Policing in the sky: A brief introduction to the laws governing unruly passengers in India
Syed Tamjeed Ahmad, Associate
The beginning of 2020 has already seen two incidents involving unruly/disruptive behaviour by passengers in aviation. In one of these incidents, a passenger threatened to open the cockpit door and also allegedly mishandled the cabin crew. In this article, the aim is to briefly explain the regulations both at the International level and also at the Domestic (India) level.
The regulation of unruly behaviour at the International level can be broadly classified under two heads, first, are the industry standards, which can be regarded as some sort of “self-regulation”, these standards consist of various recommended practices, guidelines, and principles adopted by “IATA” or the International Air Transport Association. The second head of regulations consist primarily of rules and regulations that are a result of international Conventions or Protocols, which are adopted in diplomatic conferences that are convened under the auspices of the International Civil Aviation Organisation, thus, it is these regulations, which form part of the “International Law” on the issue of “unruly passengers”.
I would first briefly analyse the IATA standards or recommended practices on unruly passenger and thereafter address the “International Law” aspect.
IATA, is a private organisation whose members consist of 275 airlines from nearly 117 different countries. One of the primal tasks of IATA is to promote the interest of airlines, it is in furtherance of this task that IATA has come out with various recommended practices/guidelines that have more or less become the standard operating procedure for airline crew dealing with unruly passengers. One such recommended practice, which has been incorporated by various airlines in their manuals, is the IATA recommended practice no. 1798a, under which, it is recommended that every member airline should formulate a company policy in consultation with various stakeholders on dealing with disruptive/unruly passengers, the document further recommends that there should be a single point of contact, in every member airline, for dealing with such issues and that the staff must be adequately trained to recognize and manage potentially disruptive passengers.
Apart from the recommended practice 1798a, another important recommendation on unruly passengers is the “IATA Guidance on Unruly Passenger Prevention and Management” of 2015, it provides various measures for the member airlines on how to deal with the menace of unruly or disruptive passengers. The document also contains guidance for member airlines on enforcing their alcohol policy so that passengers who can be potential troublemakers are identified at the very outset, and the crew thus follows the “traffic light approach”. The guideline is appended with various appendixes that provide various formats, for example, appendix K contains the “sample format for passenger awareness” since according to the IATA guidelines, passengers should be made aware of the consequences of their disruptive behaviour.
In addition to the various recommended practices and guidelines, IATA adopted the core principles on unruly behaviour at the 70th IATA annual general meeting held in 2014, wherein, in addition to various other things, IATA called upon all states to ratify the Montreal Protocol 2014, also, all member airlines were called upon to utilise the IATA recommended practice 1798a and the 2015 guidance on unruly passengers. Further, in June 2019, ICAO and IATA came out with the ICAO Manual on the Legal Aspects of Unruly and Disruptive Passengers. Its primary aim is to assist governments in passing better laws that are in harmony with International standards.
- International Law/rules on Unruly Passengers
The primary International instrument governing “unruly behaviour” is the Convention On Offences And Certain Other Acts Committed On Board Aircraft (“Tokyo Convention”) of 1963, which applies to any act that is a penal offence and also to acts, which are not penal offences but which could jeopardise the safety of an aircraft, or are acts which threaten good order and discipline on board an aircraft. This Convention was followed by the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention) of 1971, which expanded the list of acts that were to be made penal offences by the ratifying States in their domestic legislations. The Montreal Convention was supplemented by a Protocol in 1988, which extended the application of Montreal Convention to acts that were committed at airports that served international civil aviation, thus, by virtue of this Protocol of 1988, it can be said that the provisions of Montreal Convention can be made applicable to passengers who act in a disruptive manner not only on board an aircraft but also at an airport.
Nevertheless, neither the Tokyo Convention nor the Montreal Convention can really be regarded as successful, since States have not really adopted these Conventions in letter and spirit in their domestic legislation.
In the year 2014, a new Protocol (Protocol to Amend the Convention on Offences and Certain Other Acts Committed on Board Aircraft) was adopted to amend the Tokyo Convention for making it exclusively more responsive to the growing menace of “unruly passengers”. Under this 2014 Protocol, for the first time, the right to recourse has been recognised as a right of the airlines, wherein they can recover damages incurred from the disruptive passenger for his/her behaviour. Unfortunately, the Protocol has not yet to come into force, as the minimum number of State ratifications required has not yet been achieved.
The basic International framework for the regulation of unruly passengers, are also supplemented by certain ICAO circulars and ICAO assembly resolutions concerning unruly passengers.
Till recently, the regulation of unruly passengers in India was based upon a dual system of law i.e., it was governed under the Aircraft Rules 1937 along with the Indian Penal Code, 1860, which has been further explained, made the entire regime ineffective. The Aircraft Rules envisaged the ideal behaviour, which was expected from passengers on board the aircraft. The problem with the rules was that it simply laid down the behaviour, which was expected from the passengers, but no consequential repercussions/penalties were provided in case of breach of those norms.
