This article is written by Paridhi Dave, from the Institute of Law, Nirma University and Arshita Sharma, student at HPNLU and Campus Ambassador at LawSikho. This is an exhaustive article which deals with the international and national laws for governing unruly passengers on board an aircraft.
Table of Contents
Introduction
The phenomenon of disruptive passengers is not new, yet, the number of incidents is constantly on the rise. The International Air Transport Association released data in 2017 which stated that there was 1 unruly passenger incident per 1,053 flights. In 2017 alone, approximately 8,371 incidents of unruly passenger behaviour were reported. The airlines, governments and passengers are continuously worried about the increasing frequency of these incidents. The severity of these incidents poses a disproportionate impact on the safety and security of the passengers. However, more often than not, these passengers go unpunished due to lacuna in the law.
In this era of globalization, the norms of international law apply to all governments, large and small, rich and poor, weak and powerful. Many of the structural changes that have occurred in the global economy since the early 1980s have resulted in the liberalisation of capital, labour, intellectual property rights, and other areas, which has strengthened dependency. Previously, we solely dealt with national problems brought before several Indian courts, including the Supreme Court, as well as High Courts and District Courts. However, the comfort of dealing with merely Municipal Laws is quickly vanishing for our Courts in the future, as we now have to deal with problems that have worldwide aspects.
What is aviation law?
Aviation law is simply the law of air. Well, don’t mingle it with the laws of physics, air laws here are being addressed as the law that deals with flight and with all the legal issues that go along with it. The rationale and significance for aviation law stems from the globalisation and growing nature of human contact as we travel from the seas to the skies and beyond. The corpus of regulations controlling the use of airspace and its advantages for aviation, the general public, and governments throughout the world is known as air law. Air law is concerned with the control of the world’s airways. Air law encompasses a wide variety of legal issues, ranging from liability for harm caused during air carriage to tax and environmental legislation. The aviation industry is the only one that is not subject to the WTO. In simple words, air law is “the system of regulations controlling the use of airspace and its advantages for aviation, the general public, and states throughout the world.” Air law is concerned with the control of the world’s airways. Air passenger and freight transportation contributes to the growth of the national economy and tourism. In most regions of the world, aviation is now a significant national industry.
Historical background
The first commercial aircraft in India flew between Allahabad and Naini on February 18, 1911. The first commercial international flight in India, operated by the former Imperial Airways, took place in 1912, connecting Delhi to Karachi and beyond. J.R.D. Tata flew an air postal service aeroplane in 1932, following which Tata Airlines began scheduled air transport services. At the time of India’s independence in 1947, the country had nine air transport businesses that carried both freight and people. To further enhance the national aviation industry, the Government of India and Air India — Tata Airlines was renamed Air India in 1946 – established Air India International Ltd. as a joint venture. To address the poor financial health of India’s civil aviation sector, the Government of India approved the Air Corporations Act of 1953, which nationalised all carriers operating in India’s civil aviation business.
The Airports Economic Regulatory Authority of India Act of 2008 established the Airports Economic Regulatory Authority of India (AERA). Tariffs and other aeronautical costs are regulated by AERA, and airport performance criteria are monitored. AERA considers the following factors in the Indian context of airport regulation: Airports are natural monopolies; airports are public goods; in the case of both Brownfield and Greenfield airports, the Government of India has made land available for purchase to airport developers at a very cheap cost, frequently under the Land Acquisition Act.
India’s aviation ties with other nations
India now has bilateral Air Service Agreements (ASAs) with 108 nations. While 72 international airlines travel into and out of India, four private domestic carriers – Jet Air, IndiGo, SpiceJet17, and Kingfisher – fly to 35 destinations in 25 countries. Air India, the national airline, operates a number of overseas routes, including seven in North America, nine in Europe, 12 in the Gulf, two in the Middle East, two in Africa, and 13 in West and East Asia. With a vast fleet of aircraft, India has a prominent role in the civil aviation market. In all, 56 airlines provide scheduled air flights to and via India, including 22 international carriers flying over Indian territory. The nation has about 450 airports and 1091 registered aircraft. In addition to the three public sector airlines – Air India, Indian Airlines, and Alliance Air – two private operators – Jet Airways and Sahara India Airlines – operate in India. In addition, there are 41 non-scheduled air transport providers. In addition, the Ministry of Civil Aviation has given NOC to 34 applicants for the establishment of non-scheduled air transport operations.
