Can Govt Legally Do Away With Social Distancing Norm Inside Aircraft?

Minister of Civil Aviation (MoCA), Hardeep Singh Puri, while addressing a press conference on May 21 said that maintaining social distancing is not possible inside an aircraft. The guidelines issued by the MoCA to resume domestic air operations also did not mandate the social distancing.

However, it has underlined all other measures required to stop the spread of virus at the airports to ensure that no infected person enters the cabin.

Some experts say that it is not financially viable to enforce social distancing norm as aircraft operations will run in losses. They argue that the air filtration system is so modern and efficient that it will flush out the Coronavirus with air circulation.

However, an order issued by the Ministry of Home Affairs on May 17 on social distancing hasn’t made an exception for aircraft.

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The order states: “Social distancing shall be followed by all persons in public places and in transport.”

The two central acts -- Epidemic Disease Act (EDA) and National Disaster Management Act (NDMA) – make it mandatory to issue such an order and the violation amounts to an offence both under India Penal Code as well as NDMA.

But can a revised MHA order make an exception in maintaining social distancing inside aircraft?

Sidharth Luthra, former additional solicitor general, says: "Legally, there is no base for making an exception for aircraft."

“Social distancing has to be applied across the society and it is not going to go away,” Luthra told Outlook. 

He said the Aviation Ministry may want to say that social distancing may not be an ultimate answer to a close environment of air circulation in an aircraft.

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“However, that doesn’t mean that even when people are wearing a mask and other protective gear, social distancing should not be complied within the aircraft,” he added.

Nishant Kr. Srivastava from Actus Legal, a Delhi-based law firm, agrees with Luthra and says: “It is a well-settled legal position that when a statute prescribes a manner or form in which a duty is to be performed or power is to be exercised, it should be done either in that manner or not at all.”

“So, the government cannot cherry-pick or act arbitrarily and exempt the rule of social distancing [which may be safely assumed to be 6 feet distance) when it comes to public transport like an aircraft, but at the same time, impose the same in buses and trains,” Srivastava adds.

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Dr Uday Shankar, Associate Professor, Rajiv Gandhi School of Intellectual Property Law, IIT-Kharagpur, takes a different view as he says that allowing everything to shut down is not logical.

“This is the beginning of a new normal. This could serve as a good guidance for all other industries,” Shankar said.

Sanjay Hegde, senior Supreme Court lawyer, says that if social distancing norms are rigorously applied and airlines fold up as a consequence, it is not desirable.

“Other measures of mitigation including screening, masks and disinfection can achieve an affordable balance for survival,” Hegde says.

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Asked if malls, cinema halls and educational institutions also demand benefit on the similar lines, he responds, “Again, it is an administrative call and not a legal call. A man may fly for a few hours in a week month or year, but will frequent the other spots much more.”

But Srivastava contradicts and says: “I don’t think the rule of social distancing depends on how many times one frequents to a place. We don’t go to malls or cinema halls daily. So in my view, whether it should be applied across the country or government should take other measures more seriously and do away with social distancing to benefit all.”