Central Government may, by general or special order, define the area to which the authority of a Protector of Emigrants, so appointed shall extend and, where two or more Protectors of Emigrants are appointed for the same area, also provide, by such order, for the distribution and allocation of work to be performed under this Act in relation to such area.

(3) The Protectors of Emigrants shall perform the functions assigned to them by or under this Act under the general superintendence and control of the Protector General of Emigrants.

(4) The Protector General of Emigrants may, in addition to the special functions assigned to him by or under this Act, perform all or any of the functions assigned to any Protector of Emigrants.

SECTION 04: GENERAL DUTIES OF PROTECTORS OF EMIGRANTS- Subject to the other provisions of this Act, every Protector of Emigrants shall, in addition to the special duties assigned to him by or under this Act -

(a) protect and aid with his advice all intending emigrants and emigrants;

(b) cause, so far as he can, all the provisions of this Act and of the rules made thereunder to be complied with;

(i) any emigrant conveyance, or

(ii) any other conveyance if he has reason to believe that any intending emigrants are proceeding from, or returning to India to or from a place outside India by such other conveyance;

(d) inquire into the treatment received by emigrants during their voyage or journey to, and during the period of their residence in the country to which they emigrated and also during the return voyage or journey to India and report thereon to the Protector General of Emigrants or such other authority as may be prescribed;

(e) aid and advise, so far as he reasonably can, emigrants who have returned to India.

SECTION 05: POWER TO AUTHORISE PERSONS TO EXERCISE FUNCTIONS OF A PROTECTOR

The Central Government may, if satisfied that it is necessary so to do in the interest of emigrants or intending emigrants, authorise any person to perform all or any of the functions of a Protector of Emigrants under this Act.

SECTION 06: EMIGRATION CHECK POSTS

(1) Where the Central Government considers that, with a view to preventing or checking the contravention of the provisions of this Act, it is necessary so to do, it may, by notification, set up such number of emigration check-posts at such places as may be specified.

(2) The Central Government may by general or special order made in this behalf, appoint an officer of the Central Government or of a State Government to be an officer in charge of an emigration check-post set up under sub-section (1).

(3) An officer in charge of an emigration check-post shall be subject to the general control and supervision of the Protector of Emigrants within the local limits of whose jurisdiction that emigration check-post is situated.

SECTION 07: OTHER EMIGRATION OFFICERS AND STAFF

The Central Government may appoint such other officers and employees (hereinafter referred to as the emigration officers and emigration employees), as it may think fit, to assist the Protector General of Emigrants and the Protectors of Emigrants in the performance of their duties under this Act.

SECTION 08: EMIGRATION OFFICERS TO BE PUBLIC SERVANTS

The Protector General of Emigrants, Protectors of Emigrants, the officers in charge of emigration check-posts, emigration officers and emigration employees appointed under this Act shall be public servants within the meaning of section 21 of the Indian Penal Code-

SECTION 09: REGISTERING AUTHORITY

The Central Government may, by notification2, appoint the Protector General of Emigrants or any other officer of that Government of a rank higher than that of Protector of Emigrants to be the registering authority for the purposes of this Act.

SECTION 10: NO PERSON TO FUNCTION AS RECRUITING AGENT WITHOUT A VALID CERTIFICATE

Save as otherwise provided in this Act, no recruiting agent shall, after the commencement of this Act, commence or carry on the business of recruitment except under and in accordance with a certificate issued in that behalf by the registering authority. Provided that a person carrying on the business of recruiting agent immediately before the commencement of this Act may continue to carry on such business without such a certificate for a period of one month from such commencement, and if he has made an application for such certificate under this Act within the said period of one month and such application is in the prescribed form and contains the prescribed particulars, till the disposal of such application by the registering authority.

