Introduction
On 4 June 2020, the Ministry of Civil Aviation (“MoCA”) released a draft of the ‘Unmanned Aircraft System Rules, 2020’ (“Rules/ Draft UAS Rules”).[1] Once enacted, these rules will replace the existing Civil Aviation Requirements (“CAR”) on “Requirements for Operation of Civil Remotely Piloted Aircraft System”[2] which were issued by the Director General of Civil Aviation (“DGCA”) in August 2018.
The Draft Rules seek to make a clean separation between drone regulations and other regulations applicable to conventional manned aviation. They create an enabling framework for drone regulations in India and much of the substance of this framework will come from subsequent CARs issued under these rules.
The Rules are currently open for stakeholder comments until 3 July, 2020. Thereafter the government can take up to six months to finalise and notify the Rules[3] (although it can do so much sooner). Within 15 days of notification, the Rules must be tabled in Parliament. Thereafter, Parliament has 30 days to make any modifications, although this power is seldom used. Importantly, once notified, the Rules remain in force even during the 30-day period when they are pending in Parliament. We could see these Rules notified as early as the end of July 2020.
The Draft Rules retain many features of the existing CAR, while at the same time introducing some significant differences. In this post, we have compared the Draft Rules with the existing CAR and the Guidance Manual[4] issued by DGCA in relation to the CAR. A tabular comparison is given below:
| S.No. | Theme | Draft UAS Rules | CAR and Guidance Manual | Observations |
| 1. | Territorial and material scope | Territorial applicability extends to the whole of India and shall also apply to : (i) Unmanned Aircraft System (“UAS”) registered in India (wherever they may be) or, (ii) a person owning / possessing / engaged in importing, manufacturing, trading, leasing, operating, transferring or maintaining a UAS in India or, (iii) all UAS for the time being in or over India.[5] | Applicable to Civil Remotely Piloted Aircraft Systems (“RPAS”), which are unmanned aircrafts remotely piloted from a remote pilot station.[6] | The CAR does not specifically mention its territorial and material applicability as mentioned in the Draft UAS Rules. The Draft UAS Rules introduce extra-territorial application as they apply to UAS registered in India, even when outside of India. |
| 2. | Definitions | Many new definitions have been introduced, such as: Authorised UAS Operator / Importer / Manufacturer / Owner / Trader; Beyond Visual Line-of-Sight Operation (“BVLOS”); Contracting State; Drone Corridor; Drone Port; UAS Traffic Management. | All the terms defined in the CAR have been covered under the Draft UAS Rules. | The Draft UAS Rules are more exhaustive as compared to the CAR. Many new terms have been introduced. |
| 3. | Classification and categorisation | UAS has three categorisations: (i) Remotely Piloted Aircraft System; (ii) Model RPAS and (iii) Autonomous UAS.[7] Unmanned Aircraft (“UA”) is classified as: Nano[8], Micro, Small, Medium and Large.[9] | The categories of UAS are the same.[10] Civil RPAS is classified as: Nano, Micro, Small, Medium and Large.[11] | The categories and classifications under both are the same. Both, UA under Draft UAS Rules and Civil RPA under CAR, are classified on the basis of Maximum All-Up-Weight (including payload). Notably, The draft rules state that Nano class UAs shall be regarded in the next higher category if they exceeds either: (i) maximum speed in level flight limited to 15 meters/second; or (ii) maximum attainable height limited to 15 meters and range limited to 100 meter from the remote pilot. |
| 4. | Authorised Persons, Authorised Activities and Unique Authorisation Number | The Rules introduce a concept of ‘Authorised Persons’ for importers, manufacturers, traders, owners, or operators of UAS. Only such persons are allowed to undertake activities such as importing, manufacturing, purchasing, selling, trading, owning, and operating in relation to UAS in India.[12] Any persons undertaking these activities without authorisation will attract penalties under Schedule XII of the Rules. Unique Authorisation Number (“UAN”): The above-mentioned have to make an application to obtain an authorisation number to act as Authorised Persons under the Rules. The Director-General (“DGCA”), upon his satisfaction, shall grant a UAN to the applicant,[13] which shall remain valid for a specified period, subject to a maximum period of five years. The same may be renewed for another five years at a time by filing a renewal application.[14] | There is no concept of ‘Authorised Persons’ or ‘Unique Authorisation Number’. | Under the Draft UAS Rules, every participant in the ecosystem needs to be registered with and authorised by the DGCA. Similar to the CAR, the eligibility criteria for authorisation are such that the principal place of business, directorship, majority shareholding, ownership, and effective control have to vest in India/Indian nationals.[15] |
| 5. | Import | The ‘Authorised UAS Importer’ needs to make an application to the DGCA for import clearance to import UAS or its part or component in India.[16] Once received, then the Diector General of Foreign Trade (“DGFT”) may issue an import license.[17] The Authorised UAS Importer also needs to procure a ‘certificate of manufacture’. | The applicant needs to apply to the DGCA for import clearance and DGFT for import license.[18] | Unlike the CAR, the Draft UAS Rules require import clearance for “parts or components” as well. The requirement of ‘certificate of manufacture’ is new under the Draft UAS Rules. |
