The Drone Policy 2018

Introduction

The Directorate General of Civil Aviation (the “DGCA“) released the much awaited National Drone Policy, 2018 version 1 (Drone Policy)[1] on 27th August 2018. The subject matter of the regulation is ‘Requirements for Operation of Civil Remotely Piloted Aircraft System (RPAS)’. The policy is set to come to effect from 1st December 2018. This regulation succeeds two other daft regulations that were issued by the DGCA in April 2016 and November 2017. Both these drafts were open to stakeholders for comments but they never got formalized into anything until now.  A task force called the drone task force has also been set up that will provide for further recommendations when needed and may even modify the current regulation or create new ones. The current article will try and make a detailed analysis of the Regulations.

Background

Before the draft regulations, drones were not allowed to be used in India due to lack of proper regulations and security concerns. For the first time in 2016, DGCA asked for recommendations but they were not formalised. Finally a year later in 2017, another draft regulations were released which have now been formalised. The Regulations provide a very detailed framework for licensing and other requirements for use and operation of drones in India. As stated under Regulation 1.3 ‘the Civil Aviation Requirements (CAR) is issued under the provisions of Rule 15A and Rule 133A of the Aircraft Rules, 1937 and lays down requirements for obtaining Unique Identification Number (UIN), Unmanned Aircraft Operator Permit (UAOP) and other operational requirements for civil Remotely Piloted Aircraft System (RPAS)’. The process through which all the initialisations, submissions of applications and clearances will take place will be an all-digital process. The process will be carried out through an online platform called Digital Sky. The Ministry of Aviation through a press release[2] called Digital Sky “first of its kind national Unmanned Traffic Management (UTM) platform that implements ‘no permission, no take-off’”.

Requirements and Eligibility

 According to the Drone Policy, every drone user will now have to register the owner of the drone, the drone that is being used and the person who is flying the drone. Permission will have to be taken from the authorities through the Digital Sky app before flying any drone and only after the permission is granted, the drones will be allowed to fly. To be eligible to fly the RPAs, a person has to be over 18 years of age, must have passed 10th exam in English and has undergone ground/ practical training as approved by DGCA. To make regulations more clear and manageable, the drones have been divided into five categories:

  1. Nano : Less than or equal to 250 grams.
  2. Micro : From 250 grams to 2kg.
  3. Small : From 2kg to 25kg.
  4. Medium : From 25kg to 150kg.
  5. Large : Greater than 150kg.

Every category of the drone will need to get the UAOP except for a few exceptions which are any Nano category flying below 50 feet in uncontrolled airspace / enclosed premises, Micro RPA operating below 200 feet (60 m) AGL in uncontrolled airspace /enclosed premises and RPA owned and operated by NTRO, ARC and Central Intelligence Agencies but except Nano, the other two have to intimate the police according to the provisions. This UAOP will be granted within 7 days and will be valid for 5 years after which one will have to renew it. But during renewal fresh security clearance will be required from Ministry of Home Affairs. The UAOP shall be non-transferable. The DGCA is mandated to grant UIN within two days of the receipt of the application with completed documents. Currently, foreigners are not eligible to fly drones in India and will have to lease RPAS to an Indian entity who in-turn will obtain Unique Identification Number (UIN) and UAOP from DGCA. Not everyone category has to obtain the UIN like:

  1. RPAs in the Nano category with intent to fly up to 50 feet above ground level (AGL)
  2. RPAs owned and operated by Government security agencies.

Restrictions

The regulations also state certain restrictions on the operation of such drones. Flying area has been divided into three zones:

  1. Red zones : It is a no-fly areas (which include regions close to airports, national borders and military bases);
  2. Yellow zones: Flying in this area will require approvals before flying,
  3. Green zones: They are unrestricted areas.

Flying drone upto 400 ft. AGL and visual line of sight are allowed. All operators, except for Nano drone operators, are required to file their flight plans at least 24 hours before their operations and also have to obtain clearances from the Indian Air Force, Air Traffic Control and the Flight Information Centre. Cancellation of any flight plan also has to be notified to proper authorities immediately.  Similarly, all drone operators except Nano, have inform the local police authorities in writing before commencing any type of operations. If a pilot is flying any drone in a controlled airspace, continuous contact has to be maintained with the Air Traffic Control. Specific areas have been laid down under Regulation 13 where flying of drones is restricted. Some of the areas are: Within a distance of 5 km from the perimeter of airports at Mumbai, Delhi, Chennai, Kolkata, Bengaluru and Hyderabad; Within 5 km radius from Vijay Chowk in Delhi. However, this is subject to any additional conditions/ restrictions imposed by local law enforcement agencies/authorities in view of the security; from a mobile platform such as a moving vehicle, ship or aircraft, etc. No person can act as a remote pilot for more than one drone operation at a time. A drone is also not permitted to discharge or drop substances, unless it has been specially permitted by the DGCA and such permission is mentioned in the UAOP. The Drone Regulations also state that no drone shall transport any hazardous material and animal or human payload.

Penalties

The UIN or UAOP issued by the DGCA may be suspended or cancelled in case of any violation of the provisions of the Drone Regulations. Falsifying any information or non-adherence with any provisions of the Regulations may also lea to penal actions under the Indian Penal Code.

The Aircraft Act, 1934 imposes a penalty of imprisonment for a term which may extend up to two years, or a fine which may extend up to INR 1 million (approximately USD 14,500), or with both, for anyone:

  1. who “wilfully flies any aircraft in such a manner as to cause danger to any person or to any property on land or water or in the air“; or
  2. who “wilfully fails to comply with any direction issued [by the DGCA] under section 5A” of the Aircraft Act, 1934.

The Aircraft Rules, 1937 also state that “the doing of any act prohibited by or under any rule, or failure to do any act required to be done by or under any rule, not specified elsewhere in this Schedule” shall constitute an offence punishable with imprisonment for a term not exceeding 3 months or with a fine not exceeding INR 100,000 (approximately USD 1,450) or with both.

Conclusion

Before the introduction of these Regulations, usage of drones was either prohibited or restricted by commercial users. The Drone Regulation was a much require and awaited regulation in India which has finally legalized usage of drones by private and commercial users. The regulation along with the FAQ’s[3] and Do’s and Don’ts released provide for quite a comprehensive data which cleared a lot of doubts and provided clarity to the people. The introduction of Digital Sky through which almost every step can be done online is also a very thoughtful and well managed technique. But getting approvals and clearances from so many authorities and following so many steps might prove to be cumbersome for many users who then might not use them. Even commercial users might not be totally happy with the regulations and they don’t allow for delivery of food/ other items, or to carry passengers. With so many online portals that could have made use of these drones on a large extent might be disheartened with this rule. Even restriction on foreigners from using drones directly in India and investing in them could prove to be a setback for the growth of the sector in India. But it is difficult to ascertain anything so early as the Regulations may get modified and changed in the future which might bring new changes that could provide relief to these players in the market. If the Regulation and rules are properly implemented then, these regulations might even boom the technological ecosystem of the country. However, irregularity and a weak policy may also prove to be a threat to security too.

Author: Nishka Tyagi, Legal Intern,  at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.

References:

[1] http://dgca.nic.in/cars/D3X-X1.pdf

[2] http://www.pib.nic.in/PressReleseDetail.aspx?PRID=1544087

[3]  http://dgca.nic.in/cars/RPS-FAQs.pdf

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