Why its time India brings a regulatory law for Tourism

The need for a central law on Tourism has been a long pending demand. This article seeks to explore the need and the means towards this.

Existing Situation and Requirement for a law.

A. As of 2017 - 18 Tourism in India generated over Rs.1,35,000/- crore (i.e. USD.20 billion) plus income. Despite the sizeable income generated there is no uniform central law regulating Tourism India. It is well known that as per the Constitution of India Parliament and the State legislatures have exclusive powers to legislate on items in the Union List and the State List respectively, while both can legislate on items in the Concurrent List. Where legislation might be required on matters that are not mentioned in any of the three Lists, residuary provisions in Article 248 of the Constitution and Entry 97 of the Union List allowed for the same. It is needless to mention that the original authority with legislative powers on the subject matter of Tourism in its status as a residual matterhas to be exercised by the central government.

B. From the perspective of stakeholders in the travel trade industry comprising of Hoteliers, Transporters, Tour Guides, Tour Operators etc.:

It is interesting to observe that ever since the formation of the Department of Tourism (now India Tourism), Ministry of Tourism, Govt. of India the various components of the tourism industry such as travel agents, tour operators, transport operators, tourist guides, hotels, bars and restaurants etc. have all been regulated by means of ad hoc government orders and guidelines passed by the Executive without any statutory backing save in the realm of administrative law towards managing the affairs of the State. As regards Tourist Guides the central govt. has been relying on the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 along with Ancient Monuments and Archaeological Sites and Remains Rules, 1959 to regulate the licensing of guides i.e. Regional Level Guides (RLG's) who operate inter-state. For the sake of clarity the subject of the rule (here Rule 8(d)) is limited to protected monuments (under the aforesaid Act) only whereas the scope and ambit of Tourism goes way beyond guiding in protected monuments. This ad hoc approach has more often than not led to immense litigation which has time and again affected the efficient functioning of the Ministry and the image of Tourism in India. It is in this context that an industry that generates over USD.20 billion be regulated by means of a central legislation. A central legislation that sets out defining the various stake holders in the industry, the role and relationship entailed and a regulatory body viz. a statutory authority such as a Tourism Board or Authority that takes care of 'Tourism' as whole in India. A law in this aspect is vital to create responsible tourism in a welfare state and put a definitive end to the laisez faire situation that prevails today.

A central law must be passed by the Parliament invoking the inherent legislative power in Entry 97 (residual powers), read with Entry 52, List 1, seventh schedule and Art.248 of the Constitution of India. Such a law alone will keep a check on the state governments who seek to enact laws by usurping powers under entry 24 of list 2, seventh schedule of the Constitution of India. Once this initiative is undertaken by the central government using its residual powers, the state governments can thereafter only promote and not regulate tourism in their respective states.

C. In the absence of a central law.....

The attempt to usurp the above power was indulged in by states since the 1980’s. The first being Goa which passed a law under entry 24 of List 2 (State List), of the Seventh Schedule of the constitution of India. This was done on the pretext that until Inbound Tourism is not taken care of by the Central government vide a law of the Parliament of India (i.e. in public interest, under entry 52 under List one), each State should be deemed to have power under entry 24 of the State List as this is a state subject, which requires definite legislation. Having exercised their powers given below is a short analysis of a few State laws on Tourism in this domain:

i. the Goa Registration of Tourist Trade Act, 1982 and Rules 1985. Here a 'Tourist Guide' is included in the definition of 'Travel Agent'! Accordingly all Guides (even Govt. of India Regional Level Guides (RLGs) operating in Goa including from other regions on assignments) must Register under the state law on Tourism as per S.14. Additionally of interest is the definition for hotel that includes virtually any eating joint, house boats, restaurants, bars, tents etc. The definition of boats, dealers, deckbeds, chairs, beachshacks, malpractices, tourist, tourist area, spice plantation, tourist season with ref. to shack, tourist taxi operator, tour operators, travel agents, umbrella, adventure sports operator, water sports operator etc. makes an interesting read given the insight of the state govt. in well defining these terms. The definition for the term Tourist here includes any person visiting including groups and pilgrims. The Act in addition vide S.7 - S.13 gives detailed registration process for hotels and penalties for violation. S.11, 18 allows the govt. to fix the rates chargeable by Hotels, Travel Agents (including guides) respectively. Failure to register in accordance entails fine ranging from Rs.100/- per day, composite of Rs.500/- to Rs.1,00,000/-! The aforesaid law had set the pace for other States viz. Kerala, Rajasthan and Karnataka etc. to pass laws regulating Tourism.

