This article is written by Paridhi Dave, from the Institute of Law, Nirma University. This is an exhaustive article which deals with the international and national laws for governing unruly passengers on board an aircraft.
Introduction
The phenomenon of disruptive passengers is not new, yet, the number of incidents is constantly on the rise. The International Air Transport Association released data in 2017 which stated that there was 1 unruly passenger incident per 1,053 flights. In 2017 alone, approximately 8,371 incidents of unruly passenger behaviour were reported.
The airlines, governments and passengers are continuously worried about the increasing frequency of these incidents. The severity of these incidents poses a disproportionate impact on the safety and security of the passengers. However, more often than not, these passengers go unpunished due to lacuna in the law.
What constitutes unruly behaviour
The definition of a disruptive passenger is laid down in Annex 17 of the International Civil Aviation Organisation (ICAO) Chicago Convention. This Convention on International Civil Aviation Security Safeguarding International Civil Aviation Against Acts of Unlawful Interference defines an “unruly passenger” as a passenger, who does not respect the rules of conduct at the airport or on-board a flight or fails to follow the instructions issued by the airport staff or crew members. Owing to this behaviour, such a passenger disturbs the good order and discipline at an airport or on-board an aircraft. A similar definition has been adopted by the Indian law under Civil Aviation Requirements, Section 3- Air Transport Series, Series M, Part VI, Issue II, 2017.
Types of acts
A disruptive passenger is someone who by their actions or stated intentions jeopardizes or might jeopardize the safety of the aircraft, persons aboard it, or property therein. The International Air Transport Association (IATA) has promulgated a ‘non-exhaustive’ list of behaviour which counts as unruly or disruptive. The list mentions the following acts:
- Illegally consuming narcotics,
- Smoking cigarettes in the aircraft,
- Consuming excessive alcohol,
- Refusing to comply with safety instructions,
- Verbal or physical confrontation with crew members or other passengers,
- Sexual harassment/abuse,
- Making threats towards the crew or other passengers, and
- Other types of reckless behaviour, including screaming, banging head on the seatbacks, etc.
The prominent factors responsible for such behaviour are alcohol, smoking and violent behaviour. The International Air Transport Association released statistics in 2017 stating that unruly passenger incidents occurred at a rate of one incident every 1,053 flights. These incidents have a disproportionate impact on the economic costs incurred.
International Air Transport Association (IATA)
IATA is a private organisation consisting of members from nearly 120 countries. The aim of this organisation is working for the promotion of the interest of various airlines. Pursuant to this, IATA has devised several guidelines and recommended practices that have over time become the standard operating procedure for airlines dealing with unruly passengers.
IATA has recommended that every member should develop a company policy to deal with disruptive passengers. Further, it has also formulated a basic guide to deal with unruly passengers. The IATA Guidance on Unruly Passenger Prevention and Management, 2015 provides numerous ways on how airlines can deal with unruly passengers. This guide also recommends airlines to enforce their respective alcohol policy so that troublemaking passengers are identified at the outset.
International Civil Aviation Organization (ICAO)
The International Civil Aviation Organization is an agency of the United Nations which was established in 1944 with the purpose of managing the administration and governance of the Chicago Convention, that is, the Convention on International Civil Aviation. The organisation currently has approximately 193 member-States. The ICAO has also issued guidelines regarding handling of unruly passengers.
International laws
Tokyo Convention, 1963
The first-ever attempt at framing international legislation for governing offences and certain other acts committed on board an aircraft was the Tokyo Convention, 1963. This legal framework has been ratified by 186 countries. It is not surprising that legislation which was conceived over 50 years ago does not entirely meet the requirements of modern air travel. Nevertheless, it is still the main reference point for airlines handling incidents which involve unruly and disruptive passengers.
Scope of the Convention
Article 1 of the Convention talks about the applicability of this law. The provisions of this Convention are applicable in cases wherein the conduct complained of is either:
- An offence under any applicable penal law or criminal code; or
- It is an act which falls short of criminal conduct but is capable of jeopardizing the safety of the aircraft or the passengers. It could also affect the general good order and discipline as well as the overall safety.