India has not been exempted to global trends. The liberalisation of the aviation sector began in 1986 and is still ongoing. Private airlines now have access to both international and domestic routes. Within the framework of bilateral air services agreements, India is liberalising its policies by providing international carriers increased traffic rights. India has proposed an open skies policy to ASEAN. In addition, India gave extra frequencies and landing places to SAARC countries. The open skies policy for international freight is still in effect. The rules governing foreign tourist charter flights has been relaxed.
What constitutes unruly behaviour
The definition of a disruptive passenger is laid down in Annex 17 of the International Civil Aviation Organisation (ICAO) Chicago Convention. This Convention on International Civil Aviation Security Safeguarding International Civil Aviation Against Acts of Unlawful Interference defines an “unruly passenger” as a passenger, who does not respect the rules of conduct at the airport or on-board a flight or fails to follow the instructions issued by the airport staff or crew members. Owing to this behaviour, such a passenger disturbs the good order and discipline at an airport or on-board an aircraft. A similar definition has been adopted by the Indian law under Civil Aviation Requirements, Section 3- Air Transport Series, Series M, Part VI, Issue II, 2017.
Types of acts
A disruptive passenger is someone who by their actions or stated intentions jeopardizes or might jeopardize the safety of the aircraft, persons aboard it, or property therein. The International Air Transport Association (IATA) has promulgated a ‘non-exhaustive’ list of behaviour which counts as unruly or disruptive. The list mentions the following acts:
- Illegally consuming narcotics,
- Smoking cigarettes in the aircraft,
- Consuming excessive alcohol,
- Refusing to comply with safety instructions,
- Verbal or physical confrontation with crew members or other passengers,
- Sexual harassment/abuse,
- Making threats towards the crew or other passengers, and
- Other types of reckless behaviour, including screaming, banging head on the seatbacks, etc.
The prominent factors responsible for such behaviour are alcohol, smoking and violent behaviour. The International Air Transport Association released statistics in 2017 stating that unruly passenger incidents occurred at a rate of one incident every 1,053 flights. These incidents have a disproportionate impact on the economic costs incurred.
International Air Transport Association (IATA)
IATA is a private organisation consisting of members from nearly 120 countries. The aim of this organisation is working for the promotion of the interest of various airlines. Pursuant to this, IATA has devised several guidelines and recommended practices that have over time become the standard operating procedure for airlines dealing with unruly passengers.
IATA has recommended that every member should develop a company policy to deal with disruptive passengers. Further, it has also formulated a basic guide to deal with unruly passengers. The IATA Guidance on Unruly Passenger Prevention and Management, 2015 provides numerous ways on how airlines can deal with unruly passengers. This guide also recommends airlines to enforce their respective alcohol policy so that troublemaking passengers are identified at the outset.
International Civil Aviation Organization (ICAO)
The International Civil Aviation Organization is an agency of the United Nations which was established in 1944 with the purpose of managing the administration and governance of the Chicago Convention, that is, the Convention on International Civil Aviation. The organisation currently has approximately 193 member-States. The ICAO has also issued guidelines regarding handling of unruly passengers.
International laws
Tokyo Convention, 1963
The first-ever attempt at framing international legislation for governing offences and certain other acts committed on board an aircraft was the Tokyo Convention, 1963. This legal framework has been ratified by 186 countries. It is not surprising that legislation which was conceived over 50 years ago does not entirely meet the requirements of modern air travel. Nevertheless, it is still the main reference point for airlines handling incidents which involve unruly and disruptive passengers.
Scope of the Convention
Article 1 of the Convention talks about the applicability of this law. The provisions of this Convention are applicable in cases wherein the conduct complained of is either:
- An offence under any applicable penal law or criminal code; or
- It is an act which falls short of criminal conduct but is capable of jeopardizing the safety of the aircraft or the passengers. It could also affect the general good order and discipline as well as the overall safety.
Therefore, according to the Tokyo Convention, it is not essential that such disruptive behaviour meets the threshold of criminal conduct. The mere possibility of an act which is capable of jeopardising safety and security is sufficient.
