Indian Perspective of the Aviation Law

Authored By: - Sanjana Sahay

Edited By:- Yashika Malik


Introduction

Before liberalisation the aviation industry was viewed as an elite service[1]. The liberalisation of the aviation industry started around mid-nineties to the late nineties in India which allowed lot of new private players entering the aviation industry. The growth of the civil aviation industry can be easily traced back to the increasing economic growth, Indian tourism and service and the increase in disposable income of the middle class[2]. It has been noted that, when the Eleventh Five-year plan was implemented, India emerged as the ninth largest civil aviation within the market and it saw an average annual growth rate of 11.5%[3]. According to the data given out by Ministry of Civil Aviation (MCA) the passenger traffic in the domestic sector has grown from 53.8 Million in 2010-2011 to 68.4 Million in 2014 to 2016. It was also estimated that India has the potential to grow and become a part of the top three aviation market in 2020[4]. The Aviation Industry in India provides 1.7 million jobs and consists of 0.5% of the GDP growth rate[5]. The private sector has also played pivotal role in the development of the Indian aviation industry. This can be seen through the Public Private Partnership of Hyderabad and Bengaluru airport and modernisation of Delhi and Mumbai airport[6].

Regulatory Framework of Aviation Industry

Regulatory Authority

The primary responsibility of governing the aviation industry falls within the hands of Ministry of Civil Aviation (MoCA) which formulates the policies and regulation. There are various other principal regulators which work under MoCA.

1. Directorate General of Civil Aviation – It is responsible for enforcing civil aviation regulation and regulating the air transport, service and safety

2. Airports Authority of India- It is responsible for creating, updating, maintaining and managing the civil aviation structure in India

3. The Airport Economic Regulatory Authority- It is responsible for determining the tariff for the aeronautical services and monitoring the performance standard

4. The Bureau of Civil Aviation Security – It is responsible for ensuring that the civil aviation standards follow its national and international obligations[7]

Regulatory Framework

1. Indian Airships Act, 1911

This Act was passed in order to control the manufacture, possession, use, sale, import and export of the airships. Later, the Aircraft Rules 1920 were framed, some of the rules are still operative even today. This Act has now been immersed with the, The Aircraft Act, 1934[8].

2. Aircraft Act, 1934 and Aircraft Rules, 1937

This Act and the rules were enacted in order to regulate the civil aviation industry. It regulated the manufacture, possession, operation, use and sale of the aircraft. It also stipulates the air worthiness, maintenance, general conditions for flying and safety standards[9].

3. Carriage by Air Act, 1972

This Act is responsible for governing the rights and liabilities of the air carriers and is applicable to both domestic and international carriage through air[10].

4. Airports Authority of India Act, 1994

There are two key roles performed by the AAI Act

· Establishing the AAI

· The AAI becomes responsible for the development, finance, operation and maintenance of all the government airports within India[11]

5. Airports Economic Regulatory Authority of India Act, 2008 (AERA)

This Act provides for the establishment of AERA, it also regulates the tariff and other charges which are rendered in the vicinity of the airports. It also establishes an appellate tribunal for the adjudication of the disputes[12].

There was an important Amendment Bill called as the Airports Economic Regulatory Authority of India Amendment Bill, 2018. The Bill tried to increase the threshold of annual passenger traffic in major airports to more than 35 Lakhs. Since AERA is responsible for tariff and fees, the Bill redefined the role of AERA and stated that AERA will no longer determine the tariff, tariff structure or the developmental fees in certain cases[13].

Dispute Resolution

The Directorate General of Civil Aviation (DGCA) has the authority under Aircraft Act, 1934 to detain any aircraft[14] if such detention is necessary in order to secure compliance of any of the provisions within the Aircraft Act or Rules. The matter regarding the aviation industry shall be heard in the courts according to their subject matter. Any dispute related to the aviation industry involving competition law shall be dealt by the Competition Commission. Any kind of accidents in the aircraft are dealt by the Aircraft Accident Investigation Bureau [15]. The other matters relating to compensation are dealt under the Aircraft Act of 1934[16]. The Airport Economic Regulatory Authority Appellate Tribunal was established under S. 17 of the Act[17] to deal with dispute between the service provider and the consumer. Furthermore, the offences under Aircraft Act and Aircraft Rules are only bailable and non-cognizable offences hence a criminal complaint is directly filed in the court of Magistrate which is of competent jurisdiction. An exception to this is Rule 91 of Aircraft Rules 1937[18] which is a cognizable offence. In case of violation of Rule 91 and FIR is registered with the police.

