Old Wine in New Bottle?

By Shobha John

The draft Aircraft Bill, 2023, introduced by the Ministry of Civil Aviation on May 30, 2023, has created ripples in a community at the core of civil aviation—pilots.

In a letter to the Ministry on June 28, 2023, the Federation of Indian Pilots (FIP) voiced concerns about “harsh or ambiguous provisions” framed by the Directorate General of Civil Aviation (DGCA) which have in the past affected pilots’ fundamental rights, welfare, employment terms and career progression, thereby affecting safety.

Incidentally, FIP has some 5,000 licensed, serving and retired pilots from scheduled airlines, non-scheduled operators and general aviation operations.

The Bill was brought in to ensure the safety and efficiency of air transportation and address existing and emerging challenges facing it. Some of the issues faced by the aviators, claims FIP, have not been taken note of by the DGCA. These include:

  • Long duty hours: Pilots often work long hours, leading to inadequate post and preflight rest periods resulting in fatigue and safety being compromised. The FIP challenged Civil Aviation Requirement (CAR), Section 7 pertaining to Flight Crew Standards Training and Licensing, where the DGCA reduced rest periods. A writ petition titled as FIP vs DGCA of 2023 is before the Delhi High Court.
  • Poor working environment: Inadequate monitoring of occupational health, combined with unstable and punishing schedules may subject pilots to an unfavourable environment. FIP said that some pilots may be compelled to work without receiving proper compensation due to coercive employment terms and regulatory indifference.
  • Airline safety management systems: While these systems are an integral part of aviation safety and required by many regulatory bodies around the world, in India, SMS implementation is often left to the discretion of airlines. FIP has urged that the Aircraft Act be amended to include provisions for the mandatory establishment of SMS by airlines in India using robust and foolproof processes. It wants scientifically tested principles and performance vigilance tools to actively monitor fatigue and levels of alertness at work.
  • Mandatory long notice periods: It is mandatory for commanders to give a notice period of at least a year and for co-pilots, six months, before they leave their jobs. But FIP has rightly said that no other regulator in the world interferes with notice periods as this is an issue between employer and employee. This too has been challenged in the Delhi High Court.

A senior pilot told India Legal that some airlines under financial stress had not paid their pilots, leaving them mentally stressed and affecting work. “If these unpaid pilots put in their papers and want to join another airline, they are not allowed to leave. Are such airlines pulled up for transgression of the terms of the contract? The DGCA as a regulator is meant to intervene in the larger interest of air safety, which it has not done,” he said. “But when airlines cancel flights, isn’t public interest hit then? Is a notice period given to them?”

Incidentally, this tough notice period was instituted by the DGCA some two decades back when airlines faced a drastic pilot shortage due to many of them being poached by rival airlines. This caused disruption in flights and uproar from the general public. But then, it is a free market economy and people can leave for better opportunities. Sadly, the notice period has continued even as more airlines have dotted the sky and pilots swamped the industry.

  • Need for fair and transparent appellate mechanisms: The FIP has alleged that the DGCA has unrestricted control over pilots, resulting in frequent suspensions of their licenses and limited opportunities for recourse. FIP wants a more transparent system which can be achieved by separating regulatory, investigative, adjudicatory and appellate functions so that no single entity possesses unchecked authority.

Coming to the draft Bill itself, FIP said that while its preamble states that the underlying intent was to enact better statutory provisions for regulation and to remove the redundancies in the 1934 Act, in reality, it does not repeal any of the said rules, notifications, regulations and orders.

Other objections raised by FIP include Section 10(2)(d) of the Bill which authorises the centre to require cancellation, suspension or surrender of any licence or certificate with regards the investigation of accidents. Also, Section 13(1)(a) provides for cancellation or suspension of license or certificate in the interest of public safety or tranquillity. But what these conditions are is not clear. FIP fears that in the absence of any guidelines by the government, the above provisions may be used against the interests of pilots. So it has urged the ministry for a proviso to the effect that “such revocation, suspension or cancellation of any license or approvals, shall not be done without providing a due opportunity of being heard to the alleged offender and issuing guidelines in which his role may be correlated to the offence committed and only a proportionate/reasonable penalty is levied for the same”.

Also, Section 21 provides penalty for flying in such a manner as to cause danger to any person or to any property on land or water or in the air, with imprisonment which may extend to two years or with a fine which may extend to Rs one crore or with both. The government also has powers under Sections 28 and 20(4) to make rules imposing further punishment and fines to pilots. This has naturally not gone down well with the FIP. It has said that the penalty is seemingly disproportionate and harsh for pilots and others related to aviation. It also wants a differentiation between airline operators and pilots in case of such offences to avoid a mechanical levying.

Another sticking point is Section 27(2) of the Bill which provides that on being satisfied that there has been a contravention of the provisions of the Act or rules by any person, the government or any officer authorised under sub-section (1) may, by an order in writing suspend or cancel the licence, certificate or approval; or impose restrictions on them. Interestingly, the appeal is to the government itself.

The FIP has alleged that pilots and other stakeholders have to contend with arbitrary and high-handed decisions made by airlines and authorities in various court proceedings in India. Already, such cases are going on in various courts. FIP suggests an independent Tribunal and Appellate Tribunal to examine the legality and validity of various orders, guidelines, CARs, rules, regulations, etc., issued by various governing bodies under the new Act. The Tribunals should also have jurisdiction over disputes between various stakeholders of civil aviation, including between pilots and airlines, and between pilots and authorities constituted under the new Act.

Section 36 of the draft Bill is another area of conflict as it says that the government may direct that the powers exercisable by it under this Act may also be exercisable by the DGCA or any other officer or authority specifically empowered by it. But FIP says this provides scope for misuse as the DGCA has used such residual powers to frame guidelines which they were not empowered under the Act. “In several cases, for example, the abuse of this provision has led to pilots serving the one-year notice period with loss of pay, loss of opportunity, not being paid their legitimate dues and being coerced to sign instruments in favour of airlines that create onerous employment terms,” said the FIP.

FIP has also said that without access to the draft rules containing the suggested amendments, it is not possible to conduct a precise analysis of their potential impact. “The bill does not provide sufficient clarity on safety regulations and could lead to confusion and inconsistencies in the regulation of civil aviation in India,” it said.

FIP also mentioned that a Parliamentary Standing Committee on Transport, Tourism and Culture, in its 168th Report had recommended the setting up a Civil Aviation Authority (CAA) with the required autonomy to take care of the problems that DGCA is currently facing. The CAA’s responsibilities were proposed to encompass all duties assigned to the DGCA under the Aircraft Act of 1934. But that never took off.

In the final analysis, the FIP said that the Draft Aircraft Bill, 2023, was just a case of “Old Wine in a New Bottle”. None of the key issues leading to the tabling of the Civil Aviation Authority of India Bill 2013 had been addressed. Also, there is not enough clarity on safety regulations and whether it could reduce inconsistencies in the regulation of civil aviation in India. A robust and clear legislative framework for this sector is the need of the hour, it said.

Till then, clouds of confusion will continue over various aspects of civil aviation.