Legal And Regulatory Framework Of Drones

Introduction

Aircraft technology and aerodynamics have always captured the imagination of people. This is primarily due to urge of the humans to be air-borne and fly like birds. This fascination for flying is not new and goes back generations and specific references to flying objects can be found even in our Indian mythology. Today, in this modern age of fast emerging technological advancements, Drones have become the latest gadgets on the block, attracting people for their airborne utility value and also their use for amusement purposes.

Before moving further, it would be pertinent to understand what these "Drones" are, in the context of both aviation as well as space. In simple words these are unpiloted air/space crafts, which are commonly referred to as "unmanned aerial vehicles" or "UAVs" in short. These Drones can also be seen as / referred to as, "flying robots", which are remotely controlled from the ground, through the use of latest technologies in hardware, embedded software and wireless / telecommunication technology. The latest Drones have onboard sensors, global positioning systems, audio / video devices and cameras, depending on the utility for which they are meant. Since these are airborne and unmanned (except in the case of space-crafts), there are various regulatory challenges for their manufacturing, trade, import and usage. In this article we will be considering these regulatory challenges on how to handle and scale such challenges.

In this context, we may also understand as to what is meant by the 'art of droning', which is the new talk of the town. Art of droning is the value addition drones have made in our lives. It is this technological innovation with whose help we have been able to deal with natural disasters, border security and rescue operations to even containing COVID-19 pandemic^[1]. The importance of drones has also been highlighted in the case of Vishvanath Singh v. State of Uttarakhand & Ors.^[2], wherein the Uttarakhand High Court directed the State to deploy drones and CCTV cameras to detect poaching and illegal mining activities which were rampantly being held in Corbett National Park and Rajaji National Park.

While some people are exploring the drone age with their imagination and contemplating its utilities, others are relishing it as a leisure. The world of drones is the new dawn of technology, a new prism of hope in the technological space, for both peaceful as well as wartime endeavors. Thus, the way developments are happening in this zone and the way governments and even common people are embracing it, those developing and operating such technology will flourish and those who are not able to see the obvious will remain obscure in this fast changing technological land scape^[3].

Recently, India legalized flying of drones to encourage and promote digital evolution.^[4] The new drone policy has laid down requirements for registration of drones with Government's digital sky portal.^[5] The policy also states that, those without digital permission, will not be able to takeoff drones, as per the 'No Permission No Takeoff' policy of Government of India. As on date 19553 digital permissions have been given by the Directorate General of Civil Aviation, Government of India for operation of drones in India.^[6] Further, Drone task force has also been established to tap upon the potential use of drones. Despite these positive developments, many in the industry have raised concerns regarding bugs and errors found in the Application Program Interfaces (API's) of these Drones. Therefore, the new generation drones are still evolving and we are yet to see many a mile stone in this art of droning both in terms of API's and the legalities involved.

Today, drone technology is being actively used as a platform for various purposes including aerial photography, infrastructure asset maintenance, insurance, bomb detection, monitoring forests, border surveillance^[7], intelligence gathering, photography, demographical studies etc. The most interesting usage in the recent past, is the reported use in China of drones, to determine the body temperatures of the population in a demographical area, in order to fight the COVID-19 epidemic. These are also being extensively used by the Indian Army for all its operations apart from border surveillance. Similarly there have been reports that Drones have been used in Dubai for sanitization of the city in the wake of COVID-19. Further, more than 100 drones were used for monitoring the Ganga Mahakumbh congregation in 2019 at Allahabad. In fact, in the last few years, Drone flying has become a fashion statement. Many corporations have started using it for their potential commercial gains. For instance, a few years back, Zomato acquired Tech Eagle Innovations, a drone startup to mirror Amazon Air's delivery services in India^[8]. The technological pundits are already neck deep in their research, to ensure usage of drones for home deliveries by the app-based retailers. Therefore, it would be interesting to see drone based home deliveries, in the foreseeable future.

Why is learning about drones and their significance important for Indians?

The new India is dynamic, technology driven and restless. Drones have thus gained popularity amongst young photographers, visionary entrepreneurs and tech enthusiasts. The growing trend of investments in this emerging technology and its potential usage has therefore led to the emergence of many legal issues. Some of these burning issues have been briefly dealt with in this article.