Jurisdiction
One of the most problematic provisions of the Tokyo Convention is concerning the jurisdiction. The rules as to which State can exercise jurisdiction over offences and disruptive acts committed on board an aircraft are perplexing. Article 3 of the Convention discusses the issue of jurisdiction. It can be summarised as follows:
- The state, wherein, the aircraft is registered will have jurisdiction over the offences and other disruptive acts committed on board.
- A contracting state which is not the state of registration can only assert jurisdiction in the following cases as per Article 4 of the Convention:
- If the offence has an impact on the territory of such state;
- If the offence has been committed by or against a national of that state;
- If the offence is against state security;
- If the offence leads to breach of any rules or regulations concerning the flight or the manoeuvre of such aircraft in force in the State; or
- If it is essential to exercise such jurisdiction to ensure the observance of any obligation imposed on such State under a multilateral international agreement.
Numerous scenarios can be imagined wherein, the municipal laws are insufficient to enforce international laws. Resultantly, local law enforcement agencies are unable to assert jurisdiction over such disruptive acts onboard a flight. If an inbound aircraft is registered in a foreign state, then this convention does not grant jurisdiction upon the state of landing automatically. In order to prosecute such a disruptive passenger, the state has to establish grounds upon which it claims jurisdiction. The process of the removal of such a passenger is often rushed and becomes chaotic.
The current market is largely based on aircraft leasing. People who operate leased aircraft will often find that the aircraft which they are operating is registered in a country which is entirely different from the one functioning as the base of operation. Thus, such jurisdictional impediments further increase the problems.
Powers bestowed upon the aircraft commander
The powers bestowed upon the aircraft commander are listed in the Convention from Article 6 to Article 10. The aircraft commander has all the powers to deal with unruly passengers. In certain circumstances, the cabin crew has powers as well. If the aircraft commander has reasonable grounds to conclude that a passenger has committed or will commit a criminal offence while on-board which would jeopardise the safety of everyone and the aircraft, then he can take reasonable measures which are required:
- For the protection of the safety of the aircraft, the passengers, the crew members or the property therein;
- For maintaining good order and discipline on board; or
- For enabling himself to deliver such unruly passengers to competent authorities or to disembark them.
Prosecution
There can be instances wherein an unruly passenger would opt for legal actions against the carrier for disembarking them from the flight or any other restraining actions taken against them. If the aircraft commander, cabin crew or the passengers have exercised their powers as per the Tokyo Convention, then they stand immune from prosecution or civil action with regard to the actions that they have taken. Such immunity also extends to the owner and operator of the aircraft.
It is significant to note that this statutory immunity does not extend to claims from other passengers who were disrupted or injured by the passenger. This immunity is restricted to suits filed by the unruly passenger themselves.
Montreal Convention, 1971, and Montreal Protocol, 1988
The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), 1971 succeeded the Tokyo Convention. The Montreal Convention expanded upon the list of acts which had to be made penal offences by the ratifying States via incorporating it in their domestic laws.
Further, the Montreal Protocol of 1988 supplemented this Convention, as it stated that the provisions of the Montreal Convention would be applicable to unruly passengers who act in a disruptive manner not solely on the aircraft but also at the airport.
Montreal Protocol, 2014
The Montreal Protocol, 2014 entered into force in 2020 when it received its 22nd ratification by Nigeria. The benefits of this protocol cannot be yielded by the world, yet, as very few states have ratified the Protocol. Nonetheless, it is a step in the right direction.
This Protocol primarily amends the Tokyo Convention rather than repealing it. Both these legislations are to be read conjointly. This Protocol prescribes specific instances of behaviours and the actions that the contracting states can take.
The Montreal Protocol encourages contracting parties to take measures that may be required to initiate appropriate legal proceedings against disruptive passengers who commit an offence on board, particularly:
- Acts constituting physical assault or a threat to commit assault against the crew;
- Refusing to follow lawful instructions given by or on behalf of the aircraft commander for the overall safety of the aircraft or the passengers.
Changes in jurisdiction
The Montreal Protocol functions as a gap filler in terms of jurisdictional impediments. The lacunae in the Tokyo Convention did not allow the successful prosecution of unruly passengers. According to the Convention, the State of registration of the aircraft retains its jurisdiction over offences committed on board but the Protocol extends this jurisdiction to third-countries such as:
- The state of landing, in cases when the aircraft lands in its geographical territory with the alleged offender on board;
- The state of the operator, in cases where the offence is committed on a leased aircraft without crew. In these circumstances, the principal place of business of the lessee or whose permanent residence is in that state; such state has the jurisdiction.
