The Minister of Civil Aviation of India, Mr. Hardeep Singh Puri, introduced the Aircraft (Amendment) Bill, 2020 (the "Bill") before the Lok Sabha on February 4, 2020, to introduce certain modifications to the Aircraft Act, 1934 (the "Act") which is the principal legislation in India providing for the control of the manufacture, possession, use, operation, sale, import and export of aircrafts and licensing of aerodromes. The Aircraft (Amendment) Act, 20201 (the "Amendment") was passed by the Lok Sabha on March 17, 2020, by the Rajya Sabha on September 15, 2020 and received presidential assent on September 19, 2020, thereby, according it the status of enforceable law.
The genesis of this Amendment lies in the audit conducted in the years 2012 and 2015 by the International Civil Aviation Organisation ("ICAO")2which indicated the need to give proper recognition to 3 (three) existing regulatory bodies which operate under the Ministry of Civil Aviation as statutory authorities under the Act, to enhance the quantum of penalties, to empower officers to levy greater fines for violations of the Act and to also include certain areas of air navigation services or rule making purpose under section 5 of the Act.
The Amendment incorporates most of the ICAO recommendations and also provides for certain other matters based on the internal representations of the security forces. We discuss below some of the key changes that the Amendment has introduced.
1. KEY CHANGES
1.1 Independent statutory organisations
The Amendment grants statutory status to all the 3 (three) existing agencies, in other words, the Directorate General of Civil Aviation ("DGCA"), the Bureau of Civil Aviation Security ("BCAS") and the Aircraft Accidents Investigation Bureau ("AAIB") which are currently regulatory bodies working under the Ministry of Civil Aviation, Government of India. The DGCA, BCAS and AAIB will henceforth be accorded the status of statutory organisations. As per the Amendment, each of the DGCA, BCAS and AAIB will now be headed by a Director General who will be appointed by the Central Government.
The DGCA will be responsible for safety and oversight and regulatory functions, the BCAS will carry out regulatory oversight functions related to civil aviation security and the AAIB will carry out investigations related to aircraft and related incidents. These agencies will now have their powers flowing from the specific provisions provided under the Act.3
1.2 Increased power to the Central Government
The Amendment has enabled the Central Government to expand its control and superintendence over each of the DGCA, BCAS and AAIB. The Central Government can also issue directions to any of these organisations in their respective spheres of working (as detailed under the Act) if it considers necessary to do so in the public interest.4
Further, if the Central Government considers it necessary and expedient to do so in the public interest, it may, upon of receipt of a representation from any person or otherwise, review any order passed by the Director General of DGCA or the Director General of BCAS and issue directions to them to rescind or modify their orders.5
1.3 Increased penalties for offences
Prior to the Amendment, the Act provided for a punishment comprising of imprisonment of up to 2 (two) years or 3 (three) years (in certain cases), or a fine of up to INR 1,000,000 (Indian Rupees one million only) for various offences under the Act including the carriage of arms, explosives or other dangerous substances or furnishing false information regarding the carriage of such goods or contravention of any rules under the Act, or both, flying any aircraft in a manner so as to cause danger to any person or to any property, non-compliance with the direction issued by the Director General of DGCA and construction of buildings or structures within the specified radius around an aerodrome reference point.
With the Amendment these offences now carry an increased financial penalty of up to INR 10,000,000 (Indian Rupees ten million only) in addition to the prescribed imprisonment. Additionally, the Amendment empowers the Central Government to impose penalties not exceeding INR 10,000,000 (Indian Rupees ten million only) for commission of any offence for which no specific punishment has been provided under the Act or the rules made thereunder6
The Central Government has also been empowered to cancel the license, certificate or approval issued to any person under the Act if such person contravenes any provision of the Act or the rules made thereunder. Such licenses may include those given for the establishment of air transport service, the establishment of aerodromes and operation, repair and maintenance of the aircraft.7
1.4 Regulation of air navigation services
The Amendment enables the Central Government to regulate and formulate rules for all areas of air navigation services, namely the aeronautical information services, aeronautical charting and cartography services, aeronautical meteorological services, search and rescue services, procedure for air navigation services and aircraft operations (other than certification, inspection and regulation of communication, navigation and surveillance or air traffic management services) and any other matter relating to air navigation services.8
1.5 Appointment of designated officers for adjudicating penalties
The Amendment empowers the Central Government to appoint a designated officer, not below the rank of Deputy Secretary, to adjudicate and compound penalties under the Act. The designated officer can by an order in writing, impose a penalty on a person found to be in contravention of the Act by providing such person a reasonable opportunity of being heard.
Persons aggrieved by an order of a designated officer may appeal to an appellate officer (being an officer who is next higher in rank to the designated officer who has passed the order) within 30 (thirty) days from the date of such order.
1.6 Composition of certain offences
The Amendment provides for the compounding of certain offences under sections 10, 11, 11A, 11B and 12 of the Act and the rules made thereunder.9 Such offences can be compounded either before or after the institution of any prosecution of offences by the Director General of DGCA, BCAS or AAIB, subject to the direction, control and supervision of the Central Government. The composition of an offence shall give an effect of an acquittal of the accused with whom the offence has been compounded.
Compounding of an offence is not permissible in the event the offence is committed for the second time or thereafter a period of 5 (five) years from the date of commission of a similar offence which was earlier compounded or for which the accused was earlier convicted.
1.7 Sanction required from the Director General
The Amendment provides that the courts in India cannot take cognizance of any offence punishable under the Act except on a complaint by or with the previous sanction in writing by the Director General of DGCA, BCAS or AAIB as the case may be. Only a court of law which is equivalent or higher to that of a Metropolitan Magistrate or Magistrate of first-class can try the offences under the Act.
1.8 Exemption for armed forces
The Act provided an exemption to any aircraft belonging to the naval, military or air forces from the purview of the Act. The Amendment extends this exemption to include aircraft belonging to any other armed forces of the country and such aircraft shall continue to be exempted until specified otherwise by the Central Government.
The Amendment enhances the quantum of penalties under the Act, empowers the authorities and increases deterrents for the stakeholders from contravening the rules made under the Act. Further, the bifurcation of the roles and responsibilities of different bodies such as the DGCA, BCAS and AAIB and providing independent status to such bodies will lead to improved decision-making process and enabling quick turnaround and also provide power to compound certain offences.
By aligning the Act with the ICAO recommendations, the Amendment act as a concrete step in showing India's commitment to the adoption of internationally acceptable civil aviation standards and practices and can help India improve its stature in the global aviation community. Overall, the Amendment seems to be a step in the right direction.
2. ICAO is an United Nations' specialized body established to manage the administration and governance of the Convention on International Civil Aviation ("Chicago Convention"). ICAO works with the member states of the Chicago Convention for setting international civil aviation standards, recommended practices and policies which are thereafter used by the member states for ensuring that their domestic legislations conform to the global standards. It also conducts regular safety and security audits (under its Universal Safety Oversight Audit Programme and the Universal Security Audit Programme) of the member states to the Chicago Convention to ensure that these states are fulfilling their obligation of safety and security oversight functions.
3. Please refer to section 5A of the Act.
4. Please refer to section 4D of the Act.
5. Please refer to section 5A(1B) of the Act.
6. Please refer to section 10A of the Act.
7. Please refer to section 10B of the Act.
8. Please refer to section 5(gd) of the Act.
9. Please refer to section 12A of the Act.
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