ii. Kerala had passed its on laws on tourism in 2005 vide the Kerala Tourism (Conservation and Preservation of Areas) Act, 2005. The stage is now set for passing new laws on guiding and tour operating in the days to come. The Govt. of Kerala had recently introduced a Bill in the state Legislature towards the Tourism Regulatory Authority of Kerala (TRAK) Act, 2018. This is a step whereby the state of Kerala has decided to expand the ambit of its tourism laws. As per the said law being enacted it is observed that: the S.2 Definitions vide sub section e. mentions tourism services as: means - (i) services provided by hotels, restaurants, resorts, houseboats, home-stays, ayurvedic resorts, beach resorts, massage centres or institutions, by whatever name called, that offers tourism activities, facilities and administered or maintained by any person or body of persons, whether incorporated or not. Additionally the S.2 Definitions vide sub section h. mentions service provider as:means any individual or establishment providing tourism based services in Tourism Sector in the State of Kerala. There is no definition for the term Tourist.

It is interesting to note that services of guiding are nowhere mentioned. However by obvious extrapolation the definition of service provider under sub-section h. could include guides as they are service providers. A clarification on this is needed here. This is vital especially in light of sub-section e. which although inclusive does not mention the services of guiding and sub-section m. in a bland and abrupt manner restrains itself to merely tourism promoters. As regards the powers and functions of the Authority being constituted vide S.13 one observes that they are only recommendatory in nature, as no clear power is vested with the Authority to make regulations. Thus while enforcing the guidelines of the State Executive there are no rule making powers vested with the Authority. Interestingly there is no specific clause on the consultative process to be followed here. Moreover as per S.33 the Regulatory Authority being put in place is at the dispensation of the state government thus exposing it to extrajudicial shortcomings.

iii. So also with Rajasthan where the Rajasthan Tourism Trade (Facilitation and Regulation) Act, 2010 is the one and all law on tourism. S.8 details the registration procedure of a Tourist Guide (including RLG's of India Tourism) with the prescribed authority and the regulations that bind them. Sub-sections 4, 5, 6 of section 8 provide for fine of Rs.1,000/- for unauthorised guiding and criminal prosecution along with simple imprisonment for 15 days and fine of Rs.2,000/- for subsequent offences. Similarly a tour operator and travel agent all have the same definition wherein they are engages in the business of making travel arrangements for a monetary consideration. Interestingly this state law goes to offer specific definitions to that of a hotel, hotelier, motel, service providers, paying guest, paying guest accommodation, tourist, tourism unit, tourist area, tourist destination, tourist action force and including the term ‘malpractices’. The definition for the term tourist is well drafted comprehensive one in distinguishing the foreign tourist from the domestic tourist while consciously excluding those who cannot be considered as tourists. The law further details on the Expert Committee that sets out norms for registration and regulation of service providers, tour operators, travel agents, hotels and paying guest accommodations. In addition it also specifies the obligations and consequences due to non-adherence. Of Interesting read is S.11, S.12, S.13, S.20 - 24 that details the penalties and punishments for contravening the provisions of the Act especially on film shooting obligations. An innovative addition here is S.14, S.20 that makes it mandatory for upkeep of public health, sanitation, hygiene and cleanliness of tourist destinations and heritage sites by local authorities. S.17, S.18 details on the protective role of the Tourist Action Force and S.19 sets out the policy of the govt. on heritage tourism.

iv. Similarly the Karnataka Tourism Trade (Facilitation and Promotion) Act, 2015 is supposed to be beneficial for the tourism industry, the government and travellers. However in effect the same could be detrimental to the national tourism policy of the Govt. of India i.e. Ministry of Tourism. The law here has passed through several rounds of discussions with tourism trade bodies and state government departments. As in the other state enactments the definitions of malpractice, nuisance, public private partnership, Tour Guide, Tourism Trade, Tourism Operator, Travel Agent, Touting, Tourist, Tourist Destination, Tourist Mitra are indeed thoughtful and noteworthy. S.3, S7 envisage setting up of a State Tourism Council, which is the apex body for development, promoting, making recommendations for tourism in the state. Further the S.31, S.35 - S.37 deals with the rule making powers of the said council. In addition S.8 allows for registration of every category of Tourism Trade as per the procedure laid down. The term Tourism Trade is wide in its application and covers all service entities including those sundry related to promoting tourism. “Tourism trade” means and includes such class of facilities, service, activities or products relating to tourism, as may be prescribed, provided to a tourist in a premises or by any person or travel agency regularly or occasionally and includes facilities services or activities relating to tourism including medical tourism, eco tourism, rural tourism, water tourism, caravan tourism and adventure tourism or any other class of tourism by whatever name called and home stay, hotel, resort, wellness centre, visitor information centre, interpretation centre, water sports, boat house, way side amenity, dormitories as may be prescribed.

