Module_5

MODULE 5

LOOPHOLES IN THE PRESENT REGULATION SYSTEM FOR DRONES IN INDIA

5.1. Introduction
Technology is a very complex and complicated topic when it comes to its usages or
affects. It can be both very positive and negative or simply, disruptive in nature. The
remotely piloted aircraft (RPA) or commonly known as Drones, is an example of such.
Drones have been proved to be very useful for various uses such as; Military, Commercial,
civilian and even humanitarian activities The unregulated activities or uses of drones
have some serious consequences that must be looked into and studied.

The Directorate General of Civil Aviation (the “DGCA“) released the 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 draft
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.

5.2. Background
Unmanned Aerial Vehicles, or simply called as drones have been used in various communities
since the 1850s. Though the different types of usages, sizes and various mechanical bodies have
changed with time . These Unmanned Aerial Vehicles are a set of autonomous bodies that are
capable of flying without a human pilot, and are independent on their own. In other words,
without the presence of a pilot seated within the drone itself, these vehicles can operate.
Generally, they are operated by a ground-based controller that serves to provide direction,
sustained flight level and other guidelines as per the usage of drone. These bodies that are being
remotely operated offer budget-friendly solutions to cartographers for collecting geographic
data. LiDAR and ground-based LASER operated equipment are capable of providing high

quality data points which can be mosaiced and used for DEM and ortho-photo generation along
with other domain specific operations.

Before these draft regulations came into force, drones were not given the approval to be used in
India..There was no proper regulation governing them and for other security reasons they
weren’t allowed to operate. There were two draft regulations released, one in 2016 and the next
in 2017 and these regulations contain detailed information relating to the licensing and other
necessities for the use and operation of these drones in the country.

Drones have tremendous practical usages. Various industries in the country are revolutionizing
the usage of drones in areas as diverse as :

disaster management,
precision agriculture and crop insurance,
mining,
infrastructure projects, and
Land records.
The increasing usage of drone-enabled solutions by various state departments and ministries are
validating their efficacy, such as the:

railways,
surface transport,
power, and
law enforcement
The Indian regulatory approach has not been very positive towards the innovation of these
drones and its usages. Numerous delays have taken place in the formation of fixing guidelines
for them. In the year 2014, DGCA had issued its first public notice, announcing that no non-
governmental agency, organization, individual would be allowed to launch or use a drone for any
purpose until, its regulations and guidelines are fixed. In 2016, they were still stuck up in the
draft stage wherein prohibition of 28 months with private players operating in grey zones of
quasi permissions by local law enforcement, does not go well with the innovation or technology
adoption. The regulation then lacked certain aspects:

Lack of innovation
Common default position
Acts not expressly prohibited stand permitted

Regulation 1.3 of the Civil Aviation Requirements (CAR) has been issued under the provision of
Rule 15A and Rule 133A of the Aviation Rules of 1937 and thus, mentions the requirements for
obtaining:

the Unique identification Number (UIN)
Unmanned Aircraft Operator Permit (UAOP)
Other operational requirements for civil Remotely Piloted Aircraft System (RPAS)

The procedure wherein the initializations, submissions of applications and clearances that take
place are all in digit process. This procedure is done by way of an online platform which is
termed as ‘Digital Sky’. The Ministry of Aviation called Digital Sky as the “first of its kind
national Unmanned Traffic Management (UTM) platform that implements no permission, no
take-off”.

5.3. Registration of Drones

Drones are widely considered to fit in the meaning of aircraft as defined under rule 3(7) of the
Aircraft Rules’ 1937. Rule 30 says that, only the aircrafts which contain the below conditions,
shall be granted a certificate of registration that are owned by citizens of India. They are:

Any Company or a corporation that has its registered office in India and whose base of
principal of operation is within India.
The Central Government, the State Governments or any governmental company can
get their aircrafts registered.
Any company having its registered office outside the province of India can get their
aircraft registered if the aircraft is to be leased to any person falling in the first two
categories.

