In this blogpost, Prerna R Saraf, Property Lawyer, Bangalore writes on the draft guidelines on the operation of UAVs in India. The author also writes on the position of such regulation in the United States of America.
Guidelines on operation and use of UAVs in India
UAVs to be used by Karnataka Police
By now, everyone has read about how Karnataka Police Department is the first to own and operate drone fleet. About 20 policemen have been trained and given the exclusive task of operating the drones. It is certainly a major technological development that would make the police’s job a lot easier. The UAVs have already helped the police identify sand mining along the border of Karnataka and Andhra Pradesh due to its night visibility.
The 12 drones acquired cost about 1.5 lakhs each. As UAVs become a part mainstream usage, there are still no regulations on the purchase and use of UAVs by either the Central or the State Governments. There are no clear rules for categorizing, operating or monitoring the drones.
United States Regulation on Usage of UAVs
It was in May 2015, that United States had notified regulations on flying of Unmanned Aerial Systems (UAS), but called it challenging for both Federal Aviation Administration and aviation community as it had one of the busiest and complex airspace in the world. With this USA joined a handful of countries that have regulations on flying of UAVs.
Legal Position of UAVs in India
It was in July 2015 that two employees of Housing.com were detained for flying a drone over Chembur. The drone had a camera attached to it, and they were taking pictures of buildings for the website. They were to take prior permission from the police to take photographs from the drone. In fact, there was a complete ban on flying drones in India since October 2014, but not everyone was aware of it.
People wouldn’t know anything about the drones until they attend a high-class wedding where it has become a fad to have flying camera zoom around in order to have those picture perfect shots. Some drones are available for as low as Rs. 2000. Therefore, Amber Dubey, head of aerospace and defense at global consultancy, KPMG said ‘given its versatility and sizes, there is a risk to privacy and national security.’Hence, ‘there is a need to bring in law that balances safety and the advantages that drones bring.’
The fear and uncertainty over the technology and the lack of drone regulation in India had led to a complete ban on drones so much so that the Government had even started throttling the import of drones in India. Therefore, taking into consideration the necessity of having regulation in place, the Director General of Civil Aviation has issued a set of draft guidelines in May 2016. The Guidelines govern the registration and usage of drones. The full text of the Guidelines can be found here.
Nine Points you need to know about the Guidelines on UAVs
It is to be noted that the Guidelines is still a work in progress. It provides for the following:
- The issue of UIN (Unique Identification Number) for UAVs. UIN can be granted to an:
- Indian Citizen or
- A body corporate established in India, having Chairman or 2/3rdof the Directors are citizens of India and if it’s substantial ownership is vested in Indian nationals.
- All civil UAVs have to obtain operator permit (UAOP) from DGCA. UAVs operation is restricted in controlled space under clause 5.2 to the extent that prior approval of ANS provider is obtained under clause 10.9.
- There is a procedure laid down for the issuance of UAOP. The application has to be made to the DGCA 90 days prior to the operation of the UAVs. The procedure under clause 6 does not yet provide for how long the DGCA would take to scrutinize the application and issue the UAOP.
- UAVs with a UIN shall not be sold or disposed to any other person or firm without permission from DGCA.
- Clause 8 provides for training of remote pilots. They must have attained 18 years of age, and the training must be equivalent to that undertaken by aircrew of manned aircraft.
- The Guideline provides for maintenance of UAS and intimation to Local Administration, Air Traffic Service (ATS) Unit before commencement and after termination of the operation. The operator must also carry out safety assessments.
- Clause 10.4 very insubstantially provides Privacy and Protection of Personnel/ property/ data. However what is needed is a strong regulation for the protection of privacy from information collected through drones.
In fact, Kochhar&Co’s Aviation expert Piyush Gupta in an interview with Bar & Bench said, ‘the regulatory authority should examine their policies on collection, use, retention and dissemination of data every three years in order to protect privacy, civil rights, and civil liberties. Also, the agencies that collect such information must incorporate details of how they use the data collected and retained in order to have accountability and transparency of information.’
- Clause 10 provides extensively for requirements to be met for operation of UAVs. Requirements like:
- Altitude and meteorological conditions.
- For operations at or above 200 ft above ground level, flight plan to be obtained from the ATS Unit and ADC.
- Avoidance of international operation of civil UAVs.
- Operator’s responsibility towards air traffic, no radio frequency interference,
- Clause 11 provides for legal obligations like:
- Not conferring on UAS operator any right against the owner or resident of a building or land. Also, no prejudice against the rights and remedies of a person injured or whose property is damaged directly or indirectly by the UAVs.
- Absolving the operator from any other law in force.
What the provision lacks is a strict punishment regarding the monetary penalty. While the clause provides that disputes shall be settled in Delhi, it does not provide anything for the penalty to be imposed in case of any sort of non-compliance.
Drones pose a significant threat to privacy as photos and data that are otherwise private could be collected easily through its use. In order to protect privacy and to ensure unequivocal compliance with provisions, an effective penalty clause is essential.
Hopefully, the end product of the guidelines shall have comprehensive provisions on privacy, data protection, punishment, and penalties for cases of non-compliance.