It has been nearly one year since India’s Directorate General of Civil Aviation (DGCA) issued its draft drone guidelines. Given the criticality of these regulations in shaping a relatively young industry in India, several industry bodies and startups had provided feedback and pushed for timely action.
That drones have tremendous practical applications can no longer be disputed. Some of India’s startups are revolutionising drone applications in areas as diverse as disaster management, precision agriculture and crop insurance, mining, infrastructure projects, and land records. The increasing use of drone-enabled solutions by various state departments and ministries — such as the railways, surface transport, power, and law enforcement — further validates their efficacy.
Yet, the Indian regulatory approach has been unfriendly thus far towards drone innovations and applications. For starters, numerous delays have occurred in finalising guidelines even after accounting for usual bureaucratic inertia. Back in October 2014, DGCA issued its first public notice, announcing that no non-government agency, organisation, or individual would be permitted to launch an unmanned aircraft system for any purpose until it issued binding regulations.
This mandate continues because the April 2016 guidelines are still in draft stage. A prohibition of 28 months and counting — with private players operating in a grey zone of quasi-permissions by local law enforcement — does not bode well for either innovation or technological adoption. Moreover, while regulation often lags behind innovation, the common default position — acts not expressly prohibited stand permitted — is comforting enough. But with civilian drones, the express prohibition places them at grave risk, providing fodder for law enforcement to officially stall test activities and use cases, and even make arrests. The regulatory tardiness in creating appropriate legal safe harbours will naturally lead to diminishing investor interest and research initiatives.
Several areas of turbulence
The draft guidelines also suffer from serious regulatory gaps and errors, in particular, a haphazard redressal of property and privacy concerns arising from civilian drone operations; indifference to a possible patchwork of rules arising from “drone federalism”; and indifference to evolving technological capabilities in this area.
The draft places emphasis, as it should, on security concerns. Hence the elaborate 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 ignores two equally important concerns: property and privacy.
Property-related concerns arise because, unlike manned aircraft, civilian drones fly at lower altitudes, gathering data and carrying out aerial remote sensing. Many drone operators offer big 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.
Clarity on this issue will determine the possible outcome of any trespass claims against drone operators. In the US, courts have insisted on injurious, rather than mere factual intrusion for arriving at a finding of trespass in the airspace ownership contest. But absent any guidance on this issue by Indian courts and law makers, the uncertainty continues with the guidelines doing nothing to address it.
Similarly, the big data business model presents serious privacy challenges. As technology evolves, the ease of capturing superior quality images from higher altitudes will get progressively better. In the absence of a robust privacy law in India, drone-enabled solutions could wreak havoc on the notion of privacy, especially when deployed by journalists and law enforcers. The guidelines ought to have devoted 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 cursory reference to privacy by way of Guideline 10.4, irrationally banking on the goodwill of drone operators as an effective safeguard. The guidelines also reveal indifference to the emergence of a potential rules overdrive resulting from “drone federalism.” This situation occurs when States enact their own rules, adding to the national regulatory framework. The trespass and privacy concerns are “actionable wrongs” within the law of torts, ie, non-statutory common law claims adjudicated by courts, and hence, part of the Concurrent List in India’s federal scheme.
So, States can legislate to address them until the Union intervenes. Moreover, rights in or over land are part of the exclusive preserve of States. Thus, the operation of drones could fall 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 within the jurisdiction of both.
To avoid a potential excess of rules and rule-making authorities, the civil aviation ministry must harmonise the regulatory framework across India. The compliance woes faced by online cab aggregators in India, due to a similar cluster of rules enacted by different States, strengthens the case for such intervention.
Finally, the guidelines proceed on an assumption of static technology capabilities. This is best exemplified by the draft’s approach to beyond-line-of-sight operations. The guidelines only permit 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. Technology is evolving fast to offer sophisticated sense-and-avoid solutions, rendering an absolute mandate on visual line-of-sight too rigid and inflexible. Therefore, conditional permits to such operations based on the technology deployed would have been better.
Moreover, the guidelines also provide no window to evaluate technological leaps and mould the regulatory framework accordingly. When regulating fast-evolving technologies, the regulator must necessarily adopt a more facilitative role. One way to do so is through regulatory sandboxes — a concept put to use by regulators in the UK and Singapore. This concept permits 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.
Overcoming the present regulatory inertia is important both from the perspective of the civilian drone industry — one capable of leading to multiple technological innovations, high-volume manufacture, and beneficial uses — and the overall economy. Tussles between innovation and regulation are unavoidable but the willingness to resolve them expeditiously is key to attracting both investors and innovators.