Domestic Air Laws in India

Mr. Habib Zafar Khan

LL.B (Rank 1); LL.M (International Trade and Business Law-Rank 3)
Research Associate, Centre for Air and Space Law (CASL)
NALSAR University of Law, Hyderabad.
habib.nalsar@gmail.com
 MODULE-I: DOMESTIC IMPLEMENTATION OF
INTERNATIONAL LAWS AND INTERNATIONAL
AIR LAWS IN INDIA, UK & USA
1.1 Why Domestic Implementation of International Law

1.2 How Domestic Implementation of IL happens?

1.3 Customary Principles and International Law

1.4 Domestic Implementation of International Treaties

1.5 Domestic Implementation of IL in India

1.6 Indian Constitution and International Law

1.7 Indian Judiciary and International Law

1.8 Important Cases

To be Continued………..
Module 1
1.9 EU -Origin and development of Regionalism

1.10 EU and Air Transport Regulations

1.11 EU and Air Transport; leading cases

1.12 UK – Origin and development of Air Transport Regulations

1.13 UK- Recent Development in Air Transport Developments

1.14 UK and Air Transport; leading cases

1.15 USA– Origin and development of Air Transport Regulations

1.16 USA- Recent Development in Air Transport Developments

1.17 USA and Air Transport; leading cases

 MODULE II: DOMESTIC IMPLEMENTATION OF
INTERNATIONAL AIR LAW IN INDIA: A FOCUS ON
AIRCRAFT ACT 1934 & AIRCRAFT RULES, 1937
2.1 Aviation Regulation before 1911
2.2 Airships and Aircraft Act, 1911 and Aircraft Rules, 1920
2.3 Aircraft Act, 1934
Aircraft (Amendment) Act, 1983
Aircraft (Amendment) Act, 1985
Aircraft (Amendment) Act, 1988
Aircraft (Amendment) Act, 2000
Aircraft (Amendment) Act, 2007
2.4 Aircraft Rules, 1937 and Various Amendments
2.5 The Aircraft (Demolition of obstructions caused by Buildings and Trees
etc.) Rules, 1994
2.6 The Aircraft (Carriage of Dangerous Goods) Rules, 2003
2.7 Civil Aviation Regulations
2.8 Important Cases
 MODULE III: DOMESTIC IMPLEMENTATION OF
INTERNATIONAL AIR LAW RELATING TO AIR SAFETY
AND SECURITY
3.1 ICAO, India and Air Safety Regulations

