stand up comedian Kunal Kamra has been banned by Indigo, Air India, Spicejet, and GoAir. On 28th January 2020, while flying from Mumbai to Lucknow by Indigo 6E 5317, he indulged in a confrontation on the style of journalism opted by Arnab Goswami (editor and owner of Republic TV) which subsequently led to the ban.
This led to the initiation of debates on legality by the experts that while the rules were sidestepped by Kamra, can Indigo fall back on the tweet of the Aviation Minister Hardeep Singh Puri advising other airlines to ban him.
“The Indian aviation industry will be a joke if Kamra approaches the court or the International Civil Aviation Organisation,” said Mark Martin, owner of aviation consultant Martin Consulting.i
It is interesting to note that the biggest strength of Kamra’s defence would be the guidelines that govern the disruptive passenger behaviour. The rules define an unruly passenger as one “who fails to respect the rules of conduct at an airport or on board an aircraft or to follow the instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft,”ii
Rohit Mateti, the pilot in command of the Indigo flight, wrote to the management that the situation on board was diffused early and not “reportable” and that Kamra, though abusive, abided by the instructions of the cabin crew, and didn’t deserve to be classified as an offender under DGCA rules.
Now, let’s dive deeper into the legality of the ban and analyze whether the principles of natural justice were followed or not.
1.1. Procedural Inconsistency-
There are various guidelines and procedures laid down by the Civil Aviation Requirements, Air Transport Series M Part VI Issue II, dated 08.09.2017 as promulgated by the Office of the Director General of Civil Aviation [hereinafter referred to as ‘CAR’]. The airlines tweeted at 8:49 PM on 28th January 2020 that Kamra was banned from flying for a period of 6 months “as his conduct onboard was unacceptable behavior”. In a legal notice from Advocate Prashant Sivarajaniii, he submitted that a social media platform like Twitter is not a medium of official communication and is contrary to the principles of natural justice and the requirements laid down under the CAR
1.2. Unruly Passenger-
‘Unruly Passenger’ is defined under Paragraph 3.1 of the CAR as, “3.1 Unruly passenger – A passenger who fails to respect the rules of conduct at an airport or on board an aircraft or to follow the instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft.” It is imperative to note that the question as to whether a person is an ‘unruly passenger’ is for determination by an Internal Committee to be constituted under Section 6.1.
Without such determination, no proceedings can be initiated directly against Kamra. In the same legal notice to Indigoiv, it was submitted that at no point of time during the flight duration, Kamra was interrupted by the Cabin Crew for any disturbances created on-board and/or endangered the flight safety in any manner. This stands as an essential requirement under the Paragraph 4.9 of CAR.
1.3. Sine Qua Non Procedure-
A detailed procedure has been listed under the CAR for the Processing and Reporting of the Unruly/Disruptive behavior as listed under the Paragraph 3.1. The Paragraph 6 reads,
“6. REPORTING AND HANDLING OF UNRULY PASSENGERS ON BOARD THE AIRCRAFT
6.1 Whenever an airline receives a complaint of unruly behavior from the pilot in command, the incident may be referred by the airlines to an Internal Committee. This Internal Committee shall be constituted by the airline and consists of the following:
- Retired District & Session Judge as
- A representative from a different scheduled Airline as
- Representative from a passengers association or consumer association or retired officer of Consumer Dispute Redressal Forum as Member”.
No such procedure has been followed till date which shows the failure in following the due process of law.
1.4. Category level determination by the Internal Committee-
The paragraph 6.2 of the CAR reads as, “6.2 The Internal Committee shall decide the matter within a period of 30 days along with category level of the unruly passenger as indicated in Para 4.10 of this CAR. The Internal Committee shall also decide the duration for which the unruly passenger will be banned from flying in accordance with provisions of Para 8.1 of this CAR.”
The decision taking power in relation to the category is vested with the Internal committee and is an essential requirement of law.
The said categorization of the levels are listed under Paragraph 4.10 of the CAR as-
“4.10 Airlines shall categorize all such cases of unruly behaviour on-board the aircraft as indicated in Para 4.9 to this CAR into following categories:
- Level 1: Unruly behaviour (physical gestures, verbal harassment, unruly inebriation )
- Level 2: Physically abusive behaviour (pushing, kicking, hitting, grabbing or inappropriate touching or sexual harassment )
- Level 3: Life-threatening behaviour (damage to aircraft operating systems, physical violence such as choking, eye gouging, murderous assault, attempted or actual breach of the flight crew compartment etc.)”.
Sidestepping of the whole process listed is arbitrary, unjustified and non-est in law. This raises serious questions against the authorities concerned.
1.5 Legality of the Duration for the ban-
The paragraph 8.1 of the CAR prescribes the maximum duration of the ban. It reads, “8.1 For any person, who is placed in the No-Fly List, other airlines shall have the option to ban him from taking flights to/from/within India for a duration as indicated below:
- Level 1 – upto three months
- Level 2 – upto six months
- Level 3 – for a minimum period of 2 years or more without limit
- Persons covered under Para 7 – Barred till such time that the person is perceived to be national security risk by the Ministry of Home ”
Kamra cannot be subjected to any other category than Level 1 offence because the incident only included verbal dialogue and there was absolutely no physical contact according to the cabin crew. The maximum punishment that can be given for a Level 1 offence is a 3 month ban, if found liable by the Internal Committee. This renders the 6 month ban absolutely illegal and manifestly arbitrary.
1.6 Freedom to move freely-
Freedom to travel, in and outside of India, has been regarded by the Hon’ble Supreme Court as an inherent part of the expression “personal liberty” enshrined in the Article 21 of the Constitution. The right to “Freedom of Movement” as guaranteed by the Article 19(1)(d) was infringed after the airlines banned Kamra. This was taken as a claim in the legal notice by the Lawmen and White to Indigo.
Suffice it is to say that the Hon’ble Supreme Court will strick down any law that infringes any fundamental rights or passes in the violation of the audi alteram partem principle.
1.7 Proceedings under Rule 133A of the Aircraft Rules, 1937-
The Civil Aviation Requirements, Section 3 – Air Transport Series M Part VI Issue II, dated 08.09.2017v as promulgated by the Office of the Director General of Civil Aviation asserts that the
compliance with the DGCA CAR is mandatory and non-compliance for the same would render the persons so responsible, issued under Rule 133A, liable for penalty under S. No. 13 of Category III of Schedule VI of the Aircraft Rules, 1937, entailing punishment of imprisonment not exceeding six months, or with fine not exceeding two lakh rupees, or with both.
Thus, it is imperative to note that the airlines have been found in blatant violation of the fundamental violation of the principles of audi alteram partem, fundamental right to ‘Freedom of Movement’, several guidelines and orders of the Civil Aviation Requirements(CAR), Directorate General of Civil Aviation(DGCA). It will be interesting to note the response of the airlines in the matter of the legal notice. Until then, the airlines simply, and fails the ‘Legality’ test for the ban on Kunal Kamra.
By- Yug Sinha
