By Dr. Poornima Advani, partner, The Law Point
From protecting farms to traffic management, India is moving ahead with the use of drones, as contactless operations have caught on amid the pandemic. But their flight path ahead will need rigorous planning, despite many safeguards introduced in recently-notified rules.
Under the draft Unmanned Aircraft System Rules issued in June, policymakers have shown prudence by requiring drone operators to seek permits that are renewable every five years as well as pilot certification.
Not only will drone manufacturers and importers be able to sell only to individuals who have been approved by the Director General of Civil Aviation (DGCA), but the flight paths will also need prior permission through an online platform called Digital Sky.
While these provisions show commendable foresight, abundant caution will need to be exercised as unmanned aircraft kitted out with sensors also have the potential to infringe upon privacy as well as other misuse.
Under Rule 35 (1) of the Rules an unmanned aircraft is allowed to capture images — except in certain no go zones — so long as it ensures privacy of an individual and his property.
However, there are two areas of concerns which require greater clarity. First, there are no clearly defined rules on how to protect such ‘privacy’ of an individual. Secondly, the provisions are silent on what defines an individual’s property and whether it includes such things as intellectual property and data protection.
The word ‘privacy’ is again mentioned under Schedule VI (Rule 29) of the rules, where operators are mandated to ensure such a right of individuals as a pre-condition for issuance and renewal of Unmanned Aircraft System (UAS) permits. Like in the preceding sections, there is a need to elaborate upon how to comply.
Further, the provisions exempt any central government, state government or agency from the obligation for obtaining a permit, so long as it is in the interest of ‘security of India or national interest.” In fact, Rule 57 vests the central government with the power to exempt any entity from these rules, subject to certain considerations.
There is no doubt that such a consideration would only be of a grave nature to allow such exemption, but specifying them can go a long way in preventing mishaps.Such words like ‘security of India or national interest’ are too broad and can be open to a host of interpretations.
On the other hand, policymakers will have to contend with whether any use of drones falls well within the ambit of right to privacy that finds a pride of place in the Indian constitution. It expressly prohibits the government from invading upon this right of an individual under the garb of national interest.
In a ruling on Justice K.S. Puttaswamy (Retd) v Union of India and Ors. (2017) 10 SCC 1, the court said any infringement of the right to privacy must be achieved by a law that is ‘fair,just and reasonable.’
Bestowing such a power on any authority, without setting clearly defined boundaries, would likely fail the test of proportionality — that is the risks might outweigh the rewards. These could be fraught with legal complications because of the danger of loose interpretation.
The scope for an overflying drone — many of which weigh less than a bird — to capture image of an individual in his house or property are immense. It might also be in everybody’s interest to reexamine penal provisions.
For instance, a criminal charge of voyeurism against a drone operator, for which there is a maximum two-year sentence prescribed under the drone rules, is untenable with a three-year sentence provided under Section 354C of the Indian Penal Code.
While authorities have so far maintained caution in not allowing drones to operate in densely populated urban and suburban areas, the convenience of using a drone could easily override such a demarcation in coming days.
Drones also have the potential to cause tremendous damage. Only last year drone attacks at two key oil installations in Saudi Arabia, disrupting oil supplies from one of the world’s largest suppliers.
Therefore, it would be best to tighten up rules before usage of drones becomes rampant.
While the Ministry of Civil Aviation has appointed the Directorate General of Civil Aviation (DGCA) for overseeing the sector, but given the tremendous amount of work that drones are likely to perform in coming days it would be wise to appoint an appellate authority for adjudication.
This should go hand in hand with easier procedural processes such as single window clearance for approvals, preferential treatment in operations for projects of national importance as well as expediting their use during natural disasters or emergency.
Broader national objective
But the work on fine-tuning policies has to go much beyond drafting laws, if we are to truly harness the potential of this promising technology.
There needs to be a policy framework on how to use this promising technology to meet national priorities like agriculture, survey of resources along with disaster response. Accordingly, special provisions must be outlined for a category of projects of national importance to prevent them from getting stuck in red tape.
At times like the recent nationwide lockdown, when cars and trucks were barely moving, drone technology could have been used to transport essential medicines to anybody in need of remote parts.
It would be imperative to have a strong central command structure for their deployment which should not get bogged down because of the need for multiple permits from state governments.
A regulator on the lines of Securities and Exchange Board of India (SEBI) needs to be established urgently for supervision and vigilance. This might be established as an independent entity or an autonomous wing of the DGCA, which currently is short-staffed and has its hands full with passenger aircraft.
Besides, there needs to be a broad drone infrastructure including testing and manufacture. Currently, a large number of drones are made in China and it would be prudent to have a long term vision in keeping with Prime Minister Modi’s vision of a self-reliant India.
Otherwise, we may end up falling short and losing out in the race to establish a critical technology that potentially offers many logistic solutions to connect each and every part of India’s varied terrain.
*The author is founding partner at law firm The Law Point, and has previously served as the Chairperson of the National Commission for Women (NCW).
MediaNama has also prepared an exhaustive guide to the drone industry in India, encompassing regulations, use cases, concerns around privacy and surveillance, and the way forward for the industry. The guide is here.