Aviation Regulators Fly High

The Bill empowers the DGCA, BCAS and AAIB by making them statutory bodies. This will give them penal powers and positively impact India’s safety rankings, but there is also some disquiet about the centre’s role.

By Shobha John

IT has been lauded as a much-needed, but much-delayed, move. The Aircraft Act, 1934, was recently amended and gives the three vital arms of Indian aviation the Directorate General of Civil Aviation (DGCA), the Bureau of Civil Aviation Security (BCAS) and the Aircraft Accidents Investigation Bureau (AAIB)—the required teeth to initiate reforms.   

Incidentally, the Aircraft Act, 1934, regulates the manufacture, possession, use, operation, sale, import and export of civil aircraft, and licensing of aerodromes. The new Bill, set to become an Act after presidential assent, is called the Aircraft (Amendment) Bill, 2020, and was passed by the Lok Sabha on March 17, 2020, and the Rajya Sabha on September 15, 2020.
Read Interview with Director General of Civil Aviation Arun Kumar

While the DGCA is responsible for carrying out safety oversight and regulatory functions, the BCAS looks after matters related to civil aviation security and the AAIB does investigation of aircraft accidents or incidents.

So what are the pros and cons of the new Bill?

POSITIVE IMPACT

• International ratings: The main thrust of the bill was making DGCA, BCAS and AAIB statutory bodies, which they weren’t earlier. “Their not being statutory bodies was an oftrepeated deficiency brought out by the International Civil Aviation Organisation (ICAO). With an ICAO audit looming, the Amendment Bill was necessary and urgent,” said Capt Shakti Lumba, former Vice-President, Operations, IndiGo, and an industry veteran. ICAO audits in 2012 and 2015 had stressed the need to give more recognition to the regulators and enhancing fines. This had impacted India’s aviation safety rankings, which had plummeted over the years. FAA audits of DGCA had left many red-faced as the rankings were low. Ramesh K Vaidyanathan, Managing Partner, Advaya Legal, said: “Carrying out civil aviation operations as per the internationally accepted standards of ICAO will positively impact India’s safety rankings.”
• Penal provisions: Making the DGCA, BCAS and AAIB into statutory bodies means that they will have more powers, are backed by law and can levy monetary penalties. In short, from toothless tigers doing mere regulation, they have become organisations to be reckoned with.

Greater penalties: The Bill has increased penalties from Rs 10 lakh to a whopping Rs 1 crore for various infractions. These could include illegal construction around airports, carrying banned goods on board, videographing inside planes, etc. Also, given that many of the airlines are listed entities, penalties incurred by them will invite greater shareholder scrutiny and help fix accountability, said Vaidyanathan.

Lumba said that the earlier fines were minimal. “The budget for these agencies wasn’t much earlier. In some cases, even airlines would contribute. But with the new Bill, much-needed money will come in and they will be able to pay vital personnel to carry out their tasks. For example, the AAIB can now pay market rates to professionals to carry out air crash investigations if more money comes in,” he said.  

• Redressal mechanism: The centre can now appoint officers not below the rank of deputy secretary for adjudging penalty issues. If he is convinced that rules have been flouted, he may, by an order in writing, impose the penalty, the reasons for it, the nature of the contravention and the rules violated. But before he does that, he has to give the person “a reasonable opportunity” of being heard. In case the person is aggrieved by the order, he can appeal to an appellate officer who is in a higher rank and having jurisdiction in the matter. These appeals should be filed within 30 days. 
• Compounding fines: The fine for the first offence isn’t much, it seems. But subsequent offences will have compounding fines. So if an airline or airport is found guilty of a lapse, a lenient view may be taken of it. But subsequent ones won’t be taken lightly. The offences which can be fined include flying to cause danger to any person or property and contravention of any directions issued by the three bodies. Offences may be compounded by the DGs of the three organisations.
• Court case: Section 12B of the Bill says that no court inferior to that of a Metropolitan Magistrate or First Class Magistrate can take cognisance of any offence punishable under this Act except on a complaint made by or with the sanction in writing by the DGCA, BCAS or AAIB. Again a move for greater transparency.

QUESTIONABLE SECTIONS

• Centre’s role: Section 4A (4) of the Bill says: “The Central Government may, by an order published in the Official Gazette, direct that any power exercisable by the DGCA, BCAS and AAIB may also be exercisable by any other officer or authority specially empowered in this behalf by the Central Government.”

Similarly, Section 4D says: “The superintendence of the DGCA, BCAS and the Aircraft Accidents Investigation Bureau shall vest in the Central Government, which shall have the power to issue directions to each of these organisations….”

This has given rise to apprehensions that the centre will have a greater hold over these organisations and can make them do its bidding and review and even change orders. Under the Act, the centre may make rules on registration of aircraft, regulating air transport services and prohibition of flight over any specified area.

However, Lumba said this was just a perception without any sound basis. “Even under the earlier Act, the centre in conjunction with the DGCA regulated air space. The BCAS and AAIB were formed later.” He said increased control over these organisations would depend completely on the government of the day and the aviation minister. Any order given by the centre will have to be with respect to this Bill and will be in writing, leading to greater transparency, he stressed.

Vaidyanathan too said that the Bill would not give more control to the centre (ministry of civil aviation) than what it has already. “DGCA, BCAS and AAIB are part of the ministry. In fact, the Bill takes away some control from MoCA with these bodies becoming statutory ones. MoCA cannot afford to be arbitrary in its dealings with airlines and other stakeholders. While certain residuary and overriding powers are vested in MoCA, one hopes that these are seldom used.” The relevant section, he said, refers to the power of the centre to create an additional authority for exercising such functions as may be designated by it. Such power can be exercised by the centre if the existing bodies are overloaded and a need is felt to have another authority to which some of the functions of the DGCA/BCAS/AAIB can be delegated, he revealed.

• Use of fines: Will the fines imposed go into the coffers of the three organisations or the central government? That has to be clarified. Lumba said the fines should go into a budget, which can then be disbursed to the DGCA, BCAS and AAIB.

Finally, the horizon has opened up for the aviation regulators.