This article is written by Eshan M Saha. Eshan is an advocate and holds experience in Infrastructure (Projects) & Litigation (Arbitration) and currently advice on Policy & Regulatory aspects of Defence & Aerospace Sector.

There’s many a slip ‘twixt the cup and the lip. A policy has to pass through many hurdles for qualifying as a regulation. Regulation is what converts policy into action. Policy without regulation, is like a car, without wheels. Research and white papers are essential to form a policy. It is good to think like an economist or scientist, from the perspective of consequences. Once the Policy is in place, it is time to walk the talk. Too much of Policy analysis is equivalent to Policy Paralysis.

Can something basic and workable be decided? Obviously YES. Who will bell the cat? Everything is about perspective and perception. It is easy to point fingers, at the appropriate authority. However, it is pertinent to gauge, why the Directorate General of Civil Aviation (“DGCA”) is also hesitant, to pass a Regulation by means of Executive Action. Obviously, there are multitude factors because of which DGCA maybe in a fix as well. Most importantly, how fast can clearances/permissions of projects for DRONE/UAV services be expedited?

What are the alternatives, in case such a stalemate persists? Only regulation won’t suffice. Fast track clearances for projects are required. Can there be an alternative authority created apart from the DGCA, to do the same? The answer might be in affirmative, as the old adage goes, where if there is a will, there is a way. What can be the way out in such a scenario

First and foremost, we need to define the point from where the jurisdiction of DGCA begins and ends. Can there be an overlap in jurisdiction with any other authority? What are the Vertical (lower & upper) and Horizontal limits of Public Airspace? In relation to this, what are the Vertical and Horizontal limits of PRIVATE vis-a-vis PUBLIC AIRSPACE? Do we need to take a relook at the Aircraft Act and/or any other statute? We certainly need to do so, for clarity. This is because all this can be formulated by Executive Action. Therefore, the same is workable.  

Can an alternate authority be created to sanction projects vis-a-vis DRONE/UAV services?

Would it be pragmatic, to vest such powers on some other authority? Is this the best way forward to expedite projects for DRONE/UAV services? Most importantly, who will take the ultimate call in sanctioning projects? ‘Uneasy lies the head that wears a crown’. Some crowns, have the burden of a cross. However, someone has to take the call. Section 5 of the Aircraft Act of 1934 empowers the Central Government to make Rules. It is to be seen, which division of the Central Government, makes such Rules. Most importantly, which authority provides clearances for projects.

Let us try and connect the dots. What is the lateral connect? Who are the main authorities?

Let us be presumptuous, from the perspective of Public Administration and Governance. The DGCA is probably not the Primary Authority, to expedite projects for DRONE/UAV projects. Maybe the Home Ministry is the Primary Authority in this respect. Rule 13 of the Aircraft Rules 1937, is one such provision(s) wherein, photographs cannot be taken from flight, except permission from DGCA. The violation can be of such nature, that intervention may be required by the Ministry of Home Affairs (“MHA”), and in some cases, by the Ministry of Defence (“MOD”). National Security is of paramount importance.

DRONE/UAV surveillance services is required for multiple survellance/security purposes such as

• a) Disaster Management
• b) Border Security
• c) Counter Terrorism
• d) Internal Security
• e) Emergency Response etc.

This is considering that DRONEs/UAVs will be primarily used for surveillance. What is certain is that MHA is an authority of equal importance. This is specially in the context of gathering data. There are multitude reasons for the same. Therefore, for the time being, maybe the DGCA is the secondary authority. The DGCA is ideally the secondary authority, from the perspective of VERTICAL LIMITS (lower & upper). It would be interesting to see, how Rule 21 of Aircraft Rules 1937 (applicable to DANGEROUS FLYING) is implemented to define the “lower” VERTICAL LIMIT. The tertiary authority here, is the Ministry of Defence. The MOD is the tertiary authority from the perspective of specific AIRSPACE and establishments. All are of equal importance. Neither can/should work, without collaboration with the other two. Therefore, it is time to build a Team/Authority, for expediting projects for DRONE/UAV services. The onus of putting a regulation in place still lies with the DGCA though. Unless Section 5 of the Aircraft Act 1934, is used to appoint a separate authority for the same.

