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Ever since the advent of the aircrafts, air travel has become one of the most convenient modes of transport. Initially, the cost factor discouraged the common man from using this luxurious mode of transport, but now with the growing economies, the air transport facilitators have raised to an extent that it has now become the most preferred mode of transport by large number of communities.
But, with the raising travellers, the need to have stricter laws regarding travelling on board is gaining more force. This gave rise to the concept of BAN from flight, where people are expressly banned from boarding aircrafts or utilizing the air services for various reasons.
Social media in today’s world is another such mode of communication which is both a boon and a bane. Though it enables easier communication, one can affect society at large in both positive and negative. One such incident that has recently gained limelight because of the social media popularity is the incident of Kunal Kamra, a popular Indian stand-up comedian, who is well- known for his sarcastic yet realistic comments on the Indian political system, especially against the present government.
Details of the incident
Kunal Kamra, a very popular youth icon of India, was on- board an Indigo flight along with Arnab Goswami, a well- renowned journalist and interviewer in the recent past. In a social media post, uploaded by Kunal himself on twitter, one can observe that he was a fellow passenger to Arnab, and has started questioning him regarding his political views, and his stance on the present and the previous governments. While until this extent, the video appears to be just right, there comes the other angle wherein we see Arnab silently ignoring the presence of Kunal, and thereby avoiding to answer such unexpected questions that are being put to him.
Post this incident; the airline authorities released a statement that Kunal was being banned with immediate effect from flying in Indigo aircrafts for ‘heckling’ his fellow passengers on board until the issue is resolved. Following this action, other airline services such as Spice jet, Air India, Go Air have declared their solidarity with Arnab, thus supporting their fellow service provider i.e., Indigo in its decision of ban. On the other hand, AirAsia and Vistara have chosen to stay on the ground till the final decision as to the ban is made by the Aviation authorities before implementing the ban, thereby making it not only a legal debate but also a moral debate.
Procedure and legality of ban
The Indian Constitution, under Art. 21 and Art. 19(1) (d) enshrines the principles of free movement to all the citizens, and this right is a fundamental right of every citizen. However, the Civil Aviation Requirements explain that the passengers who do not show an acceptable behaviour on aircrafts can be categorized into three categories, based on the degree of offensiveness that can be found out from the incident that takes place – the first being unruly behaviour (calling for a liability of ban from the flights from/ to/ within India for maximum 3 months); where the passenger shows physically abusive behaviour (calling for a ban for maximum up to 6 months), and finally, if they showcase a life threatening behaviour (which entails liability starting from 2 years of imprisonment) can be levied on the passengers.
The interesting point to be noted in this case is that the behaviour of Mr. Kunal was termed as ‘unruly’ by the Indigo authorities and he is banned for a period of 6 months, which is not in accordance with the laws. Moreover, the captain/commander of the flight, who is the immediate authority in whose jurisdiction the matter lies, does not stand for the same. Also, if we view the twitter upload of Kunal that has raised this issue, we fail to see any of the crew trying to settle the issue in the whole 1:30 minutes of the post.
Additionally, the procedure to put such the ban proclaimed by the airline authorities has not been in consistency with that of the Aviation rules, where an internal committee has to be formed so as to decide the guilt of the person in question before enforcing the ban. But, in the given issue, the airline authorities have enforced the ban on the comedian without even listening to him, thus violating his right to be heard, which forms a base of principles of Natural Justice.
No fly list
This is the official list released by the government containing details of the passengers who cannot be boarded into the flights, as a result of government’s inclination towards safety of the passengers. A person is put up on the ‘no fly list’ if the internal committee comprising of a retired additional and sessions judge, representative of the scheduled aircraft that has initiated the ban and a representative from consumer association; is of the opinion that allowing a certain person to proceed on board is harmful for the maintenance of peace of the International Civil Aviation Organisation.
Decision of the committee regarding the ban has to be delivered within one month of the occurrence of the event. Once a person is put on the NO FLY LIST with reasonable reasons, then he/she is answerable in the court of law and before Aviation committee. In India, the concept of ban to fly is used very rarely and is not explained enough.
Now, with the controversy in question, Kunal Kamra has been the recent addition to this list, until the direction of the committee/ board is finalized.
Laws regarding similar incidents in India
The concepts of ‘ban from flight’ and ‘No fly list’ have been adopted by India, from the developed western legal systems, however, no legal system publicly publishes the names of the passengers banned from flying. Yet in 2017, the Aviation department had done a path- breaking job, by announcing that the Indian No Fly List would be published from time to time in the authorized websites so as to make the people aware of the aviation rules and to ensure that there is no mockery in the process.
Until now, only one person has been banned from flying in the aircrafts in India, for the reason of creating a false note regarding presence of a bomb, in a spice jet flight. Only if the airlines gain support from the internal committees and aviation department, Kunal Kamra would become the second person to be banned. The Indian Aviation laws, though in consonance with the Tokyo Convention, 1963; followed by the Chicago Convention, 1944; lack the developments and upgradation in proportion to the development in the aviation industry, which is the need of the hour.
Conclusion: Way forward
While we see social networking sites and the common man putting out their views and the moral grounds for and against Kunal Kamra and Arnab, the legal departments have by large chose to remain silent so as to analyse the whole facts of the case, and are looking forward to the dicta of the internal committee.
We have observed that Kunal is accused of ‘heckling’ his fellow passenger, which do not form a ground nor a basis for being banned from utilizing the air services as per the aviation rules in force in India. Hence it would be an enthusiastic wait to know how the aviation authorities and the aviation giants reason the same and back their stance of the ban.
Author: Puligedda Sailasri from Symbiosis Law School, Hyderabad.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.