A Flight of Fantasy – Legal and Regulatory Compliance in the Aviation Industry and the Role of International Conventions
Aviation law is the law that regulates the air. Aviation laws were a need after traveling in the air by humans became possible and popular. As travel through the air started to commercialize the requirement to regulate air traffic led to the formation of aviation laws. As aviation laws concern themselves with control over air passage, aviation laws include both domestic and international laws. Aviation laws cover various laws including air traffic, liability concerning air carriage, taxes, etc. The Aviation Sector in India has developed hugely in the last few decades. New airports being established all over the country ensures better and easier transport for the people in the country, making resources even more accessible than before.
Civil Aviation in India has been in place for more than a century. Now, India has the 9th largest aviation market in the world. The very first aircraft that was used in India was the beginning of the airmail service in India. The aircraft flew between Allahabad and Naini, on February 18, 1911. And, the very first commercial international flight in India, which was operated by the former Imperial Airways took place in 1912. The flight connected Delhi to Karachi.
The India Air Board which acted as an advisory Committee make recommendations in front of the Government of British India regarding the rapid development of civil aviation. On the advice of the Board the Department of Civil Aviation was established and Francis Shelmerdine was appointed as the First Director of Civil Aviation in India in 1927. In 1932 JRD Tata decided to launch India’s first Air- Carrier, Tata Sons Ltd, and became the pioneer of Civil Aviation in India.
Later, Tata Sons Ltd. was nationalized and in 1953 was renamed Air India which later became popular in India as an international Air Carrier. Keeping in mind the poor financial position of the Indian civil aviation sector, the Government of India decided to come up with the Air Corporations Act of 1953, which was brought in place to nationalize all carriers operating in India’s civil aviation industry. With globalization, the aviation sector in India has hugely benefited due to the participation of non-governmental companies which has helped in the commercialization of the aviation industry in India. Now, the aviation sector has become a huge market for big businesses which attract a huge number of customers monthly.
Indian Aviation Rules and Regulations
The Ministry of Civil Aviation (“MoCA”) is the primary statutory body that has been given the responsibility for the formulation of policies and rules regarding civil aviation in India. The MoCA plans and ensures the implementation of schemes for developing and expanding civil air services. The Directorate General of Civil Aviation, the Airport Authority of India, the Airport Economic Regulatory Authority, and the Bureau of Civil Aviation Security are the principal regulatory bodies that function under the authority of the MoCA.
The Ministry also ensures the implementation of various regulations like The Aircraft Act, of 1934 also known as the Aircraft Act, and also the Aircraft Rules of 1937 which was established in pursuance of the Aircraft Act, regulates the manufacturing, possession, usage, operation of aircraft, sale and import and export of aircraft. The parameters in respect of determining the worthiness, and maintenance of an aircraft and the regulations regarding the flying, registration, and procedures of investigations are also mentioned in the said Act. The Airport Authority Act of India, 1994 is the act responsible for the establishment and lays regulatory principles on matters concerning the Airport Authority of India.
The Civil Aviation Requirements were introduced by the Government of India, to regulate the problem of unruly passengers on air. The CARs which have been issued by the DGCA under Rule 133A of the Aircraft Rules lays down the criterion which is to be met before being provided with any form of certification or approval.
The Carriage by Air Act 1972 was established to enjoy governance of the rights and liabilities of air carriers. The Act applies to both domestic and international carriages by air, irrespective of the nationality of the aircraft delivering the carriage. It just must be within the territory of India. The Airports Economic Regulatory Authority of India Act, 2008, or the “AERA Act” led to the establishment of AERA. The Act regulates tariffs and other charges for services rendered at airports; and ascertains the establishment of an appellate tribunal for dispute resolution.
Lastly, Aircraft (Security) Rules 2011 regulates the procedures regarding air safety and security regulations for aerodromes and aircraft. It is provided in Rule 134 of the Aircraft Rules that no individual or group shall operate any scheduled air transport service to and from or across India without the permission of the Central Government as granted under Schedule XI of the Aircraft Rules.
