Aviation law is the law which covers the entire domain of air travel, including cargo and passenger transportation, recreational flying, and airspace protocol.
There are two sectors under the Aviation industry:–
1. Military: Aircraft flown by a nation’s air force and other branches of the military. It is not used for commercial purposes.
2. Civil: Civil Aviation is divided into two parts. These are:
(a) Domestic: Flight must start and end within the borders of the same country.
(b) International: Flight starts in one country and ends in another country.
Regulatory Framework
Domestic Law
The primary domestic legislations governing the aviation industry:
(1) The Aircraft Act, 1934 empowers the federal government to make rules for regulating the manufacture, sale, use, operation, export, import and safety of all civil aircraft.
(2) The Aircraft Rules, 1937 deals with flying conditions, registration, airworthiness and licences, among other things.
(3) The Civil Aviation Requirements set out detailed requirements and compliance procedures in order to
(a) fulfil the duties and obligations of India under the Chicago Convention relating to international civil aviation;
(b) standardize and harmonies requirements, taking into account the rules and regulations of other regulatory authorities;
(c) implement the recommendations of the courts of inquiry or any other committee constituted by the federal government; and
(d) address issues relating to the import, registration, safety and certification of aircraft operations.
(e) Other legislation relevant to Indian civil aviation includes:
(i) the Airports Authority of India Act, 1994;
(ii) the Airports Economic Regulatory Authority of India Act, 2008;
(iii) the Carriage by Air Act, 1972;
(iv) the Aircraft (Security) Rules, 2011; and
(v) the Aircraft (Investigation of Accidents and Incidents) Rules, 2012.
International Law
India has ratified the following international conventions:
(1) the Convention for the Unification of Certain Rules Relating to International Carriage by Air;
(2) the Convention on International Civil Aviation signed in Chicago on December 7, 1944;
(3) the Convention on the International Recognition of Rights in Aircraft;
(4) the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface;
(5) the Convention on Offences and Certain Other Acts Committed on Board Aircraft;
(6) the Convention for the Suppression of Unlawful Seizure of Aircraft;
(7) the Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation;
(8) the Convention for the Unification of Certain Rules for International Carriage by Air; and
(9) the Convention on International Interests in Mobile Equipment.
Bilateral Agreements
India has entered into a number of open skies agreements with Czech Republic, Finland, Guyana, Jamaica, Spain and Sri Lanka, Greece. India intends to sign similar agreements on a reciprocal basis with South Asian Association for Regional Cooperation states and other countries located over 5,000 kilometres from Delhi.
Regulatory Authorities
The following government bodies regulate the aviation industry in India:
(1) The Ministry of Civil Aviation administers the Aircraft Act and the Aircraft Rules, and various other aviation-related legislations. It formulates national policies and programmes and develops and regulates the Indian Civil Aviation sector. It exercises administrative control over entities such as the Directorate General of Civil Aviation (DGCA), the Bureau of Civil Aviation Security (BCAS) and the Airports Authority of India (AAI). It has the authority to enter into air service agreements with other countries.
(2) The DGCA primarily deals with safety and operational issues. Its role and functions include:
(a) registration of civil aircraft;
(b) formulation of standards of airworthiness for civil aircraft registered in India and granting certificates of airworthiness to such aircraft;
(c) granting air operator certificates to Indian carriers and regulation of air transport services operating to, from, within and over India by Indian and foreign operators, including clearance of scheduled and non-scheduled flights of such operators;
(d) investigating accidents and incidents and taking accident prevention measures, including formulating implementation of safety aviation management programmers’;
(e) monitoring aircraft noise and engine emissions and collaborating with the environmental authorities; and
(f) safety oversight of all entities approved, certified or licensed under the Aircraft Rules.
(3) The BCAS sets and monitors standards and measures with respect to the security of civil flights at international and domestic airports in India for airport and airline operators and security agencies.