International Conventions and Aviation Industry

India is a party to the Warsaw Convention of 1929[19] and Hague Protocol 1955[20]. It is also a party to the Montreal Convention of 1999[21]. The provisions provided in these International conventions and the Carriage by Air Act of 1972 are the laws which govern any carriage by air irrespective of the nationality. India has also agreed to the Cape Town Convention on International Interest in Mobile Equipment and the Protocol to the Cape Town Convention on International Interest in Mobile Equipment (Protocol) on March 31st, 2008[22]. Moreover, Tokyo Convention Act of 1975 was passed in the Indian Parliament which was done in order to give effect to the convention on Offences and certain other acts committed on the Board aircraft.

[1]India: Aviation Law In India National Civil Aviation Policy, 2016: A Breakdown By Aseem Sahni, Mondaq, (24th February, 2020 9:30 PM) https://www.mondaq.com/india/aviation/569832/aviation-law-in-india-national-civil-aviation-policy-2016-a-breakdown [2] Areas of Service, Nishith Desai, (24th August, 2020 10:34 PM) http://www.nishithdesai.com/information/areas-of-service/industry/aviation.html [3] Report of the Working Group on Civil Aviation for the Twelfth Five Year Plan (Aug 31, 2011), http://planningcommission.nic.in/aboutus/committee/wrkgrp12/transport/report/wg_civil.pdf. [4] India's domestic aviation market shows rapid growth in first half, CPA - Center for Aviation, available at http://www.centreforaviation.com/analysis/indias-domestic-aviation-market-shows-rapid-growth-in-first-half-58687 (as on August 12, 2012) [5] Remarks of Tony Tyler at the 2012 Confederation of Indian Industry, IATA, (24th August, 2020 12:30 PM) [6] Supra 1 [7] Anand Shah and Rishiraj Baruah-AZB & Partners ,India: Aviation Laws and Regulations 2020,ICLG.com, (24th August, 2020, 5:35 PM) https://iclg.com/practice-areas/aviation-laws-and-regulations/india [8] Indian Airships Act, 1911 [9] Supra7 [10] Carriage by Air Act, 1972 [11] Supra 7 [12] Airports Economic Regulatory Authority of India Act, 2008 [13] The Airports Economic Regulatory Authority of India (Amendment) Bill, 2018, PRS, (25th August,2020, 9:40 PM) https://www.prsindia.org/billtrack/airports-economic-regulatory-authority-india-amendment-bill-2018 [14] Aircraft Act, 1934, S. 8(1)(b) [15] Investigation of Accident and Incidents Rules 2017 [16] Aircraft Act, 1934, S.9B [17] Airports Economic Regulatory Authority of India Act, 2008, S.17 [18] [91. Prohibition of slaughtering and flaying of animals, depositing of rubbish and other polluted or obnoxious matter in the vicinity of aerodrome.—No person shall slaughter or flay any animal or deposit or drop any rubbish, filth, garbage or any other polluted or obnoxious matter including such material from hotels, meat shops, fish shops and bone-processing mills which attracts or is likely to attract vultures or other birds and animals within a radius of ten kilometers from the aerodrome reference point: Provided that the Director-General or Joint Director General of Civil Aviation or Deputy Director General of Civil Aviation, as the case may be, may, if he is satisfied that proper and adequate arrangements have been made by the owners of hotels, meat shops, fish shops and bone processing mills so as to prevent attraction of vultures or other birds and animals, having regard to the vicinity of place of slaughter from the aerodrome, arrangements for disposal or deposit of carcass, rubbish and other polluted and obnoxious matter, grant permission in writing for the purpose.] [19] Warsaw Convention, 1929 https://www.jus.uio.no/lm/air.carriage.warsaw.convention.1929/doc.html [20] The Hague Protocol, 1955 https://www.jus.uio.no/lm/air.carriage.warsaw.convention.hague.protocol.1955/portrait.pdf [21] Montreal Convention, 1999 https://www.infrastructure.gov.au/aviation/international/pdf/montreal_convention.pdf [22] Supra 7

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