AVIATION LAW

History of in India

The advent of the Indian Civil Aviation Industry can be traced back to 1912, with the first flight commencing as an extension of the London to Karachi flight, between Karachi and Delhi through the collaboration of Indian State and UK-based Imperial Airways.

JRD Tata instituted the first airlines in India, naming it Tata Airlines. Nine prestigious airline companies, carrying both cargoes as well as passengers, operated during the time of independence. A joint sector venture was started by the independent Government of India in 1948, which was named Air India International Ltd, with the collaboration of Tata Airlines and a fleet of three Lockheed Constellation Aircraft.

Air India International Ltd had its maiden flight on June 8, 1948, between Mumbai and London. By the Air Corporation Act 1953, nine airline companies were nationalized by the Indian Government after independence. The Indian Airline Corporation operated, hosted and monitored the domestic flights, and the international flights were overseen by Air India International. Vayudoot was the third government-owned airline company, providing feeder services between two small cities. In 1994, Vaayudoot became a part of Indian Airline Corporation. In April 1990, Open Sky Policy was adopted by the government in order to allow air tax operators to operate flights from any airport on both charter and non-charter basis.

Air Corporation Act 1953 was repealed and was replaced by  Air Corporations Transfer and Undertakings and Repeal Act of 1994, which allowed private operators to own and provide air transport services.

Foreign Direct Investment up to 49% equity stake was permitted, whereas for Non-Residential Indians the limit of equity stake was raised to 100%; exclusively for the domestic sector, through the automatic FDI route. No foreign airline company, however, could hold any equity in domestic airlines. One of the fastest-growing aviation industries in the world, the Indian aviation industry has come a long way since its inception.

AVIATION LAW

International Conventions and Organisation

International Civil Aviation Organisation () came into being in April 1947, with the application of the on International Civil Aviation. Chicago Convention describes the constitutive provisions of the ICAO and came into force with the objective of instituting a legal framework for the development of the civil aviation industry, post the destructive World War II, between 1939 and 1945. The International Air Service Transit Agreement, which governed the mutual exchange of transit riders across international airspace boundaries, which was signed at Chicago on 7th December 1944, and enforced on 30th January 1945. It provided for the allowance of the use of airspace by one country in exchange for the permission for the same over the airspace of another. Another agreement, the Five Freedom Agreement, which oversaw the mutual exchange of traffic rights. According to the agreement, each nation which was a party to the agreement, granted to all others, with the potential exception of former enemy nations, the five freedoms, which included-

  1. To fly across its territory without landing;
  2. To land for non-traffic purposes;
  3. To put down passengers, mail, and cargo taken on in the territory of the country whose nationality the aircraft possesses;
  4. To take on passengers, mail, and cargo destined for the territory of the country whose nationality the aircraft possesses;
  5. To take on the passengers, mail, and cargo, destined for the territory of another agreeing nation and to put down passengers, mail and cargo coming from any such territory.

The first two freedoms attack and remove the political impediments, thus helping keep the skies open to free air transit. The rest of the freedoms essentially encourage commercial privileges for the development of economic enterprise in air. The ICAO was established in order to formulate the principles, rules, procedures, and techniques for international air navigation and to facilitate and foster the development of air transport across international boundaries. The Chicago, not only laid down the constituting provisions of the ICAO but is also considered the all-encompassing constitution of worldwide civil aviation. The Chicago Convention’s provisions are directed to states, and form the convention, and provide guidelines for formulation and enforcement of public international law. Proceeding from territorial jurisdiction in the national airspace, the Chicago Convention is based on mutual respect of sovereignty and respective airspace, by all the members that are a party to it.

CASE- In the rare case deliberating over the sovereignty over airspace, the appeal of Kibris, an airline based in the Turkish parts of Cyprus, was dismissed on 12th October 2010, against the judgment of the English Court given on 28th July 2009. It was held that UK Secretary of State for Transport, was correct in refusing Kibris’s application to operate direct flights between Cyprus and UK; on the basis that operation to permit the operation of direct flights between UK and Cyprus, as such a permit would unjustly infringe the sovereignty of the Republic of Cyprus.

