Discard the Emigration Clearance System

The controversy over the proposed changes to the Indian passport misses the elephant in the room.

The news that India’s Ministry of External Affairs is planning a few changes to the Indian passport received a lot of attention over the last week. The plan to issue orange-jacketed passports to those requiring an emigration check particularly came under heavy criticism, and justifiably so.

The case that this change will make discrimination worse is easy to anticipate. Our immigration and airline officials are already notorious for the way they treat less well-off Indians. Conspicuously labeling them with a differently-coloured passport will institutionalise this discrimination, further robbing them of the dignity that the Indian Constitution promises.

Nevertheless, this debate about the utility of differently-coloured passports is just a symptom of a larger problem. The elephant in the room is a highly patronising legal emigration arrangement—known as “Emigration Clearance System”—that denigrates the less well-off in the name of protecting them. Nothing short of a complete rollback will end the casteism that classifies aspiring Indian emigrants into ‘unskilled workers’ and ‘NRI professionals’.

The Emigration Clearance System as of today

The Emigration Act (1983) states that persons of working age who have not completed schooling upto tenth standard are issued an ECR (Emigration Clearance Required) passport. The remaining population is eligible for an ECNR (Emigration Clearance Not Required) passport. When men having ECR passports plan to emigrate for work, they need to obtain an “Emigration Clearance” from the office of the Protector of Emigrants (PoE) before travelling to certain countries (currently, 17 in total). What’s even more egregious is that a woman of age less than thirty with an ECR passport is completely banned from getting an emigration clearance for all kind of employment in any ECR country.

This system was adopted to prevent the exploitation of uneducated and, hence, vulnerable Indians. The logic was that this additional gate would prevent emigrants from taking up work that could be discriminatory or exploitative. Faced with the additional threat of human trafficking, it was further deduced that the best way to protect women of the ECR category was to prevent them from emigrating altogether. After all, what could be a better way to save people from the bad, bad world outside than to lock them up in their houses?

Quite naturally, an illegal economy has resulted from this regulation. An entire system of unauthorised agents exist who supply fake documents to obtain emigration clearance. If this method doesn’t work, recruiting agents connive with immigration officials to allow for emigration even without the requisite clearance. Even if that doesn’t work, ECNR passports are stolen and the photograph on it is replaced with a new one, or it is sold to a person who bears a strong resemblance to its original owner.

Apart from increasing transaction costs, it is unclear how effective this system has been. An excellent paper by Kodoth and Varghese, titled Protecting Women or Endangering the Emigration Process, concludes:

Despite the promise of protection to the ECR category, the emigration clearance system offers nothing substantial to it; it merely entails a document verification exercise, which in the absence of mechanisms to test the validity of documents, relies on the “common sense and experience” of the Protector of Emigrants.

Further, the data tabled in the Lok Sabha by the Ministry of External Affairs in 2016 shows that a total of 55,119 complaints of ill-treatment and “exploitation” of Indian workers were received by Indian missions across nine countries over the previous three years.

Quite clearly, the existing system is illiberal and patronising. If that isn’t convincing enough, it is also ineffective in meeting the objective it was set up to accomplish.

How will the proposed changes to the passport improve this system?

The proposed solution does not alter the Emigration Clearance System in any meaningful way. The change merely is that those with ECR status will now have a yellow-jacketed passport. The claim is that this will increase the speed of the process of emigration, as the colour of the passport will make it clear whether the emigration check is required or not. Those with stronger powers of imagination have claimed that because of the recognisable difference, orange passport holders will receive additional protection from law enforcement agencies in the emigration destination. To an unbiased observer, however, it is hard to see how a change in colour is the magic wand that will make complex problems like workplace exploitation and human trafficking go away.

What would count as real reform then?

The silver lining of the debate on passports is the opportunity for the government to abolish the Emigration Clearance System in toto. If a government first fails in providing access to education, and then fails in shaping economic conditions that can help the person earn a living in their home country, the least it can do is to not create roadblocks that prevent the person from choosing the ‘exit’ option.

With the Emigration Clearance regime folded, the government can take up other reforms that specifically target the problems of human trafficking and labour exploitation. For instance, Kodoth and Varghese note:

In Saudi Arabia, sections of the Philippines embassy remain open on Thursday and Friday for assistance to domestic workers who may escape on the weekend (HRW 2008: 115). The Philippines embassy mediates in disputes, refers cases to the courts and bears the expenses of litigation and where possible, attempts in association with recruiting agencies to find new employers (Esim and Smith 2004; HRW 2008: 117) […] the Philippines government has been intervening actively to upgrade skills of workers and to move them out of domestic work into higher-skilled categories of work.

The Indian government too has taken some positive steps that approach the problem in a granular fashion. A response on the floor of the Lok Sabha by the MEA highlights that the Government of India has signed MoUs through which the host country is required to take measures for protection and welfare of the workers in organised sector. Other measures include setting up of a fund in all the Indian Missions/consulates abroad to meet contingency expenditure for overseas Indian citizens who are in distress, and a 24×7 online helpline for lodging grievances of emigrants. These are all good measures. The government could go one step further and set up a voluntary register for emigrants that Indian missions can monitor. Where possible, videos sensitising the emigrants of risks and redressal measures can be sent on their mobile phones.

The existing regressive mechanism of protection by prevention insults the free adult citizens of a liberal democratic republic. Changing the colour of the passport covers only worsens the indignation. Such systems do not behoove a civilisation that claims to follow the principle of Vasudhaiva Kutumbakam — the world as one family.

About the author

Pranay Kotasthane

Pranay Kotasthane heads the geostrategy programme at the Takshashila Institution. His research interests focus on geostrategy, geopolitics of the Indian subcontinent, public policy, economic reasoning and urban issues.