In this article, Subhadip Choudhary pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the legality of flying drones in India.

Unmanned Aerial Vehicles or drones can access decentralized airspace thereby reducing the work of the:

• Agriculturists
• Construction workers, and
• Other civilians by providing them with aerial surveillance.

However, this technological revolution does not come without negative implications. With drones, it easy to violate the privacy and encroach upon the personal lives of people. Therefore, it is of utmost importance for the legislature to implement laws that will bolster the use of drones within the permissible limits.

A draft policy for operations of drones

Guideline 2 of the draft policy for operations of drones in 2016[1] defines drones or Remotely Piloted Aircraft System (RPAS) as:

A remotely piloted aircraft, its associated remote pilot station(s), the required command and control links and any other components as specified in the type design.

The office of the DGCA has shown interest in legalizing drones in India for commercial and recreational issues and has also drafted guidelines for the same.

According to the public notice issued by the office of the Director General of Civil Aviation [2], it is illegal and non-governmental agencies or organizations to fly drones in the Indian Civil Airspace.

Non-compliance with such notice by any individual or organization for any reason might land him in jail. However, with time the rules have been allayed and individuals are allowed to fly drones with prior permission from the respective authorities.

Buying and Selling of Drones in India

Even though it is illegal to fly drones in India but it is not illegal to sell them in India. Drones are easily available on online platforms and India is one of the largest sellers of drones [3]. Importing drones to India from foreign countries is restricted as per Notification No. 16/2015-2020 by the Ministry of Commerce and Industry [4]. Importing the same requires prior permission from the DGCA and license to import from the DGFT.

Registration of Drones

Drones are broadly considered to fit the definition of aircraft as defined under rule 3(7) of the Aircraft Rules’ 1937 [5]. Rule 30 specifies that only those aircraft which satisfy the following conditions can be granted a certificate of registration of:

• Which are owned by citizens of India
• Company or corporation having its registered office in India and whose principal base of operation is within India.
• The Central Government or the State Governments or any governmental companies can get their aircrafts registered.
• Any company having its registered office outside India can get its aircraft registered if the aircraft is to be leased to any person falling in the first two categories.
• Any person who is not a citizen of India but owns an aircraft or drone can get it registered to run a business in India.
• Any company or corporation registered outside India but carrying business within India can also get its aircraft registered.

Central Government can issue the certificate of Registration

Only the Central Government can issue the certificate of registration and specify the duration for which such certificate shall be valid. Rules 31 to 37A further describes the documents required and the process to get the aircraft registered [7]. The DGCA is empowered under rule 49, to issue a Unique Identification Number or type certificate to the aircraft owner [8].

Unmanned Aircraft Operator Permit

The procedure to get UIN is a cumbersome one where one needs the following:

• Address
• Identity proof
• The purpose for which the UAF is to be used
• UAF’s specifications and flight manual
• Manufacturer’s maintenance guidelines.

The local police authorities will perform character verification of the user. Further permission from the department of telecommunications to use the particular radio frequency the UAF is required. After getting the drone registered, the owner needs to obtain the Unmanned Aircraft Operator Permit (UAOP).

The following documents need to be submitted to get the permit

• Permission from either a civil or defense Air Navigation Service provider.
• Permission from the landowner for taking off and land the drone.
• Details of the remote pilot along with his training records.
• Permission from the Bureau of Civil Aviation Security of India to ensure that there are no security issues.

Once the owner gets all the above permission, he will get a license to fly his drone for a period of 2 years.

Flight Limit

If the owner wants to fly his drone above 200 feet, he needs to obtain a permit from the DGCA. If the event gets canceled the DGCA needs to be informed. However, for recreational activities where the owner wishes to fly his drone below 200 feet, he needs to get permission from the local administration, i.e., from the municipal office.

Any organization, even educational institutions, need to obtain permission before they can conduct any drone-related activities. A person flying a drone without the required permissions will be committing crimes under sections 188, 287, and 336 of the Indian Penal Code, 1860.

Under this section, the intention of the offender in causing harm is of no relevance. The fact that the person has the knowledge of the order that he is disobeying is enough to get him convicted under the above sections.[9]

Flying a drone also attracts section 268 [10], which deals with public nuisance. According to the definition of public nuisance any person who acts or omits to do something in such a manner that causes common injury, danger or annoyance to the public or to the public in his vicinity or which might likely cause injury to any person, in general, enjoying any public right.

Besides, the above provisions using a drone might lead to criminal trespass and violation of privacy of people as because cameras might be attached to drones to click pictures of others against their will or it can be used to even bug them.

Flaws in the guidelines

It cannot be denied that the guidelines controlling the flying of drones had not been devised properly and not all the ramifications that are attached to the flying of drones both to the user and to the public at large have been considered. The rules more cater to the flying of manned aircraft at high altitudes rather than controlling the flying of UAFs at low altitude for the commercial and recreational purpose.

The guidelines restrict UAFs from flying in controlled airspaces. However, it aims to prevent the UAFs from colliding and causing harm. Flying drones at lower altitudes increase the risk of colliding with the landowners as well as other drones [11].

Indian courts have not yet received the opportunity to have a detailed inspection of the guidelines. According to the Indian judiciary, a person is allowed to use the airspace over his land till the limit that is necessary for the ordinary use and enjoyment of the land.

References

[1]http://www.dgca.nic.in/misc/draft%20circular/AT_Circular%20-%20Civil_UAS(Draft%20April%202016).pdf

[2]http://dgca.nic.in/public_notice/PN_UAS.pdf

[3]http://geoawesomeness.com/flying-drones-in-india/

[4]http://dgft.gov.in/Exim/2000/NOT/NOT16/Notification_No.16_(English).pdf

[5] Rule 3(7)[5], Aircraft Rules’ 1937.

[6] Rule 30, Aircraft Rules’ 1937

[7] Rules 31 – 37A, Aircraft Rules’ 1937

[8] Rule 49, Aircraft Rules’ 1937.

[9] Section 268, Indian Penal Code, 1860.

[10]http://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218

[11] Lakshmanan v. Ayyasamy, (2011) 6 MLJ 544 (Mad. H.C).