Technological advancements have enabled applications of drones in diverse areas such as agriculture, infrastructure, crowd and disaster management and journalism. The benefits of drones have been widely acknowledged by various stakeholders in India such as the military, law enforcement agencies, government and the industry. Recently, the Indian Railways revealed that it intended to deploy drone cameras in order to enhance safety and efficiency in train operations across all zones. Therefore, it is imperative that the government works towards providing an enabling regulatory framework for operation of civil drones.
On October 7, 2014, the Directorate General of Civil Aviation (DGCA) issued a public notice banning the use of civil drones over safety and national security concerns. Subsequently, the DGCA released draft guidelines for operation of drones in April, 2016 which were criticized for being inefficient and cumbersome. The main grounds of criticism were the requirement of making an application for Unmanned Aircraft Operator Permit (UAOP) at least 90 days prior to conduct of operations and the obligation to intimate the local authorities before and after every operation irrespective of the weight of drone. On November 07, 2017, DGCA issued draft regulations (Draft Regulations) for operation of civil Remotely Piloted Aircraft System (RPAS) seeking comments from the public and all stakeholders.
Key Points in the Draft Regulations
The Draft Regulations have classified RPAs (Remotely Piloted Aircraft) based on their weight as: Nano (less than or equal to 250 grams), Micro (greater than 250 grams and less than or equal to 2 kilograms), Mini (greater than 2 kilograms and less than or equal to 25 kilograms), Small (greater than 25 kilograms and less than or equal to 150 kilograms) and Large (greater than 150 kilograms).
All RPAs are required to obtain a Unique Identification Number (UIN) from the DGCA with an exception being made in favour of Nano category RPA, which is intended to be flown up to 50 feet, and the RPAs owned and operated by Government security agencies. However, for a UIN to be granted to a RPA, it must be wholly owned by a citizen of India or the Central/State Government or an Indian company or corporation. It is not enough for a company or corporation to be registered in India for the purpose of grant of a UIN but it must have its principal place of business in India with the Chairman and at least two/thirds of the directors being Indian citizens and its substantial ownership and effective control also being vested in Indian nationals. Additionally, the RPA may be owned by a company or corporation registered outside India, however, it must be leased to any person allowed to own and operate such RPA in India. All civil RPA operations require an UAOP from the DGCA. However, it is not required for the following: (i) a Nano RPA operating below 50 feet in uncontrolled airspace and indoor operations; (ii) Micro RPA operating below 200 feet in uncontrolled airspace and clear of prohibited areas, provided the local police authorities have been given prior intimation; and (iii) RPA owned and operated by Government security agencies after giving prior intimation to the local police authorities and ATS units. The Draft Regulations have defined controlled airspace as “an airspace of defined dimensions within which air traffic control service is provided in accordance with the airspace classification”.
A remote pilot is required to undertake ground training equivalent to that undertaken by aircrew of a manned aircraft or a private pilot license holder. The remote pilot of a RPA in the Nano or Micro category is not obligated to fulfill the training requirements. Additionally, RPA operators are required to file flight plans, obtain clearance from the nearest ATC unit and Flight Information Centre as well as Air Defence Clearance except in case of a RPA in the Nano and Micro category operating up to 50 feet and 200 feet respectively. Any RPA which is in the Mini and above category irrespective of the height is mandated to operate within the visual line of sight only.
Shortcomings of the Draft Regulations
The Draft Regulations have laid down an elaborate procedure for the issuance of UIN such as requiring identity and address proof, details of the purpose and area of operation, permission from the Department of Telecommunications for frequencies used in the operation, security clearance from the Ministry of Home Affairs and verification of the character and antecedents of the remote pilot from the local sub-divisional police officer. The restriction on ownership by foreign players appears to be redundant as proper precautions are in place to address any threats to national security. Further, the requirement that all drones must be operated only within visual line of sight can curtail effective use of drones in areas such as logistics, infrastructure and journalism.
The integration of thermal and spectral imaging, data analytics and mapping technologies has enabled RPAs to act as information gathering platforms. In light of the decision of the Supreme Court upholding the right to privacy as a fundamental right, and in the absence of an adequate data protection regime in India, protection of privacy is a key concern. Privacy infringement concerns cannot be satisfactorily addressed by merely putting the onus on the remote pilot to ensure that the privacy rights of individuals are not compromised.
The overarching theme in the Draft Regulations is the safety of airspace for aviation and the prevention of threats to national security of the country. The regulations have taken an airspace-centric view by restricting the operation of RPAs in controlled airspaces in order to prevent collisions with manned aircrafts. However, drones operate at a lower altitude as compared to a manned aircraft and need not be subjected to stringent regulations that apply to manned aircrafts. On the other hand, the probability of conflicts with landowners on account of trespass and nuisance has been overlooked. There are no provisions in the Draft Regulations that provide any clarity on the ownership of airspace. Only a fleeting reference has been made to this issue by providing that grant of UIN and UAOP will not endow any right on the operator against the owner or resident of the property over which the drone is operated. Also, multiple agencies have been proposed for regulation of drones which could result in excessive delays and make the regulatory environment restrictive. Therefore, there is a need to liberalise the Draft Regulations to ensure that innovation is not stifled in the drone industry which is at a nascent stage in India.
[This post is authored by Harshita Choudhary, with inputs from Pushan Dwivedi (Associate, TRA), during her internship with TRA, New Delhi]
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 Public Notice on Use of Unmanned Aerial Vehicle (UAV)/Unmanned Aircraft Systems (UAS) for Civil Applications, 2014, http://dgca.nic.in/public_notice/PN_UAS.pdf.
 Guidelines for Obtaining Unique Identification Number (UIN) & Operation of Civil Unmanned Aircraft System (UAS), 2016, http://www.dgca.nic.in/misc/draft%20circular/AT_Circular%20-%20Civil_UAS(Draft%20April%202016).pdf.
 Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017, http://www.dgca.nic.in/misc/draft%20cars/CAR%20-%20UAS%20(Draft_Nov2017).pdf.
 Paragraph 6.1, Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017.
 Paragraph 2.2, Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017.
 Paragraph 6.2, Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017.
 Ananth Padmanabhan, Civilian Drones and India’s Regulatory Response, CARNEGIE INDIA, (February 20, 2018, 1:00 PM ), http://carnegieindia.org/2017/03/10/civilian-drones-and-india-s-regulatory-response-pub-68218.
 Paragraph 12.6, Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017.
 Justice K S Puttaswamy and Anr. v. Union of India and Ors., W.P. (Civil) No. 494 of 2012.
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 Padmanabhan, supra note 9.
 Paragraph 13.1, Requirements for Operations of Civil Remotely Piloted Aircraft System, 2017.