| 6. | Manufacturing | Only ‘Authorised UAS Manufacturer’ can manufacture in India.[19] A ‘certificate of manufacture’ is required to be obtained with respect to UAS manufactured or imported in India.[20] An authorised manufacturing organisation for UAS needs to comply with DGCA specified requirements and shall be subject to inspection and safety oversight by the DGCA.[21] | Manufacturers of RPAS are not regulated through the CAR[22]. The CAR lays down some minimum standards for manufacturing of RPAS (both Indian and Foreign) in Annexure-XIV.[23] The DGCA RPAS Guidance Manual provides a checklist for manufacture that lists out compliance requirements with various design, structure, material and documentation parameters.[24] | Under the Draft UAS Rules, the DGCA undertakes inspection and safety oversight of the manufacturing organisation to ensure compliance with the DGCA’s requirements. No such power exists with the DGCA under the CAR. There is no equivalent of the checklist for manufacture specified in Draft UAS Rules. |
| 7. | Testing laboratories and organisations | For purposes of certification of a UAS, the DGCA may appoint testing laboratories or organisations to carry out testing for the purposes of certification of UAS to ensure compliance with manufacture and design requirements of the UAS.[25] The applicant is required to submit design documents along with the UAS, to the testing laboratory.[26] The testing laboratory shall then submit a test report and recommendations to the DGCA based on which DGCA will issue a certificate of manufacture for the UAS.[27] Testing sites: There is no mention of identified areas where testing/demonstration of UAS can take place. | There is no mention of such testing laboratories or organisations in the CAR. However, the Guidance Manual does mention “certifying agencies” appointed by the DGCA for certifying that the minimum manufacturing standards are complied with. Testing sites: Identified areas where testing/demonstration of RPAS can take place is provided for.[28] | The Draft UAS Rules do not contain a list of testing site where research and development and testing activities can take place. |
| 8. | Equipment | The equipment requirements are largely the same as the CAR. [29] However, unlike the CAR limited exemptions only apply to nano category. Also, for small and above category it is necessary to be equipped with an emergency recovery system. | Nano and micro category are exempt from: SSR transponder or ADS-B Out; Barometric equipment; Geo-fencing capability; Detect and avoid capability.[30] | The Draft Rules have equipment exemptions only for nano category (none for micro). A requirement of an emergency recovery system has been mandated for small and above categories. |
| 9. | Maintenance | (i) Every manufacturer or importer of UAS mandatorily needs to supply a maintenance manual containing the maintenance requirements and procedures, to provide necessary training for the same, and to ensure that a UAS is maintained as per its maintenance manual.[31] (ii) Authorised maintenance centres may be set up with trained personnel for such maintenance.[32] (iii) Owners and operators have to ensure that UAS is maintained as per the manual.[33] Record of such maintenance to be kept by DGCA.[34] | (i) The RPAS Guidance Manual provides for a maintenance manual. The CAR only refers to the manufacturer’s maintenance guidelines. (ii) The maintenance and repair of RPAS and ground control equipment is to be undertaken under the manufacturer’s approved procedure and recommended inspection and overhaul intervention.[35] (iii) RPA operators have to ensure that RPAS are maintained as per the manufacturer’s maintenance guidelines.[36] Such records shall be kept in the RPA Logbook.[37] | Both cover maintenance requirements of UAS and RPAS, such as maintenance manuals and guidelines.[38] The Draft UAS Rules make these mandatory, whereas it is not so under the DGCA Guidance Manual. |
| 10. | Unique Identification Number | An ‘Authorised UAS Importer or Manufacturer’ shall make an application to the DGCA to acquire a valid UIN.[39] No UA shall be owned or operated in India without a UIN.[40] A compliant UAS under these Rules is one which is compliant with its requirements, such as the manufacturing requirements mentioned in Schedule II and with a valid UIN.[41] Such UIN shall be affixed on the UA in an identifiable and visible manner.[42] | Civil RPAS shall require a UIN from the DG.[43] Owners, lessees, and operators are required to get UIN. The RPAS in Nano category intended to fly upto 50 feet above ground level and RPAS owned / operated by certain government agencies are exempted from obtaining a UIN.[44] | Under both, there are common requirements to obtain a UIN and submit the application on the Digital Sky Platform (“DSP”).[45] Under the Rules the obligation to apply for a UIN is on the Importer or Manufacturer. The Draft UAS Rules do not exempt nano category of UAS from obtaining a UIN. |
| 11. | Change of ownership or loss | The registered owner of the UAS shall notify the DGCA ifthere is a (i) transfer in ownership of a registered UAS; or (ii) a registered UAS ceases to be owned wholly by the registered owner; or (iii) UAS is damaged beyond repair; or (iv) loss of UAS.[46] The DGCA can deregister the UIN of a UA if he is satisfied that the UA is destroyed, permanently withdrawn from use, missing and non-traceable or the owner has transferred legal custody and control of the UAS to a person outside India.[47] | The RPA Operator shall to inform the DGCA in case of: (i) loss of RPA (need to report to local police and Bureau of Civil Aviation Security too)[48]; (ii) any accident / incident involving RPA; (iii) such damage that the RPA cannot be restored to original condition, then the same shall be notified to DGCA for cancellation of UIN.[49] | Both cover the manner and procedure in case of loss or damage to a UAS. However, CAR allows the cancellation of UIN of the RPAS in certain cases whereas the Draft UAS Rules allow the deregistration of UIN of the UA. |
