Sometime in 2014, an enterprising pizza outlet in Mumbai hit upon a novel marketing scheme. It decided to mock-deliver a pizza using a drone. The outlet did manage to get media attention but for an altogether different reason. Mumbai police stated that the drone posed a security risk and wrote to the outlet asking why it had not taken prior permission. The drone was in all probability confiscated and the owner of the pizza outlet questioned by the police. This one example encapsulates the entirety of the debate surrounding the use of drones in civilian airspace in India.

You have the technology itself, the drone used for the delivery. You have an entrepreneur who sees potential for a new use for the technology and is willing to test it out. And finally you have the state, which is unsure of how to react to this scenario and, therefore, does so in a knee-jerk fashion. All this neither resolves the basic issues brought up by the technology nor allows an entrepreneur to go ahead with the use of the technology.

Unmannned Aerial Vehicles (UAVs) or ‘drones’ have begun firmly entrenching themselves in civilian airspaces across the world. While UAVs or Unmanned Aerial Systems (UAS) are the official terms used for this technology, we will use the more colloquial ‘drones’ as a catch-all term.

Civilian drones are amongst a new wave of technologies that will fundamentally change the way we live in the coming century. Their immense and varied potential, briefly discussed below, has caught the attention of private players and governments across the world. However, with an ever increasing number of drones taking to the skies, numerous regulatory concerns have been raised in various countries, including India. Given the ambiguous nature of drones, existing airspace regulations do not effectively answer the issues raised by their use. These include traditional airspace management issues, such as ensuring that drones do not interfere with the flight paths of commercial airlines, along with other issues, such as possible violations of privacy and property rights.

This article aims to one, study the existing government policies that relate to the use of civilian drones in India. And second, highlight the necessity of adopting policies that facilitate technological innovation. To that end, it is broadly divided into four parts. The first outlines the civilian application of drones. The second briefly highlights the drones industry in India. The third section engages with the recent draft guidelines issued to regulate the use of civilian drones in India. Finally, it looks at the road ahead for regulation of civilian drones and ties this issue into the larger debate surrounding the regulation of new technologies.

Drones were first used by militaries in a number of varied roles, initially starting with aerial surveillance and then increasingly moving towards frontline offensive roles, a use which has been highly controversial. From the military space, however, drones are becoming increasingly ubiquitous in civilian airspaces across the world. In the civilian sector, the functions of drones can be divided into two broad categories. First, direct commercial functions, which include aerial photography, videography and delivery of products. These are areas which would require little to no government interface and where drones can be used on purely commercial terms. Recreational drones, which serve no commercial purpose apart from being used as ‘toys’, too would fall under this category.

Second, what can be described as ‘public functions’, which include assistance in disaster management, surveillance and geospatial mapping. These are functions which may not have commercial applications in and of themselves. The benefits of using drones in this area would accrue to the public or the government at large. There are some functions, like mapping, which would lie at the intersection of these two categories. Both private parties and the government would be interested in specific kinds of maps and related data. Within these two categories, however, the range of uses for drones is seemingly infinite at the moment. We are only at the cusp of the changes that this technology can bring to a wide variety of sectors.

As an increasing number of drones are used, the surrounding economic ecosystem will also expand. More drone manufacturers, operators and software designers will set up shop to meet the increased demand. This in turn will boost the high-tech sector in the country, a critical need to safeguard our economic future. This immense potential has been recognized by certain government departments, with drones being deployed for everything from road surveys to crowd surveillance and crop assessments. And while the government possibly remains the single biggest user of drones, the scope for private use of drones is even greater.

The civilian drones industry in India is comparatively at a nascent stage. It is estimated that the global market for civilian drones in 2013 stood at approximately $11 billion, and from 2013 to 2015, the market jumped by 167%.1 The United States is the single largest market for civilian drones, closely followed by China.2 India, on the other hand, is a relatively small market. While a large number of drone operators do exist in the country, drone manufacturing and software companies are few and on a smaller scale. The best known drone company in India for instance, Airpix, is an operator that provides drones primarily for aerial photography and videography.

By 2014 the industry in India was on a path of growth. An increasing number of drone operators, small manufacturers and software suppliers were setting up shop. A number of players, both public and private, were increasingly using drones for a variety of purposes. Along with this the necessary ecosystem, especially on the software side, began to develop. From the middle of that year however, the industry came to a virtual standstill.

