Thursday, January 30, 2020

Hasty decision by IndiGo, Air India, GoAir, SpiceJet to ban Kunal Kamra; airlines should specify rules that stand-up comic violated

I woke up this morning to a social media uproar over stand-up comedian Kunal Kamra being banned from IndiGo for six months after he posted a video of him challenging TV news anchor and editor-in-chief of Republic TV Arnab Goswami to clarify his stance on various issues. While IndiGo banned Kamra from flying with them for six months, Air India suspended him from flying with them "until further notice" immediately after. SpiceJet and GoAir have also prohibited Kamra from flying with them without giving any reason.

In his statement, Kamra indicated that at no point in time was he disruptive and he was always following crew orders when told to. Further, he is not aware of a formal complaint against him being made by either Goswami or any another passenger or the flight crew. He goes on to state that there is no pattern that establishes him as an unruly passenger.

In this case, then, there is not much to go about to establish the reason why IndiGo banned the passenger in the first place, and how did the other three airlines, which were not even involved, determine their legal position on the ban? Activist Saket Gokhale has filed an RTI asking how can Air India decide to ban Kamra.
There are two ways a passenger can get banned from an airline. India's civil aviation regulator, DGCA notified the Civil Aviation Requirements, Section 3 — Air Transport, Series M Part VI, Issue II on 8 September, 2018, which touches on the regulations applicable in case of unruly passengers. According to the statute, unruly passengers are those who "fail to respect the rules of conduct at an airport or on board an aircraft or to follow the instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft".

According to the regulations, unruly behaviour (such as physical gestures, verbal harassment, unruly inebriation) attract a three-month ban after the first offence. In contrast, physically abusive behaviour (pushing, kicking, hitting, grabbing or inappropriate touching or sexual harassment) attract six months ban.

The regulations determine that the cabin crew need to warn the unruly passenger verbally and then in writing, and if all else fails, physically restrain them. We still have not heard from any concerned party that Kamra was restrained. Next course of action is for the Pilot in Command to divert the flight to the nearest aerodrome, in consultation with the Control Room of the airline where the unruly person would be dropped off, and an FIR would be lodged against him/her by the airline. A review of all the flight logs of IndiGo flights between Mumbai and Lucknow on 28 January, 2020, on flight tracking website FlightRadar24, did not reveal of any such diversion, which indicates the airline did not take this matter very seriously onboard.

Even if the airline later determined something was wrong, the Pilot-in-command needs to file a complaint with the internal committee on the issue. This committee has to have a retired Judge, a representative of another airline and representative from a consumer association, all of who collectively determine if said passenger was "unruly". They have 30 days to decide on the matter, and the airline can bar the customer for 30 days pending the enquiry and the result. The affected flyer has 60 days to contest the decision in a DGCA Appellate committee and then go to the high court if required.

Once an airline follows this process above and determines that a customer is banned, then other airlines can add them to their no-fly list as well using the precedent.

Given that IndiGo has acted so quickly on this case, I went about looking for other ways an airline may ban a passenger from flying. It turns out, the Conditions of Carriage of the airlines allow them to offload customers and determine if they will be trouble. It is like a carte blanche given the contract between the passenger and the airline is one-sided. Since boilerplate language is included on all airlines contract of carriage, all airlines have a specific clause under "refusal to carry passengers", which paraphrased, states that the airline can determine not to carry a passenger if "The Customer has committed misconduct on a previous flight and there is a reasonable likelihood that such conduct may be repeated or The Customer has not observed or is likely to fail to observe, our instructions."

Airlines usually take complete care in banning passengers. For instance, nothing moved after a viral video of BJP MP Sadhvi Pragya Thakur surfaced in December onboard a SpiceJet flight for not moving from an emergency exit seat. She was not eligible to fly on that particular seat because of her wheelchair. Neither has any action come to fore against the outburst of Air India passengers where they threaten to break the cockpit door of a Boeing 747 on video after a lengthy tarmac delay.

It is still not determined how IndiGo concluded banning Kamra. Unfortunately, if he decides to challenge this in court, he will still need a Notice from IndiGo determining the regulations under which they prohibited him. And even after that happens, we don't know yet how Air India, SpiceJet and GoAir decide to ban him, which comes without an expiry date.
29/01/20 Ajay Awtaney/First Post
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