| 12. | Transfer | Each transaction of transfer of UAS shall result in linkage of UIN with the UAN of the transferee.[50] (i) Transfer: Unless approved otherwise by the DG,the sale, lease or transfer of UAS is permissible only between ‘Authorised UAS Traders’ [51] as per procedure under Schedule IV. (ii) Sale: An ‘Authorised UAS Importer or Manufacturer’ shall not sell a UAS to any person except to an ‘Authorised UAS Trader’ or an ‘Authorised UAS Owner’ in India.[52] (iii) Lease: An ‘Authorised UAS Importer or Manufacturer or Trader’ shall not lease a UAS in India to any person except to an ‘Authorised UAS Trader’ or an ‘Authorised UAS Owner‘ or an ‘Authorised UAS Operator’ in India.[53] | Permission by the DGCA is required if the RPAS (issued with UIN) needs to be sold or disposed-off in any way to any person or firm.[54] | The Draft Rules deal with the transfer, sale or lease of UAS extensively, prohibiting such activities unless done by Authorised Persons. |
| 13. | Operations | Operation: UAS are permitted to fly only in permissible areas. The UAS needs to be operated by an ‘Authorised UAS Operator’ and needs to be a Compliant UAS to operate in India.[55] Unmanned Aircraft Operator Permit: The UAOP shall be issued by the DGCA which will remain valid for five years unless cancelled or suspended. It shall be non-transferrable.[56] The Central Government has power to exempt any government agency from requirements of permit in national interest or security of India.[57] No Permission – No Takeoff Policy (“NPNT”): There is a NPNT policy for UAS in place. To obtain a certificate of manufacture, the UAS needs to be ‘No Permission-No Takeoff’ compliant.[58] No flight (except Nano) shall take place unless permission is obtained through an online platform in the manner and procedure specified by the DGCA.[59] | Operation: RPA’s are prohibited to fly in the areas which come under Paragraph 13.1. Unmanned Aircraft Operator Permit: Civil RPA operators shall require UAOP from the DG.[60] The application needs to be submitted through the Digital Sky Platform (“DSP”).[61] The UAOP shall remain valid for five years from the date of issue[62] and it is non-transferable.[63] Exemption: Certain entities such as Nano RPA operating below 50 feet in controlled premises and Micro RPA operating below 200 feet in uncontrolled premises are exempted from the requirement of UAOP.[64] NPNT: There is a NPNT policy for RPA in place. All RPA (except Nano) need to be NPNT compliant. Manufacturer’s certificate of compliance for NPNT is needed for issue of UIN, [65] except for nano.[66] There is a requirement to maintain a RPA as per its flight manual / manufacturer’s operating manual[67] and maintenance guidelines.[68] | Both have the common requirement to obtain a permit to operate the UAS or the Civil RPAS and the permit is non-transferrable under both. Under the Draft UAS Rule only Nano class can operate without a UAS Operator Permit[69], a Qualified Remote Pilot[70] or a UAS Pilot License.[71] The terms ‘national interest’ and ‘security of India’ are not defined under the Draft UAS Rules. The Central Government recently exercised a similar power under rule 160 of the Aircraft Rules, 1937 to grant “conditional exemption” to the Ministry of Agriculture and Farmer Welfare to operate RPAS for anti-locust operations[72] and to tackle challenges posed by Covid-19.[73] The permission to use RPAS for Covid-19 purposes must be obtained from the MoCA’s ‘Government Authorisation for Relief Using Drones’ portal. |
| 14. | Training | The Rules create two types of pilots- a ‘Qualified Remote Pilot’[74] and a ‘Licensed Remote Pilot’. No license/qualification is needed for Nano category. Qualification is needed for Micro and a License is needed for all categories above Micro. A ‘Qualified Remote Pilot’ needs to undergo the required training imparted by an authorised training organisation as per procedure under Schedule VII.[75] The DGCA shall issue the UAS pilot license as per procedure in Schedule VII.[76] | A Remote Pilot is one who has attained the age of 18 years, and undergone ground / practical training which can be obtained at any DGCA approved Flying Training Organisation.[77] | The Rules formalise the training process and create 3 categories of pilots- (i) Untrained- Can only pilot Nano (ii) Qualified- Can pilot nano and micro. (iii) Licensed- Can pilot all categories. |
| 15. | Prohibited activities | These include: (i) Flying or assisting a UA over the no operation areas mentioned in Schedule VIII, except in accordance with the conditions of the Central Government. [78] (ii) Photography in non-permissible areas.[79] (iii) Carrying any payload without permission from the DG.[80] (iv) Carriage of arms, ammunition, explosives, military stores, etc. without written permission of the Central Government.[81] (v) Dropping of articles from a UAS in motion except in accordance to the manner and procedure specified by the DG.[82] The Director-General may permit flying of UA in select restricted areas on request made by any Government Authority or any airport Operator in exceptional circumstances.[83] | These include: (i) Areas where RPA should not be flown.[84] (ii) Aerial photography or remote sensing survey over areas where it is not allowed to fly an RPA, without express authorisation from the DGCA and the Ministry of Defence.[85] (iii) Transport of any hazardous material such as explosives or animal or human payload.[86] (iv) Discharge or dropping substances unless specially cleared and mentioned in the UAOP.[87] | The Draft UAS Rules contain certain provisions on prohibited activities which are similar to those in the CAR, such as restrictions on aerial photography, no operation area, carrying payload and discharging articles from the vehicles in motion, etc. The Draft UAS Rules allow for carriage of arms, ammunition, etc. after obtaining written permission by the Central Government. However, the transfer of hazardous material is expressly prohibited under CAR. The CAR only provides for seeking exemption for aerial photography in no operation areas. However, Draft UAS Rules only provide for exemption for flights in no operation areas. l0,uhlCAR provides for an application requesting grant of permission for aerial photography from the Ministry of Defence, whereas Draft UAS Rules do not provide for a corresponding provision. |