Owing to the introduction of this legislation, an offender cannot escape prosecution solely because of disparity in the penal laws between the States.
Right of recourse
The Tokyo Convention did not provide the option of recovering costs that airlines incurred due to incidents involving disruptive passengers. The jurisdictional impediments also added to these troubles. The Montreal Protocol provides for this by empowering carriers to seek recovery under the domestic laws concerning the damage incurred owing to the behaviour of the unruly passenger.
Directorate General of Civil Aviation (DGCA)
The Directorate General of Civil Aviation is the principal regulatory body which primarily governs civil aviation in India. It is responsible for dealing with safety issues, regulation of air transport services, enforcement of civil air rules and regulations and other such tasks. It also coordinates its functioning with the International Civil Aviation Organisation (ICAO). One of the main tasks of this body is to ensure air safety and airworthiness standards.
Importance of implementation of aviation law
You may be wondering, what areas does aviation law affect?
If you answer this by saying the pilots and airports, they you are definitely not looking on the other side of the coin. Aviation law outlines every facet of the industry, from how close to a pilot may land to how many air traffic controllers must operate in a tower at any given time. On the commercial and security fronts, the Transportation Security Administration (TSA) guidelines are a crucial impact in airline customers’ flying experiences. Aviation legislation affects more than just pilots and airports. It discusses freight transportation, passenger behaviour, business regulation, and airline and charter structure. It enables the ICAO member nations’ obligations and rights. Above all, air law is profoundly concerned with modern civilizations’ economic activity. Air law also provides a method for nations to collaborate based on sovereign equality, fairness, and equal opportunity. When nations sharing a border need to collaborate or reach an agreement concerning the use of airspace or airports, they usually do so through ICAO, the International Civil Aviation Organization. The International Civil Aviation Organization (ICAO) is a United Nations body. When military aircraft from multiple nations must collaborate or discuss mobilisation, the governments or armed forces involved normally work directly with one another.
Aviation incidents that pose legal issues
The question at hand is generally who or what caused the accident and who is accountable for paying for the damages. However, this is frequently a difficult issue in aviation since virtually every significant disaster follows an “accident chain” in which numerous factors combine to generate the incident’s circumstances. Despite the fact that there are a lot of laws and regulations protecting the aviation sector in India, there are still a number of issues that require prompt action. Despite all of this, the Indian aviation sector is one of the wealthiest in the world, and the Indian government must make a concerted effort to enforce different international conventions.
Indian laws
The Ministry of Civil Aviation (MoCA) is the responsible body for the governance and administration of the aviation industry in India. It plays a crucial role in the formulation and execution of various national policies and programs aimed at the development of civil aviation. It is also responsible for devising schemes for efficient growth of civil aviation. It ensures the implementation of various legislations, including the Aircraft Act, 1934.
The Aircraft Rules, 1937
The Aircraft Rules, 1937 were formed in pursuance of the Aircraft Act, 1934. The unruly passengers were governed under this Act conjointly read with the Indian Penal Code, 1860. This legislation lays down the ideal behaviour which is expected from the passengers. The problem with this legislation was that it only listed what was the ideal behaviour. It failed to provide recourse to punitive actions or other repercussions.
Consequently, the provisions listed in the Indian Penal Code had to be invoked. The problem at this stage was that the disruptive acts of the passengers sometimes did not amount to an ‘offence’ per se. In other instances, they would be granted bail immediately. Resultantly, no legal actions could be invoked against such unruly passengers and they walked free without having to face any legal repercussions for their deviant acts.
The DGCA in 2010 incorporated two new rules in the Aircraft Rules, 1937. This was done with the purpose of managing the unruly passengers on board for either domestic flights or for international flights destined for India. These amendments have been introduced in Part 3 of the Rules. They are listed below:
Rule 22 of the Aircraft Rules, 1937
Rule 22 deals with instances of assault and other such dangerous acts of interference against a member of the crew. The rule lays down that no person who is on board an aircraft should indulge in the acts of assault, intimidation or threatening – either verbally or physically against a member of the crew. The passengers are not supposed to indulge in any acts which hinder the performance of the duties of the crew or reduce their ability to perform their duty.
