[COVID-19] No need to keep middle seat vacant on flights: Bom HC accepts expert finding, says it cannot allow fear without scientific basis
Litigation News

[COVID-19] No need to keep middle seat vacant on flights: Bom HC accepts expert finding, says it cannot allow fear without scientific basis

"We cannot allow an individual to instil such fear in the minds of the members of the public, without any scientific basis. We would rather follow the advice of experts if it is found to be fair and reasonable."

Meera Emmanuel

The Bombay High Court on Monday declined to interfere further on the issue of whether middle seats on flights should be kept vacant to guard against the spread of COVID-19, upon finding that expert committees had fairly concluded that such a measure is not effective (Deven Yogesh Kanani v. DGCA and ors).

The Court opined,

"We have received no assistance from the Petitioner in determining how the safety/health of the passengers qua the Covid-19 virus is affected if the airlines fail to keep the middle seat vacant, which is his primary thrust in the Writ Petition."
Bombay High Court

Rather, the Court found that it was prima facie satisfied that the guidelines presently applicable for air travel (both international and domestic) are adequate to take care of the safety and health of passenger aboard, even if the middle seats on the flight are not kept vacant on account of passenger load and safety capacity.

The order was passed by the Bench of SJ Kathawalla and SP Tavade after referring to the minutes of a meeting convened by the Air Transport Facilitation Committee on May 4, as well as the report of the High-Level Committee of the experts dated May 26 and 28, 2020, clarifed by the Minutes dated June 4.

It was noted that the experts had reached a consensus that,

  • It was not possible to achieve physical distancing on fights despite keeping seats between passengers vacant, because passengers move during fights (e.g. to go to the lavatory, etc.).

  • Instead other safety measures can be adopted such as “wearing masks, face shield and gloves”, “availability of high-quality filters for recirculation of air” frequent cleaning, disinfection of aircraft etc.

In view of such expert recommendations, the Court was also informed that separate guidelines were issued for the operation of international and domestic flights amid the pandemic as far as the protocol inside the aircraft were concerned, i.e.

  • Guidelines/ Circulars/ Government Orders dated May 5, May 6, May 24, and May 31 were issued by the Ministry of Home Affairs (MHA), Ministry of Civil Aviation (MoCA), Ministry of Health (MoHFW) and the Directorate General of Civil Aviation (DGCA) to be strictly followed for ‘Vande Bharat Mlsslon’ fights i.e. non-scheduled international flights.

  • For domestic flights, the Guidelines / Circulars/ Orders dated May 21, May 24 and May 31 were issued by the MoCA, MoHFW and DGCA.

Pertinently, the Court was informed that these Guidelines/Circulars/Government Order were notified only after detailed consultations with medical experts and that the same do not mandate keeping the seats vacant.

Instead, these guidelines focus on other stringent rules such as the use of three-layered masks, face shield, wrap gowns for passengers using middle seats, use of sanitizers at regular intervals, among several other measures.

The petitioner, a pilot working with Air India Limited, on the other hand, had pressed for action against Air India for having carried international passengers on Vande Bharat Missions without adhering to the middle-seat vacant rule, on the basis of a March 23 circular.

When the matter had come up before the Court last month, the Bench of Justices RD Dhanuka and Abhay Ahuja had opined that Air India appeared to have violated this circular, prima facie.

However, the Court has now accepted the submission by Government authorities that the March 23 circular was the nature of an immediate response in the wake of the outbreak of COVID-19 which was only applicable to domestic flights at the time.

This was so particularly given that International Commercial Operations were already banned from March 22 onwards by way of a March 19 circular.

"This is also clear from the fact that the said Circular is directed only to “all scheduled domestic airlines operating in India”, the Court added, while also pointing out that the Government later halted the operations of all scheduled domestic fights and non-scheduled flights (save for few exceptions) with effect from March 24.

"Since the said Order essentially came into efect from 24th March, 2020, the Circular issued by the Respondent dated 23rd March, 2020 hardly ever came into operation", the Court noted.

In this backdrop, the Court also rejected the petitioner's contention that Air India and Air India Express had violated the March 23 order and endangered the lives of passengers.

Whereas the petitioner had relied on various other guidelines and rules to reinforce his contention that the middle seat on flights must be kept vacant for the purpose of social distancing, the Court found that the advisories cited were either outdated or not applicable to air travel.

Practically speaking, the Bench pointed out that, "The Petitioner has failed to appreciate that even if the middle seat is kept vacant, the person/s at the window seat whilst getting out for going to the lavatory and thereafter returning back to his seat, is likely to touch (through his clothes) the persons/s sitting on the aisle seat/s."