Any person who is not a citizen of India but owns an aircraft or drone, has the power
to get it registered in order to run a business in India.
5.4. Requirements and Eligibility
There are some policies implemented, known as the Drone Policy, that must be followed by
every user. They are as follows:
Every user must register
o the owner of the drone
o Drone that is being used and the person flying it
Permission must be taken from authorities through digital sky app before flying the drone
To be eligible to fly the RPA, person must be above 18 years of age
Must have passed 10th grade examination in English language
Undergone practical training as approved by DGCA
Regulations have been divided into a number of five categories, they are as follows:
1. Nano – this first category must have less than 250 grams or equal to 250 grams
2. Micro – This second category must have anything ranging between 250 grams up to
2kgs
3. Small – this third category must have anything between 2kgs up to 25kgs
4. Medium – this forth category must have anything ranging from 25kgs up to 150kgs
5. Large – this last category must be Greater than 150kgs

All the above mentioned categories are then required to get UAOP, except
when there are few exceptions which may be of any Nano category that is
flying below 50 feet in uncontrolled airspace or enclosed premises.
Also, in the case of Micro RPA operating below 200 feet or 60m AGL in
uncontrolled airspace or enclosed premises and RPA which is owned and
operated by the NTRO, ARC and the Central Intelligence Agencies, Nano
being an exception.
The other two must mandatorily inform the police authorities according to the
provisions.
The UAOP takes around a period of 7 days to be granted and it is valid for a
period of 5 years from the date of granting and that can be renewed after every
5 years. During this period of renewal, a new security clearance is required
from the Ministry of Home Affairs.
The UAOP is non-transferable, while DGCA is required to grant UIN within a
period of two days from day of receipt of the application with all
documentation.
Foreigners are not eligible to fly drones in India and must have to ease RPAS
to an Indian entity who will obtain the UIN and UAOP from the DGCA.

The following do not have to obtain UIN:

RPA’s in Nano category with intent to fly up to 50 feet above ground level (AGL)
RPA’s owned and operated by Government security agencies.

Central Government can issue the certificate of Registration: Only the Central Government has
the right to issue the certificate of registration and specify the duration for which such certificate
shall be valid. Rules 31 to 37A describe the relevant documents that are important and highly
required, along with the process needed to get the aircraft registered. Under rule 49, the DGCA is
empowered to issue a Unique Identification Number or a type certificate to the aircraft owner.

5.5. Restrictions

There are restrictions imposed on the regulations mentioned in order to fly drones and their
operations. The flying area has been divided into three zones, they are:

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 up to 400 feet AGL and visual line of sight are allowed.
All operators apart from those of Nano drone operators, must file their flight plans at least
24 hours before their operations and must get permission grant for clearances from the
Indian Air Force, Air Traffic Control and the Flight Information Centre.
In cases of any cancellation of flight, it must be informed immediately to the concerned
authorities.
Except Nano operators, every other authority must inform to the local police authorities
,in written form about the commencement of any type of operations.
If a drone is being controlled by a pilot in controlled airspace, continuous contact must 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.
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.

5.6. Penalties

The UIN or UAOP issued by the DGCA can be suspended or cancelled if there is any
violation of the provisions of the Drone Regulations. Falsifying any information or non-
adherence with any provisions of the Regulations may also lead 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:

o who “willfully 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

o who “willfully 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 , that must be done by or under any rules, which is not specified
anywhere else in this Schedule”, it shall contain an offence that is 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.

5.7. Flaws in Guidelines

5.7.1. Several areas of turbulence
The draft guideline suffers from serious regulatory gaps and errors. That is, a haphazard redressal
of property and privacy concerns resulting from civilian drone operations involving “drone
federalism” and evolving technical capabilities in the area.
The draft focuses on security concerns. Hence the provisions governing verification, training,
and granting of permits to drone operators, the express stipulation of suitable atmospheric
conditions for operation, and the embargo on drone operations in controlled airspaces. However,
it does not give much importance to the two equally important concerns i.e. property and
privacy.

Property-related concerns arise because, unlike manned aircraft, civilian drones fly at lower
altitudes, by gathering data and carrying out aerial remote sensing facilities. Many drone
operators offer bigger data and analytics solutions to utility companies and other sectors, and this
market is projected to grow even bigger. But as it grows, conflicts between land owners and
drone operators are also bound to rise because of ambiguity in ownership of airspace above land,
including possible altitude ranges to which such ownership may extend.