| 16. | Privacy | The UAS operator permit holder is required to ensure the privacy of the individual and his property during operation.[88] An image may be captured from the UA after ensuring privacy of a person and his property.[89] | RPA operators are liable to ensure privacy norms of any entity are not compromised.[90] The DGCA RPAS Guidance Manual specifies under guiding design principles that the following privacy principles must be embedded in the design of every RPAS: (i) Proactive efforts must be made to protect privacy and not reactive; approach must be preventative and not remedial; (ii) Privacy must be the default setting; (iii) Visibility and transparency must be maintained in the design of the RPAS; and (iv) All stakeholders’ privacy must be respected.[91] | Both Draft UAS Rules and CAR specify privacy compliance must be ensured, however the former specifies the requirement through the words: ‘privacy of a person and property’ whereas the latter states compliance with ‘privacy norms of an entity’. The Drone Ecosystem Policy Drone Map, 2019 included a recommendation on protection of personal data arising from the operation of UAS and privacy by design. The Policy recommends that the manufacturer must ensure that the functional design of the UAS enables privacy as a default setting. Further, the DSP collecting any personal data must be required to establish feedback and review mechanisms that include requests to access, anonymity, or erasure of data principal’s data. Remote pilots must acquire knowledge of relevant Indian privacy and data protection regulations. The privacy principles specified by the DGCA RPAS Guidance Manual and the privacy requirements highlighted by the Policy have no mention in the Draft UAS Rules. |
| 17. | Flying safety requirements | The Rules of Air under the Aircraft Rules, 1937 issued by the DGCA need to be complied with by every person engaged in operation of UAS.[92] Dangerous flying: The Rules also describe situations of dangerous flying when the flying of a UAS causes unnecessary danger to any person or property. It expressly prohibits any person to operate a UAS in a physical / mental condition or under influence of intoxication and psychoactive substances.[93] General safety: It is prohibited to undertake any actions that cause safety and security concerns of a UAS operation or of any person or property; or endanger safety and security of a manned aircraft or its operation. However, if UAS operation is approved under Rule 50 (1) to prevent any unlawful activity, then it shall not amount to violation of this rule.[94] | (i) RPA operations shall be conducted only when the following meteorological conditions exist: a) between sunrise and sunset; b) with a minimum ground visibility of 5 km and cloud ceiling not less than 1500 feet; c) with surface winds of not more than 10 knots or as specified by the manufacturer; amd d) with No precipitation (rain, hail or snow) or thunderstorm activities. (ii) RPA operator shall prepare the Standard Operating Procedures relating to take-off/landing, collision avoidance, noise abatement, local airspace restrictions, communications, etc.[95] (iii) Remote pilot to not fly the RPA unless he/ she is reasonably satisfied that all the control systems of the RPA including the radio and Command & Control link are in working condition before the flight.[96] (iv) Safety risk assessment needs to be carried out by the RPA operator of the RPA operations including that of launch and recovery sites.[97] (v) Designated safe areas need to be demarcated for emergency RPA holding and flight terminations.[98] General Safety: The RPA should not be flown in a manner that causes danger to any person or property.[99] | Both rules lay down procedures that need to be complied with for safe and secure UAS or RPA operations and that they do not pose danger to any person or property. In the Draft UAS Rules, it is explicitly stated in Rule 40 that operating a UAS under physical/mental condition or under influence of intoxication and psychoactive substances or that causes unnecessary danger is prohibited. There is no such express prohibition or rules of operating RPAS under intoxicated substances or unstable conditions. This explicit condition is an advancement towards ensuring that UAS Operators operate safely and any violation of the provision can hold them liable. However, the Draft UAS Rules do not specify any meteorological conditions to be ensured before taking flight. It also does not speak about safety risk assessments and designated safe areas. |