Further, no passenger on board shall refuse to follow a lawful instruction given by the aircraft commander, i.e., the pilot-in-command or on their behalf by a crew member, for ensuring the safety of the aircraft, the crew, the passengers on board; or for the maintenance of good order and discipline on the flight.
Rule 23 of the Aircraft Rules, 1937
Rule 23 deals with acts which amount to assault or other such dangerous acts which endanger the safety of the passengers, crew and the aircraft or jeopardize the good order and discipline on board. This rule lays down that no person who is on board of an aircraft shall indulge into the following acts which may endanger the safety of the air:
- Assault, intimidate or threaten any other person either verbally or physically;
- Intentionally, either cause damage to or destroy any property; or
- Consume alcoholic beverages or narcotic substances.
The rule further mentions that the jurisdiction of India to take cognizance of such offences taking place onboard outside India extends to instances where:
- The next destination for landing in India.
- The aircraft commander has delivered such an unruly passenger to the competent authorities of India and has requested prosecution of such a passenger. The pilot-in-command should also affirm that such a request has not been made/ will not be made to any other State.
All airlines see this as a welcome addition because these rules empower the authorities to take the necessary actions against such unruly passengers.
Landmark cases
A writ petition confronted the legal standing of Section 12(3)(r) of the Airport Authority of India Act,1994 (subsequently referred to as ‘AAI Act’, as being contrary to the provisions of Sections 12(1) and 12(2) of the said AAI Act, whilst being ultra vires of Articles 14 and 12 of the Indian Constitution. The issues addressed were whether the government is considering privatising some of the country’s airports.
The Court stated: “The rule of construction is well known that when there are two provisions in an enactment that cannot be reconciled with one another, they should be read in such a way that, if feasible, effect is given to both.” This is known as the harmonic construction rule.
The idea of harmonized construction is to give both provisions effect. With these principles in mind, it is legitimate to hold that Section 100(4) prescribed a one-year limitation period in regard of a scheme proposed under the relevant provisions Act, whereas in the case of a scheme proposed under Section 68-C of the old Act that was pending on the date of enforcement of the new Act, namely, July 1, 1989, the timeframe of one year prescribed under Section 100(4) should be computed from the date of commencement of the new Act. This reasoning would give full effect to both parts of the new Act, Section 100(4) and Section 217(2)(e).
The Act must be read as a whole, and one provision of the Act must be interpreted in light of other sections in the same Act in order to create a consistent enactment of the whole statute.
The clauses of the statutory provision should be construed well together so that the provisions of one section do not defeat those of another, unless reconciliation between the two sections is inconceivable.
2. Indian Airlines Limited v Prabha D. Kanan, Supreme Court of India, 10 November, 2006
In this case the Appellant No. 1 drafted regulations in 1994 in accordance with Act No. 13 of 1994. The Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 (for short “the 1994 Act”) was passed by Parliament, and it ceded the right, title, and interest of Indian Airlines to Indian Airlines Limited. The Corporation issued Regulations in accordance with Section 45 of the 1953 Act.
The issues raised was that the validity and/or legality of Regulation 13 of the Indian Airlines (Flying Crew) Service Regulations (for short “the Regulations”) are at issue in these appeals, which stem from a decision and order issued by the High Court of Bombay on August 30, 2005 in Writ Petition No. 2030 of 2003.
The court ruled that, while Regulation 13 is not unconstitutional, it does not apply to Respondent. Furthermore, given the unusual events and circumstances of this case, as well as the fact that she had put in 20 years of service, the court determined that she should be reimbursed eight years’ compensation for both past earnings and potential job loss. This will be based on her most recent basic salary and dearness allowance. The Corporation will reimburse Respondent the money she repaid to the provident fund and gratuity at the interest rate specified in the statutes regulating them. Both appeals were granted in part and to the degree stated above. There are no fees.
In a case of judicial review, where no appeal against the penalty imposed on an employee is provided for, the High Court, in exercising its jurisdiction under Article 226 of the Indian Constitution, would not limit its jurisdiction to the known tests laid down for such jurisdiction, namely, illegality, irrationality, and procedural impropriety. It must go further into the subject. It would necessitate a more thorough investigation.