Therefore, according to the Tokyo Convention, it is not essential that such disruptive behaviour meets the threshold of criminal conduct. The mere possibility of an act which is capable of jeopardising safety and security is sufficient.
Jurisdiction
One of the most problematic provisions of the Tokyo Convention is concerning the jurisdiction. The rules as to which State can exercise jurisdiction over offences and disruptive acts committed on board an aircraft are perplexing. Article 3 of the Convention discusses the issue of jurisdiction. It can be summarised as follows:
- The state, wherein, the aircraft is registered will have jurisdiction over the offences and other disruptive acts committed on board.
- A contracting state which is not the state of registration can only assert jurisdiction in the following cases as per Article 4 of the Convention:
- If the offence has an impact on the territory of such state;
- If the offence has been committed by or against a national of that state;
- If the offence is against state security;
- If the offence leads to breach of any rules or regulations concerning the flight or the manoeuvre of such aircraft in force in the State; or
- If it is essential to exercise such jurisdiction to ensure the observance of any obligation imposed on such State under a multilateral international agreement.
Numerous scenarios can be imagined wherein, the municipal laws are insufficient to enforce international laws. Resultantly, local law enforcement agencies are unable to assert jurisdiction over such disruptive acts onboard a flight. If an inbound aircraft is registered in a foreign state, then this convention does not grant jurisdiction upon the state of landing automatically. In order to prosecute such a disruptive passenger, the state has to establish grounds upon which it claims jurisdiction. The process of the removal of such a passenger is often rushed and becomes chaotic.
The current market is largely based on aircraft leasing. People who operate leased aircraft will often find that the aircraft which they are operating is registered in a country which is entirely different from the one functioning as the base of operation. Thus, such jurisdictional impediments further increase the problems.
Powers bestowed upon the aircraft commander
The powers bestowed upon the aircraft commander are listed in the Convention from Article 6 to Article 10. The aircraft commander has all the powers to deal with unruly passengers. In certain circumstances, the cabin crew has powers as well. If the aircraft commander has reasonable grounds to conclude that a passenger has committed or will commit a criminal offence while on-board which would jeopardise the safety of everyone and the aircraft, then he can take reasonable measures which are required:
- For the protection of the safety of the aircraft, the passengers, the crew members or the property therein;
- For maintaining good order and discipline on board; or
- For enabling himself to deliver such unruly passengers to competent authorities or to disembark them.
Prosecution
There can be instances wherein an unruly passenger would opt for legal actions against the carrier for disembarking them from the flight or any other restraining actions taken against them. If the aircraft commander, cabin crew or the passengers have exercised their powers as per the Tokyo Convention, then they stand immune from prosecution or civil action with regard to the actions that they have taken. Such immunity also extends to the owner and operator of the aircraft.
It is significant to note that this statutory immunity does not extend to claims from other passengers who were disrupted or injured by the passenger. This immunity is restricted to suits filed by the unruly passenger themselves.
Montreal Convention, 1971, and Montreal Protocol, 1988
The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), 1971 succeeded the Tokyo Convention. The Montreal Convention expanded upon the list of acts which had to be made penal offences by the ratifying States via incorporating it in their domestic laws.
Further, the Montreal Protocol of 1988 supplemented this Convention, as it stated that the provisions of the Montreal Convention would be applicable to unruly passengers who act in a disruptive manner not solely on the aircraft but also at the airport.
Montreal Protocol, 2014
The Montreal Protocol, 2014 entered into force in 2020 when it received its 22nd ratification by Nigeria. The benefits of this protocol cannot be yielded by the world, yet, as very few states have ratified the Protocol. Nonetheless, it is a step in the right direction.
This Protocol primarily amends the Tokyo Convention rather than repealing it. Both these legislations are to be read conjointly. This Protocol prescribes specific instances of behaviours and the actions that the contracting states can take.
The Montreal Protocol encourages contracting parties to take measures that may be required to initiate appropriate legal proceedings against disruptive passengers who commit an offence on board, particularly:
- Acts constituting physical assault or a threat to commit assault against the crew;
- Refusing to follow lawful instructions given by or on behalf of the aircraft commander for the overall safety of the aircraft or the passengers.
