DRAFT NATIONAL AIR SPORTS POLICY, 2022: A NEW DAWN OF SPORTS LAW IN INDIA?

[Authors: Kosha Doshi and Bandana Saikia, 3Ls at Symbiosis Law School, Pune, India]

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INTRODUCTION

“When Too Much Sports Is Barely Enough”

Sports in India has evolved from the age-old Mahabharata sport Chatrang to an ever-evolving age of air sports. While the industry accounts for almost $620 billion, the Constitution of India [State List, 7th Schedule, Entry 33] reflects the power of the legislature to formulate laws in the sports domain. Apart from this, India does not have any concrete law on a national scale for regulating sports. The Ministry of Sports and Youth Affairs has time and again issued guidelines and set up institutions to dwell into issues related to sports. National Sports Policy, 1984 and 2001 covers the domain of responsibility, grants and set up of sports federations. Key associations which regulate sports in India are Sports Law and Welfare Association, Sports Authority of India and the Sports Broadcasting Law. India’s sports industry is progressing with leaps and bounds as air sports crosses its recreational threshold.

With the birth of the modern aviation industry, the concept of Air Sports was recognised. Air Sports typically involves aerial recreational and astronautic sporting activities. India recently formulated a Draft National Air Sports Policy on 1st January, 2022. With a vision to make India one of the top nations in air sports by 2030, the Ministry of Civil Aviation drafted the policy to provide a safe, affordable, accessible, enjoyable and sustainable air sports ecosystem. Promoting the air sports culture, the policy aims to make India a global sports hub while adopting the best international standards in safety, infrastructure, training and operation. The policy emphasises and covers the following air sports: aerobatics, aeromodeling, amateur built experimental aircraft, ballooning, drones, gliding (hand and para), microlighting, paramotoring, skydiving and vintage aircraft.

INTERNATIONAL STRUCTURE FOR AERO SPORTS AND THE POSITION OF AIR SPORTS REGULATION IN EU

The notion of “aviation” is not a contemporary development and dates back to the beginning of the 20^th century during which the pioneering flights of flyers like Clement Ader, the Wright Brothers, and Santos-Dumont, the proliferation of aeronautical competitions, and more rapid technological developments heralded the true commencement of the modern aviation period. The International Commission for Air Navigation (ICAN) was far from the first or only international body dedicated to advancing aviation’s development. During those years, numerous international aviation organisations, such as conferences, congresses, commissions, and committees, existed and held numerous meetings; as air navigation rapidly became international, multiple issues raised for its development had to be addressed on an international level as well. During this period in 1905, an aeronautical conference took place with representatives from Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland, and the USA who together adopted the proposal for establishing an aeronautical federation that shall regulate the sport of flying and advance the science and sports of Aeronautics and hence  the International Aeronautical Federation (FAI) was established which is the world’s regulatory body for aviation and space records. The Aero Club of India (ACI) is the national sports federation for air sports in India, as well as the apex organisation for all flying clubs and institutes involved in flight training which has been an active member of FAI since 1950.

The Europe Air Sports Association, founded in 1988 and affiliated with the global FAI, is a non-profit organisation dedicated to the long-term promotion and protection of sports and recreational aviation in Europe. Its mission is to represent the interests of all European air sports and general aviation. This governing body ensures regulating and providing a strict safety strategy laying emphasis on the growing need of the principle of “open airspace” for all. The Board has established the need of ensuring recreational aviation through the General Aviation Safety Strategy which provides a roadmap for solving key issues affecting the future of air sports and recreational aviation in Europe. Keeping in mind the growing need of air sports activities in Europe, they have also emphasized the concern of environment protection. In their latest annual general meeting, while recognising the concerns about drones and U-space, it raised the concern regarding potential risks associated with drones in the airspace such as identifying the noise implications of drones in the environment.

ANALYSIS

GOVERNANCE MODEL – AUTHORITIES

In 2020, 2 paramotoring accidents led to 3 deaths in a span of three days. While one was a result of a paraglider and the other a paramotor, the incidents highlighted the loophole in the legal framework. Paramotoring and powered paragliders were not regulated by the government, while hang gliders or microlight aircrafts required clearance from the Ministry and DGCA. The policy seeks to bridge this gap suggesting a two-fold governance mechanism: Air Sports Federation of India (ASFI), an autonomous body under the Aviation Ministry representing the nation at global level and at the FAI; and Individual Respective Associations for each air sport, which shall be accountable to the ASFI. Individual associations shall have the duty to deal with safety, licensing, training, technical development, insurance and compensation incidents, oversee national competitions, manufacture equipment and coordinate with international organisations. On a global scale, the FAI (Fédération Aéronautique Internationale) is the World Air Sports Federation set up in 1905. FAI aims to provide a safe environment while promoting air sports and recreational flying. Apart from FAI, various Aero Clubs, Air Sports Federations, National Committees, Air Sport Confederations, Aviation clubs and Aeronautical Associations from nations across the globe have been recognised as affiliated members in the regulation of the air sports regime.

GLOBAL PRACTISES, SAFETY STANDARDS AND PENALTIES

The International Olympic Committee (IOC) recognises the FAI and is considering inclusion of air sports in its global events. The draft policy formulates India’s competitions shall be aligned with the FAI’s guidelines. With development of new technology and advancement in air sports, the level of safety too is at a higher pedestrian level. India seeks to adopt the global standards in terms of equipment, infrastructure, personnel and training of air sports. Air sports shall not violate the right of way of a manned aircraft. In case of any accident, the policy provides the same to be reported within 48 hours; failure of which shall attract penal action. The individual associations shall also be held responsible in terms of financial penalties, suspension or dismissal; for failure to comply with the international practices.