3. NipaDhar (nee Ghosh) v National Aviation Company of India Limited and others, Calcutta High Court, 10 December 2010
This case dealt with the situation wherein the appellant began working as an Airhostess and later became a permanent employee of the respondent Company. Before terminating her service, the responsible authority did not take care of her other rights, which may have been accessible based on her confessed position of suffering from phobic fear about flying and a rise in body weight owing to an adverse response to medicine, in order to treat it. True, the right to labour is not a basic right, but once a person is assigned to a post/office, whether government or private, the right must be dealt with in accordance with the public aspect. The issue raised was that the writ application was maintainable based on the stated factual premises and the legal questions raised. It was found that the writ is maintainable, and the Court determined that there was a violation of Articles 14 and 21 of the Indian Constitution. As a result, the termination order was set aside and quashed because it was not lawfully enforceable. The different papers provided throughout the hearing established that the appellant suffered from phobic fear in flying and was thus unable to undertake flying duties. As a result, the writ application was granted. As a result, the appeal was also granted.
Civil aviation requirement on the handling of unruly passengers
The aforementioned problem was rectified by the Government by introducing the Civil Aviation Requirement (CAR). This mandated the Ministry of Home Affairs (MHA) to maintain a no-fly list. Additionally, CAR also defines the term ‘unruly passenger.’ It borrows this definition from Annex 17 of the Chicago Convention.
The notification further divides the unruly behaviour into three categories:
Level 1: Unruly behaviour is defined consisting of acts such as making inappropriate physical gestures, verbally harassing passengers, or the crew, unruly intoxication, etc.
Level 2: Passengers indulging in physically abusive behaviour such as pushing, hitting, grabbing, touching inappropriately, kicking, etc.
Level 3: Passengers showcasing life-threatening behaviour, via actions such as eye gouging, damaging the aircraft, attempting or actually breaching the flight crew compartment, etc.
Reporting and handling of unruly passengers
When a complaint is received from the pilot-in-command about the unruly behaviour of a certain passenger, then, this has to be reported to an internal committee. The airlines will constitute such committee, which will consist of the following members:
- Chairman: Retired District & Sessions Judge
- Member: A representative from a different scheduled airline
- Member: A representative from the consumer association or a passenger association or a retired officer of Consumer Dispute Redressal Forum.
This committee is ought to decide the matter within 30 days along with the category level in which such actions of the passenger fall into. On this basis, the internal committee will decide the period for which such a passenger will be banned from flying. During the time, when the inquiry is going on, the concerned airline may choose to ban such a passenger from flying, but this period cannot exceed 30 days.
The decision rendered by the committee will be binding on the concerned airline. In cases where the Committee fails to give a decision within the stipulated period of 30 days, then such a passenger will be free to fly.
Ban on flying
For passengers who are placed on the No-Fly list pursuant to the decision of the Internal Committee, the other airlines have an option of banning such a passenger from flying to/from/within India for the below duration based on the level of their behaviour:
Level 1: Up to a period of three months.
Level 2: Up to a period of six months.
Level 3: Minimum period of two years or more, without limit.
Such a passenger, who is banned, will have to be intimidated about their inclusion to the no-flying list along with reasons for the same. They shall also be informed about the duration of their ban.
Constitutionality of these rules
Although this provision of a flying ban has been introduced to combat the rising instances of unruly passenger behaviour, a conflict arises between these provisions and the Constitution of India, 1950. Article 21 of the Constitution has been given a wide interpretation as can be inferred through various precedents. The aspect of ‘right to travel’ is also included in this. Article 21 has been expanded via judicial precedents to include the ‘right to travel abroad.’ Therefore, under this right, travel by air is also covered.
The Apex Court in the landmark judgment of Maneka Gandhi vs. Union of India (1978) laid down that the right of free movement functioned as a vital element in terms of personal liberty. This freedom of movement also includes the right to travel abroad.
This view was reiterated in the case of Priya Parameshwaran Pillai vs. Union of India (2015), wherein, the Court categorically stated that the right to travel abroad is a Fundamental Right and any such procedure which bars this right must not be arbitrary in nature.
A reasonable procedure should be based on principles of natural justice such as nemo judex in causa sua (no should judge their own cause) and audi alteram partem (hear the other side). The procedure should not be arbitrary. The person who is prosecuted should have recourse against any decision taken against him.