How can we have a workable regulation?

Let us start with the basics and fundamentals. First let us eliminate the areas, where DRONEs/UAVs cannot fly. Rule 12 in conformity with SCHEDULE I of Aircraft Rules 1937, mentions prohibited areas of flight. This is keeping in mind, the limits set by the DGCA. Though the same does not seem exhaustive. Now the To be, or not to be question lies with the Home Ministry from an overall perspective. What does a DRONE/UAV service provider need to do? Ideally, a DRONE/UAV service provider needs to define its respective FLIGHT PATH(s). A particular DRONE/UAV, can fly, only in a particular way. This technical point is important. Aeronautical science and aerodynamics have to be considered.

Only defining the respective FLIGHT PATH, is a specific aspect. A larger issue is to define the AIRSPACE surrounding the FLIGHT PATH.

Needless to mention, monopoly is needed, on the FLIGHT PATH and the AIRSPACE. This is to prevent clash, collision or conflict between UAVs/DRONEs. The only way to gain monopoly is by competitive bidding. The usual NIT, RFQ and RFP process, has to be followed. Administrative criteria has to be defined accordingly. Swiss Challenge method, should also be applicable, for eager participants. Biding is necessary, because AIRSPACE is as good, as a natural resource.

The ICAO was formed in 1947 under the auspices of the United Nation Organisation.

ICAO was formed pursuant to the Convention on International Civil Aviation, at Chicago on 7th December 1944 (hereinafter referred to as the Chicago Convention). India is an original signatory to the convention. Pursuant to the convention, entering into force on 4th April, 1947 the ICAO has actively regulated and published circulars, to provide uniformity in Civil Aviation standards at the International level. As of 2017, India is not only a State Party to the ICAO, but is also a Member of the Council of States of the ICAO.

The ICAO in 2011, vide Circular 328 AN/190 has published Rules and Regulations, pertaining to and governing unmanned aircraft system(s). These rules are detailed rules consisting of seven chapters, and various appendices providing uniform guidelines for regulating the licensing, use and operations of unmanned aircraft system (hereinafter referred to as UAS). A copy of the said Guidelines as approved by the Secretary General and published under his authority.

In 2015, the ICAO vide Doc. 10019 AN/507 published a manual on remotely piloted aircraft systems, and the said manual by the approval of the Secretary General has been published under this authority. This manual deals with details, rules and provisions pertaining to Remotely Piloted Aircraft Systems (RPAS) and governs the technical nitty-gritty as to the infrastructure, and details of systems, to be put into the place for operations of RPAS.

The Directorate General Civil Aviation (“DGCA”) is a statutory body attached to and within the aegis of Ministry of Civil Aviation (“MCA”) created to regulate Aviation affairs within the territory of India.

The Directorate General of Civil Aviation (DGCA) is the regulatory body in the field of Civil Aviation, primarily dealing with safety issues. It is responsible for regulation of air transport services to/from/ within India and for enforcement of civil air regulations, air safety, and airworthiness standards. The DGCA also coordinates all regulatory functions with the International Civil Aviation Organisation (ICAO).

The Union of India through Ministry of Civil Aviation (“MCA”) is responsible for formulation of national policies and programmes for the development and regulation of the Civil Aviation sector in the country.

It is responsible for the administration of the Aircraft Act, 1934 (“Act”/“ACT”), Aircraft Rules, 1937 and various other legislation, pertaining to the aviation sector in the country. Under Section 4 of the Aircraft Act, 1934 the MCA has the power to make rules implementing the Chicago Convention.

Under Section 5 of the Aircraft Act, 1934 the MCA can make rules regulating the manufacture, possession, use, operation, sale, import, or export of any aircraft or class of aircraft and for securing the safety of aircraft operations. Section 5 stipulates a host of provisions for which the rules may be provided for. It is pertinent to mention in this regard, that under Section 5 of the Aircraft Act, 1934 the Central Government is the “Competent Authority” empowered to “make Rules”. The MCA/DGCA acts on behalf of the Central Government. Therefore, the Central Government is still empowered to make Rules, through some other Ministry/Department. 

