Safety & Health Of Passengers Adequately Taken Care Of Even If Middle Seat Is Filled; Bombay HC Rejects Air India Pilot's Plea [Read Judgment]

The Bombay High Court on Monday held that safety and health of passengers on board an aircraft with reference to the Coronavirus is adequate even if middle row seats are not kept vacant. Court disposed of a plea filed by a pilot from Air India who alleged that the national carrier violated the circular dated March 23 issued by the Directorate General of Civil Aviation for keeping middle row seats empty.

Division bench of Justice SJ Kathawalla and Justice SP Tavade heard the writ petition filed by 51-year-old Devesh Kanani, a Commander with Air India, who sought enforcement of clause 7 of the DGCA Circular dated March 23 in respect of 'Vande Bharat' flight (i.e. non-scheduled international flights), whereby Air India has brought back 58,867 Indians as of June 1, stranded overseas on account of the outbreak of Covid-19.

Advocate Abhilash Panickar appeared on behalf of the petitioner, Solicitor General Tushar Mehta for DGCA and Union of India, Senior Advocate Darius Khambatta and Dr.Abhinav Chandrachud for Air India and its subsidiary Air India Express. Senior Advocate Janak Dwarkadas for Indigo, Senior Advocate Venkatesh Dhond for Spice Jet.

In response to the said plea, Dr.Chandrachud on behalf of Air India and its subsidiary on May 24 and submitted before the Court that the said circular dated March 23 does not apply to 'Vande Bharat' flights (i.e non-scheduled international fights) and the same applied only to scheduled domestic flights. All the precautions required to be taken so as to prevent the spread of Covid-19 are taken, while lifting these stranded passengers from abroad and bringing them to India. Moreover, even if one seat is kept empty between two passengers, the criteria of social distancing generally prescribed by the Government of India would not be satisfied, Dr.Chandrachud said.

Later that evening, Dr.Chandrachud informed the Court that the previous circular dated March 23 has been superseded by a fresh circular issued by the Government of India dated May 22. But the Court concluded that the new circular was applicable to domestic flights only, not international operations. Therefore, the Court directed airlines to comply with the March 23 circular for evacuating Indian citizens under the Vande Bharat Mission.

Thereafter, the respondents moved Supreme Court aggrieved by Bombay High Court's order. The apex court allowed the airlines to fill the middle row seats for ten days until June 6 and granted liberty to DGCA to alter any norms necessary during the pendency of the matter in the interest of public health and safety of passengers rather than commercial considerations.

A High Level Committee of experts was constituted by the DGCA to meet and recommend certain safety measures to be followed on flights. The expert committee comprises of Rajesh Bhushan, OSD, Ministry of Health and Family Welfare, Randeep Guleria, Director, AIIMS New Delhi, Dr.Balram Bhargav, DG, ICMR, New Delhi and Dr, Narsh Trehan, CMD, Medanta Medicity.

The said committee made certain recommendations for ensuring health and safety of passengers travelling through airlines during the current pandemic. As per the said recommendations, if passenger load and seat capacity permits keeping middle row seats empty then such seats can be left empty. In case, passenger load does not permit keeping middle row seats empty, the committee suggested that additional 'wrap around gown' can be provided to them apart from mask and face shield.

The said recommendations were accepted by DGCA and in an order dated May 31, the same were issued as directions for all airlines.

On June 5, when the Court was informed by the expert committee that Coronavirus is not transmitted by mere touch of a person infected with the virus and same can be transmitted through droplets, the bench allowed airlines to fill up middle seats in the interim before reserving the order.

Solicitor General Tushar Mehta submitted that a High Efficiency Particulate Air (HEPA) filter installed in the aircraft cleans and recirculates air every three minutes and gives 'operation theater quality' air. But the petitioner opposed the said submission and contended that the said filter is installed inside the aircraft and will have no bearing on the air breathed by infected passengers who may be on board.

The petitioner had heavily relied on the order dated May 30 issued by the Government of India, Ministry of Home Affairs under 'National Directives for Covid-19 Management', wherein it is provided that social distancing of 6 feet be maintained. According to the petitioner, the Report of the Expert Committee is contrary to this order.

SG Tushar Mehta submitted that prior to boarding, all passengers are subject to thermal screening for possible symptoms of Covid-19. Again while de-boarding, the passengers are subject to another thermal screening. All passengers symptomatic or otherwise are thereafter subject to 7 to 14 days institutional quarantine depending on the 'Vande Bharat Mission' Guidelines.

Air India's Counsel, Sr Advocate Khambatta said that in the instant case, the Air Transport Facilitation Committee and High Level Committee of the experts have specifically considered and rejected the suggestion that seats must be kept vacant between passengers. Under such circumstances, the said decisions of experts ought to be accepted.

After going through the submissions made on behalf of all parties, Court referred to the National Directives for Covid-19 Management and observed-

"As far as air travel is concerned, it is expressly clarified that the SOPs issued pertaining to the same, would apply. The Petitioner has therefore, without applying his mind, sought to rely on directives dealing with social distancing. It will not be out of place to mention here that in public places/workplaces, the individuals tend to crowd and many times without protective equipment like mask, etc. or with protective equipment which are of very poor quality. Therefore, it is made mandatory to maintain a distance of 6 feet for individuals, who are visiting public/workplaces."

Moreover, Court noted that there are no scientific reasons given by the petitioner to argue that HEPA filter is not an effective way to stop droplets in air from passing to adjacent passengers.

The bench said-

"The Petitioner has failed to appreciate that even if the middle seat is kept vacant, the person/s at the window seat whilst getting out for going to the lavatory and thereafter returning back to his seat, is likely to touch (through his clothes) the persons/s sitting on the aisle seat/s. Therefore, if his argument is to be accepted, in every row of the aircraft only one passenger should be accommodated. We cannot allow an individual to instill such fear in the minds of the members of the public, without any scientific basis. We would rather follow the advice of experts, if their opinion is found to be fair and reasonable and not tainted with any arbitrariness/ulterior motive/s."

Thus, after considering all the contentions raised by the petitioner, Court noted-

"We have therefore received no assistance from the Petitioner in determining how the safety / health of the passengers uua the Covid-19 virus is affected if the airlines fail to keep the middle seat vacant, which is his primary thrust in the above Writ Petition."

Finally, after examining the minutes of meeting of the Air Transport Facilitation Committee and the Report of the High Level Committee of Experts, Justice Kathawalla said-

"We are of the prima facie view that the safety and health of the passengers on board the aircraft uua Covid-19 virus is adequately taken care of even if the middle seat of the aircraft is not kept vacant on account of passenger load and seat capacity. However, the Respondents and all other fight operators in the country shall during the air travel of passengers, strictly follow and implement the Order dated 31st May, 2020 as well as the applicable SOPs."

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