Changes in jurisdiction
The Montreal Protocol functions as a gap filler in terms of jurisdictional impediments. The lacunae in the Tokyo Convention did not allow the successful prosecution of unruly passengers. According to the Convention, the State of registration of the aircraft retains its jurisdiction over offences committed on board but the Protocol extends this jurisdiction to third-countries such as:
- The state of landing, in cases when the aircraft lands in its geographical territory with the alleged offender on board;
- The state of the operator, in cases where the offence is committed on a leased aircraft without crew. In these circumstances, the principal place of business of the lessee or whose permanent residence is in that state; such state has the jurisdiction.
Owing to the introduction of this legislation, an offender cannot escape prosecution solely because of disparity in the penal laws between the States.
Right of recourse
The Tokyo Convention did not provide the option of recovering costs that airlines incurred due to incidents involving disruptive passengers. The jurisdictional impediments also added to these troubles. The Montreal Protocol provides for this by empowering carriers to seek recovery under the domestic laws concerning the damage incurred owing to the behaviour of the unruly passenger.
Directorate General of Civil Aviation (DGCA)
The Directorate General of Civil Aviation is the principal regulatory body which primarily governs civil aviation in India. It is responsible for dealing with safety issues, regulation of air transport services, enforcement of civil air rules and regulations and other such tasks. It also coordinates its functioning with the International Civil Aviation Organisation (ICAO). One of the main tasks of this body is to ensure air safety and airworthiness standards.
Indian laws
The Ministry of Civil Aviation (MoCA) is the responsible body for the governance and administration of the aviation industry in India. It plays a crucial role in the formulation and execution of various national policies and programs aimed at the development of civil aviation. It is also responsible for devising schemes for efficient growth of civil aviation. It ensures the implementation of various legislations, including the Aircraft Act, 1934.
The Aircraft Rules, 1937
The Aircraft Rules, 1937 were formed in pursuance of the Aircraft Act, 1934. The unruly passengers were governed under this Act conjointly read with the Indian Penal Code, 1860. This legislation lays down the ideal behaviour which is expected from the passengers. The problem with this legislation was that it only listed what was the ideal behaviour. It failed to provide recourse to punitive actions or other repercussions.
Consequently, the provisions listed in the Indian Penal Code had to be invoked. The problem at this stage was that the disruptive acts of the passengers sometimes did not amount to an ‘offence’ per se. In other instances, they would be granted bail immediately. Resultantly, no legal actions could be invoked against such unruly passengers and they walked free without having to face any legal repercussions for their deviant acts.
The DGCA in 2010 incorporated two new rules in the Aircraft Rules, 1937. This was done with the purpose of managing the unruly passengers on board for either domestic flights or for international flights destined for India. These amendments have been introduced in Part 3 of the Rules. They are listed below:
Rule 22 of the Aircraft Rules, 1937
Rule 22 deals with instances of assault and other such dangerous acts of interference against a member of the crew. The rule lays down that no person who is on board an aircraft should indulge in the acts of assault, intimidation or threatening – either verbally or physically against a member of the crew. The passengers are not supposed to indulge in any acts which hinder the performance of the duties of the crew or reduce their ability to perform their duty.
Further, no passenger on board shall refuse to follow a lawful instruction given by the aircraft commander, i.e., the pilot-in-command or on their behalf by a crew member, for ensuring the safety of the aircraft, the crew, the passengers on board; or for the maintenance of good order and discipline on the flight.
Rule 23 of the Aircraft Rules, 1937
Rule 23 deals with acts which amount to assault or other such dangerous acts which endanger the safety of the passengers, crew and the aircraft or jeopardize the good order and discipline on board. This rule lays down that no person who is on board of an aircraft shall indulge into the following acts which may endanger the safety of the air:
- Assault, intimidate or threaten any other person either verbally or physically;
- Intentionally, either cause damage to or destroy any property; or
- Consume alcoholic beverages or narcotic substances.
