By: Yash Agarwal and Arjun Singh
TAKING CUE FROM OTHER JURISDICTIONS: COMPARATIVE ANALYSIS
To better understand the lacuna in the Indian law, it is essential to outline the legal framework in other jurisdictions. For this, the piece will analyse the legal scenarios in the United States of America (hereinafter ‘USA’), Canada and Australia, which are known for their robust aviation laws.
A. USA
The USA has a strict and independent mechanism for investigating aviation accidents. The Federal Aviation Administration (hereinafter ‘FAA’), the National Transportation Safety Board (hereinafter ‘NTSB’) and the Transportation Security Administration (hereinafter ‘TSA’) are the primary agencies that regulate air travel. For investigations into accidents, NTSB is given the charge by 49 U.S. Code § 1132. It was established in 1967 as an independent agency responsible for conducting investigations and safety studies. It is a 5-member body, whose members are nominated by the President; however, to maintain neutrality, it is also confirmed by the Senate for a 5-year term.
NTSB is not only mandated to conduct investigations, but also to conduct special studies regarding safety problems. The NTSB also assists foreign authorities with investigations into foreign aviation accidents. Moreover, it also performs press briefings and issues statements to prevent the spread of misinformation among the general public. The interesting facet of the NTSB is its own laboratories (hereinafter ‘lab’), with the Office of Research and Training (hereinafter ‘ORT’) being one of them. ORT conducts safety research, generates periodic statistical reviews of aviation accidents, and provides medical and toxicology expertise for investigations in all modes. These labs are regulated by NTSB itself, which is again an independent entity, ensuring non-partisan investigations. This differs from the positions in the Civil Aviation Rules, which risks misuse of powers due to partisan appointments of Investigator-in-Charge.
B. Canada
Canada is also a jurisdiction with robust aviation law regarding investigations. The Transportation Safety Board of Canada (hereinafter ‘TSB’) conducts independent inquiries into air, marine, pipeline and railway accidents. It was set up on 29 March 1990 under the Canadian Transportation Accident Investigation and Safety Board Act (hereinafter ‘Canadian Investigation Act’) as a non-partisan agency. Its independence is reflected in its working and reporting requisites. TSB has a maximum of five members, appointed by the Governor-in-Council, who also has the power to remove the members at any time, even before completion of the term as per Section 4 of the Canadian Investigation Act. Moreover, TSB does not report to the Government, instead to the Parliament through the President of the Queen’s Privy Council for Canada as per Article 13 of the Canadian Investigation Act. This is how TSB remains independent. Like NTSB, it also makes recommendations to remove or decrease security deficiencies. Unlike in India, where the DG or AAIB orders an investigation, investigators in Canada can conduct investigations as per Section 19(1) of the Canadian Investigation Act, and the TSB is mandated to appoint its Investigator-in-Charge.
C. Australia
Now, the discussion moves to Australia. Australia also has an independent board, similar to those in the USA and Canada, to conduct investigations into aviation accidents. Australia passed the Transport Safety Investigation Act, 2003 (hereinafter ‘TSI’) to establish the Australian Transport Safety Bureau (hereinafter ‘ATSB’) as an independent commonwealth agency. Its functions include independent investigation into accidents, safety analysis and research, and spreading awareness related to the same. All findings are openly reported to spread awareness. The composition of ATSB involves the appointment of a Chief Commissioner (hereinafter ‘CC’) by the Minister under Section 13 of TSI on a full-time basis and other Commissioners on a part-time basis. Moreover, CC must have a high level of expertise in one or more frontiers in which ATSB functions.
The most crucial feature of ATSB is enshrined under Section 12AB of the TSI, which mandates that ATSB is independent of any authority in relation to its powers and functioning. The CC is not subject to direction from any authority. Moreover, Section 21 of the TSI grants the CC discretion to investigate a transport safety incident. The minister may also direct an investigation however, they cannot stop the CC from conducting one.
TAKING CUE FROM OTHER JURISDICTIONS: CURING THE ANOMALIES
The major problem in India is the independence of the investigation process. Taking note from the above jurisdictions, to strengthen independence, firstly, the AAIB should be codified as a statutory authority with clear legal powers to conduct investigations autonomously and without ministerial or DG’s direction. Instead of using the DG or AAIB’s discretion, appointments should be made from a statutory cadre of investigators with specified qualifications, training, and tenure. This avoids ad hoc appointments that jeopardise impartiality and ensures continuity, expertise, and neutrality. Moreover, like CC’s eligibility criteria in Australia, the Bharatiya Vayuyan Adhiniyam, 2024 should provide for the necessary criteria for appointment.
Secondly, reporting lines should be restructured so that investigators in charge submit findings directly to the Parliament, not to the AAIB, as is the case with TSB in Canada. The Parliament may establish a Joint Parliamentary Committee to oversee and table the report before the Parliament. It maintains accountability to Parliament while promoting openness and public trust. In order to promote passenger awareness and safety, AAIB should be required to hold awareness campaigns and safety exercises. Moreover, taking a cue from Australia, statutory provisions should clearly separate investigations from external pressures that influence the conclusions.
Thirdly, specific and objective statutory criteria such as incidents involving fatalities, multi-state impact, or suspected criminal activity, should take the place of the Central Government’s discretionary power under Rule 12. This restricts government discretion and permits courts to get involved in matters of significant importance only when it is legally required. In addition to these steps, reports can be made publicly available in databases under the One Nation One Subscription (ONOS) Scheme, and a minimum number of qualified investigators per region can be specified to minimise bottlenecks. Combined with statutory independence and structured governance, these enhancements would align India’s framework with the ICAO Annex 13 principles while addressing the loopholes in Rules 11 and 12.
(Yash Agarwal is a second-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. Arjun Singh is a second-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The authors may be contacted via mail at agarwalyash1256@gmail.com and arjunsingh.rmlnlu@gmail.com, respectively.)