(4) The AAI was formed with a view to accelerating the integrated development, expansion and modernization of the operational, terminal and cargo facilities at airports in India in conformity with international standards. Its main functions include:
(a) the design, development, operation and maintenance of international and domestic airports and civil enclaves;
(b) the expansion and strengthening of operation areas (Example: runways, aprons and taxiways);
(c) the control and management of Indian airspace extending beyond the territorial limits of the country; and
(d) The provision of communication and navigation aids.
Operating Authorization
The scheduled and non-scheduled air transport operators need a no-objection certificate from the Directorate General of Civil Aviation (DGCA) to import aircraft. The validity of this certificate is three years. Then, the operators need permission from the Ministry of Civil Aviation to import or acquire the aircraft; this permission is valid for one year. For private import, one also requires an import license from the Directorate of Foreign Trade. An eighteen years old aircraft cannot be imported for passenger operations.
After granting permission, a temporary registration certificate is granted for bringing the aircraft by air. Otherwise, a temporary certificate of airworthiness or special flight permit is issued for delivery of the aircraft in India. The temporary certificates are valid only for first landing in India.
If one wants to issue a regular registration certificate, he needs to apply for the same along with the requisite documents within a specific period. For granting permission, an airline must have a fleet of at least five aeroplanes or multi-engine helicopter and minimum one aircraft is mandatory for a non-scheduled operator’s permit. Operators also need a license for the radio communication apparatus.
Ownership and Control
A scheduled or non-scheduled operator’s permit is granted to:
(1) a citizen of India; or
(2) a company:
(a) that is registered and has its principal place of business in India;
(b) whose chairman and at least two-thirds of whose directors are Indian citizens; and
(c) that is substantially owned and effectively controlled by Indian nationals.
An air cargo operator’s permit is granted to:
(1) a citizen of India;
(2) a group of individuals of Indian nationality or a registered trust or society;
(3) a non-resident Indian or overseas corporate bodies; or
(4) an Indian-registered company having its principal place of business in India with or without foreign equity participation (excluding non-resident Indian equity).
Financial Requirements
Scheduled Air Transport Services (Passenger)
An applicant for a scheduled operator’s permit must have the following paid-up capital:
(1) operating aircraft with a take-off mass of 40,000 kilograms or more:
(a) up to five aircraft – Rs 500 million; and
(b) for every additional five aircraft – additional equity investment of Rs 200 million; and
(2) operating aircraft with a take-off mass of fewer than 40,000 kilograms:
(a) up to five aircraft – Rs 200 million; and
(b) For every additional five aircraft – additional equity investment of Rs 100 million.
Non-Scheduled Air Transport Services (Passenger and Cargo)
To obtain a non-scheduled operator’s permit, an operator must have the following minimum paid-up capital:
(1) up to two aeroplanes or helicopters – Rs 20 million;
(2) between three and five aeroplanes or helicopters – Rs 50 million;
(3) between six and 10 aeroplanes or helicopters – Rs 100 million; and
(4) more than 10 aeroplanes or helicopters – Rs 150 million.
Air Cargo Operators
To obtain an air cargo operator’s permit, the operator’s subscribed equity capital must be at least Rs 10 million.
Insurance Coverage
The operator must maintain an insurance policy. Indian-registered aircraft must be with an Indian insurer, which can then reinsure up to 95% of the risk to an overseas reinsurer.
Safety Requirements
The DGCA has elaborated rules, regulations and procedures for regulating air transport and ensuring the safety of aircraft operations. Aircraft can be flown without a valid certificate of airworthiness. All aircraft owners and operators must comply with the engineering, inspection and manual and safety requirements, as specified by the DGCA.
Environmental Obligations
Airport and airline operators must produce an annual emission management report on:
(1) their carbon footprint to monitor emission trends;
(2) voluntary measures are taken to reduce carbon dioxide emissions, especially in relation to fuel efficiency; and
(3) certification in accordance with the International Organization for Standardization (ISO) standards (Example: ISO-14001 and ISO 14064).
Airport operators must additionally submit the following data to the DGCA annually:
(1) fuel consumption data for owned power generators;
(2) fuel consumption data for airport-owned vehicles and equipment;
(3) electricity consumption for the entire airport (inclusive of the electricity consumed by the tenants functioning inside the airport); and
(4) Electricity consumption for the airport operator only.