Therefore, provisions of the Indian Penal Code had to be invoked but the problem with this was that often there were acts, which without any doubt were disruptive or unruly in nature, but they fell short of any act that could be defined as an “offence” by the code, thus, the delinquent passenger use to walk free without facing any repercussions for his or her defiant behaviour.
The “Air India” incident (In March 2017, a Member of Parliament from Maharashtra had assaulted a staff member of Air India) brought this inefficacy before the public at large, which resulted in widespread outrage. Owing to this outrage, the Government issued a Notification (Civil Aviation Requirement on Handling of Unruly Passengers dated 08/09/2017) that for the first time mandated the Ministry of Home Affairs to maintain a no-fly list. Another novel feature of the Notification was that it defined the term “disruptive passenger”, the definition having been borrowed from Annexe 17 of the Chicago Convention.
The Notification classifies unruly behaviour into three levels, the first level consists of acts like physical gestures, verbal threats etc. and any person found guilty of such behaviour faces the possibility of a ban from flying for up to three months. The second level of behaviour includes acts such as hitting, pushing, groping and also sexual harassment, the ban in this case can extend up to six months. Lastly, level three covers acts that are grave in nature, such as damaging the aircraft or indulging in physical violence, and any person who is found guilty of level three behaviour faces a flying ban for a minimum of two years but which may be extended for life.
The above-mentioned Notification was widely appreciated by the industry, although IATA has been traditionally against the imposition of a life ban from flying. The analysis of the notification unearths that the notification has, in a certain manner, implemented the recommendations of IATA along with certain provisions of the Tokyo Convention. For example, the Notification provides that passengers should be made aware of the consequences of their behaviour, which has been recommended by IATA in its 2015 Guidelines, further this has also been made a duty upon the States as per the provisions of chapter 6 of Annex 9 of the Chicago Convention. Similarly, the Notification also provides that every airline should have a standard operating procedure/company policy for dealing with unruly passengers, this again can be attributed to the IATA recommended Practice 1798a.
- Will these rules stand the test of constitutionality?
One of the problems associated with the flying ban, as proposed in the Notification, is its probable conflict with certain provisions of the Constitution of India, but specifically with Article 21, which has been judicially expanded to include the right to travel “abroad”, which in all circumstances also includes travel by air. Right to travel is not a new concept under the Constitution of India, it was for the first time recognised as a fundamental right by the Supreme Court of India in the landmark judgment titled Maneka Gandhi vs. Union of India (1978), wherein the Court observed that the right of free movement is a vital element of personal liberty. The right of free movement includes right to travel abroad.
The Court went on to further observe, “that any procedure which takes away this right must not be anything arbitrary, freakish or bizarre”.
This view was followed by the Supreme Court in various other decisions, and most recently the Delhi High Court in its judgments delivered in the cases of Priya Pillai vs. Union of India (2015) & Sh. Avikash vs. Union of India (2014), has categorically reiterated that right to travel abroad, which includes right to travel by air (italics supplied), is a fundamental right recognised under Article 21 of the Constitution, and any procedure, which takes away this right has to be just and reasonable and not arbitrary.
One of the primary requirements for any procedure to be reasonable and just is that it should not be against the principles of natural justice. Secondly, it should not have any element of “discretion”, further there should be a right to appeal against the decision. Lastly, it should be based on objective terms.
Comparing these requirements with the newly notified Rule, which has provisions for imposing a lifetime flying ban, one can find that the new Rule doesn’t fare up well with the requirements of being reasonable. Firstly, though, the decision to ban is taken by a multi member group but this group is an internal Committee (which though has members who are alien to the airline in question), but the Committee is constituted by the airline itself. This scenario, where the Committee to hear the counter claims of the passenger against the airline is being constituted by the airline itself, could be held to be in violation of the principle of Nemo Judex in Causa Sua, which is one of the basic principles of Natural Justice.
Secondly, the decision of this Committee shall be binding only for the airline, which had constituted this committee and other airlines have the “discretion” to either opt in or to opt out from the ban. This again leaves the room open for arbitrary acts, which in any case would not go down well during judicial scrutiny. Moreover, when we assess the provisions of the rule objectively, we find that though it provides a remedy for containing the menace of unruly passengers, but it fails to acknowledge or provide for situations, where the behaviour of the passenger was a direct result of the callousness on part of the airlines.
Finally, as these Rules have been notified via simply an executive order, which has not been debated like an Act of Parliament, the Rules are much more susceptible to being struck down as “unconstitutional” by the Supreme Court or any of the High Courts of India, for the reasons as elaborated above.
It is undoubtedly acknowledged that unruly passengers pose a serious threat to airlines and cabin crew safety, and a growing aviation market like India, undisputedly needs a stringent law to regulate such incidents, but unfortunately, the recent Regulation that has been framed by the Indian Government appears to have been drafted in haste, as there are many inherent and apparent defects and vices in the Regulation, which makes it more vulnerable during Judicial review. There is a likelihood that the Courts (should the Regulations be challenged) may strike down the Regulation as being unconstitutional. Nevertheless, it is too early to envisage the fate of this law, we will have to wait for a few years when cases challenging flying bans reach constitutional Courts, and only then would it be clear whether this notification will stand the test of judicial scrutiny or not.