Under Section 5A, the MCA can issue any such directions, on behalf of the Central Government, from time to time in any matter consistent with the said ACT. Furthermore, in order to achieve the purposes of the said Act, the Central Government under exercise of its powers conferred under the said Act, has enacted the Aircraft Rules 1937 (hereinafter referred to as the said Rules). The DGCA issues directions, regulations and circulars from time to time, to achieve the purposes of the said Act in consonance with the said Rules.

The DGCA in its draft of Air Transport Circular XX of 2016 (draft dated 21st April 2016), issued Guidelines for obtaining Unique Identification Number (UIN) and Operation of Civil Unmanned Aircraft System (UAS). Comments were invited on the said circular, and the last date for comments was 21st May, 2016.

In the introduction to these Guidelines, DGCA has expressly stated that the said guidelines have been issued pursuant to ICAO Circular 328 and Doc 10019 AN/ 507. This draft circular is dealing with the civilian use of UAS especially with regards to damage assessment of property and life in areas affected with natural calamities, surveys, critical infrastructure monitoring including power facilities, ports, and pipelines, commercial photography, aerial mapping, etc. They are also increasingly proliferating into recreational field and are likely to be used in many other domains.

The draft Circular has 13 main clauses

Under clause 3, Civil Unmanned Aircraft (UA) has been classified in accordance with the weight of the UA and has been categorised as per weight :

1. Micro: Less than two Kg
2. Mini: Greater than two kg and less than 20 kg
3. Small: Greater than 20 kg and less than 150 kg
4. Large: Greater than 150 kg.

Under clause 4 strict details have been provided as to who can be granted and issued UIN, and list of documents to be tied for the issue of UIN, have been provided for.

Under clause 5 provisions have been made for Unmanned Aircraft Operator Permit (UAOP) and the circular explicitly states, that for all civil UA operations at or about 200 feet Above Ground Level (AGL) in uncontrolled air space, for any purpose whatsoever, will require UAOP from DGCA. It further provides that operation of civil UA in uncontrolled airspace is restricted and exemption is made for certain entities for conducting operations without the issuance of UAOP from DGCA.

Following entities will not require UAOP from DGCA

1. As per the Circular Civil UA Operation below 200 feet in uncontrolled air space and clear of notified prohibited, restricted and danger areas, as well as Temporary Segregated Areas (TSA) and Temporary Reserved Areas (TRA), will not require UAOP from DGCA. In addition, the operators shall obtain permission from the local administration and the concerned ADC. 
2. Model aircraft operating below 200ft AGL in uncontrolled airspace and indoor UA for recreational purposes only. (Aero modelling activities carried out within the premises of educational institutions will be considered as recreational purposes). The lower VERTICAL LIMIT of 200ft AGL in uncontrolled AIRSPACE needs a relook.

Under clause 6 of the Circular, procedure for issuance of UAOP has been established and all those operators having a UIN intending to conduct civil operation of UA at or about 200 ft. AGL (Above Ground Level) in uncontrolled airspace shall their application to DGCA along with compliance of all necessary formalities and procedure mentioned therein.

Clause 7 of the Circular addresses the security aspects of operation of the UA and places responsibilities upon the owners/operator for the safe custody, security and access control of the UAS. In case of loss of UA the operator shall report immediately to local administrator/police, BCAS and DGCA within 24 hours of the occurrence of such incidents/accidents.

Clause 8 of the Circular addresses training requirement for remote pilot.

1. The clause provides that the remote pilot should have attained 18 years of age, and have thorough ground training.
2. The Remote Pilot shall undertake thorough practical training in the control of UA in flight and which may consist of a proportion of simulated flight training.
3. The training should enable the remote pilot to demonstrate that he /she can control a specific UA throughout its operational condition including safe recovery of UA in cases of emergency and system malfunction.
4. However, the above training requirement for remote pilots is not applicable for micro category UA and recreational flying. This is clearly a discrepancy. It needs to be resolved.

Clause 9 provides for maintenance of UAS, and provides for maintenance and repairs of UAS and ground control equipment, in accordance with manufacturers approved procedures. The remote pilot shall not fly the UA if he /she is not reasonably satisfied with the working condition of the control system of UA including radio link. The UAOP holder shall maintain records of each flight, and make records available to the DGCA on demand.

