drone certificationAnalysing The Drone Rules – Transport

October 27, 2021by helo-10
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The Ministry of Civil Aviation, India published the Drone Rules
on August, 25, 2021(“Drone Rules“). This
article while briefly noting the potential of drones and the
considerable improvements made over the extant Unmanned Aircraft
System Rules, 2021 published in March 2021 (“UAS
Rules
“), makes reasoned suggestions for improving the
proposed framework of the Drone Rules.

Presently, drones are primarily used for inspection and survey
but have immense potential in various sectors, such as commercial
operations, last mile delivery schemes (eg. Telangana governments
initiative of delivering vaccines and medicines using drones,
“Medicine from the Sky”)1, agriculture
(spraying pesticides to swarm off wards of locusts), oil and gas
explorations, mining and quarrying, urban and transportation
planning, drone taxis and in providing adequate support to our
security personnel to name a few. With the help of LIDAR and
photogrammetry, drones can directly benefit heavy industries in
mapping and surveying as drones have the capacity of doing the
groundwork in a fast, safe, accurate and economical way.
Mr.Yashwant Sinha shares in his autobiography,
‘Relentless’,2 how as an IAS officer in the
early years of his career, he was deputed to conduct a survey of a
land being acquired for the Heavy Engineering Corporation Plant at
Hatia, near Ranchi. With drones in place, perhaps the present-day
bureaucracy could also benefit from drones and channelize their
energy into other places. Realising the potential, the National
Highway Authority of India recently made drone surveys mandatory
for monthly video recordings of all National Highway projects
during development, construction, and O&M activities in the
presence of a supervision consultant.

As per the Director of the Drone Federation of India, drones
could add 5-7 lakh jobs in the Indian economy3. Hence
drones have immense potential in development of and providing jobs
into the economy. With the airspace map published, it is necessary
to acknowledge that the Drone Rules are an improvement over the UAS
Rules for several reasons, few of which are stated below,

  1. simplicity: from 69 pages, the rules have been considerably
    simplified in size to 19 pages.

  2. number of approvals, forms (from 25 to 5), and fees (72 to 4)
    have been reduced.

  3. there is an attempt to reduce human interface and automate
    (Rule 43(2), Rule 45)

  4. area under Yellow zone has reduced from 45 kms from the
    perimeter of the airport to 8-12 kms from the airport

  5. the weight of drones covered by the rules and exempt from the
    Aircraft Act, has increased from 300kgs to 500 kgs,

  6. security clearances are not necessary for registration and
    licensing, drone corridors have been proposed,

  7. foreign companies restrictions stand removed (i.e. principal
    place of business of the drone operator must be India, and at least
    2/3rd of the Directors must be Indian Citizens)

While noting the improvements made, and the Ministries statement
that the rules are “built on a premise of trust,
self-certification and non-intrusive monitoring”, a few points
were missed out and addressing them could help further
rationalization of the Rules. Some of these points are discussed
below:

Firstly, on personal data and privacy: The existing UAS
Rules, had cast an obligation on drone operators to ensure privacy
of individuals. However, the Drone Rules do not even mention the
word ‘privacy’. To the contrary, Rule 254 allows
all “State Governments, Union Territory Administrations and
law enforcement agencies” to have “direct access to the
digital sky platform.” This is a slight improvement over
“providing direct access to all the data in digital sky
platform” as the draft rules provided. The Digital sky
platform is an online platform hosted by the Director General of
Civil Aviation, India (“DGCA“) for
managing drone and various related activities. The rationale seems
to stem from the concern expressed by the Supreme Court in KS
Puttaswamy vs UOI5 that privacy may only be interfered
with when it is backed by law. Rule 25 in its present form
oversteps the mandate of law by authorizing direct access to data
on the platform to governments and law enforcement agencies. This
rule completely ignores guiding principles of privacy such as
purpose limitation, necessity and proportionality. Under the rules,
neither is there any compelling state interest for individual data
to be accessed nor is there any regulator who will investigate the
legitimacy of the request of access to data. Direct access is
ipso facto provided to all law enforcement agencies. This
is a flagrant violation of the consent principle of data. If an
individual has data on the digital sky platform, it is for drone
related activities. There may be a reasonable expectation that with
pseudonymisation and anonymization, the data would be used by the
DGCA for research and facilitating drone activities, hence these
activities may be permitted. So would access to data in
investigations since there would be a compelling state interest,
and after balancing requirements of necessity and proportionality,
access to data in cases of investigation would be permitted as
well. However, after privacy being recognized as a fundamental
right, drone usage cannot be made contingent on waiving fundamental
rights. The rule in its present form does exactly that by providing
direct access of the data to the nodal officer of the State
Government, Union Territories and law enforcement agencies. To
merely assuage by saying that the government will not unnecessarily
access data would be paying lip service to privacy as a fundamental
right, a fundamental right is not contingent on the whims and
fancies of the executive. If the data will not be accessed
unnecessarily, the law need not be worded so widely.

Secondly, on approvals given by foreign regulators:
Rule 106 permits the Director General of Civil Aviation
to certify drones based on approvals granted by international
regulators of States that are party to the Chicago Convention,
19447.

In the EU, under Article 57(f) and Article 90 of Easy Access
Rules for the Basic Regulation (EU) 2018/1139, a competent
authority has the power to provide for procedures for conversion
of national certificates into certificates for compliance of
unmanned aircraft
(Article 56). It is suggested that we should
adopt a system akin to a system prevalent in the European
Union(“EU”). A similar power must be
provided to the DGCA in India, i.e. the power to provide for a
procedure for the conversion of national certificates into
certificates of compliance under the Drone Rules, 2021.