| 18. | Drone Ports and Drone Corridor | The concepts of drone ports and drone corridors are introduced under Rule 42.[100] Drone port : Drone port refers to any area on land or water intended to be used for arrival, departure, and related activities of a UA. They are to be set up by obtaining a license from the DGCA.[101] The license’s validity lasts for a period of five years and can be renewed for a period not exceeding five years at a time.[102] Drone Corridor: Drone corridor refers to a segregated airspace or path defined by competent authorities for the operation of UAS. There is no provision that specifies the requirements to be met to establish a drone corridor. | Drone port and drone corridor : There is no corresponding provision for establishment of a drone port or a drone corridor. Launch and recovery site : A launch and recovery site needs to be used for arrival and departure of a UA.[103] CAR provides for ‘segregated airspace’ as an airspace of specified dimensions allocated for the exclusive use of a specified user.[104] It further provides that ‘take off and landing’ should take place in areas properly segregated from public access.[105] | Under the Draft UAS Rules, introduce new concepts of drone port and drone corridors. Drone ports will facilitate the growth of the delivery industry.[106] The provision for drone ports is in accordance with the Drone Ecosystem Policy Roadmap released by the Ministry of Civil Aviation in January, 2019.[107] The Draft UAS Rules specify drone corridors must be established in permitted areas, however there is no provision specifying the requirements that need to be met to establish the said corridor. The drone corridors, if set up, will ensure that the UA operates in the designated areas only, preventing possibilities of air traffic accidents. This is in line with practices adopted by other countries.[108] |
| 19. | Air Traffic Management | The Central government has the power to establish an Unmanned Aircraft Traffic Management System (“UTM”) in the Indian airspace to facilitate UAS operations.[109] UTM personnel are equipped with the task of managing air traffic. It is required for a person in UAS Traffic Management, to obtain a license by submitting an application in Form UA-11 through the DSP. [110] Further, persons must obtain training as imparted by an authorised training organisation.[111] | The RPA operator needs to ensure that the RPA is operated safely and remains clear of all manned/unmanned air traffic, terrain, and obstacles.[112] | The Draft UAS Rules establish a UTM set-up wherein the air traffic is managed by personnel who have obtained the required training and license to engage in providing air traffic management services. The establishment of UTM ensures that the UA traffic is integrated with other existing air traffic in an efficient manner. [113] This is in line with the recommendations of the Drone Ecosystem Policy Roadmap, 2019 that considered UTM as essential to promote UAS based commercial services.[114] There have been attempts by other countries to establish a UTM.[115] The UTM will play a key role in facilitating a smooth operation of BVLOS flights (therefore impacting) commercial services such as delivery[116] as UTM is essential to operate BVLOS UAs without accidents. |
| 20. | Detention | The UAS Draft Rules provide for a power to detain a UAS by a written order lies with any Authority authorised under Section 8 of the Aircraft Act, 1934. The power to detain is restricted to the following grounds: (i) flight or intended flight would involve danger to persons in the aircraft or person and property otherwise; (ii) detention is necessary to secure compliance with the provisions of the Aircraft Act, 1934 or rules made thereunder; and (iii) detention is in accordance with orders of the court. The Authority has the power to take steps that it considers necessary to make detention effective including use of force, denying access to the UAS, removing parts of the UAS or otherwise interfering with the UAS. | There is no corresponding provision for detention of RPA. | The Authority’s power to detain the UAS by use of force or denying access to UAS or by removing parts of UAS is a new element in the Draft UAS Rules. This power flows from Section 8 of the Aircraft Act and has been specifically invoked for the purpose of making these Rules. The CAR does not provide for corresponding powers of detention. |
| 21. | Insurance | There is a requirement to obtain third party insurance to operate a UA, to cover the liability for any injury or damage caused to the person or property of any person due to the operation of the UA.[117] Compensation must be awarded in accordance to the Motor Vehicle Act, 1988 and rules made thereunder.[118] | All civil RPA operators shall have insurance with the liability that they might incur for any damage to third party resulting from the accident/incident.[119] | Both the Draft UAS Rules and CAR mandate third party insurance. Under the former, compensation needs to be determined as under the manner and procedure specified in the Motor Vehicle Act, 1988 and rules thereunder. Whereas, under the latter, the criteria to determine compensation is not mentioned. Further, the provision in Draft UAS Rules is more nuanced as it makes a reference to ‘death or bodily injury to a person or damage to property’ whereas CAR merely states ‘liability for any damage that may arise out of accident’. This requirement however poses a new challenge for the insurance industry to formulate adequate policies regarding usage of UAS in India.[120] |
