O.P. Jindal Global University, Sonipat
Introduction
The concept of unmanned aircraft systems (UAS) or drones have been fascinating since its inception and has seen use across a multitude of industries. The primary connection made with regards to drones has been their military application in the form of UAVs or unmanned ariel vehicles, whose use is most significantly noted in terrorist-occupied areas of the middle east, which were/are in conflict with countries like the United States or Israel. The versatility in the potential for drones is perhaps one of their most welcoming aspects in our modern-day society. They can range from UAV’s that are fitted with weapons of mass destruction, to delivery drones which are used for transportation of goods from warehouses or even the delivery of pizza to customers. The latter scenario did take place in India, when a Mumbai-based pizzeria tried to deliver their pizza by the means of a drone. This, in turn, snowballed the development of more legal infrastructure around drones, brought in through certain regulations. Following this incident, the office of the Director-General of Civil Aviation (DGCA) issued a public notice, requiring all UAS for civil purposes to get approval from concerned authorities apart from the DCGA such as the Airport Authority of India and the Home Ministry. In 2018, the DCGA introduced “Requirements for Operation of Civil Remotely Piloted Aircraft Systems”. However, more recently, the DCGA guidelines have been superseded by the Unmanned Aircraft System Rules (2021) (UAS Rules) which aimed to fill the policy gaps presented by the 2018 rules and better regulate drone usage in India, however, the new rules are not free from gaps themselves and are counterproductive in some regards as they make the process of operation much more constricted through requisite formalities.
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The formulation of the UAS Rules 2021 had been in the works since 2018 with the Ministry of Civil Aviation working with people in the industry to gather feedback and suggestions regarding the existing DGCA rules and potential gaps which require rectification. Following this, the draft UAS Rules were released to the public for comments in 2020 and came to effect on March 15th, 2021, with the current rules recently being opened to industry feedback.
The new rules are an improvement from the 2018 Rules, yet it seems to over-regulate the entire process of using drones, from importing parts to acquiring permission for every take-off. Some of the key highlights of the UAS Rules are such:
Applicability and Classification
The new rules intend to be extra-territorial as their applicability on Indian registered UAS applies even outside Indian territory, unlike the earlier regulations which only regulated Drone usage within Indian territory. The UAS rules also categorize drones into three distinct categories, unlike the previous guidelines which were limited to Remotely Piloted Aircraft Systems (RPAS). Presently, the categories are RPAS, Model RPAS, and Autonomous UAS, these are based on the level of autonomy of the drone and its purpose. RPAS includes UAS which are remotely operated from a pilot station, while Model RPAS include UAS which are intended for educational purposes within the line of sight and are not carrying any payload. Autonomous UAS are those which do not require any pilot intervention. The new rules continue the weight-based classification of drones as used in the earlier guidelines, however, the ‘Nano’ category of drones, which were earlier exempt from regulations have been brought under the purview of the new rules and will require manufacturers and existing players to make requisite changes to comply with the UAS requirements for ‘Nano’ Drones.
Availing authorization
The new guidelines impose a much higher degree of scrutiny before a drone can take off. The rules require certain Authorization, Licenses, Certificates, and Permissions before the participants of the UAS ecosystem can enjoy using the Drone. Acquiring these requisites is quite a lengthy process since there are a multitude of requirements under each of these heads. Authorization is required by “importers, manufacturers, operators, owners, training organizations and R&D organizations”. They are then, also required to get certain licence’s such as the student remote pilot licence, Import licence, UTM licence etc. Another important requirement is that of the Certificate of Manufacture and Airworthiness. Acquiring the same further requires Equipment Type Approval, Unique Identification Certificates by the DCGA and fulfilling other criteria. Enforcing such certification requirements on Drone manufacturers and importers of drone components makes the development process extremely cumbersome, since many of the domestic players rely on imported parts for manufacturing purposes and requiring multiple certifications for each part and then the final assembled Drone would be an unreasonable process. Some components may also have alternative use and there is a degree of “ambiguity on(the) applicability of UAS Rules on such components”
Digital Sky System
The digital Sky system is a platform set up by the Ministry of Civil Aviation and acts as the technological framework which supports the drone regulations in India. The new guideline envisages certain mandatory safety requirements such as: “No Permission – No Takeoff’ (NPNT) hardware and firmware, Real-time tracking beacon that communicates the drone’s location, altitude, speed, and UIN and a Geo-fencing capability” The Digital Sky platform supports the NPNT system and also helps the management of UAS operations and traffic efficiently. The platform is also to be used for the publication of an Airspace authorization map which essentially segregates the airspace in India into green, yellow, and red zones which will aid in the authorization process.
The new rules involve a plethora of other features and requirements, with some being welcome novel additions such as the aim to set up Drone ports. The idea of the ports was discussed in the “Drone Ecosystem Policy Roadmap” that was released by MoCA during the “Global Aviation Summit, 2019”. It essentially involves licensed areas on land or water which can be used to facilitate drone activities. This system is likely to attract foreign attention in the Indian drone sector with corporations applying for such a license to further their operational goals, for example,Amazon has developed a drone delivery system, the likes of which could be greatly facilitated by a licenced Drone port.
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Perhaps the most glaring threat that drones pose is with regards to privacy. Drones have had surveillance and imaging applications for a considerable amount of time now, albeit it was military and defence applications, the new and growing civil drone industry is bound to raise privacy concerns amongst citizens as well as the government. The UAS rules do, however, in some regard give due recognition to potential privacy issues. The responsibility of maintaining privacy is given to the UAS operator yet the rules only hold “An imagery or data may be captured by an unmanned aircraft after ensuring the privacy of a person, its property, and is permissible under law”and impose a ₹10,000 punishment in case of contravention. The rules unfortunately do not go further than this in their attempt to address privacy concerns. These general guidelines are bound to be insufficient in the protection of privacy and fail to tackle the problems of privacy through adequate assessment of the problem. Perhaps with the introduction of the new Personal Data Protection Bill, privacy gaps can be bridged more appropriately and ease the usage of civil and commercial drones.
Conclusion
The legal landscape surrounding drones in India is beginning to get more attention at quite an opportunistic time given that commercial application by companies and such is still limited, and the overall industry is still nascent. The Ministry of Civil Aviation has been quite interactive with the industry and have recently opened the new UAS rules for feedback after taking into consideration certain previous suggestions for their draft rules. The primary contentions were regarding the unreasonably cumbersome process of getting requisite authorization and filling of an absurd number of forms. The restrictions on foreign-owned companies being granted authorization had also been contended as it limited foreign interest in the Indian drone industry and closed itself from potential foreign investment. Upon reviewing public opinion until August 5th, the Aviation Ministry will introduce The Drone Rules 2021, which is intended to replace the UAS rules. The development of regulations and guidelines for drones is certainly the right step and the Aviation Ministry’s efforts to gather feedback and fill gaps or make improvements is certainly laudable. Therefore, though the present state of Drone use is cumbersome and inefficient, the future of India’s legal infrastructure looks to be building a strong foundation with the consistent development of the regime.
Indian Society for Legal Research 