Thirdly, on Community data this was an area which was
identified by the Sri Krishna Committee Report as deserving of
future law but no concrete recommendations were made apart from
recognizing the principle that such data deserved protection. If
data on digital sky platform could be used by government
authorities, ipso facto as provided under Rule 25, not
only would it interfere with individual autonomy and decisional
autonomy by using big data to identify behavior patterns, but even
unprotected corporate data (i.e., data not protected under the IP
regime) would fall under the scanner of ipso facto access
by the government in lieu of Rule 25. This would be a major
disincentive for private investments and corporate participation in
this developing sector, hence further augmenting the need to tweak
Rule 25.

Fourthly, on control and transfers of drones: Rule
178 permits for transfer of drones by providing some
details on the digital sky platform. However, there is no method of
identifying who has control of drones at times of usage. Given the
immense potential of misuse of drones, it becomes very important to
establish control to facilitate investigations. Let us say a drone
belongs to X, and X is unaware that Y is using the drone for some
illegal purpose, say spying over X’s neighbors.

The assumption that a person in possession of the drone has
ostensible control of the drone in law may well operate but given
the possibility of rogue drones or drones being used for illegal
purposes and the simplicity of the Digital Sky platform, there
could be a simple non-time-consuming method of recording drone
control, like a simple photograph or OTP provision to enable law
enforcement agencies to prima facie establish control during
investigations. The specifics of what may be done is independent of
the fact that apart from transfer of drones, a simple,
non-intrusive method of recording control of drones must exist.

Fifthly, on Research and Development
(“R&D“):
Rule 429
provides exemptions to a certain class of persons from requiring a
certificate of airworthiness, prior permission, UIN and remote
pilot license for operating drones for the purpose of R&D. This
benefit has been limited to educational institutions and R&D
entities under the administrative control of or recognized by the
government. Exemptions must be further provided to enable
collaboration between Indian universities or companies with foreign
universities and companies in drone development. This further
exemption would be acknowledging the reality of R&D in India,
as pointed by the Economic Survey (2017-2018), that is:

  1. R&D spending in India – 0.6% of GDP vs
    2.8%(USA), 2.1% (China), Israel (4.3%)

  2. Private R&D has lagged in India with only 26 Indian
    Companies in the list of top 2,500 global R&D spenders (Forbes,
    2017)

  3. in most countries, though government plays an important part in
    funding, bulk of R&D is carried out by the private sector
    vs India where government is the primary user of R&D
    funds as well, hence the private sector needs to increase its
    R&D.

  4. Indian universities play a relatively small role in the R&D
    of the country. R&D is concentrated in specialized research
    institutes, hence there is disconnect in teaching and
    research.

Hence there is huge catch-up space for the private sector to
converge on R&D spending. 19 of the 26 Indian companies in the
top 2,500 global R&D spenders are just in 3 sectors (pharma,
automobile and software). So, firstly, due to industrial potential
of drones in India coupled with the lack of private sector spending
in R&D and the possibility of the void in development of drones
being filled by collaborative efforts between private sector and
foreign universities, the same must be facilitated by a rules based
approach. Secondly, that professional institutes would be engaging
in R&D on drone and that substantial investment & autonomy
in research would be required for it to proliferate, exemptions
must as a matter of rule, and not discretion(under Rules 48) be
provided to recognized private entities/institutions which
collaborate with universities abroad or in India to develop drone
R&D. These conditions would as a matter of policy and not
discretion help create incentives for collaborative research and
the aforesaid exemption would be a step in the right path.

Notwithstanding the recent drone attacks in Jammu (in July,
2021), liberalising the drone policy in India is a step in the
right move. It would allow our forces to extensively use drones,
not just in Kashmir, but also instances like the Salwa Judum in the
past where untrained, children and citizens of the State were armed
to deal with the Naxalite issue in anti-insurgency operation and to
reconnoiter hence jeopardising their lives. The drone attacks in
Jammu should be a reminder that it is not the drones that are bad,
but the persons behind the drones. We need Counter-Unmanned
Aircraft System solutions, like geo-fencing agreements with
commercial drone manufacturers which would prevent the drones from
flying near critical infrastructure by pre-programmed codes put in
by manufacturers. Drone Rules, replacing the UAS Rules indicates
that the government is aware that we don’t need over-regulation
but smart regulation. Solutions to technology lie in technology and
a system which is well developed can take care of its own needs, by
innovation and tech development. The time is ripe to allow the
system to flourish. Simplification of the rules is a process in the
right direction, rationalization of the rules will only help the
process further.

Footnotes

1. https://timesofindia.indiatimes.com/city/hyderabad/in-a-first-in-india-t-deploys-drones-to-deliver-vax-drugs/articleshow/86130707.cms

2. Page 78, Chapter 5: A Life Apart,
Relentless.

3. https://www.business-standard.com/article/economy-policy/india-has-decided-to-be-leader-in-drone-technology-drone-federation-121071600081_1.html

4. Rule 25, Drone Rules : “Access to
digital sky platform.—The nodal officers of State
Governments, Union Territory Administrations and law enforcement
agencies shall be provided direct access to the digital sky
platform”

5. AIR 2017 SC 4161.

6. Rule 10, Drone Rules.

7. The Convention on International Civil
Aviation, 1944.

8. Rule 17, Drone Rules.

9. Rule 42, Drone Rules.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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