SECTION 11: APPLICATION FOR REGISTRATION

(1) An application for registration shall be made to the registering authority in such form and shall contain such particulars as to the applicants, financial soundness trustworthiness, premises at which he intends to carry on his business, facilities at his disposal for recruitment, his antecedents (including information as to whether any certificate had been issued to him under this Chapter earlier and if so, whether such certificate had been cancelled) and previous experience, if any, of recruitment and other relevant matters as may be prescribed and shall be accompanied by a receipt evidencing the payment of the prescribed fee and an affidavit giving his current financial standing and an undertaking in the form prescribed to the effect that in the event of any information furnished in or along with the application for registration being found

to be false or incorrect in any respect, the certificate shall be liable to be cancelled at any time in accordance with the procedure prescribed: Provided that no application shall be entertained under this sub-section from a person disqualified under sub-section (6) of section 14-till the expiry of the period of such disqualification.

(2) On receipt of such application, the registering authority shall,-

(a) if the application is not in the prescribed form or does not contain any of the prescribed particulars, return the application to the applicant.

(b) if the application is in the prescribed form and contains the prescribed particulars, inform the applicant that he is eligible for the grant of the certificate applied for and, after giving the applicant an opportunity to be heard, determine, under sub-section (3), the amount of the security which the applicant shall furnish.

(3) The registering authority shall, for securing the due performance of the terms and

conditions of the certificate proposed to be issued by it under sub-section (2) to an applicant and for securing compliance with the provision of this Act and the rules made there under and for meeting expenses which may have to be incurred in the event of the repatriation to India of any of the emigrants who may be recruited by the applicant, determine, in accordance with the rules made in this behalf, the amount of security (not being in any case less than one lakh of rupees) which shall be furnished by the applicant.

(4) If an applicant furnishes in the prescribed manner the amount of security determined under sub-section (3) within a period of one month from the date on which the registering authority requires him to furnish such security he shall be issued the certificate applied for by him together with an endorsement thereon to the effect that the security required has been furnished by him.

(5) If an applicant fails to furnish the security required to be furnished by him within the period specified in sub-section (4), this application shall be deemed to have been rejected by the registering authority on the date of expiry of that period

SECTION 12: TERMS AND CONDITIONS OF REGISTRATION

- A certificate issued under section 11-shall be-

(a) in such form as may be prescribed :

(b) valid for such period not exceeding five years as may be prescribed : Provided that a

certificate may be issued for a period shorter than the prescribed period -

(i) if the person to whom it is issued so desires; or

(ii) if the registering authority, for reasons to be communicated in writing to the applicant for the certificate, considers in any case that the certificate should be issued for a shorter period;

(c) subject to such other terms and conditions, including in particular, the maintenance by the holder of the certificate of the prescribed records containing details of his financial transactions in regard to recruitment, person recruited or assisted to emigrate by him, employers concerned, contracts and other arrangements entered into in connection with recruitment, as may be prescribed : Provided that a certificate may contain, in addition to the prescribed terms and conditions such other terms and conditions as the registering authority may, for securing the purposes of this Act, impose in any particular case.

SECTION 13: RENEWAL OF REGISTRATION

A certificate may be renewed from time to time and the provisions of this Act and the rules made there under (including provisions as to fees) shall apply to the renewal of a certificate as they apply to the issue thereof: Provided that no certificate shall be renewed unless the application for its renewal is made not less than three months prior to the date on which the certificate would, but for such renewal, cease to be valid : Provided further that the registering authority may entertain an application for the renewal of certificate which has been made at any time during the period of three months prior to the date on which the certificate would, but for such renewal, cease to be valid if the applicant satisfies the registering authority that he had sufficient cause for not making such application before the said period.

SECTION 14: CANCELLATION, SUSPENSION, ETC., OF A CERTIFICATE

(1) The registering authority may cancel any certificate on any one or more of the following grounds and on no other ground namely:-

(a) that having regard to the manner in which the holder of the certificate has carried on his business or any deterioration in his financial position, the facilities at his disposal for recruitment, the holder of the certificate is not a fit person to continue to hold the certificate;

(b) that the holder of the certificate has recruited emigrants for purposes pre-judicial to the interests of India or for purposes contrary to public policy,

(c) that the holder of the certificate has, subsequent to the issue of the certificate, been convicted in lndia for any offence involving moral turpitude;

(d) that the holder of the certificate has, subsequent to the issue of the certificate, been convicted by a court in India for any offence under this Act, the Emigration Act, 1922-, or any other law relating to passports, foreign exchange, drugs narcotics or smuggling and sentenced in respect thereof to imprisonment for not less than six months;

(e) that the certificate has been issued or renewed on misrepresentation or suppression of any material fact;

(f) that the holder of the certificate has violated any of the terms and conditions of the certificate;

(g) that in the opinion of the Central Government it is necessary in the interests of friendly relations of India with any foreign country or in the interests of the general public to cancel the certificate.