The rule further mentions that the jurisdiction of India to take cognizance of such offences taking place onboard outside India extends to instances where:
- The next destination for landing in India.
- The aircraft commander has delivered such an unruly passenger to the competent authorities of India and has requested prosecution of such a passenger. The pilot-in-command should also affirm that such a request has not been made/ will not be made to any other State.
All airlines see this as a welcome addition because these rules empower the authorities to take the necessary actions against such unruly passengers.
Civil aviation requirement on the handling of unruly passengers
The aforementioned problem was rectified by the Government by introducing the Civil Aviation Requirement (CAR). This mandated the Ministry of Home Affairs (MHA) to maintain a no-fly list. Additionally, CAR also defines the term ‘unruly passenger.’ It borrows this definition from Annex 17 of the Chicago Convention.
The notification further divides the unruly behaviour into three categories:
Level 1: Unruly behaviour is defined consisting of acts such as making inappropriate physical gestures, verbally harassing passengers, or the crew, unruly intoxication, etc.
Level 2: Passengers indulging in physically abusive behaviour such as pushing, hitting, grabbing, touching inappropriately, kicking, etc.
Level 3: Passengers showcasing life-threatening behaviour, via actions such as eye gouging, damaging the aircraft, attempting or actually breaching the flight crew compartment, etc.
Reporting and handling of unruly passengers
When a complaint is received from the pilot-in-command about the unruly behaviour of a certain passenger, then, this has to be reported to an internal committee. The airlines will constitute such committee, which will consist of the following members:
- Chairman: Retired District & Sessions Judge
- Member: A representative from a different scheduled airline
- Member: A representative from the consumer association or a passenger association or a retired officer of Consumer Dispute Redressal Forum.
This committee is ought to decide the matter within 30 days along with the category level in which such actions of the passenger fall into. On this basis, the internal committee will decide the period for which such a passenger will be banned from flying. During the time, when the inquiry is going on, the concerned airline may choose to ban such a passenger from flying, but this period cannot exceed 30 days.
The decision rendered by the committee will be binding on the concerned airline. In cases where the Committee fails to give a decision within the stipulated period of 30 days, then such a passenger will be free to fly.
Ban on flying
For passengers who are placed on the No-Fly list pursuant to the decision of the Internal Committee, the other airlines have an option of banning such a passenger from flying to/from/within India for the below duration based on the level of their behaviour:
Level 1: Up to a period of three months.
Level 2: Up to a period of six months.
Level 3: Minimum period of two years or more, without limit.
Such a passenger, who is banned, will have to be intimidated about their inclusion to the no-flying list along with reasons for the same. They shall also be informed about the duration of their ban.
Constitutionality of these rules
Although this provision of a flying ban has been introduced to combat the rising instances of unruly passenger behaviour, a conflict arises between these provisions and the Constitution of India, 1950. Article 21 of the Constitution has been given a wide interpretation as can be inferred through various precedents. The aspect of ‘right to travel’ is also included in this. Article 21 has been expanded via judicial precedents to include the ‘right to travel abroad.’ Therefore, under this right, travel by air is also covered.
The Apex Court in the landmark judgment of Maneka Gandhi vs. Union of India (1978) laid down that the right of free movement functioned as a vital element in terms of personal liberty. This freedom of movement also includes the right to travel abroad.
This view was reiterated in the case of Priya Parameshwaran Pillai vs. Union of India (2015), wherein, the Court categorically stated that the right to travel abroad is a Fundamental Right and any such procedure which bars this right must not be arbitrary in nature.
A reasonable procedure should be based on principles of natural justice such as nemo judex in causa sua (no should judge their own cause) and audi alteram partem (hear the other side). The procedure should not be arbitrary. The person who is prosecuted should have recourse against any decision taken against him.
According to these rules, the Constitution of an internal committee is to be done by the airline itself. Even though the Committee has external members, the airline has an upper hand in the constitution of this committee. This is violative of the principle of natural justice – nemo judex in causa sua.