1. Drone flying has, in recent past raised concerns for many property owners who perceive it as an encroachment upon their property and privacy. While India hasn't faced such issues due to the technology and its usage being in its nascent stages, the West has come under fire for the same. For instance, Prime Air, a service of Amazon Inc. while using the drones to deliver packages within 30 minutes during its trial phases, was brought down by property owners, who believed it to be intruding into their privacy.^[9] It will be worthwhile to see how the recent Supreme Court judgment in the case of Justice K.S.Puttaswamy (Retd) vs Union Of India^[10] which upheld right to privacy as a fundamental right in terms of Article 21 and other allied Articles of the Constitution of India, would be applied in the context of privacy surrounding usage of drones in India.

2. Drones have also become a security threat to some, due to their potential usage, as a tool for snooping and surveillance, by various contra-parties or simple voyeurs. While in Australia, an international drug cartel used drones to spy upon the police for counter-surveillance^[11], many states have been using armed drones in enemy territories.^[12] Indeed, these are worrying times. However, on the brighter side, drones have also been used for disaster relief, wildlife and forest conservation, healthcare, agriculture, irrigation etc. ^[13]

3. Third party insurance is another area that requires our attention, in the context of usage of drones. As per the new policy, all drones and their licensees must have valid third party liability insurance. However, DGCA has not stipulated any minimum amount of insurance coverage, which is needed, to cover the risks and damages that may be involved in the usage of drones. This means the operators, who are found flying drones, without insurance, will lose their permit to fly and may be even liable for prosecution^[14].

4. In a case where a drone owner/licensee allows a third person (say his friend or an acquaintance) to operate and fly the drone, in a restricted or an unrestricted area, and it causes injury to a person or damages some property, the question which would arise is, who will be liable for such injury / damage? Taking another example, where a foreigner is the owner / licensee of a drone and further leases the same for flying to an Indian entity, then the question which arises is as to who will be responsible in case of any injury / damage? According to common law, strict liability will be of the operator. Strict liability concept was laid down in the celebrated case of Reylands v. Fletcher^[15], where it was held that, when a person brings or collects a dangerous material and the said mischief escapes the land on which it is kept, such person will be liable under the law of tort. Thus, in our view the third party liability to which the drone owner/licensee will be exposed to, will be handled by the Courts, in the same way as other accidental third party liabilities are being dealt with under the insurance laws.

5. In India the policy on manufacturing of drones^[16] has been laid down as a part of "Make in India" initiative. These Drones are classifiable under GST Heading No. 8802 in Chapter 88 of the GST Tariff. The drones attract 5 % GST (2.5% CGST^[17] and 2.5% SGST) on their supply. Currently there are 9 drone manufacturers in India^[18]

6. As regards their importability in India, the International Trade Code (Harmonized System)^[19] which is commonly referred to as ITC (HS) under the Foreign Trade Policy for the years 2015-2020^[20] prescribes that import of drones is restricted requiring prior approval of the Directorate General of Civil Aviation ("DGCA") and apart from this import license from Directorate General of Foreign Trade ("DGFT")^[21] is also required. However, in case of nano category drones i.e. less than 250 grams, one who operates below 50ft/ 15 meters above ground level will only require Equipment type approval and does not require either import clearance of DGCA or import license from DGFT.^[22] In the case of Jagdev Damodaran v. Deputy Commissioner Of Customs (Acc), Cochin^[23] the Kerala High Court held that if the goods are imported without following the necessary restriction/condition e.g. prior permission of concerned Government authorities, such goods shall be deemed as 'prohibited goods' under section 11 of Customs Act, 1962. Once the importability hurdle is crossed by obtaining necessary permission from DGCA and license from DGFT, these drones can be imported through normal customs channels by filing Bills of Entry for home consumption, subject to payment of Customs Duties (Basic Customs Duty of 10% and IGST of 5%).

Conclusion

It is clear from the recent developments that while the Government is attempting to create a regulated but conducive eco-system for drone technology, many legal issues are surfacing due to the changing dynamics. A drone as a matter of fact is not anymore a fashion statement, rather a serious business proposition for angel investors and technology entrepreneurs. Considering the issues of privacy, surveillance and third party insurance, we wouldn't be surprised if in near future we see an airway tunnel being made exclusively for drones to deliver products to consumers.

Drone Categories in India; Registration is mandatory for all except Nano category. Further, some of the features the drones must have to fly in India include GPS, Return to home (RTH), Anti-Collusion Light, ID plate, flight controller with data controlling capability, RF ID and SIM/ No permission No Takeoff (NPNT)^[24]

Drone Flying in India^[25]