Also, no such air transport service, other than the scheduled air transport services is to be operated without the special permission of the central government or a permit under a non-scheduled operator granted by the government. All the Cargo operations are undertaken by non-scheduled air transport operators and are performed in multi-engine fixed-wing air crafts or, single or multi-engine helicopters. The chartered flight, responsible for the travel of tourists to and from India is regulated by the DGCA. The DGCA oversees the process as an aspect of an Inclusive Tour Package that falls under the Aeronautical Information Circular.
International Aviation Organisations
International Air Transport Association (IATA) is a private organization that consists of nearly 120 countries as members. The organization aims to work for the promotion related to the interest of various airlines. The IATA has formulated numerous guidelines and approved various practices that have become the standard operating procedure for airlines handling unruly passengers. The IATA Guidance on Unruly Passenger Prevention and Management, 2015. The guide provides multiple ways for how airlines must deal with chaotic passengers.
Another such organization is the International Civil Aviation Organization (ICAO). The International Civil Aviation Organization is one of the agencies of the United Nations established in 1944. It was formed to oversee the administration and ensure proper governance of the Chicago Convention which is the Convention on International Civil Aviation. The organization currently has approximately 193 member-States. The ICAO too has brought various ways to deal with unruly passengers.
India is a member of both organizations and has implemented various rules and regulations so to ensure the proper implementation of international rules regarding aviation. India also follows the ICAO guidelines on Safety and Standards and Recommended Practices (SARPs). The International Civil Aviation Organization or ICAO also produces Air Operator Certificate which is to be issued by the member states. The aforesaid certificate is similar to the permit given by the Central Government regarding the operation of scheduled air transport services.
The Role of Conventions in Aviation
The Tokyo Convention was the first-ever endeavor at formulating international legislation regarding the regulation of offenses and certain other actions which are engaged onboard an aircraft. 186 states have ratified the legal framework of the Tokyo Convention. The Tokyo Convention Act of 1975 was enacted by the Indian Parliament to give effect to the Convention on Offences and Certain Other Acts Committed on Board Aircraft, adopted in Tokyo in 1963. Chapter III of the Act revolves around the core subject of the Tokyo convention, i.e, regarding the offenses committed onboard. The Convention has conceived over 50 years ago and Therefore fails to meet the requirements of modern air travel.
However, the guidelines as stated in the convention are still used as the main reference point for airlines handling incidents. Rules regarding the jurisdictions were one of the most ambiguous provisions in the convention. Article 3 of the Convention discusses the issue of jurisdiction. The Anti-Hijacking Act was passed by the parliament to give effect to the Convention for Suppression of Unlawful Seizure of Aircraft adopted in Hague in 1970. Section 3 of the Act deals with offenses like hijacking. Section 4 of the Act deals with the punishment for hijacking and Section 6 gives detail regarding the jurisdiction of the Indian courts on cases of hijacking.
The Montreal Convention, which was The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation took over the Tokyo Convention in 1971. The Suppression of Unlawful Acts against the Safety of Civil Aviation Act 1982 was passed by the Indian Parliament to give effect to the Convention. The Act was amended in 1994. The Amended Act inserted Section 3A which talks about offenses in the Airport. The Indian Aviation laws are heavily influenced by International Conventions which have effectively provided guidance to the Government in the formulation of laws regarding the regulation of the Aviation industry.
The Aviation industry has come very far from its inception. The Aviation law of India is a mix of some self-formulated domestic laws and some enactments brought in place to give effect to International Conventions. Aviation law includes a wide range of laws from customers to the operation of air crafts. After globalization, the Indian Aviation Sector has seen huge growth and ensured the proper functioning of the sector. The laws that are made are at par with the requirements of the modern evolving aviation industry ensuring smooth functioning.
The parameters in respect of determining the sir worthiness, and maintenance of an aircraft, and the regulations regarding the flying, registration, and procedures of investigations are all covered in the aviation laws. The quick commercialization of the sector led to the urgency of bringing such sets of rules which could ensure growth while ensuring a certain level of restriction is maintained. The government of India has taken a dominating role in implementing the regulations in the sector which is the prime reason for the effectiveness of discipline across the industry. The Conventions and domestic legislation are frequently amended so that the laws governing the whole and corners of the industry are at par with the changing requirements and demands of the industry.