By – Ramesh Vaidyanathan & Mansi Singh
Aircraft (Amendment) Act, 2020 (“Amendment Act”) has received the assent of the President of India and will soon be notified as law. The Amendment Act amends the Aircraft Act, 1934 (“the Act”) that regulates manufacture, possession, use, operation, sale, import and export of aircraft.
The Amendment Act makes provisions for securing the safety of aircraft operations in India and embraces the standards set by the International Civil Aviation Organisation (“ICAO”). ICAO, under its Universal Safety Oversight Audit Programme and the Universal Security Audit Programme, conducts regular safety and security audits of all the countries that are signatories to the Chicago Convention so as to ensure that the signatories are fulfilling their safety and security oversight obligations. The audits conducted by ICAO in 2012 and 2015 underscored the need for India to accord proper recognition to the regulators under the Act, enhance the quantum of fines and empower officers to impose financial penalties for violations.
Key provisions of the Amendment Act
Authorities: The Amendment Act has converted the three bodies under the Ministry of Civil Aviation (“MoCA”) into statutory bodies, namely (i) the Directorate General of Civil Aviation (“DGCA”), (ii) the Bureau of Civil Aviation Security (“BCAS”), and (iii) the Aircraft Accidents Investigation Bureau (“AAIB”). These three agencies can now function independently and have the power to take penal action. The superintendence of the DGCA, BCAS and AAIB will vest in the Central Government, which will also have the power to issue directions to each of these organisations in public interest. While the elevated statutory status to these organisations is welcome, past experience tells us that the people leading these organisations are not necessarily chosen for their capability, integrity and objectivity.
Cognizance of Offences: The Amendment Act provides that courts shall not take cognizance of any offence under the Act unless a complaint is made by, or there is previous sanction in writing from, the DGCA, BCAS or AAIB. The Amendment Act provides that only courts equivalent or superior to a Metropolitan Magistrate or a Magistrate of the first class can try any offence under the Act.
Quantum of Penalty: Under the Act, the penalty for various offences is imprisonment of upto two years or a fine of upto INR 1 million (approx. USD 13,720), or both. The Amendment Act raises the maximum limit on fines for all these offences from INR 1 million to INR 10 million (approx. USD 137,201).
Adjudication of Penalties: Previously, the Aircraft Rules, 1937 (Rules) empowered DGCA to suspend, cancel, withdraw or modify the flying license of the airlines and pilots for various contraventions. In addition, a case could be filed in the court of appropriate jurisdiction for imposition of penalty against the offender under the relevant provisions of the Act or Rules. This was a judicial action to be taken by the court. In a welcome change, the Amendment Act provides for the appointment of designated officers, not below the rank of Deputy Secretary, to adjudicate on penalties under the Amendment Act. There is also a provision to appeal to an appellate officer against the imposition of such penalties. Given that many of the airlines are listed entities, penalty payments incurred by an airline will invite greater shareholder scrutiny and help fix accountability.
Air Navigation Services: Air Navigation Services in India are provided by the Airports Authority of India (“AAI”). The Ministry of Civil Aviation exercises administrative control over AAI. The Amendment Act enlarges the scope of the Act to include regulation of all areas of air navigation and the Central Government can now make rules to regulate aeronautical information services, aeronautical charting and cartography services, aeronautical meteorological services, search and rescue services, procedure for air navigation services and aircraft operations and any other matter relating to air navigation services.
Compounding of Offences: The Amendment Act allows for the compounding of certain offences such as (i) flying to cause danger to any person or property; and (ii) the contravention of any directions issued by the Director General of any of the three statutory bodies.
The Amendment Act seeks to align some of the Indian civil aviation practices with internationally accepted standards, procedures and practices laid down by ICAO. It is expected to empower DGCA, BCAS and AAIB to function more efficiently and ensure enhanced safety and security of aircraft operations in India. Also, the increased penalties will act as a deterrent against air safety violations.