According to these rules, the Constitution of an internal committee is to be done by the airline itself. Even though the Committee has external members, the airline has an upper hand in the constitution of this committee. This is violative of the principle of natural justice – nemo judex in causa sua.
The passenger’s name is displayed on the No-Fly List and all other airlines have the discretion to ban such passengers regardless of the fact that the incident did not occur on their airline. It is stated that the decision of the internal committee is binding only on the airline which constituted it. The flying ban imposed by other airlines on the basis of their discretion is arbitrary in nature.
Kunal Kamra vs. IndiGo
The recent incident in 2020, wherein, an Indian comedian Kunal Kamra was banned from various airlines for heckling a fellow passenger is a primary example of the arbitrariness. The airline imposed a 6 months ban on him prior to constituting an internal committee. Further, several other airlines followed this suit without any valid grounds. Consequently, a legal notice was served upon IndiGo for arbitrary actions against the comedian.
Hence, it can be inferred that these Rules grant arbitrary powers to the airlines. Although the motive of these rules is to mitigate the incidents of unruly passenger behaviour, the process mentioned therein can be challenged in the Courts for the reasons mentioned above.
How to prevent such behaviour?
To mitigate the instances of unruly behaviour, the efforts should be made right from the beginning. The concerned airlines, the airport and all the employees should be vigilant in their interactions with the public. The passenger can be identified during the following procedures:
Check-in
The personnel employed for check-in procedure should be encouraged to identify and report any passenger whose behaviour is suggestive of potential disruptive actions. For example, if a person appears in an inebriated state, their condition should be reported to the ground supervisor at once.
Security screening
Security screening staff can also be trained for being a part of the mitigation measures. People who depict unruly behaviour during screening can pose risk to the safety and security of the aircraft as well as other passengers and crew members.
Boarding gate
Several passengers check-in early or they may be subjected to delays in their departure, this gives them ample time for consumption of excessive amounts of alcohol. Therefore, their inebriated state can be detected at the boarding gate and subsequently reported if it is found to be a potential hazard.
Before departure
The cabin crew plays a significant role at this stage, as this is the last opportunity to leave a potential unruly passenger on the ground. The cabin crew can identify abrupt behaviour when the passengers are boarding. These passengers could be loud, belligerent or inebriated. In these cases, the crew should firstly attempt at speaking to such passengers. After this, if the crew is suspicious of potentially problematic behaviour then such passengers should be disembarked from the flight along with their baggage.
During flight
If a passenger starts behaving in a disruptive manner in-flight, then the cabin crew will have to assume the responsibility of dealing with that specific situation. The crew is trained in this regard and therefore can help in restraining such behaviour by an intervention.
It is of paramount importance that the employees are trained for intervention in such circumstances. They should possess the requisite communication and conflict management skills. The cabin crew should also be trained concerning when to stop serving alcohol, etc. Additionally, passengers should be made aware of the legal consequences that they could face due to their disruptive behaviour.
What steps should be taken to mitigate the effects of such incidents
The Montreal Protocol is still in the stage of infancy and subsequently, will take time to receive the required number of ratifications from the States. The benefits of this Protocol will be only enjoyable across the entire world when such ratification takes place. It is established that only enacting legislation does not help entirely; effective implementation of the same plays a crucial role. Therefore, airlines should be vigilant and prepared for such instances.
Conditions of carriage
The onus is on the airlines to make sure that their Conditions of carriage contain an enforceable mechanism through which, they could recover costs arising from dealing with disruptive passengers. The provisions should aim at covering as many potential risks as may be possible. The international conventions provide a general framework but the airlines have to function in accordance with their national laws. Therefore, such provisions must be made in consonance with the municipal laws.
Collection of evidence
Collecting evidence is a crucial process because the prosecution of such unruly passengers fails due to lack of properly assimilated evidence. Therefore, the airline or a state agency seeking to prosecute a passenger should ensure that a witness statement is taken at the earliest from the aircraft commander, from the cabin crew involved and from the passengers. Any photographic evidence or videos captured by the passengers or the crew members should be noted.
Conclusion
The instances of unruly behaviour are constantly on the rise. All the industry stakeholders should make coordinated efforts for the prevention of these incidents and mitigation of the effects. This problem extends to every authority involved in civil aviation and not just the airlines. It is important to take preventive measures but the airline should also be prepared to manage the incident.
References
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