Under clause 10, operational guidelines for using UA has been provided. These guidelines are applicable to operation above 200 ft. AGL in uncontrolled airspace.

Clauses 11, 12 & 13 of the circular deals with legal obligations, insurance and enforcement action provisions that have to be complied with by the UAS Operator.

Critique of the circular

As per Issue No.1, it seems that while the circular issued by the DGCA, is appearing to be in tandem with the circulars and manuals issued by ICAO, there are about ten key areas which may have been overlooked in this circular and need to be specified, so that there is clarity on the same.

• The first issue is pertaining to the operational aspect of uses of UAV.
• The UAV should have sensors and/or systems and the current state of the art technology in place, to avoid birds, trees and other objects which may cause interference in the flight path.
• The technology/apparatus should be able to detect, recognise and understand aerodrome signs, markings and lighting.
• It should ideally also be able to recognise visual or any other signals of interception.
• It should be able to identify and avoid terrain, as well as severe weather and wind conditions.
• It should be able to avoid collisions from other aircraft in flight.
• Further to that, regulations should be provided for noise level(s) that is permissible for the operations of these drones. This in turn shall lead to further innovation and challenges for entrepreneurs in the drone industry.
• This is in tandem with the “SMART CITIES” Concept/Project/initiative (http:// smartcities.gov.in/content/innerpage/smart-city- features.php) as envisaged by the Central Government.
• A Smart City should ideally have drones for surveillance, security and traffic management services at least, for better governance and public administration. This is also in tandem with the “MAKE IN INDIA” (http:// www.makeinindia.com/home) initiative of the Central Government, and has the potential to generate employment and promote investments and development, thus providing an impetus to the Union of India not just for domestic use, but also for exports since India lacks a high-end technology park or manufacturing centre which can manufacture high end technical equipment for UAVs/drones.
• This will give a boost not just to the manufacturing and infrastructure sector, but to the IT sector as well as unmanned and autonomous aircraft/drones are the order of the day and the same shall be controlled by software.

Environmental consideration in operations of UAS

Issue No. 2 pertains to Clause 3.20 of Exhibit – B addresses environmental consideration in operations of UAS. Clause 3.20 places the following criteria that have to be considered for operations of these UAS :

1. The amount of fuel consumed;
2. Nature and location of the operation;
3. Environmental footprints;
4. Noise and gaseous;

The above criteria have to be complied with applicable standards and in Chapter – VI the ICAO has provided detailed provisions for environmental protection that has to be considered, in the operations of these UAS. The DGCA should notify the applicable benchmark for the same via regulation.

Issue No.3 deals with safety measures. Further consideration should be made with regards to the safety of the drone, and all drones should come equipped with a parachute or some other alternate safety mechanism to prevent crashes. Drones should have a mechanism in place which will automatically unfurl the parachute if it drops below the lower vertical limit and/or is no longer in control of the remote operator. Pursuant to the same, drones should also have an inbuilt collision avoidance system as mentioned herein above.

Issue No.4 is that, there should be a designated AEROSPACE PARK, or at least one demarcated “DRONE ZONE” in each State, for conducting test flights of drones. This should also be in line with the smart cities plan of the Central Government. This aerospace park or demarcated drone zone, is required to test unmanned autonomous drones or unmanned aerial vehicles (UAVs) so that there is no conflict with people operating these drones for recreation or any other civil purpose.

Issue No.5 deals with the issue of the vertical limits of 200 ft. Every UAV apart from those flown indoors or for recreation purposes within confined limits, should have been issued a UIN, regardless of the vertical limit. The UAVs can also be used for destructive/hazardous/terrorist purposes and could jeopardise the safety and security of the public at large. The divide/limit between PUBLIC and PRIVATE AIRSPACE needs to be resolved.

Issue No. 6 is that, there should also be a mechanism in place, to monitor the entire flight path of the UAV’s, and not just limited to 500 meters visual line of site (VLOS) as provided for in clause 10 of the circular. The said system should automatically track, record and report the flight of the drone to the DGCA. In urban areas, where there are massive high rises and a monsoon season, visual range for the operations of these UAVs is inconsequential. Furthermore, there should be the necessary technology in place, to monitor, report and record the flight path of each and every drone.

