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Traversing Through The Contours Of Drone Rules 2021

In the year 2014, the Ministry of Civil Aviation had imposed a blanket ban on the use of civilian drones[i]. Later, draft regulations were formulated, and after many shortcomings, in December 2018, the first drone regulation in India came into effect. The legal framework took a progressive stand and aimed at addressing the grey areas after this, bringing into effect the new Drones Rules 2021[ii]. In India, the use of drones for civilian purposes is allowed. It is mandatory to follow certain guidelines while operating a drone in the country[iii].

This paper intends to analyze and focus on Unmanned Aerial Vehicles (UAV) and their regulatory landscape in India, and make a comparison between the Drone Rules 2021 and the regulatory framework that existed prior to this, in order to highlight the key differences. Further, the researcher aims to shed light on the privacy and public safety concerns raised by the civil use of UAVs.

Theoretical Background
The explanatory theory focuses on increasing the understanding of complex, confusing events or concepts. This is done by showing the conceptual relations and differences, providing frameworks for interpreting data[iv]. Explanatory theory can help in understanding the validity of a law and the legal structure. Explanatory theory can be used to understand the existing legal structure and to determine its validity.

Normative Jurisprudential Theories, explore the integrity of legal ideas to provide tests and theories on the justifiability of law[v]. The normative theory of law came into existence in the early twentieth century. Lawyers analyze the integrity of legal ideas and legal reasoning to rationalize the legal doctrine. There didn't exist any legal methodology prior to this theory; due to this, there arose no conflict between the both. The normative theory has indeed helped fill the gap that existed in the science of law and filled it [vi]. Normative theory can be used to analyze the applicability of the new legal frameworks.

The research questions are backed up based on the theories identified, to analyze the validity of the existing legal framework and to determine its applicability, especially to address the privacy concerns that are raised.

Literature Review
Rajeswari Pillai Rajagopalan, Rahul Krishna, Drones: Guidelines, Regulations, and Policy Gaps in India, Observer Research Foundation, 2018[vii]

The policies regarding drone regulation were in their evolving phase while this paper was written. The paper analyzed the policy gaps and argued against the unregulated use of Remotely Piloted Aircraft (RPAA) or drones. As technology is evolving at a rapid pace, so should the laws regulating it. Otherwise, there will be an impact on the company's security in multiple ways. The paper also analyses various international regulatory frameworks.

Ananth Padmanabhan, Civilian Drones and India's Regulatory Response, Carnegie, 2017[viii]
The access of airspace by Unmanned Aerial Vehicles (UAV) or drones for civilian use can raise various security concerns. While this paper was written, there wasn't a clear set of regulatory guidelines regarding the use of drones in India. The first comprehensive legislation relating to drones in India was the Civil Aviation Requirements (CAR) 2018[ix], which came into force in December 2018.

The paper argued that there should be an appropriate regulatory mechanism and proper rules regarding the use of Drones in India. The author touches upon a number of concerns on the use of drones. One of them is using drones as lethal weapons, and reference is made to the use of killer drones by the US military. Various policy recommendations are proposed in the paper.

Aishath Alsan Sadiq, The Doom of Drones: An Exploration of Policy Gaps in India [x]
During the period of publication, only the draft regulations for drones by the Directorate General of Civil Aviation were published. The paper argues that these guidelines passed by the DGCA in 2017 to be insufficient and that it doesn't ensure security and privacy. The paper addressed various policy gaps such as trespass, surveillance, privacy, quality/ control of imports, legal liability, standard operating protocol, etc. Even though there existed a lot of policy gaps and ambiguities, as a first stage in draft regulations the regulations cannot be completely ruled out as inefficient.

Ridha Aditya Nugraha, Deepika Jeyakodi, Thitipon Mahem, Urgency for Legal Framework on Drones: Lessons for Indonesia, India, and Thailand [xi]

The paper points out the importance for regulatory policies and mechanisms as the technology grows. The existing legal framework of Indonesia, India and Thailand is compared in this paper. Policy suggestions are given and the need for standard, uniform regulations are pointed out.

In light of all the above, rapid advancement in technologies related to Unmanned Aerial Vehicles (UAV) can be seen over the past few years. The paper argues that the legislation regulating these UAVs has not been evolving at the same pace. Drone based application in the field of infrastructure(45.2%) and agriculture (32.4%) has seen the most rapid growth in India.

