(Mansi Singh & Suyash Sarvankar)
India is one of the fastest-growing civil aviation markets in the world. The market is about to be regulated by a new legislation. India’s lower house of parliament, Lok Sabha, last month passed the Bhartiya Vayuyan Vidheyak Bill, 2024 (“Vayuyan Bill”) to replace the Aircraft Act, 1934 (“Aircraft Act”). Rajya Sabha is yet to deliberate on it.
Much like the Aircraft Act, the Vayuyan Bill provides for regulation and control of the design, manufacture, maintenance, possession, use, operation, sale, export and import of aircraft and incidental matters. Being about 90 years old, the Aircraft Act was subject to numerous amendments since, which apparently resulted in ambiguities experienced by the stakeholders. Vayuyan Bill seeks to improve on the Aircraft Act. The notable changes are as follows:
A. Aircraft Definition
Section 2(3) of the Vayuyan Bill has an amended definition for Aircraft, ““aircraft” means any machine that can derive support in the atmosphere from reactions of the air, other than reactions of the air against the earth’s surface.”
Under Section 2 (1) of the Aircraft Act, ““aircraft” means any machine which can derive support in the atmosphere from reactions of the air, other than reactions of the air against the earth’s surface and includes balloons whether fixed or free, airships, kites, gliders and flying machines;”
Here, only the explicit mention of representative examples has been deleted. Balloons airships, kites, gliders and flying machines remain included within the meaning of aircraft as they derive support in the atmosphere from reactions of the air. The deletion is somewhat cosmetic as it does not meaningfully change the ambit of ‘aircraft’.
B. Aerodrome Definition
Section 2(1) of the Vayuyan Bill includes the term “surface area movement of an aircraft” in the definition of “aerodrome”.
Section 2(1) of the Vayuyan Bill states, ““aerodrome” means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing, departure and surface movement of aircraft, and includes all buildings, sheds, vessels, piers and other structures thereon or appertaining thereto”
Section 2(2) of the Aircraft Act stated, ““aerodrome” means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all buildings, sheds, vessels, piers, and other structures thereon or appertaining thereto”
As a result, more airside areas such as taxiways, aprons, ramp and aircraft stands are explicitly included in the meaning of aerodrome. While these areas were earlier included within the meaning ‘and other structures thereon or appertaining thereto’, their unmistakable mention provides further clarity.
C. Maintenance and Manufacture Definitions
The Vayuyan Bill introduces the following definitions:
Section 2(10): “maintenance” means the performance of the tasks on an aircraft, engine, propeller or associated part required to ensure the continuing airworthiness of an aircraft, engine, propeller or associated part including any one or combination of overhaul, inspection, replacement, defect rectification, and the embodiment of a modification or repair;
Section 2(11): “manufacture” means the performance of tasks that involve assembly or production of aircraft, engine, propeller or associated parts and appliances in conformity with its applicable design including prototype;
Section 2(12) “prescribed” means prescribed by rules made under this Act.
Under Section 5 of the Aircraft Act, the Government had power to make rules regarding maintenance and manufacture of aircraft. However, these terms were not defined in the Act.
While “maintenance” has now been defined, the Bill uses the term in unrelated contexts such as “maintenance of log-books” and “maintenance of lights on private property in the neighbourhood of aerodromes”. Hope is that this undefined usage of ‘maintenance’ is interpreted in context of neighbouring words and does not result in in further ambiguity.
D. Telecom Operator Certificate
Section 11(2) of the Vayuyan Bill provides “Notwithstanding anything contained in the Telecommunications Act, 2023, but subject to the provisions of section 34, the Central Government may, by notification in the Official Gazette, make such rules as may appear to it to be necessary or expedient for the issuance of Radio Telephone Operator (Restricted) Certificate and Licence to persons engaged in the operation and maintenance of aircraft, in accordance with the applicable provisions of the International Telecommunication Convention as amended from time to time.”
This unifies the approval process for operations and maintenance of aircraft by direct issuance of Telephone Operator (Restricted) Certificate in accordance with the International Telecommunication Convention. Under the Telecommunications Act, 2023, a separate approval process for the certificate would be required otherwise.
E. Oversight of Agencies
Under Clause 8 of the Vayuyan Bill, the Government of India has the power to issue directions to the DGCA, BCAS and AAIB if it considers it necessary OR expedient in the interest of public.
Section 4D of the Aircraft Act, the Government has this power if the directions are necessary AND expedient.
It is unclear why this change was required. It remains to be seen which directions from the Government to DGCA, BCAS and AAIB are necessary but not expedient in the interest of public; or are unnecessary but expedient in the interest of public.
F. Rule Making Powers of the Government
Section 10(1) of the Vayuyan Bill now empowers the Government of India to make rules in respect of design and maintenance of Aircraft or class of Aircraft in addition to powers under the Aircraft Act. Design is not defined.
Further, the Government can now make rules on-
certification and licensing of personnel engaged in the operation of radio telephone or telegraph for the conduct of operation and maintenance of aircraft and associated equipment [Section 10(m)]
regulation for control of obstruction limiting surfaces around an aerodrome or communication and navigation services facility [Section 10(zc)]
security oversight and its regulatory functions [Section 10(ze)]
areas and manner in which the Director General of Civil Aviation may issue directions for carrying out safety oversight and regulatory functions and grant exemption from compliance with such directions [Section 10(zf)]
areas and manner in which the Director General of Bureau of Civil Aviation Security may issue directions for carrying out security oversight functions and grant exemption from compliance with such directions [Section 10(zg)]
amount of monetary penalty [Section 10(zh)]
G. Licences, Approvals & Certifications
Section 19(1) of the Vayuyan Bill modifies the Section 10B of the Aircraft Act. Both Sections allowed the Central Government to suspend or cancel any licence, certificate, or approval issued to any person.