3.2 DGCA and Air Safety Regulations in India

3.3 Air Safety Regulations and Recent Developments

3.4 Tokyo Convention 1975

3.5 Anti-Hijacking Act, 1982

3.6 Unlawful Seizure against the Safety of Civil Aviation 1982

3.7 1994 Amendments to the above Acts

3.8 Recent Developments

3.9 Civil Aviation Regulations (CAR)

3.10 Important Cases

MODULE IV: DOMESTIC IMPLEMENTATION OF
INTERNATIONAL AIR LAW RELATING TO
AVIATION LIABILITY IN INDIA

4.1 Civil and Criminal Liability in India

4.2 Carriage by Air Act, 1972

4.3 Rules notified under Carriage by Air Act, 1972

4.4 The Carriage by Air (Amendment) Act, 2009

4.5 Notification regarding application of the Carriage by Air Act, 1972, to

Carriage by air which is not international

4.6 Mangalore crash of an Air India

4.7 Important Cases

  
MODULE-V: CONTEMPORARY ISSUES IN
AVIATION SECTOR IN INDIA
5.1 Liberalization and Open skies policy
5.2 Air Corporations (Transfer of Undertaking) Act, 1994
5.3 Airport Privatization: Emerging Legal Issues
5.4 The Airports Authority of India Act, 1994 & Privatization of AAI 2003
5.5 Airports Economic Regulatory Authority of India Act, 2008
5.6 FDI in Aviation Sector
5.7 Aircraft Leasing
5.8 Unmanned Aerial Vehicles (UAVs):Indian Perspective
5.9 Airport Slot Allotment
5.10 Consumer Protection in Civil Aviation
5.11 Need Of Civil Aviation Authority (CAA)
5.12 Economic Impact Of Airport Infrastructure
5.13 Taxation On Aviation Turbine Fuel (ATF) In India
5.14 Criminal Law And Civil Aviation Need For Change
5.15 Patent Rights In Aviation Industry
 MODULE-I: DOMESTIC IMPLEMENTATION OF
INTERNATIONAL LAWS AND INTERNATIONAL AIR LAWS IN
INDIA, UK & USA Implementation IL in India
• What is Law ?
Law is an instrument of orderliness in the society i.e. Rules, Recognized and Enforcement.
• What is International Law?
International law is generally defined as the body of rules and regulations which determines the
conduct of sovereign states now it also includes Non State Entities.
• Relationship between I.L and Municipal Law?
In case of international law, direct implementation is not possible as the states do not surrender
their sovereignty to any external force.
The relationship between the municipal and international law is made clear in the landmark case of
Alabama Claims Arbitration wherein it was concluded that neither municipal legislative
provisions, nor the absence of them, could be pleaded as a defense for non-compliance with
international obligations.
This view was by endorsed by the Permanent Court of International Justice in an advisory opinion
to hold that“…a State which has contracted valid international obligations is bound to make in
its legislations such modifications as may be necessary to endure fulfillment of the obligations
undertaken
The implementation of international law at the domestic level is based on various
theories adopted by nations:
a) Monistic Theory: Suppertors are Kelsen, Westlake and Lauterpacht. What is
State? Individuals are the root of all legal systems.
b) Dualistic Theory: Supporters: Triepel Anzilotti.
The two systems are distinct when it comes to sources, subjects, substance of law,
principles and dynamism of subject matter. India adopts the above theory
c) Transformation Theory
d) Specific Adoption Theory
e) Delegation Theory
Why implementation of I.L.?
•Changing Notions of State Sovereignty
•Globalization and its Impact on Society
•Independent States to Interdependent states
•Law Makers to Law Takers
•Role of States as Regulator to Facilitator
•Status of IL is changing from a weak (unenforceable) to strong (enforceable) Law
•Implementation not by coercion or compulsion but by consensus or cooperation
 Domestic Implementation in India

• Pre and Post Independence Era

• Pre-Independence-British Common Law Traditions
• Post Independence-Indian Constitution
• Why India has to Implement I.L?
• India’s International Obligations
• India is Party to Many International Treaties
• Member in International Organizations
 Indian Constitution and I.L
• What is Constitution?
The Constitution of India is the supreme law of India. It lays down the
framework defining fundamental political principles, establishes the
structure, procedures, powers and duties of government institutions and
sets out fundamental rights, directive principles and the duties of
citizens.
• General – Art. 51—Directive Principles: Promotion of international
peace and security.-
The State shall endeavor to- (a) promote international peace and
security; (b) maintain just and honorable relations between nations; (c)
foster respect for international law and treaty obligations in the dealings
of organized peoples with one another; and (d) encourage settlement of
international disputes by arbitration.
• Executive Powers in Law
Articles 53, Articles 73, Articles 77.
 Constitution Conti……