There exist legislative gaps and ambiguities regarding various aspects related to the operation, possession, manufacturing, and importing of UAVs. The advancement of technology along with the ease of accessibility of drones to the customers has increased the security risks associated with the usage of drones in the airspace. Public safety and privacy for example are some of the key concerns that have not been addressed comprehensively so far.

An analysis of the Indian regulatory landscape
The first comprehensive legislation relating to drones in India was the Civil Aviation Requirements (CAR) 2018, which came into force in December 2018. Prior to this, there was no well-defined legislation on the use of drones. There existed a blanket ban on civilian drones in India by the Ministry of Civil and Aviation.

As a result of commercial drones being legal in India, there was an improvement in efficiency in various fields such as agriculture, surveillance, forest, media, disaster management etc[xii]. As the use of drones became widespread, it has been used in various fields of operation. Use of drones for 'last-mile' logistics by companies such as Amazon, Flipkart, Google, United Parcel Services (UPS), DHL etc, is one prominent example.

While looking into the use of drones for the 'last-mile' logistics, there are various positive aspects to this, such as reduce in energy consumption, air pollution, road congestion etc[xiii]. The potential of drones being used is really high, some key sectors are- agriculture, infrastructure, media and entertainment, insurance and mining[xiv]. After Civil Aviation Requirements 2018 was enacted, a task force was created keeping in mind the regulations, further policy recommendations, promotion and manufacturing of drones etc. This was led by the Minister of State for Civil Aviation.

Followed by the Civil Aviation Requirements 2018, the UAS Rules 2021 came into force on 12th March 2021. Much effective legislation soon replaced this, that is, the Drones Rules, 2021.

International Laws:
  • In China, the Civil Aviation Administration of China (CAAC), permits the flying of drones in China; however, there are certain compliances
  • In the United Kingdom, the Civil Aviation of the U.K. (CAA) regulates drone laws.
  • In the United States of America the U.S. Federal Aviation Authority (FAA) regulates the flying of drones.
  • In most countries like the United Arab Emirates, Sri Lanka, Saudi Arabia, Canada etc, it is legal to fly drones. However, in Morocco, the use of drones is banned. Such that if we take a drone into the country, it will be seized by the customs authority.

Even after the Civil Aviation Requirements 2018 legislation, there existed many grey areas and ambiguities related to the use of drones. The UAS Rules 2021 was put into force by the government on 12th March 2021. Instead of fulfilling the required amendments, the new rule brought in more complexities to the field of drone aviation. Various multi-level licensing and different other requirements were mandated, which made compliance to these practically impossible. And in case of non-compliance, the penalties were so high that there was no proper cap to it.

Seeking a change to this, the government introduced the new law, the Drones Rules, 2021. The new legislation strived to achieve a better and healthier balance between the safety and operability of drones. On 27 June 2021, there were drone attacks on Jammu Air Force Station; this made the government focus more on the safety and security risks associated with the operation of drones.

The privacy concern raised by UAVs
Earlier, when we heard the term Unmanned Aerial Vehicles (UAV), the mental picture that was formed was that of a military killing drone, at least for some of us. There have been huge improvements and developments in this field with respect to technological advancement; however, the law has not evolved at the same pace. As decentralized airspace access is provided to UAVs, they are gradually moving towards the public sphere. The scope of UAV is broad in public spheres such as agriculture, rescue operations, construction, aerial monitoring and mapping critical infrastructure, etc.

While arguing for the positive impacts of the UAVs on the public sphere, we should also look into the counterarguments. This brings us to the privacy concern that UAVs raise and the need for a well-defined rule to regulate them.Statistical data can be used to understand the rapid technological advancement in the field of UAVs. The advancement of technology along with the ease of accessibility to drones by the customers has increased the security risks associated with the usage of drones in the airspace. Public safety and privacy should be addressed through comprehensive legislation.

The right to privacy was recognized as a constitutional right of the citizens in Justice K. S. Puttaswamy v Union of India[xv]. The right to privacy can be violated in some instances where drones invade into the privacy of people. The operator of the UAV should be responsible as to ensure that the privacy norms are to be followed and not to be compromised in any manner. The legislation related to drones at present does not address any privacy concerns. There are no clear punitive sanctions in case of privacy violations.

Though the Drone Rules 2021 does not address privacy separately, there are other legislations that are related to the subject matter of privacy. Though these laws address privacy as a whole, when it comes to UAVs the laws get vague and it will be difficult for the court to interpret these laws. The judgment given in Justice K. S. Puttaswamy v Union of India, is the only jurisprudence shedding light on the privacy regulations.

