Delhi High Court: C. Hari Shankar, J., while taking suo motu cognizance of a matter, issued directions for airlines with the direction of immediate compliance, expressed that:
Each of us, as members of a conscious and conscientious citizenry, is required to be sensitive and sensitized in equal measure, and to strain every sinew to keep the pandemic at bay. If the citizenry becomes complacent, no Government, howsoever activated and alive to the situation, can help.
The present order was passed in light of an alarming situation witnessed by the Court during the Air India flight from Kolkata to New Delhi on 05-03-2021.
“…though all the passengers had worn masks, many passengers had worn the masks below their chin and were exhibiting a stubborn reluctance to wear their masks properly.”
Bench further stated that it was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly. Cabin Crew’s response to the said situation was that they had directed all the passengers to wear masks, but were helpless in case they did not comply.
Further, elaborating more on the issue, Court expressed that:
Passengers in a flight are in a closed air-conditioned environment, and, even if one of the passengers suffers from COVID, the effect on other passengers could be cataclysmic. It is a matter of common knowledge that being within arm’s length distance of a COVID carrier, even if he is asymptomatic and is merely speaking, is more than sufficient to transmit the virus.
While attempting to take out the protocols and guidelines of the DGCA to be followed by the passengers taking domestic travel, unfortunately, the website did not contain the same and the guidelines that could be traced were 21-05-2020.
Bench added that it does not intend to criticise the efforts made by the governmental authorities, including DGCA, in trying to deal with the pandemic.
Sensitization of the citizenry has, however, to precede, not succeed, galvanization of the governmental machinery.
With the present order, Court sought to achieve the objective by lending some teeth to the instructions already in place, in the larger public interest.
Following guidelines were issued for immediate compliance by all airlines as well as by the DGCA:
(i) The DGCA is directed to reflect, forthwith, on its website, prominently, the instructions containing the guidelines and protocols to be followed by passengers and in-flight crew in domestic flights. This shall be reflected on the main website of the DGCA, without requiring the person accessing the site to navigate through various links to reach the instructions. The DGCA will ensure that prominence, to the instructions, or to the web link through which they can, by a single click, be accessed, is accorded, by displaying them in a distinct and different font, blinking or otherwise, or by any other suitable means.
(ii) All airlines are directed to ensure that, along with the boarding pass, written instructions regarding the protocol to be followed by passengers in flight, including the measures that could be taken against them on failure to follow the protocols, are provided to the passengers. The passengers should also be duly sensitised regarding their responsibilities, to abide by said protocol, both before as well as after boarding the flight. The in-flight announcements which, presently, merely require the passengers to wear masks at all times, should be modified to include a cautionary word regarding the penal action that could be taken against them in the event of default.
(iii) In-flight crew shall carry out periodical checks of the aircraft, in order to ensure that all passengers are complying with the protocol to be followed by them in flight, especially regarding wearing of masks. It is made clear that masks should be worn as directed by governmental instructions, covering the nose and mouth, and not worn merely covering the mouth or below the chin.
(iv) In the event of any passenger being unwilling to follow this protocol prior to the flight taking off, the passenger should be offloaded without delay. If a passenger, despite being reminded more than once in flight, refuses to follow this protocol, action should be taken against the passenger in accordance with the guidelines issued by the DGCA or Ministry of Health and Family Welfare, including placing the passenger on a “no-fly” regimen, either permanently or for a stipulated, sufficiently long, period.
(v) It shall be the responsibility of the in-flight crew to ensure strict compliance, by the passengers, with the aforesaid protocol. In order to ensure compliance, the DGCA may consider sending random observers on flights, without prior information, who would check to ensure that the COVID protocols are followed in flight.
(vi) Strict enforcement of all penal provisions, which could visit delinquent passengers who refuse to abide by the COVID protocols to be maintained in flight, should be ensured. There should be no relaxation whatsoever in that regard.
(vii) It is noticed that the guidelines of the DGCA do permit relaxation from the requirement of wearing masks in exceptional cases. Such relaxation, if necessary, should be allowed only in cases which are truly exceptional, such as for medical reasons, after a conscious assessment and evaluation of (a) the necessity of the passenger to fly and (b) the justifiability of the passenger’s refusal to wear the mask, weighed against the risk to public interest involved if the passenger is allowed to travel without a mask. In deserving cases – which should be the exception, not the rule – the airline should take steps to isolate the passenger so that he is kept at a safe distance from other passengers in the flight.
Lastly, Bench directed the authorities concerned to accord adequate publicity to the guidelines, for the purpose of compliance.
DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs should ensure that, in the case of airlines that repeatedly fail to ensure compliance with the said guidelines, penal action to be initiated, in accordance with the law.
Court directs for the present order to be displayed on the official website of DGCA, the Ministry of Civil Aviation and the Ministry of Home Affairs.
Periodical review of the situation should be undertaken, to ensure that no laxity creeps into the system.
[Court on its own motion v. DGCA, 2021 SCC OnLine Del 1216, decided on 08-03-2021]
Advocates before the court:
For the respondents: Ms Bani Dikshit, Adv. for Air India along with Dr AB Subbaiah, GM in-flight services & Ms Meenakshi Kashyap, GM-Industrial Relations
Ms Anjana Gosain & Mr Kirtiman Singh, Advs. for DGCA & Ministry of Civil Aviation