Introduction

As already covered in our previous article,1 the newly promulgated and liberalised, Drones Rules, 20212 ("Drone Rules") are an important landmark in the regulation of Drones in India. However, there seems to be an apparent gap under the Drone Rules, with respect to the safety investigation procedures in case of accidents.

Drone Rules mandate that the remote pilot must report an accident involving a Drone/Unmanned Aerial System ("UAS ")within 48 hours from the occurrence of such incident, to the Director General of Civil Aviation ("DGCA") through the Digital Sky platform.3 However, the Rules do not prescribe any other procedures for safety investigations in case of accidents involving Drones.

But, likely, that the mechanism under the Aircraft (Investigation of Accidents and Incidents) Rules, 20174 ("AIAI Rules") would apply for investigations in case of accidents, under the Drone Rules as well. As per the Aircraft Act,5 which is the parent Legislation for both the Drone Rules and AIAI Rules, both manned and unmanned aerial vehicles are included within the definition of aircraft.6 Moreover, in cases where the Drone is above 500 kgs in total weight, then the Aircraft Rules, 1937 automatically applies instead of the Drone Rules.7

Safety Investigation Procedure Under the AIAI Rules

The AIAI Rules have established the Aircraft Accident Investigation Bureau ("AAIB") as an authority under the Central Government. This body is responsible for aircraft accident and incident investigations.

The sole objective of the investigation of an accident or incident by AAIB is to prevent accidents and incidents and not apportion blame or liability. 8

The AIAI Rules have specifically differentiated between an Accident, Incident and a Serious Incident:

  1. "Accident" (in the case of an unmanned aircraft) has been defined as an occurrence, which takes place between the time the aircraft is ready to move with the purpose of flight until such time as it comes to rest at the end of the flight and the primary propulsion system is shut down, in which: a person is fatally or seriously injured, the aircraft sustains damage or structural failure or the aircraft is completely missing or inaccessible.9 It is pertinent to note, this is similar of the definition of Accident under the Drone Rules.10
  2. "Incident" is defined as an occurrence, other than an accident, associated with the operation of an aircraft that affects or could affect the safety of the operation.11
  3. "Serious Incident" is defined as an occurrence, incident involving circumstances indicating that there was a high probability of an accident. The Rules have also specified a list of probable examples of what a serious incident would amount to, these examples range from near collisions to system malfunctions and even engine disintegrations, this list is mentioned under Schedule A of the AIAI Rules.12

The AIAI Rules mandate the requirement of a notice within a period of 24 hours in case there has been an accident. Such notice must be sent to the AAIB and DGCA. The incident/accident must also be reported to the nearest District Magistrate and police station.13 This requirement of reporting to District Magistrate and police station, will likely be in addition to the reporting requirement under the Drone Rules. 14

The Director General of AAIB (DG AAIB) is entitled and obligated to investigate accidents or serious incidents that involve an aircraft (either manned or unmanned).15 The DGCA normally also conducts an investigation in any other kind of incident or accident that is not provided above. However, if the AAIB wants to conduct an investigation in any particular matter which is outside the scope previously mentioned, it can do so by undertaking the investigation on its own accord.16

The procedure of investigation under the AIAI Rules can be summarised as follows;

  1. Preliminary investigation — The DG AAIB may authorise any person including an officer of the Aircraft Accident Investigation Bureau to conduct a preliminary investigation into an accident or incident and to submit a preliminary report to the Aircraft Accident Investigation Bureau17
  2. The DG, AAIB shall appoint an Investigator in-Charge and one or more investigators to assist the principal investigator to hold the investigation.18 This investigation will be held in private.19
  3. The principal investigator can exercise its powers stipulated under Rule 10 while conducting the investigation. The powers of the investigator have been mentioned hereinafter.
  4. The principal investigator shall submit a final report to the AAIB. Such report will adhere to the standards set by Annex 13 of the Convention relating to International Civil Aviation ("CICA").20
  5. The DGCA shall accept such report and publish it in a manner it deems fit.
  6. The AIAI Rules also mandate the Investigator-in-Charge or the Court to forward a copy of the Draft Final Report to-
    1. The State of registry (State on whose register the aircraft is entered)
    2. The State of operator (State in which the principal place of business of the operator is located or if there is no such place of business, the permanent residence of the operator)
    3. The State of design (State having jurisdiction over the organisation responsible for the type design of the aircraft)
    4. The State of manufacturer (State having jurisdiction over the organisation responsible for the final assembly of the aircraft); and
    5. The State that participated in the investigation in accordance, inviting their significant and substantiated comments on the report within sixty days of its issuance.
  7. The Final Report made public, by the Central Government or the AAIB, shall be forwarded to the States entitled to receive such report under Annex 13 and the report shall also be forwarded to International Civil Aviation Organisation ("ICAO") if the mass of the aircraft involved in the accident or incident is more than 5,700 kg.21

The AAIB Rules also give the power to Central Government to hold a formal investigation of an accident, which provides for a more formal investigation procedure. The Central Government appoints a competent person, referred to as "Court" for investigation. After the appointment of the Court, all other investigations shall be treated as closed and all relevant material on the subject shall be transferred to the Court. The "Court" has all the powers of an ordinary civil court in India. Thus, the powers are far greater than the powers provided to an investigator under the AIAI Rules. The Court after holding a consultation on Draft Final Report with the States as required in Annex 13 CICA, shall submit the Final Report to the Central Government in the format specified by AAIB.22