| 22. | DGCA’s powers | (i) Issue directions: Power to issue directions regarding import, export, manufacture or sale of UAs through publication of Civil Aviation Requirements or Circulars, to be finalised after a consultative process.[121] The DGCA can provide exemptions to any UAS or persons from the directions through a written order. (ii) Issue standards and procedures: Power to formulate standards and procedures required for compliance with the Convention on International Civil Aviation.[122] (iii) Cancellation / Suspension of license: Power to cancel or suspend any license, certificate, authorisation or approval granted under the rules, with reasons in writing and after giving an opportunity to be heard.[123] (iv) Inspection: Power to inspect any UAS, UAS manufacturing, storage, maintenance facility, UTM facility or any other related facility before granting any authorization, license or certificate under the Rules by an order in writing. [124] | (i) Formulate regulations: Power to formulate regulations to be complied by the RPA operators.[125] (ii) Cancellation / Suspension of license: The DGCA has the power to cancel the license if the provisions of CAR / approved operating conditions are violated.[126] (iii) Inspection: The DGCA does not have the power to conduct an inspection before granting a license. However, the RPA operator needs to maintain and show on demand, the maintenance documents of the RPA facility.[127] | The Draft Rules allow the DGCA to issue CARs which specifically apply to the drone industry. Under both the Rules and the CAR, the DGCA has the power to revoke / cancel / suspend the license or permit provided in case of violations by the licensee. In Draft UAS Rules, before the DGCA orders cancellation of the license, the affected party is allowed to exercise their legal right to be heard. Further, the cancellation order must be given in writing with justifications for the same. This ensures that principles of natural justice are upheld and no arbitrary order to cancel the license should be made. The power of inspection is wider in the Draft UAS Rules as compared to the CAR. |
| 23. | Penalty and defences | Penalties : Contravention of any of the provisions of the rules attract penalties in accordance with Schedule XII.[128] Under Schedule XII, the offences punishable under Category I are of grave nature compared to Offences specified under Category II. Category I offences are punishable with an imprisonment term not exceeding two years or a fine not exceeding Rupees One Lakh or both. Whereas, Category II offences are punishable with an imprisonment term not exceeding six months or a fine not exceeding Rupees Fifty Thousand or both. Defences : The accused has a right to the following defences: accident, stress of weather, other unavoidable circumstances. Further, the owner, operator, hirer or remote pilot has the option to avail the defence of the contravention taking place without his fault or privity.[129] Cognizance: The courts can only take cognizance of the offence once the sanction of the DGCA is obtained in writing.[130] | Penalties : In case of non- compliance with the provisions or falsification of documents, penalties shall be imposed under the Indian Penal Code, 1860 (“IPC”).[131] Offences mentioned in the CAR under the IPC[132]: (i) S.287: Negligent conduct with respect to machinery (ii) S.336: Endangering life and personal safety of others (iii) S.337: Causing hurt by endangering life and personal safety of others (iv) S. 338: Causing grievous hurt by endangering life and personal safety of others. Cognizance : The courts have the power to take cognizance of offences without the prior sanction of the DGCA. | The Draft UAS Rules provide for penalties in case of breach of compliance under Schedule XII. Whereas, the CAR relies on provisions of the IPC to impose penalties on wrongdoers. However, there are no specific provisions for penalties or equivalent to Schedule XII of the Rules in case of non-compliance with provisions of the CAR. The Draft UAS Rules also provide specific defences that can be claimed by the accused. There are no specific defences that the accused can claim under CAR. However, the vaguely worded defences under the Draft UAS Rules raise ambiguity regarding the exact instances that can come under ‘unavoidable circumstances’. |
| 24. | Classification of Offences | Rule 63 provides for offences that are cognizable and non-bailable, such as unauthorised import / manufacture / purchase / sale / lease of UAS, not obtaining UAOP / UIN, flying UA in no-operation areas and more.[133] | The offences mentioned under the IPC are also cognizable and non-bailable. | Both of these are cognizable and non-bailable, however, the classification of offences under the Draft UAS Rules is far more granular. |
| 25. | Appeals | An appeal to the next higher authority against any order made under Rule 63 of the Draft UAS Rules is permissible if made within sixty days from the date of the order.[134] More than two appeals are impermissible in the same case. | There is no provision for appeal against orders of the DGCA. | The Draft UAS Rules provide for an appeal, ensuring compliance with natural justice principles and ensuring that the DGCA’s orders can be challenged in case of being arbitrary. [135] |
Conclusions
The Draft Rules are by in large similar to the existing CAR but differ in some key respects. For instance, there are far lesser relaxations for Nano and Micro drones than under the CAR but the reliance on the digital sky platform remains. The absence of a list of testing sites is a notable omission from the CAR (however, these may be introduced through fresh CARs). There are several new additions including the concept of ‘Authorised Persons’ which one must be to take any part in the drone ecosystem under the Rules. New concepts such as drone ports, drone corridors, and UTMs have been introduced. Most importantly, the DGCA has been given wide enforcement powers including the ability to detain drones. The Draft Rules also introduce strong deterrents in the form of new criminal provisions. Critically, the Rules create a skeletal framework and allow the DGCA to expand on this by issuing fresh CARs. The Draft Rules are certainly a step-up from the CAR regime and if done well present an opportunity to set the Indian drone industry on the flight path for success.
This post was authored by Sanah Javed and Sanjana Saxena, final year students at Christ University and Jindal Global Law School respectively, during their externships at Ikigai Law, and Saumya Jaju, Associate, with inputs from Aman Taneja, Senior Associate, and Anirudh Rastogi, Founder and Managing Partner at Ikigai Law.