With an increasing number of drones taking to the skies in India, the Directorate General of Civil Aviation (DGCA) reacted in a knee-jerk manner by issuing a notification in 2014 that banned all civilian drone flights, till such time as the DGCA issued regulations to govern their use.3 In one swoop the entire civilian drones industry in the country was grounded, leading to a comic situation where a company could manufacture drones in India but not fly them in the country. It took the DGCA over two years to issue draft guidelines, finally releasing them for public comment only in April of this year.4 While a welcome step forward, the DGCA draft guidelines are woefully inadequate, and suffer from three major defects.

First, the very basis of the guidelines is misguided and impractical. While the DGCA draft uses ‘height of flight’ as the basis for regulation, most other countries use the weight of the drone. The draft regulations require licensing from the DGCA for all drones that fly above 200 feet and permission from the local administration for all flights below this level. It is unclear how the DGCA plans on enforcing this. While technology that can track the altitude of a drone exists, to employ this for hundreds of thousands of drones would be a prohibitively expensive proposition for both the DGCA and drone operators. Weight is a far easier criterion to use for regulation. Drones with different weights have differing commercial possibilities and pose varied levels of security threats, allowing for differing levels of regulation. This is a fact that the DGCA seems to have overlooked.

Second, the entire act of regulation is approached from a security paradigm as opposed to a commercial one. This, coupled with the first point raised above, leads to over regulation in the draft guidelines. For example, any drone flight within a 40 kilometre radius of Delhi is banned. This area covers not only Delhi city itself, but also the technology hubs of Gurugram and Noida. Further, all drones which fly above 200 feet have similar licensing and pilot training requirements, irrespective of their weight. As mentioned above, drones of different weights offer differing levels of security threats. Treating them the same, however, highlights the fact that the draft guidelines are aimed primarily at restricting rather than facilitating the use of drones. Nowhere in the draft is there even a hint that the DGCA is aware of the immense commercial possibilities of drones. Even the smallest of drone operations require permission and clearances from a multitude of government agencies.

Third, the regulations either do not engage with a number of issues raised by the use of civilian drones or do so in a cursory fashion. These include questions related to privacy, data protection and liability in case of violation of property or privacy rights. In the entire nine page document there is only one line, ‘privacy and protection of personnel/property/data shall be given due importance’, that deals with these issues. There is no further clarification on what ‘privacy’ or ‘protection of personnel/property/data’ mean. Further, given the general lack of adequate privacy protection laws in the country, it is unclear how liabilities in case of violations by drone operators will be enforced.

Apart from these three major issues, there also exist a number of smaller. It is, for example, unclear whether the guidelines would apply to government operated drones as well as privately owned ones or only to the latter. The general understanding of ‘civilian’ means anything that is not within the specific realm of the military. If we were to take this definition, then the draft guidelines impose the same onerous conditions on government non-military operated drones as they do on drones owned and operated by private individuals or companies.

On the whole, it is clear that the draft guidelines have been drafted almost as an afterthought. The text is badly drafted and raises far more questions than it answers. Judging by the document itself, it would seem that the DGCA does not or has refused to understand the commercial possibilities of this industry and has not meaningfully engaged with the potential of the technology itself. Thankfully, the draft guidelines are just that, a draft. They were opened for public comment and given the feedback thus far, should ideally undergo a major revision. Until the DGCA officially issues the guidelines, however, drone operations without prior permission are still banned.

The question of drone regulations ties into a larger ongoing debate about how regulators in India react to new technologies and the new commercial opportunities they present. The recent regulatory burden imposed on ride sharing ventures such as Uber and Ola by the Karnataka state government, for instance, is symptomatic of the knee-jerk reactions of our regulators to technologies that they do not fully understand. In the case of drones specifically, the DGCA first imposed a blanket ban on their operation, then went ahead and issued draft guidelines that seem to be unaware of the commercial opportunities this industry presents. In the process, over the past couple of years, the nascent but growing drones industry in the country has been choked. Regulatory inconsistency and apathy has dried up fresh funding to start ups in this sector as potential avenues for greater revenues have been restricted.