This aspect was also noted by the Government-constituted expert committee while deciding on the guidelines to be followed in air travel.

The Bench went on to note that if the petitioner's contrary stance were accepted, "in every row of the aircraft only one passenger should be accommodated."

"We cannot allow an individual to instill such fear in the minds of the members of the public, without any scientifc basis. We would rather follow the advise of experts if their opinion is found to be fair and reasonable and not tainted with any arbitrariness/ulterior motive/s."
the Court said.

The Court also took note of the submissions made by Solicitor General Tushar Mehta for the Centre and the DGCA that it has not been established till date that any passenger, who is tested positive for COVID-19, has been infected onboard an aircraft.

In this regard, the Court also opined that the petitioner's comparison of COVID-19 infection rates between those coming in from abroad and the general population of the country was unfair.

"As pointed out by the Learned Solicitor General, 0.57% of people infected in air travel (out of 58,000 air travellers) who travelled by 423 fights, would tantamount to being around half a passenger per fight. The Pan India population is about 130 Crores, out of which, 2,11,770 persons were found Covid-19 positive. The infection spread in Pan India is therefore 0.16%. It would therefore be unfair to compare the percentage of the people who have travelled by air and are infected with Pan India Covid infection rate", the Court said.

The Court ultimately emphasised that the guidelines and SOPs now applicable should be implemented by all flight operators in the country amid the epidemic.

In the course of the judgment, the Bench also expressed its disapproval over the manner in which the petitioner had conducted himself in pursuing the case in certain respects.

Inter alia, the Court took critical note that the petitioner had not amended his plea to reflect circulars and guidelines passed by the State after the March 23 circular on which he had based his case. In this regard, the Court's judgment notes that,

"In response, the Advocate for the Petitioner stated that he is not supposed to carry out amendments repeatedly impugning the orders/circulars/SOP’s issued by DGCA as he has already sought a declaration that any Circular, dated 22nd May, 2020 or later, issued by Respondent No. 1, to the extent that it supersedes the condition of allocating seats during check-in, in such a manner so as to keep seat(s) vacant between passengers, be read with the Circular, dated 23rd March, 2020. The said submission of the Advocate for the Petitioner (who at the outset had informed the Court that the above Writ Petition is not a Public Interest Litigation) to put it mildly, is ‘preposterous’."

The Court also took note of the petitioner's submission that Air India had obtained a favourable interim order from the Supreme Court, while suppressing a May 19 letter from the Air India Cabin Crew Association (AICCA) regarding passengers and crew members being infected by COVID-19.

However, the submission prompted the AICCA itself to clarify that its letter had nothing to do with keeping the middle seats on flights vacant. Rather, the letter had sought for hospital beds for the members of the crew who would be tested and COVID-19 insurance protection for them.

The Court recorded further that the AICCA was "deeply concerned that their Letter dated 19th May, 2020 was being used by some persons illegally and the 1300 members, whom they are representing, are in no way supporting the Petitioner, since they are satisfied with the Order of DGCA dated 31st May, 2020."

While disposing of the petition today, the Court said that at this stage, it does not propose to pass any orders on payment of costs, adding that, "Costs shall be ordered at the hearing of the Petition."

Read the Judgment:

Deven Yogesh Kanani v. DGCA and ors. - June 15 Judgment.pdf

Advocate Abhilash Panickar along with Advocates Jyoti Panickar, Siddharth Kejriwal and Jigar Agarwal, briefed by Entrust Legal Services LLP appeared for the Petitioner.

Solicitor General Tushar Mehta appeared for the Union Government and the DGCA, along with ASG Anil C Singh and Advocate Aditya Thakkar, briefed by Pravartak Pathak.

Air India was represented by Senior Advocate Darius Khambata and Dr. Abhinav Chandrachud, along with Advocates Kavita Anchan, Arsh Misra, briefed by MV Kini and Company.

Senior Advocate Venkatesh R Dhond, appeared for SpiceJet, along with Link Legal India Law Service Advocates Atul Sharma, Abhishek Sharma, Sidhartha Srivastava, Sugyata Choudhary and Yasmeen Sabir.

Senior Advocate Janak Dwarakadas appeared for Indigo with Nishith Desai Advocates Vyapak Desai, Sahjil Kanuga, Bhavana Sunder.

Senior Advocate Darius Khambata, along with counsel Rohan Kelkar, Hemang Raythattha, Sunil Gangan and Dhanashree, briefed by RMG Law Associates appeared for Go Airlines. Sheetal Sabnis also represented Go Airlines.

The AICCA was represented by counsel KP Anil Kumar and Priyanka Kumar.

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