AVIATION LAW

Domestic Legislations

The of 1934, which was mainly based on Article 246 of the Indian Constitution which vests the power to make laws regarding civil aviation in the hands of the Indian Parliament, read with Schedule VII, List 1 of the Constitution; is the principal statute pertaining to civil aviation in India. This Act confers enabling powers governing civil aviation. It contains provisions for the development of subordinate legislation covering a wide range of subjects including civil orders, pertaining to rules, notifications, and regulations.

The Aircraft Act grants specific powers for manufacture, possession, operation, control, use, sale, import,  and export of aircraft. The Aircraft Rules of 1937 further lays down the rules relating to safety regulations, regulations of registration and marketing of aircraft, conditions of flying, which includes the air-worthiness of aeronautical beacons, ground lights, radiotelegraph, false lights, logbooks, investigation of accidents, investigation of incidents, inspection, engineering, and manual requirements and other general rules.

Bureau of Civil Aviation Security is the central agency of aviation security. Airport Authority of India is responsible for infrastructure with respect to airports, and the Directorate General of Civil Aviation, responsible for the regulation of civil air transport services in India and for the enforcement of civil air regulations, air safety, and airworthiness standards.    

According to the Civil Aviation Policy 2016, the Indian Government has decided to do away with the policy establishing the eligibility requirement for operation of the airline as five years in order to begin operations overseas; with a condition requiring the allocation of 20 per cent or 20 aircraft, whichever greater in number,  of the total fleet, to the domestic sector if the overseas operation were to be allowed.

AVIATION LAW

Anti-Highjacking

Hague Convention (officially known as Convention for the Suppression of Unlawful Seizure of Aircraft): It is a multilateral treaty adopted by the International Conference of Air Law at Hague on December 16th, 1970; in which countries agreed to prohibit and penalize aircraft hijacking. This convention restricted its ambit to situations wherein the civilian aircraft lands or takes off from a country it is not registered with, not applying to military or law enforcement aircraft. It lays down the principle Aut Ut Deidre Aut Judicare signifying that under this a state must prosecute the hijacker of an aircraft if no state requests their extradition for the prosecution of the same. The depository of this convention in the USA and the Soviet Union, and in today’s time, it has 185 parties, with 75 signatories and 10 ratifications.

In complete consonance with the intentions of the , and to buttress the same, there was the Convention of 2010, whose depository was Secretary-General of the International Civil Aviation Organisation, drafted and signed on 10th September 2010; parties ratifying to this thereby agree to criminalize application of civil aircraft as weapons or as illegal carriers of biological, chemical and nuclear weapons or using dangerous material to attack aircraft. As of now, it has 26 parties 34 signatories and 22 countries ratifying it.

To enforce both of the above-mentioned conventions, India brought in the of 2016 replacing the Anti-Hijacking Act of 1982. Accordingly, new Act applies even if the offence is committed outside Indian territory, but the aircraft is registered in India or leased to Indians, or the offender is Indian, or the offender is stateless but lives in India (such as an illegal Myanmar migrant), or the offence is committed against Indians.

Some prominent new introductions are executing the sentence for hoax calls, and a wider definition for aircraft “in service”.

AVIATION LAW

Under the old Act, an aircraft was considered “in service” between the time the doors shut and also the time every passenger had disembarked.
Under the new Act, “an aircraft shall be considered to be ‘in service’ from the start of the pre-flight preparation of the aircraft by ground personnel or by the crew for a particular flight until 24 hours after any landing”.

Section 3, clause 1 of the Act, defines the offence of hijacking as, “Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offence of hijacking”.

Under the act an attempt to hijack; influencing or directing others to hijack being an accomplice in a hijacking, preparation to hijack a plane or even a canard that many seem to be genuine will be punishable which may be up to life imprisonment if there are no casualties or death of passenger or crew member, but if there is death then capital punishment may be given.

CASE-  A businessman based in Mumbai, Birju Salla, was awarded life imprisonment and a fine of Rs 5 crore which will be distributed among the crew and passengers on board by special NIA, National Investigation Agency Court, Ahmedabad  Judge KM Dave because the convict created a hijack scare by planting a threat note written in English and Urdu in a tissue paper box in the lavatory of the plane. He was arrested by Ahmedabad Crime Branch on 30th October 2017 and was tried under the Anti-Hijacking Act 2016.

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