Airline operators must annually submit aviation turbine fuel consumption data for aircraft main engines and auxiliary power units for both domestic and international operations. Airport operators must carry out a noise mapping study around their airports, including areas directly under the flight paths, to assess the existing noise loads and the population affected within the various noise contours/maps.
Air Traffic Control
The Airports Authority of India is the statutory authority responsible for providing air traffic services in India. Air traffic services mainly include:
(1) air traffic control services;
(2) flight information services; and
(3) alert services.
Air traffic services are provided by flight information centres and air traffic control units.
Routes
DGCA has to permit for operating an air transport service. The DGCA must be given prior notice whether an operator plans to operate on a new route, make a substantial alteration to or discontinue an existing route or introduce a new timetable.
All scheduled operators must deploy 10% of their capacity on remote routes.
Charter Services
The DGCA has issued civil aviation requirements on the procedure for the issuance of non-scheduled flight clearances to foreign registered aircraft (including cargo flights, inclusive tour packages, charter flights, aerial photography, geophysical surveys, cloud seeding operations and non-scheduled flights by Indian operators to foreign destinations).
Taxes
Goods and Services Tax (GST) has replaced almost all the indirect taxes. Import of aircraft is exempt from GST, but leasing attracts 5% GST. Maintenance, repair and overhaul services attract GST. It is also levied on air travel. However, aviation turbine fuel is beyond the purview of GST, although it is still subject to CST and VAT.
Consumer Protection and Liability
Airfares
In terms of Rule 135 of the Aircraft Rules, 1937, airfares are established having regard to factors such as cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff. The government has permitted services to be unbundled and charged separately on an opt-in basis, including:
(1) preferential seating;
(2) meal, snack and drink charges (except drinking water);
(3) charges for using airline lounges; and
(4) check-in baggage charges.
Passenger Protection
Flight delays and cancellations: In case of any delay, airlines should offer meals and refreshments during the waiting time and hotel accommodation free of charge to passengers. In case of cancellation of flights without informing, airlines have to pay compensation. For foreign carriers, compensation is based on the terms of the regulations of their country of origin.
Oversold Flights
In case, if a flight is oversold, Airlines provide volunteers with an alternative flight along with certain benefits.
Denied Boarding
Where a passenger has to compromise and is denied boarding against his or her will, the airline must arrange an alternate flight for the passenger within one hour of the original scheduled departure. Otherwise, airlines have to refund the full value of the ticket and pay compensation.
Access for Disabled Passengers
Airlines cannot reject to carry disabled passengers. Persons with a disability or reduced mobility must inform the airline of their needs 48 hours before the scheduled departure time. Airlines must make suitable arrangements for assisting disabled persons.
Lost, Damaged or Destroyed Luggage
In case of any loss, damage and destruction of any registered luggage or any goods, during the carriage by air, the airline will be responsible for the damages. Passengers can file complaints under the Consumer Protection Act, 1986 on the ground of ‘deficiency of service’ for cases ranging from delayed flights and lost baggage to death.
Retention and Protection of Passenger Data
The data and privacy of the passengers are regarded as their fundamental rights. The airline should ask the passengers before disclosing any private information to a third party, unless or until such information is required by law.
Cargo
The Carriage by Air Act, 1972 deals with the liability of the carrier.
Complaints Handling
One can complain to a nodal officer of the concerned airline or airport operator. If it is not resolved, he can complain to the appellate authority of the concerned airline or airport operator. Airline and airport operators must address grievances within one month. In case of not resolving within the specific time period, the matter is overseen by the Directorate General of Civil Aviation. On other hand, one can file a consumer complaint under the Consumer Protection Act 1986 for deficiency of services.
Authors: Advocate Sakshi Shairwal and Ananya Mondal (Sakshar Law Associates)
Libertatem.in is now on Telegram. Follow us for regular legal updates and judgements from the court. Follow us on Google News, Instagram, LinkedIn, Facebook
