AVIATION LAWS IN INDIA
BY: TUSHAR RAI
What is the primary domestic legislation governing the aviation industry in your jurisdiction?
The following legislation applies:
- The Aircraft Act 1934 is the primary domestic legislation which governs the Indian aviation sector. Its primary function is to empower the federal government to make rules for regulating the manufacture, sale, use, operation, export, import and safety of all civil aircraft.
- The Aircraft Rules 1937 generally apply to Indian-registered aircraft (and to persons thereon), wherever they may be (with certain exceptions), and all aircraft present in or over India. These rules set requirements for flying conditions, registration, airworthiness and licences, among other things. Where an aircraft is registered in a foreign country, the regulations of that country will apply, provided that their underlying standards are based on those established by the Chicago Convention. Further, the extent of application usually depends on the agreement between the two countries.
- The Civil Aviation Requirements set out detailed requirements and compliance procedures in order to:
- fulfil the duties and obligations of India under the Chicago Convention relating to international civil aviation;
- standardise and harmonise requirements, taking into account the rules and regulations of other regulatory authorities;
- implement the recommendations of the courts of inquiry or any other committee constituted by the federal government; and
- address issues relating to the import, registration, safety and certification of aircraft operations.
- Other legislation relevant to Indian civil aviation includes:
- the Airports Authority of India Act 1994;
- the Airports Economic Regulatory Authority of India Act 2008;
- the Carriage by Air Act 1972;
- the Aircraft (Security) Rules 2011; and
- the Aircraft (Investigation of Accidents and Incidents) Rules 2012.
What international aviation agreements has your jurisdiction concluded?
India has ratified the following international conventions:
- the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on October 12 1929;
- the Convention on International Civil Aviation, signed in Chicago on December 7 1944;
- the Convention on the International Recognition of Rights in Aircraft, signed in Geneva on June 19 1948;
- the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, signed in Rome on October 7 1952;
- the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed in Tokyo on September 14 1963;
- the Convention for the Suppression of Unlawful Seizure of Aircraft, signed in The Hague on December 16 1970;
- the Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed in Montreal on September 23 1971;
- the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on May 28 1999; and
- the Convention on International Interests in Mobile Equipment, signed in Cape Town on November 16 2001.
India has entered into a number of bilateral air service agreements with various countries. Pursuant to the new civil aviation policy of 2016, the Indian government intends to liberalise the air service agreement regime in order to provide greater ease of conducting international operations and tapping into the global passenger market. At the International Civil Aviation Negotiations 2016, India signed open skies agreements with six countries – Czech Republic, Finland, Guyana, Jamaica, Spain and Sri Lanka. India also entered into an open skies air service agreement with Greece and 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.
Which government bodies regulate the aviation industry and what is the extent of their powers?
The following government bodies regulate the aviation industry in India:
- The Ministry of Civil Aviation administers the Aircraft Act and the Aircraft Rules, and various other aviation-related legislations. It is responsible for formulating national policies and programmes that help in developing and regulating 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), and has the authority to enter into air service agreements with other countries.
- The DGCA primarily deals with safety and operational issues. Its role and functions include:
- registration of civil aircraft;
- formulation of standards of airworthiness for civil aircraft registered in India and granting certificates of airworthiness to such aircraft;
- 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;
- investigating accidents and incidents and taking accident prevention measures, including formulating implementation of safety aviation management programmes;
- monitoring aircraft noise and engine emissions and collaborating with the environmental authorities; and
- safety oversight of all entities approved, certified or licensed under the Aircraft Rules.
- 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.
- The AAI was formed with a view to accelerate the integrated development, expansion and modernisation of the operational, terminal and cargo facilities at airports in India in conformity with international standards. Its main functions include:
- the design, development, operation and maintenance of international and domestic airports and civil enclaves;
- the expansion and strengthening of operation areas (eg, runways, aprons and taxiways);
- the control and management of Indian airspace extending beyond the territorial limits of the country; and
- the provision of communication and navigation aids.
What is the required level of insurance coverage for air carrier operations?