An air sports person after being provided an opportunity to be heard shall be liable to pay a penalty in case of any contravention. Though the air sports person shall have the defences of unavoidable circumstances, beyond the control of such person or without their knowledge or fault. This shall be done by the Chairperson of ASFI or the President of an air sports association; but it can be noted that in India the Indian Court of Arbitration for Sports (ICAS), 2011 seeks to resolve all disputes associated with the sports domain. Contrasting this, the General Air Sport Commission (CASI) of the FAI deals with matters through the International Appeals Tribunal. Injury in Air sports could be the result of direct or indirect consequences, the proposed draft policy neglects to address the participant recovery international standard from a tort perspective. Issues of insurance, behavioral limits, and airworthiness in terms of manufacture defects and product liability has been left out of scope. For instance, the US Federal Aviation Act lays down the probable actors liable along with the judicial interpretation test for safety standards formulated in Jones v. Dressel.

FLIGHT PERMISSIONS IN LIGHT OF DRONES RULES, 2021

The advent of sophisticated Unmanned Aerial Vehicles (UAV), popularly known as “drones”, has been heralded as the upcoming breakthrough in the era of rapidly evolving technological advancements. Recently, while stating the vision of making India a global drone powerhouse by 2030, the Ministry notified the New Drone Rules, 2021. These rules have demarcated the entire airspace of India into red zone, yellow zone, and green zone. The following are the three zones that have been established:

• Green Zone (Permissible Zone): The defined airspace above India’s land areas or territorial waters, up to a vertical distance of 400 feet or 120 metres, that has not been designated as a red zone or yellow zone for UAS operations on the airspace map: and the airspace up to a vertical distance of 200 feet or 60 metres above the area between an operating airport’s perimeter and a lateral distance of 8 to 12km.
• Yellow Zone (Intermediate zone): The specified airspace above India’s land areas or territorial waters in which UAS operations are prohibited and require permission from the relevant air traffic control authority. The airspace above 400 feet or 120 metres in the authorized green zone, as well as the airspace above 200 feet or 60 metres in the area between 8 and 12 km from the perimeter of an operational airport.
• Red Zone (No Fly Zone): denotes the airspace of defined dimensions above India’s land areas or territorial waters, or any installation or notified port limits specified by the Central Government beyond India’s territorial waters, within which only the Central Government may operate unmanned aircraft systems.

The NASP Draft has relied upon the New Drone Rules, 2021 for the permission from the Central Government and the relevant Air Traffic Control Authority for operations in red and yellow zones, respectively. No authorization is required for aircraft with an all-up weight of less than 500 kg to operate in green zones. However, it has been made clear that because most air sports entail flying at altitudes greater than 400 feet above ground level, approval from the relevant Air Traffic Control authority is mandatory. In light of the same, a contrast can be drawn with the EU’s drone strategy 2.0 that mandates that the drone strategy must confine its usages within the context of the Green Deal and the EU’s Strategy for sustainable and smart mobility thereby emphasizing the need towards ensuring a sustainable economic environment. A similar form of concern with regards to meeting environmental standards is missing at our end.

MISCELLANEOUS FEATURES OF THE POLICY

Further, this policy proposes for mandatory registration of persons and entities providing air sports services with their respective air sports association including their key air sports equipment and has liberalized itself in regulating the import of complex air equipment without any import duty. The policy has additionally imposed 18%-28% GST on purchase of air sports equipment but as a matter of public policy and making air sports affordable to all, it shall request the GST council for rationalising the GST rate on sports equipment to 5% or less.

SUGGESTIONS AND CONCLUSION

“All work and no play makes Jack a dull boy.” – James Howell’s Proverbs (1659)

Despite the global moment in Sports with the formulation of National Air Sports policy (2022), the policy falls short in providing definitions for key terms associated with air sports. Inclusion of a definition clause would facilitate determination of words in context to the policy. Example terms such as: air sports, sporting licenses, air sports commission, air sports person and individual air sports like vintage aircrafts, aeromodeling. Additionally, based on the financial sustainability clause, it can be noted that India has an established National Sports Development Fund (NSDF) which omits providing assistance to air sports. On these lines, schemes such as Khelo India should widen its applicability horizon to give equal emphasis on air sports.

While the policy mentions developing an ecosystem for air sports, it is devoid of the environmental perspective. A small example could be that the aviation industry relies on 2 key fuels: Tetraethyl Lead and AVGAS; both of which emit harmful chemicals enhancing environmental degradation.  The European Union framework in this context seeks to address the environmental repercussions due to aviation sporting activities by encompassing use of bio based sustainable fuels such as FT-SPK, FT-SPK/A and ATJ-SPK. Supplementing this, the EU Aviation Safety Agency sets forth smart environmental standards, impact assessment tools; following a balanced approach between air sports and environmental safety. Regardless of the suggestive measures, it is commendable to have a draft policy on air sports considering this sphere is easily overlooked when the legislator reaches for his pen in light of drafting on general sports itself.

*For any query, feedback or discussion, the authors can be contacted at [kosha.intellify@gmail.com and bandanasaikia2019@gmail.com]

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