• Legislature (parliament) and Treaty-making-power—Articles-

245 and 246 along with 7th Schedule -- Other Articles includes 248,
253, 254, 299 and 372.
• Article 246: Parliament’s exclusive power to make law on the matters
enumerated in Schedule VII, List I
• Article 245 (2): extra territorial jurisdiction to the laws made by the
Parliament of India
• Article 253, read with entry 14 of the Union List in Schedule VII,
Parliament’s exclusive power to make any laws for implementing any
treaty, agreement or convention with any other county or countries or
any decision made at any international conference, association or body.
• Entry 41, List I, Schedule VII, Parliament’s exclusive jurisdiction with
respect to trade and commerce with foreign Countries, import and export.
Constitution Conti..
• Art. 73, extent of executive power of Union over the matters within
the jurisdiction of Parliament of India
• Art. 260 recognizes the Central Government’s competence to act in
legislative, executive, judicial capacity for any territory which is not part
of India by agreement with the government of that territory, subject to
any law relating to foreign jurisdiction for the time being in force
• Observation: Delegated legislation as an Important means of domestic
implementation of International Trade Law
• Art. 363, bars the jurisdiction of Indian Courts except the Advisory
jurisdiction (Art. 143) in any dispute arising out of any provision of a
treaty, agreement, covenant, engagement, sanad or other similar
agreement entered into before commencement of constitution of India
• Art.372, pre- constitution laws to be continued in force unless
repealed, altered or amended by a legislature or competent authority
 I.L and the Indian Judiciary
• I.L. is no application of Municipal Spheres, to implement them specific
legislation is very necessary
• Example– Satya Vs. Teja Singh AIR 1975 Supreme Court Said “Every Case
which comes before an Indian courts must be decided in accordance with
Indian Law”
• Customary rules of International law
• Peoples’ Union for Civil Rights v. Union of India (1997)- Customary
rules of International law deemed to be incorporated in international law
unless contrary
• International Agreements
• In re Berubari (1960) , Magan Bhai v. U.O.I (1969), Keshavanada
Bharati v. State of Kerala (1973), Vishakha v. State of Rajasthan(1997)
International covenants to which India is a signatory are part of domestic law
as far as there is no conflict between the two.
 Supreme Court and Customary I.L.
• ADM Jabalpur Vs. S. Shukla AIR, 1976
• Gramophone Co. of India Vs. B.R. Pandey AIR 1984
• PUCL Vs. Union of India AIR1997
• Vellore Citizens Welfare Forum Vs. Union of India AIR 1996
R. M. Investment and Trading Co. Pvt. Ltd. V Boeing Co. (1994)
Supreme Court stated, “…it is to be borne in mind that The Foreign
Awards (Recognition And Enforcement) Act, 1961 is calculated to sub serve the
cause of facilitating the international trade and promotion thereof by providing for
speedy settlement of dispute arising in such trade through arbitration and any
expression or phrase occurring therein should receive consistent with its literal and
grammatical sense, a liberal construction.”
 Int. Treaties and the Indian Judiciary
• State of Madras Vs. G.G. Menon AIR 1954
• Maganbhai Vs. Union of India AIR 1969 the Supreme court re-iterated
that various international covenants, particularly to which India is a signatory
or party, becomes part of national law, in so far as there is no conflict
between the two.
• Jolley George Verghess Vs. Bank of Cochin AIR 1980
• Vishakha Vs. State of Rajasthan, 1997 the Supreme Court held that the
international conventions and norms are to be read into them in the absence
of enacted domestic law occupying the field when there is no inconsistency
between them… to enlarge the meaning and content thereof, to promote the
object of the constitutional guarantee..”
 India and International Trade Law
• IMF- India one of the founding Members; seeks help for correcting
BoP

• WORLD BANK: India’s relation with the world bank beginning with
initial desistance and then in 90s in great dependence by India on
IBRD for correcting its BOPs, has now reached at a basic mutual co-
operation, and heading in the same direction.

• UNCTAD, UNCITRAL, UNDP, UNIDO

• GATT and WTO
Domestic Implementation of IPRs in India
• Existing Laws in India provide enough scope for enforcement as
mandated by TRIPS Agreement, which are as follows:

• Patents Act, 1970

• Trade Marks Act, 1999
• Copyright Act, 1957
• Designs Act, 2001
• Protection of Plant Varieties and Farmers’ Rights Act, 2001
• Geographical Indications Act, 1999
• Semiconductor Integrated Circuits Layout-Design Act, 2000
 India and International Civil Aviation
• India is party to all important treaties on Int. civil aviation and to implement
most of the above treaties it also made enabling legislations which include:
• 2.1. Air Ships Act 1911
• 2.2. Aircraft Rules (Custom)1920
• 2.3. Aircraft Act, 1934
• 2.4. Aircraft Rules, 1937
• 2.6. Aircraft Public Health Rules 1954
• 2.8. Carriage by Air Act, 1972
• 2.9. Tokyo Convention 1975
• 2.10. Anti-Hijacking Act, 1982
• 2.11. Unlawful Seizure against the Safety of Civil Aviation 1982
• 2.13. Air Corporations (Transfer of Undertakings and Repeal) Act 1994
• 2.14. Airport Authority Act 1994
• 2.15 . The AERA 2008
• 2.16. Carriage by Air Act (Amended) 2009
Thank You