DOMESTIC IMPLEMENTATION OF AIR LAW IN INDIA
Aviation law is the branch of law that concerns flight, air travel, and associated legal and business concerns. The purpose and need for aviation law occurs from the globalization and expanding nature of human interaction as we move from the seas to the air and beyond our atmosphere. Air law may be defined as ” the body of rules governing the use of airspace and it’s benefits for aviation, general public and nations of the world.” Air law is concerned with the smooth management of global airspace.
In the year 2018 and 2019 air law had produced enormous economic growth in the world almost 2 billion people flew in a in a year out of the population 6 million. But during the pandemic in 2020 it all went downhill due to the new regulations that were generated by the government.
Although before pandemic and now as well, the globalization, liberalization , privatization, deregulation and re-regulations are forcing global community to enforce the existing International treaties and conclude more International arguments.
Air law is connected with various areas of law ,such as civil and private International air law in the context of the liability of the air Carrier for damage sustained in the course of carriage by air; criminal law, which found its way into air law upon the occurrence of hijacking and other criminal acts committed on board aircraft; the law pertaining to the financing of aircraft, and also spacecraft and related assets; tax law; competition law in the context of airline alliances; European community law and environmental law. Today the protection of vital national security and of national economic interests is fading away in the world of liberalization, privatization and globalization. Nevertheless, the major part of aviation sector, that is, the part including the operation of air services, is the only sector which is not subject to the regime of the world trade organization and the GATS. This is likely to remain so for the years to come.
Currently , India maintains bilateral Air Service Agreement bracket open with 108 countries. While 72 foreign airlines flying in and out of India, four private domestic carriers that fly to 35 destinations in 25 countries. Air India, the national Carrier maintains a number of International routes. At the normative level, the aircraft act,1934 created the fundamental legislative framework for manufacture, possession, use, operation, sail, import and export of aircraft in India while the carriage by air act, 1972 implemented the Warsaw convention,1929 in India. These legislations have been supplemented by host of statutory rules and notifications covering different aspects of aircraft operations and several security related enactments like the Tokyo Convention Act ,1975 and the Anti-Hijacking Act ,1982.
After years of talks and negotiation, the “open skies” and transport agreement between the United States of America and India was signed on 14.04.2005 opening a new era in the civil aviation partnership. Although there are a number of rules and regulations that have been covering the aviation sector in India, but still there are a number of problems that are prevalent even today which need immediate attention. In spite of all such struggle , the Indian aviation industry is one of the most prosperous one in the world which needs a positive effort from the Indian government to implement various International conventions.
India’s large landmass encompasses five flight information regions and is run by nine area control centers. It is a region of low density traffic and 55% of its airspace is over the ocean. Most of the terrain is covered with mountains and poor national telecommunication makes it almost impossible for India to meet ICAO’s communications requirements. The country's ATC problems are due to insufficient ground based navigation aids and restricted VHF radio and radar coverage.
Since, India has an eminent position in the civil aviation sector with a large fleet of aircrafts and Aviation being means of mass transfer transportation in modern era, air law therefore plays an important role in shaping of social and economic life and public order in India and in the global society. A large part of air law in India is contributed and developed by the International Civil Aviation Organization. International aviation is interlinked with the International air law. Although air law is based on the notion of air space sovereignty of nation States, many issues concerning air law and transport are increasingly being studied in the light of a global community consensus.
Globally civil aviation is undergoing technological advances in several areas which have impact on agreements. A major supporting development for the aviation industry in most parts of the world has been globalization and liberalization of economies and an increasingly active role for the private sector in the economic development of the countries. These economic changes brought about structural changes in civil aviation throughout the world and also in approach to words the bilateral agreements and open skies. In 1944 common the International aviation community and the representatives of various States organized a major International conference in Chicago to consider regulation of International air transport with a view of developing and ensuring safe, secure, efficient and economical International air transport services and to avoid arbitrary action of the States which could hinder such development. This conference culminated in signing of three major agreements, which may be described as follows :
India has not remained in insulated from the global trends. The liberalization process in the aviation sector commenced in 1986 and still continuing. International as well as domestic routes have been open to private carriers. Within the ambit of bilateral air services agreements, India is liberalizing its policy in granting additional traffic rights to foreign airlines. India has offered open skies policies to the ASEAN. Also India offered to SAARC countries, additional frequencies and also additional landing points. The “open skies” policy for International cargo is continuing. The policy relating to international tourist charter flights has been liberalized. India's also signed a bilateral open skies agreement with the USA. The liberal approach has led to significant growth in air traffic.
Need and importance of air law
Air law provides a means for cooperation among nation based on sovereign equality and fair and equal opportunity. Foremost among the chief priorities for aviation administrations and airlines is the safety and security of passengers, general public common ground personal and property. Indeed ,the improvements in the technology, which restored safety to modern aircraft, have also contributed to great risk of loss to passengers as evident in a number of disasters in recent years. Fundamentally, governments cannot divest themselves of the responsibility to ensure an optimum level of safety, security and efficiency in civil aviation. Casualties have remained high due to the total destruction of aircraft in flight. Safety and security assurances are absolutely necessary for International tourism and airline industry to thrive.