For more on the topic, please reach out to us at contact@ikigailaw.com
[1] http://egazette.nic.in/WriteReadData/2020/219730.pdf
[2] Civil Aviation Requirements, Section 3-Air Transport, Series X Part dated 27 August, 2018 available at http://dgca.nic.in/cars/D3X-X1.pdf
[3] Paragraph 11.2 of the Manual of Parliamentary Procedure, “If the suggestions/objections received are large, the final rules should be notified within a period of six months from the last date of receiving the comments. If no objections/suggestions are received or the number of objections etc., so received is small, the rules should be finally notified within a period of 3 months“
[4] https://dgca.gov.in/digigov-portal/jsp/dgca/homePage/viewPDF.jsp?page=InventoryList/headerblock/drones/DGCA%20RPAS%20Guidance%20Manual.pdf
[5] Rule 1, Draft UAS Rules.
[6] Para 4.1, CAR.
[7] Rule 3, Draft UAS Rules.
[8] Rule 4, Explanation, Draft UAS Rules: The explanation to Rule 4 mentions that a Nano class UA shall be regarded in the next higher category if it exceeds either of the following performance parameters: (i) maximum speed in level flight limited to 15 meters/second; (ii) maximum attainable height limited to 15 meters and range limited to 100 meter from the remote pilot.
[9] Rule 4, Draft UAS Rules.
[10] Para 1.1, CAR.
[11] Para 3.1, CAR.
[12] Rules 12, 13, 19, 20, 21, and 28, Draft UAS Rules.
[13] Rules 8, Draft UAS Rules.
[14] Rules 10, Draft UAS Rules.
[15] Eligibility criteria:(i) Individuals who are citizens of India and 18 years of age or more; (ii) Companies or bodies corporate with principal place of business within India and having Chairman and two-thirds of its directors who are citizens of India; and (iii) Firms, association of persons, body of individuals, local authorities, legal entities, Central and State Government or an agency thereof. For clause (ii) and (iii), the substantial ownership and effective control shall vest in Indian nationals.[15]
[16] Rules 12, Draft UAS Rules.
[17] Rules 12(2)(b), Draft UAS Rules.
[18] Para 5.1 (c) and Para 5.2 (b), CAR.
[19] Rule 13, Draft UAS Rules.
[20] Rules 11, Draft UAS Rules.
[21] Rules 14, Draft UAS Rules.
[22] Para 1, Chapter 6 of DGCA Guidance Manual “Although Manufacturers/ OEM of RPAS are not regulated through the CAR Section 3, Series X, Part I, being a responsible entity, a manufacturer is expected to follow the procedure specified hereunder.”
[23] Para 15, CAR.
[24] Para 16, Chapter 6, DGCA RPAS Manual
[25] Rule 15, Draft UAS Rules.
[26] Rule 15 (5), Draft UAS Rules.
[27] Rule 15 (6), Draft UAS Rules.
[28] Annexure XII, CAR.
[29] Schedule II, Section A, Draft UAS Rules.
[30] Para 11, CAR.
[31] Rule 16 (2), Draft UAS Rules.
[32] Rule 16 (3), Draft UAS Rules.
[33] Rule 16 (4), Draft UAS Rules.
[34] Rule 16 (5), Draft UAS Rules.
[35] Para 10.1 and Rule 10.2, CAR.
[36] Para 6.2.2, CAR.
[37] Annexure X, CAR.
[38] Para 12, Chapter 6, RPAS Guidance Manual.
[39] Rule 19, Draft UAS Rules.
[40] Rule 17, Draft UAS Rules.
[41] Rule 18, Draft UAS Rules.
[42] Rule 19 (3), Draft UAS Rules.
[43] Para 6.1, CAR.
[44] Para 6.4 and Para 6.5, CAR.
[45] Para 6.4, CAR ; Schedule III, Draft UAS Rules.
[46] Rule 23 (1), Draft UAS Rules.
[47] Rule 23 (2), Draft UAS Rules.
[48] Para 8.1, CAR.
[49] Para 8.3, CAR.
[50] Rule 22, Draft UAS Rules.
[51] Rule 20, Draft UAS Rules.
[52] Rule 25, Draft UAS Rules.
[53] Rule 26, Draft UAS Rules.
[54] Para 8.6, CAR.
[55] Rule 27 and Rule 28, Draft UAS Rules.
[56] Schedule VI, Draft UAS Rules.
[57] Rule 29(4), Draft UAS Rules.
[58] Schedule II, Draft UAS Rules.
[59] Rule 30, Draft UAS Rules.
[60] Para 7.1, CAR.
[61] Para 7.3, CAR.
[62] Para 7.5, CAR.
[63] Para 7.6, CAR.
[64] Para 7.2, CAR.
[65] Para 6.2.2, CAR.
[66] Para 15.3, CAR.
[67] Para 6.2.2, CAR.
[68] Annexure IV, CAR.
[69] Rule 29, Draft UAS Rules.
[70] Rule 31, Draft UAS Rules.
[71] Rule 32, Draft UAS Rules.
[72] Ministry of Civil Aviation, Conditional exemption to Government entity for use of Remotely Piloted Aircraft System for anti-locust operations, AV-22011/2/2020-SDnIT-MoCA, May 21, 2020.
