The Aircraft Rules,1937 by Sini Sunny @ LexCliq

AVIATION LAW | LawEscort

The Ministry of Civil Aviation (MoCA) is the responsible body for the governance and administration of the aviation industry in India. It plays a crucial role in the formulation and execution of various national policies and programs aimed at the development of civil aviation. It is also responsible for devising schemes for efficient growth of civil aviation. It ensures the implementation of various legislations, including the Aircraft Act, 1934.

The Aircraft Rules, 1937

The Aircraft Rules, 1937 were formed in pursuance of the Aircraft Act, 1934. The unruly passengers were governed under this Act conjointly read with the Indian Penal Code, 1860. This legislation lays down the ideal behaviour which is expected from the passengers. The problem with this legislation was that it only listed what was the ideal behaviour. It failed to provide recourse to punitive actions or other repercussions.

Consequently, the provisions listed in the Indian Penal Code had to be invoked. The problem at this stage was that the disruptive acts of the passengers sometimes did not amount to an ‘offence’ per se. In other instances, they would be granted bail immediately.  Resultantly, no legal actions could be invoked against such unruly passengers and they walked free without having to face any legal repercussions for their deviant acts.

The DGCA in 2010 incorporated two new rules in the Aircraft Rules, 1937. This was done with the purpose of managing the unruly passengers on board for either domestic flights or for international flights destined for India. These amendments have been introduced in Part 3 of the Rules. They are listed below:

Rule 22 of the Aircraft Rules, 1937

Rule 22 deals with instances of assault and other such dangerous acts of interference against a member of the crew. The rule lays down that no person who is on board an aircraft should indulge in the acts of assault, intimidation or threatening – either verbally or physically against a member of the crew. The passengers are not supposed to indulge in any acts which hinder the performance of the duties of the crew or reduce their ability to perform their duty.

Further, no passenger on board shall refuse to follow a lawful instruction given by the aircraft commander, i.e., the pilot-in-command or on their behalf by a crew member, for ensuring the safety of the aircraft, the crew, the passengers on board; or for the maintenance of good order and discipline on the flight.

Rule 23 of the Aircraft Rules, 1937

Rule 23 deals with acts which amount to assault or other such dangerous acts which endanger the safety of the passengers, crew and the aircraft or jeopardize the good order and discipline on board. This rule lays down that no person who is on board of an aircraft shall indulge into the following acts which may endanger the safety of the air:

  1. Assault, intimidate or threaten any other person either verbally or physically;
  2. Intentionally, either cause damage to or destroy any property; or
  3. Consume alcoholic beverages or narcotic substances.

The rule further mentions that the jurisdiction of India to take cognizance of such offences taking place onboard outside India extends to instances where:

  1. The next destination for landing in India.
  2. The aircraft commander has delivered such an unruly passenger to the competent authorities of India and has requested prosecution of such a passenger. The pilot-in-command should also affirm that such a request has not been made/ will not be made to any other State.

All airlines see this as a welcome addition because these rules empower the authorities to take the necessary actions against such unruly passengers.

Civil aviation requirement on the handling of unruly passengers

The aforementioned problem was rectified by the Government by introducing the Civil Aviation Requirement (CAR). This mandated the Ministry of Home Affairs (MHA) to maintain a no-fly list. Additionally, CAR also defines the term ‘unruly passenger.’ It borrows this definition from Annex 17 of the Chicago Convention.

The notification further divides the unruly behaviour into three categories:

Level 1: Unruly behaviour is defined consisting of acts such as making inappropriate physical gestures, verbally harassing passengers, or the crew, unruly intoxication, etc.

Level 2: Passengers indulging in physically abusive behaviour such as pushing, hitting, grabbing, touching inappropriately, kicking, etc.

Level 3: Passengers showcasing life-threatening behaviour, via actions such as eye gouging, damaging the aircraft, attempting or actually breaching the flight crew compartment, etc.

Reporting and handling of unruly passengers

When a complaint is received from the pilot-in-command about the unruly behaviour of a certain passenger, then, this has to be reported to an internal committee. The airlines will constitute such committee, which will consist of the following members:

  1. Chairman: Retired District & Sessions Judge
  2. Member: A representative from a different scheduled airline
  3. Member: A representative from the consumer association or a passenger association or a retired officer of Consumer Dispute Redressal Forum.

Ban on flying

For passengers who are placed on the No-Fly list pursuant to the decision of the Internal Committee, the other airlines have an option of banning such a passenger from flying to/from/within India for the below duration based on the level of their behaviour:

Level 1: Up to a period of three months.

Level 2: Up to a period of six months.

Level 3: Minimum period of two years or more, without limit.

Such a passenger, who is banned, will have to be intimidated about their inclusion to the no-flying list along with reasons for the same. They shall also be informed about the duration of their ban.

Constitutionality of these rules

Although this provision of a flying ban has been introduced to combat the rising instances of unruly passenger behaviour, a conflict arises between these provisions and the Constitution of India, 1950Article 21 of the Constitution has been given a wide interpretation as can be inferred through various precedents. The aspect of ‘right to travel’ is also included in this. Article 21 has been expanded via judicial precedents to include the ‘right to travel abroad.’ Therefore, under this right, travel by air is also covered.

The Apex Court in the landmark judgment of Maneka Gandhi vs. Union of India (1978) laid down that the right of free movement functioned as a vital element in terms of personal liberty. This freedom of movement also includes the right to travel abroad.

This view was reiterated in the case of Priya Parameshwaran Pillai vs. Union of India (2015), wherein, the Court categorically stated that the right to travel abroad is a Fundamental Right and any such procedure which bars this right must not be arbitrary in nature.

A reasonable procedure should be based on principles of natural justice such as nemo judex in causa sua (no should judge their own cause) and audi alteram partem (hear the other side). The procedure should not be arbitrary. The person who is prosecuted should have recourse against any decision taken against him.

According to these rules, the Constitution of an internal committee is to be done by the airline itself. Even though the Committee has external members, the airline has an upper hand in the constitution of this committee. This is violative of the principle of natural justice – nemo judex in causa sua.

The passenger’s name is displayed on the No-Fly List and all other airlines have the discretion to ban such passengers regardless of the fact that the incident did not occur on their airline. It is stated that the decision of the internal committee is binding only on the airline which constituted it. The flying ban imposed by other airlines on the basis of their discretion is arbitrary in nature.

Kunal Kamra vs. IndiGo

The recent incident in 2020, wherein, an Indian comedian Kunal Kamra was banned from various airlines for heckling a fellow passenger is a primary example of the arbitrariness. The airline imposed a 6 months ban on him prior to constituting an internal committee. Further, several other airlines followed this suit without any valid grounds. Consequently, a legal notice was served upon IndiGo for arbitrary actions against the comedian.

Hence, it can be inferred that these Rules grant arbitrary powers to the airlines. Although the motive of these rules is to mitigate the incidents of unruly passenger behaviour, the process mentioned therein can be challenged in the Courts for the reasons mentioned above.

 

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