The term Tourist is less complicated and well defined. Additionally of interest is S.16 and S.17 that deals with Tourist Guides and Tourist Mitra. The offence related to unlicensed guiding and engagement of Tourist Mitra is path breaking. S.18 provides for public private partnership in development of tourism infrastructure and promotion. S.19 on collection of data as in Rajasthan mandates service providers to provide the govt. with all statistical data relating to tourism services rendered. The penalties for non cooperation is equally interesting. Again as in Rajasthan of relevance is S.22 that mandates local authorities to ensure cleanliness and check vandalism in tourist destinations. Criminal prosecution for violation under S.23 - S.26, S.30 is a remarkable move.

In a recent development (as of 2018) in Karnataka, the Department of Archaeology, Museums and Heritage has been brought under the Department of Tourism. This such that one would not be subservient to the other but with the rationale is that this department was engaged in preservation of monuments that were also tourist destinations. Further this could help synergise heritage planning with development of tourism, within the existing legal framework of the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961.

D. The Repercussions...

(i) The above instances summarize the responsible initiatives of a few state governments to regulate tourism as the same contributes substantively to the state’s economy. The day is not far off when many other States of India will have their own laws on Tourism This in all probability could go against the national tourism policy and the interests of the Ministry of Tourism. And one cannot rule out the possibility of the laws of one State contradicting with those of the other. The current trend of the central government to de-regulate should not result in a situation where there is lack of regulation and confusion from one state to another as for instance seen in the definition of the term ‘tourist’ itself. In the event of a litigation it is obvious a law (including State enacted law) would prevail over a guideline of the Executive (here Ministry of Tourism, Govt. of India). One can only imagine the nightmare faced by the foreign Tourists who have to deal with the various state regulations when each and every State in India comes out with their conflicting enactments! Hence to ameliorate this situation a Uniform Tourism Regulatory Law of the central government that supersedes all state enactments can be the only solution.

(ii) Yet another issue here that is bound to affect the central government is that if steps are not taken by the Ministry of Tourism (read central government), the floodgates of sub standard Tour Guides, Escorts, Tour Operators, Hoteliers, Transporters will be opened, overlooking the principles of Carrying Capacity in the Tourism Industry. It is vital to regulate the fundamental rights of Indian citizens under Art.19 (1) g of the Constitution, by placing reasonable restrictions in public interest vide Art.19 (6) and this can be achieved only by a central enactment on Tourism. In the current instance where there is a need towards serving a public interest reasonable restrictions by law are necessary.

To save the situation it is time that the central government immediately get its act together and make a Uniform Law, replacing the confusion of the heterogeneous state regulations. While so, state governments should be allowed to continue their right to promote tourism instead of regulating tourism. On this the central government has to effectively differentiate between the right to promote tourism versus the right to regulate tourism. The former being a common prerogative of the central and state government and private sector while the latter must be in the exclusive/ eminent domain of the central government. As on date the continued silence of the central government in not having a central law that governs the broad aspects of regulating tourism speaks of short-sightedness and the probability of vested interests in a laisez faire. Certainly all is not lost as the move by the states are in its early stages and the situation can be salvaged even now.

The Way Ahead.

a. The need of the hour and the way ahead is an effective enactment viz. The Tourism Regulation Act, by the central government citing Entry 97 read with Entry 52, List 1, seventh schedule, and Art.248 of the Constitution of India in the preamble itself. Thereby a statutory governing body called the Tourism Board or Authority (as it exists in many parts of the world) regulating all aspects of tourism amidst the stake holders must be put in place. The Tourism Board or Authority should have representation of all stake holders. And the Rules therein should assist in the overall regulation of inbound and outbound tourism so as to arrive at the objective of a safe, sustainable and honourable Tourism in India.

b. The said enactment amidst others should carry definitions of who an approved Guide is, approved Escort/ Tour Manager, approved Tour Operator, approved Travel Agent, approved Transport operator, approved Hotel, Bar, Restaurant etc. The existing guidelines of the Ministry and that of various States in this regard may be brought forward as regulations herein. The regulations can prescribe qualifications, rights and duties of all players in the travel trade, tourism industry, and a scientific process to be followed by which the Tourism Board or Authority may vide a binding tariff advisory determine entrance fee to monuments, guide fee, escort fee, operator margins payable etc. can be arrived at. Given the money multiplier effect on the economy brought about by Tourism it is also imperative to achieve the standards set forth by the Global Sustainable Tourism Council.