Issue No.7 deals with primary classification of UAVs. The classification of UAVs should not be as per type or weight, but primarily be classified as per the designated/ demarcated/preprogrammed/predetermined flight path and purpose of the UAV. The flight path is controlled airspace and path, which is governed by the vertical upper & lower limit, and the horizontal limit(s) permitted exclusively for operations and flight of the UAV. This is granted and regulated by the DGCA, keeping in mind the vertical and horizontal limit(s) in which it can operate from the point of take off to the point of landing.

UAVs depending on their respective design and flight capability, can only fly in a specific way and manner, solely dependent on its aerodynamic and other related nuances. The UAOP and UIN should be granted, only after testing the said UAV, and taking into account average weather and wind condition. It should further undergo design approval, deadlift payload capacity checks, and stringent test flight(s), before the license is issued. Further classification should be Sector and Service/Utility specific. 

As per issue No. 8, the policy should have specific detailed provisions pertaining to regular/periodical systematic statutory check-up of the drones post the license has been issued. These check ups, are required to make sure that the drones are not been used for any other purpose other than what the license has been issued for, to make sure the drones has not become hazardous in nature, therefore pertains to the public at large in danger, during the course of operations.

Issue No. 9 is that there should be aerodromes as in tandem with international guidelines if possible, and local needs of the population and a policy should be formulated accordingly. These aerodromes should provide charging and refuelling services for the drones, and have the requisite infrastructure for drops and pick ups.

Issue No. 10 is that there should be a comparative study of available technology, in respect of telecommunication of UAVs/drones and Air Traffic Authority and regulations should be framed accordingly, to monitor and record feedback. This is so that, the regulation can be at par, with the applicable technology.

Ultimately, a Team has to be formed as the requisite authority.

Ideally, a Team of five personnel is required. First from DGCA, Second from Home Ministry and Third from Defence Ministry. The fourth official, should be a DRONE PILOT to check technical details/feasibility of PROJECTS. The fifth an individual, who will act as an AGGREGATOR, and take a call. The onus of taking the call on clearing a project, should lie with just one individual. The others have to coordinate, and deliver as per set targets and deadlines.

Overview of the above arguments

A pragmatic approach and execution is required. A basic regulation, needs to be in place. The same will define, where DRONEs/UAVs can fly and cannot fly. Private players should bid for AIRSPACE and FLIGHT PATH for DRONE/UAV services. Subsequently, a TEAM needs to be put in place, to execute clearances for such projects.

If the Government fears threat to National Security, the same can be resolved by counter measures.

There is already a lot of information, available through online maps. What is the delay for? Do the government officials, fear action by the Vigilance or CBI later? Or from the opposition? Suggestions have been already invited. Stakeholders have probably already put forth their proposals. It is time to resolve and expedite any pending issues.

The requirement of DRONEs/UAVs is manifold.

It is for standard surveillance services. The distinct advantage being, DRONEs/UAVs cover blind spots. However, there is a basic requirement nowadays. There seems to be probability of political turmoil. The same is from apprehension of communal riots and violence. Irrespective of Government/Opposition in the Centre/State, the apprehension persists. In any event, what is wrong in living in a Police State ? The aftermath of child rapes of late, has been shocking. An EYE in the SKY, will also serve as a basic deterrence. At least, women will be comparatively safer. Ultimately the onus lies on the Central Government to take a call. As the states cannot legislate on Aviation.

Though the State Governments might also have DRONE/UAV services in PRIVATE AIRSPACE, below the lower VERTICAL limit, where the jurisdiction of DGCA does/may not extend. This will be below the lower VERTICAL LIMIT. How the States work around issues of DANGEROUS FLYING synonymous with Rule 21 of the Aircraft Rules 1937, amongst others, will be enlightening. A classic example is DRONEs/UAvs used for spraying bio fertilizers in the Agriculture Sector. These DRONEs/UAVs fly at a height of maximum 50 feet AGL. Time will tell, on who sets the ball rolling, and who steals who’s thunder. Most importantly who bells the cat.