The Ministry of Civil Aviation, India published the Drone Rules on August, 25, 2021("Drone Rules"). This article while briefly noting the potential of drones and the considerable improvements made over the extant Unmanned Aircraft System Rules, 2021 published in March 2021 ("UAS Rules"), makes reasoned suggestions for improving the proposed framework of the Drone Rules.
Presently, drones are primarily used for inspection and survey but have immense potential in various sectors, such as commercial operations, last mile delivery schemes (eg. Telangana governments initiative of delivering vaccines and medicines using drones, "Medicine from the Sky")1, agriculture (spraying pesticides to swarm off wards of locusts), oil and gas explorations, mining and quarrying, urban and transportation planning, drone taxis and in providing adequate support to our security personnel to name a few. With the help of LIDAR and photogrammetry, drones can directly benefit heavy industries in mapping and surveying as drones have the capacity of doing the groundwork in a fast, safe, accurate and economical way. Mr.Yashwant Sinha shares in his autobiography, 'Relentless',2 how as an IAS officer in the early years of his career, he was deputed to conduct a survey of a land being acquired for the Heavy Engineering Corporation Plant at Hatia, near Ranchi. With drones in place, perhaps the present-day bureaucracy could also benefit from drones and channelize their energy into other places. Realising the potential, the National Highway Authority of India recently made drone surveys mandatory for monthly video recordings of all National Highway projects during development, construction, and O&M activities in the presence of a supervision consultant.
As per the Director of the Drone Federation of India, drones could add 5-7 lakh jobs in the Indian economy3. Hence drones have immense potential in development of and providing jobs into the economy. With the airspace map published, it is necessary to acknowledge that the Drone Rules are an improvement over the UAS Rules for several reasons, few of which are stated below,
- simplicity: from 69 pages, the rules have been considerably simplified in size to 19 pages.
- number of approvals, forms (from 25 to 5), and fees (72 to 4) have been reduced.
- there is an attempt to reduce human interface and automate (Rule 43(2), Rule 45)
- area under Yellow zone has reduced from 45 kms from the perimeter of the airport to 8-12 kms from the airport
- the weight of drones covered by the rules and exempt from the Aircraft Act, has increased from 300kgs to 500 kgs,
- security clearances are not necessary for registration and licensing, drone corridors have been proposed,
- foreign companies restrictions stand removed (i.e. principal place of business of the drone operator must be India, and at least 2/3rd of the Directors must be Indian Citizens)
While noting the improvements made, and the Ministries statement that the rules are "built on a premise of trust, self-certification and non-intrusive monitoring", a few points were missed out and addressing them could help further rationalization of the Rules. Some of these points are discussed below:
Firstly, on personal data and privacy: The existing UAS Rules, had cast an obligation on drone operators to ensure privacy of individuals. However, the Drone Rules do not even mention the word 'privacy'. To the contrary, Rule 254 allows all "State Governments, Union Territory Administrations and law enforcement agencies" to have "direct access to the digital sky platform." This is a slight improvement over "providing direct access to all the data in digital sky platform" as the draft rules provided. The Digital sky platform is an online platform hosted by the Director General of Civil Aviation, India ("DGCA") for managing drone and various related activities. The rationale seems to stem from the concern expressed by the Supreme Court in KS Puttaswamy vs UOI5 that privacy may only be interfered with when it is backed by law. Rule 25 in its present form oversteps the mandate of law by authorizing direct access to data on the platform to governments and law enforcement agencies. This rule completely ignores guiding principles of privacy such as purpose limitation, necessity and proportionality. Under the rules, neither is there any compelling state interest for individual data to be accessed nor is there any regulator who will investigate the legitimacy of the request of access to data. Direct access is ipso facto provided to all law enforcement agencies. This is a flagrant violation of the consent principle of data. If an individual has data on the digital sky platform, it is for drone related activities. There may be a reasonable expectation that with pseudonymisation and anonymization, the data would be used by the DGCA for research and facilitating drone activities, hence these activities may be permitted. So would access to data in investigations since there would be a compelling state interest, and after balancing requirements of necessity and proportionality, access to data in cases of investigation would be permitted as well. However, after privacy being recognized as a fundamental right, drone usage cannot be made contingent on waiving fundamental rights. The rule in its present form does exactly that by providing direct access of the data to the nodal officer of the State Government, Union Territories and law enforcement agencies. To merely assuage by saying that the government will not unnecessarily access data would be paying lip service to privacy as a fundamental right, a fundamental right is not contingent on the whims and fancies of the executive. If the data will not be accessed unnecessarily, the law need not be worded so widely.
Secondly, on approvals given by foreign regulators: Rule 106 permits the Director General of Civil Aviation to certify drones based on approvals granted by international regulators of States that are party to the Chicago Convention, 19447.
In the EU, under Article 57(f) and Article 90 of Easy Access Rules for the Basic Regulation (EU) 2018/1139, a competent authority has the power to provide for procedures for conversion of national certificates into certificates for compliance of unmanned aircraft (Article 56). It is suggested that we should adopt a system akin to a system prevalent in the European Union("EU"). A similar power must be provided to the DGCA in India, i.e. the power to provide for a procedure for the conversion of national certificates into certificates of compliance under the Drone Rules, 2021.