Powers of Investigator

The investigator has powers that can be briefly summarised as follows;

  1. In case of an accident or serious incident the DG, AAIB is vested with the power of protection of evidence, custody, removal and preservation of the damaged aircraft. The aircraft and contents thereof shall not, be removed or otherwise interfered with without the permission of DG, AAIB.23
  2. Investigator has the power to require the attendance of any person, by summons under his hand, whom he thinks fit to call before him and examine for such purpose; require any such person to make and to sign a declaration regarding the true nature of the statements made by him; to require and enforce the production of all books, paper, documents and any articles including but not limited to Flight Data Recorder, Cockpit Voice Recorder and Air Traffic Services Records which he may consider necessary for the investigation, and to retain such data until completion of the investigation; and to have access to and examine any aircraft and its components involved in the accident or incident, the place where the accident or incident occurred or any other place.24

Non-Compliance & Penalties

In an event where there is a default and evidence of non-compliance with the above-mentioned rules, the DGCA can impose a penalty of up to Rs. 1,00,000 (1 Lakh) under the Aircraft Act, 1934.25 The penalties issued with regards to non-compliance are not exhaustive and according to Drone Rules, they are only in addition to the provisions of any other law that is in force during that relevant period of time.26

Thus, in addition to Rule 50 of the Drone Rules, penalties can also be imposed as per the Indian Penal Code, 1860 ("IPC"), some of which are hereby mentioned;

  • Section 287: negligent conduct with respect to machinery (carrying a maximum sentence of imprisonment that may extend to six months or a fine that may extend up to 1,000 Indian rupees, or both);
  • Section 336: act endangering life or personal safety of others (carrying a maximum sentence of imprisonment that may extend to three months or a fine that may extend to 250 Indian rupees or both);
  • section 337: causing hurt by an act endangering the life or personal safety of others (carrying a maximum sentence of imprisonment that may extend to six months or a fine that may extend to 500 Indian rupees or both); and
  • Section 338: causing grievous hurt by an act endangering the life or personal safety of others (carrying a maximum sentence of imprisonment that may extend to two years or a fine that may extend to 1,000 Indian rupees or both);

It is pertinent to note that if the Sections of IPC are imposed, such investigation would be undertaken by local police authorities and not by the DGCA or DG AAIB. Thus, the punishment, if any, will also be imposed by an ordinary criminal Court. However, a person is free to seek defence in event that the failure to comply with the Drone Rules was due to factors or circumstances beyond the scope of such person. These factors can include the stress of weather or other unavoidable circumstances that were very much beyond the control of such person and the cause of which cannot be connected to the person's lack of knowledge.27

Conclusion

Whilst the Drone Rules have filled up a significant void in relation to the regulations of Drones in India. However, the Drone Rules are only at the nascent stages of implementation. In light of the increased use and focus of Drones in India, the Drone Rules can further be strengthened and supplemented through the use of safety investigation procedures in case of accidents, as envisaged under the AIAI rules. It thus remains to be seen, whether AIAI Rules will apply stricto sensu to the newly promulgated Drone Rules, or whether the legislature will over time promulgate bespoke rules to regulate the safety investigations. But it is quintessential for the effective implementation of the Drone Rules, to adopt or lay down mechanisms for safety investigations in case of accidents.

Footnotes

1. https://www.mondaq.com/india/aviation/1108208/the-drone-rules-2021-an-unmanned-flight-into-unchartered-territory

2. Drone Rules, 2021 (Published vide G.S.R. 589(E) dated 25th August 2021)

3. Rule 30, Drone Rules, 2021

4. Aircraft (Investigation of Accidents and Incidents) Rules, 2017 (Published vide G.S.R. 1011(E) dated 7th August 2017)

5. The Aircraft Act, 1934 (Act Number XXII Of 1934)

6. Section 2(1), Aircraft Act, 1934

7. Rule 2(2), Drone Rules, 2021

8. Rule 3, AIAI Rules, 2017.

9. Rule 2(1) AIAI Rules 2017

10. Rule 3(b), Drone Rules 2021

11. Rule 2(18), AIAI Rules 2017

12. Rule 2(29), AIAI Rules 2017

13. Rule 4(1), AIAI Rules 2017

14. Rule 30, Drone Rules, 2021

15. Rule 5(1), AIAI Rules 2017

16. Rule 13(2), AIAI Rules 2017

17. Rule 9, AIAI Rules 2017

18. Rule 11(1), AIAI Rules 2017

19. Rule 11(2), AIAI Rules 2017

20. Rule 11(5), AIAI Rules 2017

21. Rule 14, AIAI Rules 2017

22. Rule 12, AIAI Rules 2017

23. Rule 7, AIAI Rules 2017

24. Rule 10, AIAI Rules 2017

25. Section 10-A, Aircraft Act, 1934; Rule 50, Drone Rules, 2021.

26. Rule 49(4), Drone Rules 2021

27. Rule 49(3), Drone Rules 2021

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.