Notices were issued by the Delhi High Court to the Ministry of Civil Aviation (MCA), Ministry of Home Affairs (MHA), Director General of Civil Aviation (DGCA) and DG, Bureau of Civil Aviation Security on a plea challenging government’s decision to allow Sikhs to carry kirpans on domestic flights.

Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad have given 8 weeks time to the authorities for filing their response and listed the case for further consideration on November 15.

The court has refused to pass any interim order staying the notification as of now.The petitioner has been instructed by the court to delete the Cabinet Secretary from the array of parties.

The public interest litigation (PIL) was by filed by advocate Harsh Vibhore Singhal who  challenged the notification dated March 4, 2022 issued by the DGCA giving ‘exceptions to the people belonging to Sikh community for carrying kripan in flights.

The notification said that Sikhs will be allowed to carry a kirpan provided the length of its blade does not exceed six inches and its total length is not more than nine inches. A corrigendum was later issued allowing even Sikhs working at the airports to carry kirpan.

The plea argues that carrying kirpan in an aircraft has dangerous ramification for aviation safety and that there have been several instances in the past where they have used as a weapon to hijack the planes.The examples of 1981 and 1984 were cited to support the matter.

The plea cited the examples of 1981 and 1984 when such hijacking was carried out and the militants demanded release of prisoners arrested by the government.

The plea inquired that if carrying kirpan is ok only because of religion then, one would wonder how knitting needles, coconuts, screwdrivers and small penknives are deemed hazardous and prohibited.

The plea says “…the exception is not just for Indian citizens. Impugned Notifications do not distinguish applicability to Sikh Indian citizens and Sikhs from other nations can carry Kirpans on person whilst travelling in any Indian plane on domestic routes in India though laws of their respective countries may prohibit carrying of Kirpans in civilian flights there.

The Delhi High Court on Wednesday has disposed of its suo motu case of people not wearing masks in a Kolkata to Delhi Air India flight after the Directorate General of Civil Aviation (DGCA) informed that strict action is being taken against people not wearing masks properly.

The DGCA submitted that passengers who aren’t wearing masks properly after repeated warnings would be de-boarded from planes before departure and treated as being “unruly”. The submissions were made before a division bench of the Delhi High Court presided over by Justices Navin Chawla and C. Hari Shankar, who after the said submissions said that it hoped action would continue in the same spirit considering the safety of passengers given the Covid-19 infection.

The bench went on to say that it was initially planning to keep the suo motu matter open for continuous monitoring of the implementation of directions issued by the court earlier, but, after noticing the proactive action by DGCA, it has decided to close the case. The two judges also welcomed the step taken by the DGCA of initiating punitive action against the violators. 

During the course of the hearing, Additional Solicitor General (ASG) Chetan Sharma and Advocate Anjana Gosain submitted on behalf of DGCA that following the directions of the court, the civil aviation body has issued a circular on March 13 relating to strict guidelines to be followed in airports.

“On board the aircraft, in case any passenger does not adhere to wearing of mask properly even after repeated warning, he/ she should be de-boarded, if need be, before departure,” the circular stated.

“In case, any passenger on board an aircraft refuses to wear mask or violates the ‘Covid-19 Protocol for passengers’ even after repeated warnings, during the course of the fight, such passenger may be treated as ‘Unruly Passenger’ as defined… Civil Aviation Requirements (CAR)…and the procedure in respect of handling such unruly passenger, as provided in above mentioned CAR, shall be followed by the concerned airlines,” it said.

Advocate Gosain contended before the bench that in a Jammu to Delhi flight, on March 16, four passengers were declared unruly for not properly wearing masks and were handed over to the security officials while also adding that surprise checks would also be conducted by the authorities. 

“You have done a wonderful job. We are really impressed,” the bench remarked while also directing ASG to ensure that such steps are also taken in respect of other public transport like the railways and buses.

Justice Hari Shankar had on March 8 taken suo motu cognizance of the alarming situation where people travelling from Kolkata to Delhi on an Air India flight did not wear masks. “To the perception of the Court, such a situation, in the present scenario, when the country is seeing a resurgence of COVID-19 cases, after they had shown signs of ebbing, is completely unconscionable,” Justice Hari Shankar had then said.

The court had further said that passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from Covid, the effect on other passengers could be disastrous.

“It is a matter of common knowledge that being within arm’s length distance of a Covid carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus,” it had said.

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The Supreme Court has suggested that a credit shell, a time period of at least 2 years, be given for, within which passengers should be allowed to use that credit for travel on any route.   

A three-judge Bench of Justices Ashok Bhushan, Sanjay Kishan Kaul, and MR Shah today asked for a response from Airlines regarding the full refund of fare for airline tickets that are booked during the COVID-19 lockdown period while also directing the Ministry of Civil Aviation (MCA) to convene a meeting to sort the technicalities involved in this issue.

A petition was filed by Pravasi Legal Cell, an NGO before the Apex Court stating that airlines in India are violating the MCA order that had directed all the airlines to pay full amount of refund for tickets that were booked during the COVID-19 lockdown period. The failure of the airlines in refunding the amount of the flights that got cancelled due the pandemic and the subsequent imposition of the nationwide lockdown restricting movement of people is violative of Civil Aviation Requirement, 2008 issued by the Directorate General of Civil Aviation (DGCA). The airlines are not providing refund of the full amount and instead are only giving a credit shell to the citizens which will be valid for one year. 