(2) Where the registering authority, for reasons to be recorded in writing, is satisfied that pending the consideration of the question of cancelling any certificate on any of the grounds mentioned in sub-section (1) it is necessary so to do, the registering authority may, by order in writing, suspend the operation of the certificate for such period not exceeding thirty days as may be specified in the order and require the holder of the certificate to show cause, within fifteen days from the date of receipt of such order, as to why the suspension of the certificate should not be extended till the determination of the question as to whether the registration should be cancelled.

(3) A court convicting a holder of a certificate for an offence under this Act may also cancel the certificate: Provided that if the, conviction is set aside in appeal or otherwise, the cancellation under sub-section (3) shall become void.

(4) An order of cancellation of a certificate may be made under sub-section (3) by an appellate court or by a court exercising its powers of revision.

(5) Before passing an order cancelling or suspending a certificate the registering authority or the court, as the case may be, shall consider the question as to the provisions and arrangements which should be made for safeguarding the interests of emigrants and other persons with whom the holder of the certificate had any transactions in the course of his business as recruiting agent and may make such orders (including orders permitting the holder of the certificate to continue to carry on his business with respect to all or any of such emigrants and other persons) as it may consider necessary in this behalf.

(6) Where a certificate issued to any person has been cancelled under this section, such person shall not be eligible to make any application for another certificate under this Chapter until the expiry of a period of two years from the date of such cancellation

SECTION 15: COMPETENT AUTHORITY

(1) The Central Government may, by notification, appoint the Protector General of Emigrants or any other officer of that Government of a rank higher than that of a Protector of Emigrants to be the authority (hereinafter referred to as the competent authority) for issuing permits under this Chapter.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, by notification, authorise any person who is employed under that Government in any country or place outside India to exercise the powers of the competent authority, and issue permits under this Chapter to employers who are not citizens of India for the purpose of recruiting any citizen of India for employment in such country or place and a person so authorised shall endorse a duly certified copy of every permit issued by him under this Chapter to the Protector General of Emigrants.

SECTION 16: RECRUITMENT BY EMPLOYERS TO BE THROUGH RECRUITING AGENT OR UNDER PERMIT

Save as otherwise provided by or under this Act, no employer shall recruit any citizen of India for employment in any country or place outside India except-

(a) through a recruiting agent competent under this Act to make such recruitment, or

(b) in accordance with a valid permit issued in this behalf under this Chapter.

SECTION 17: PROCEDURE FOR OBTAINING PERMITS

(1) An employer desiring to obtain a permit under this Chapter may make an application in that behalf in the prescribed form to the competent authority.

(2) On receipt of such application, the competent authority shall, subject to any rules made in this behalf, make such inquiry as he may deem necessary and grant the permit applied for or reject the application. Provided that before granting a permit the competent authority may require the applicant to comply with such conditions as may be prescribed, including conditions as to furnishing of security and such other conditions as that authority may, for reasons to be recorded in writing, deem necessary in the interests of the citizens of India likely to be recruited by the applicant.

(3) Subject to the other provisions of this Act, the competent authority may reject an.

application under sub-section (1) on any one or more of the following grounds and on no other ground, namely,-

(a) that the application is not complete in all respects or that any of the material particulars furnished in the application are not true;

(b) that the terms and conditions of employment which the applicant proposes to offer to persons recruited or proposed to be recruited by him are discriminatory or exploitative;

(c) that the employment which the applicant proposes to offer involves work of a nature which is unlawful according to the laws of India or offends against the public policy of India or is violative of norms of human dignity and decency;

(d) that having regard to the antecedents of the applicant, his financial standing, the facilities at his disposal, the working and living conditions of persons employed by him in the past, it would not be in the public interest or in the interests of the persons who may be recruited by him, to issue a permit to him;

(e) that having regard to the prevailing circumstances in the country or in the place where the applicant proposes to employ the persons recruited by him, it would not be in the interests of any citizen of India to emigrate for taking up such employment.

