Introduction
The Government of India came up with the proposition of Ude Desh ka Aam Naagrik in 2016, but to make it a reality for the Indian public, several overhauling reforms are required. Recognising this urgent need for reform, the Parliament of India recently passed the Bharatiya Vayuyan Vidheyak, 2024 (“Act”) replacing the archaic Aircraft Act, 1934 (“Former Act”). India’s civil aviation sector has witnessed unprecedented growth in recent years. However, this rapid expansion has exposed significant gaps in the existing regulatory framework, underpinned by the century-old Former Act. The Former Act was passed during the nascent stage of aviation and has since developed into a relic that is characterised by obsolete safety standards, an ineffective penalty regime, and a lack of understanding of modern-day flying. The Act was introduced as a landmark legislation aimed at resolving the issues plaguing the aviation sector. The need for such legislation also arose from the thought-provoking notions of increasing passenger traffic, a surge in airline operators, and heightened international connectivity. It also seeks to eliminate regulatory inadequacies, and integrate international benchmarks, intends to promote air safety, rationalise governance, and ensure India’s conformity to its commitments under international law.
Through the means of this article, the authors delve into the intricacies of the Act in four parts. Firstly, the article studies the major provisions of the Act highlighting their aims. Secondly, it underscores the shortcomings and roadblocks in the Act. Thirdly, it proposes plausible solutions to these roadblocks. Lastly, the article concludes with a summary and a way forward for moving forward and ahead.
Power Struggles in the Skies: The Core Provisions and Hidden Flaws of the 2024 Act
To enhance safety and security, greater powers have been granted to the Bureau of Civil Aviation Security (“BCAS”)and the Aircraft Accident Investigation Bureau. However, these powers are rendered largely ineffective as the Central Government retains significant control over all such agencies, including the Directorate General of Civil Aviation (DGCA). An entire chapter in the Act, spanning Sections 8 to 21 of Chapter 5, is devoted to detailing the Central Government’s authority. These sections emphatically address areas such as accident investigations, emergency powers, construction regulations, etc. Even directives issued by any aviation authority have been subjected to government review. Additionally, the chapter empowers the Central Government to further frame rules for the welfare of travellers, a provision with a notably broad scope. Further ambiguity arises from the vague terms and conditions used in the Act. For instance, Section 17, which deals with the detention of aircraft, includes provisions drafted to give the Central Government considerable discretion. Terms such as “intended flight” and clauses requiring detention to ensure compliance with “any” provision of the Act exemplify this lack of clarity. Moreover, Clause 3 states that the Central Government may make rules regarding all matters, incidental or subsidiary to the exercise of its powers, underscoring the direct control of the Central Government.
Another significant change introduced by this Act is found in Chapter 5, which addresses the determination and payment of compensation for loss or damage. This chapter references Section 18, which grants the Central Government the authority to prohibit or regulate infrastructure for aircraft operations. If such actions result in loss or damage to any individual’s property or land, compensation must be provided. While this provision appears novel and welfare-oriented, the process for determining the compensation raises concerns. The clause mandates that the amount should be settled through mutual agreement, reflecting traditional methods. However, Clause (b) grants the Central Government absolute authority to appoint an arbitrator in cases where no agreement is reached. Clause (c) further extends this power by allowing the Central Government to nominate individuals for the assessment of damages and compensation. These provisions highlight the overarching control vested in the Central Government, rather than in aviation authorities specifically designed to handle and assess such situations.
In the CORE II case, the Supreme Court of India emphasised the need for a careful balancing act to harmonise the fundamental principles of arbitration, particularly the fair and equal treatment of parties. A contract dispute arose between the parties regarding an arbitration clause which allowed one of the parties to unilaterally appoint a sole arbitrator. This case examined legal issues concerning arbitration agreements between government authorities and private entities. The Supreme Court emphasized the necessity of ensuring a level playing field for both public and private parties throughout the arbitration process in the commercial sphere. This stance was rooted in the principle of equality under Section 18 of the Arbitration and Conciliation Act, 1996and the amended Section 12(5), which introduced criteria to assess justifiable doubts regarding an arbitrator’s independence and impartiality, drawing on the International Bar Association Guidelines. The Court has also held that clauses allowing one party to unilaterally appoint an arbitrator violate the right to equality under Article 14 of the Constitution. It observed that permitting one party, especially one with a vested interest in the outcome, to unilaterally appoint an arbitrator raises justifiable doubts about the independence and impartiality of the arbitration process. In this context, the Central Government’s dual role – being responsible for paying compensation while also making decisions regarding its determination—is arbitrary and unconstitutional, as it violates Article 14 by undermining the principles of fairness and impartiality.