These ambiguities in privacy concerns of UAVs can also be used by the government authorities for mass surveillance. One common instance across India during COVID-19 pandemic was that of police officials using drones for surveillance and collecting data in the form of videos to ensure that the lockdown norms were followed by the people. The UAS Rules 2021 had certain data and privacy protection measures. But as the UAS Rules 2021 was repealed by the new Drone Rules 2021, so were the privacy and data protection measures. The new legislation completely omitted addressing any privacy concerns.

Another important concern that needs to be addressed is the issue of trespass by UAVs. The rights of the property owners should be protected while also looking into the technological limitations of the UAVs. And in order to implement effective legislation, a balance between both of these should be attained.

The primary issue while addressing trespass of UAVs is the determination of vertical extension of a private property. The UAVs should be permitted to fly at a height where the reasonable use of a property by the owner is not hampered.
Though the legislations related to drones are evolving at a slow pace there are significant improvements and developments on the same. This can be understood from the various drone legislations that have been passed.

Judicial Decisions related to UAVs
In the case, Jagdev Damodaram v. Deputy Commissioner of Customs, Cochin [xvi], the petitioner who was a non-resident Indian, while returning to India carried a drone for use at his photo studio. The drone was detained by the customs department, alleging that the import of drones is prohibited. The petitioner made a request for release of the drone; however, the authority was forcing the petitioner to re-export the drone. The case was brought before a single bench judge.

It was argued by the learned counsel for the petitioner that even though drones came under the restricted category, they weren't prohibited from importing. And as per Sec. 80 of the Customs Act, 1962, only the import of prohibited goods can be detained. The council also argued that drones were available on online shopping and that engineering students used to assemble drones as part of their study.

The counsel for the respondent argued that according to the notification, the import of Unmanned Aircraft System (UAS) the drones came under the "restricted" category. It was also argued that for importing drones there required a prior clearance from the Directorate General of Civil Aviation (DGCA) and also license from Director General Foreign Trade (DGFT). Since the above-mentioned two requirements for importing drones were not met, the drones brought by the petitioner came under the category of "Prohibited goods" as defined under the Customs Act, 1962. The counsel argued that the ignorance of the law is not an excuse.

The counsel for the petitioner requested for provisional release of the drone after the payment of the fine, according to Sec. 110A of the Customs Act and various other judgments. A counter-argument was raised against the provisional release, stating that since there was no necessary license and permit required for the import, it couldn't be granted.

The writ petition was dismissed after hearing the arguments made by both counsels. The court held that the petitioner was not entitled to a direct release of the detained goods. At the time of this case, that is, in the year 2017, the use of drones was completely banned in India.

In the case, Alfa Click Innovations v. Commissioner of Customs, Bangalore [xvii], the appellant had filed an entry for the clearance of a remote control toy quadcopter and a remote control toy monster truck, declaring them as toys. The value of the imported goods was Rs. 2,77,761, involving a duty of Rs. 83,756. After examination, the toy truck was released, but the quadcopter was kept for further review.

The Director-General of Civil Aviation, New Delhi, which is the competent authority for Unmanned Aerial Vehicles (UAV), had issued a notification stating that they are in the process of formulating regulations on the use of UAV and till the regulations are launched, no one should launch an UAV. Further, according to a notification by the Directorate General of Foreign Trade (DGFT), the import of UAV without prior approval from DGCA and license from DGFT was classified as "restricted". A penalty of Rs. 17,000 was issued to the appellant.

The case was brought before a single bench judge. The learned counsel for the appellant argued that quadcopters were not drones and that they were available for purchase on online platforms such as Amazon and Flipkart. It was argued that there existed a clear distinction between drones and quadcopters. He further argued that the goods imported weighed less than 250 grams and thus falling under the category of Nano as per the DGCA Guidelines, and thus it required no Unmanned Aircraft Operator Permit.

The counsel for the appellant also pointed out that according to the classification by Civil Aviation Requirement (CAR) Nano, Micro category of UAV has been exempted from obtaining Unmanned Aircraft Operator permit and Unique Identification Number and can be operated without a license from DGFT.

The counsel for the defendant argued that the Commissioner (Appeals) had given reason for confiscation of the goods. It was submitted that the commissioner relied upon the decision of the High Court of Kerala in the case of Jagdev Damodaram v. Deputy Commissioner of Customs, Cochin[xviii]. Further, the defendant's counsel argued that the exceptions for nano and micro category of UAV were granted by the guidelines, which came into effect on 01/12/2018, whereas the impugned import was in 2017.