Regulators when dealing with these technologies, whether ride sharing or drones, seem to be unaware of the commercial implications of their actions. Any effective regulator must necessarily understand two related matters. First, they must understand the technology they seek to regulate. This includes not only understanding how the technology works, but also how it is developed, the investment involved and any supporting technology that may need to be used. Second, regulators need to map out and study the commercial aspects and potential of the technologies they seek to regulate. No innovation can be seen in isolation. The economic effect of regulating or not regulating a particular technology must always be taken into account.

At any given stage, technology will always be a step ahead of regulators. What matters, therefore, is how regulators react to the emergence of new technologies. Instead of knee-jerk reactions, regulators must work with the industry and innovators right from the stage of development. Any potential harm must be mapped out beforehand, as should the varied possible uses, commercial or otherwise.

Rgulators must facilitate rather than impede the adoption of new technologies. Drones, along with autonomous vehicles, virtual reality and the internet of things will profoundly reshape our economic future. The best performing economies will be those that are able to take advantage of the commercial possibilities opened by the adoption of these technologies. The future of the global economy will be divided between those countries that have access to these cutting edge technologies by developing them indigenously and those that do not. Countries that do not indigenously develop these technologies will remain dependent on countries that do, accentuating already entrenched divisions between developed and developing countries. For indigenous development to take place, however, there must be a regulatory environment that allows for easy experimentation and adoption of such technologies.

A luddite mindset, even if well intentioned, will do more harm than good in the long run. Recognizing this, countries have increasingly begun projecting themselves as open to research, investment and deployment of new technologies. The first driver less cars have already hit the roads of Singapore and Pittsburgh.5 The UK has released regulations that will make it easier to test driverless cars on its roads.6 Dubai sponsored and hosted the first ‘World Drone Prix’ to show how open it is to the civilian drone industry.7

Given India’s potential market size and an established technology presence, it is not necessary for us to host a drone prix to show that we are open to business and innovation. What we need to do is simply get our regulations right. As mentioned above, regulations must facilitate rather than impede the adoption of new technologies, whether they be drones or driverless cars or virtual reality. These regulations must also specifically address issues such as privacy and data protection to create a more enabling environment for these technologies.

The future, as mentioned earlier, will belong to countries that are able to take advantage of the possibilities and opportunities new technologies provide. If India is serious about becoming an economic power, it is imperative that it encourages the adoption of these technologies and creates an enabling environment for their development in the country. If, however, our policies continue to remain as inane as the one on civilian drones, there is a very real possibility of being left behind in the technology race, leaving India completely dependent on foreign corporations and technology for the foreseeable future.

This article was originally published by Seminar Magazine.

Notes

1 SeePaul Bedard, ‘Drone Sales Surge 167% to 4.3 Million, U.S Leads but China Catching Up’, Wash Examiner, 29 May 2015, http://www.washingtonexaminer.com/drone-sales-surge-167-to-4.3-million-u.s.-leads-butchina-catching-up/article/2565240.

2 Id.

3 Directorate General of Civil Aviation, Use of Unmanned Aerial Vehicle (UAV)/ Unmanned Aircraft Systems (UAS) for Civil Application (7 October 2014), available at http://dgca.nic.in/public_notice/PN_UAS.pdf

4 Directorate General of Civil Aviation, Guidelines for obtaining Unique Identification Number (UIN) and Operation of Civil Unmanned Aircraft Systems (UAS) (April 2016), available at http://www.dgca.nic.in/misc/draft%20circular/AT_Circular%20-%20Civil_UAS(Draft%20April%202016).pdf

5 Leslie Hook, ‘Uber’s Pittsburgh Pitch at a Driverless Future’, Financial Times, 16 September  2016, http://www.ft.com/cms/s/0/a8737288-7bee-11e6-b837-eb4b4333ee43. html#axzz4KcUfIMC9; Kevin Drew, ‘First Self-Driving Cars Debut in Singapore’, US News, 26 August 2016, http://www.usnews. com/news/best-countries/articles/2016-08-26/first-self-driving-cars-debut-in-singapore.

6 Alan Tovey, ‘Bill Announced in Queen’s Speech will Help Britain Become Leader in Driverless Technology’, 18 May 2016, http://www.telegraph.co.uk/business/2016/05/18/bill-announced-in-queens-speech-will-help-britain-become-leader/.

7 Rich McCormick, ‘Teenager Wins $250,000 in Biggest Drone Race Yet’, The Verge, 13 March 2016, http://www.theverge. com/2016/3/13/11217974/world-drone-prix-dubai-winner-250000.