Before second World War there were little cases relating to air collisions. The few instances that have occurred since have been easily settled, but in the present day circumstances more and better rules are urgently needed. Civil Aviation has been greatly affected by social unrest since 1960, in various forms : hijacking ,shooting down, sabotage: like explosions in aircraft, missile attacks against aircraft, armed attacks on airports ,passengers, aviation property and bombing. The motive ranges from political ideology to extortions and murders. These growing rates of incidents on various occasions prompted the suggestion of implementation if law and establishment of courts in order to deal with this aspect of aviation.
The fallout of these acts of unlawful interference in terms of human casualties, air services disruption and adverse economic impact is incalculable. The acts of unlawful interference diminish and undermine the civil aviation system and can be resisted only by a systematic worldwide vigilance and enhancement of security measures. The various incidents have added urgency for evolving an extremely stringent system of security control, leading to new acts, regulations and policies on security for airport managements, air carriers and airport police. There is also compelling and urgent need to address the environmental effects of air transportation. Because of strong growth in demand, emissions of some pollutants from aviation are increasing against a background of emissions reductions from many other sources. In addition, progress on noise reduction has slowed. Millions of people are adversely affected by this side effects of aviation. As a result of these factors and rising value being placed on environmental quality ,there are increasing constraints on the mobility, economic vitality and security of the nation. Airport expansion plans have been delayed or cancelled due to concerns over local air quality, water quality and community noise Impact. Military readiness is challenged by restrictions on operations. These effects are anticipated to grow as the economy and demand for air transportation grow. If not addressed, environmental impacts may well be the fundamental constraint on air transportation growth. Hence, there is need of effective legislation on this matter also.
Apart from this aviation law also aims to create the conditions for a viable, healthy air transport sector and to aid in the national development. It is necessary for maintaining effective relationship among different countries. India's large landmass encompasses flight information regions and is run by nine area control centers. It is a region of low density traffic, and 55% of its airspace is oceanic.
Civil Aviation regulations in India are dealt by the Aircraft Act 1934, the aircraft rules 1937 , the Constitution of India 1950, the incorporation of International standards and recommendation practices of Chicago convention 1944, convention at 1975, Anti Hijacking at 1982 and Suppression of unlawful acts against the safety of Civil Aviation act 1982 and the 1994 amendments to the later two acts.
India today has a civil aviation network. There are 122 airports in the country today, out of which eleven are International airports, which are maintained by the International airport authority of India, established in 1986. There are a number of legislations that have come into practice on the pipeline of International air law norms, such as, the Airship act, 1911, a pre-independence act which in itself is a unique feature in the world, the Air Corporations Act, 1994, which came into existence after the repeal of the previous Airport Corporation Act ,1953 ,the Airport authority act,1994, W. E. F. 1995, the Aircraft rules ,1937 ,the airport infrastructure policy ,1997 , the aviation policy, 2000, to name a few. At the normative level, the aircraft act , 1934 created the fundamental legislative framework for manufacture, possession, use, operation, sail , import and export of aircraft in India while the carriage by air act, 1972 implemented the Warsaw convention,1929 in India. These legislations have been supplemented by host of statutary rules and notifications covering different aspects of aircraft operations and several security related enactments like the Tokyo convention act, 1975 and the anti hijacking act, 1982. There are a number of rules and regulations that have been covering the aviation sector in India, but still there are a number of problems that are prevalent even today which need immediate attention. In spite of all such struggle, the Indian aviation industry is one of the most prosperous one in the world which needs a positive effort from the Indian government to implement various International conventions.
INDIAN AIRLINES LIMITED V. PRABHA D. KANAN , Supreme Court Of India, 1oth November, 2006 [SUPREME COURT]
AIR INDIA CABIN CREWASSOCIATION, MUMBAI V. (a) UNION OF INDIA , MINISTRY OF LABOUR, THROUGH THE GOVERNMENT PLEADER;(b) AIR INDIA LIMITED;(c) V.A. FERREIRA EXECUTIVE DIRECTOR-HRD AND IFS, AIR INDIA LIMITED MUMBAI [SUPREME COURT]
INTERNATIONAL AIRPORT A.I. OFFICERS ASSOCIATION V. UNION OF INDIA,2005 [SUPREME COURT]
NATIONAL AVIATION COMPANY OF INDIALIMITED(ERSTWHILE M/s VAYUDOOT LIMITED) V. ASHOK KUMAR PARMAR, 2010 [SUPREME COURT]
NIPADHAR (neeGhosh) V. NATIONAL AVIATION COMPANY OF INDIA LIMITED , CALCUTTA HIGH COURT, 10 DECEMBER 2010, CIVIL APPELLATE JUSRISDICTION.
NIKITA LAKHANI, CAREER COLLEGE OF LAW, BU, 2ND YEAR