The court held that the drone in question was imported in the year 2017 by the appellant, during which the import of the same was banned and there existed restrictions by DGCA and DGFT. The appellant did not have permission from the DGCA and also did not have any license from DGFT for importing the drone. In view of the new regulations, the court permitted the confiscated goods to be exported by the appellant. The penalty which was imposed was set aside by the court on the grounds that there was no justification for the same.

By looking into these case laws, the impact of the new regulations can be seen; while earlier the import of drones was completely banned but according to the new regulations there were certain exemptions made.

Conclusion
India has a long way to go before reaching a well-structured legislation concerning UAVs. The use of drones for commercial purposes can be seen to have risen at an alarming rate, and as a result of this, various countries are struggling to adapt and incorporate new legislations relating to the same. The researcher suggests a policy, of having centralized guidelines, for the use of drones. Each country can further develop on these regulatory frameworks.

The law is vague in matters pertaining to privacy violations by UAVs. The law should elucidate more on the privacy concerns that are being raised and there should be new policy reforms.
The technologies related to Unmanned Aerial Vehicles (UAV) are becoming more advanced with time. While looking into all the legislation related to drones in India, the evolution and adaptation of the law can be seen. From a blanket ban on the use of drones to a set of legislation that didn't address every issue that existed. And later to the present legislation of the Drone Rules, 2021.

There was ambiguity or uncertainty that surrounded the drone industry prior to the new rules. The new rules have been successful in clearing it to an extent. However, even now there exist some pertinent concerns such as standards for imports, privacy, public safety which need to be addressed.

End-Notes:
  1. Padmanabhan, Ananth, et al. Civilian Drones: Privacy Challenges and Potential Resolution. New America, 2019, pp. 2537, The Promise of Public Interest Technology: In India and the United States.
  2. The Drones Rules, 2021
  3. Ahirwar, S., Swarnkar, R., Bhukya, S. and Namwade, G., 2019. Application of Drone in Agriculture. International Journal of Current Microbiology and Applied Sciences, 8(1), pp.2500-2505.
  4. Bayles, Michael D. "What Is Jurisprudence About? Theories, Definitions, Concepts, or Conceptions of Law?" Philosophical Topics, vol. 18, no. 1, 1990, pp. 2340.
  5. Kariuki Muigua, Normative Legal Theory: Its Evolution And Search For Structure And Unity In Law, (Aug. 07, 2018), http://kmco.co.ke/wp-content/uploads/2018/08/073_Normative_legal_theory.pdf.
  6. George E. Glos, The Normative Theory of Law, 11 Wm. & Mary L. Rev. 151 (1969).
  7. Rajagopalan, R. and Krishna, R., 2018. Drones: Guidelines, Regulations, and Policy Gaps in India. Observer Research Foundation, pp.1-30.
  8. Padmanabhan, A., 2017. Civilian Drones and India's Regulatory Response. Carnegie India, pp.1-34.
  9. Civil Aviation Requirements, Section 3 - Air Transport, Series X Part I, Issue I
  10. Sadiq, A., 2018. The Doom of Drones: An Exploration of Policy Gaps in India. The Law Brigade, 4(4), pp.1-13.
  11. Nugraha, R., Jeyakodi, D. and Mahem, T., 2016. Urgency for Legal Framework on Drones: Lessons for Indonesia, India, and Thailand. Indonesia Law Review, 6(2), pp.137-157.
  12. Mishra, S., 2019. India and the United States: The Time Has Come to Collaborate on Commercial Drones. New America, pp.109-119.
  13. Jones, T., 2017. International Commercial Drone Regulation and Drone Delivery Services. RAND, pp.1-38.
  14. Rajagopalan, R.P., & Krishna, R. (2019). India's Drone Policy: Domestic and Global Imperatives. ICAO Scientific Review: Analytics and Management Research, 1, 53-68.
  15. Bhandari, V., Kak, A., Parsheera, S., & Rahman, F. (2017). An Analysis of Puttaswamy: The Supreme Court's Privacy Verdict. IndraStra Global, (11), 5.
  16. Jagdev Damodaram v. Deputy Commissioner of Customs, Cochin [2017 (352) ELT 5 (Ker.)]
  17. Alfa Click Innovations v. Commissioner of Customs, Bangalore C/22007/2018-SM
  18. Jagdev Damodaram v. Deputy Commissioner of Customs, Cochin [2017 (352) ELT 5 (Ker.)]

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