SC allows AI to run int'l flights with middle seats filled for 10 days

The top court said that after June 6, Air India will operate its non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court

The Supreme Court on Monday allowed Air India to keep the middle seats occupied while operating its non-scheduled flights to bring back Indians stranded abroad up to June 6 while observing that the government should be more worried about the health of citizens rather than the health of commercial airlines.

The top court said that after June 6, Air India will operate its non-scheduled flights in accordance with the interim order to be passed by the Bombay High Court. The Centre and Air India had moved the apex court challenging the interim order of the High Court by which it had asked the national carrier to operate its non-scheduled flights by keeping the middle seats vacant.

A bench of Chief Justice S A Bobde and Justices A S Bopana and Hrishikesh Roy, which took up the appeals filed urgently through video conferencing despite the holiday for Eid, remanded the matter back to the High Court with a request to pass an effective interim order after hearing all concerned on the date fixed by it, i.e. June 2, 2020, or soon thereafter.

"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 up to June 6, 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," it said, according to news agency PTI.

Indira Gandhi International Airport Authorities preparing airport during the fourth phase of nationwide lockdown to curb the spread of coronavirus, in New Delhi. Photo: Dalip Kumar.

The bench observed that authorities must consider the importance of maintaining social distancing as a shoulder to shoulder sitting is dangerous, due to the contagious pandemic. The bench said normally it is not inclined to interfere with the interim orders made by the courts below.

Solicitor General Tushar Mehta, appearing for Centre and Air India, said that due to the directions of the High Court a lot of "anxiety and difficulties" have arisen among the passengers who are stranded on foreign soil after they were issued tickets for travel.

"Moreover, in some cases, the travel plans of families who were travelling together have been disrupted because those in the families who had middle seats have to be offloaded and remain behind," the bench said while noting the submissions of Mehta, who said that passengers stranded abroad are facing difficulty due to want of proper shelter and money.

The bench said it would consider it necessary for the High Court to arrive at a prima facie finding regarding the safety and health of the passengers qua the COVID-19 virus, whether the flight is a scheduled flight or a non-scheduled flight.

"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 bench said in its order while disposing of the appeal.

During the hearing, Mehta referred to the March 23 circular and said that India had stopped all international flight operations due to spread of COVID-19 and it has now been superseded by the May 22 circular.

The bench told Mehta, You should be worried about the health of citizens, not about the health of commercial airlines.

He said institutional quarantine for seven days and seven days home quarantine is compulsory for those who have been brought back to India.

The bench observed that there should not be any difference between international and domestic flights as far as social distancing is concerned.

Mehta, while contending that he can share the minutes of meeting by experts with the officials of civil aviation in this regard, said the best practice is testing and quarantine. "Will the virus know it is in the aircraft and it is not supposed to infect," the bench observed, adding that there might be chances of transmission if people are sitting next to each other.

Passengers at Terminal 3 of Delhi airport. Photo by Dalip Kumar

Mehta told the bench that till June 16, all the tickets for the non-scheduled flights have been booked including the middle seats.

The high court had on May 22 sought response from Air India and the Directorate General of Civil Aviation (DGCA) on a petition of an AI pilot, who had claimed that the airline was not following safety measures for COVID-19 while bringing back Indians stranded abroad.

The High Court had directed Air India and DGCA to file affidavits clarifying their stand and posted the petition for further hearing on June 2. The pilot, Deven Kanani, in his plea claimed that a circular issued by the Government of India on March 23, 2020 laid some conditions to prevent the spread of COVID-19 while bringing back Indians stranded abroad due to the pandemic.

However, the condition pertaining to keeping the middle seat between two passengers empty was not being followed by the Air India, he said in the plea.

Kanani had submitted photographs of an Air India flight operated between San Francisco and Mumbai where all seats were occupied. The High Court had directed Air India and DGCA to file affidavits clarifying their stand and posted the petition for further hearing on June 2. The court had also allowed Kanani to amend his petition to challenge the circular of May 22.