(4) Where the competent authority makes an order under sub-section (2) rejecting an

application, he shall record in writing a brief statement of his reasons for making such order and furnish the applicant, on demand, a copy of the same : Provided that if the competent authority is of the opinion that it is necessary or expedient in the interests of friendly relations with a foreign country or in the interests of the general public so to do, he may refuse to provide such copy or, as the case may be, furnish a copy of only such parts of the statement as he may deem fit

SECTION 18: PERIOD OF VALIDITY OF PERMIT

A permit issued under section 17-shall be valid till the expiry of such period, not exceeding one year, as may be prescribed, from the date of issue thereof, or till the recruitment of the persons for whose recruitment such permit is issued is completed, whichever is earlier: Provided that where the holder of the permit has been unable for sufficient cause, to complete such recruitment before the expiry of the prescribed period, the prescribed authority may, subject to rules made in this behalf, extend the period of validity of the permit by such further period or periods, not exceeding three months at a time.

SECTION 19: REGISTRATION OF CERTAIN PERMITS

Any permit obtained from a person authorised under sub-section (2) ofsection 15-shall not be valid unless a certified copy thereof is filed in the prescribed manner with the Protector General of Emigrants.

SECTION 20: CANCELLATION OR SUSPENSION OF A PERMIT

The provisions of section 14-relating to cancellation and suspension of a certificate referred to therein shall, subject to such modifications as may be necessary (including modifications for construing the references in that section to registering authority as references to competent authority under this Chapter), apply for the cancellation or suspension of a permit.

SECTION 21: POWER TO EXEMPT

The Central Government may, if satisfied that it is necessary or expedient so to do in the public interest, by notification and subject to such conditions, if any, as may be specified in the notification, exempt any class or classes of employers from the requirement of obtaining a permit under this Chapter

SECTION 22: Requirement, etc., as to emigration clearance

(1) No citizen of India shall emigrate unless he obtains under this Chapter from the protector of Emigrants authorisation in the prescribed manner and form (such authorisation being hereinafter referred to as emigration clearance) for emigration.

(2) An application for emigration clearance shall be in the prescribed form, shall contain the prescribed particulars and shall be made by the emigrant concerned to the Protector of

Emigrants: Provided that such application may be made through the recruiting agent, if any, through whom the emigrant has been recruited or through the employer concerned.

(3) Every application under sub-section (2) shall be accompanied by-

(a) a true copy (verified and authenticated in the prescribed manner) of the agreement with respect to the employment for the taking up of which the applicant proposes to emigrate and where such agreement does not provide for all or any of the prescribed matters, also a statement (verified and authenticated, in the prescribed manner) setting out the particulars with respect to such matters;

(b) a statement (verified and authenticated in the prescribed manner) as to the provision by way of security for meeting the expenses which may be incurred in case it becomes necessary to arrange for the repatriation to India of the applicant;

(d) such other relevant documents or copies of relevant documents as may be prescribed.

(4) The Protector of Emigrants shall, after satisfying himself about the accuracy of the

particulars mentioned in the application and in the other documents submitted along with the application, authorise in the prescribed manner and form the emigration of the applicant or intimate by order in writing the applicant or, as the case may be, the recruting agent or employer through whom the applications have been made about the deficiencies and require him to make good such deficiencies within such time as may be specified in the order or reject the application.

(5) Subject to the other provisions of this Act, the Protector of Emigrants may reject an application for emigration clearance under this section on any one or more of the following grounds and on no other ground, namely:-

(a) that the terms and conditions of employment which the applicant proposes to take up are discriminatory or exploitative;

(b) that the employment which the applicant proposes to take up involves work of a nature which is unlawful according to the laws of India or offends against the public policy of India or is violative of norms of human dignity and decency;

(d) that having regard to the prevailing circumstances in the country or place where the applicant proposes to take up employment or the antecedents of the employer under whom the applicant proposes to take up employment or any other relevant circumstances, it wou

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