The operator must maintain comprehensive insurance to cover its liability towards passengers, their baggage, crew, cargo, hull loss and third-party risks in compliance with the Carriage by Air Act 1972 or any other applicable law. Insurance on Indian-registered aircraft must be with an Indian insurer, which can then reinsure up to 95% of the risk to an overseas reinsurer.
What safety requirements apply to air carrier operations, including with regard to professional and technical certifications?
The DGCA has laid down detailed rules, regulations and procedures for regulating air transport and ensuring the safety of aircraft operations. No aircraft can be flown unless it possesses a valid certificate of airworthiness. Further, an aircraft which is more than 18 years old cannot be imported for passenger services. All aircraft owners and operators must comply with the engineering, inspection and manual and safety requirements, as specified by the DGCA.
Primary responsibility for the safe conduct of the operations and compliance with the laws, rules and regulations lies with the operator. The operator must develop its own detailed operating procedures necessary for safety, regularity and efficiency of operations within the framework of the laws. The DGCA must approve the operator’s flight safety manual, which shall clearly lay down the operator’s safety policies, flight safety awareness and accident/incident prevention programmes.
What environmental obligations apply to air carrier operations?
Airport and airline operators must produce an annual emission management report on:
- their carbon footprint to monitor emission trends;
- voluntary measures taken to reduce carbon dioxide emissions, especially in relation to fuel efficiency; and
- certification in accordance with International Organisation for Standardisation (ISO) standards (eg, ISO-14001 and ISO 14064).
Airport operators must additionally submit the following data to the DGCA annually:
- fuel consumption data for owned power generators;
- fuel consumption data for airport-owned vehicles and equipment;
- electricity consumption for the entire airport (inclusive of the electricity consumed by the tenants functioning inside the airport); and
- 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.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
In the event of delay beyond the specified timeline, airlines must offer meals and refreshments during the waiting time and hotel accommodation free of charge to passengers. Where airlines cancel flights without informing passengers, they may have to pay compensation of upto Rs10,000 (approximately $164) or booked one-way basic fare plus airline fuel charge, whichever is less, in addition to a refund of the ticket price. For foreign carriers, compensation is based on the terms of the regulations of their country of origin or upto 400% of the booked one-way basic fare plus airline fuel charge, subject to a maximum of Rs20,000 ($328).
(b) Oversold flights?
If a flight is oversold, airlines usually ask for volunteers to surrender their seats. Airlines provide such volunteers with an alternative flight alongwith certain benefits. Where passengers are denied boarding against their will, the airline must provide them with an alternate flight within one hour of the original scheduled departure time, failing which it may have to refund the full ticket price and pay compensation of upto 400% of the booked one-way basic fare plus airline fuel charge, subject to a maximum of Rs20,000 ($328).
(c) Denied boarding?
Where a passenger 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, failing which it may have to refund the full value of the ticket and pay compensation of up to 400% of the booked one-way basic fare plus airline fuel charge, subject to a maximum of Rs20,000 ($328).
(d) Access for disabled passengers?
Airlines cannot refuse to carry persons with a disability or reduced mobility or their aids, devices and escorts in the cabin, provided that such persons or their representatives, at the time of booking, inform the airline of their requirements. Airlines must make available in accessible format, on their website, the safety rules that apply to persons with a disability or reduced mobility as well as any restrictions on their carriage or mobility equipment due to the size of the aircraft. Airlines must obtain necessary information about the specific requirements of such persons at the time of booking. Persons with a disability or reduced mobility must notify the airline of their needs 48 hours before the scheduled departure time. Airlines must make suitable arrangements for assisting disabled persons for their quick clearance and baggage delivery. Airport operators must display signage throughout the airport in a clear and unambiguous manner, and must provide ramps for easy access.
(e) Lost, damaged or destroyed luggage?
India is a party to the Warsaw Convention, the Hague Protocol and the Montreal Convention, which set out airlines’ liabilities. An airline is liable for damages sustained because of loss, damage or destruction of any registered luggage or any goods, if the damage so sustained took place during the carriage by air. For instance, this is Rs20,000 ($328) for each passenger for destruction, loss, damage or delay with respect to baggage under the Montreal Convention. Passengers usually 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.
(f) Retention and protection of passenger data?