Thirdly, on Community data this was an area which was identified by the Sri Krishna Committee Report as deserving of future law but no concrete recommendations were made apart from recognizing the principle that such data deserved protection. If data on digital sky platform could be used by government authorities, ipso facto as provided under Rule 25, not only would it interfere with individual autonomy and decisional autonomy by using big data to identify behavior patterns, but even unprotected corporate data (i.e., data not protected under the IP regime) would fall under the scanner of ipso facto access by the government in lieu of Rule 25. This would be a major disincentive for private investments and corporate participation in this developing sector, hence further augmenting the need to tweak Rule 25.
Fourthly, on control and transfers of drones: Rule 178 permits for transfer of drones by providing some details on the digital sky platform. However, there is no method of identifying who has control of drones at times of usage. Given the immense potential of misuse of drones, it becomes very important to establish control to facilitate investigations. Let us say a drone belongs to X, and X is unaware that Y is using the drone for some illegal purpose, say spying over X's neighbors.
The assumption that a person in possession of the drone has ostensible control of the drone in law may well operate but given the possibility of rogue drones or drones being used for illegal purposes and the simplicity of the Digital Sky platform, there could be a simple non-time-consuming method of recording drone control, like a simple photograph or OTP provision to enable law enforcement agencies to prima facie establish control during investigations. The specifics of what may be done is independent of the fact that apart from transfer of drones, a simple, non-intrusive method of recording control of drones must exist.
Fifthly, on Research and Development ("R&D"): Rule 429 provides exemptions to a certain class of persons from requiring a certificate of airworthiness, prior permission, UIN and remote pilot license for operating drones for the purpose of R&D. This benefit has been limited to educational institutions and R&D entities under the administrative control of or recognized by the government. Exemptions must be further provided to enable collaboration between Indian universities or companies with foreign universities and companies in drone development. This further exemption would be acknowledging the reality of R&D in India, as pointed by the Economic Survey (2017-2018), that is:
- R&D spending in India – 0.6% of GDP vs 2.8%(USA), 2.1% (China), Israel (4.3%)
- Private R&D has lagged in India with only 26 Indian Companies in the list of top 2,500 global R&D spenders (Forbes, 2017)
- in most countries, though government plays an important part in funding, bulk of R&D is carried out by the private sector vs India where government is the primary user of R&D funds as well, hence the private sector needs to increase its R&D.
- Indian universities play a relatively small role in the R&D of the country. R&D is concentrated in specialized research institutes, hence there is disconnect in teaching and research.
Hence there is huge catch-up space for the private sector to converge on R&D spending. 19 of the 26 Indian companies in the top 2,500 global R&D spenders are just in 3 sectors (pharma, automobile and software). So, firstly, due to industrial potential of drones in India coupled with the lack of private sector spending in R&D and the possibility of the void in development of drones being filled by collaborative efforts between private sector and foreign universities, the same must be facilitated by a rules based approach. Secondly, that professional institutes would be engaging in R&D on drone and that substantial investment & autonomy in research would be required for it to proliferate, exemptions must as a matter of rule, and not discretion(under Rules 48) be provided to recognized private entities/institutions which collaborate with universities abroad or in India to develop drone R&D. These conditions would as a matter of policy and not discretion help create incentives for collaborative research and the aforesaid exemption would be a step in the right path.
Notwithstanding the recent drone attacks in Jammu (in July, 2021), liberalising the drone policy in India is a step in the right move. It would allow our forces to extensively use drones, not just in Kashmir, but also instances like the Salwa Judum in the past where untrained, children and citizens of the State were armed to deal with the Naxalite issue in anti-insurgency operation and to reconnoiter hence jeopardising their lives. The drone attacks in Jammu should be a reminder that it is not the drones that are bad, but the persons behind the drones. We need Counter-Unmanned Aircraft System solutions, like geo-fencing agreements with commercial drone manufacturers which would prevent the drones from flying near critical infrastructure by pre-programmed codes put in by manufacturers. Drone Rules, replacing the UAS Rules indicates that the government is aware that we don't need over-regulation but smart regulation. Solutions to technology lie in technology and a system which is well developed can take care of its own needs, by innovation and tech development. The time is ripe to allow the system to flourish. Simplification of the rules is a process in the right direction, rationalization of the rules will only help the process further.
Footnotes
2. Page 78, Chapter 5: A Life Apart, Relentless.
4. Rule 25, Drone Rules : "Access to digital sky platform.—The nodal officers of State Governments, Union Territory Administrations and law enforcement agencies shall be provided direct access to the digital sky platform"
5. AIR 2017 SC 4161.
6. Rule 10, Drone Rules.
7. The Convention on International Civil Aviation, 1944.
8. Rule 17, Drone Rules.
9. Rule 42, Drone Rules.
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.
