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Breaking: Partial relief for Centre, Air India as Supreme Court allows relief flights to operate with full capacity for 10 days

The High Court's May 22 order would leave out one-third of Indian passengers scheduled to board flights to return to India and create grave logistical and visa related issues, the Centre had argued.

Shruti Mahajan

The Supreme Court today allowed Air India to carry out the operation of the relief flights without leaving vacant seats for ten days. [UOI vs Deven Yogesh Kanani (Air India middle seats order)]

After this time, these non-scheduled flights would have to be operate in accordance with the interim order passed by the Bombay High Court, the Apex Court held.

The Bench of Chief Justice of India SA Bobde with Justices AS Bopanna and Hrishikesh Roy convened today to hear a plea filed by the Centre through the Civil Aviation Ministry and the Director General of Civil Aviation (DGCA), seeking a stay on the order of the Bombay High Court of May 22.

After hearing the matter via video conferencing, the Supreme Court today said that it was not inclined to interfere in the order passed by the High Court. However, on account of the difficulties pointed out by the Centre in implementing the interim order, Air India is allowed to carry out its operation of non-scheduled flights with full capacity for ten days.

We are of the considered view that the petitioner - Air India should be allowed to operate the non-scheduled flights with the middle seats booking upto 6th June, 2020. However, after that the Air India will operate non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court thereafter.
Supreme Court said

With this partial relief, the Supreme Court remanded the matter to the Bombay High Court to hear and decide the case finally. The Supreme Court has thus requested the High Court to pass effective interim orders on the next date of hearing. The Court also allowed DGCA to revise or alter any norms in the meantime.

We make it clear that the Director General of Civil Aviation is free to alter any norms he may consider necessary during the pendency of the matter in the interest of public health and safety of the passengers rather than of commercial considerations.
The Court added

The Supreme Court expressed its concern over the health of the passengers who would have to travel in these flights. It was observed that social distancing was very important even onboard an aircraft. The Court said that it was disturbed over the decision to do away with the requirement of leaving middle seat vacant even as Solicitor General Tushra Mehta told the Court that the decision was taken after a meeting held by experts.

The Bombay High Court on Friday sought a response from Air India in a plea that claimed that the airline's carriers bringing back stranded Indians from abroad were not following the directive requiring middle seats to be left vacant in order to maintain social distancing.

The response was sought after the Bench of Justices RD Dhanuka and Abhay Ahuja opined that, prima facie,

"Air India has violated Circular dated 23rd March, 2020 by not keeping one seat between two seats empty while allocation of the seat at the time of check-in."

Pertinently, the Bench had directed Air India to ensure compliance of the March 23 circular, insofar as it does not come into conflict with another circular issued on May 22, which the Court observed appeared to only apply to domestic flights.

In effect, the High Court directed Air India to ensure that middle flight seats are left vacant in international flights, which are presently plying to bring back Indians stranded abroad during the pandemic.

The High Court order was challenged by the Centre and the DGCA before the Supreme Court, which took up the matter for an urgent hearing today.

The petition filed by the Centre and the DGCA had registered objection to High Court's directive requiring the petitioners to ensure that the middle seats are left vacant in all the rescue/relief flights.

This order was passed without making the Centre, through the Ministry of Civil Aviation, a party to the petition, it was stated. Air India also challenged High Court's order in a separate SLP.

On account of this interim order of the High Court, thousands of Indian citizens would have been left behind in foreign lands, the petitioners said. The same would have a "cascading effect" since it would affect the entire schedule of the relief/rescue work, the Centre stated. The petition added that these operations were undertaken after due consultations.

Giving effect to the interim order would have led to the petitioners leaving out one-third of the Indian passengers scheduled to board the flights for returning to India, it was further contended. The Centre also emphasised that it would have also created grave logistical and visa related issues. In this regard, the Court recorded the submissions made by SG Tushar Mehta.

"According to Mr. Mehta, learned Solicitor General, this has resulted in a lot of anxiety and difficulties arising from want of proper shelter, money, etc., at the foreign airports. Moreover, in some cases, the travel plan of families who were travelling together has been disrupted because those in the families who had middle seats have to be off loaded and remain behind," Supreme Court's order records.

Similarly, foreigners stranded in India and expecting to board outgoing flights to reach their home countries would also face problems, it was pointed out.

The Centre went on to assert that it is ensuring that the Standard Operating Procedure (SOP) is followed and that adequate care is being taken to ensure safety of the passengers. In addition to the SOP issued by the Ministry of Home Affairs, Air India also has its own SOP for the passengers boarding the aircraft.

It was also argued that the circular issued by the DGCA on March 23, which required all flights to leave certain seats vacant, was applicable to scheduled flights. The SOP issued for these non-scheduled flights, however, by virtue of being specific to these flights, would supersede the circular of March 23, the petition stated.

These non-scheduled flights have been booked up till June 14, and the operation of the High Court's order would mean not allowing one-third of the people scheduled to board these planes.

"It is impossible for any authority to decide which one-third of the passengers are to be disembarked. The passengers for incoming flights as well as outgoing flights come from various parts of the respective countries at the Airport as they have prior bookings. It is impossible to require one-third to be disembarked."
Petition filed in Supreme Court

It would be "impossible" to convince airport authorities of foreign nations to allow such offloading due to an order passed by the Bombay High Court, the Centre pointed out.

One-third of the passengers who are required to be on incoming flights would be left stranded at the airport of foreign countries if this interim order is not stayed, it was added.

Solicitor General Tushar Mehta argued for Centre, DGCA, as well as Air India. Advocates Kanu Agrawal and BV Balaram Das also represented the Centre and DGCA while Kini and Co. represented Air India.

Read Order:

UOI vs Deven Yogesh Kanani (Air India middle seats order).pdf
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