Section 19 reads, “(2) On being satisfied that there has been contravention of the provisions of the Act or the rules made or directions issued under this Act by any person, the Central Government or any officer authorised under sub-section (1) may, by an order in writing,––
(i) suspend or cancel the licence, certificate or approval; or
(ii) impose restrictions on the licence, certificate or approval, issued to such person stating the nature of contravention of the respective provisions of the Act, rule or the direction which has been contravened and the reasons for such suspension or cancellation or imposition of restriction.
(3) The Central Government or the officer authorised under sub-section (1) shall, before passing an order under sub-section (2), give an opportunity of being heard to the person concerned.
(4) The Central Government may, in the rules made under this section, specify the grounds on which the licence, certificate or approval may be suspended or the circumstances under which such restrictions may be imposed with immediate effect.”
The Vayuyan Bill explicitly authorizes any ‘authorized officer’ in addition to ‘the Central Government’. The authority now includes the power to ‘impose restrictions’, apart from ‘suspension or cancellation of any licence, certificate, or approval issued to any person’ for contravention of any directions issued in addition to the provisions and rules.
H. Delegation to DGCA, BCAS, and AAIB
Section 21 stipulates, “The Central Government may, by order published in the Official Gazette, direct that the powers (except the power to make rules under this Act) exercisable by it under this Act may also be exercisable by the Director General of Civil Aviation or the Director General of Bureau of Civil Aviation Security or the Director General of Aircraft Accidents Investigation Bureau or any other officer or authority specifically empowered in this behalf by the Central Government.”
Section 21 of the Bill expands the powers of the DGCA, BCAS, and AAIB at par with the Central Government itself if so delegated by the Government. Aircraft Act did not have comparable provisions. This could negate any allegation of excessive delegation of powers as and when DGCA, BCAS, and AAIB conduct any enforcement actions through their officers and agencies.
I. Appeals Procedure
Section 33 of the Vayuyan Bill provides the procedure for appeals by any person aggrieved by an order made under Section 19 or Section 32(4) of the Bill. It reads, “(1) Any person aggrieved by any order made under sub-section (2) of section 19 or under sub-section (4) of section 32, may prefer an appeal to the First Appellate Officer having jurisdiction in the matter who is next higher in rank to such officer who has passed the order.
(2) The First Appellate Officer may, after giving an opportunity of being heard to the parties, pass such order, as he thinks fit, confirming, modifying or setting aside the order appealed against.
(3) Any person aggrieved by any order passed by the First Appellate Officer, may prefer an appeal to the Second Appellate Officer having jurisdiction in the matter who is next higher in rank to the First Appellate Officer.
(4) The Second Appellate Officer may, after giving an opportunity of being heard to the parties, pass such order as he thinks fit, confirming, modifying or setting aside the order passed by the First Appellate Officer.
(5) Notwithstanding anything contained in the foregoing sub-sections, the appeal under sub-section (1) or under sub-section (3) against an order passed by the Director General of Civil Aviation or the Director General of Bureau of Civil Aviation Security shall lie to the Central Government.
(6) Where any order under sub-section (5) is passed by the Central Government, no further appeal shall lie against such order.
(7) Every appeal under this section shall be filed within thirty days from the date of receipt of the copy of the order passed, and in such form and manner and accompanied with such documents and fee as may be prescribed: Provided that the said period may be extended by such further period, for reasons to be recorded in writing, but not exceeding thirty days.”
The aggrieved person may approach the First Appellate Officer, who has the authority to confirm, alter, or set aside the order. If any person is aggrieved by the order of the First Appellate Officer, he can file an appeal to the Second Appellate Officer. Under the Aircraft Act, the person could only file a single appeal. The Aircraft Act did not allow a second appeal.
Moreover, under the Vayuyan, an appeal against an order passed by the DGCA or BCAS shall lie to the Central Government and the decision of the Central Government shall be final. Aircraft Act did not have comparable provisions.
J. Repeal and Savings
Notwithstanding the replacement of the Aircraft Act by the Vayuyan Bill, Section 43(2) of the Vayuyan Bill provides that any previous action taken or any rule, regulation, notification, inspection or order made and or any licence, certificate, approval, permission or exemption granted; or any document or instrument executed; or any direction issued; or any proceedings taken or any penalty, punishment, forfeiture or fine imposed under the Aircraft Act will be deemed to have been done or taken under the corresponding provisions of the bill unless it is inconsistent with the provisions of the Bill itself. This ensures continuity in various delegated legislations such as the Aircraft Rules, 1937.
In conclusion, not much has changed in the Vayuyan Bill from the Aircraft Act apart from the title of the legislation. The incremental improvements on the Aircraft Act could have been introduced by way of an amendment to the Aircraft Act itself.
A new Act, as and when its time comes, should address the sea change in the aviation landscape. The Aircraft Act was designed in an era of manned turboprop aviation and its (and Vayuvan Bill’s) design and scope of regulation reflects that. It does not imagine one day it would regulate supersonic jets and unmanned drones. While the Government has framed the Drone Rules, 2021 for instance, it would have been useful to include the aviation technologies in vogue in the Act itself and subject to the certainty that comes with consultative lawmaking process.