5.7.2. Privacy concerns

The big data model of business represents some serious privacy challenges. As technology
develops, the attempt of capturing high quality images from higher altitudes will get much better.
In the absence of a robust privacy law in India, drone-enabled solutions could impose serious
havoc on the notion of privacy, especially when deployed by journalists and law enforcers. The
guidelines ought to have focused much more attention to putting in place a comprehensive
framework that regulates data capture and convincingly addresses privacy violations.

Instead, currently it makes a mere reference to privacy by way of Guideline 10.4, irrationally
banking on the goodwill of drone operators as an effective safeguard. The guidelines also talks
about the indifference to the emergence of a potential rules overdrive resulting from “drone
federalism.” This is the situation which takes place when the States form their own rules, which
is an addition to the national regulatory framework. The concerns related to trespass and privacy
are known as “actionable wrongs” within the ambit of the law of torts, which means , non-
statutory common law claims that are adjudicated by courts, and the reason why they are a part
of the Concurrent List in India’s federal scheme.

The States have the power to legislate in order to address them until the Union intervenes.
Moreover, the rights in or over land are part of the exclusive preserve of States. Thus, the
operation of drones could fall or come within the Union’s jurisdiction, the determination of
airspace ownership immediately above land within that of the States, and privacy, trespass, and
other civil claims that fall within the jurisdiction of both.

To avoid a potential excess of rules and rule-making authorities, the civil aviation ministry must
coordinate with the regulatory framework across the country.

Finally, the guidelines move onto an assumption of static technology capabilities. This is best
given by an example by the draft’s approach to beyond-line-of-sight operations. The guidelines
only allow visual line-of-sight operations, with the remote drone operator maintaining direct,
unaided, visual contact with the drone and a distance of not more than 500 meters between
operator and drone.1

Technology is developing very quickly to offer sophisticated sense-and-avoid solutions,
rendering an absolute mandate on visual line-of-sight too rigid and inflexible. Therefore, the
conditional permits in order to let such operations based on the technology deployed would have
been better.2

Moreover, the guidelines also provide no room to evaluate technological leaps and mold the
regulatory framework accordingly. When regulating fast-evolving technologies, the regulator
must necessarily adopt a more responsible role. 3

One way to do so is through regulatory sandboxes which is a concept put to use by regulators in
the UK and Singapore. This concept allows innovators to test products, services, and business
models in a live environment with appropriate regulatory relaxations as required to execute the
innovation without violating the law.4

Overcoming the present regulatory system is important, both ;

from the perspective of the civilian drone industry, where one capable of leading to
multiple technological innovations, high-volume manufacture, and beneficial uses

and the overall economy. 5

Confusions and conflicts arise between innovation and regulation are unavoidable, but the
willingness to resolve them quickly and seamlessly is the key to attracting both investors and
innovators.6


11 https://carnegieindia.org/2017/02/28/let-drone-industry-take-off-pub-68147
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.

Drones or simply the Unmanned Aerial Vehicles have an access decentralized airspace which
also reduces the work of the:

Agriculturists
Construction workers, and
Other civilians by also giving them aerial surveillance.
Therefore, this quick revolution of technology does not only come with positive implications but
also with negative implications. With drones, it is getting easier to violate the privacy and
encroach upon the personal lives of people. Hence, it is considered extremely important for the
legislature to implement laws which will make good use of the drones within the said
permissible limits.

5.8. Conclusion
The guidelines for controlling of drones have not been framed properly. The rules cater more to
high altitudes rather than controlling the flying the UAFs at low altitudes for commercial or
recreational purposes and guidelines restrict UAFs from flying in controlled airspaces. However,
its goal is to prevent the UAFs from colliding or blocking each other and causing harm. Flying
drones at lower altitudes increases the risk of colliding with the landowners as well as other
drones. Indian courts have not been handed the opportunity to deal with such situations yet due
to lack of detailed inspection and according to the judiciary, a person is allowed to use airspace
over his or her land, only till the limit that is necessary for the ordinary use and enjoyment of
land.