[73] Ministry of Civil Aviation, Conditional exemption to Government entities for COVID-29 related RPAS operations, AV-22011/2/2020-SDnIT-MoCA, May 2, 2020.
[74] Rule 31, Draft UAS Rules.
[75] Rule 33, Draft UAS Rules.
[76] Rule 32, Draft UAS Rules.
[77] Para 9, CAR.
[78] Rule 34, Draft UAS Rules.
[79] Rule 35, Draft UAS Rules.
[80] Rule 36, Draft UAS Rules.
[81] Rule 37, Draft UAS Rules.
[82] Rule 38, Draft UAS Rules.
[83] Schedule VIII, Draft UAS Rules.
[84] Para 13.1, CAR.
[85] Para 13.2, CAR read with Annexure XI.
[86] Para 12.19, CAR.
[87] Para 12.18, CAR.
[88] Schedule VI, Draft UAS Rules.
[89] Rule 35, Draft UAS Rules.
[90] Para 12.21, CAR.
[91] Para 1.4.3, DGCA RPAS Guidance Manual, 2019.
[92] Rule 39, Draft UAS Rules.
[93] Rule 40, Draft UAS Rules.
[94] Rule 41, Draft UAS Rules.
[95] Para 12, CAR.
[96] Para 10.3, CAR.
[97] Para 12.8, CAR.
[98] Para 12.9, CAR.
[99] Para 12.20, CAR.
[100] Rule 42, Draft UAS Rules.
[101] Rule 43, Draft UAS Rules.
[102] Rule 45(5), Draft UAS Rules
[103] Para 12.8, CAR.
[104] Para 2.2, CAR.
[105] Para 12.10, CAR.
[106] India Could Set up ‘Droneport’ to kick start deliveries via Drone, The Quint, January 16, 2019, https:// ww.thequint.com/tech-and-auto/tech-news/drones-delivery-india-plans-take-off-droneports-and-corridor .
[107] Drone Ecosystem Policy Roadmap, Ministry of Civil Aviation, January, 2019, https://www .globalaviationsummit.in/documents/DRONE-ECOSYSTEM-POLICY-ROADMAP.pdf .
[108] Rick Moriarty, First part of 50-mile Central NY drone corridor OK’d by FAA, Syracuse.com News, November 7, 2017, https://www.syracuse.com/news/2019/11/first-part-of-50-mile-central-ny-drone-corridor-okd-by-faa.html .
[109] Rule 46, Draft UAS Rules.
[110] Rule 48, Draft AS Rules.
[111] Rule 49, Draft UAS Rules.
[112] Para 12.16, CAR.
[113] What is unmanned Aircraft Systems Traffic Management, NASA, January 31, 2020,
https://www.nasa.gov/ames/utm/#:~:text=Known%20as%20UAS%20Traffic%20Management,flying%20in%20low%2Daltitude%20airspace. ; Why we need an unmanned aircraft traffic management system for drones, Whitepaper, International Airport Review https://www.internationalairportreview.com/whitepaper/111865/why-we-need-an-unmanned-aircraft-traffic-management-system-for-drones/ .
[114] Drone Ecosystem Policy Roadmap, Ministry of Civil Aviation, January, 2019, https://www.globalaviationsummit.in/documents/DRONE-ECOSYSTEM-POLICY-ROADMAP.pdf .
[115] Terra Drones showcases UTM to Indonesia’s air traffic controller AirNav, Teraa Drone, August 13, 2019, https://www.terra-drone.net/global/2019/08/13/terra-drone-utm-system-indonesia-air-traffic-controller-airnav/ ; Rise of Drones: Improving unmanned aircraft system traffic management, EU Cordis, https://cordis.europa.eu/article/id/411551-rise-of-the-drones-improving-unmanned-aircraft-system-traffic-management .
[116] Unmanned Aircraft Systems (UAS) Traffic Management (UTM), US Department of Transportation FAA, March 2, 2020, https://www.faa.gov/uas/research_development/traffic_management/media/UTM_ConOps_v2.pdf .
[117] Rule 52, Draft UAS Rules.
[118] Rule 52(2), Draft UAS Rules.
[119] Para 17, CAR.
[120] The mounting demand of Drone Industry, https://www.eibl.co.in/Blogs/BlogDetails/44 ; A Guide to Drone Insurance, Embroker, https://www.embroker.com/blog/drone-insurance/ .
[121] Rule 56, Draft UAS Rules.
[122] Rule 55, Draft UAS Rules.
[123] Rule 58, Draft UAS Rules.
[124] Rule 59, Draft UAS Rules.
[125] Annexure VI(8)(c), CAR.
[126] Para 18.1, CAR.
[127] Para 10.4, CAR.
[128] Rule 60, Draft UAS Rules.
[129] Rule 60(2), Draft UAS Rules.
[130] Para 63, Draft UAS Rules.
[131] Para 18.2, CAR.
[132] Para 18.2, CAR.
[133] Rule 63(1), Draft UAS Rules.
[134] Rule 65, Draft UAS Rules.
[135] A Chatterjee, Natural Justice and Reasoned Decisions, Journal of Indian Law Institute, April-June 1986, Vol. 10, No. 2.