Business Laws

Charting a legal flight path for drones

Subathra Mylsamy | Updated on March 21, 2021

The rules are a step towards adopting developmental technologies, but clearly, the government is not yet ready to allow free access in the UAS sector in India for now

The unmanned aircraft system rules may help protect India’s security interests, but from an economic point of view, they may not be favourable

Earlier this month, the Ministry of Civil Aviation notified the Unmanned Aircraft System (UAS)Rules, the draft of which had been thrown open for public comments in June 2020. Although, there was already a legal framework for drone operations (Requirements for Operation of Civil Remotely Piloted Aircraft Systems, issued by Director General of Civil Aviation (DGCA) in 2018), the Rules notified last month seek to distinguish between the regulations of drones and other conventional manned aviation.

The Rules aim to cover the missing links that were left by 2018 requirements. The unmanned aviation industry, set to grow to $43 billion by 2024, is becoming ubiquitous with even the government relying on these vehicles to maintain public order or for security of the country.

These Rules are exhaustive in nature and have ensured to cover every aspect with having wide ambit. These Rules will apply first to all those UAS which are registered in India; second, to all those UAS which are present in India or even in the skies of India, and finally, will also include all those persons who own or deals in export, import, manufacturing, trading, leasing, operating, or maintaining the UAS. Furthermore, these Rules cover even those UAS that are registered in India but are present in some other country.

With the view to having a record of all the UAS that is associated with the Indian territory, the Rules have made it compulsory for getting UAS registered with the DGCA before their usage. One can use the UAS only after the grant of a Unique Identification Certificate which shall also include a unique identification number. If there has been no registration, even the transaction related to buying or selling or even leasing cannot take place. Hence, the establishment of a registry akin to the Indian Aircraft registry is a positive step towards maintaining a harmonious ecosystem for the operation of UAS as this move will ensure to create an impact in curbing unauthorised UAS from violating the Indian space.

The Rules introduce the concept of ‘Authorised Persons’ only who are allowed to import, manufacture, trade, operate, or own the UAS. Use of these by non-authorised persons attracts penalty. For an individual to be eligible he should be a citizen of India and similarly, for any Body Corporate to be eligible, it should be registered and has its principal place of business within India.

Therefore, foreigners are not eligible, except if they incorporate a company in India—a tedious process. As such, this might dis-incentivise foreign investors to invest in the Indian UAS sector.

Leasing

The UAS may be leased only to authorised owners, traders, or operators in India. So, the authorised UAS manufacturer or importer can lease its UAS to a very limited number of people. Moreover, the process of the lease even between authorised persons is subject to prior approval from the DGCA. Although, the introduction to the concept of leasing in the UAS sector is a welcoming step as it will ensure progress in this particular market, strict restrictive measures will eventually lead to the formation of a cartel that would dominate the market, controlling the prices.

Privacy

An important feature of these Rules is the focus on the right to privacy of an individual which was held as the fundamental right by the Supreme Court in the case of KS Puttuswamy Vs Union of India. Under these Rules, it is the responsibility of the UAS operator to perform its function ensuring the privacy of a person and its property during operation.

Furthermore, an imagery or data can be captured by UAS only after ensuring the privacy of a person and if there is a contravention to the same, a penalty of ₹10,000 can be imposed. Privacy protection is laudable, but there is no exhaustive framework for ensuring privacy while using UAS; even the penalty very meagre. Current Rules are mere generalised guidelines that provide for protecting privacy but do not deal with the accurate measures and principles for protecting privacy.

The Rules are a step towards adopting developmental technologies, but clearly, the government is not yet ready to allow free access in the UAS sector in India for now. This intent could be beneficial for India for protecting its security interests; however, seen from the economic point of view, such a limited objective may not be favourable when compared with other countries where the UAS sector is flourishing. Nonetheless, for the time being, these Rules are sufficient to manage the UAS affairs in India and to bring them within the legislative ambit.

(The author is partner, AK Mylsamy & Associates, a Chennai-based law firm)

Published on March 21, 2021

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