The Court also issued notice today in the plea filed by Travel Agents Federation of India, which us a body of 1,400 travel service intermediaries and non-IATA members from all over India. The federation moved to the Apex Court seeking to intervene in the present petition filed regarding the refund of air tickets during the COVID-19 lockdown period. According to the intervention application  the office memorandum issued by MCA fell short of offering an effective and complete resolution to the plight of the passengers.

During the hearing Solicitor General Tushar Mehta stated that in his personal view money should be returned.

Senior Advocate Harish Salve, appearing on behalf of SpiceJet informed the Bench that the airlines have suffered a huge hit of 60 billion dollar globally due to the pandemic, have really low revenue and have already created a credit shell. 

The Court took note of the following issues during the hearing today: 

• Can the airlines give a credit that will work for customers or refund the tickets?

• The travel agents are often not paid in full for the tickets booked by the customers and there needs to be some credit facility for their benefit. 

Salve, stated that nowhere in the world are airlines refunding the complete fare, suggested to sit with the civil aviation ministry and come up with a solution.

The Supreme Court issued the following few directions in the hearing today: 

• Asked Centre to take a stand on this issue, 

• Centre and Airlines to discuss the modalities and file a response before the Court,

• Suggested that in the credit shell, a time period of at least 2 years should be given. Passengers should be allowed to use that credit for any route, 

• All airlines to be heard as parties and matter to be heard next after three weeks.

The MCA memorandum, in question in the present petitions was issued on April 16, by the Ministry of Civil Aviation (MCA) that had directed all airlines to refund the full amount collected for all tickets booked from March 25 to April 14, the first phase of the lockdown period. The airlines were also directed to refund the amount for cancellation of a ticket booked during the first lockdown phase for travel during the second lockdown period, without imposing any cancellation charges.

–India Legal Bureau

A Division bench of Bombay High Court comprised of Justice Surendra P. Tavade and Justice S.J. Kathwalla heard the matter, wherein they said that arguments with regard to the Interim Application stand concluded and the same is reserved for orders.

On the Last date of hearing, the Bombay High Court had sought clarification from the Expert Committee under the Chairmanship of the Secretary, Civil Aviation as to whether by a mere touch of a person carrying COVID-19 virus, the virus can be transmitted to the person so touched.

During the course hearing, the respondents including DGCA, other airlines and Union of India through Ministry of Civil Aviation had emphasised on the minutes of the meeting of the Expert Committee held on 26th May, 2020, under the Chairmanship of the Secretary, Civil Aviation, to review and further strengthen the public health related protocols of air travel.

On 31st May, 2020, the Director General of Civil Aviation (DGCA) has issued directions or the Airlines in which it was mentioned that “if middle seat/ seat between two passengers is occupied due to passenger load, then additional protective equipment like “wrap around gown” (Ministry of Textiles approved standards) will be provided to the individual occupying the intervening seat in addition to the three-layer face mask and face shield”.

Earlier, the Supreme Court had allowed Air India to operate international flights with occupancy in middle seats for 10 days. The courts direction were passed on a petition filed by the Centre and Air India after Bombay high court questioned why the airline was not keeping the middle seats vacant in international flights.

“Air India shall be allowed to operate non-scheduled foreign flights with middle seats occupied for ten days: The Chief Justice of India S A Bobde had said “you should be worried about the health of the citizens not about the health of a commercial airline.”

Read the order here;

-India Legal Bureau

The Supreme Court on Monday allowed Air India to operate international flights with occupancy in middle seats. The court was hearing a petition filed by the Centre and Air India after Bombay high court questioned why the airline was not keeping the middle seats vacant in international flights.

“Air India shall be allowed to operate non-scheduled foreign flights with middle seats occupied for ten days: The Chief Justrice of India S A Bobde said “you should be worried about the health of the citizens not about the health of a commercial airline.”

A division bench presided by Chief Justice of India S.A. Bobde, Justice A.S. Bopanna, and Justice Hrishikesh Roy of Supreme Court while conducting hearing through video conferencing further stated that the matter will be looked at again in ten days and in the meantime has asked the Bombay High Court to pass an interim order after hearing all the parties. The bench has also given DGCA a free hand to alter any norms it may consider appropriate during the pendency of the matter.

Solicitor General Tushar Mehta appearing for the Central Government and Air India submitted before the Court that the Interim order given by the Bombay High Court relies on the pre-lockdown circular dated 18^th March, and applies only to the non-scheduled domestic flights. Whereas, the Bench contended by saying that it applies to Airports and Airlines.

Mehta further submitted that a meeting of experts was held on 4^th May. Wherein, it was discussed that the aircraft has a system of HPCA, and is one of the reasons for deciding to leave the middle seat vacant.

The bench raised a question that, “There is no difference between International and Domestic Flights?” Whereas, Mehta answered by saying that there is no difference. The court further stated that there shouldn’t be a difference, it is a common sense that maintaining social distancing is important.

The centre and the state run Air India had approached the Supreme Court in an urgent plea against the Bombay HC order challenging the decision to keep middle seats vacant in flights scheduled to fly from Monday. The plea was heard on an urgent basis.

In its order, the HC had directed Air India to keep middle seats vacant on international flights. Moreover, the HC asked Air India to comply with the Director of General Civil Aviation’s “social distancing” circulation, which required middle seats to be kept vacant on international flights.

Read the Order Here;

-India Legal Bureau