Another flaw is evident in the new rules for appealing decisions made by aviation authorities under Section 33. For instance, appeals against orders of the Director General of BCAS must be made to the Central Government. Clause (6) of this section further states that no subsequent appeal is permissible against such orders. This provision undermines the professional and independent functioning of aviation authorities. It also opens the door to arbitrary decisions, leaving affected parties without any recourse, thereby violating the principles of natural justice. Furthermore, it centralises power within the Central Government, especially concerning matters where the government itself is involved in oversight.
The provisions for passenger rights also fall short. While the bill proposes a grievance redressal mechanism, it lacks robust measures to protect passengers against common issues such as flight delays, cancellations, and denied boarding. Similarly, the regulation of drones, which is a rapidly growing sector, remains inadequately addressed, leaving a regulatory vacuum for emerging technologies in the aviation industry. The bill also includes penal provisions for violations but fails to provide clear guidelines for their application. This lack of specificity could result in inconsistent enforcement and misuse. Moreover, it does not offer adequate incentives for innovation, such as advancements in UAVs or artificial intelligence (“AI”) applications in aviation safety and operations. While this act marks progress in updating India’s aviation laws, addressing these shortcomings is essential to create a comprehensive, sustainable, and equitable framework for the sector’s future growth.
Clearing the Runway: Reform Proposals for the 2024 Act
Firstly, the DGCA must be made more independent in order to perform its tasks effectively and impartially. An independent oversight committee made of people with aviation backgrounds, lawyers, and public policy analysts should be created. This committee would occasionally audit the activities and decisions of DGCA and recommend that the latter be free from political or outside influence. This specific kind of oversight not only protects transparency but also boosts the public’s trust in the regulatory authority.
Secondly, the Act needs to address the lack of adequate provisions for redressal of disputes. It is therefore important to have a framework on how the arbitrators are appointed especially in a way that is neutral to all the parties involved in the arbitration. This is a fair and credible process since members of the government, industry, and the legal fraternity participate in it. Furthermore, there is a need for the development of clear arbitration procedures. Specificity on when procedures should be followed, what needs to be disclosed, and how appeals can be made minimises conflict and increases transparency and stakeholder trust.
Thirdly, encouraging an engagement model in policy formulation can greatly enhance the ability of the aviation sector. Having those from the industry, consumers, and legal team on board is important as it enhances balanced and comprehensive regulation. The collaboration can occur in the form of stakeholder forums, round table discussions, and public-private partnerships. Further, stakeholders’ consultation will enable the DGCA to understand changes in the industry and make necessary adjustments.
Fourthly, effective implementation of the Act also involves the implementation of strong monitoring mechanisms. These systems should be able to monitor metrics such as accident rates, compliance levels, and economic growth within the aviation industry. This quantitative approach will help to identify the effectiveness of regulations, both in terms of safety, innovation and efficiency of the market. These policies require frequent updating as an outcome of the empirical analysis to ensure the efficiency of the regulation.
The application of the Act addresses India’s diverse and flourishing aviation landscape and the plaguing issues it suffers from. The Act holds an integral position in India’s aviation sector as it holds the potential to shape India’s aviation sector by addressing critical regulatory and operational gaps. Its application must also reflect the broad and competitive nature of the Indian aviation space which is made up of large global connecting hubs and small remote terminals. The Indian legislation concerning safety, licensing, and the settlement of disputes is most pertinent to the Act in relation to the growth of passenger and cargo traffic. The Act can align Indian policies with the international legislations and norms while responding to the national needs and demands, like regional connectivity or the efficient and safe growth of the country’s economy without compromising the high level of safety.
Conclusion and Way Forward
In conclusion, the Bharatiya Vayuyan Vidheyak, 2024, represents a significant stride toward modernizing India’s aviation sector by addressing long-standing regulatory inadequacies and aligning with international benchmarks. However, the Act’s potential is hindered by its excessive centralization of power, lack of robust passenger protections, and vague provisions, which undermine principles of fairness, transparency, and stakeholder trust.
To truly revolutionize the sector, it is imperative to strengthen the independence of aviation authorities, establish equitable dispute resolution frameworks, and foster stakeholder engagement. Introducing impartial oversight committees, transparent arbitration mechanisms, and collaborative policymaking will bolster trust and accountability. Additionally, focusing on sustainability through emissions regulations and incentivizing technological advancements like AI and predictive analytics can ensure India’s aviation sector evolves responsibly. These reforms, coupled with robust monitoring mechanisms, will enable the Act to fulfill its promise of creating a balanced and forward-thinking aviation ecosystem.
By implementing these reforms and prioritizing sustainability and innovation, the Act can evolve into a comprehensive and future-ready framework. As India’s aviation landscape continues to expand, this legislation must ensure a balance between economic growth, operational efficiency, and the welfare of all stakeholders.
This blog is written by Anenya and Akanksha Sharan, Student, HNLU, Raipur.