A passenger on an Air India flight was charged with sexual harassment and public indiscretion. Shankar Mishra, the passenger, was allegedly drunk when he urinated on one of his co-passengers, a 72-year-old woman. The incident occurred in the business class cabin of a flight from New York to Delhi in late November of last year. Air India has since delisted a pilot and four cabin crew members on dereliction of duty charges. However, this incident raised serious concerns about the legal aspects of the situation. Whether it should be investigated under any Aviation law or under provisions of the Indian Penal Code. What are the legal perspectives in such cases, and who has jurisdiction over them?
Khurram Nizami, our correspondent, attempts to find an answer in a conversation with Aviation law expert Mr. Anik.
What does Aviation law say about those who have been arrested or are facing a trial? Were they charged under the IPC or the Aviation Act?
The Aviation law only addresses certain aspects of flight operations, such as ticketing and insurance. There is a rule that says, Aircraft Act 1934, and within this rule is a rule called Aircraft Rules, 1937. The rules only state
that if there is an incident, the authority will form a committee under the Civil Aviation and Regulatory Authority, and the authority will investigate and refer the matter to the police station to file a FIR. If you look into this case, you will find that there are no penal provisions under any Aviation law. The Aviation law only addresses operational issues, not penal provisions or crimes committed in the airspace. A preliminary investigation should take place to determine exactly what happened in the aircraft that needs to be investigated. The committee’s report will be forwarded to the local police station or the security police station that each airport has, and the incident will be registered and the perpetrator will be identified and punished under IPC.
KN: Why is it that Aviation law does not apply to these types of incidents in the air? But, if an aeroplane takes off from Paris and lands in Bombay or Delhi, and something happens in the airspace between, who should be contacted? Which country will then intervene?
ANIK: You see, when it comes to jurisdiction, you have two options. So, let me tell you, when we’re dealing with all of these current issues, we’re referring to laws passed in the 1930s or 1940s, and I believe there weren’t
many flights available at the time. As a result, I believe the legislature was unprepared for such allegations. So, there are no such penal provisions, but any such crime in the airspace will undoubtedly be dealt with by the local police. So, to answer your second question about jurisdiction, if a case occurs in Indian airspace or within Indian states, the jurisdiction definitely goes where the flight lands because destination is important here. However, when it comes to international airspace, the destination is always taken into account.
KN: Sir, a few incidents have come to light in which a flight takes off and some passengers are left behind, despite the fact that they were on time. What will happen under Aviation law in that case?
ANIK: If a person arrives late, he must face his own consequences; however, if the flight is delayed or rescheduled for more than 2 hours, the air carrier must fully refund their amount, according to Aviation law. There is even a law that states that the carrier must pay a penalty of up to 20,000 rupees.
KN: Recently, GoFirst flight took off from Bengaluru, leaving approximately 50 passengers behind. What will happen in this case because it is an operational aspect?
ANIK- So, what exactly happened in this incident? I’m not sure what happened exactly, but we’ve seen many articles and videos on social media and news channels about it. According to Aviation law, if a passenger is left behind and the flight departs before its scheduled time, they can file an application for compensation.
KN: One thing I’d like to ask you, Mr. Anik, is that you said it’s a very old Aviation law when these types of things weren’t happening, but a lot of things have changed over time, so has anything changed or any amendments been made in the Aviation law so far?
ANIK: See, I’m referring to the Aviation law,
which has many rules and acts, and specifically they frame some kind of guidance and rules, as there is no amendment bought in the section as of today. You are aware that most airports are overcrowded; we receive notifications from airlines about delays; in this situation, passengers must wait for long periods of time, and there is no law to regulate it, so airlines make their own rules.
KN: So, Sir, you’ve been practising Aviation law for a long time. When it comes to Aviation law in our country and other countries, what changes do you recommend to the current legal system?
ANIK: Let me tell you one thing: this law needs to be updated. If we look at the United States, France, or any other European country, the safety security is never breached. Personally, I believe that law enforcement should intervene over there so that they can respond quickly and resolve the issues, particularly for passengers fighting over luggage, boarding counters, gates, and so on. So, basically, I will say that there should be law enforcement agencies that handle all of these matters internally, and for security purposes, there should be a marshal or some other security mechanism. Third, after landing, if any luggage issues arise or any passenger encounters any issues of law and order, they should be reported.
KN: What about Western and other countries? Are European countries’ Aviation laws similar to those in India, or are they unique to Europe?
ANIK: The law is very small and not like India where we have different branches, rules, but if specifically speaking about how it operates, how it needs to get a licence, and what kind of fittings, or passenger sitting capacities, and some other small safety issues, and in other countries there is a checklist, you fill the checklist and get a licence, and for criminal issues they have marshalls to handle it. So, we have a lot of flaws, but no one has gone to court for these issues as of yet.