The passenger’s name is displayed on the No-Fly List and all other airlines have the discretion to ban such passengers regardless of the fact that the incident did not occur on their airline. It is stated that the decision of the internal committee is binding only on the airline which constituted it. The flying ban imposed by other airlines on the basis of their discretion is arbitrary in nature.
Kunal Kamra vs. IndiGo
The recent incident in 2020, wherein, an Indian comedian Kunal Kamra was banned from various airlines for heckling a fellow passenger is a primary example of the arbitrariness. The airline imposed a 6 months ban on him prior to constituting an internal committee. Further, several other airlines followed this suit without any valid grounds. Consequently, a legal notice was served upon IndiGo for arbitrary actions against the comedian.
Hence, it can be inferred that these Rules grant arbitrary powers to the airlines. Although the motive of these rules is to mitigate the incidents of unruly passenger behaviour, the process mentioned therein can be challenged in the Courts for the reasons mentioned above.
How to prevent such behaviour?
To mitigate the instances of unruly behaviour, the efforts should be made right from the beginning. The concerned airlines, the airport and all the employees should be vigilant in their interactions with the public. The passenger can be identified during the following procedures:
Check-in
The personnel employed for check-in procedure should be encouraged to identify and report any passenger whose behaviour is suggestive of potential disruptive actions. For example, if a person appears in an inebriated state, their condition should be reported to the ground supervisor at once.
Security screening
Security screening staff can also be trained for being a part of the mitigation measures. People who depict unruly behaviour during screening can pose risk to the safety and security of the aircraft as well as other passengers and crew members.
Boarding gate
Several passengers check-in early or they may be subjected to delays in their departure, this gives them ample time for consumption of excessive amounts of alcohol. Therefore, their inebriated state can be detected at the boarding gate and subsequently reported if it is found to be a potential hazard.
Before departure
The cabin crew plays a significant role at this stage, as this is the last opportunity to leave a potential unruly passenger on the ground. The cabin crew can identify abrupt behaviour when the passengers are boarding. These passengers could be loud, belligerent or inebriated. In these cases, the crew should firstly attempt at speaking to such passengers. After this, if the crew is suspicious of potentially problematic behaviour then such passengers should be disembarked from the flight along with their baggage.
During flight
If a passenger starts behaving in a disruptive manner in-flight, then the cabin crew will have to assume the responsibility of dealing with that specific situation. The crew is trained in this regard and therefore can help in restraining such behaviour by an intervention.
It is of paramount importance that the employees are trained for intervention in such circumstances. They should possess the requisite communication and conflict management skills. The cabin crew should also be trained concerning when to stop serving alcohol, etc. Additionally, passengers should be made aware of the legal consequences that they could face due to their disruptive behaviour.
What steps should be taken to mitigate the effects of such incidents
The Montreal Protocol is still in the stage of infancy and subsequently, will take time to receive the required number of ratifications from the States. The benefits of this Protocol will be only enjoyable across the entire world when such ratification takes place. It is established that only enacting legislation does not help entirely; effective implementation of the same plays a crucial role. Therefore, airlines should be vigilant and prepared for such instances.
Conditions of carriage
The onus is on the airlines to make sure that their Conditions of carriage contain an enforceable mechanism through which, they could recover costs arising from dealing with disruptive passengers. The provisions should aim at covering as many potential risks as may be possible. The international conventions provide a general framework but the airlines have to function in accordance with their national laws. Therefore, such provisions must be made in consonance with the municipal laws.
Collection of evidence
Collecting evidence is a crucial process because the prosecution of such unruly passengers fails due to lack of properly assimilated evidence. Therefore, the airline or a state agency seeking to prosecute a passenger should ensure that a witness statement is taken at the earliest from the aircraft commander, from the cabin crew involved and from the passengers. Any photographic evidence or videos captured by the passengers or the crew members should be noted.
Conclusion
The instances of unruly behaviour are constantly on the rise. All the industry stakeholders should make coordinated efforts for the prevention of these incidents and mitigation of the effects. This problem extends to every authority involved in civil aviation and not just the airlines. It is important to take preventive measures but the airline should also be prepared to manage the incident.
References
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