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Drones – Ready for Take-Off in India

By: Ramesh Vaidyanathan and Mansi Singh

Introduction

In October 2014, the Directorate General of Civil Aviation (“DGCA”) in India banned the use of Unmanned Aerial Vehicle/Unmanned Aircraft Systems in the Indian civil airspace (other than by the Government of India) citing safety issues and security threats. While many countries have enacted laws regulating the use of drones, India for a long time continued to deliberate on the regulations. Finally, the DGCA issued the civil aviation requirements for the operation of civil remotely piloted aircraft system (“CAR”) in August 2018, ending a prolonged period of uncertainty.

The CAR will be effective from 1st December 2018 and will enable commercial usage of remotely piloted aircraft system (“RPA” or “drones”) for various purposes such as security management, agriculture, news gathering and commercial filming.

Decoding the CAR

1. Categories of Drones

The CAR has introduced the following five categories of drones:

a. Nano: Less than or equal to 250 grams

b. Micro: Greater than 250 grams and less than or equal to 2 kg

c. Small: Greater than 2 kg and less than or equal to 25 kg

d. Medium: Greater than 25 kg and less than or equal to 150 kg

e. Large: Greater than 150 kg


2. Introduction of a Digital Sky Platform

The CAR has devised an online portal called the “Digital Sky Platform” on which RPA operators will have to register themselves as well as the RPA they intend to operate. It will be a one-time registration and all further permissions will be processed through the Digital Sky Platform.

3. Eligibility

CAR lays down the process for obtaining an Unmanned Aircraft Operator Permit (“UAOP”) by every RPA operator. UAOP shall be valid for a period of five years from the date of issue and cannot be transferred.

CAR further lays down the eligibility criteria for obtaining a Unique Identification Number (“UIN”) for each RPA. UIN will be provided only for an RPA that is either wholly owned by an Indian citizen or a company or an RPA that will be leased to an Indian company.

4. Minimum standards for the manufacture of RPAs

The CAR lays down minimum requirements for manufacturing small, medium and large categories of RPAs. These mandatory requirements include global navigation satellite systems, return-to-home features, flashing anti-collision strobe lights and geo-fencing capabilities.

5. Operations

CAR requires that RPA be operated within the visual line-of-sight and in the daytime only. CAR also divides the air space into different zones such as ‘no drone zones’, ‘controlled airspace’ and ‘uncontrolled airspace’.

6. Requirements for the import of RPAs

Multiple approvals will have to be obtained by any entity intending to import into India RPAs other than the Nano category ones. The approval process prescribed under the CAR is as follows:

Approvals for import of RPAs Equipment Type Approval from the Department of Telecommunication Import Clearance from the DGCA License for import from the Directorate General of Foreign Trade (“DGFT”)

Application for UIN and UAOP

Areas of Concern

1. Restrictions on drone operations by foreign individuals/ entities

Any person who is not a citizen of India and entities that are owned or controlled by a foreign resident are prohibited from operating drones in India unless they lease their drones to an Indian company. This provision will most likely discourage foreign companies engaged in drone operations from entering the Indian market as their Indian subsidiaries may not be able to operate drones in India. This will be a major deterrent to any significant investment coming into this space from international investors.

2. Prohibition on use of drones for deliveries

The CAR stipulates that RPAs shall not discharge or drop substances unless specially allowed, and shall not transport any animal or human payload. Drones can be very useful for operations like carriage of donated organs and delivery of parcels from e-commerce websites and such restrictions are likely to limit the beneficial uses of drones.

3. Lack of single window clearance

For importing a drone into India, one will have to apply for various approvals as discussed above. As a large number of drones are purchased from international websites, the requirement to obtain multiple approvals before placing an online order is likely to be an extremely tedious process.

Analysis

Despite the ban on the use of RPA from 2014, civilian drones continued to operate in India, albeit illegally. This created the need for a robust set of regulations governing the registration and operation of drones. With the issue of CAR, the uncertainty has finally come to an end.

Introduction of the Digital Sky Platform will simplify the process for seeking further permissions for the operation of RPA. The CAR, however, does not give any details of the Digital Sky Platform, not even a URL. Further, in order to ensure that security and safety of general public is assured, serious consequences are prescribed for the violation of CAR including the suspension/cancellation of the UIN and UAOP. CAR further stipulates penal action for wrongful use of RPAs including penalties for negligent conduct with respect to machinery, acts endangering life or personal safety of others or for causing hurt by such acts. It is hoped that the sanctions on unauthorised usage of RPAs will act as a deterrent against their misuse.

CAR has surprisingly introduced a restriction that does not presently form a part of the foreign direct investment policy (“FDI Policy”) of India. A UIN will not be granted to any person who is not an Indian national nor can a company to which a UIN is granted be substantially owned or controlled by anyone other than an Indian national. The FDI Policy does not contain any such restriction and such restrictions will discourage foreign participation in the Indian drone market.

Interestingly, the CAR has also introduced a ‘No Permission- No Take-off’ mechanism that mandates drone hardware to be configured such that the drone cannot take off without obtaining regulatory permission. This is likely to address the security issues concerning unauthorised usage of drones. The legalisation of drones will further provide new business opportunities to entrepreneurs and open up new avenues for investment. The real estate sector is particularly pleased with the legalisation of drones for commercial purposes. The Managing Director of Ruparel Realty was quoted by a website as saying that “real estate has always been a cut-throat competitive market, hence aerial photography and videography becomes a useful medium to represent a property effectively for providing a larger than life perspective”.

Despite the many grey areas, the CAR is a significant first step in establishing a promising drone ecosystem in India.

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